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IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT AT CAMBRIDGE (HIS HONOUR JUDGE ANDREW HURST) (35NT1532722) CASE NO: 202500928 A3 NCN: [2025] EWCA Crim 1686 |
Royal Courts of Justice
Strand
London
WC2A 2LL
Before:
LADY JUSTICE ANDREWS
MRS JUSTICE CHEEMA-GRUBB
RECORDER OF LONDON
(His Honour Judge Lucraft KC)
REX
v
JAMIE BARNES
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Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground, 46 Chancery Lane, London WC2A 1JE
Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)
_________
MR STEVEN J BALL appeared on behalf of the Appellant
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JUDGMENT
MRS JUSTICE CHEEMA-GRUBB:
No reporting restrictions apply in this case.
This is an appeal against sentence with leave of the single judge.
Jamie Barnes was convicted at Cambridge Crown Court on 29 November 2024 of arranging or facilitating the commission of a child sex offence, contrary to section 14(1) of the Sexual Offences Act 2003, and two counts of making indecent photographs of a child. He had earlier pleaded guilty to possession of small quantities of cannabis and heroin.
On 28 February 2025 Barnes (aged 47 at the time) was sentenced to a total of 12 years' imprisonment, comprising 11 years 6 months for the section 14 offence, with consecutive and concurrent terms for the other counts. A sexual harm prevention order and notification requirements will apply indefinitely. The statutory surcharge was imposed and forfeiture and destruction of relevant devices ordered.
The facts can be stated briefly. The appellant engaged in highly sexualised online conversations seeking to pay for the live streaming of penetrative sexual abuse of an 8-year-old child and made arrangements for such abuse to occur. The trial judge found that these were not decoy conversations (eg with an undercover officer) but discussions which envisaged a real child and real activity, and that Barnes believed he would see a real child being raped.
The essential ground of appeal is that the overall sentence imposed was manifestly excessive in all the circumstances. There are three bases for this submission:
Firstly, the judge did not sufficiently discount the sentence to account for the absence of actual harm, contrary to the approach set out in the conjoined appeals reported as R v Privett [2020] EWCA Crim 557. Any uncertainty about whether a real child was to be involved should have been resolved in the appellant's favour.
Secondly, while the case was accepted to be one of high culpability category A, it is submitted that the harm should have been assessed as category 3, not category 2 in the relevant guideline, because the interactions never developed into actual arrangements to abuse children and there was uncertainty as to whether real children were involved.
Thirdly, several mitigating factors were not given sufficient weight: the appellant had never previously been convicted of a sexual offence; he had been diagnosed with ADHD and was addicted to Class A drugs at the time, which contributed to compulsive behaviour; and he had weaned himself off Class A drugs before custody and remained sober in prison.
The judge had the benefit of a pre-sentence report which noted a long history of offending: 31 convictions for 91 offences, mostly acquisitive crime linked to drug misuse, with no previous sexual offending. The appellant had had a traumatic childhood, with emotional abuse from his mother and physical abuse from his father. He left school at 15, spent time in care, and began offending as a teenager. He has three children from three relationships but no contact with them and has struggled with intimate relationships, often displaying controlling or abusive behaviour. He has a history of drug misuse (heroin, crack cocaine and cannabis) with periods of abstinence and relapse and was drug free at the time of the report.
The pre-sentence report drew on a psychiatric report by Dr Utpaul Bose, noting diagnoses of ADHD and probable ASD, which contributed to impulsivity, poor emotional regulation and addictive behaviours. The author concludes that the appellant's sexual offending was likely motivated by sexual interest in female children, emotional detachment and dysfunctional coping strategies rooted in childhood trauma and neurodevelopmental disorders. The risk of serious harm to children was assessed as high, with medium risk to partners and staff. The likelihood of reoffending was assessed as medium.
The high risk of serious psychological and physical sexual harm to children was linked to poor emotional coping, a propensity towards drug misuse, untreated ADHD and ASD, untreated sexual interest in female children, untreated high levels of sexual preoccupation, and opportunities for unsupervised contact with children online. The appellant expressed some insight into his offending and willingness to engage in treatment but was seen as minimising his sexual interest in children and the risks that he posed. It suggested that the risk could be reduced through supervision, therapy and treatment for ADHD and ASD but only as part of a multi-agency approach upon release. The report also noted the appellant's vulnerability to assault in prison due to the nature of his offences and his concern about losing his accommodation and business during custody.
Turning to consider the submissions, the judge made clear findings about the nature of the offence:
"You engaged in highly sexualised conversations with approximately 10 different people, whereby you sought to pay money to a person to watch adults having penetrative sex with children as young as eight and four.
