R v BNE & Anor [2025] EWCA Crim 460

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.[2025] EWCA Crim 460
IN THE COURT OF APPEAL
Venue Royal Courts of JusticeDate Friday 28 March 2025
Strand
London
WC2A 2LL
Before
LORD JUSTICE STUART-SMITHMR JUSTICE BRYANHIS HONOUR JUDGE ANDREW LEES(Sitting as a Judge of the CACD)
Between
REXCrownV
Between
BNE and BNY___________________MR M FORREST appeared for Applicant 1.MS J BAGGS appeared for Applicant 2._________APPROVED JUDGMENT
[1]On 5 August 2024, an order was made under section 45A of the Youth Justice and Criminal Evidence Act 1999, whereby no matter relating to Applicant 1’s daughter shall be published that would be likely to identify them to the public as being concerned in these proceedings. This order lasts for their lifetime. This judgment has accordingly been anonymised, with the two applicants, who are twin sisters, being referred to as “Applicant 1” and “Applicant 2”.[2]On 5 August 2024 Applicant 1 (then aged 18) pleaded guilty, in the Magistrates’ Court to an offence of Taking a Child Without Lawful Authority and Assault by Beating of an Emergency Worker, and was committed for sentence pursuant to section 14 of the Sentencing Act 2020.[3]The offence of Taking a Child Without Lawful Authority was remitted back to the Magistrates’ Court (it having transpired that Applicant 1 had pleaded guilty to an offence to which she had a statutory defence), and having vacated her plea to that offence, on 29 November 2024, in the Magistrates’ Court, Applicant 1 (then still aged 18) pleaded guilty to an offence of Taking a Child in Care Without Lawful Authority, contrary to section 49 of the Children Act 1989.[4]On 26 November 2024, in the Magistrates’ Court, Applicant 1 also pleaded guilty to 2 further offences of Assault by Beating of an Emergency Worker. Thereafter, and also in the Magistrates’ Court, Applicant 1 (by now aged 19) was committed for sentence pursuant to section 14 of the Sentencing Act 2020 in respect of the two further offences of Assault by Beating of an Emergency Worker and, pursuant to section 20 of the Sentencing Act 2020, in respect of the offence of Taking a Child in Care Without Lawful Authority.[5]On 28 February 2025 in the Crown Court at Kingston Upon Hull, Applicant 1 was sentenced by His Honour Judge Menary KC to 4 months’ imprisonment in respect of Taking a Child in Care without Lawful Authority, and 4 months’ imprisonment in respect of each of the three Assaults by Beating of an Emergency Worker each consecutive to each other and to the Taking of a Child in Care Without Lawful Authority, a total sentence of 16 months’ imprisonment. By virtue of having been convicted of an offence during the currency of a 12-month community order imposed in the Magistrate’s Court on 1 May 2024 for offences of theft and assault by beating, Applicant 1 was also in breach of that community order, which was revoked in the context of the custodial sentences passed.[6]On 5 August 2024 Applicant 2 (then aged 18), having pleaded guilty to an offence of Taking a Child Without Lawful Authority before the Magistrates’ Court, was committed for sentence pursuant to section 14 of the Sentencing Act 2020 and two offences of Assault of an Emergency Worker were sent for trial under sections 51(1) and (2)(b) of the Crime and Disorder Act 1998. Thereafter on 4 October 2024 in the Crown Court at Kingston Upon Hull, Applicant 2 pleaded guilty to one of the counts of Assault of an Emergency Worker, and the other such count was ordered to remain on the file in the usual terms.[7]On 28 February 2025, Applicant 2 (again by this stage aged 19) was sentenced in the Crown Court at Kingston Upon Hull by His Honour Judge Menary KC to 12 months’ imprisonment in respect of the Taking of a Child without Lawful Authority and 4 months’ imprisonment consecutive in respect of the Assault by Beating of an Emergency Worker, a total sentence of 16 months’ imprisonment.[8]We will need to return to the sentences passed in the case of each of Applicant 1 and Applicant 2 as the sentence passed in each case should have been one of Detention in a Young Offender Institution and not, as passed, “imprisonment”.[9]The Applicants’ applications for leave to appeal against sentence have been referred to the Full Court by the Registrar who also granted Representation Orders for Counsel, Mr Forrest in the case of Applicant 1 and Ms Baggs in the case of Applicant 2.[10]Turnings to the facts of the Applicants’ offending. As already noted, the applicants are twin sisters. On 31 July 2024 the Family Court made a final placement order in respect of Applicant 1’s 9-month-old daughter. The following day (1 August 2024) Applicant 1 attended a final contact session with her daughter before she was to be adopted. This took place at a children’s hub and was supervised by Local Authority social workers.[11]During the contact session Applicant 1 appeared distracted. She was observed using her mobile telephone repeatedly and was agitated and nervous. She had been communicating with Applicant 2 to make plans to abduct her daughter. Applicant 1 asked Applicant 2 to arrange a taxi and a car seat. Applicant 1 took her daughter into the sensory room and then the kitchen in an apparent attempt to get away from the social workers. Soon after that Applicant 1 ran out of the building with her daughter in her arms. The social workers did not attempt to intervene due to previous concerns about Applicant 1’s aggressive behaviour. The police were called.