On 25 January 2020 the Court of Appeal (Criminal Division) heard the cases of R v Privett and Others[1] which concerned the application of this guideline specifically in cases where no child victim exists. The Court of Appeal concluded that the following approach should be taken when applying this guideline (at paragraph 67; see also paragraph 72):
The judge should, first, identify the category of harm on the basis of the sexual activity the defendant intended (“the level of harm should be determined by reference to the type of activity arranged or facilitated”), and, second, adjust the sentence in order to ensure it is “commensurate” with, or proportionate to, the applicable starting point and range if no sexual activity had occurred (including because the victim was fictional) (“sentences commensurate with the applicable starting point and range will ordinarily be appropriate”).
The Court of Appeal invited the Sentencing Council to consider whether any and, if so, what clarification of the relevant sentencing guideline is necessary, and whether further guidance can be given to sentencers.
The Sentencing Council has considered this invitation and intends to revise the guideline in due course. In the interim sentencers are advised to follow the above approach set out by the Court of Appeal.
[1] [2020] EWCA Crim 557