“The Burton Principle”: Choosing the Correct Modern Guideline for Historic Child-Sexual Offences

1. Introduction

In Burton, R. v ([2025] EWCA Crim 950) the England and Wales Court of Appeal (Criminal Division) delivered a judgment that clarifies how sentencing judges should select the most appropriate modern guideline when sentencing historic sexual offences against children.

The appellant, Mr Burton, then 57, pleaded guilty to three counts of indecent assault on males under section 15(1) of the Sexual Offences Act 1956. The assaults dated back to the early 1980s and involved three brothers (A, B, C), all under ten at the time. At first instance, Recorder Fowler sentenced the appellant to five years and ten months’ imprisonment on each count, concurrent. On appeal the sentence was challenged as “manifestly excessive.”

Two issues dominated the appeal:

• Which current Sentencing Council guideline should be used as the “nearest modern equivalent” for indecent assaults on children committed before the Sexual Offences Act 2003 came into force?
• Whether, having chosen that guideline, the judge properly applied aggravating/mitigating factors, totality principles, and credit for guilty pleas.

2. Summary of the Judgment

Lady Justice Andrews, giving the judgment of the Court (with which the other members agreed), dismissed the appeal. The Court held that:

1. It was not an error of principle for the sentencing judge to rely on the guideline for sexual assault of a child under 13 (section 7, Sexual Offences Act 2003) rather than the guideline for sexual activity with a child (section 9).
2. Although advance notice to counsel of the intended switch would have been preferable, the decision fell squarely within the judge’s discretion.
3. After making the necessary adjustments for the lower historical maximum (10 years v. 14 years under the modern offence), the resulting notional sentence of 6½ years before credit for plea—and ultimately 5 years 10 months—was within the appropriate range.

“Seen from that perspective … the six-and-a-half-year notional sentence before credit for plea cannot be described as falling outside the reasonable range for offending of this nature and seriousness.” (para 19)

3. Analysis

3.1 Precedents Cited and Their Influence

The judgment references the established line of authorities on historic sexual offences, notably:

• H (1996) – principle that courts must sentence by reference to the maximum applicable at the time of the offence.
• R v. Forbes [2005] and R v. Terrell [2007] – requirement to use “nearest modern equivalent” guidelines whilst respecting historical maxima.
• R v. JB [2013] EWCA Crim 1700 – adjustment methodology where modern guideline carries a higher statutory maximum.
• R v. Manning [2020] EWCA Crim 592 – broad guidance on totality and consecutive/concurrent structuring for multiple victims.

Lady Justice Andrews synthesised these authorities to emphasise two controlling propositions: (1) “Guideline first, statutory ceiling next” – judges must choose the most fact-sensitive modern comparator before trimming it down to historic limits; (2) “Totality is flexible” – a judge may reach the same just result by either consecutive sentences with discount or concurrent sentences at the upper end.

3.2 Legal Reasoning of the Court

1. Selection of Guideline
   • The victims were all under 13, and there was no participation or “sexual activity with” the children; rather, it was an assault upon them.
   • Section 7’s focus on non-consensual assaults on a child under 13 supplied a closer analogy than section 9, which also covers situations where a child may willingly engage in activity.
   • The Court flagged a best-practice point: judges should warn counsel if they intend to deviate from an agreed guideline, but failure to do so does not of itself vitiate the sentence.
2. Historic Maximum
   • Because the 1956 offence carried only a 10-year maximum, the judge had to “step back” from the section 7 guideline’s 14-year maximum when fixing sentence length.
   • The Court acknowledged the recorder’s oblique reference to “10-year maximum” but deemed any verbal slip harmless.
3. Aggravating and Mitigating Factors
   • Aggravation: extreme youth of victims, breach of trust, psychological harm documented in victim personal statements, multiplicity of occasions & victims.
   • Mitigation: appellant’s youth (19-23) at time of offending, subsequent good conduct, no further convictions, late guilty plea (~10 % credit).
   • The Court reiterated the guideline caveat that “exemplary conduct” years later seldom justifies substantial reduction where grave sexual abuse is involved.
4. Totality
   • The judge could have selected any of three offences as the “lead” but opted instead to keep sentences concurrent and upper-range.
   • Andrews LJ demonstrated that three consecutive terms of 26 months (already totality-adjusted) would produce the same 78-month outcome, underscoring that the route taken was legitimate.

3.3 Impact of the Judgment (“The Burton Principle”)

The decision cements what practitioners are already seeing informally: where historic indecent assaults involve non-participatory abuse of children under 13, the correct modern comparator is the section 7 guideline, not section 9—unless features of mutual sexual activity dictate otherwise. The Court’s comments on notice to counsel will likely shape sentencing practice, encouraging transparent dialogue at plea and trial preparation hearings.

Further, the judgment underscores that apparent good character in the intervening decades will rarely carry decisive weight. Victim impact and breach of trust remain dominant factors. Future defendants facing historic allegations should therefore calibrate expectations accordingly.

4. Complex Concepts Simplified

• Historic Offence: A crime committed years (sometimes decades) earlier, when different statutes and maximum penalties applied.
• Nearest Modern Equivalent Guideline: The current Sentencing Council framework that most closely mirrors the elements of an old offence. Judges adopt it to achieve consistency.
• Statutory Maximum: The highest prison term Parliament permitted for the offence at the time it was committed. Courts cannot exceed it even if the modern equivalent allows more.
• Totality Principle: A doctrine requiring courts to ensure that the overall sentence for multiple offences is “just and proportionate” and not simply an arithmetic sum of individual counts.
• Credit for Guilty Plea: Sentence reduction (up to one-third) based on the timing of a plea. Late pleas, especially on trial day, receive limited credit (~10 %).
• Consecutive vs. Concurrent Sentencing: Consecutive sentences run one after another; concurrent sentences run simultaneously. Judges use whichever structure best reflects overall criminality while respecting totality.

5. Conclusion

Burton advances the jurisprudence on historic sexual offending by formulating a clear rule-of-thumb—the “Burton Principle”—for guideline selection: match the age-specific, conduct-specific modern offence first, then taper the sentence to the historical ceiling.

The Court’s robust approach to aggravating factors, limited sympathy for post-offence good character, and pragmatic handling of totality provide a template for future cases. Sentencing judges are affirmed in their discretion to choose a more severe guideline where the facts warrant it, provided they articulate reasons and respect statutory maxima.

For practitioners, the key takeaways are:

• Expect section 7 guidelines to dominate historic child assaults where victims were under 13 and offered no participation.
• Prepare to address the statutory-maximum adjustment explicitly in submissions.
• Advise clients that long-term good behaviour, while helpful, will not eclipse the gravity of childhood sexual abuse.

In the wider context, Burton reinforces the judiciary’s commitment to victim-centred sentencing and clarifies doctrinal uncertainties, thereby enhancing both consistency and transparency in the treatment of historic sexual crimes.