Senior Policy Adviser, Ollie Simpson, explains why the Council is consulting on a harm assessment in child sexual offences that is based on what the offender intended to do

How do you measure the harm caused by a crime when there isn’t any victim? This might seem like an abstract question but it’s something the courts have to deal with more often than you might think. In May 2021, the Sentencing Council launched a consultation on the approach in cases where someone has arranged sexual activity with a child but the child doesn’t exist. Most often this will be because an undercover police officer, for example, has posed as a child online and the offender has engaged in a discussion with them, leading to them arranging to meet for sex.

This is clearly very serious behaviour and the offender’s culpability, their blameworthiness in the way they have acted, is the same regardless of whether there is a child or not. But the other aspect a sentencing judge has to consider in assessing seriousness is harm, and there is no direct harm caused in a case like this. Two schools of thought had emerged in sentencing: one was to focus simply on the harm that the offender had intended. The other was to treat the harm as relatively low, following the logic that such offending couldn’t be treated as seriously as sexual activity that had actually taken place – what is often called “contact” offending.

This led to some uncertainty about how the courts should assess seriousness in such situations. The Court of Appeal considered several of these cases in 2020 (R v Privett and Ors) and set out the approach to be taken in future. The courts should first assess the harm on the basis of what the offender intended to do before applying a discount for the fact that there was no child. The Court of Appeal asked the Council to consider whether guidance on such cases could be provided, and this is what the Council is now consulting on.

One objection might be to ask how someone can be punished for something they haven’t done. Isn’t this like sending someone to prison for their thoughts? This isn’t the case under the law in England and Wales. Firstly, arranging to meet a child for sex is an offence under the Sexual Offences Act 2003: the meeting doesn’t have to happen for the crime to be committed. Secondly, in many cases the offender had every intention of carrying out a contact offence and was prevented from doing so only by circumstances they were unaware of. Finally, the Sentencing Code says that when assessing seriousness the courts have to consider not just harm caused but also the harm the offence was intended to cause and might foreseeably have caused. In fact, the courts are used to considering this in criminal attempts. Usually they will impose less severe sentences for attempts but just how much less severe will depend on the facts of the case, including whether the full offence was prevented because of something the offender did or circumstances beyond their control.

The Council’s revised sentencing guidelines for child sexual offences where no child exists or is harmed were published on 17 May 2022 and will come into effect on 31 May 2022.