[12]Applicant 1 met Applicant 2 and an unknown female on a nearby lane. The sisters took a taxi to Applicant 1’s address. Another female was waiting there for them. At 11:41 am the sisters took another taxi and the taxi driver noted they were with a baby in a car seat. The Applicants told the taxi driver that they intended to travel to London from Leeds.[13]At 15:40 on 2 August 2024 police found the Applicants in Leeds. Applicant 2 had her niece in a baby holder on the front of her torso. PC Bourne told Applicant 2 that she needed to allow them to take the child from the holder. Applicant 2 screamed that they would not take the baby. Officers were able to safely remove the child. Applicant 2 was arrested but she became violent when placed into handcuffs. She kicked out multiple times towards officers. After being conveyed to a cell at Elland Road police station Applicant 2 kicked PC Tomlinson in the chest area and attempted to bite another officer. She was placed in leg restraints and a spit and bite guard was put over her.[14]Applicant 1 was arrested at the same time. She made verbal threats towards PC Kilgallon and attempted to kick and push the officer whilst being searched. After arriving at Elland Road police station Applicant 1 refused to get down from the step of the van. When PC Kilgallon pulled her from the step Applicant 1 kicked her in the torso. Parva spray was deployed and Applicant 1 was restrained.[15]On 25 November 2024, Applicant 1 attended the front desk at Clough Road Police Station in relation to a breach of bail. Officers attended and arrested her. Applicant 1 became upset when her mobile telephone was taken from her hand. She kicked out towards officers, spat at them, and attempted to bite them. When placed into a cell she grabbed hold of PC Revill’s wrist and scratched at her arm with her nails. Officers left the cells when she tried to remove her electronic tag. Concerned that she might use the device to harm herself, they asked her to give them the tag through the hatch. Applicant 1 refused and so officers went back into the cell to retrieve it. She kicked PC Revill to the stomach and pushed or hit PC Tutten to the back as he went to leave the cell.[16]Both Applicants had previous convictions. Applicant 1 had three convictions for eight offences between 2022 and 2024, two were battery matters dated 1 May 2024 and four were assault on emergency workers dated 19 April 2022, all being when Applicant 1 was a youth. On 1 May 2024 she was sentenced to a 12-month community order in respect of battery offences committed at the same time as a shoplifting from Home Bargains, which community order she was therefore in breach of, by virtue of the offences for which she stood to be sentenced.[17]Applicant 2 had five convictions for 11 offences, including five offences against the person between 2022 and 2023, including two assaults on emergency workers, all being when she was a youth. She was also facing a charge of battery with a trial scheduled for June 2025.[18]There were pre-sentence reports in relation to each of the applicants. In relation to Applicant 1, the author noted that she had previously stated to professionals that she considered that her behaviour was justified and she felt that violence was an appropriate response to difficult situations, with her considering that it is both acceptable and reasonable. Whilst only 18, she had established a pattern of violent offending. She had led a troubled childhood and had been sexually assaulted on multiple occasions by numerous males. The father of her child was on remand for attempted murder and there were concerns he was involved in criminality at the highest of levels. It appeared that despite abuse from him she remained in a relationship with him. She had absconded to Birmingham before her due date to avoid her baby being taken into foster care at birth, and she had given birth under a false name, but had been discovered. As for her absconding with the baby on her final contact visit, this was the day after the Family Court had ruled that her baby would be adopted, and she was understandably upset by this decision. She suffers from depression and had threatened to commit suicide, and also attempted to throw herself down the court stairs when the adoption decision was confirmed.[19]Applicant 1 was identified as immature for her age, and the toolkits identified her as a medium risk of reoffending and low risk of serious recidivism, which the author of the pre-sentence report considered grossly underestimated her risk of reoffending. The author assessed her as a very high risk of serious harm to children, specifically her daughter and any future children she might have, as well as being a high risk of serious harm to the public including emergency workers. The author assessed that given that Applicant 1 had continued to offend whilst under probation supervision, and of a significant nature, her risk was unmanageable in the community and that a custodial sentence was necessary to manage the risk posed. That remained the author’s assessment in a subsequent updated probation progress report.