R v Alexander Johnston

This application for leave to appeal against sentence has been referred by the Registrar of Criminal Appeals to the Full Court. The application raises the issue of whether the applicant, Mr Johnston, a 78-year-old man of previous good character, should have been sentenced on the basis that he produced, rather than possessed, indecent photographs of a child. We grant leave to appeal against sentence.

The victim of this offending (who we will refer to as "C") has the benefit of life-long anonymity pursuant to the provisions of the Sexual Offences (Amendment) Act 1992 .

Mr Johnston was prosecuted for two offences of buggery of C, contrary to section 12(1) of the Sexual Offences Act 1956 between 1976 and 1977, and making indecent photographs of a child, contrary to section 1 of the Protection of Children Act 1978 . It appears that the offence under the Protection of Children Act 1978 came into force in August 1978, and the prosecution were unable to prove that the photographs had been taken after that date. Another count was added to the indictment, and Mr Johnston then pleaded guilty to possession of 63 category C indecent photographs of a child, contrary to section 1 60(1) of the Criminal Justice Act 1988 and the 1978 offence was not proceeded with.

The factual background

Mr Johnston was a teacher at Bishop Stortford College, a boarding school in Hertfordshire. C was a pupil and was at material times homesick and struggling academically. He went to Mr Johnston for support, who took advantage of his vulnerability.

Sometime in 1976 to 1977 Mr Johnston purchased a Polaroid camera and took photographs of C in the bath and in the bedroom at Mr Johnston's flat in Sutton House which was on the premises of the school. This was during several of their meetings together when the applicant Mr Johnston was a teacher and C was a pupil. The evidence shows that C was about the age of 15 in all of the photographs and in the majority of them his penis was visible.

After C left school he kept in contact with Mr Johnston as C grew up, married and had children. It is apparent from C's victim personal statement that he considered this to be part of Mr Johnston's continuing hold over him.

In 2016 Mr Johnston and C met up in Cornwall. During this meeting Mr Johnston gave C a USB stick which contained 63 assorted digital images taken from the Polaroid photographs which Mr Johnston had taken of C when he was 15. Mr Johnston asked C to look after the USB stick.

The sentencing remarks

After Mr Johnston had been acquitted of the offences of buggery, the judge then turned to sentencing of Mr Johnston for possession of the indecent images. The offence specific guideline which covers both the 1988 Act and the 1978 Act has categories for: possession of indecent images, with a starting point of a high-level community order with a category range of medium-level community order to 26 weeks' custody; distribution with a starting point of 13 weeks' custody and a category range of high-level community order to 26 weeks' custody; and production, which has a starting point of 18 months' custody, with a category range of 1 to 3 years' custody.

The respective cases

Mr Sullivan, on behalf of Mr Johnston, submits that the judge was wrong to take a starting point that was consistent with the applicant being convicted of an offence that was more serious than the offence for which he had pleaded guilty and of which he had not been convicted. He submitted that the judge should have sentenced using the sentencing category for possession, and then taken account of the aggravating factors. The judge should not have sentenced the applicant on the basis that he produced the images. Mr Sullivan relied on R v Marshall [2023] EWCA Crim 1640 as showing that the judge's approach was wrong. It was also submitted that that wrong approach had infected the decision of the judge not to suspend the sentence that was imposed.

Relevant principles of law

It is a fundamental principle of the criminal law that a defendant may not be sentenced for a criminal offence where that defendant has neither pleaded guilty to that offence nor been convicted of that offence. A person cannot be sentenced for actions which were not criminal at the time that they were committed.

"Subsection (2) applies where a person is convicted of an offence which is punishable with a custodial sentence...

The court must not pass a custodial sentence unless it is of the opinion that—

In forming its opinion for the purposes of subsection (2), the court must take into account all the information that is available to it about the circumstances of the offence, or of it and the associated or offence or offences, including any aggravating or mitigating factors."

In R v Canavan & Ors [1998] 1 WLR 604 , some appeals heard together by this Court because they raised a common question. The question was whether it was legitimate to pass an increased sentence to take into account other offences which: had not been admitted; nor asked to be taken into consideration; and were not the subject of charges in the indictment. It was held that a defendant is not to be sentenced for an offence unless it has been proved against him by admission or verdict or he has admitted it and asked the court to take it into consideration when passing sentence. In the course of the judgment, Lord Bingham considered section 3(3) of the Criminal Justice Act 1991 which were in material terms identical to the provisions of section 230 of the Sentencing Act which we have just read. Lord Bingham said: “"This subsection enables the court to take full account of any factors which aggravate or mitigate the offence or offences for which the offender falls to be sentenced, and account may be taken of acts done in the course of committing that offence or offences even where such acts might have been separately charged." He went on to say: "We cannot however read section 3(3) as entitling the court to base its opinion on the commission of offences not forming part of the offence or offences for which the offender is to be sentenced and not themselves the subject of prosecution."

