Lessons from R v X, Y & Z [2026] EWCA Crim 845 (the Attorney General’s Reference in the Fordingbridge Rape case)

Background

On 21 May 2026, three teenage boys (X, Y and Z) were sentenced for their roles in two separate incidents involving multiple offences of rape against two teenage girls (C1 and C2) in Fordingbridge, Hampshire. The offenders were aged 14, 14 and 13 at the time of the offending, respectively.

All three initially received non-custodial sentences, sparking fierce public backlash. In less than a week, a Change.Org petition calling for the judge to be investigated received over 100,000 signatures. The same week, C2 was interviewed by The Times, saying, in relation to the sentences, that “It just felt like I was being punished for something that wasn’t my fault because it just means I can’t go out”. 10 days after this, the Attorney General commented on the case during an episode of the podcast ‘Political Thinking’.

The case continued to attract both national and international commentary, including from the then Prime Minister Sir Kier Starmer. It was reported on internationally, by The New York Times and CNN, and Gisele Pelicot was interviewed by the BBC in connection with the case. Andy Burnham has since pledged to meet with the mother of one of the victims.

The Court of Appeal termed the judge’s task as a “difficult and complex sentencing exercise”. So, what are the lessons that we can learn from this case?

The facts

The offending occurred during two separate incidents. The first incident (in which C1 was the victim) occurred on 26^th November 2024. It involved X and Y, and a third boy who filmed the sexual activity, but was never charged.

The second incident (in which C2 was the victim) occurred on 17^th January 2025, and involved X, Y and Z.

After a 29 day trial, X was convicted of two offences of rape, and one offence of taking indecent photographs. He had pleaded guilty to a second offence of taking indecent images on the first day of trial.

Y was convicted of six offences of rape. He had pleaded guilty to 4 offences of taking indecent photographs at a pre-trial hearing.

Z was convicted of two offences of rape. He had pleaded guilty to one offence of taking indecent photographs at a pre-trial hearing. He was involved only in the second incident, involving C2. Z was convicted of oral and vaginal rape as a secondary party (for encouraging Y, who was the principal).

At the sentence hearing, the judge made a number of factual findings relevant to sentence. In particular, he rejected parts of C2’s account:

1. C2 had said that she had been made to leave her phone and AirTag in the Co-op. However, CCTV showed that she had left her phone and AirTag in the shop while in the company of a female friend.
2. C2 had also said that she had been forced at knifepoint to go with the offenders. Having heard the evidence at trial and reviewed the CCTV footage, the judge was sure that C2 had not been forced at knifepoint.

The CPS Press Release 

Despite the judge’s factual findings, immediately after sentencing, the Crown Prosecution Service (CPS) issued a formal written press release which incorrectly stated that the three boys had been convicted of a “knife-point rape”, having been “threatened with a knife and forced to leave her mobile phone and AirTag in a shop so that her movements could not be tracked”.

The errors, deemed “egregious” by the Court of Appeal, fuelled a wave of inaccurate and inflammatory reporting. They were not corrected until three weeks later, a delay described as “unacceptable”. Even then, the errors were corrected by way of a “lowkey” republishing of the original press release with the correction added.

The Director of Public Prosecutions (DPP) attributed the failings to human error, and confirmed that the usual legal checks, clearance procedures, and the consultation of prosecution counsel had (somewhat inexplicably) been overlooked.

Controversially, the Attorney General appeared on the podcast ‘Political Thinking’, and failed to correct the factual inaccuracies which had, by that point, been widely publicised (nor did he condemn the personal vilification of the sentencing judge, which was widespread).

Despite noting that the Attorney General is answerable to Parliament, rather than to the Courts, the Court of Appeal took the exceptional step of criticising the Attorney General’s conduct. The Attorney General responded in a letter to the Court, in which he welcomed a more detailed discussion about how the judiciary and the government work together to meet their shared and grave concerns about increasing attacks on judges. The Court of Appeal welcomed this suggestion in their judgment in respect of the case’s publicity, which can be found here.

The Court of Appeal’s Decision

X and Y were initially sentenced to 3 year Youth Rehabilitation Orders (“YRO”) with Intense Supervision and Surveillance (“ISS”). The Court of Appeal quashed X and Y’s sentences, deeming them unduly lenient. Instead, the Court imposed concurrent sentences of 4 years’ detention under section 250 of the Sentencing Act 2020 on each of the counts of rape.

Tracy Ayling KC, representing Z, drew the Court’s attention to her client’s particular vulnerability by virtue of his mental health and learning disabilities, his susceptibility peer-influence, and his limited role in the offending as a whole. Z was sentenced to an 18 month YRO (a YRO with ISS only being available for “persistent offenders” under 15 years old).

The Court of Appeal found that the sentencing judge was wrong to conclude that Z’s offending did not cross the custody threshold – it “obviously” did. However, the Court agreed with Tracy Ayling KC that Z’s case was materially different from those of X and Y. He had been involved only in the second incident, was 13 at the time of the offending, had not committed either rape as a principal, and was described as a particularly vulnerable child. The Court held that, notwithstanding the custody threshold being passed, a non-custodial sentence remained properly open to the judge. The AG Reference was dismissed in respect of Z, the Court concluding that his sentence was not unduly lenient as it was a “perfectly proper sentence.”

