The Court of Appeal's decision in R v X Y Z (2026) should never have been necessary.
It arose only because the original sentencing exercise represented one of the most extraordinary examples in recent years of judicial sympathy being directed towards perpetrators of sexual violence rather than the girl whose autonomy they had systematically destroyed. While sentencing always requires balancing competing considerations, R v X Y Z demonstrates the danger of allowing empathy for offenders, particularly young male offenders, to eclipse the fundamental purposes of criminal justice.
For feminist legal scholars, the case provides a striking contemporary illustration of philosopher Kate Manne's concept of "himpathy": the disproportionate sympathy society extends to male perpetrators of violence, particularly sexual violence, often at the expense of women and girls who suffer that violence. The original sentencing remarks of HHJ Rowland, and the subsequent intervention by the Court of Appeal, expose the continuing influence of patriarchal assumptions within legal decision-making, even where the statutory framework points decisively in the opposite direction.
The Original Sentence
The defendants were convicted of exceptionally serious sexual offences against vulnerable children. Their offending involved coercion, humiliation and sustained abuse, committed against victims whose youth and vulnerability lay at the very heart of the criminality. Children were lured to the locations whereby they were then assaulted, gang-raped, brutalised and humiliated repetitively.
The welfare principle, rehabilitation and reduced culpability of children are deeply embedded within English criminal law. But recognising childhood does not require minimising harm. The Sentencing Council explicitly states that where children commit offences of exceptional seriousness, substantial custodial sentences may still be required. Youth does not erase gravity. The difficulty with the original sentencing exercise was not that welfare was considered. It was that welfare appeared to overwhelm every other sentencing objective and the victim became almost invisible.
Yet the original sentencing was an exercise that appeared less concerned with the devastating consequences of those offences than with the future prospects of the offenders themselves. HHJ Rowland repeatedly emphasised their previous good character, educational prospects, family support and the potentially life-changing consequences of imprisonment. He stated he did not wish to "criminalise children unnecessarily". The sentencing remarks dwelt extensively upon the damage custody might inflict upon these young men, the interruption to education, the stigma of conviction, the effect on future employment and rehabilitation. The sentencing failed to remember that these very matters have already impacted the victims. They will likely carry this trauma with them throughout their life, impacting their ability to have normal relationships, perhaps to go out in public, to trust. Their trauma will most likely affect their ability to focus on their education and their future. But this was not the consequences of their own actions, this was thrust unto them.
Whilst the matters are not legally irrelevant - youth sentencing rightly requires judges to consider welfare and rehabilitation, but these principles do not exist in isolation. They must be balanced against the seriousness of the offending, the protection of the public, denunciation of criminal conduct and the profound harm inflicted upon victims. Welfare cannot become a mechanism through which exceptionally grave offending is effectively discounted. The concern was not merely that the sentences were lenient. It was that the sentencing remarks appeared to centre the emotional experience of the perpetrators while relegating the victim's suffering to the background.
Himpathy in Action
Kate Manne coined the term himpathy to describe "the excessive or inappropriate sympathy extended to male perpetrators of sexual violence over their female victims." Importantly, himpathy is not simply about being sympathetic to offenders. Criminal courts should recognise the humanity of every defendant. Rather, himpathy emerges when sympathy becomes asymmetrical. When public discussion shifts from what the offender did to what punishment might do to him. When attention turns from the victim's trauma to the offender's future. When accountability is diluted by concern for the perpetrator's promise, intelligence or potential. HHJ Rowland's remarks exemplified precisely this phenomenon. The sentencing exercise repeatedly invited the public to imagine the tragedy of imprisoning these young men. Far less attention was devoted to the irreversible consequences experienced by the child whose bodily autonomy, dignity and psychological safety had been violated. The imbalance was striking. One cannot read the sentencing remarks without sensing that the defendants were perceived primarily as promising young men who had made catastrophic mistakes rather than individuals who had committed extraordinarily serious sexual offences. That framing matters. Language shapes justice. Judicial remarks carry immense symbolic authority. They communicate whose suffering counts.
The Court of Appeal Restores Proportionality
In allowing the Attorney General's reference, the Court of Appeal concluded that the original sentences were unduly lenient. Its reasoning reaffirmed fundamental sentencing principles that appeared to have been displaced at first instance. The Court emphasised the exceptional seriousness of the offending, the sustained nature of the abuse, the profound impact upon the complainant and the necessity for sentences that properly reflected those realities.
Crucially, the Court rejected any suggestion that youth alone could justify sentences falling so substantially below what the seriousness of the offences demanded.The appellate judgment restored proportionality and demonstrated that welfare is an important sentencing consideration, but not an overriding one.
