Attorney General's Reference No 89 of 2004

On a reference alleging undue leniency, the appellate court must sentence on the factual basis properly available at the original hearing. It cannot draw an adverse inference which conflicts with the prosecution’s responsible concession that the evidence did not establish the offender’s knowledge.

In offences involving distribution of indecent images, an organiser’s role is aggravating and may be more culpable than an individual distributor. Sentence must nevertheless reflect the material which the offender was proved to know he was facilitating, the applicable guideline levels, a guilty plea and mitigation.

The offender pleaded guilty at Bradford Crown Court to conspiracy to distribute indecent photographs of children and to specimen counts of making such photographs. He had acted as an administrator of an internet bulletin board on which users posted website addresses. The prosecution accepted that it could not prove that he knew the precise content or level of the material accessible through those addresses.

The Recorder imposed 12 months’ imprisonment for the conspiracy, concurrent short terms for the making offences, and ancillary orders. The Solicitor General referred the conspiracy sentence as unduly lenient, contending that the offender knew, or consciously risked, that he facilitated material at substantially higher levels.

The central issue was whether the Court could draw those inferences and, if not, whether the sentence was unduly lenient on the factual basis accepted below.

1. The application was dismissed. The Court could not sentence the offender on the suggested basis that he knew, or consciously risked, that the material facilitated extended to the highest levels. At the sentencing hearing, prosecuting counsel had responsibly accepted that he could not go behind the defence assertion that the offender was ignorant of the content of the sites identified by the posted addresses. That concession precluded a different factual basis on the reference.

2. The Court applied the guidance in R v Oliver and others [2003] 2 Cr App R(S) 15. The nature of the material and the extent of the offender’s involvement were the principal indicators of seriousness. The offender’s active role as an administrator and facilitator was aggravating. An organiser enabling many distributors may be more culpable than an individual distributor, even one acting on a substantial scale.

3. On the proved basis, however, the prosecution had not shown that the offender knowingly facilitated material at levels significantly above level 2. A two-year sentence after a contested trial could have been justified by his organising role. A higher sentence would have been difficult to reconcile with the Oliver guideline ranges for distribution of material at levels 4 or 5 or for production. Allowing for the guilty plea and mitigation, 12 months’ imprisonment was not unduly lenient.

4. The Court gave further guidance. The prosecution should state the gravamen of its case and supporting evidence clearly and at an early stage. Use of data-erasure programmes may in an appropriate case support an inference of illegal material and an intention to frustrate investigation. Where counts alleging perverting the course of justice have been left on the file after not-guilty pleas, however, a sentencing judge will ordinarily lack a proper evidential basis to infer that purpose.

• Court of Appeal (Criminal Division): The Court granted leave for the Attorney General’s reference under Criminal Justice Act 1988 and dismissed the application, holding that the sentence for the conspiracy was not unduly lenient.
• Bradford Crown Court: The Recorder sentenced the offender on 11 June 2004 to 12 months’ imprisonment for conspiracy to distribute indecent photographs of children, with concurrent sentences for making offences.