R v John Herring

There is before the Court a renewed application for permission to appeal following refusal by the Single Judge.

The provisions of the Sexual Offences (Amendment) Act 1992 apply. Under those provisions, where an allegation has been made that a sexual offence has been committed against a person, no matter relating to that person shall during the person's lifetime be included in any publication if likely to lead members of the public to identify that person as the victim of that offence. The prohibition applies until waived or lifted in accordance with section 3 of the Act.

On 24 February 2025, in the Crown Court at Stafford, the applicant pleaded guilty to 27 counts concerning the applicant's sexual interest in children. He was sentenced to a term of imprisonment of 6 years and 9 months. The offending occurred over a period of 2 weeks in April and May 2019. In each case the applicant made contact with persons who he believed were female children, in order to engage in sexual communication for the purpose of sexual gratification.

The applicant was charged with 27 offences relating to sexual communications, with 18 separate individuals, 17 of whom were unbeknown to the applicant adults pretending to be children in order to catch those engaged in such offending. Only one of the individuals was a real child. The sentencing remarks of the judge set out the offending in question in some detail. It is also the subject of a detailed matrix prepared by the prosecution which was not substantially challenged during the sentencing exercise. There is no need for us to set out the detail.

The offending followed a common pattern. In relation to charges of attempting to engage in sexual communication, the applicant initiated contact by Facebook Messenger. This indicated that the supposed child was between 12 and 15 years old. The applicant would compliment them, telling them that they were attractive or sexy or well developed for their age. He then sought naked pictures which were sometimes sent. The applicant would inform the supposed child that he was masturbating over their pictures to the point of ejaculation and that he wanted to engage in sexual activity with them. He described the activity he was imagining in terms. On occasion the applicant sent images of himself.

In relation to the offences of inciting sexual activity the applicant's approach was to ask the children if they had received sex education. He asked them whether they masturbated. He explained how they should go about this and encouraged them to try it. As the judge observed, the offences were serious. Children who were active on social media deserved protection from predatory adults who targeted children for their own sexual gratification. The applicant had operated online seeking out multiple children for his own pleasure, pressurising them to engage in sexual activity. In each case the applicant believed that each was a real child and sought to sexualise them. In one case, he did communicate with an actual child. Such conduct had a potential to cause serious harm to large numbers of children. The applicant seemed to have given little or no thought to this.

The judge in his extensive sentencing remarks considered the guidelines. He addressed in detail aggregating and mitigating circumstances. The latter included the applicant's age, he was 75 at the time, and his personal isolated and lonely circumstances. The judge referred to the assessment of the probation officer that the applicant posed a medium risk of committing sexually motivated internet offending and a medium risk of causing serious harm to children though a low risk of general reconviction. The applicant took into account the substantial delay that there had been in the proceedings during which the threat of them hung over this elderly man. He granted the applicant credit of 25 per cent to reflect the guilty plea at the PTPH. He took account of the fact that the applicant was suffering isolation following his wife's death, that he deleted the accounts, that the offending occurred over a short period of time, that there had been no attempt by the applicant to conceal his advanced age and nor was there any attempt actually to meet these supposed children.

He concluded however that the offences were so serious that only a custodial sentence would suffice. He rejected the submission that due to the applicant's age and exceptional course should the adopted to depart from the Sentencing Guidelines. The judge concluded that he had a duty to follow the guidelines and that the interests of justice would not be served by departing from them.

The maximum sentence for the offence is one of 14 years' imprisonment. Under the guidelines the starting point is 5 years with a wide range of between 4 and 10 years. The judge concluded that it was appropriate to impose a sentence outside of the range to take account of the large number of the offences. The judge said that after trial a sentence of 11 years was appropriate taking account of all the mitigation. He then took into account the delay of 6 years in bringing the matter to court and reduced the sentence by 2 years to 9 years. The judge then granted credit of 25 per cent for the guilty plea further reducing the sentence to one of 6 years and 9 months.

Mr Watkins, in his attractive and persuasive submissions before us today, has pointed out that there is a very substantial disparity between the conduct in relation to the single individual who was a genuine child and that in relation to the decoys. In relation to the single incidents of an actual victim, the facts as found by the judge indicate that the applicant withdrew from the communication almost immediately so that actual harm was very limited. The judge recorded that when the child responded in the negative to questions about whether she had a boyfriend or masturbated, he said that he would immediately block himself. Mr Watkins has pointed out to us today that subsequently the individual victim when contacted by the police had no recollection at all of the incident.

The essential point on this application focuses upon whether sufficient account was therefore given to the fact that in relation to 26 out of the 27 accounts there was no, nor could there ever be, actual harm given the decoy nature of the persons with whom the applicant was communicating. The judge treats the other 26 decoy cases as aggravating facts. He was right to do so but it was also important to take due account of the fact that there was a lack of actual harm. This does not mean that the offending was not serious or that a custodial sentence was not appropriate. However, standing back and without trying to engage in any sort of a technical recalculation of the judge's sentencing exercise, we conclude that some additional reduction in the sentence was justified. We therefore grant permission to appeal. We allow the appeal. We substitute the sentence of 6 years 9 months with one of 5 years' custodial imprisonment.

LORD JUSTICE GREEN: You may have an application for legal aid.

MR WATKINS: I am bound to confess that I am not sure that I do. I have tried to research the situation. I was paid privately at the lower court due to the appellant's means and I think therefore in these circumstances I am not sure an application does follow. Frankly had we been adjourning to another hearing I would probably have made the application.

LORD JUSTICE GREEN: We proceeded as an appeal.

LADY JUSTICE ANDREWS: In the normal way when counsel appears pro bono which you had been doing, we would grant a representation order.

MR WATKINS: I would not wish to mislead anybody. The position is documented in two different ways. There is an arrangement in respect of my fees today. Of course, if this Court felt it had the power to grant a representation order, then I would not want to be paid by both sources.

MR GREEN: I do not think we do in those circumstances.

MR WATKINS: Thank you very much.

LORD JUSTICE GREEN: Thank you very much for your assistance Mr Watkins.