Children who commit exceptionally grave crimes remain children. They also remain accountable. The Court of Appeal recognised that these propositions are not contradictory. They are the very balance the law requires.
Judicial Neutrality or Judicial Sympathy?
Following the appeal, wider judicial commentary stressed the importance of protecting judges from personal criticism and maintaining public confidence in judicial independence.
That principle is undoubtedly correct. Judges must be free to make unpopular decisions without fear of personal attack otherwise the system would simply not work and the rule of law would collapse in on itself. Yet judicial independence cannot become judicial insulation. Public confidence is strengthened, not weakened, when judicial reasoning is subjected to rigorous scrutiny. Criticism of legal reasoning is not an attack on judicial independence, but is an essential component of constitutional accountability. Sentencing decisions should attract public analysis, academic disagreement and principled criticism. Indeed, appellate review exists precisely because first-instance judges sometimes err.
The Court of Appeal's judgment itself demonstrates that judicial criticism is sometimes entirely justified.
Conclusion
The Court of Appeal did more than increase sentences. It reaffirmed that justice requires proportionality, accountability and equal moral concern for victims. The original sentencing remarks risked communicating that the greatest tragedy in the courtroom was the imprisonment of the offenders rather than the abuse suffered by the child before them. It exposes the persistence of cultural narratives that continue to shape legal responses to sexual violence. Too often, courts ask what imprisonment will do to promising young men and far less frequently do they ask what sexual violence has already done to girls.
Too often, offenders become protagonists in stories about lost futures. Victims become supporting characters. This asymmetry reflects exactly what feminist scholars have documented for decades. The legal system may profess neutrality, yet it frequently reproduces social hierarchies through apparently objective reasoning. Himpathy does not require explicit misogyny.It operates subtly. It emerges through selective compassion. Through whose futures are imagined. Through whose suffering is elaborated. Through whose humanity receives extended judicial attention.
That is precisely the inversion Kate Manne identifies as himpathy. The significance of R v X Y Z therefore extends well beyond the sentences ultimately imposed. It has become a case study in how patriarchal assumptions can infiltrate judicial reasoning, even where judges faithfully recite the correct legal principles. The original sentencing remarks demonstrated that judicial discretion is never exercised in a social vacuum. Decisions about culpability, mercy and punishment are inevitably influenced by broader cultural narratives about gender, sexuality and whose suffering commands empathy.
From a feminist perspective, the case illustrates why legal neutrality remains contested. Feminist legal theorists have long argued that the law does not merely reflect society; it actively constructs social meaning. When judicial rhetoric devotes greater attention to the aspirations, potential and rehabilitation of male offenders than to the autonomy, dignity and lifelong trauma of the female they abused, it sends a powerful normative message about whose futures are worthy of protection. Such messages extend far beyond the courtroom. They shape public confidence in the criminal justice system and influence whether victims believe the law is capable of recognising the gravity of sexual violence.
The Court of Appeal's intervention was therefore more than a correction of an unduly lenient sentence, it was an affirmation that the seriousness of sexual offending against children cannot be eclipsed by sympathy for those who commit it. Youth and rehabilitation remain fundamental considerations within English sentencing law, but they cannot become vehicles through which profound harm is minimised or accountability diluted. The appellate judgment restored the balance that the sentencing framework requires: one which recognises the welfare of child offenders while refusing to lose sight of the child whose rights were violated.
Perhaps the most revealing aspect of the litigation is what happened afterwards. Having received significantly harsher sentences following the Attorney General's reference, the defendants sought to appeal their convictions, something they had not attempted when the original, far more lenient sentences were imposed. While every defendant is entitled to exercise the right of appeal, the timing is striking. It suggests that the perceived injustice lay not in the convictions themselves, but in the loss of judicial leniency. The original sentencing exercise had afforded them extraordinary compassion; once that compassion was withdrawn, the convictions themselves became contested.
Ultimately, R v X Y Z is not simply about three offenders, one judge or one appellate decision. It is about the enduring operation of what Kate Manne describes as himpathy: the tendency to extend disproportionate sympathy to male perpetrators while requiring female victims to bear the burden of proving, and continually re-proving, the seriousness of the harm inflicted upon them. Although the Court of Appeal corrected the legal outcome, it could not erase the cultural assumptions exposed by the original sentencing remarks.
If the criminal justice system is to command the confidence of women and girls, it must move beyond formal equality and confront the implicit biases that continue to shape judicial responses to sexual violence. Justice cannot be measured solely by the length of a sentence. It is also measured by whose humanity is centred, whose suffering is acknowledged, and whose future the law chooses to protect. Until the courts consistently place the dignity and autonomy of victims at the forefront of their reasoning, feminist critiques of the criminal justice system will remain not only relevant, but indispensable.
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