Two rapists spared custody partly because of intellectual limitations, judge says

Two of the three teenage boys convicted of the rape of two girls in Fordingbridge were spared jail partly because their intellect was judged to be low, the judge’s full remarks show.

Two 15-year-olds were given non-custodial sentences in May after raping two girls in Fordingbridge, Hampshire, by judge Nicholas Rowland at Southampton Crown Court, who said he wanted to “avoid criminalising these children unnecessarily”.

A third boy, now aged 14, was also convicted of rape for his involvement in the second attack and an indecent images offence. He also avoided custody.

The sentences of the three boys are being sent to the Court of Appeal after a review under the Unduly Lenient Sentences (ULS) scheme.

Attorney general Lord Hermer said there was “an epidemic of violence against women and girls in this country”, after Sir Keir Starmer announced the “distressing” case would be referred following a public outcry.

The full transcript of the sentencing remarks of the two 15-year-olds and a 14-year-old by Judge Rowland has now been released.

The first 15-year-old defendant was handed a three-year youth rehabilitation order (YRO) with 180 days of intensive supervision and surveillance (ISS) for the rape of each of the two girls, who were aged 14 and 15 at the time, and two indecent images charges.

The second 15-year-old was given the same sentence for three charges of rape against each of the two victims and four counts of taking indecent images in relation to filming of the incidents.

A third boy, who is 14 and was 13 at the time, was given a YRO for 18 months for two charges of rape in the second incident by encouraging the second defendant and an offence of indecent images.

In his comments, Judge Rowland said: “I have come to the conclusion offences of which (the two 15-year-olds) were convicted crossed the custody threshold, however in light of the guidelines relating to children I am not bound to impose immediate custody.”

He also said guidelines for youth offenders state custody should be considered as a “last resort”, and he “must have regard to the objectives of youth justice being to prevent offending by children and the welfare of the child”.

He said: “I must consider the respective ages of the children at the time when these offences were committed.

“As was made clear in that decision, it is not just the chronological age I am concerned with, but emotional and developmental age.

“I need to consider the ages of these children… and proceed on the basis that custody is a last resort.”

Judge Rowland explained that although the two 15-year-olds were assessed by Youth Justice Services as of “medium risk” of reoffending but “high risk of serious harm” to young females, he had to consider their backgrounds.

He said the first defendant had been diagnosed with ADHD and “long-standing anxiety”, while the second had an IQ in the bottom 1 per cent compared with his contemporaries, had ADHD with “extreme neurodevelopmental impairment”, and presented “more like an eight-year-old”.

The judge said he also had to take into account that they had both served “effective significant sentences”, with the first defendant spending 462 days subject to curfew and 27 days detained in local authority accommodation which he said was the equivalent of an 18-month sentence.

He said the second defendant had been subject to 461 days on curfew and 20 days in local authority accommodation, making it the equivalent of a 17-month sentence.

For the younger defendant, he said he was found to be of “very low intellectual capacity, below 5 per cent, when compared with his contemporaries” with “mild to moderate symptoms of anxiety, he shows emotional immaturity”.

He also added his offences had “not crossed the custody threshold” and his “risk of reoffending was low”.

Explaining his decision to not sentence them to custody, Judge Rowland said: “I should avoid criminalising these children unnecessarily and encourage them to take responsibility for their actions, understand the effects of their behaviour, on the two girls and their families, and promote the boy’s reintegration into society.

“Are there matters which may diminish the culpability of these children? They were immature and may not understand risk taking behaviour.

“Were they acting impulsively? Peer pressure is an important factor.

“Children are likely to benefit from the opportunity to address their behaviour, learn from their mistakes and to be receptive to change.

“Offending by children can often be a phase, the effect of punishment is likely to be felt more heavily by a child.”

He said he was “satisfied that a YRO” for each of the defendants would “provide the best prospect of rehabilitation and therefore the reduction of risk of further offending”.