Court of Appeal (Criminal Division) — Anonymous Summary

Factual and Procedural Background

This judgment was given by Judge Pepperall. The appellant (a young man who was 19 at the time of the offending and 21 at sentence) pleaded guilty in the Crown Court to the rape of a child under 13 and to a related sexual offence involving the same child. The statutory reporting restrictions under the Sexual Offences (Amendment) Act 1992 applied, and the proceedings were anonymised for publication.

The offending occurred when the appellant was asked to look after his younger half-sister (aged 11) and half-brother (aged 8) while their parents were at work. The opinion records detailed fact findings of sustained sexual assault, including oral sex, unprotected penetrative intercourse, ejaculation and other sexual contact, together with the victim's immediate distress, reporting to a family member and prompt police involvement. The appellant initially denied sexual activity in police interview, later gave varying accounts and made partial admissions to family members. Forensic and other witness evidence (including saliva consistent with oral contact and statements from a housemate) were recorded in the material before the court.

On sentencing at first instance, Judge Slater (Crown Court) applied the Sentencing Council guideline for rape of a child under 13, assessed the case as category 2A (starting point 13 years, category range 11–17 years), reached a notional sentence of 10 years after trial, and allowed 20% credit for a late guilty plea to produce a final immediate custodial term of 8 years plus an extended licence period of 1 year. The judge also imposed a restraining order, a Sexual Harm Prevention Order ("SHPO") containing paragraph 6 (challenged on this appeal), and the victim surcharge. The appellant appealed by leave, granted by Judge Bryan.

Legal Issues Presented

1. Whether the sentence was manifestly excessive because the judge erred in categorising harm as level 2 (severe psychological harm) and in finding raised culpability (abuse of trust), such that the correct category should have been lower (the appellant argued for category 3B and a materially lower sentence after plea credit).
2. Whether paragraph 6 of the Sexual Harm Prevention Order (requiring the appellant to engage in polygraph testing and to notify an offender manager of any new relationships) was necessary, proportionate, sufficiently clear and properly the subject of a SHPO requirement (including compliance with section 347A safeguards).

Arguments of the Parties

Appellant's Arguments

• The starting point adopted by the sentencing judge was too high; the judge should not have found severe psychological harm or raised culpability. The appellant relied on psychological evidence that he functioned with a much lower "mental age" and that he was given an inappropriate level of responsibility.
• On that basis the appellant argued the case should have been categorised as category 3B with a substantially lower notional sentence (the appellant's counsel argued for an effective sentence after plea credit of no more than 4 years' imprisonment).
• The appellant further contended that prohibition 6 of the SHPO (polygraph and relationship-notification requirements) was unnecessary, disproportionate, vague and insufficiently clear, and that the requirement failed to satisfy the special procedural safeguards in section 347A of the Sentencing Act 2020.

The opinion does not contain a detailed account of any opposing party submissions in the same structured form; the court's reasoning addresses and rejects the appellant's submissions.

Table of Precedents Cited

Court's Reasoning and Analysis

The court approached the appeal in two parts: challenge to sentence and challenge to the SHPO paragraph.

Sentencing: Harm and Culpability

On harm, the court emphasised that the Sentencing Guideline for rape of a child under 13 recognises a baseline level of psychological harm inherent in the offence but allows the sentencer to find additional, even severe, psychological harm on the basis of victim statements or observation. The court noted the victim personal statements and the father's account describing profound changes in the child's behaviour, nightmares, social withdrawal, self-harm and educational impact. The court held that the sentencing judge was "absolutely entitled" to find severe psychological harm on that evidence and therefore to categorise the offence as category 2.

