UPDATE: R v Woolner closes the loophole in the Sentencing Guidelines for causing or inciting sexual activity with a child

It seems that the matter of the section 9 and 10 Sexual Offences Act sentencing guideline has been settled. The Court of Appeal in R v Woolner decided that the authorities of Baker and Manning are not the approach to be followed, and instead preferred the approach taken by the court in Privett. This means that the offending should be categorised in line with the behaviour that was incited, arranged or facilitated, even if no such activity took place.

Original article can be found here.

Since the above linked article, the case of R v Robert Alan Woolner [2020] EWCA Crim 1245 appears to have finally settled the position on the correct application of the sentencing guideline for section 9 and section 10 offences of causing or inciting a child to take part in sexual activity, contrary to the Sexual Offences Act 2003 (“SOA”).

The case of Woolner considered offending charged under section 14 of the SOA (arranging or facilitating) which involved Mr Woolner sending sexual messages to a person he believed to be a child referring to oral sex. However, the child in this case was fictional. In the definitive guideline for sexual offences issued by the Sentencing Council, sentencers are told to refer to the guideline for the applicable, substantive offence that was arranged or facilitated under sections 9 to 12 of the SOA, and hence the question of categorisation arose once again. Mr Woolner had not met the child – because he was an undercover officer – so no sexual activity took place, but oral sex was arranged or facilitated. The question arose as to whether it was category 3 as no activity took place, or category 1 as the behaviour was of the type listed in that category.

The court decided that the correct approach was that the harm caused was the activity facilitated or incited, even if no activity took place, overturning the line of authority that decided the contrary. Even if the victim is fictional, it is the intended harm that is relevant.

R v Privett – the case that got away

The key to the court’s decision was the Court of Appeal case of R v Privett [2020] EWCA Crim 557. Unfortunately, this decision was made the day before the Court of Appeal heard the familiar case of R v Manning [2020] EWCA Crim 592, and therefore had not been published in any law reports or brought to the court’s attention.

Privett identified and rejected the line of authority categorising inciting behaviour as Category 3 regardless of the type of behaviour incited, whether that be charged under section 14 or 10 of the SOA. The court found that the offence is complete when the arrangements for the offence are made, and cannot depend on the completed offence happening, or even being possible. The level of harm for a section 9, 10 or 14 offence should be determined by the type of activity arranged or facilitated.

When asked to consider Manning, the Court of Appeal in Woolner expressly noted at [30] that the case of Privett had not been considered by the court when deciding Manning. In fact, the categorisation itself was not revisited at appeal. The court were clear that the decision in Manning cannot displace the reasoned conclusion of the court in Privett.

Sections 9 and 10 versus Section 14

 This new, settled line of authority in both Privett and Woolner determined questions of sentencing for section 14 offences. Does this mean there is still a possibility that Category 3 is the correct categorisation for section 9 and 10 offences?

It seems not. The court in Privett also recognised at [65] that the court in Baker were concerned with section 10 offences rather than section 14 as the present court were, but that section 10 cases ‘may need to be revisited’ in light of their judgment.

2020 was a busy year for appeals regarding these guidelines. R v Russell [2020] EWCA Crim 956 concerned a defendant sentenced for offences with reference to sections 9 and 10, where the victim was fictitious. An issue in front of the trial judge was the categorisation of the offending, whereupon he decided it would be Category 1A. The Court of Appeal found he was wrong to do so. The focus of the argument was based on the authorities including Baker, rather than that of Privett. Although Privett does appear to have been raised, there was no discussion of the case in the judgment, and no reasoning behind the appellate court’s categorisation of the offending as 3A.

The appellate court in Woolner went further. Although making clear that the court could distinguish the case of Russell on the basis that it concerned sections 9 and 10 offending rather than section 14, at [32], the court commented that ‘the implications of Privett on cases charged by references to sections 9 and 10, or attempts thereunder, may need to be explored further when such matters directly arise for consideration; and Russell should not, we respectfully suggest, be taken as binding and decisive authority on the position.’

It seems that we will not be waiting long before an appeal concerning sections 9 and 10 will be heard to solidify the position that the categorisation should be based on the intended activity, whether or not it took place. Until then – the appellate court has gone as far as it could to clear up its own confusion and make it clear that the correct category is the intended harm for sections 9, 10 and 14 offences.