The Hampshire rape case - notes and corrections.

How "Notes on Crime" got mixed up with law and justice

Although I have yet to be publicly acknowledged as the source, my reporting here in Notes on Crime was behind a significant intervention by Baroness Carr, the Lady Chief Justice, last week at the Court of Appeal - administering a rap across the knuckles of the Crown Prosecution Service that has left the CPS publicly embarrassed and at risk of further judicial retribution.

In my recent Notes on Crime article, “the misrepresentation of the Hampshire rape case” I examined the troubling errors made, both in the reporting of the case and in the resulting commentary fuelled by the public outcry over the decision of the trial judge at Southampton Crown Court, HHJ Rowland, not to send the three convicted boys to detention.

The article also drew public attention for the first time to the grievous factual mistakes in a CPS press release which was published online after the sentencing hearing on May 21st. The errors were still present in the press release when I published my “misrepresentations” article on June 9th. The press release was amended the following day, June 10th, with a note (though no apology) pointing to the mistakes in the original version.

I thought the press release was “regrettable” (as I put it at the time), but essentially a sideshow, amid the Attorney General’s reference to the Court of Appeal, on the grounds that the non-custodial sentences were Unduly Lenient.

The appeal was heard last week, when the two principal child offenders were plucked from their lives and sent by the panel of three Appeal judges, led by the Lady Chief Justice, to serve four years in detention. The third boy’s community sentence was left unchanged.

Although I had not attended the trial or the sentencing, I was interested in the case from a youth justice perspective and in the furore that had followed (and inevitably follows any hint of benevolence shown to child perpetrators caught up in the criminal justice system).

I was, frankly, sympathetic to the judge’s decision not to send the boys to detention. I thought it was courageous and entirely in line with both the modern child-centred approach of the criminal justice system and the public policy considerations around raising the age of criminal responsibility from ten to 14. But I recognised too, that it was a difficult call to make in the wider context of concerns about sexual violence against women and girls, and taking account of the harm done to the girls who had been attacked.

The case turned on two separate incidents involving two girls and three boys, none of whom can be identified. The trial judge had anonymised the boys as J, N and E and the girls as C and L. For some unexplained reason, the Court of Appeal relabelled them as boys X, Y and Z and girls C1 and C2. I hope that’s clear and coherent.

Both incidents took place in Fordingbridge, Hampshire, the first on November 26, 2024, and the second just under eight weeks later on January 17, 2025. Boys X and Y were 14 at the time of both incidents. Boy Z was only party to the second incident, when he was 13. C1 was the girl in the first incident and had just turned 15. The second incident involved C2 who was 14.

The girls were both vulnerable, and (the Court of Appeal disclosed) C1 had previously been the victim of serious sexual offending, unconnected with and unknown to X and Y when they raped her. The boys too all had vulnerabilities and developmental difficulties.

Many commentators said the boys had “walked free” or “got away with it” when they were not sent to immediate custody, but that was far from the case.

Importantly, both incidents began with consenting sex between X and C1 and C2. Indeed, it was agreed that X himself was initially reluctant to engage with C2. The incidents took place in the open and involved filming by the boys and some group activity by them during the offending.

X was convicted of two offences of rape and one offence of taking indecent photographs. He pleaded guilty to a second offence of taking indecent photographs. Y was convicted of six offences of rape and pleaded guilty to four offences of taking indecent photographs. Z was convicted of two offences of rape, as an accessory and pleaded guilty to one offence of taking indecent photographs. (More detailed accounts of both incidents are contained in the publicly available Appeal judgment which I have linked below).

Both X and Y were acquitted of two charges of rape - one against each of the girls.

Many commentators said the boys had “walked free” or “got away with it” when they were not sent to immediate custody, but that was far from the case. X and Y had both served periods on remand in secure units - 27 days for X and 20 days for Y. They had both then been subjected to 462 days of “qualifying curfew” while awaiting trial.

The trial judge decided that the custody threshold had been crossed for X and Y but said he was following the sentencing guidelines for children (which he had rehearsed at length in his sentencing remarks) in opting not to impose custodial sentences. He instead sentenced X and Y to three-year Youth Rehabilitation Orders with Intensive Supervision and Surveillance, to include three months of tagged curfew and “specialist Harmful Sexual Behaviour intervention”. Z received an 18 month Youth Rehabilitation Order.

