Hargrave, R. v [2025] EWCA Crim 1233 (09 September 2025)

Neutral Citation Number: [2025] EWCA Crim 1233 CASE NO: 202502627/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT AT GUILDFORD (HHJ SELLERS) [45RM0755723] Royal Courts of Justice Strand London WC2A 2LL 9 September 2025 B e f o r e : LORD JUSTICE SINGH MR JUSTICE LAVENDER MR JUSTICE PEPPERALL ____________________ REX - v - LEE ALAN HARGRAVE Reference by the Attorney General under s.36 Criminal Justice Act 1988 ____________________ 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) ____________________ MS C HOLE appeared on behalf of the Solicitor General MS C LLOYD-JACOB appeared on behalf of the Offender ____________________ HTML VERSION OF JUDGMENT (APPROVED) ____________________ Crown Copyright © This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. LORD JUSTICE SINGH: The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. 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 that person's lifetime, be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act. Introduction This is an application on behalf of His Majesty's Solicitor General to refer sentences to this court, under section 36 of the Criminal Justice Act 1988 ("the 1988 Act"), on the ground that they were unduly lenient. In summary, the respondent offender filmed his stepdaughter via covert cameras in her bedroom and the family bathroom when she was aged between 14 and 15. He obtained images of her, including undressing and washing, and stored them on a USB which was found by his son who brought it to the attention of the victim's mother. The resulting indecent images were stored on a mobile phone and a USB drive. On 2 July 2025, the respondent was sentenced to a total of 13 months' imprisonment suspended for 2 years, with a 30-day rehabilitation activity requirement and an unpaid work requirement of 180 days. On 16 August 2024, having pleaded guilty before the Staines Magistrates' Court, the offender (who was then aged 48) was committed for sentence pursuant to section 18 of the Sentencing Act 2020, in respect of two offences of making indecent photographs of a child. On 15 May 2025, in the Crown Court at Guildford, the offender (by now aged 49) pleaded guilty on re-arraignment to two offences of voyeurism which were on the indictment. As we have mentioned, he came to be sentenced on 2 July 2025. The sentencing judge (HHJ Sellers) sentenced the respondent as follows. In relation to the charge of making indecent photographs of a child, contrary to section 1(1)(a) and (6) of the Protection of Children Act 1978, there was a sentence of 3 months' custody suspended for 24 months. There was a similar sentence in relation to the second charge under the same provision. In relation to the counts on the indictment of voyeurism, contrary to section 67(3) of the Sexual Offences Act 2003, there was a sentence of 13 months' custody suspended for 24 months. Accordingly that made a sentence in total, as we have mentioned, of 13 months' imprisonment suspended for 24 months. As we have mentioned there was a rehabilitation activity requirement imposed of 30 days and an unpaid work requirement of 180 hours. An appropriate statutory surcharge order was made. There were also made a sexual harm prevention order for a period of 10 years, and a restraining order relating to the complainant until further order and relating to the complainant's mother also until further order. An order was made for the forfeiture and destruction of the mobile phone and USB stick concerned. Since the offender had been convicted of an offence listed in Schedule 3 to the Sexual Offences Act 2003, he was required to comply with the notification provisions of Part 2 of that Act for a period of 10 years. The Facts The facts are agreed and can be taken from the Final Reference to this court. The offender was the stepfather of the victim. He had been in her life since she was a year old. At the time of the offending the victim was between 14 and 15 years old. The offender was at that time a serving police officer. In the early hours of 15 June 2023, the offender's 16-year-old son found a USB stick in the family bathroom which had apparently fallen from the pocket of the offender's shorts. He viewed the contents and discovered images of the victim, which he recognised had been obtained from the bathroom (count 1) and her bedroom (count 2). There were 14 moving and 261 still images showing the victim showering and dressing, as well as wearing a bikini, 87 of which were later categorised as category C indecent images. Some were taken from the video doorbell and zoomed in on her chest area. They were dated between May 2022 and June 2023. The son copied the images to his computer and returned the USB stick to the bathroom where he had found it. He checked his stepsister's bedroom and found a concealed camera focused on her bed. He turned it around but heard his father entering her bedroom shortly afterwards and, when he checked again, the camera had been turned back to its original position. While on a family holiday on 1 July 2023, the offender's son brought the matter to his stepmother's attention. She confronted the offender, who admitted placing a camera in his bedroom, which he had put there to test because the room was always dark and that it had glitched and sent files randomly to his phone. The family returned home the next day earlier than intended. In the early hours of 4 July 2023, the son showed his stepmother the files he had copied to his computer. She viewed them and tried to copy them to a USB. Only the still images were copied as