Thorpe v R.

Factual and Procedural Background

The appeal arises from a Sexual Harm Prevention Order ("SHPO") imposed by a Crown Court judge following the appellant's conviction for attempting to cause or incite a child under 13 to engage in penetrative sexual activity, contrary to statutory provisions. The appellant challenges paragraph 11 of the SHPO, which prohibits seeking or undertaking any employment likely to bring him into unsupervised contact with children under 16. The appeal court had previously dismissed the first two grounds and reserved judgment on this third ground, now addressing the statutory framework and the validity of paragraph 11.

Legal Issues Presented

1. Whether paragraph 11 of the SHPO conflicts or interferes with the statutory barring regime under the Safeguarding of Vulnerable Groups Act 2006 ("SVGA").
2. Whether the wider restrictions in paragraph 11 are reasonably necessary and proportionate beyond the protections afforded by the statutory regime and the Disclosure and Barring Service ("DBS").
3. Whether the appellant's conviction triggers automatic barring under the SVGA, given the nature of the offence and the statutory definitions.

Arguments of the Parties

Appellant's Arguments

• Paragraph 11 conflicts with the SVGA regime, which provides a comprehensive mechanism for barring individuals from regulated activities involving children.
• The statutory regime is sufficient to prevent the appellant from engaging in prohibited activities, making paragraph 11 unnecessary.
• The appellant should only need to address the DBS regarding barred list inclusion, not seek court variation of the SHPO for employment-related restrictions.
• Paragraph 10 of the SHPO already restricts unsupervised contact or communication with children, rendering paragraph 11 redundant.

Respondent's (Prosecution's) Arguments

• A SHPO can impose wider restrictions than the SVGA and DBS regime, which can be advantageous by removing the need for separate agency decisions.
• The wider restrictions of paragraph 11 were necessary given the appellant's dangerousness and offending conduct.
• In this case, the appellant's offending did not involve a real child, so automatic barring under the SVGA might not apply.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sokolowski [2018] 1 Cr. App. R. (S.) 30	SHPO prohibitions must be proportionate and necessary, not based on a "safety first" approach; SHPOs must not conflict with statutory notification schemes.	Guided the court to ensure paragraph 11 was justified and did not conflict with statutory regimes.
R v Smith [2012] 1 Cr App R (S) 82	SOPOs must not conflict with statutory barring regimes; restrictions beyond statutory barring require justification based on risk outside statutory coverage.	Supported the analysis that paragraph 11 must be justified by a real risk not covered by the SVGA.
R v Lewis [2016] EWCA Crim 1020; [2017] 1 Cr App R (S) 2	SHPO drafts should be provided in advance to sentencing courts for proper consideration of terms.	Referenced procedural expectations for SHPO formulation.
R v Hanna [2023] EWCA Crim 33; [2023] 2 Cr App R (S) 13	Consideration of SHPO principles in light of current statutory provisions and DBS regime.	Informed the court's understanding of the interaction between SHPOs and statutory barring.

Court's Reasoning and Analysis

The court examined the statutory framework under the Sexual Abuse Act 2020 and the Safeguarding of Vulnerable Groups Act 2006, including the role of the Disclosure and Barring Service and the criteria for automatic barring. It rejected the prosecution's submission that the appellant's offending might not trigger automatic barring, clarifying that an attempt to commit the offence under section 8 of the Sexual Offences Act 2003 does trigger automatic barring. The court acknowledged that while the SVGA covers most regulated activities involving children, there may be relevant employment activities outside its scope. The court assessed whether paragraph 11 was reasonably necessary to prevent the appellant from engaging in such activities and concluded that, given the appellant's dangerousness and specific risk factors, paragraph 11 was justified. The court noted that the sentencing court had not explored this issue in sufficient detail but, on review, found the risk sufficient to uphold paragraph 11. The court also clarified that the SHPO's prohibition on "seeking" employment does not extend beyond the statutory regime, contrary to prosecution submissions.

Holding and Implications

The court DISMISSED the appellant's challenge to paragraph 11 of the SHPO.

This decision confirms that SHPO prohibitions may impose restrictions beyond the statutory barring regime where a real risk exists that is not addressed by that regime. The ruling underscores the necessity of proportionality and necessity in SHPO terms and clarifies the interaction between SHPOs and statutory barring mechanisms. No new precedent was established beyond applying existing principles to the facts of this case. The direct effect is that the appellant remains subject to the full terms of the SHPO including paragraph 11.