Why did teenage rapists avoid jail?

0:02Sky News, the full story first.

0:11Three teenage boys convicted of raping two girls have avoided jail sentences. It's a decision that provoked outrage and is now going to be reviewed. This is why.

0:25I'm Sam Coates from Sky News. And I'm Anne McElvoy from Politico. Downing Street drama, leadership battles and policy U-turns. We're on it before it breaks. We take you straight into the rooms where the real political conversations are happening. Smart Insight, clear analysis in your feeds by 7.45am. So you start your morning fully brief for the day ahead in British politics. Hit follow and listen to Politics at Sam & An's wherever you get your podcasts.

0:56Hi there, Gareth Barlow here on This Is Why. Good to have you with us. Just a quick warning that this episode is about rape, so do take care while listening. A judge decided that three teenage boys with 10 rape convictions between them should not receive prison sentences. The two separate attacks on two teenage girls were filmed by the boys on their phones, which they then shared online. The judge's decision was described by one of the victims of being like a rock straight in the face. And it's a decision that will now be reviewed. Here's the Prime Minister. I think it's a really distressing case.

1:33I find it distressing as a politician. I find it distressing as a father. So I can announce that that case now will go to the Court of Appeal and that is clearly the right outcome. Instead of jail sentences, the boys were given youth rehabilitation orders, with the judge saying he wanted to, quote, avoid criminalising these children unnecessarily. Well, rape survivor and campaigner Giselle Pellico has been speaking to Cathy Newman on Sky News.

2:04She's saying that she doesn't understand the attitude of the young men who think it's not serious because they're only 13 or 14, that they're responsible for that act. She asks where are the parents, how they educated their children. So why was this court decision reached in the first place? And what will happen next, both legally and politically? Rob Howe is our political correspondent in Westminster. Rob, talk to us about what's happened today, because the Attorney General had 28 days to make a decision. But Richard Hermer, Lord Hermer, moving far faster than that. What did we learn from his comments?

2:42Yeah, it was less than a week after they confirmed that these requests to have this sentence, this case referred onto the Court of Appeal had come in, that you got this decision from Richard Hermer. I think what you got from his comments was basically that he realised the gravity of the situation, the seriousness of the case. And we wait to see whether it is an unduly lenient sentence, but the perceptionists could have on other cases going forward. And I think that's what's caused so much pressure. That's what's caused so much anger really across the political board is the risk that, yes, there's always got to be a focus to an extent on rehabilitation, especially when you're dealing with youth offenders.

3:19But at the same time, you've got to think about the people that might be wondering whether to come forward and report a sexual crime, a rape that they have experienced, looking at something like this and feeling that the case isn't going to be taken seriously. So, look, I think that's probably why Richard Hermer, the Attorney General, has acted so quickly. The Attorney General's office sits at this slightly weird cross-section between politics and the law. And you do sort of see that cross-section playing out when it comes to the unduly lenient sentence scheme. These referrals aren't made just because there's lots of political pressure to do it.

3:51There has to be a reason. The Attorney General's office does look through the sentencing remarks and looks through the guidelines and matches them up and checks on case law and things like that as well. but in situations like this where you've got a very high profile case where we have heard directly from one of the victims and their family that sort of political pressure clearly adds impetus for the attorney general's office to move quickly and that's what they've done and we'll get the final decision from the court of appeal talk to me about the government's view on youth rehabilitation reform and also punishment because there's a white paper being published on this What's being proposed?

4:29Yeah, we had the White Paper about a week or two ago. In terms of how it would apply to a case like this, actually the sort of top lines from the White Paper are about keeping custodial sentences for the most serious of crimes, but generally, actually, the thrust of the strategy is to try and move away from using custodial sentences where possible and a focus more on intervening early, keeping young people out of the judicial system in the first place, and then a focus on prevention and rehabilitation to stop re-offending as well. There are statistics in there showing that young people that go into youth offender institutions are generally more likely to come out and re-offend.

