“Extreme Youth Equals Category 1 Harm” – Edun v R and the Re-Calibration of Sentencing for Inchoate Child-Sex Offences

Introduction

Edun, R. v ([2025] EWCA Crim 735) is a seminal Court of Appeal decision which recalibrates the approach to sentencing under s.44 Serious Crime Act 2007 (intentionally encouraging or assisting an offence) when the anticipated crime is the rape of an extremely young child. The Court quashed a sentence referred by the Attorney-General as unduly lenient and, in so doing, laid down a clear new principle: where the victim is of “extreme youth” (here, two weeks old), harm must be categorised as Category 1 under the rape guidelines, even though the defendant’s offence is inchoate. Minimal or no discount should be given simply because the offender was an encourager rather than the principal if his involvement verges on secondary participation.

Summary of the Judgment

• The original extended determinate sentence on the lead count (s.44 SCA 2007) was 13 yrs 6 mths plus 8 yrs extended licence.
• The Attorney-General argued the sentence was unduly lenient: (i) wrong harm categorisation (should be 1A, not 2A) and (ii) inadequate uplift for the total criminality, notably perverting the course of justice.
• The Court of Appeal agreed on both fronts, holding:
  • “Extreme youth” (two-week-old victim) mandates Category 1 harm, relying on AZ [2022] EWCA Crim 620.
  • No substantial reduction is justified merely because the offence is inchoate when the encourager is “not far from being a secondary party”.
  • The seriousness of related counts (making/distributing indecent images, perverting justice) required an upward adjustment.
• Sentence substituted: 16 yrs 2 mths custodial term + 8 yrs extended licence (total 24 yrs 2 mths).

Analysis

3.1 Precedents Cited and their Influence

1. Watling [2012] EWCA Crim 2894
   • Held that when sentencing inchoate offences (ss.44-46 SCA 2007) courts should look to the guidelines for the substantive offence.
   • Provided the doctrinal bridge enabling the Court to “transpose” the rape guideline to Edun’s case.
2. Hendron [2024] EWCA Crim 33
   • Explained how little discount may be warranted when an aider/encourager is “close to” secondary liability.
   • Judge Lowe’s approach was endorsed by the Court of Appeal; it underpinned the minimal inchoate discount.
3. AZ [2022] EWCA Crim 620
   • Key authority for upgrading harm to Category 1 where a child of “extreme youth” is raped (the child there was 2 years; Edun’s victim was 2 weeks).
   • Edun extends AZ by declaring the same principle applies even when the defendant is convicted only of encouragement/assistance.

3.2 Legal Reasoning

• Statutory framework. Under s.58(3) SCA 2007 a s.44 offender is “liable to any penalty” available for the anticipated offence—here rape of a child under 13, maximum life imprisonment.
• Guideline transposition. Because there is no dedicated sentencing guideline for s.44, the Court adopted the rape-of-child guideline. Watling legitimised that exercise.
• Harm/Culpability assessment.
  • Harm factor: “child particularly vulnerable due to extreme youth” was so extreme (2-week-old neonate) that case must be in Category 1, not 2.
  • Culpability: The defendant’s real-time encouragement, knowledge of parental trust breach, and distribution of images placed him in Category A.
• Inchoate Discount. Hendron’s dictum that little or no reduction is needed when the encourager is “not far from being a secondary party” led to only a “minimal, if any” adjustment.
• Totality & Uplift. Perverting the course of justice (deleting Kik at point of arrest) and the other image counts mandated an upward adjustment from the 16-year Category 1 starting point to 18 years before plea—deemed the minimum uplift consistent with totality.
• Late Plea Credit. 10 % discount (very late plea) applied, bringing the custodial term to 16 yrs 2 mths.

3.3 Impact on Future Cases

1. Sentencing Benchmarks Re-Set
   Courts must treat any encouragement of child rape involving neonates/infants as Category 1 harm. Prosecutors and defence teams can no longer argue Category 2 simply because the child’s extreme youth “fits” the wording of Category 2.
2. Minimal Inchoate Reduction
   Where real-time or near-secondary involvement exists, the discount traditionally given for “mere encouragement” will evaporate. This narrows the practical sentencing gap between principals and facilitators in the gravest sexual offences.
3. Attorney-General References
   Edun demonstrates the court’s willingness to correct even prosecution-induced errors at first instance. Advocates must anticipate stricter appellate scrutiny of categorisation decisions.
4. Perverting Justice as an Aggravator
   Deleting digital evidence in sexual-image cases will likely attract weighty standalone sentences that influence the overall starting point.

Complex Concepts Simplified

Inchoate Offence

An offence that punishes conduct aimed at committing another crime, even if the intended crime is not completed. Under s.44 SCA 2007, encouraging rape is itself criminal.

Category 1 / 2 Harm (Sentencing Guidelines)

The rape guideline assesses gravity through “harm” categories:

• Category 1: highest harm—prolonged detention, violence, pregnancy risk, or (now clarified) extreme youth so profound it surpasses usual vulnerability.
• Category 2: serious harm but lacking Category 1 features.

Extended Determinate Sentence (EDS)

An EDS is imposed where an offender is “dangerous” (poses significant risk of serious harm) and the custodial term is at least the requisite minimum. It consists of: (i) a custodial term, plus (ii) an extended licence period (up to 8 years for sexual offences), during which the offender can be recalled to prison.

Attorney-General’s Reference (Unduly Lenient Sentence)

Under the Criminal Justice Act 1988 the A-G may seek leave to ask the Court of Appeal to increase a sentence considered “unduly lenient”. The test: the sentence must fall outside the range a reasonable judge could have imposed.

Plea Discount

Credit for a guilty plea incentivises early admissions. Discount reduces from one-third (first appearance) to a typical 10 % if plea is very late (e.g., day of trial).

Conclusion

Edun cements a decisive shift in the sentencing landscape for child-sex inchoate offences. The Court of Appeal has now confirmed that “extreme youth” automatically elevates harm to Category 1—a classification carrying a substantially higher starting point—and that only minimal allowance is made for the fact that the perpetrator “merely” encouraged the abuse when his conduct approaches secondary participation. The judgment also underscores the weight courts will attach to subsequent obstruction of justice in online sexual-image investigations. Practitioners must, therefore, recalibrate plea-facing advice, charging decisions, and sentencing submissions in cases of online encouragement of offences against babies and very young children.