the videos were too large. The offender was again confronted and he deleted the files from the computer, telling his wife that his son would be in trouble for having the images, again blaming the camera malfunctioning but accepting that he had "made a mistake" and saying he would rather kill himself than go to jail. He said he would leave the family home, making further threats that he would take his own life. His son had also backed up the images to his mobile phone, however this disappeared after the offender was confronted. The offender then said he had bought the camera in 2021, when his son's behaviour had led to some suspicion that he had been stealing from the family and claimed there were photos from all around the house but he had been deleting images when he was disturbed. He agreed he had zoomed in on the victim's chest saying: "I thought she looked nice. And then I was disgusted in myself." The matter was reported to the police on 5 July 2023. On a mobile phone seized were web searches seeking to identify whether it is possible to delete Amazon purchase history. In a prepared statement the offender asserted that he had placed a camera in his stepdaughter's bedroom because he feared she might be self-harming but that the camera had been there for a single day before he had removed it. A total of 80 still images were recovered from the offender's Samsung Galaxy mobile phone which included screenshots of a video player app. Procedural History On 16 August 2024, the offender first appeared in the Magistrates' Court and his case was sent to the Crown Court. Not guilty pleas were indicated to what became counts 1 and 2 on the indictment as well as three further counts which were ultimately not proceeded with. The offender pleaded guilty at the Magistrates Court to two charges of making indecent images of a child, for which he was committed for sentence. The case was fixed for trial in November 2025. In February 2025, defence counsel made contact with the prosecution to discuss the acceptability of pleas. Agreement was reached after consultation with the victim and her mother, although the court was unable to list the case until May. On 15 May 2025, the offender entered guilty pleas to counts 1 and 2. The prosecution offered no evidence on counts 3 to 5. A pre-sentence report was ordered and the case was adjourned for sentence. At the sentencing hearing, on 2 July 2025 the Crown offered no evidence on counts 3 to 5 and not guilty verdicts were recorded. Reporting restrictions were lifted save for the life-long anonymity to which the victim is entitled. The Sentencing Process The respondent was born on 20 September 1975 and is aged 49. The relevant sentencing framework for these offences can be summarised as follows. In relation to counts 1 and 2 (the offences of voyeurism), the maximum sentence is 2 years' imprisonment. The Sentencing Council has issued a Definitive Guideline on voyeurism. Factors indicating raised harm are that the image or images are available to be viewed by others and the victim was observed or recorded in their own home or residence. Factors indicating raised culpability include a significant degree of planning, the fact that images were recorded, abuse of trust and specific targeting of a particularly vulnerable victim. The charges relating to indecent images carry a maximum sentence of 10 years' imprisonment. Again, the Sentencing Council has issued a Definitive Guideline on possession of indecent images. Category is determined by the categorisation of the images based on content, that is A, B or C and whether the images were, for relevant purposes, "possessed" or "produced". There is no dispute in the present case that the relevant images fell into category C. If it had been a case of "production" of category C images, the guideline recommends a starting point of 18 months' custody with a suggested range of 1 to 3 years. For the purposes of the sentencing hearing there was produced a pre-sentence report which can be summarised as follows. The offender repeated that he placed the camera in his stepdaughter's bedroom because he suspected his son was stealing from her. In relation to recordings in the bathroom, he said that he was trying to record his wife showering, that he had been unhappy with his sex life and had acted without thought and regretted this severely. He reported that he had lost his employment as a police officer and had lost contact with his son and stepdaughter. The author of the report noted that the offender's version of events clearly shows a person that was preoccupied with unhealthy sexual thoughts for a significant period of time. He had used a potential situation of stealing in the home to justify to himself installation of cameras in a teenage child's room, without her permission, which he would know as a police officer is illegal. The author noted that the breach of trust was tremendous. He was the stepfather of the victim when he should have been protecting her from such harm. Instead he had been the perpetrator and used his position in the family to meet his own sexual needs in an unhealthy and harmful way. The author identified the emotional impact upon the offender's son as well as his stepdaughter and the likely impact on her future relationships and trusts in others, as well as the harm to the offender's wife and the breaking of her trust. The offender denied any sexual attraction to children, focusing on his unhappiness with his relationship and his need for sexual gratification. He stated that he was viewing adult pornography at the time. He expressed regret and remorse, felt