The Correct Approach to Sentencing Child Sexual Offences

The Court of Appeal emphasised that the judgment did not mark a change in the approach to sentencing children for serious sexual offences, but rather corrected the misapplication of existing principles to the exceptionally serious facts before the Court in this case.

The Court of Appeal made it clear that the Child Sexual Offences Guidelines should be read alongside the Principal Guideline. They mandate a stepped approach, with those steps found in the former guideline.

Throughout the steps, the Child Sexual Offences Guideline concentrates on the seriousness of the offences as a critical consideration.

The Court is required to give reasons at each stage – in custody cases, it must state “its reasons for being satisfied that the offence is so serious that no other sanction would be appropriate.” Likewise, in non-custodial cases, the judge must explain why this form of disposal remains “possible,” “justified” or “suitable“, notwithstanding the Court’s assessment of seriousness.

At step five, if the Court reaches the conclusion that a custodial sentence is unavoidable (because it is so serious), the Child Sexual Offences Guideline suggests that the Court “may want to consider the equivalent adult guideline”. Crucially, however, the adult guideline is a tool for calibrating the length of a custodial sentence, not for determining whether custody is required. This follows the approach in R v ZA [2023] EWCA Crim 596, where it was stated that resorting to the adult guideline “comes at the end of the process, not the beginning”.

The prosecution sentencing note was criticised for having started with the Adult Rape Guideline, and for failing to refer to the Child Sexual Offences Guideline at all. The Court warned against over reliance on factual comparisons with other cases, and promoted not only a fact-specific approach, but also, crucially, an offender-specific approach.

There is an inherent tension when it comes to sentencing youths. The Court is required to take the seriousness of the offence as the starting point, while remaining child focused, and not offence focused. In an interview with The Times, C2’s mother expressed her opinion that the sentencing judge had “handled it completely wrong”, saying that it was “all about the boys”. She correctly identified the judge’s undoubtedly ‘offender centred’ approach. This is what the law requires. The judge quite rightly reminded himself of the Principal Guideline, which says that, “While the seriousness of the offence will be the starting point, the approach to sentencing should be individualistic and focused on the child or young person, as opposed to offence focused”. In doing so, however, he arrived at sentences which did not reflect the seriousness of the two cases of offending in relation to X and Y.

The Court of Appeal found that the judge failed properly to account for the fact that there were two incidents, each involving multiple offending against a different victim. Further, the judge was wrong in concluding that the victims, who were raped in a public place while still young children, did not suffer severe psychological harm.

The Court of Appeal also clarified the following points of law:

1. The ‘Sentencing offenders with mental disorders, developmental disorders, or neurological impairments’ guideline applies only to offenders aged 18 and over.

• When determining harm, it is irrelevant that an offender was not aware of the vulnerability of the victim. Likewise, the age of the offender does not affect harm. These factors are relevant to culpability only. 

• The Principal Guideline suggests that, when the court reaches the stage of considering the relevant adult guideline, for an offender aged 15-17 the resulting sentence may broadly fall within the region of one-half to two-thirds of the adult sentence, with a greater reduction for an offender aged under 15. The Court of Appeal emphasised the distinction between this and applying a reduction of one-half to two-thirds to the adult sentence. In other words, the guideline is concerned with the proportion of the adult sentence ultimately imposed, not the percentage by which the adult sentence is reduced.  

• When undertaking the categorisation exercise under offence-specific guidelines, the Court of Appeal stressed that the Court should not artificially avoid overlap between culpability and harm factors which derive from the same facts. The fact that there is an overlap between factors increasing both harm and culpability does not mean there has been ‘double counting’. In the present case, the offence should not have been placed in a lower category as a result of this. In the Court of Appeal’s judgment, each rape was “quite clearly” a category 2A case.

The judgment set out some of the reasons why the Courts are quite rightly reluctant to impose custodial sentences on youths. Referring to scientific evidence, the Court emphasised that a child’s brain and personality are still developing, and when they have grown up they may be unlikely to offend again. For offenders over 25, “There is less hope of redemption”. Development will be interrupted and adversely affected by custodial measures. Disruption at a critical stage in a child’s education may be counterproductive, resulting in further offending, rather than preventing it.

The judgment illustrates the difficult balance inherent in sentencing children for the most serious offences. The principal aim of the youth justice system is to prevent offending by children and young people, and the Court has a statutory duty to have regard to the welfare of the child. To what extent sentencing two 15 year olds to immediate custody is likely to aid rehabilitation and prevent reoffending is open to question. That said, ultimately, the Court of Appeal asked itself “whether there are some sexual offences which are so serious that [a sentence of detention of two years or more] is required, not withstanding the good reasons […] why such sentences should be avoided wherever “possible””. The answer, the Court concluded, is yes. 

Tracy Ayling KC, of 2BR Chambers, represented Z. Tracy’s Chambers Profile is linked here.

The judge’s Sentencing Remarks can be found here.

The Court of Appeal judgment (in respect of the sentence) can be found here.

The Court of Appeal judgment (in respect of the case’s publicity) can be found here.