[20]The same probation officer also provided a pre-sentence report in respect of Applicant 2. In interview with the author of the pre-sentence report Applicant 2 stated that she did not feel that she had done anything wrong. However, the author noted inconsistencies in her account in this regard. Applicant 2 also considered that the Court process in relation to Applicant 1’s daughter was unfair. Like Applicant 1, Applicant 2 had been noted in previous reports as showing a total disregard and lack of concern in respect of her previous offending behaviour including violent offending, and she often blamed her victims. Her broader attitude to offending was that if she was disrespected or challenged she would not accept this and would respond negatively either by way of verbal aggression or, if threatened, she would be likely to show violence back. She placed blame on the police officers she had assaulted as she considered that they had not listened to her wishes. She too had had a troubled childhood with concerns of neglect and physical and sexual abuse, and had also been sexually assaulted in multiple occasions by numerous males. She was currently in an on/off relationship with a man who was currently on remand for a section 18 offence.[21]On risk tools basis, her risk of reoffending within 2 years was assessed as high, but was assessed as at low risk of serious recidivism which the author also considered to be an underestimation of the risk, and the risk of reoffending could be considerably higher. She was assessed as high risk of serious harm to children, specifically her niece and younger siblings, as well as any other children she might have regular contact with, and a serious risk of harm to the public including police officers. The author felt unable to argue against custody, and considered that the risk of serious harm was too high to be managed in the community.[22]In his sentencing remarks the judge identified that it was a distressing, sad and difficult case arising out of the forced adoption of Applicant 1’s daughter. He identified a degree of planning to the abduction and concluded that Applicant 2 was happy to assist as she considered that the adoption was unfair and unjustified. He identified that each Applicant had a number of previous convictions for assaulting emergency workers. In relation to Applicant 1, he noted the maximum sentence for taking a child in care without lawful authority was 6 months, which he took as the appropriate sentence at trial, reducing it to 4 months after full credit for guilty plea. In relation to the assaults on emergency workers he noted that the serious aggravating factor was that Applicant 1 had relevant and previous convictions for doing exactly the same thing, and that the sentence would have been 4 months at trial increased to 6 months as the assaults were on emergency workers, reduced back down to 4 months after full credit, with 4 months’ custody on each of the three such offences consecutive, a total sentence of 16 months’ custody, expressed as imprisonment.[23]In relation to Applicant 2, and the offence of taking a child without lawful authority, the judge referred to the case of The Queen v RH [2016] EWCA Crim 1754 and indicated that a sentence in the range of 18 months’ to 5 years’ custody as the child was taken away from the centre and there was a lawful court order in place, and having regard to the Applicant’s age and the relatively unsophisticated nature of the attempt, and the relatively short period of the abduction, with the result that he considered the appropriate sentence at trial would be one of 18 months’ custody, 12 months after full credit. For the assault on an emergency worker a 4 months’ consecutive sentence was imposed, the judge therefore passing a total sentence of 16 months’ custody expressed as imprisonment.[24]The grounds of appeal against sentence advanced by Mr Forrest on behalf of Applicant 1 are(1) that the starting point of 6 months for each charge of assault upon an emergency worker was too high,(2) the judge erred in failing to take into account what is characterised as Applicant 1’s strong personal mitigation and(3) that the judge erred in making every charge consecutive to one another as opposed to each series of charges, with the result that the aggregate sentence of 16 months’ imprisonment was manifestly excessive.[25]The grounds of appeal against sentence advanced by Ms Baggs in relation to Applicant 2 are(1) that the judge placed the offending too high on the guidance given in R v RH,(2) took a starting point that was too high for the offences of child abduction and assault upon an emergency worker and(3) there was significant disparity between the sentence imposed for Applicant 1 and that imposed on Applicant two in relation to the central offending of abducting Applicant 1’s child, it being submitted that:
“[Applicant 2] ought properly to have been sentenced to the same term of imprisonment as [Applicant 1] given their offending arose from the same factual circumstances. If anything [Applicant 1’s] culpability was greater than [Applicant 2’s] culpability because she was party to the proceedings within the Family Court and had a better understanding of the effect of the Family Court order.”
