Correct on the date of publication - 10 August 2026
Question:
While it is generally accepted that investigating officers should not concern themselves with sentencing matters, on occasions the nature of the evidence gathered will be of relevance to the sentence imposed. Are there any such considerations in respect of persons convicted of offences under section 1(1) of the Protection of Children Act 1978 and section 160(1) of the Criminal Justice Act 1988?
Answer:
The cases of R v Oliver, R v Hartrey and R v Baldwin (2002) shed light on this issue.
Oliver, Hartrey and Baldwin had been separately convicted of various offences under the Protection of Children Act 1978.
In dealing with their appeals against the custodial sentences which had been imposed on them, the Court of Appeal issued guidelines as to the appropriate sentence to be imposed on those convicted of offences involving indecent photographs or pseudo photographs.
The Court of Appeal ruled that the two primary factors determining the serious of the offence were -
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the nature of the indecent material; and
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the extent of the offender's involvement in it.
So far as the nature of the material was concerned the Court ruled that the images were to be classified or categorised by levels of seriousness. In the judgment of the Court, it was held that the levels of seriousness were -
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images depicting erotic posing with no sexual activity;
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sexual activity between children or solo masturbation by a child;
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non-penetrative sexual activity between adults and children;
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penetrative sexual activity between children and adults; and
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sadism or bestiality.
In respect of the offender's involvement in the making of the images, the Court ruled that the gravity of an individual offence increased with the offender's closeness to and responsibility for the original abuse of the child.
A plea of 'guilty' at the first opportunity might reduce the penalty imposed, the Court ruled, but conversely, it was held that amongst the factors which might aggravate the gravity of the offence were -
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showing or distributing the images to a child;
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there being a large number of images;
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the manner in which the images were organised or catalogued on a computer, but an offence would be less serious if the images had been viewed, but not stored;
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the images were posted on a public area of the internet or distributed in a manner which made it more likely they would be found accidentally by a computer user not searching for such material;
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where the offender was responsible for the original production of the image. This would be particularly aggravated if the children were members of the offender's family or from a vulnerable group or where the accused had abused a position of trust; and
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the age of the child.
The Court also concluded that some, but not much, weight could be given to the previous good character.
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