Youth sentencing, custody thresholds, and judicial discretion examined

The non-custodial sentences imposed on three teenage boys convicted of rape have generated considerable public debate. An examination of the sentencing remarks and applicable legal framework helps explain how the court reached that decision.
Lawyers and members of the judiciary are required to apply the law objectively, often contrary to public opinion and in spite of public pressure. There are specific sentencing Guidelines for children in the criminal system as well as specific guidelines for children who commit sexual offences.

The sentencing remarks by HHJ Rowland have been published by the courts and we unpack them alongside the law and guidance to give those with a broader interest in the law an understanding of how this controversial decision came about.

The significance of the case is that the judge found the offending of two defendants had crossed the custodial threshold. The issue was therefore not whether the offences were sufficiently serious to justify custody, but whether the statutory and guideline framework governing the sentencing of children nevertheless required a non-custodial disposal.

When referring the cases to the Court of Appeal, the Attorney General, Richard Hermer, said there is 'an epidemic of violence against women and girls in this country'. Cases of sexual violence are seen to be on the rise.

The government's recent Youth Justice White Paper acknowledges the need for "a greater focus of youth justice services supporting victims", reflecting a wider policy emphasis on victim engagement within the youth justice system.

Another underreported but important factor is the delays in cases reaching court; it can take many years for cases to be heard and resolved. The offences in question date back to 2024, with sentencing taking place in May 2026. In the intervening period, the child defendants' ages changed from 14 at the time of the offences to 16 at the time of sentencing, crossing a relevant age threshold in law.

Two of the defendants had spent time on remand which the judge states is ‘the equivalent of a young person’s prison’ . They also spent months tagged. In law, these periods of time are deducted from any final sentence.

Setting aside the sentences, for a moment, procedurally the Judge paid close attention to the guidance and protocols for child defendants to be able to ‘effectively participate’ in criminal proceedings.

In many of the cases that come to our attention there is a lack of judicial knowledge about what is required to be adapted when child defendants are in courts. This judge was familiar with the procedure for child defendants and implemented it. For example:

1. The child defendants to remain seated while he gave his remarks
2. The Judge referred to the boys by their first names, as is required with child defendants
3. The Judge published written sentencing remarks, which is unusual. The Criminal Practice Directions recommends written remarks so a lawyer or other professional can explain sentencing decisions to a child defendant.
4. The sentencing remarks are in two parts. The first part explains the sentences in language that child defendants can understand, then the Judge explains his legal analysis to the children’s lawyers. The Crown Court Compendium (Sentencing) and Child Defendants in the Crown Court Bench Book contain an Appendix: Communicating Sentences to Children, which provides valuable guidance for writing and delivering sentencing remarks to all defendants aged under 18 years. 

When it came to sentencing the judge considered the following rules and guidance before reaching his decision.

1. The Judge is required to apply the Sentencing Council’s Sentencing children and young people. In addition the Judge considered sentencing children and young people for Sexual Offences as he is required to by law. He refers to both of these in his remarks
2. Sentencing children and young people. This establishes a general approach a judge must take when sentencing children. These state that while the seriousness of the offence will be the starting point, the approach to sentencing should be individualistic and focused on the child or young person, as opposed to offence focused. For a child or young person the sentence should focus on rehabilitation where possible (1.2). The guidance goes on to state that domestic and international laws dictate that a custodial sentence should always be a measure of last resort for children and young people (1.3).
3. Much has been made about the judge saying he should avoid criminalising the child defendants, he does not say that, but quotes the guidance he is required to follow which says ‘It is important to avoid “criminalising” children and young people unnecessarily’. (1.4). These child defendants have very much been criminalised, they have criminal records for sexual offences alongside notification requirements that put them squarely on the sex offenders register.
4. Welfare - All Courts are required to consider the welfare of the child this has been law since 1933. The Sentencing Council guidance states ‘This is particularly important when considering custodial sentences as there are concerns about the effect on vulnerable children and young people of being in closed conditions, with significant risks of self harm, including suicide.’ (1.20) Further at 6.49 The guidance states ‘welfare….is especially important when a custodial sentence is being considered.’
5. Learning Difficulties - The Judge is required by the guidance (1.12 – 1.14) to consider a child defendant’s Learning Difficulties and he does this in his sentencing remarks, The younger the offender, and the more serious the offence, the more likely that it is that the court will need the assistance of expert reports.
6. Age and maturity – The guidance requires a sentencer to consider the age and maturity of a child defendant stating ‘the response of a court to an offence is likely to be very different depending on whether the child or young person is at the lower end of the age bracket, in the middle or towards the top end.’ These child defendants were 14 at the time these offences took place, youth justice applies to children aged between 10-18.  
7. Maturity - The guidance mandates that the judge considers ‘the developmental and emotional age of the child or young person’ and that ‘it is of at least equal importance as their chronological age’. (4.10) In this case the Judge considered the low intellectual capacity of the defendants presented by the expert psychological evidence
8. The Custody Threshold - The Judge found that for 2 of the defendants the offences passed the custody threshold. The Court of Appeal in ZA v R [2023] EWCA Crim 596 stated that if the court considers that the offence(s) is(are) so serious as to pass the custody threshold, the court must consider whether a YRO with ISS can be imposed instead. Sentencing Children and Young People for Sexual Offences states “The fact that a sentence threshold is crossed does not necessarily mean that that sentence should be imposed.” YRO with ISS is what the Judge ultimately imposes.

The Attorney General asked the Court of Appeal to review sentences as unduly lenient under section 36 of the Criminal Justice Act 1988. That happened this year in the case of R v R [2026] EWCA Crim 158, there the Criminal Court of Appeal upheld the decision to suspend an 18-year old’s sentence for assault by penetration and determined that this sentence was not unduly lenient, having regard to the offender’s age and prospect of rehabilitation in the community. The Court of Appeal decided that while the sentence was ‘merciful’ it was not unduly lenient.

It is natural that there are strong emotions about these kinds of cases. The rationale behind treating custody as a last resort for children is not to minimise the seriousness of offending, but because it is proven, statistically, to be less effective for children compared to approaches that longer term create safer communities and better outcomes for victims, the public and children alike. There is a legal framework that needs to be followed and it will be for the Court of Appeal to apply that framework when it considers the case in July.