The conversations you had, I have no doubt, were real. They were conducted over messaging apps and, without going through all of them all over again, and repeating the distressing nature of so many of them, you asked, amongst other things, of an eight-year-old girl, you wanted to see a man’s sperm inside her. You asked for videos of the brother of the person you were communicating with raping the girl. You, in turn, were offered the opportunity to watch live. You sought videos. You said ‘Get the girl’ wanting to see her.
You entered into protracted negotiations over the price for your viewing. You appear to have sent money. You asked for the name of the man who had raped the child. You appear to be masturbating in some of the conversations and you set out in detailed and descriptive terms precisely what you wanted to be done to the girl, and there were conversations about a four-year-old and you offering to pay, as you put it ’after the show’. "
On the assessment of harm and culpability, the judge said:
"Insofar as the sentencing guidance is concerned, I repeat, this is not a case of a decoy. In my judgment you sought a real child, you thought certainly you’d see a real child being raped, there is no suggestion that that was not a real child. The conversations clearly envisaged a real child and real activity and the exchange of money for those purposes."
A little later:
"… I have to then consider the sex offence which would have been the subject of the facilitation, I do consider this is a 2A case, the child concerned principally the one that you had most, it seems, communication about, was eight years old, that makes a child particularly vulnerable. This is an A case because of the significant degree of planning, the persistence, the amount of time you spent on the internet communicating, and the fact you were prepared to pay."
On the sentencing range and maximum:
"The maximum sentence in relation to the offence for which you were convicted on count 1, of course, is 14 years, but then I take into account the guidance in relation to rape of a child under 16. There is, as Mr Spence helpfully pointed out on behalf of the prosecution, the starting point is one of 13 years with a range of a sentence between 11 and 17 years. Of course, it’s not possible to go beyond 14 because that is the maximum for this offence."
On mitigating and aggravating factors:
"In relation to the aggravating features, you have previous convictions but, of course, they do not reflect sexual offending, therefore by counterpoint in mitigation you have no like offending. I do appreciate that you labour under the difficulties of ADHD and ASD. Those difficulties were clearly shown during the course of the trial, they’re borne out by Dr Bose’s diagnosis and, therefore, that, of course, can make the custodial setting for you harder than it might for other people and when you’re on licence, of course, again, you’ll have to manage your behaviours accordingly. I also consider it is a mitigating feature that you have managed to get rid of your class A drug use and, therefore, the sentence needs to reflect all of that."
In R v Privett the Court of Appeal considered the correct approach to sentencing for section 14 offences. At paragraphs (59)-(61) the court stated:
"It is necessary, in our judgment, to keep in mind the terms of this offence. It is intentionally arranging or facilitating activity which would constitute a child sexual offence, intending that it will happen. This is a preparatory offence, albeit it could cover the case in which the offence was carried out. …
The offence is complete when the arrangements for the offence are made or the intended offence has been facilitated and it is not, therefore, dependent on the completed offence happening or even being possible, and the absence of a real victim does not, therefore, reduce culpability. …
As a general proposition, the harm in a case will usually be greater when there is a real victim than when the victim is fictional. … Nonetheless, as set out above, section 143(1) Criminal Justice Act 2003 requires the court to consider the intended harm."
The court further held that the sentencing judge should identify the category of harm by reference to the sexual activity intended and then adjust the sentence to ensure it is commensurate (ie. in proportion to) the applicable starting point and range, making a reduction where the offence did not actually occur.
In this case the sentencing judge, who had heard the trial of course, found that the conversations envisaged a real child and real activity, and that Barnes intended the offence would occur. The judge was therefore correct to assess the case by reference to the guideline for rape of a child under 13, with a starting point of 13 years and a range of 11 to 17 years. The contrary is unarguable. He had also to allow for the lower maximum sentence of 14 years. We see no merit in the submission that only category 3 harm was appropriate. That is not the harm which was intended. Nor do we find the argument that the sentence did not reflect fairly the limited mitigation available to this offender attractive. However, as Privett makes clear, where the offence arranged did not actually occur, a reduction within the category range is required to reflect the absence of actual harm. Mr Ball is right that the judge made no reference at all to this obligation or indicate that he had considered how to make the sentence commensurate with the range and starting point he alighted on. It seems to us that some adjustment was required and is absent.
We conclude that the sentence imposed was manifestly excessive in all the circumstances. In our judgment a sentence of 9 years 6 months' imprisonment would have properly reflected the seriousness of the section 14 offence — the intention that harm to a real child would occur but did not actually take place. For these reasons the appeal is allowed. The sentence of 11 years and 6 months' imprisonment on count 1 —arranging or facilitating the commission of a child sex offence — is quashed and substituted with a sentence of 9 years 6 months' imprisonment. The sentences on the remaining counts, including the consecutive sentence on count 2 and the orders made by the Crown Court, are unaffected. The total custodial sentence is now 10 years' imprisonment.
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