Substance Over Form: Polygraph and Relationship-Disclosure Conditions in SHPOs Are Positive Requirements Triggering s347A Safeguards — XBV, R. v [2025] EWCA Crim 1320

Introduction

This commentary examines the Court of Appeal’s decision in XBV, R. v [2025] EWCA Crim 1320 (England and Wales Court of Appeal, Criminal Division, 3 September 2025), an anonymised sexual offence sentencing appeal arising from the rape of a child under 13. The appellant, aged 19 at the time of offending, pleaded guilty in the Crown Court to sexual assault and later to rape of his 11‑year‑old half‑sister. He was sentenced to 8 years’ imprisonment with a 1‑year extended licence pursuant to the special custodial sentence for offenders of particular concern, together with ancillary orders including a Sexual Harm Prevention Order (SHPO).

Two grounds of appeal were advanced: (1) that the custodial sentence was manifestly excessive because the case had been mis‑categorised under the Sentencing Council guideline (the judge’s starting point said to be too high), and (2) that paragraph 6 of the SHPO—imposing a polygraph condition and a relationship‑notification obligation—was unnecessary, disproportionate, and insufficiently clear.

The Court dismissed the challenge to the term of imprisonment, but allowed the appeal in part by deleting paragraph 6 of the SHPO. The judgment is significant for three reasons:

It confirms that severe psychological harm can be assessed without expert evidence where compelling evidence appears in Victim Personal Statements, aligning with the Sentencing Council guideline.
It clarifies the proper approach to “breach of trust” where an offender relies on low intellectual functioning or “mental age”: emotional immaturity may mitigate but does not preclude a breach of trust finding where the offender knew the conduct was wrong.
Most importantly, it establishes that SHPO provisions drafted as “negative prohibitions” may in substance be positive requirements, thereby triggering the statutory safeguards in section 347A of the Sentencing Act 2020. Polygraph and relationship‑disclosure terms require evidence of suitability and enforceability, must be necessary, clear, and time‑bounded; breadth and vagueness render them oppressive and disproportionate.

Note on anonymity: the Court reiterated the reporting restrictions under the Sexual Offences (Amendment) Act 1992. This commentary avoids any identifying material.

Summary of the Judgment

Sentence affirmed: The index offence was properly categorised as Category 2A (rape of a child under 13) due to severe psychological harm and raised culpability by breach of trust. The judge’s post‑trial figure of 10 years (below the guideline range after mitigation) and final term of 8 years (20% plea credit) was not manifestly excessive. A 1‑year extended licence was lawfully imposed as the offender was of particular concern (Sentencing Act 2020, s278).
Harm: Severe psychological harm was supported by detailed Victim Personal Statements from the child and her father; expert evidence was not required.
Culpability: Despite a psychologist’s “mental age” assessment, the appellant understood the wrongfulness of the conduct; his role caring for younger siblings justified a breach of trust finding.
Aggravation and mitigation: The offence was sustained; involved oral sex; attempted oral sex; unprotected penetration; ejaculation; and occurred in the child’s bed, with an 8‑year‑old sibling also in the house. Mitigation included serious physical ill‑health (chronic kidney failure requiring dialysis), emotional immaturity, no previous convictions, and some prosecutorial delay.
SHPO quashed in part: Paragraph 6 (polygraph testing and “new relationship” notification) was set aside. The Court held these were positive requirements requiring compliance with section 347A Sentencing Act 2020, which had not been satisfied. In any event, the terms were overly broad, vague, and unlimited in time, hence neither necessary nor proportionate under section 343 and the principles in R v Parsons [2017] EWCA Crim 2163 and R v David [2023] EWCA Crim 1561.

Analysis

Precedents and Statutory Context

Sentencing Council Guideline (Rape of a Child Under 13): The guideline provides a structure of harm (Categories 1–3) and culpability (A–C), with Category 2A carrying a starting point of 13 years and a range of 11–17 years. It also states that while expert evidence may assist, it is unnecessary for findings of psychological harm, including severe harm; such findings may rest on Victim Personal Statements and judicial assessment.
R v Parsons [2017] EWCA Crim 2163: SHPO terms must be necessary for public protection and must be “effective, clear and realistic,” readily enforceable, and not oppressive or disproportionate. This case provides the clarity, necessity, and proportionality framework under section 343 Sentencing Act 2020.
R v David [2023] EWCA Crim 1561: The Court indicated that polygraph or “integrity screening” requirements are not per se incapable of inclusion in SHPOs, but any such requirement must be necessary, clear, proportionate, and compliant with section 347A where it amounts to a positive requirement. The lack of clarity and proportionality, and non‑compliance with section 347A, rendered the provision unlawful in that case.
Sentencing Act 2020:
- Section 343: An SHPO may include prohibitions or requirements only if necessary to protect the public (or particular individuals) from sexual harm.
- Section 343(1A): Distinguishes prohibitions from requirements.
- Section 347A: If an SHPO imposes a requirement, the order must specify the person/organisation responsible for supervising compliance, and the court must receive evidence as to the requirement’s suitability and enforceability from that person or organisation before inclusion.
- Section 278: Special custodial sentence for offenders of particular concern (OOPC), mandating an additional licence period of at least 12 months for certain sexual offences when neither life nor an extended sentence is imposed.
Offender Management Act 2007, ss28–30: Authorises polygraph conditions as part of licence for certain offenders; crucially, statements and physiological data from polygraph sessions are inadmissible in criminal proceedings against the person. These powers are distinct from SHPOs.
Terrorism Prevention and Investigation Measures Act 2011, para 10ZA of Sch 1: Likewise permits polygraph requirements within TPIMs with accompanying inadmissibility safeguards.