[26]Reliance is also placed on the fact that Applicant 1 removed the baby from the children’s centre whilst Applicant 2’s involvement followed afterwards and stemmed from the actions of Applicant 1.[27]We consider first the appropriate sentence in respect of the assaults upon emergency workers. Each of Applicant 1 and Applicant 2 have significant previous convictions for such offences which is, as the judge rightly recognised, a serious aggravating factor. However, the seriousness of the offending was also increased as a result of the entrenched and inappropriate attitude of each of Applicant 1 and Applicant 2 to the police, and their tendency to regard it as an acceptable, appropriate, and reasonable approach to respond with violence towards the police when challenged, and in circumstances in which each of the Applicant 1 and Applicant 2 represented an ongoing high risk of harm to emergency workers. In such circumstances a sentence of 6 months’ custody at trial, 4 months’ custody after full credit, in respect of such an assault, was not manifestly excessive. Equally there can be no valid criticism either in terms of approach, or when considering totality, in relation to the passing of such a sentence in respect of assault on an emergency worker on a consecutive basis given that it represented discrete and separate offending to the child abduction.[28]In relation to Applicant 1, and whilst the experience of a final adoption order being made the previous day was no doubt extremely distressing, we do not consider that the mitigation available to Applicant 1 to have been strong, and we do not consider it would justify a downward adjustment in relation to the offence of taking a child in care without lawful authority which, by its very nature, was likely to be an offence committed by someone in circumstances similar to those of Applicant 1. We do not consider that there is any arguable ground of appeal in relation to that offence and the sentence passed in that regard.[29]We consider there is more force, however, in relation to the ground relating to the passing of three consecutive sentences in respect of the assault upon emergency workers. The judge made no express reference to a consideration of totality, and whilst the assaults represented two separate incidents, we consider that it was inappropriate not to make a reduction in respect of such sentences to arrive at a sentence that was just and appropriate having regard to the totality of the offending, with the result that the total sentence passed was manifestly excessive. A just and appropriate sentence to reflect the totality of the offending could most obviously be achieved by making one of those sentences concurrent.[30]We grant Applicant 1 leave to appeal against sentence.[31]Both applicants were aged 18 at the date of conviction. The Judge erred by sentencing each of them to “imprisonment” in his Sentencing Remarks. The imposition of a sentence of imprisonment on a person aged under 21 is prohibited by section 227 of the Sentencing Act 2020, therefore in this case the sentence was wrongly pronounced as a sentence of “imprisonment” and was thus unlawful, and should be rectified to record that the correct sentence was one of Detention in a Young Offender Institution.[32]In relation to Applicant 1 we accordingly:-(1) On Committal 16XP1457824:- (a) Quash the sentence of 4 months’ imprisonment in respect of the offence of Taking a Child in Care Without Lawful Authority, and substitute a sentence of 4 months’ detention in a Young Offender Institution. (b) Quash the sentence of 4 months’ imprisonment in respect of the offence of Assault by Beating of an Emergency Worker, and substitute a sentence of 4 months’ detention in a Young Offender Institution, consecutive.(2) On Committal 16XP2207624:- (a) On Charge 1, quash the sentence of 4 months’ imprisonment in respect of the offence of Assault by Beating of an Emergency Worker, and substitute a sentence of 4 months’ detention in a Young Offender Institution, consecutive. (b) On Charge 2, quash the sentence of 4 months’ imprisonment in respect of the offence of Assault by Beating of an Emergency Worker, and substitute a sentence of 4 months’ detention in a Young Offender Institution, concurrent.[33]Accordingly the total sentence in relation to Applicant 1 is now 12 months’ detention in a Young Offender Institution. To that extent, Applicant 1’s appeal against sentence is allowed.[34]Turning to the remaining grounds of appeal against sentence of Applicant 2. We do not consider that there is anything in the disparity argument as such, as like is not being compared with like. The offence of Taking a Child Without Lawful Authority is a considerably more serious offence than that of Taking a Child in Care Without Lawful Authority, and we reject the suggestion that Applicant 2 ought to have been sentenced to the same term of imprisonment as Applicant 1. That would, on any view, have been an unduly lenient sentence in the case of Applicant 2.[35]However, we consider there is more substance in the argument that the judge failed to have sufficient regard to the lesser role of Applicant 2 and the fact that Applicant 2’s role followed on from the primary abduction itself, albeit that for the plan to come off, Applicant 2 had to be there with the car seat and have arranged the taxi. In such circumstances we consider that the sentence passed of 12 months’ custody (18 month’s custody before credit) that was passed in relation to Applicant 2 was manifestly excessive on the very particular facts of the present case.[36]We grant Applicant 2 leave to appeal against sentence. We consider the appropriate sentence in respect of Taking a Child Without Lawful Authority, on the particular facts of the present case, is one of 12 months’ detention at trial, 8 months’ detention after full credit. Once again the sentences of imprisonment were unlawful, and sentences of detention in a Young Offender Institution stand to be substituted.[37]In relation to Applicant 2:-(1) On 16XP1457824 we quash the sentence of 12 months’ imprisonment in respect of Taking a Child Without Lawful Authority and substitute a sentence of 8 months’ detention in a Young Offender Institution.(2) On the indictment we quash the consecutive sentence of 4 months’ imprisonment in respect of the Assault by Beating of an Emergency Worker and substitute a consecutive sentence of 4 months’ detention in a Young Offender Institution.[38]Accordingly the total sentence in relation to Applicant 2 is now 12 months’ detention in a Young Offender Institution. To that extent, Applicant 2’s appeal against sentence is also allowed.