Beyond the DBS: When Sentencers May Extend Employment Prohibitions through SHPOs – A Commentary on Thorpe v R [2025] EWCA Crim 1007

Introduction

Thorpe v R concerns the scope of a Sexual Harm Prevention Order (SHPO) imposed after the appellant’s conviction for attempting to incite a child under 13 to engage in penetrative sexual activity. Although most of the SHPO’s terms were unchallenged, paragraph 11—prohibiting the appellant from seeking or undertaking any employment (paid or unpaid) likely to bring him into unsupervised contact with children under 16—was attacked as duplicative of, or in conflict with, the Disclosure and Barring Service (DBS) regime established by the Safeguarding of Vulnerable Groups Act 2006 (SVGA).

The Court of Appeal (Criminal Division), constituted by Mr Justice Bourne, had earlier dismissed two unrelated appeal grounds and reserved judgment on this discrete issue. Ground 3 therefore squarely raised the interplay between the statutory DBS barring system and discretionary SHPO conditions. The case thus presents fresh authority on when sentencers may go “beyond the DBS” to impose additional employment-related prohibitions.

Summary of the Judgment

The Court dismissed the appeal and upheld paragraph 11 of the SHPO.
It held there was no conflict between paragraph 11 and the SVGA regime; both can co-exist provided the SHPO term is reasonably necessary to address risks outside the statutory concept of “regulated activity”.
The Court clarified that automatic DBS barring is indeed triggered by a conviction (or attempt) under s. 8 Sexual Offences Act 2003, countering a submission that it might not apply because no “real child” was involved.
Nevertheless, because activities falling outside “regulated activity” (e.g., yacht crew roles) might still expose children to harm, a properly tailored SHPO term may legitimately extend employment prohibitions.
The sentencing judge’s findings of danger—rooted in grooming behaviour, indecent imagery, and disturbing internet searches—demonstrated a pressing need for such a safeguard. Hence, paragraph 11 survived the proportionality test laid down in earlier authorities.

Analysis

1. Precedents Cited and Their Influence

R v Sokolowski [2018] 1 Cr App R (S) 30 – Established that a SHPO must be necessary, proportionate and must not conflict with statutory notification schemes. The Court relied on this to frame the central inquiry: is paragraph 11 “necessary” and non-conflicting?
R v Smith [2012] 1 Cr App R (S) 82 – Analysed the older Sexual Offences Prevention Order (SOPO). It warned against terms that simply mirror existing barring regimes unless an additional, demonstrable risk exists. The Court used Smith’s guidance (esp. para 25) to test whether paragraph 11 captures risks outside the SVGA.
R v Lewis [2016] EWCA Crim 1020 – Reiterated the need for advance drafts of SHPOs and careful judicial scrutiny. Lewis underscored process: here, the Court acknowledged the sentencing exercise “could and should” have explored the issue in more depth, but ultimately found no fatal procedural flaw.
R v Hanna [2023] EWCA Crim 33 – Confirmed modern principles on SHPO drafting post-Lewis. Hanna reinforced the idea that SHPOs may complement the DBS regime where specific facts justify further protective measures.

2. Legal Reasoning of the Court

Key Question: Does paragraph 11 impermissibly duplicate or conflict with the SVGA-DBS scheme, or is it a necessary adjunct addressing residual risk?

Automatic DBS barring confirmed.
• Sections 2–3 SVGA, Schedule 3, and the 2009 Prescribed Criteria Regulations automatically place a person convicted (or who attempted to commit) an offence under s. 8 SOA 2003 on the children’s barred list.
• The Court rejected the prosecution’s contention that automatic barring might not apply because the “child” was fictional; the statutory trigger is the mere fact of conviction for the listed offence.
No wider reach through the verbs “seek or undertake”.
• Section 7 SVGA already makes it an offence for a barred person to seek or offer to engage in regulated activity, so paragraph 11 is not broader merely because it uses similar language.
Potential gaps in the DBS regime.
• “Regulated activity” (Sch 4 SVGA) focuses on roles involving frequent or intensive contact, or specific contexts (e.g., schools, care settings). Ad-hoc or occasional roles—illustrated by the appellant’s past yacht crew work—may fall outside.
• Paragraph 10 of the SHPO restricts unsupervised contact with children, but the Court reasoned a defendant might nevertheless take employment giving opportunistic access while claiming oversight or exceptions. Paragraph 11 pre-emptively blocks the employment avenue itself.
Necessity & proportionality assessment.
• Dangerousness findings: grooming behaviour, violent sexual search terms, troubling attitude.
• Given those findings, the risk of opportunistic employment-based contact with children is “real”.
• Because the sentencing hearing did not fully analyse the overlap question, the Court scrutinised it afresh. On the evidence, it could not say the judge’s inclusion of paragraph 11 was not reasonably necessary.
No actual conflict.
• A barred individual breaching SVGA faces criminal sanctions; the SHPO adds an independent contempt/criminal liability if breached.
• Parliament did not intend the SVGA to render SHPOs otiose; both schemes can operate “in tandem”, echoing Sokolowski.

3. Likely Impact on Future Cases

Sentencing Practice: Prosecutors and judges must articulate the specific residual risk beyond the DBS scheme when proposing employment-related SHPO terms. However, Thorpe confirms that such terms remain available.
Drafting Discipline: Although the term survived, the Court’s criticism that the issue “was not explored … in as much detail as it could and should have been” signals closer scrutiny ahead. Detailed evidence of potential non-regulated activities will be essential.
Wider Reach of SHPOs: The case legitimises SHPO conditions targeting any employment “likely” to cause unsupervised contact, not just regulated activity. This may prompt creative applications in areas such as gig-economy delivery roles, private tutoring platforms, or recreational clubs.
Guidance on Appellate Review: The Court’s approach—asking whether it could “conclude that the risk was not sufficient”—sets a deferential yet meaningful review standard: appellants must show clear disproportionality or redundancy.

Complex Concepts Simplified

SHPO (Sexual Harm Prevention Order): A civil order made in criminal proceedings to prevent sexual harm. Breach is a criminal offence (max 5 years’ imprisonment).
SVGA 2006 & DBS: Statutory scheme under which the Disclosure and Barring Service keeps “barred lists”. Being on the children’s list makes it a crime to engage (or seek to engage) in “regulated activity” with children.
Regulated Activity: Defined in Schedule 4 SVGA; broadly, work involving frequent/intense or overnight responsibility for children (teaching, care, driving them, etc.). One-off or incidental contact may fall outside.
Automatic vs Discretionary Barring: “Automatic” means the DBS must place the individual on the barred list following conviction for certain offences; “discretionary” allows representations.
Proportionality Test: A SHPO term must be limited to what is necessary to manage the identified risk; mere belt-and-braces duplication is discouraged.

Conclusion

Thorpe v R provides authoritative clarification on the boundary line between DBS barring and SHPO employment restrictions. The Court of Appeal confirms that:

An SHPO may legitimately bar a defendant from employment likely to bring unsupervised contact with children even where the SVGA imposes an automatic bar, provided there is a demonstrable risk outside the statutory definition of regulated activity;
The existence of the DBS regime does not, by itself, create a conflict or preclude supplementary SHPO conditions;
The necessity and proportionality of such terms must still be carefully evidenced and justified at first instance.

The decision therefore equips courts with a flexible but bounded power to plug protection gaps, and warns practitioners that rigorous analysis—not a “safety first” reflex—remains the lodestar when crafting SHPOs. As safeguarding law evolves alongside diverse modern employment contexts, Thorpe will likely stand as the leading precedent for reconciling dual protective mechanisms.