Legal Reasoning

1) Sentencing: Harm and Culpability

The Court upheld the trial judge’s categorisation at Category 2A, addressing each limb:

Severe psychological harm (harm Category 2): The Victim Personal Statements described nightmares, anxiety, social withdrawal, self‑harm, educational impact, and loss of appetite—well beyond the “basic level of psychological harm” inherent in such offending. The guideline permits the court to assess this without expert evidence. The Court concluded the sentencer was “absolutely entitled” to find severe harm.
Breach of trust (culpability A): Although a psychologist opined a “mental age” of 12½, the Court emphasised substance over label. The appellant was a sexually active adult, acknowledged understanding of consent and wrongfulness, and engaged in sustained offending, followed by dishonest minimisation and victim‑blaming. The fact that his parents routinely entrusted him to supervise his younger half‑siblings underscored the presence of trust. Emotional immaturity and low intellectual functioning mitigated but did not negate culpability; the offender knew it was wrong. A breach of trust finding was therefore open to the judge.

Having identified serious aggravation (sustained episode; oral sex and attempted oral sex; unprotected penetration; ejaculation; offending in the child’s bed; presence of an 8‑year‑old sibling in the house) and substantial mitigation (serious renal illness requiring dialysis; emotional immaturity; lack of prior convictions; some delay), the judge pitched the notional post‑trial sentence at 10 years—below the Category 2A range—then applied a 20% discount for a late guilty plea, arriving at 8 years. The Court regarded this as generous to the appellant and rejected the submission that a Category 3B starting point should have been used. The sentence was not manifestly excessive.

2) The SHPO: Requirements Disguised as Prohibitions and the Section 347A Safeguards

Paragraph 6 of the SHPO ostensibly “prohibited” the appellant from refusing to take polygraph tests and obliged him to inform his “visor/offender manager” of new relationships. The Court examined the substance:

Substance over form: Drafted in the negative (“must not refuse”), the polygraph term was, in reality, a requirement to engage in testing. The relationship notification term was plainly a requirement. Both therefore triggered section 347A.
Section 347A non‑compliance: No person or organisation was specified to supervise compliance; no evidence was adduced from such person/organisation about suitability and enforceability. The prosecution had simply uploaded a draft order. The statutory prerequisites were unmet; inclusion should have been refused.
Necessity, clarity, proportionality (s343; Parsons; David):
- Polygraph: The order allowed any managing police officer to require a polygraph on any subject, without temporal or subject‑matter limits—even beyond periods when the appellant would be under police management. This breadth was unnecessary, vague, oppressive, and disproportionate.
- Relationship notification: The order failed to define the type of “relationship” or the trigger point for notification, and appeared unlimited in time. Again, it was vague, unnecessary, and oppressive.

The Court did not hold that polygraph or relationship‑disclosure conditions can never be included in an SHPO. Rather, such terms must be demonstrably necessary for public protection, clear, time‑bounded, and compliant with section 347A. Paragraph 6 failed these tests and was deleted.

Impact and Practical Implications

A. SHPO Drafting and Practice

Classification matters: Courts and practitioners must classify each SHPO term correctly as a prohibition or a requirement. Negative phrasing cannot convert a positive obligation into a “prohibition” to sidestep section 347A.
Section 347A compliance is mandatory for requirements: An SHPO that includes a requirement must:
- Specify the person/organisation responsible for supervising compliance; and
- Be supported by evidence from that person/organisation addressing suitability and enforceability.
Necessity, clarity, proportionality: Following Parsons and David, SHPO terms must be:
- Necessary for public protection (not merely “helpful” or “desirable”),
- Clear in scope and readily enforceable, and
- Proportionate and time‑limited to the risk period that justifies them.
Polygraph in SHPOs vs licence: Polygraph testing has a clear statutory home in licence conditions (Offender Management Act 2007). If sought within an SHPO, the party proposing it must justify why an SHPO requirement is necessary in addition to (or instead of) licence powers; define the subject‑matter, frequency, and period; specify the supervising authority; and adduce section 347A evidence.
Relationship‑notification terms: If used, they should define:
- What counts as a “relationship” (for example, an intimate or domestic relationship, cohabitation, or regular unsupervised contact with children),
- When notification is triggered (e.g., within a specified number of days of forming such a relationship),
- To whom notification must be given (named unit/organisation), and
- Duration (limited to the SHPO term and relevant supervision period).

