Paedophiles who are caught in sting operations while trying to meet child victims could receive longer prison sentences.
New guidelines for judges in England and Wales state that a real child does not have to exist for offences such as arranging a child sex offence or inciting a child to engage in sexual activity.
They cover cases where people are prosecuted after being caught by police or vigilante “paedophile hunter” groups, who pose as children or parents online.
The Sentencing Council said the guidelines govern how judges and magistrates consider the “intended sexual harm to a child even in cases where no actual child exists or no sexual activity takes place”.
Member Judge Rosa Dean added: “Judges and magistrates will impose sentences that reflect the intended harm to the child, even where that activity does not ultimately take place, to protect children from people planning to cause them sexual harm.”
Professor Alisdair Gillespie, a specialist in the law relating to online child sex abuse from Lancaster University, said a similar approach to intention is already taken in other areas of crime such as terrorism.
“It’s a sensible approach to tackle people who are doing everything they can to meet a child, but where it turns out that it’s an undercover officer,” he told The Independent.
“Proactive operations are one of the only ways you can catch these people but if you get poor sentencing police won't be able to get people off the streets. It’s recognising the need to treat these people in the way you would for drugs and terrorism where the intention has been the key question.”
Prof Gillespie said there was controversy around whether the guidelines could “encourage paedophile hunters”, who have been opposed by some police forces because of a lack of training and oversight in their tactics.
Evidence from their operations cannot always be used in prosecutions, and some groups have been accused of assault, false imprisonment and causing suicides after publicising their stings on social media.
The current guidelines date from 2013 and had been interpreted in some cases to mean that paedophiles’ sentences were reduced because of the absence of “actual harm” to a child.
The new guidelines, which will come into effect on 31 May, follow two Court of Appeal cases where judges dismissed arguments that sentences should be reduced because no real victim existed.
In one, a 62-year-old man was jailed for five years and four months after arranging to rape a six-year-old girl, while communicating with a woman he believed to be her mother online in “extremely explicit and graphic terms”.
He was arrested by police at the planned meeting place, while carrying items to be used in the abuse, and a judge concluded that if the child had been real rape would have been committed.
In the second case, a man who was 21 at the time of the offending used a social network for teenagers to contact someone he believed to be a 13-year-old girl.
He incited her to engage in sexual activity, asked for naked pictures and discused travelling to meet her.
He was jailed for two years and made subject to a 10-year Sexual Harm Prevention Order.
The new guidelines cover the offences of arranging or facilitating the commission of a child sex offence, which is punishable by a maximum sentence of life imprisonment, and causing or inciting a child to engage in sexual activity, which has a maximum penalty of 14 years’ imprisonment.
“The level of harm should be determined by reference to the type of activity arranged or facilitated,” the document states.
“No sexual activity need take place for an offence to be committed (including in instances where no child victim exists). In such cases the court should identify the category of harm on the basis of the sexual activity the offender intended, and then apply a downward adjustment at step two to reflect the fact that no or lesser harm actually resulted.”
Other revisions have been made by the Sentencing Council for offences including sexual communication with a child, and clarifying that offences committed against victims overseas should be treated as seriously as similar offending against victims in England and Wales.
