R v Alexander Johnston

A sentencing court may sentence only for an offence admitted by plea or proved by verdict. It may consider the circumstances of that offence, including aggravating factors and acts done while committing it, but cannot sentence for a separate uncharged offence or conduct that was not criminal when done. Where the offence proved is possession of indecent images, the possession category must be used even if the offender also created the images, when that creation pre-dated criminalisation. Prolonged possession, abuse of trust, knowledge of the child and the child’s intoxication may aggravate possession and justify exceeding the guideline range. A sentence under two years may require immediate custody where the offence is so serious that only immediate punishment is adequate, despite rehabilitation prospects, low risk and personal mitigation.

Mr Johnston, a teacher, pleaded guilty to possessing 63 category C indecent photographs of a child, contrary to section 160(1) of the Criminal Justice Act 1988. He had been acquitted of two historical buggery charges. The photographs had been taken in 1976 and 1977, before the relevant production offence under the Protection of Children Act 1978 came into force.

The Crown Court at Cambridge sentenced him to 51 weeks’ imprisonment using the production category of the sentencing guideline. The issue on appeal was whether the sentence could properly reflect production of the photographs, or whether it had to be based on the possession offence to which he had pleaded guilty.

The court granted leave and allowed the appeal to the extent of replacing the sentence of 51 weeks’ imprisonment with one of nine months’ imprisonment.

1. Permissible sentencing basis. The court applied the fundamental principle stated in R v Canavan & Ors [1998] 1 WLR 604: an offender cannot be sentenced for an offence that was neither admitted nor proved. Section 230 of the Sentencing Act 2020 permits the court to consider all available information about the circumstances of the offence, including aggravating and mitigating factors and acts done in committing it. It does not permit sentence to be based on a separate uncharged offence or on conduct that was not criminal when committed.
2. Production and possession. The court considered R v Marshall [2023] EWCA Crim 1640 and explained the distinction identified in R v Jaycock [2024] EWCA Crim 954; [2024] 4 WLR 65. Production categorisation may apply where conduct creates a new indecent image, but the taking of these photographs in 1976 and 1977 was not criminal at the time. Mr Johnston’s criminal conduct for sentencing purposes was possession under the Criminal Justice Act 1988, not production.
3. Aggravation and sentence. The prolonged possession, continuing abuse of trust, the fact that the child was known to Mr Johnston, and the child’s intoxication in the photographs were aggravating features of the possession offence. The offending was at the top of the possession guideline range and justified going beyond that range. The appropriate sentence after trial was 12 months before mitigation and plea credit, reduced to nine months.
4. Suspension. Although there was a prospect of rehabilitation, low risk of reoffending or harm, and strong personal mitigation, the seriousness of retaining the photographs for about 38 years after promising to destroy them meant that appropriate punishment could be achieved only by immediate custody.

• Court of Appeal (Criminal Division): Leave to appeal against sentence was granted. The appeal was allowed to the extent that the 51-week sentence was replaced with nine months’ imprisonment: [2026] EWCA Crim 341.
• Crown Court at Cambridge: After acquittal on the buggery charges, the defendant was sentenced for possession of indecent images on the basis of the production guideline, receiving 51 weeks’ imprisonment.