B. Sentencing for Child Rape: Harm and Trust

Severe psychological harm without expert evidence: The Court reinforces that VPS can suffice—a practical point for prosecutors and sentencers. Defence should be prepared to challenge severity with focused evidence if appropriate, but cannot demand expert proof as a prerequisite.
Mental age evidence: Psychological opinions about “mental age” are treated with caution. The key question is whether the offender understood the wrongfulness of the conduct. Emotional immaturity and cognitive limitations inform mitigation but will not necessarily preclude breach of trust or reduce culpability category where understanding is established.
Aggravation anchored in facts of the episode: Sustained duration, multiple sexual acts, location (the child’s bed), and risk to or presence of other children are potent aggravators that may justify upward movement even from serious starting points.

Complex Concepts Simplified

SHPO (Sexual Harm Prevention Order): A civil order imposed by a criminal court to manage risk posed by a sexual offender. Its breach is a criminal offence.
Prohibition vs requirement (Sentencing Act 2020, s343(1A)):
- Prohibition: Forbids doing something (e.g., “must not contact X”).
- Requirement: Obliges the offender to do something (e.g., “must attend programme,” “must notify relationships”). Requirements trigger section 347A safeguards.
Section 347A safeguards: If imposing a requirement, the court must identify the supervisor and receive evidence about suitability and enforceability. This ensures that the term is practical and polices risk effectively.
Necessity under section 343: The order’s terms must be necessary to protect the public from sexual harm. Terms must be clear, realistic, enforceable, and proportionate (Parsons).
Polygraph testing: A risk‑management tool used in post‑conviction settings. In criminal proceedings, statements or physiological data from polygraph sessions are inadmissible against the person. Polygraph conditions are expressly authorised in licence conditions (Offender Management Act 2007) and some civil orders (e.g., TPIMs); not expressly authorised for SHPOs, though not prohibited—strict safeguards apply.
Victim Personal Statement (VPS): A statement by a victim describing the impact of the offence. Courts may rely on VPS to assess psychological harm severity without requiring expert evidence.
Sentencing Council categories (rape of a child under 13): Cases are categorised by harm (1–3) and culpability (A–C). Category 2A has a starting point of 13 years (range 11–17).
Breach of trust: Aggravating factor where an offender exploits a position of trust (e.g., caregiver). Emotional immaturity does not negate breach of trust if the offender knew the conduct was wrong; it may nevertheless mitigate sentence.
Offender of Particular Concern (OOPC) (Sentencing Act 2020, s278): A special custodial sentence for certain sexual offences comprising a custodial term plus an additional licence period of at least 12 months.
Plea credit: Reduction in sentence for an early guilty plea. Later pleas attract lower credit; here, 20% credit was afforded for a late plea.

Why the Decision Matters

The central doctrinal advance is the Court’s explicit insistence that courts must look at the substance of SHPO terms when deciding whether they are prohibitions or requirements. Attempts to draft positive obligations as “negative prohibitions” (e.g., “must not refuse polygraph”) will not avoid section 347A. This has immediate operational consequences:

Prosecutors must prepare section 347A evidence from the intended supervising authority before inviting the court to impose a requirement.
Police and probation must ensure proposed terms are necessary, precise, and time‑limited to periods when supervision and enforcement are feasible.
Defence practitioners should scrutinise SHPO drafts for disguised requirements, lack of section 347A compliance, vagueness, and overbreadth under section 343.
Judges should actively probe necessity, clarity, enforceability, and proportionality, rejecting over‑broad, indefinite, or non‑compliant terms.

On sentencing, the decision provides a measured template for integrating psychological evidence: emotional immaturity and low IQ may soften sentence within or below guideline ranges, but where the evidence shows understanding of wrongfulness, they will not dismantle key culpability findings (like breach of trust) or warrant wholesale re‑categorisation under the guideline.

Conclusion

XBV, R. v [2025] EWCA Crim 1320 delivers two important messages. First, in serious sexual offending against children, courts can and will rely on detailed Victim Personal Statements to find severe psychological harm; emotional immaturity mitigates but does not eclipse culpability where the offender understood the wrongfulness of the conduct. The affirmed sentence—8 years’ imprisonment with a 1‑year extended licence—reflects careful balancing of grave aggravation with significant mitigation.

Second—and most consequential for future practice—the Court insists on strict fidelity to the statutory architecture of SHPOs. Positive obligations, including polygraph testing and relationship‑disclosure, are subject to section 347A’s supervision and evidential safeguards, regardless of how they are drafted. Necessity, clarity, enforceability, proportionality, and temporal limits are not optional extras; they are prerequisites. By quashing paragraph 6 of the SHPO, the Court provides clear drafting guidance that will improve the legality and practicality of SHPOs going forward.

Key takeaways:

Severe psychological harm can be established without expert evidence if VPS and the court’s assessment warrant it.
“Mental age” evidence is mitigation; it does not neutralise breach of trust where the offender knew the conduct was wrong.
SHPO terms that are, in substance, requirements trigger section 347A; negative drafting cannot avoid this.
Over‑broad, vague, or open‑ended SHPO requirements will be struck down as unnecessary and disproportionate.