5:10So that is why rehabilitation orders like the ones given to the three boys in this Hampshire rape case are sometimes favoured because when you're viewing this through the lens of rehabilitation and making sure people don't re-offend further down the line actually the data seems to suggest that those kind of rehabilitation orders are more effective than youth offender institutions or custodial sentences. Clearly that has to be balanced though with the deterrent effect and the message that sentences like this send out and also the aggravating factors of certain cases as well. We know a knife was used for instance in one of the incidents.

5:48We know that it was filmed as well and that is what the court of appeal will look at. These three boys are well within the bracket for criminal responsibility. They are responsible for their actions in the eyes of the law. And that's one of the other elements that the government wants to see, is parents being more responsible for some of the actions of their children. We saw the Justice Secretary, Deputy Prime Minister David Lammy talk about the fact that he wanted to see more parenting orders being brought back in. Yeah, it's an important tool when it comes to persistent offending. It means that courts can order, compulsory cooperation with social services and psychologists, monitoring of phones and things like that.

6:23You could imagine more use of this would mean that there was rehabilitation order, but then tougher parental orders put on top of it as well. I guess when it comes to this specific case, the criticism is that actually the balance and the emphasis on rehabilitation was maybe favoured too much over the punitive element of it, of there being a custodial sentence. one thing though in the broader white paper that involves the parenting orders that might have been relevant is that the government wants to set up a new network of secure school youth jail settings to try and gradually replace the youth offender institutions which it says too often are failing young people the logic is if you have smaller style regional youth jails with more of a rehabilitation maybe there'll be more confidence that these facilities can actually rehabilitate young people.

7:12And just finally, Rob, we can't talk about this case without also talking about social media. One of the aggravating factors of this was that these instances were filmed and then shared online. And this is all set then against the backdrop about what we do with social media for young people under 16. There is a big to-ing and fro-ing, I think. Initially, you had the government saying that it wasn't in favour of a social media Australian-style ban. And now all the noises appear to, sounds to me anyway, that they may be rolling the pitch for something like that. We've, of course, got the imminent end of the consultation around this.

7:47And the government is briefing they should be issuing a fairly quick response to that consultation. We know it's applicable to this case because the victims, the perpetrator basically lured the victim to meet on Snapchat. The offences were filmed for the purposes of putting it out on social media. as well. I think the Conservatives feel that by going quite hard in favour of a ban, they have maybe stolen a march on the government who looked more reluctant to do it. But if we are going to get to that point, clearly we get to all of the debates around the feasibility of enforcing it. When you see crimes with such explicit links to social media like this one, doing anything must be better than doing nothing.

8:30Joining us from our Westminster studio, our political correspondent Rob Powell there.

8:41I'm Sam Coates from Sky News. And I'm Anne McElvoy from Politico. Downing Street drama, leadership battles and policy U-turns. We're on it before it breaks. We take you straight into the rooms where the real political conversations are happening. Smart Insight, clear analysis in your feeds by 7.45am. So you start your morning fully brief for the day ahead in British politics. Hit follow and listen to Politics at Sam & An's wherever you get your podcasts.

9:16Susan Edwards, Professor of Law at Northumber University. The sentence that was originally passed at Southampton Crown Court, just explain the details of that and notably the reasoning that the judge gave for the decision that he made. Well, I'm going to be very careful here and just recite what we do know clearly. One 15-year-old received a three-year youth rehabilitation order alongside 180 days of supervision for the charges of rape and the offences of indecent images. If you look at Section 13 of the Sexual Offences Act 2003, for someone under the age of 18, of course, we're talking about under 16s here, the sentence in a Crown Court could have been up to five years imprisonment.

