Anonymised Summary of Court Opinion
Factual and Procedural Background
This matter concerns an application for leave to appeal against conviction (with a two day extension sought) and an application for leave to appeal against sentence, both referred to the full court by the Registrar. On 13 February 2025 at the Crown Court at The City the Appellant (then aged 53) pleaded guilty to multiple counts of sexual activity with a person with a mental disorder by a care worker (contrary to section 38(1)). After a ruling on 10 April 2025 by Judge [Last Name] the Appellant pleaded guilty to six further counts on re-arraignment. On 14 April 2025 the Appellant was convicted after trial on two additional counts. On 6 June 2025 the Appellant was sentenced to concurrent terms resulting in an overall sentence of seven years' imprisonment; a Restraining Order and a Sexual Harm Prevention Order were imposed. Counts 1, 2 and 6 were ordered to lie on file.
At all material times the Appellant was employed as a community psychiatric nurse by Company A and had been the care worker for the Complainant for over four years. The Appellant accepted that the sexual activity underlying six counts occurred; his defence was that those acts occurred while he was on sick leave and therefore outside the scope of section 38. The key legal issue is whether a care worker on sick leave falls within section 38 by reference to section 42.
Legal Issues Presented
- Whether, for the purposes of section 38 (by reference to section 42(3) and (4)) of the Sexual Offences Act 2003, a person employed as a care worker who is on sick leave at the time of the sexual activity nonetheless "has functions to perform" for their employer so as to fall within the offence.
- Whether the question of whether a care worker on sick leave falls within section 42(3) is a matter of law for the judge to determine or a question of fact for the jury.
Arguments of the Parties
Appellant's Arguments (Attorney Fargin)
- The judge erred by deciding as a matter of law that the Appellant fell within section 42(3), thereby withdrawing the Appellant's only defence and making the resulting guilty pleas unsafe.
- The Appellant did not fall within the scope of section 38 because, while on sick leave, he was not performing functions for Company A; he had been encouraged not to contact patients and thus was not "performing" functions as required by subsection (3).
- These are factual matters — the role actually performed and degree of contact — that should have been left to the jury. The term "functions" requires performance, not merely an extant contractual status.
Respondent's Arguments (Attorney Austin)
- The judge was correct to conclude that the statutory interpretation of "care worker" under section 42(3) is a matter of law for the judge to determine.
- Section 42(3) is broad; construing it to exclude care workers who act while off duty or on leave would allow a complete defence for conduct Parliament plainly intended to prohibit.
- The issues under section 42(4) are factual and should properly be left to the jury (conceded by counsel for the respondent).
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v [Defendant] [2021] EWCA Crim 503 |
When a judge withdraws a defendant's only defence, guilty pleas may not bar a challenge to conviction. |
The court relied on this authority to record that the Appellant's guilty pleas did not prevent a challenge because the judge had withdrawn the Appellant's only defence. |
| R (on the application of O) v Secretary of State for the Home Department [2022] UKSC 3; [2023] AC 255 |
Statutory interpretation principles: words to be given their ordinary and natural meaning in context and in light of legislative purpose. |
The court applied ordinary principles of statutory interpretation, citing this authority for approach to construing sections 38 and 42. |
| R v Manning [2020] EWCA Crim 592 |
Sentencing authorities and approach to mitigation/starting points. |
The judge reflected on this authority when identifying mitigating factors in sentence assessment. |
| R v [Defendant] [2023] EWCA Crim 232 |
Sentencing authorities and approach to mitigation/starting points. |
The judge reflected on this authority when identifying mitigating factors in sentence assessment. |
Court's Reasoning and Analysis
The court undertook a conventional exercise in statutory interpretation, giving primacy to the statutory text read in context and with regard to legislative purpose. Section 38(1)(e) requires that A "is involved in B's care in a way that falls within section 42." Section 42(3) applies where B is a patient for whom services are provided by an NHS body (Company A) and A "has functions to perform ... in the course of employment which have brought A or are likely to bring A into regular face to face contact with B."
The court concluded that subsection (3) concerns the status of the defendant as a care worker and requires only that, at the time of the sexual activity, the care worker has relevant functions to perform (i.e. duties that are extant), not that the functions are being performed contemporaneously with the act. The court reasoned that the gravamen of section 38 is abuse of a position of trust; that abuse exists whether sexual activity occurs on-shift or off-shift. Reading "functions" to require contemporaneous performance would permit a complete defence whenever a care worker was off duty or on leave, contrary to legislative purpose.
Applying these legal conclusions to the agreed facts, the court found no factual question for the jury: the Appellant remained employed by Company A, on full pay during sick leave, with functions that had historically brought him into regular face-to-face contact with the Complainant. Therefore the judge was entitled to determine the legal question and to rule that the Appellant fell within section 42(3).
On section 42(4) the court observed that that subsection asks whether the person "is" a provider of care, assistance or services — a matter of conduct requiring factual assessment. The parties and the court agreed that issues under subsection (4) should be left to the jury; given the court's conclusion on subsection (3) it was unnecessary to decide subsection (4) here.
Holding and Implications
CONVICTION APPEAL DISMISSED. The court held that sections 38 and 42(3) (interpreted purposively and by ordinary meaning) encompass a care worker on sick leave where, at the time of the sexual activity, the care worker has extant functions that have historically brought them into regular face-to-face contact with the patient. The judge was entitled to decide that legal question and to withdraw the Appellant's defence; the resulting convictions on the six counts were not unsafe.
SENTENCE APPEAL REFUSED. The application for leave to appeal against sentence was refused: the court found no arguable case of manifestly excessive sentence given the number and nature of offences, aggravating features (including grooming, images and threats) and the need to reflect totality in concurrent sentences.
Direct consequences: the Appellant's convictions and sentence were upheld; ancillary orders imposed by the sentencing judge remain in force; the reporting restriction previously imposed was lifted. The court applied statutory interpretation to sections 38 and 42(3); it did not identify the creation of a novel general legal principle beyond this interpretation and the decision rests on the application of those statutory provisions to the facts of this case.