disgusted with himself and hoped that his family would forgive him. He spoke about his son having to go into foster care until he turned 18 and his stepdaughter being a vulnerable person and his shame that he had added to this. He reported that he was single but "speaking to" a 25-year-old woman in the Philippines who has two children, but he had been prevented from travelling to meet her. He was assessed as being of low risk of future sexual contact offences and medium risk of further offending involving indecent images of children and a medium risk of emotional and sexual harm to children. The author said that distorted thinking patterns that involved justifications for his behaviour only increased this risk. Given that the offender is a former police officer the author assessed that he would be at risk if sent to prison. The report proposed an order for at least 18 months with requirements of 150 hours unpaid work and a rehabilitation activity requirement of 20 days to allow for the completion of "Maps for change", a rehabilitation programme for men convicted of a sexual offence. The sentencing judge had character references, including mentioning the fact that the offender had obtained employment. In passing sentence, the judge structured the sentence by taking counts 1 and 2 as the lead offences and passed concurrent sentences in respect of each of these and the charges committed for sentence. In respect of counts 1 and 2, the starting point was identified as 26 weeks with a range from 12 weeks to 18 months for a category 1 offence of voyeurism. For the images offences, the starting point was identified as a high-level community order with a range from a medium-level community order to 26 weeks' custody. From a guideline starting point of 26 weeks the judge took all the multiple aggravating factors and an increase to count for totality, leading to a notional sentence after trial of 18 months being the top of the range. He reduced that by 2 months to reflect mitigation in respect of the loss of the offender's family and his job. The judge allowed a reduction of 15% for the guilty pleas in respect of the voyeurism counts and a full 33 per cent for the images charges. The judge applied the Imposition Guideline, concluding that first, there were no contact offences, tending to indicate that the risk posed by the offender could be managed in the community. Secondly, there was some punishment in the loss of the offender's family and employment. Further, there was a realistic prospect of rehabilitation. There was no history in relation to compliance and the impact of a custodial sentence on others would not apply in this case. Accordingly, the judge reached the conclusion that he was "just able" to suspend the sentence. He therefore imposed the sentences and other orders which we have already mentioned. Submissions on behalf of the Solicitor General On behalf of the Solicitor General, Ms Hole acknowledges that the judge first, correctly categorised the voyeurism counts. Secondly, he made appropriate reductions to reflect the different guilty pleas. Thirdly, he was entitled to identify a lead offence and so to impose a concurrent sentence for all offences. However, she submits that the judge failed to pass a sentence that reflected the overall criminality in this case, in that first, he fell into error by sentencing the images charges on the basis they fell into the "possession" rather than "production" section of the applicable guideline for category C images. Secondly, as a consequence the judge did not identify the more serious charge as the lead offence. Thirdly, she submits that the judge suspended the sentence in circumstances where appropriate punishment for this criminality could only be achieved by a sentence of immediate custody. The main submission made by Ms Hole is that the images charges were wrongly categorised as "possession" rather than "production". She submits that a number of the images were clearly created using a hidden camera in the bathroom and the victim's bedroom. The guideline specifies that production includes the taking or making of any image at source, for instance, the original image. The source of these images was an original recording created by this offender. These images can clearly be distinguished, submits Ms Hole, from those which are technically characterised as "making images" because they have been downloaded from the Internet but where the circumstances of the creation of the image are unknown to an offender. That kind of image, although technically "making", is rightly, in accordance with sentencing guidelines, to be sentenced on the basis of being in possession not production. Although Ms Hole acknowledges that prosecution counsel at the sentencing hearing submitted that these were offences which fell into the category of possession, she reminds this court that the law officers are not bound by a concession made by the prosecution at the sentencing stage (see R v Stewart [2016] EWCA Crim 2238 ). Ms Hole reminds this court the starting point for a category C production case is 18 months' custody with a range of 1 to 3 years' custody. She submits that in this case a sentence after trial, even higher than 3 years, would have been justifiable. Consequently, Ms Hole submits that the more serious offences in this case were in fact the images. Further, she submits there was a considerable number of aggravating factors in particular (1) abuse of trust, the offender was the victim's stepparent and had been in her life since she was 1 year old; (2) the child depicted is known to the offender; (3) the