Clarifying Custodial Sentencing for Young Offenders and Totality Principles in Multiple Offences

1. Introduction

This commentary examines the Court of Appeal’s decision in BNE & Anor, R. v ([2025] EWCA Crim 460), delivered on 28 March 2025 by Mr Justice Bryan. The case concerns two twin sisters—Applicant 1 and Applicant 2—who were involved in the abduction of Applicant 1’s daughter from a supervised contact session and subsequent assaults on emergency workers. Both sisters were originally sentenced to terms of “imprisonment,” each totaling 16 months, and appealed on multiple grounds, including the form of custody for under-21s, the application of totality in consecutive sentences, and the appropriate credit for their roles and personal mitigation.

2. Summary of the Judgment

The Court of Appeal allowed both appeals in part. It held that:

Under section 227 of the Sentencing Act 2020, persons under 21 must not be sentenced to “imprisonment” but to “detention in a Young Offender Institution.” The original sentences were therefore unlawful and were substituted accordingly.
In Applicant 1’s case, one of the three assault sentences on emergency workers was ordered to run concurrently, reducing her aggregate custody from 16 months to 12 months in a Young Offender Institution.
In Applicant 2’s case, the sentence for taking a child without lawful authority was reduced on appeal to 8 months’ detention after full credit (12 months at trial), with the assault sentence of 4 months consecutive, yielding a total of 12 months’ detention in a Young Offender Institution.

3. Analysis

3.1 Precedents and Statutory Framework

Sentencing Act 2020, section 227: Prohibits sentencing under-21s to imprisonment; mandates detention in Young Offender Institutions.
Sentencing Act 2020, sections 14 & 20: Provide for committal for sentence in magistrates’ court and Crown Court procedures.
Youth Justice and Criminal Evidence Act 1999, section 45A: Grants anonymity orders for vulnerable parties—here shielding the applicants’ identities.
Crime and Disorder Act 1998, section 51: Governs sending youth offences to the Crown Court.
The Queen v RH [2016] EWCA Crim 1754: Sets sentencing ranges for child abduction offences, especially where a lawful court order exists.

3.2 Legal Reasoning

The Court’s reasoning unfolded in two main strands:

Form of Custody: The judge’s use of “imprisonment” for 18- and 19-year-old defendants was contrary to section 227 of the Sentencing Act 2020. A sentence of imprisonment is reserved for adults 21 and over. The correct disposal for those aged 18–20 is detention in a Young Offender Institution. The Court therefore quashed and substituted each “imprisonment” term with the corresponding term of detention.
Totality and Concurrency:
- Applicant 1 faced three separate assault convictions on emergency workers. Although they were distinct incidents, the judge did not explicitly address totality when imposing consecutive sentences for all three. The Court held that to achieve a just and proportionate aggregate term, one of the assault sentences should run concurrently, reducing the combined term without undermining deterrent or public protection objectives.
- Applicant 2’s mitigation—her secondary role in the abduction—warranted a downward adjustment from the starting point derived from R v RH. The Court accepted that her culpability was appreciably less than Applicant 1’s and substituted a lower custody term accordingly.

3.3 Impact on Future Cases

This decision has three main implications:

Sentencers must ensure that defendants under 21 receive “detention in a Young Offender Institution” rather than “imprisonment.” Failure to do so renders the sentence unlawful.
The principle of totality remains vital when imposing consecutive sentences for separate offences, even where each offence is serious and involves previous convictions. An explicit totality analysis is required to avoid manifestly excessive aggregate sentences.
Courts should differentiate primary and secondary roles in joint offences, adjusting individual culpability and sentencing bands accordingly, especially in abduction cases involving lawful orders.

4. Complex Concepts Simplified

Detention in a Young Offender Institution: A custodial sentence for offenders aged 18–20, served in a facility tailored to younger inmates, focusing on education and rehabilitation rather than adult prison regimes.
Totality Principle: Requires appellate courts (and trial sentencers) to consider the overall length of custody when multiple offences are sentenced consecutively, ensuring the total is just and proportionate.
Concurrency vs. Consecutive Sentences: Concurrent sentences run at the same time; consecutive sentences run one after another. Balancing concurrency and consecutivity helps reflect the overall criminality.
Final Placement Order: A Family Court order granting long-term parental responsibility for a child to a local authority, often leading to adoption, triggering criminal liability if breached by taking the child.

5. Conclusion

The Court of Appeal’s decision in BNE & Anor, R. v ([2025] EWCA Crim 460) reaffirms critical sentencing principles:

Strict adherence to statutory rules on the form of custody for young offenders under 21.
The necessity of an explicit totality assessment when imposing consecutive terms.
The importance of calibrating sentences to individual roles and culpability in multi-defendant offences.

By clarifying these points, the judgment promotes consistency, legality, and fairness in the sentencing process, particularly for vulnerable young defendants and those facing multiple charges.