BSQ Briefing: New Court of Appeal Sentencing Case – Indecent Images of Children

The case of R v Marshall 2023 EWCA Crim 1640 provides important guidance on sentencing in cases where there is evidence of distribution of illegal images, but the indictment does not include charges for distribution.

In this case, the appellant, M, was charged with making indecent photographs of children. Police raided M’s house and found 35 Category A, 4 Category B and 53 Category C illegal images on his iphone. Having made no comment in interview, M was later charged with 3 counts of making indecent photographs of a child of categories A, B and C contrary to section 1(1)(a) of the Protection of Children Act 1978.

M pleaded guilty to all the charges against him. Prior to his sentencing hearing during an interview with his probation officer he admitted sending i.e. distributing indecent images to others he had spoken to on the internet.

The trial judge decided to sentence M based on the sentencing guidelines for the distribution offence rather than the making indecent images offence. This resulted in a far higher starting point (3 years) and category range (2-5 years) for sentencing under the relevant Sexual Offences Sentencing Guidelines than would be the case for the making offences he was charged with. However, the Court of Appeal ruled that sentencing a defendant for a different offense than the one to which they pleaded guilty is not permissible under the law, citing the precedent set in R v Canavan [1998] 1 WLR 604.

As a result, the Court of Appeal substituted the sentence with a community order lasting 24 months, which included requirements for completing an accredited program and a rehabilitation activity. This decision aligned with the recommendations made by the probation officer in their original report.

M restates a fundamental legal principle i.e. that it is not open to a Court to sentence a defendant for anything other than the offence he/she has pleaded guilty to committing. It also provides an example of the type of sentence the Court of Appeal will approve of in cases of certain cases of making indecent images.

For more information about our indecent images solicitors see our practice page.

If you are accused of a sexual offence and require legal representation, please contact our criminal defence solicitors in our London offices on 020 3858 0851.