Good morning. Why did three teenagers, aged 13 and 14 at the date of their crimes, receive non-custodial sentences (that is, not youth prison) after being convicted for the crimes of raping two girls, aged 14 and 15? 

The youth rehabilitation orders handed down by the Southampton judge last month prompted collective public shock and a clamour for answers, as well as a rare intervention by Keir Starmer and a decision by the Attorney-General shortly after the news to refer the sentences to the Court of Appeal. Its hearing begins on July 1.

The uproar that followed exposed tensions between public expectation and the principles of youth courts — and how key factors behind Judge Rowland’s sentencing went missing or under-reported.

Judge Rowland sentenced two of the rapists to a Youth Rehabilitation Order (YRO) for three years with 180 days of Intensive Supervision and Surveillance (ISS), a direct alternative to custody. A third perpetrator, who encouraged the rape in the second attack, received a YRO for 18 months.

No member of the public reading the sickening details of what happened in Fordingbridge would have expected a non-custodial sentence. The three rapists acted together, in two separate attacks and filmed them. One of the victims told the BBC: “What was the point in putting me through that?” Advocate groups say survivors are now questioning whether reporting to the police and enduring the process is worth it. Clearly, this problem warrants urgent attention and it should force the intricacies of our legal framework into the open.

In this case, poor communication about the youth court aggravated what many saw as a fundamental blow to public confidence in the criminal justice system.

What was largely absent from commentary was the fact that, in England and Wales, children and adults are not sentenced according to the same objectives. By contrast to the sentencing law for adults, which focuses on the punishment of offenders and four other aims, the sole principal aim when dealing with children is to prevent further offending, according to the Crime and Disorder Act 1988. Custody is used as a last (and rare) resort and, as an overarching principle, the court must consider the child offender’s welfare. Per the sentencing guidelines:

Because there is no electoral dividend in deviating from saying “lock up as many criminals as possible”, politicians are even less incentivised to communicate to the public why non-custodial sentences exist.

Sarah Vine KC, a barrister who has spent decades specialising in sexual offences, told me: “While it is right that you listen to and be aware of the fact that many, many people think that it’s just so bad a crime that you have to go to prison, if you’re in charge of the criminal justice system — or the country — you have a duty to do your best to ensure people understand why those are principles that underpin the sentencing exercise for children.”

Part of the reason for them, she added, is the fact that the “plasticity of young brains means they are more susceptible than adults to the positive impact of rehabilitation”. That we have youth prisons does not mean they are adequately set up to deliver that aim; in Feltham Young Offenders’ Institute, children spend 20 hours a day in their cell. Two-thirds of young offenders go on to reoffend within a year of leaving custody, according to official statistics. Vine said the Fordingbridge rapists “stand a better chance” at facing up to what they’ve done under the maximum intensive supervision and surveillance requirement of their YRO — meaning day after day of specialists making them “answer questions that nobody wants to answer”.

As Ken Macdonald, former director of public prosecutions, said: “The vast amount of comment that arose in the immediate aftermath of [the offenders’] sentencing turns out to have been misconceived because no one had seen the sentencing remarks and nobody knew what happened.” It took two weeks for the sentencing remarks to be published.

The documents revealed that, by the time the boys who were involved in both attacks came to be sentenced, they had already served the “equivalent” of a 17- and 18-month sentence, partly in custody. The judge said this was a “significant” factor in sentencing, but it was little-reported.

Rowland’s remark during his sentencing that “I should avoid criminalising these children unnecessarily” may have been a straight citation, but on the day of the judgment the words quickly exploded online and became the principal explanation for his decision.

That narrative has driven 280,000 people to petition to have Rowland investigated and potentially removed. Politicians have compounded pressure on the judiciary. Chris Philp, the shadow home secretary, said: “If traveller youths think they can gang-rape schoolgirls and avoid jail because of their background it simply encourages such horrific crimes.” Reform’s Robert Jenrick said the judge “made a very bad error [in this case]”. Shadow safeguarding minister Alicia Kearns said the maximum sentence for rape is life imprisonment, but that the judge has “put those boys first”.

The judge’s use of childlike language (he remarked “none of you need to go to prison today”) led many to conclude the judge sympathised with the offenders, rather than that he was addressing their learning difficulties. It was little-reported that he applied another set of guidelines — that required for sentencing offenders with mental disorders. One of the older boys had “extreme neurodevelopmental impairment” and the other had ADHD and anxiety (though the judge said the offender’s ADHD did not reduce his culpability). The third, youngest boy had “very low intellectual capacity”.

Rowland ultimately did not apply the adult rape guidelines to this case, under which the starting point for crimes of the highest harm and highest culpability would be 15 years in custody. If he had, the Children and Young People guidance indicates the starting point for a child aged 15-17 would equate to half to two-thirds of the adult sentence — before adjusting for personal factors including their “emotional” age (considered as important as chronological age) plus any previous convictions.

The judge found that knives had not been used to threaten the victims, but this detail was added only after an incomplete view of the incidents appeared online and in a Crown Prosecution Service press release that later had to be amended. 

Not providing the full picture allowed the story to hinge on the much-quoted point by the judge about “avoiding unnecessarily criminalising” the rapists. And, on that score, no politician has yet explained to the public that the sentencing guidelines for children and young people say custody is a last resort and why the youth justice system does not aim to punish.

What struck me the most about politicians’ reticence around rehabilitation of young offenders is that tackling the causes of youth crime in the community has contributed to one of the success stories of the criminal justice system. Last month, David Lammy’s youth justice white paper indicated this was an area where the justice system and politics had aligned around a shared evidence base, rather than what sounds toughest: 

The consequence of youth offending falling is that the people left in the system tend to have more challenging needs. About 38 per cent of children exhibiting harmful sexual behaviours have a learning disability or autism, and the majority of them have themselves been sexually abused or experienced neglect, per the Youth Justice Board. As proven sexual offences by children continue to increase, we are likely to see more of these horrific, complicated cases that require a rigorous search for the truth, rather than rhetoric to ignite social media. Until politicians properly engage with our justice system and convey its purposes beyond punishment, outrage will continue to fill the gap between what the courts do and what the public expects.

As things stand, our youth justice system guides our judiciary to prioritise reducing child offending above all else. If we have no faith in that aim, then we should say so openly and be prepared to accept the consequences. By “consequences” I mean — unless politicians are willing to spend millions on improving rehabilitation in youth prisons — offenders will most likely leave custody no more capable of living law-abiding lives than when they entered it. If we do have an ounce of hope in rehabilitation, then we have an obligation to support a system built around that belief. And that system only survives if it commands confidence from victims and survivors that it is working for them. 

I look forward to the Buckingham Literary Festival, where Jeremy Hunt is speaking about his new book (reviewed here by Tej Parikh) and Emma Monk (of the superb newsletter Monk Debunks) is showing people how to sniff out misleading headlines.

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