H, R v

For criminal proceedings begun after 13 April 2015, reporting restrictions for a person under 18 must be considered under section 45 of the Youth Justice and Criminal Evidence Act 1999, not section 39 of the Children and Young Persons Act 1933. A section 45 order requires a good reason to depart from open justice. The young person’s welfare must outweigh the strong public interest in open reporting.

In sentencing a young offender, substantial mitigation, immaturity and rehabilitation may materially reduce a custodial term. They do not necessarily preclude custody where serious sexual offending is repeated, sustained and knowingly unlawful.

The applicant, aged 16 when the offences were committed, pleaded guilty in the Youth Court to four specimen offences of rape of a child under 13. He was committed to the Crown Court at Warwick, which imposed concurrent detention and training orders of 18 months.

The sexual activity occurred repeatedly over several months with a 12-year-old girl. It was accepted that it was consensual in fact, if she had capacity to consent, and that no force was used. The applicant appealed against sentence, contending that custody was wrong in principle and that the term was excessive.

The Court also considered the validity of reporting restrictions purportedly imposed below and whether an order protecting the applicant’s identity should be made.

1. Appeal allowed as to length of sentence. The Court granted leave and reduced the concurrent detention and training orders from 18 months to 12 months. It upheld the decision that custody was justified.
2. Reporting restriction. Section 39 of the Children and Young Persons Act 1933 had been disapplied to these criminal proceedings, which began after 13 April 2015. The correct power was section 45 of the Youth Justice and Criminal Evidence Act 1999. The established section 39 case law remained appropriate guidance because of the similarity of the provisions. A section 45 order requires a good reason to depart from open justice, and the welfare of the young person must outweigh the public interest in open reporting. That balance favoured protection here, particularly because identifying the applicant could indirectly identify the child complainant. The Court prohibited publication of his name, address, educational establishment and images until his 18th birthday.
3. Sentence. The Court accepted the considerable mitigation: early guilty pleas, previous good character, emotional immaturity, remorse, low risk of reoffending and positive engagement in custody. It nevertheless held that the custodial decision was neither wrong in principle nor manifestly excessive. The offending was a repeated course over several months; the applicant knew the complainant was 12 and concealed her age from his parents, demonstrating that he knew his conduct was wrong. Her apparent assent did not remove the need for the protection afforded to a child of her age.
4. The judge had made substantial reductions, but had not made sufficient allowance for the mitigation and the need to keep youth custody to a minimum. A 12-month order properly reflected those matters.

• Court of Appeal (Criminal Division): Granted leave and allowed the appeal against sentence to the extent of reducing the concurrent detention and training orders to 12 months.
• Crown Court at Warwick: On 22 July 2015, imposed concurrent detention and training orders of 18 months for four offences of rape of a child under 13.
• Youth Court: The applicant pleaded guilty at the first opportunity and was committed to the Crown Court for sentence.