Summary of Court Opinion
Factual and Procedural Background
This opinion concerns an application by the Solicitor General under section 36 of the Criminal Justice Act 1988 seeking to refer sentences on the ground that they were unduly lenient.
The Defendant (a serving police officer at the time of the offending) covertly filmed the Victim (his stepdaughter) in her bedroom and the family bathroom when the Victim was aged between 14 and 15. The Defendant obtained moving and still images of the Victim (including undressing and washing). Some images were stored on a USB stick that was found by the Defendant's son, who copied files to his computer and later brought the matter to the Victim's mother's attention. A mobile phone and a USB drive contained indecent images; some images were categorised as category C indecent images.
The Defendant pleaded guilty at various stages to offences including two counts of making indecent photographs of a child and two counts of voyeurism. On 2 July 2025 the sentencing judge imposed an overall sentence of 13 months' imprisonment suspended for 24 months, together with a rehabilitation activity requirement (30 days), unpaid work (180 hours), a sexual harm prevention order (10 years), a restraining order(s), forfeiture and destruction of devices, and notification requirements under the Sexual Offences Act 2003. Reporting restrictions were lifted except for the lifelong anonymity to which the Victim is entitled under the Sexual Offences (Amendment) Act 1992.
The Solicitor General applied for leave to refer the sentence as unduly lenient. The application was considered by the court that delivered the opinion summarized here.
Legal Issues Presented
- Whether the sentences passed were unduly lenient within the meaning of section 36 of the Criminal Justice Act 1988.
- Whether the images offences were correctly categorised for sentencing purposes as "possession" rather than "production" within the Sentencing Council's guidelines for indecent images of children.
- Whether, even having regard to the correct categorisation, the sentencing judge erred in suspending an immediate custodial sentence rather than imposing immediate custody.
Arguments of the Parties
Attorney Hole (on behalf of the Solicitor General)
- The sentencing judge erred by treating the images charges as "possession" rather than "production"; several images were created by hidden cameras and thus amount to production at source.
- Because the images were production, the starting point under the guideline should have been 18 months' custody (category C production), with a suggested range of 1 to 3 years; the overall criminality merited a sentence at or above the top of that range.
- The sentencing judge failed to identify the images offences as the lead offences.
- The sentence should not have been suspended; immediate custody was required given the seriousness, abuse of trust, duration and volume of offending, and attempts to dispose of or conceal evidence.
Attorney Lloyd-Jacob (on behalf of the Defendant)
- The sentencing judge properly characterised the offences in accordance with how they were pleaded in the Crown Court; the "making" charges related to electronic copying/storage rather than to original taking by camera.
- The prosecution's plea formulation and the way the case was presented in the courts below are relevant and the court should be cautious about departing from the prosecution's categorisation absent proper and substantial justification.
- Even if the images charges had been categorised as production, the sentencing judge applied the correct discounts (including full one-third credit for early guilty pleas) and identified a realistic prospect of rehabilitation, such that suspension was justifiable.
- There is discretion even if the sentence is considered unduly lenient; factors such as prison capacity, prospects for rehabilitation, and family reconciliation support refusal to increase the sentence.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Stewart [2016] EWCA Crim 2238 |
The Attorney-General (or law officers) is not bound by a concession made by the prosecution at the sentencing stage. |
The court acknowledged the principle that the Attorney-General's Reference can depart from a prosecution concession, but considered the procedural history of how the case was pleaded when deciding whether to exercise that power. |
| Atkins v DPP [2000] 2 Cr App R 248 |
Clarifies the distinction between "making" (copying) an image and "taking" an image (proof required that the defendant took a photograph). |
The court relied on the distinction to assess whether the images charges were properly characterised as possession/making or as production/taking in the context of the indictment and how the prosecution pleaded the case. |
| Attorney-General's Reference (Egan) [2022] EWCA Crim 1751; [2023] 2 Cr App R(S) 16 |
Summarises key principles for section 36 referrals: deference to the sentencing judge, the standard for unduly lenient sentences, and that referrals should be exceptional. |
The court applied these principles, emphasising that a sentence is only unduly lenient if it falls outside the range the sentencing judge might reasonably have considered and that referrals are only appropriate in exceptional cases. |
| Attorney-General's Reference No 4 of 1989 (1990) 90 Cr App R 366 |
Confirms that even if this court considers a sentence unduly lenient, it retains a discretion whether to exercise its powers. |
The court invoked this discretion when determining whether to increase or alter the sentence after finding that the sentencing judge's approach was within the reasonable range. |
| Attorney-General's Reference 132 of 2001 (Bryn Dorian Johnson) [2002] EWCA Crim 1418; [2003] 1 Cr App R(S) 41 |
Explains the public confidence and normative purposes of the section 36 referral system where a judge appears to have departed substantially from sentencing norms. |
The court referred to these purposes (allaying public concern and preserving confidence) in assessing whether leave to refer should be granted in the present case. |
Court's Reasoning and Analysis
The court proceeded by applying the established principles governing applications under section 36 of the 1988 Act, emphasising deference to the sentencing judge who is "particularly well placed" to assess competing factors and that referrals should be confined to exceptional cases of gross error.
On the key issue of categorisation (possession/making v production/taking), the court acknowledged the Solicitor General's submission that images originating from hidden cameras pointed to production. However, the court placed significant weight on the procedural history and on how the offences were pleaded and presented in the Crown Court. The court concluded that the sentencing judge was entitled to accept the characterisation adopted in the Crown Court: the voyeurism offences were the main offences and the images charges related to subsequent storage/possession of images rather than their initial creation.
The court noted that even if it were wrong about the categorisation and the images had been treated as production, the Defendant had pleaded guilty at the earliest reasonable opportunity and had therefore been entitled to full credit (one-third reduction). Taking that reduction into account, and the mitigating features identified by the sentencing judge (including loss of employment and family, prospects for rehabilitation, and other contextual factors from the pre-sentence report), the resulting notional sentence could reasonably have fallen within the Sentencing Council's suggested range for a category C production case and could have been capable of suspension.
Regarding the decision to suspend, the court reiterated that re-sentencing is not its role. It examined the sentencing judge's application of the Imposition Guideline and the Definitive Guideline for indecent images/voyeurism, both of which invite consideration of suspension in category C cases. The court found there was "ample evidence" before the sentencing judge to support the finding of a real prospect of rehabilitation and other mitigating features that justified suspension. Accordingly, the court concluded that the sentencing judge's decision to suspend the sentence was within the range of reasonable outcomes and did not amount to a gross error requiring intervention under section 36.
Holding and Implications
Holding: The court refused the application for leave to refer the sentence under section 36 of the Criminal Justice Act 1988. The court therefore declined to increase or otherwise alter the sentence imposed by the sentencing judge.
LEAVE TO REFER REFUSED
Implications:
- The original sentence (13 months' imprisonment suspended for 24 months, with ancillary requirements and orders as imposed by the sentencing judge) stands.
- The court emphasised deference to the sentencing judge's exercise of judgment, particularly where the plea issues, procedural history and mitigation were properly considered below.
- No new legal precedent was established; the court applied and reaffirmed existing principles governing section 36 referrals and the treatment of sentencing categorisation and suspension under the relevant Definitive Guidelines.
Miscellaneous Procedural and Statutory Notes
The opinion observes that the Sexual Offences (Amendment) Act 1992 provides a prohibition on publishing matters likely to identify the Victim as the victim of a sexual offence during her lifetime, unless that prohibition is lifted in accordance with the Act.
This summary is strictly based on the provided opinion. No additional facts or inferences beyond the text have been introduced.