If that is the sentence, why was there ever a trial?

Sentence has finally been passed on the two ten year old boys convicted in May at the Old Bailey for the "attempted rape" of an even younger girl. The judge, Mr Justice Saunders, decided that a three-year supervision order was the most appropriate way of dealing with them. A custodial sentence would be "counterproductive". Instead he was giving them "the assistance of trained social workers to help, guide and educate you. This will also help your family come to terms with what happened." He was talking about the boys' actions; but he might equally have been talking about the legal process itself.

In effect, this was the minimum possible sentence. The judge even told the boys that he accepted "that you did not realise how serious what you were doing was.'' If that is so (and I'm sure that it is) they would seem to have lacked the mental state necessary for the crime of rape (or attemped rape). Why, then, were they ever put on trial? The judge's words here fatally undermine the rationale for the prosecution. I wrote at the time that "it is hard to conceive of a more striking instance of the inappropriate sexualisation of children than the spectacle of two boys of primary school age put on trial at the Old Bailey for rape." The characterisation of what went on as "sexual", I argued, was an inappropriate imposition of adult concepts onto prepubescent children. This would now seem to be the judge's view too. It makes his decision - later backed by the Court of Appeal - to put the evidence before a jury even more puzzling than it was before.

By passing a non-punitive sentence, the judge has managed to undo at least some of the damage he caused by not halting the trial when he had an opportunity to do so. But no-one and nothing can undo the damage caused by the CPS's decision to prosecute in this case. Given that all sides appear to agree that a non-custodial sentence is the correct one - indeed, it now turns out that a custodial sentence was never even contemplated - it is plain that the decision to prosecute in the Crown Court, subjecting both the accused and, even more importantly, the victim, to the rigmarole of a full Old Bailey hearing was not only wrong but entirely unnecessary. In fact criminal proceedings of any kind were never the appropriate response to the events described in this case, and were not a necessary precondition to an intervention by social services on the boys' lives. It could, and should, have been dealt with informally.

Indeed, the judge seemed to acknowledge that the trial had constituted at least as serious an act of abuse of the victim as the attack. "Everyone will sympathise with her for what she has gone through" he said. "Not only what happened to her as the victim of these offences, but also to have to give evidence about them. "

Not only for what two ten year-old boys, too young to understand the issues of sex and consent on which the crime of rape is supposed to turn, did to her, in other words. But also for what the Crown Prosecution Service, whose officials should have understood the implications and which is supposed to act in the public interest, did to her. In my view, their offence against the child victim was by far the worse. It is certainly much harder to forgive.

As I've written before and no doubt will again, Keir Starmer's CPS is an organisation in need of urgent reform.


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