age and/or vulnerability of the child depicted. The offender had concerns for both potential neuro-diversity and bullying and fear that she was self-harming; (4) the duration of the period over which images were produced - this was 1 year; (5) the collection included moving images; (6) there was a high volume of images produced, 87 images is a large number, although not as large as in some cases that the courts encounter. But she reminds the court that some images had been deleted (7) there were attempts to dispose of or conceal evidence. The offender deleted images which were copied to his son's computer and the phone to which they were backed up has disappeared. He had deleted other images from the original USB stick which was disposed of. Ms Hole submits that the multiplicity of aggravating factors would have justified a starting point of at least top of the range and perhaps above that. While she acknowledges there was some mitigation in loss of career and family, she submits these were the inevitable consequences of the offending coming to light and did not justify any significant reduction in sentence. The guideline states that the more serious the offence the less weight which should normally be attributed to previous good character. Overall therefore she submits the resulting sentence ought to have been at the top of the range which is at or above the range which is capable of suspension in law, that is 2 years' custody. Finally, Ms Hole submits that the judge ought not reasonably to have suspended the sentence in the circumstances of this case. This was an extremely serious abuse of trust. The filming went on for a substantial period of time. There has been considerable emotional impact on the offender's family, including disruption to the children's education. Although Ms Hole acknowledges that there was a basis for finding a realistic prospect of rehabilitation, the work to be undertaken as part of a rehabilitation activity requirement could be completed as part of post-sentence supervision following release on licence. Given the estrangement of his family there could not be said to be any helpful impact upon others that would flow from the imposition of the sentence of immediate custody. In all the circumstances, therefore, Ms Hole submits that the sentence in this case was unduly lenient and required the imposition of a sentence of immediate custody. Submissions on behalf of the Respondent On behalf of the respondent, Ms Lloyd-Jacob submits that the sentence was not unduly lenient. She submits that the judge carefully set out the full facts and applied his mind to all relevant factors. She submits that the key point made on behalf of the Solicitor General is that the images charges were the more serious ones in this case because they should have been regarded as examples of production rather than mere possession. However, she submits that it was the voyeurism counts that reflected the worst of the behaviour in this particular case, that is the taking of the images. The way in which the charges were formulated clearly referred to the "making" of images in referring to continued possession of some of those images. She draws attention to the way in which the case was carefully pleaded and presented in the courts below. The making charges relate specifically, as we can see from the text, to the devices on which images were stored, that is the defendant's phone (subject of charge 3) and computer/USB download (the subject of charge 4). The text of the charges, she submits, did not refer to the cameras that would have been used to create the images. The images referred to did not refer to the original images created by the cameras but to images made from those images. At the hearing before us she has made the submission to this court that were it otherwise, there would have been a complete overlap in the subject matter between the voyeurism counts on the indictment and the images charges. Clearly the intention in the prosecution was, in truth, to draw a distinction between those two different matters. Ms Lloyd-Jacob reminds this court that "making" is an offence made out by the mere act of copying an indecent imaging knowing that the images or is likely to be an indecent image of a child (see Atkins v DPP [2000] 2 Cr App R 248 ), whereas taking an image requires proof the defendant took a photograph. Accordingly, she submits that in charging "making" rather than "taking" the prosecution took a deliberate choice as to how the case was to be pleaded and presented. She acknowledges that in Stewart this court held that an Attorney-General's Reference can depart from a concession made by the prosecution in the court below as to the categorisation of an offence where there is "proper and substantial justification" (see paragraph 34). She submits, however, that in the present case the matter was not one of judgment and evaluation but was a question as to which offence was to be pleaded. In the circumstances, she submits there is no proper and substantial justification from departing from the position taken by the prosecution in the Crown Court. Further, the judge was correct to adopt that characterisation. In the alternative Ms Lloyd-Jacob submits there is no basis for this court to interfere with the sentence imposed by the judge even if he was wrong to categorise the images offences as possession rather than protection cases. If they had been categorised as "production" offences the starting point would have been 18 months' custody with a range of 1 to 3 years. Importantly, the full one-third discount for the guilty plea was