R v X & Ors

On a section 36 reference, appellate interference requires more than leniency: the sentence must be unduly lenient and the statutory threshold is high. For child sexual offending, the Principal and Child sexual offences guidelines must be read together in a stepped process. Seriousness is assessed through culpability and harm; youth reduces culpability but not harm. Custody is permissible only when unavoidable after considering personal mitigation, pleas and all alternatives. The adult rape guideline is consulted only at the end, as a broad indicator rather than mechanically. Multiple rapes in separate incidents, group offending, filming, sustained incidents and severe psychological harm can make detention unavoidable, while a very young secondary participant may still receive a community sentence where an alternative remains suitable.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer sentences imposed on X, Y and Z after a 29-day trial. The offenders, aged between 13 and 15 at the relevant times, were convicted of rape-related offending and production of indecent images involving two young complainants. X and Y were involved in two incidents; Z was involved only in the second. On 21 May 2026, His Honour Judge Rowland imposed youth rehabilitation orders on all three. The Attorney General argued that detention was required. The central issues were whether the sentences were unduly lenient, how the child sentencing guidelines interacted with the adult rape guideline, and whether detention was unavoidable.

Leave was granted. The Attorney General’s References were allowed in respect of X and Y and dismissed in respect of Z.

1. Section 36 threshold. A reference concerns gross error, public concern and confidence in sentencing, but the court may interfere only where a sentence is not merely lenient but unduly lenient. The high threshold was applied in accordance with Attorney General’s Reference (No. 132 of 2001) (R. v. Johnson) [2002] EWCA Crim 1418 and R v Mohammed Arfan [2022] EWCA Crim 1416.
2. Child sentencing framework. The Principal guideline and Child sexual offences guideline must be read together. Steps 1 and 2 assess offence seriousness through culpability, harm, and offence-specific aggravating and mitigating factors. Steps 3 and 4 address personal mitigation and guilty pleas. Step 5 requires a review of the available disposals. Harm is not reduced by the offender’s age, although age and development affect culpability. The Step 1 boxes are not exhaustive or hard-edged.
3. Custody and adult guidance. A custodial sentence must not be imposed on a child unless it is unavoidable. The court must explain why a non-custodial option, including a youth rehabilitation order with intensive supervision and surveillance, is not justified, possible or suitable. Only after that decision may the adult rape guideline be consulted. It is a general indicator of seriousness and sentence length, not a mechanical determinant. The half-to-two-thirds approach for offenders aged 15 to 17 is a rough guide, not a reduction by half to two-thirds, and developmental maturity is important. The starting point is the sentence applicable when the offence was committed.
4. Application to the offenders. The rapes were category 2A offences under the adult guideline. Overlapping culpability and harm factors did not involve double counting. Victim vulnerability was relevant to harm whether or not known to the offenders, and the evidence established severe psychological harm and sustained incidents. The two separate incidents, two victims, multiple rapes, group offending and filming made detention unavoidable for X and Y despite substantial mitigation. For Z, who was 13 and a vulnerable secondary participant in one incident, an alternative sentence remained possible, suitable and justified.
5. Dangerousness and additional mitigation. The youth-specific approach in R v Lang [2005] EWCA Crim 2864 and R v Davis and other cases [2026] EWCA Crim 743 meant that X and Y were not dangerous offenders. Updated material could be considered in accordance with R v Rogers [2016] EWCA Crim 801. Additional mitigation arising from reopening a sentence may be considered, but no mechanistic double-jeopardy deduction should be made.
6. Orders. The sentences on X and Y were quashed and replaced by concurrent four-year detention sentences under section 250 of the Sentencing Act 2020 on each rape count. No separate penalty was imposed for the image-production offences. Their restraining orders were replaced by indefinite orders and notification requirements became indefinite. The qualifying-curfew credit was 231 days for each offender. Z’s sentence remained in force.

Obiter, the court criticised inaccurate public reporting and stated that reports of proceedings should be fair and accurate under section 4(1) of the Contempt of Court Act 1981. Further steps concerning the CPS press release were reserved.

• Crown Court at Southampton: On 21 May 2026, His Honour Judge Rowland imposed youth rehabilitation orders on X, Y and Z following their convictions.
• Court of Appeal (Criminal Division): On 2 July 2026, the references were allowed for X and Y, whose sentences were quashed and replaced with four-year detention sentences, and dismissed for Z.