On culpability, the appellant relied principally on a psychological report which reported a very low full-scale IQ percentile and assessed the appellant as emotionally immature with a "mental age" substantially below chronological age. The court carefully weighed that report against other material before the sentencing judge: evidence that the appellant had been sexually active and understood the need for consent; the appellant's continuing minimisation and dishonest accounts after arrest; the evidence that family members trusted him to look after younger children; statements from a housemate describing admissions; and a teacher's prior description of controlling/arrogant behaviour reported in the psychological report. The court concluded that, on the totality of the evidence, the appellant understood that sexual activity with an 11-year-old was wrong and unlawful, and that he had abused the trust placed in him. The sentencing judge was therefore entitled to find raised culpability and to treat the offence as category 2A.

Turning to overall sentence, the court explained that the sentencing judge began with the guideline starting point for category 2A (13 years), identified serious aggravating features (sustained 30-minute assault, oral sex, unprotected penetration, ejaculation, commission in the victim's bed, presence of an 8-year-old in the house), and then made allowance for mitigation (serious physical ill-health requiring dialysis, emotional immaturity, lack of previous convictions and some procedural delay). The judge's notional post-trial sentence of 10 years (below the category range) and the 20% guilty-plea reduction to 8 years was therefore not shown to be manifestly excessive.

SHPO: Paragraph 6 (Polygraph and Relationship Notification)

The court addressed the legal framework in the Sentencing Act 2020, particularly sections 343 and 347A. Section 343 permits a SHPO to include prohibitions or requirements, and section 347A imposes additional safeguards where a SHPO imposes a requirement (it requires specification of the person responsible for supervising compliance and pre‑inclusion evidence from that person about suitability and enforceability).

The court examined paragraph 6 and concluded that, despite language framed as a prohibition on "refusing" to take part in polygraph testing, the practical effect was to impose positive requirements (to take part in polygraph testing and to notify an offender manager of any new relationships). Because they were requirements, section 347A applied.

The court found two fatal problems with paragraph 6:

• No section 347A evidence was put before the sentencing judge (the prosecution had merely uploaded a draft order to the case management system), so the additional statutory safeguards were not satisfied for either the polygraph requirement or the relationship-notification requirement.
• Both requirements were excessively broad, vague and unlimited in time. The polygraph requirement allowed any police officer responsible for the appellant's management to require testing "on any subject whatever and without any limit of time", which the court found neither necessary nor sufficiently clear; the relationship requirement failed to identify what sort of relationship or at what stage it must be reported and was similarly unlimited. The court considered those features made each requirement oppressive and disproportionate and not readily capable of enforcement.

The court further considered statutory and previous authorities concerning polygraph conditions (noting provisions in the Offender Management Act 2007 and analogous provisions in terrorism legislation) and relevant case law (including R v David) that examined SHPO polygraph requirements. Applying those authorities and the statutory text, the court concluded that the inclusion of paragraph 6 was erroneous.

Holding and Implications

HOLDING: The appeal is allowed in part. The court dismissed the appellant's challenge to the length of the custodial sentence and upheld the sentence imposed (8 years' imprisonment after plea credit, with an extended licence period of 1 year). The court allowed the appeal only to the extent of ordering that paragraph 6 of the Sexual Harm Prevention Order be deleted.

Implications:

• Direct effect on the parties: The immediate custodial sentence and extended licence period imposed by the sentencing judge are upheld. The Sexual Harm Prevention Order remains in force except that paragraph 6 (the polygraph and relationship-notification requirements) is removed.
• Procedural consequence for future SHPOs: The judgment emphasises that where a SHPO imposes requirements (as distinct from prohibitions) the court must comply with section 347A by receiving suitable evidence about supervision and enforceability before including the requirement. Requirements must also be necessary, clear, realistic, and not oppressive — principles articulated in Parsons and applied in David — and overly broad, vague or unlimited conditions risk being disproportionate and unenforceable.
• No new general legal principle was created beyond application of existing statutory safeguards and authority; the decision applies established principles to the drafting and procedural inclusion of requirements in SHPOs and underlines the need for careful evidential underpinning where supervisory requirements are imposed.

This summary is strictly limited to the content of the provided opinion and uses anonymised role descriptors per the instruction. No information has been added that was not contained in the opinion text.