R v BNE & Anor

For a person aged under 21, a sentence of imprisonment is unlawful where the statutory regime requires detention in a Young Offender Institution. The appellate court must substitute the lawful form of sentence.

Separate assaults may justify consecutive sentences, but the court must consider totality and reduce the aggregate sentence if it is manifestly excessive. Co-offenders need not receive equal sentences where their offences differ materially in seriousness. A lesser participant’s role and following-on involvement must be reflected in sentence.

The applicants, twin sisters aged 18 at conviction, appealed sentences imposed by the Crown Court at Kingston-upon-Hull. Applicant 1 had pleaded guilty to taking a child in care without lawful authority and three assaults by beating an emergency worker. Applicant 2 had pleaded guilty to taking a child without lawful authority and one assault by beating an emergency worker.

Each applicant received an aggregate sentence of 16 months’ imprisonment. The appeals challenged the starting points, mitigation, totality, relative culpability and disparity. The court also had to determine the lawful form of sentence because both applicants were under 21.

Both appeals were allowed in part. Each applicant’s total sentence was reduced to 12 months’ detention in a Young Offender Institution.

1. For the assaults on emergency workers, the applicants’ previous convictions, entrenched attitudes towards violence against police officers and continuing risk of harm were serious aggravating features. A sentence of six months at trial, reduced to four months after full credit for guilty pleas, was not manifestly excessive. Consecutive sentences were permissible because the assaults were discrete and separate offending from the child-taking offences.

2. In Applicant 1’s case, the distress caused by the adoption decision did not amount to strong mitigation requiring a reduction in the sentence for taking a child in care without lawful authority. However, the judge had not expressly considered totality. The three assault sentences were imposed consecutively despite representing two incidents, making the aggregate sentence manifestly excessive. One four-month assault sentence was therefore made concurrent. The resulting sentence was 12 months’ detention in a Young Offender Institution.

3. In Applicant 2’s case, the disparity argument failed. Taking a child without lawful authority was materially more serious than taking a child in care without lawful authority, so equal sentences would have been unduly lenient. Nevertheless, the judge had given insufficient weight to Applicant 2’s lesser, following-on role. On the particular facts, 12 months’ custody after credit, from an 18-month starting point, was manifestly excessive. Eight months’ detention was substituted for the child-taking offence, followed consecutively by four months for the assault.

4. Under section 227 of the Sentencing Act 2020, imprisonment of a person aged under 21 is prohibited. The sentences had therefore been unlawfully pronounced as imprisonment and were quashed and replaced with detention in a Young Offender Institution.

1. Court of Appeal (Criminal Division): [2025] EWCA Crim 460. Leave to appeal was granted. Both appeals were allowed in part and lawful sentences of detention in a Young Offender Institution were substituted.
2. Crown Court at Kingston-upon-Hull: on 28 February 2025, each applicant was sentenced to an aggregate of 16 months’ imprisonment.