BSQ Analysis – Suspended Sentences in Indecent Images Cases following R v Hagan and R v Hollywood

As one of the leading defence practices specializing in indecent images cases, BSQ has represented clients in over 50 such cases in recent years. We closely monitor legal developments and provide comprehensive analysis on the law relating to indecent images through our blogs. In this update, we examine the Court of Appeal's recent decision in R v Gregory Hagan [2024] EWCA Crim 942, handed down on July 18, 2024. In this case, the Court upheld an 18-month custodial sentence imposed by Judge Campbell at Warwick Crown Court on May 23, 2024.

Background

Hagan, a 52-year-old man with no prior convictions, was charged with making (i.e., downloading) 922 Category A images, 1,009 Category B images, and 503 Category C images. These images were discovered on a computer tower and a mobile phone seized during a police search of his home on July 11, 2023. The images had been accumulated over a brief period, between January and June 2023.

Evidence also suggested that additional files, potentially containing illegal material, had been present on Hagan's computer but had been deleted before the search.

Mr. Hagan pleaded guilty to all charges and admitted using torrent sites to obtain the images, which he then transferred to his phone. He acknowledged that he had been viewing such material for 15 years for his own sexual gratification, though he initially denied this in interviews with police and probation officers.

Sentencing

Judge Campbell took the most serious offence—making Category A images—as the lead offence in determining the sentence. According to the Sentencing Guidelines, the starting point for Category A making offences is one year of imprisonment, with a range of 26 weeks to three years. Given the aggravating factors, including the nature of the images, the Judge increased the starting point from 12 months to 27 months. After applying a one-third reduction for Hagan's guilty plea, the final sentence was 18 months for the Category A offences, with concurrent sentences of 6 and 9 months for the Category B and C offences, respectively.

Court of Appeal's Ruling

The Court of Appeal dismissed the defence's argument that the sentence was manifestly excessive. The Court concluded that the 18-month sentence, reduced from 27 months for the guilty plea, was within the appropriate guidelines.

Suspended Sentences in Indecent Images Cases

The Court of Appeal also upheld the decision not to impose a suspended sentence in this case. This is the second recent decision, following R v Darren Hugh Hollywood [2024] EWCA Crim 591 (see our blog on Hollywood here), where the Court of Appeal has upheld an immediate custodial sentence for indecent images offences.

While the Hollywood case involved more serious allegations of low-level distribution in addition to making offences, some parallels can be drawn between the two cases. Notably, both decisions contrast with BSQ’s experience that many Crown Courts are often receptive to defense arguments for a suspended sentence, particularly where there is a strong prospect of rehabilitation. The alternative of a suspended sentence is generally available for custodial sentences between 14 days and two years.

Critique of the Court's Approach

In the Hagan case, the Court of Appeal departed from the structured approach recommended by the Community and Custodial Sentencing Overarching Guideline, which provides specific criteria for when a custodial sentence should not be suspended. According to the Guideline, factors indicating that a suspended sentence may not be appropriate include:

1. The offender presents a risk or danger to the public.

2. Appropriate punishment can only be achieved through immediate custody.

3. A history of poor compliance with court orders.

Conversely, factors suggesting that a suspended sentence may be appropriate include:

1. A realistic prospect of rehabilitation.

2. Strong personal mitigation.

3. The likelihood that immediate custody would result in significant harmful impact on others.

As well as omitting to address these factors in turn the Court also failed to explicitly address specific guidance in the Sentencing Guidelines for indecent images cases, which states that “a community order with a sex offender treatment programme requirement under part 3 of Schedule 9 of the Sentencing Code can be a proper alternative to a short or moderate length custodial sentence.” No explanation was provided as to why this guidance did not apply in Hagan’s case.

Additionally, the Court did not consider judicial pronouncements on prison overcrowding. Since November 2022, Operation Safeguard has been in effect due to prison overcrowding, a situation that remains unresolved. The Ministry of Justice has also advised practitioners about early releases. In R v Manning [2020] EWCA Crim 592, the Court held that the impact of prison conditions could influence both the length and type of sentence.

Applying the structured approach recommended in the Guidelines, BSQ believes there remains a strong argument for courts to consider suspended sentences in cases involving the making of indecent images, particularly where the defendant is of good character and has a sufficient prospect of rehabilitation as assessed by the probation service. In our recent experience most Crown Courts have taken this approach in similar cases. Thus, while this decision is significant, it may be best understood as being confined to its specific facts.

You can find more information about our indecent images solicitors on our dedicated guide, who are based in London. If you are accused of an indecent images offence and require legal representation, please contact our offices on 020 3858 0851.