The judge who spared three boy rapists from jail had been advised that the offences mirrored a similar case in which the perpetrator received a custodial sentence.
Judge Nicholas Rowland prompted a backlash when he decided not to jail two 15-year-old boys who had raped two girls, one at knifepoint, in Fordingbridge, Hampshire. The attacks had been filmed and footage put online.
The two boys were instead given youth rehabilitation orders, as was the third, aged 14, who had “aided and abetted” the rapes. Judge Rowland said he wanted to “avoid criminalising these children unnecessarily”.
On Tuesday, Lord Hermer, the Attorney General, judged the sentences to be “unduly lenient” and referred the case to the Court of Appeal to decide whether the boys should have their punishment increased.
It has now emerged that Jodie Mittell KC, the prosecutor in the case, had cited a previous trial in which a 15-year-old boy convicted of three rapes, digital penetration and sexual assault had received an eight-year custodial sentence.
Earlier case had similarities
In her note, Ms Mittell – who also sits as a recorder – had stated that the earlier crime was “on balance … akin to this case, with features that vary in seriousness”. The 15-year-old in the earlier case, and his three co-defendants, had met their victims online, as had the Fordingbridge rapists.
Ms Mittell noted that the judge in the earlier case had decided to apply “adult guidelines” because of the seriousness of the offence. She argued that the circumstances in the Fordingbridge case were equally serious and sufficient to elevate it to “category one harm”, the highest level for sentencing.
Factors supporting this included the vulnerability of the Fordingbridge victims; the “additional degradation/humiliation” they suffered; “violence or threats of violence beyond that which is inherent in the offence”, and “psychological harm”.
Other factors were the “significant degree of planning” shown in befriending one victim online; acting with others to commit the offence, and recording the offence.
These considerations put the offences into “culpability category A”, with their location and timing being aggravating factors. The guidelines for a grade 1A offence would mean a 12 to 19-year custodial sentence, or nine to 13 years if it was felt there was a lower level of harm.
Ms Mittell noted that a judge could apply a custodial sentence based on adult guidelines, reduced by a third or half to recognise that the defendants were still children.
Lord Hermer referral
The Crown Prosecution Service, which Ms Mittell represented in court, has revealed that it was among the organisations and individuals that asked Lord Hermer to review the case as potentially “unduly lenient” and refer it to the Court of Appeal.
In an interview with BBC Newsnight, one of the victims, who is now 15, asked of Judge Rowland’s sentencing comments: “Why would you avoid criminalising someone who has done a criminal act? They did it, they need to understand that their actions do have consequences and they can’t just get away with not being criminalised.”
Discussing how the crimes had affected her, the girl said: “I feel like no matter what I do, I can always feel their hands on me, no matter how much I’ve scrubbed, how much I’ve tried to get the feeling away it’s always there and it just doesn’t feel like my body any more.”
The girl’s father said the family felt anger over the sentences and that it was heartbreaking to see his daughter’s confidence “drop to a low”. He called for the boys to be given a custodial sentence of at least two years.
In an interview with the BBC’s Sunday with Laura Kuenssberg programme, the other victim, now 16, said of the boys’ sentence: “The words hit like a rock straight in my face.”