The Court of Appeal has since settled the question of categorisation of this type of offending, deciding that the harm should be assessed with reference to the activity incited or arranged, even if it was not carried out.
The Court of Appeal have settled the case law on which category of harm to place offences of incitement to cause sexual activity with a child contrary to section 10 of the Sexual Offences Act 2003. All incitement offences where no activity took place are now to be placed in category 3.
Anyone who has been present in a sentencing court this month where a suspended sentence is being considered will probably have heard of R v (Christopher) Manning  EWCA Crim 592, (https://www.bailii.org/ew/cases/EWCA/Crim/2020/592.html) decided in the Court of Appeal on 30th April. This is because the Lord Chief Justice at  declared that the current coronavirus climate in prisons was a factor that could properly be taken into account when deciding whether to suspend a sentence. He set out that the impact of a custodial sentence would likely be more serious, given that prisoners are being confined to their cells for longer, are not allowed visitors and will be facing significant anxiety about the COVID-19 threat. However, the case also answered a question about the Sentencing Guidelines on s9 and s10 offences.
The substantive case was heard as an application to refer an unduly lenient sentence. Manning was given a suspended sentence of 12 months for four counts of sexual activity with a child contrary to section 9(1) of the SOA, and one count of causing or inciting a child to engage in sexual activity contrary to section 10 of the SOA.
Both s9 and s10 offences are included in the same Sentencing Guideline. (https://www.sentencingcouncil.org.uk/offences/magistrates-court/item/sexual-activity-with-a-child/) When determining harm, category 1 is reserved for offences involving penetration of the vagina or anus, or penile penetration of the mouth. Category 2 includes touching, or exposure, of naked genitalia or breasts by or of the victim, and category 3 is “other sexual activity”. The guideline makes it clear that it applies identically to offences committed remotely or online. One of the mitigating factors listed in the guideline is that “sexual activity was incited, but no activity took place because the offender voluntarily desisted or intervened to prevent it,” so it is clear that the guideline applies to offences where no sexual activity actually occurred.
The question in Manning’s case was whether his offence of inciting the child to have sexual intercourse with him over text message should be a category 1, or category 3 offence, given that both causing and inciting sexual activity are covered in the same guideline. Although no penetration took place, the activity that was incited was one that is listed in category 1.
The s9 offences that Manning was sentenced for involved activity that fell into category 3, but had been escalating in seriousness in the few days that the relationship had progressed. The offending was put to an end when the victim’s parents interrupted the offender alone with the victim. Given the swift escalation of the offending, it was recognised that but for the detection, further offences would have been committed.
The sentencing judge placed the offence in category 3 because no penetrative sexual activity took place. The Court of Appeal then confirmed this categorisation, although did consider Manning’s sentence to be unduly lenient and adjusted it upwards.
The Tangled Case Law
R v Baker  EWCA Crim 2752 was described by the Court of Appeal in Manning as the correct authority on this question. This case concerned s10 incitement over text message to sexual activity involving penile penetration of the mouth. The sentencing court put the offending into category 1 as it involved activity listed within that category.
The Court of Appeal at  –  identified that the guideline covers very different offending, and the language of the guideline must be construed with that in mind. The court reminded itself that the harm is the impact on the victim of behaving as he or she has done. It concluded that the offence of causing sexual activity was more serious than inciting such activity, because if no such activity took place, although the culpability would be the same, the harm is necessarily less. A comparison was made to the offence of causing or inciting a person with a mental disorder to engage in sexual activity, which has different guidelines depending upon whether penetration was actually involved.
Noting that the guideline was ambiguous and coining their explanation as definitive, the court laid down that ‘in all the circumstances, because the offending did not proceed beyond incitement, it was “other sexual activity” within category 3.’  – 
In R v Jakir Ahmed  EWCA Crim 1158, the sentencing judge and Court of Appeal placed similar offending in category 1. The offender was being sentenced for multiple s10 offences that had been committed over text message. All of the activity was confirmed to be placed in category 1 for harm because the sexual activity incited was penetration of the vagina and penile penetration of the mouth, despite no penetrative activity actually taking place.
A Criminal Law Week article Sentence: New Cases: Particular offences: Sexual activity with a child (incitement of)  CLW\17\39\15 criticised the decision in Ahmed, arguing that it was obvious that categories 1 and 2 were reserved for offences involving actual penetration, exposure or touching, and the opposite view would result in sentences disproportionate to the offending. The author referred to a number of other cases where a significantly lesser sentence had been given for more serious offending, but did not refer to Baker, perhaps because it was not mentioned in Ahmed.
The settled position is that incitement offences that did not lead to sexual activity must be placed into category 3, even if the activity incited is of a type listed in category 1.
As to its effect on sentence, the range for a category 1A offence is 4 to 10 years’ custody. The range for a category 3A offence is wide, from a high level community order to 3 years’ custody. This allows for significant disparity of sentence to reflect the seriousness of offending, and the harm that was actually caused to the victim, as well as leaving the door open for a suspended sentence.