correctly applied by the judge. There is no dispute about that. This was a category C case, and again, there is no dispute about that. Further, she submits that the judge found there was a sufficient prospect of rehabilitation. Finally, she reminds this court that the court has a discretion as to whether to exercise its powers to increase a sentence, even if it finds the sentence to be unduly lenient. Given the pressure on prison capacity at the moment, the possibility of reconciliation with the offender's son and the good prospects for rehabilitation in this case, taken with the fact that the offender is again in employment, she submits the sentence should not be set aside. Assessment We remind ourselves of some fundamental features of the system for referring sentences as being unduly lenient that Parliament created in the 1988 Act. It is not the role of this court to carry out the sentencing exercise again. The relevant principles have been summarised in many cases. We take one by way of example, Attorney-General's Reference (Egan) [2022] EWCA Crim 1751 ; [2023] 2 Cr App R(S) 16, in particular at [3] to [6]. There the court said that the principles to be applied on an application under section 36 to the 1988 Act are well established and have been summarised as follows: "(1) The judge at first instance is particularly well placed to assess the weight to be given to competing factors in considering sentence. (2) A sentence is only unduly lenient where it falls outside the range of sentences which the judge at first instance might reasonably consider appropriate. (3) Leave to refer a sentence should only be granted by this Court in exceptional circumstances and not in borderline cases. (4) Section 36 of the 1988 Act is designed to deal with cases where judges have fallen into gross error." In giving the judgment of this court in the seminal case of Attorney-General's Reference No 4 of 1989 ; (1990) 90 366 at 371, Lord Lane CJ said: "... even where this court considers that a sentence was unduly lenient, it has a discretion as to whether to exercise its powers." We should also mention, as Ms Lloyd-Jacob has reminded us, of what was said by Potter LJ in Attorney-General's Reference 132 of 2001 (Bryn Dorian Johnson) [2002] EWCA Crim 1418; [2003] 1 Cr App R(S) 41 at [24], where he said for purposes of the system of Attorney-General's References include: "... the allaying of widespread concern at what may appear to be an unduly lenient sentence, and the preservation of public confidence in cases where a judge appears to have departed to a substantial extent from the norms of sentencing generally applied by the courts in cases of a particular type." Although this court does have power to take a different view from the sentencing court as to the correct characterisation of an offence, even where a concession was made by the prosecution in the Crown Court, we agree with Ms Lloyd-Jacob that procedural history of this particular case is relevant to whether we should do so. We have reached the conclusion that the judge was entitled to accept the way in which the case was pleaded and presented in the Crown Court. The main offences were the voyeurism offences. In this particular case the making of images offences were concerned with a later stage in the offending to deal with storage of images electronically rather than their initial creation. This is not a case where it is arguable that the judge fell into gross error. Even if the judge was wrong as to the categorisation of the offences, it would follow that the lead offences would then be the images offences. In relation to those the respondent had pleaded guilty at the earliest reasonable opportunity and so he was entitled to full credit, that is one-third of the notional sentence after trial. There is no issue about that. The resulting sentence, in our judgment, could reasonably therefore have fallen within the range that the guideline recommends for a category C case even if it is a production case, especially having regard to the mitigating factors in this case. We do not accept Ms Hole's submission that the only reasonable sentence the judge could have imposed after a trial was necessarily one above the 3 years at the top of the range suggested in the Definitive Guideline. Accordingly, the sentence that the judge would in any event have arrived at and could reasonably have arrived at would have fallen within the suggested range in the Definitive Guideline and would have been capable in law of suspension, because it could have been at the level of 2 years or below. As to the decision to suspend the sentence, again, we remind ourselves that it is not the role of this court to sentence the respondent for a second time. The judge had regard to the relevant considerations in the Imposition Guideline. Further, as Ms Lloyd-Jacob has helpfully reminded us at the hearing before us, the Definitive Guideline in relation to the relevant offences, and not only the Imposition Guideline, specifically invites sentencing court to give consideration to the possibility of suspending a sentence, in particular in a category C images case. There was, in our judgment, ample evidence before the judge to support the finding that there was a real prospect of rehabilitation in this case. That, taken with the other mitigating factors in this case, leads us to the conclusion that the judge was reasonably entitled to suspend the sentence in this case. Conclusion For the reasons we have given, this application for leave, under section 36 of the 1988 Act, is refused. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII