The sentences of X, Y and Z were referred to the Court of Appeal by the Attorney General as being unduly lenient. All three boys had received Youth Rehabilitation Orders (YROs) 2 receiving YROs with ISS in relation to offences of rape and producing indecent images of children in the Crown Court at Southampton. The Court of Appeal allowed the AG Reference in respect of X and Y, increasing their sentences to four years detention for serious offences (s.250 Sentencing Act 2020) The appeal in relation to Z was dismissed and his sentence remained unaltered.
Details
X, Y and Z, all of whom had already pleaded guilty to offences of producing indecent images of children shortly before trial, were further convicted of offences of rape following a 29-day trial.
The first incident, on 26 November 2024, concerned X and Y. The second incident on 17 January 2025 concerned X, Y and Z together. At the time of the offending, X was 14 (15 at conviction and sentence); Y was 14 (15 at conviction and sentence) and Z was 13 (14 at conviction and sentence). The complainants were of a similar age; C1 was 14 at the time of the offending against her and C2 was 14. Ultimately, X was found guilty of two counts of rape, Y was convicted of six counts of rape and Z was convicted of two counts of rape (paragraphs 8-10, page 4).
The Court of Appeal set out the aggravating features to each offence. Each complainant had been raped multiple times outdoors, by more than one offender. There were additional aggravating features, including the filming of part of the offending, the location of the offending and the fact that after the initial incident, the children went on to commit further offences against another victim. Another aggravating feature was that the victims were particularly vulnerable, there was deliberate humiliation including filming the offence and committing the offence before a group of peers [Para 113]. The full facts of the offending is at paragraphs 29-41 of the judgment.
At the sentencing hearing in the Crown Court, in which the judge had a significant amount of background information on each child, none of whom were in mainstream full time education, as well as victim impact statements from the complainants, each of the three young people was given a non-custodial sentence. Specifically, X and Y were given a 3-year YRO with ISS for 180 days, and Z was given an 18 month YRO (paragraph 12, page 5). All of the YROs contained numerous requirements including a harmful sexual behaviour intervention program. X, Y and Z were also made subject to restraining orders for a period of 10 years.
The Attorney-General appealed the sentences as unduly lenient, submitting that only sentences of detention could be justified when considering the facts of the offending and the harm that had been caused. The A-G further argued that the judge had been wrong to conclude that the cases had not involved severe psychological harm, and that the incidents were not sustained. Further submissions were made on the judge’s application of the relevant sentencing guidelines for rape (the adult sentencing guidelines).
The Court of Appeal ultimately upheld the reference in relation to X and Y, increasing their sentences to four years detention for serious offences (s.250 Sentencing Act 2020), and indefinite restraining orders. It found that contrary to the judge’s finding, a severe amount of psychological harm had been caused, connected to the vulnerabilities of the complainants. As a result of these sentences, both X and Y also became subject to notification requirements for an indefinite period. In relation to Z, the reference was dismissed. In reaching those decision, a number of important issues were discussed.
Guidelines
In the first instance, the court noted the number of guidelines that the judge was required to (and did) consider when arriving at his sentence (paragraph 111). These included the Principal Guideline on Sentencing Children and Young People, the Child Sexual Offences Guideline, the Adult Rape Guideline, and Adult Indecent Image Guideline.
The Court noted that the Sentencing Children and Young People Guideline, which applies to all criminal offences committed by children, confirms that the starting point will be the seriousness of the offence and that custody for children is a sentence “of last resort”. That, as per the guideline, children should, “if possible, be given an opportunity to learn from their mistakes without undue penalisation or stigma” was noted – however the Court of Appeal considered that the words “if possible” a key phrase and that the general principles set out within the guideline do not alter the fact that the sentence must properly reflect the seriousness of the offending.
Further comment was made on the principle that, where a judge is considering the adult guideline, it may be appropriate to reduce the sentence so that it is roughly half to two thirds of what an adult would receive. This principle is set out in the Definitive Guideline at paragraph 6.46. This particular principle had been misunderstood in submissions both in the lower court and to the Court of Appeal as meaning a reduction of half to two thirds.
The Court then turned to the Child Sexual Offences Guideline, which is ‘to be read ‘alongside the Principal guideline. The Court of Appeal recognised, ‘There is a degree of repetition between the two documents. The same subjects are covered, but the language is not always identical’. The Child Sexual Offences Guideline, ‘The importance of this part of the document lies in the stepped approach it requires.’ (para 119). The stepped approach, begins with the assessment of seriousness of the offence, before moving on to consideration of the seriousness of the aggravating and mitigating factors at stage two, and the child’s personal mitigation at stage 3. Stage 4, which was not relevant to this case, would have entailed a consideration of the effect of guilty pleas, and finally stage 5 requires a review of the sentence. It found that while the judge had set out the aggravating and mitigating factors, he had failed to explain, at step 5, why he had reached the conclusion that no custodial sentence was necessary.
On the adult rape guideline, contrary to the judge’s assessment, the Court found that the rapes were Category 2A offences, which carry sentences ranging between 9-13 years for an adult, with a starting point of 10 years, and that significant uplifts would be warranted by the fact that there were two separate incidents and complainants, as well as multiple offending. In relation to the indecent images offences, these were category A images which, on the adult guidelines, have a starting point of 6 years and a range of 4-9 years imprisonment.
An adult would have received a sentence “well into double figures” (paragraph 127). The Court therefore found that the offences “taken together were so serious that, even for very young offenders such as these, a substantial sentence of detention was inevitable.” (paragraph 160, page 46); the offences were so serious that no other punishment would be appropriate. In accordance with s231, the “shortest term commensurate with (a) the offence, or (b) the combination of the offence and one or more offences associated with it" had to be imposed and that was a term of 4 years detention.
Dangerousness
The Court also considered whether the judge had erred in concluding that the dangerousness criteria had not been met, concluding that “in this respect, the judge’s decision was entirely conventional and in line with authority…the age of the offenders is critical here, because their youth carries with it the real prospect of development, maturity and rehabilitation. This does not mean that there is no risk that they will ever offend again, only that the risk is not so high that they should now be dealt with by means of an extended sentence.” (paragraph 163).
Adolescent Brain Development
The Court of Appeal addressed the notion of development of adolescent brains. Scientific evidence suggests that the brain continues to mature until at least the age of 25. Maturity brings a strong chance that an offender will stop offending….we would suggest that no-one could sensibly contend that children of 13 or 14 years of age should be treated in the same way as adults. These cases concern children of that age. [para 139]
Media comment and CPS press release
Both within the judgment and in further comment, the Court made clear its concerns with the way this case had been reported on, with factually inaccurate statements taken from the CPS press-release being widely repeated across news outlets, including the suggestion that the rapes had been at knife-point – a finding that had not been made by the trial judge. The reporting of the case resulted in harm to both the offenders and the complainants, in particular C2, whose testimony it was about the knife that had been rejected and had, as a result of the reporting, come under intense public “glare” (para 191). It had been incumbent on the CPS to publish accurate information about the offending within its press-release, and failing that, to correct the inaccuracies in a timely and suitably public manner once pointed out. Neither of these things were done.
Commentary
The Court of Appeal's decision highlights the breadth of judicial discretion available when sentencing children. Unlike the more prescriptive approach adopted in adult sentencing guidelines, the youth sentencing guidelines is individualistic requiring the court to balance the seriousness of the offence against the child's welfare, maturity, vulnerability and prospects for rehabilitation, and that custody must be a measure of last resort.
A Youth Rehabilitation Order with an Intensive Supervision and Surveillance (ISS) requirement is expressly intended as a direct alternative to custody, enabling the court to impose a robust community-based sentence focused on addressing the underlying causes of offending while reducing the risk of reoffending. Such interventions are typically informed by specialist assessments, including the AIM3 assessment framework, which evaluates the nature and causes of harmful sexual behaviour and identifies the interventions most likely to support rehabilitation.
The Court of Appeal substituted these with four-years detention given the seriousness of the offending and their interpretation of the aggravating features Concerns about the curren nature of the custodial estate are reflected in the Government's recent Youth Justice White Paper, which sets out proposals to reshape the youth custodial estate by moving away from large, centralised institutions towards smaller, regionally based therapeutic settings designed to provide more effective support for vulnerable children.
The extended follow on judgment regarding the CPS press release, media coverage and Attorney-General’s public comments published by the Court following the handing down of the substantive judgment serves to emphasise the importance (in all cases, but particularly in those concerning children) of accurate reporting. In this case, the significant public and media attention attracted by the factually inaccurate statements released by the CPS about the offending had the potential to impact the administration of justice. Not only was the trial judge vilified, but the children involved – both defendants and complainants were impacted as the case attracted significant public scrutiny. While the public must always, in line with open justice, be given access to the facts of a case, it is incumbent on the parties – and particular the party who has made the error and has the power to publicly correct it – to do so.
Written by
Violet Smart, Doughty Street Chambers