10:00The sentences that have been given a derisory, the sentencing council, in my view, puts out both the aggravating and mitigating factors, the harm, the culpability, and it's up to the judge then to look at these factors and to balance these factors. And it seems that somewhere the whole question of the protection, the harm to the girls, disappears from view. And there's an over-concern and emphasis on the young boys in this case. You mentioned the Sentencing Council. For people that don't know what it is, to what degree does it confine judges in the sentences that they pass? The sentencing council is an independent body, and in my view, an important body, which looks at research and evidence around particular offences that it issues guidance on, and then actually puts out a series of guidance, which are not necessarily a statutory duty.

10:53They are what they say guidelines, and it's up to the judges to take into account these guidelines. And in this case, the judge took into account the mitigating but not the aggravating factors in respect of the harm that was perpetrated on the girls concerned. The original sentences included these rehabilitation orders. There is calls for tougher sentencing to be passed, custodial sentences to be passed. that would then see the boys in a youth offenders institute. What possibility is there for rehabilitation in those kind of settings? Well, it's the question not just of the boys being punished.

11:34It's a question of the girls being protected, of young girls having confidence to report to the police, of police and prosecutors to take up these cases. And the message that's been sent out by this case is that it is of no point whatsoever, as indeed the girls have said, of pursuing these cases and the whole confidence in the criminal justice system falls. Your point about rehabilitation within custody really needs to have resources. And we've been talking to the government about this for some time, about the resources that are needed, not only within the provision within youth custody, but within the adult regime system as well.

12:12But in terms of providing better courts, rape cases have to wait up to two years and the trauma that this creates for the victims and indeed for those awaiting trial. So it's more money. It's up to the government now. This case referred to the Attorney General, Lord Herma, through the unduly lenient sentencing scheme. What is that and how often is it playing a role in redetermining the outcomes of cases? The unduly lenient is such a vague term. And in many cases, the Court of Appeal will simply say it is not sufficiently lenient. So there's a sliding scale that can never be measured. I think the time has come now to put pressure on this.

13:01So maybe we need to revise the vagueness of the unduly lenient because yet again, it puts the power back into this case, the Court of Appeal and judges to determine what is lenient and what is not lenient. What should we expect from the Court of Appeal? It strikes me that they have various responses they could make. They could say that this isn't, to your point, unduly lenient. They could say that the sentencing is within the sentencing guidelines and that the judge on balance made the correct decision. Or they could say, look, we agree with the public outcry for these legal case reasons and we're going to impose harsher sentencing.

13:38What is your view of how the Court of Appeal will look to progress this? Having looked at the case in some detail, having also looked at the sentencing guidelines and the obligation of judges, having looked at the considerations that the judge had in this case and how both those factors on both sides, that the use of the boys and the need to protect the girls was applied. it seems to me that I think the Court of Appeal will come down on the fact that a non-custodial sentence of itself is lenient. In this case, I think it's important that there will be a custodial sentence and I feel confident that the Court of Appeal will take that stance when they come to consider the case.

14:26We know the name of the judge in Southampton, but what about the Court of Appeal? Who exactly is making these decisions now? The Court of Appeal, three judges who will consider this, who those three will be, we don't know, it may be made clear in the next few days. And it is to be hoped that the court will be a balanced, balanced number of learned criminal judges, both criminal judges who are familiar with youth sentencing, and with issues around rape and sexual offences, because I think this is also part of the problem. So we need a fair panel to look at this case to come out with a fair and just result.

15:09Thank you for listening. You can hear Cathy Newman's full interview with Giselle Pellico on the Cathy Newman Show on Sky News from 7pm tonight. Watch it in full on the Sky News YouTube channel as well. That's it for today. We'll be back again tomorrow. Remember, you can get in touch with your thoughts on today's episode at why at sky.uk.

15:33I'm Sam Coates from Sky News. And I'm Anne McElvoy from Politico. Downing Street drama, leadership battles and policy U-turns. We're on it before it breaks. We take you straight into the rooms where the real political conversations are happening. Smart Insight, clear analysis in your feeds by 7.45am. So you start your morning fully brief for the day ahead in British politics. Hit follow and listen to Politics at Sam & Anne's wherever you get your podcasts.