Amid the public outcry that they had got off “scot free” etc, the Attorney General Lord Hermer took not much more than a weekend to make his referral under the Unduly Lenient Sentence regime. He then went on the BBC Political Thinking podcast when he told the presenter Nick Robinson that he was in no doubt that the referral needed to be made. He neglected during that interview (as Lord Justice Edis, on the Appeal judges’ panel last week, pointedly mentioned) to correct any of the factual errors in the reporting, the commentary and the CPS press release.

Of course, it is important to uphold public confidence in our criminal justice system, but could there perhaps be a danger too of allowing a vengeful public (“the mob”) to dictate your “political thinking”?

The LCJ pointed out the two significant errors that I had previously set out in my June 9th article

Anyway, I wanted to see how the Attorney General would frame his reference, how it would be contested by the three boys’ KCs, and what the Court of Appeal would decide to do. So I was there in Court 4 of the Royal Courts of Justice when last week’s appeal hearing began. We learned immediately that the three boys had been ordered to appear by video link before the Lady Chief Justice, from Southampton Crown Court the following day. That hinted at the sentences being uplifted to detention.

Imagine my surprise, half-way through the hearing, when the LCJ, Baroness Carr leaned over the raised judicial bench and began questioning the Attorney General’s counsel, Tom Little KC over the errant CPS press release.

The LCJ pointed out the two significant errors that I had previously set out in my June 9th article - describing the crimes as “knife point rapes” and one of the two young female victims as having been forced to leave her phone and AirTag at a shop before being marched off to be attacked.

The trial judge had made clear at the sentencing hearing that neither of these two things were true. But that had not been reflected in the press release, nor indeed in the widespread misreporting of the attacks as “knife point” rapes.

The LaCJ wanted to know, how on earth had it taken so long (nearly three weeks, in fact) to correct the press release? Little’s answer was that it had not been pointed out earlier. It should never have happened, said the LCJ sternly. The press release was a very important document and there to be relied upon by the press.

Little said he understood the court’s consternation and that the matter had been taken up at the highest level. The LCJ wanted to know how it could have happened in the first place.

Of course, she was right, it was an own goal by the CPS, but I did think, as I listened to the exchange between the Lady Chief Justice and Tom Little that the real problem was the failure to publish the judge’s sentencing remarks immediately after the sentencing hearing.

It is a modern convention that Sentencing Remarks in notable cases are uploaded soon after they have been delivered in court. The reporters could have read and reported them, the CPS press officers could have read and reflected them with accuracy in their press release. (That did not entirely absolve the reporters or the press officers of their duty to check the facts).

I had asked the Judicial press office for a copy of the Sentencing Remarks soon after the hearing and was told the remarks weren’t yet available, but that a transcript would be shared in due course.

There was evidence he had been having panic attacks when he feared he was dying. His family were being forced to leave their home.

I had read the CPS press release and the “knife point rape” news coverage, not realising either were inaccurate. It was only when I was sent the transcript of the judge’s sentencing remarks on June 4th (two weeks after the sentencing itself) that I realised the judge had made key findings on the evidence, about the young girls’ initial consent, about the initial absence of force and the apparent absence of a knife, all of which had influenced his approach to the case.

“Clearly, if there had been a knife in evidence during sexual offending in any of the phases, and it was attributable to a particular defendant, the outcome of this hearing would be very different for that defendant”, the trial judge had said during sentencing. It was a pity his observations were not disseminated beyond the court sooner, although that barely excuses the CPS or the media (some of whom did attend the sentencing hearing).

At the appeal hearing, after the exchange between the LCJ and Little, counsel for the boys also referred to the erroneous press release and the misreporting, describing it as a “unique and troubling feature” of the case, that had in large part fuelled the public outcry.

On behalf of Boy Y, it was said by Ed Henry KC that the “sheer force of hatred” he had received on social media had gravely exacerbated his punishment. There was evidence he had been having panic attacks when he feared he was dying. His family were being forced to leave their home. Counsel all spoke of the potential harm to their clients of being sent to detention.

The lack of clarity seemed unfair, especially coming on top of the previous non-custodial sentences, now being overturned.

The Appeal judgment in the case was delivered the following day (on Thursday last week) after the LCJ had told the boys (down the line to Southampton from the RCJ) that their behaviour towards the girls had been horrible and that X and Y were being sent into custody for four years.

“Even though you will not be in detention for the whole of the four-year sentence we know that it will still be a long time for you to be away from your home and families. But what you both did was so bad that we decided that we had no other choice than to make these sentences.”

The boys were not told precisely how long they would serve - after the time spent in detention on remand, and half the time spent on curfew had been taken into account as “time served”. They would not serve the whole four years, but the precise formulation was unclear. I could not tell if they would serve around one year or nearly two years. The lack of clarity seemed unfair, especially coming on top of the previous non-custodial sentences, now being overturned.