In Marshall in 2023, a sentence of 30 months' imprisonment for three counts of making an indecent photograph of children contrary to the Protection of Children Act 1978 s.1(1) (a) was quashed as the judge had sentenced on the basis that the case fell within the category of distribution in the sentencing guideline, not possession. The defendant had pleaded guilty to making indecent images of children by downloading them and he was not charged with, and did not plead guilty to, the separate offence of distribution. When being interviewed for the pre-sentence report the defendant accepted that the photographs were of children that he knew, although he did not give clear evidence about how they had been taken and, so far as is relevant, he accepted sending them on to persons he knew. There was no amendment to the indictment to reflect separate offending of distribution. The judge intervened in the course of the prosecution opening of facts and pointed out that within the pre-sentence report the defendant admitted sending the indecent images to others on the internet. The judge therefore sentenced the defendant on the basis of the category for distribution and not the category for possessing the photos. The Court allowed an appeal against sentence and the defendants were sentenced on the basis of the offence to which he had pleaded guilty.

The disposal of this appeal

In this case, although the judge was entitled to be sure that Mr Johnston had produced the indecent images by photographing C, the act of taking the photographs was not a criminal act at the time that it occurred, whatever other offences might have been charged. In our judgment the judge’s sentencing of Mr Johnston for the production of images, was more than taking account of the relevant background, as Mr Myatt had submitted on behalf of the prosecution was permissible. It was crossing a line to sentence the appellant for producing the photographs at a time when to do so was not a criminal offence. This is because sentencing Mr Johnston for producing the photographs is more than taking “into account all the information that is available to it about the circumstances of the offence … including any aggravating or mitigating factors” (using the wording of section 230(6) of the Sentencing Act), it is sentencing him for something that was not criminal at the time. Mr Johnston's criminal actions were in possessing those criminal images after it became a criminal offence. It might be noted that Mr Johnston would not have been in this position if he had kept his original promise to C to get rid of the photographs when C had left school. Mr Johnston had committed the offence of possessing the photographs for the purposes of the 1988 Act, and he had held them on a criminal basis for about 38 years.

There were a number of aggravating factors under the guidelines: the period over which the images were possessed; the abuse of trust which continued with possessing the photographs when he had promised to destroy them; the fact that the child was known to the offender; and the fact that the child was depicted intoxicated in the photographs. Those were all matters which were part of the acts in committing the offence which was possession. The offence which Mr Johnston pleaded guilty to was possession of images and not production of images.

It is therefore necessary to revisit the sentence. The relevant part of the sentencing guideline for possession provides that the starting point for possession is a high-level community order with a range of medium-level community order to 26 weeks' custody. The number of aggravating factors (images of a child known to Mr Johnston; the child was depicted intoxicated; the possession had persisted for at least 38 years and was in breach of the promise to delete them when the child had left school) means that this offending would be right at the top of the range (26 weeks), and we consider that it is in the interests of justice, having regard to the number of aggravating factors, to go beyond the category range. We have regard to what was said by Mr Sullivan on behalf of Mr Johnston about having sensible regard to category ranges for offences of distribution and production. In our judgment, the appropriate sentence after a trial would have been one of 1 year, before taking account of mitigation.

We then turn to mitigating factors and discount for plea. In our judgment, having regard to the mitigation and the credit available for this plea, it is appropriate to reduce the sentence of 12 months to one of 9 months.

As this sentence is less than 2 years, we have to consider whether to suspend the sentence. Relevant factors indicating that it may be appropriate to suspend a custodial sentence are: a realistic prospect of rehabilitation in the community; the offender does not possess a high risk of reoffending or harm; and strong personal mitigation. There is a prospect of rehabilitation, Mr Johnston did not present a high risk of reoffending or harm, and there was strong personal mitigation in his age and health. We are told that he has mobility problems which make prison difficult. Factors indicating that it may not be appropriate to suspend a custodial sentence are that the offender presents a risk to any person - that does not apply; there is history of poor compliance with court orders and is unlikely to comply in the future - that does not apply. There is a further factor which is that the seriousness of the offence means that appropriate punishment can only be achieved by immediate custody.

In the particular circumstances of this case, given that Mr Johnston possessed these photographs after promising to destroy them, and the period of time over which he possessed these photographs, in our judgment, this was an offence where it was so serious that appropriate punishment could only be achieved by immediate custody. We will therefore allow the appeal to the extent that we replace the sentence of 51 weeks' imprisonment with a sentence of 9 months' imprisonment.

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