The trial judge’s sentencing remarks had been set out over 23 pages. The Appeal judgment filled 52 pages. Their length reflected the complexity of the information that fed into the decisions. They both explained at length the various relevant guides to sentencing children. The fine detail disclosed how challenging it was to navigate a clear path, making the right assessments to reach the right decision, how difficult it would always be to achieve a consensus in such cases and not to fall into error.

The Court of Appeal agreed with Tom Little that the trial judge had failed to give proper weight to the severe psychological harm inflicted on the victims, that he had wrongly placed the offences into a lower category of offending and not taken full account of the seriousness of the boys’ conduct. The trial judge had decided that sentences of detention were avoidable, but the Appeal court found - for all the reasons it rehearsed at length - that sentences of detention were unavoidable.

The boys’ convictions are already being appealed, so it will be interesting now to see whether the boys’ legal teams can reevaluate the Court of Appeal’s decision, just as the Attorney General and the Court of Appeal had done with the trial judge’s reasoning, and find fresh errors that might justify a further appeal against sentence.

I wondered, for instance, how an evaluation of the severe psychological harm experienced by C1 over the incident, was being distinguished from the effects of the serious sexual offending which she had previously suffered, and for which the boys were not responsible. In C2’s case there was evidence that hinted at difficult family relationships and significant psychological disturbance. There was no reference to either in the judgment’s assessment of harm.

There is a common perspective among appeal judges that the trial judge has seen and heard all the evidence, observed the defendants, the witnesses and where relevant the complainants, and is best placed to assess the sentence that is required. The Court of Appeal clearly believed – or at least, said it did – that the judge had done a good job in difficult circumstances, but had reached the wrong decision.

“The single most egregious example of this was perpetrated by a press release by the Crown prosecution service, which the Attorney General superintends.”

The judgment then delivered, the Lady Chief Justice returned to her theme of the factually inaccurate press release, wider reporting and commentary.

“It is a matter of significant concern to us that these events have become a matter of intense public debate before the legal process has concluded.

“The dangers of public comment by members of parliament, the media and others on matters still proceeding through the courts and tribunals are self-evident, the most obvious being the risk of proceeding on the basis of an inaccurate or incomplete understanding of the facts (and the law).”

The LCJ stated (without saying why) that the trial judge had been unable to publish his sentencing remarks in full at the time and observed that in the period after sentence and before the transcript of the remarks was made available there had been a good deal of inaccurate reporting which had misinformed political and other public commentary.

“The single most egregious example of this was perpetrated by a press release by the Crown prosecution service, which the Attorney General superintends.” She repeated the errors and said they were “very significant errors” which had remained uncorrected until June 10^th. (She is forgiven for neglecting to mention the publication of my “notes on crime” article the day before).

The LCJ found it difficult to understand how the errors had been made in the first place and how they had remained uncorrected for so long.

Counsel involved with the case had raised concerns about the inaccurate reporting with the CPS, but were seemingly unaware of the press release.

“The Attorney General, through Mr Little, has informed the court that he was not personally aware of the inaccurate press release until yesterday and that the CPS will be asked to provide the court and him with a full explanation. We await that.

“Upon receipt, we will consider what further steps, if any, may be necessary. Our concern is not confined to the press release, its inaccuracy and the delay in correction, but is also about the failure on the part of those with statutory responsibility for the prosecution of these cases and for these References to correct the immediate widespread misreporting of important factual aspects. Without a fuller picture, we are unable to express any further views or reach any conclusions at this stage.”

The LCJ said that while the court itself would not be prejudiced by such misinformation, “those affected by it are the offenders, against whom public feeling has been further inflamed and C2 whose evidence on this issue has been examined under the full glare of publicity. This may tend to obscure the fact that, on the main issue, namely whether or not she was raped, the jury believed her.”

It was C2 who had told the trial that she had been forced and attacked at knife point. There was evidence that showed that was not true - there was no knife and there was evidence that she had initially consented to sex.

The trial judge had seen and heard all the evidence when he made the decision to give all the boys community sentences. He thought custody was avoidable, but apparently it was unavoidable. The boys were first released into those restrictive community sentences and now they are heading to custody instead, and public outrage is answered.

This is notes on crime 16 thank you for reading. Please subscribe, please share the article and please feel free to leave a comment. You can read more about children who commit serious crimes in my book The Sleep Of Reason - The James Bulger Case. Many thanks, David