D v R.

A sexual offences prevention order requires a criminal court to be satisfied that it is necessary, not merely desirable, to protect the public or an identified person from serious sexual harm. The assessment concerns the risk of future Schedule 3 offending and resulting serious physical or psychological harm. The future offence need not be directed at the protected person if that person may suffer the required harm as a consequence.

A factual dispute does not automatically require the issue to be left to the family court. The criminal court must assess the available material, including hearsay to which appropriate weight is given. Where a SOPO protects a child within the offender’s family, the order may appropriately preserve the family court’s capacity to authorise contact as the child’s circumstances change.

The appellant pleaded guilty in the Crown Court at Luton to serious sexual offences committed over three years against his daughter. He received concurrent sentences amounting to six years’ imprisonment. Judge Breen also made a SOPO which prohibited contact or communication with both the daughter and the appellant’s son, L.

The appeal concerned only the prohibition relating to L. There had been no allegation that the appellant sexually abused L. The appellant contended that the statutory conditions for protecting L were not met and that the restriction improperly interfered with family life. The Court of Appeal received further social-work and child-protection material concerning L’s psychological harm and his exposure to the abuse of his sister.

The central issue was whether a SOPO was necessary to protect L and, if so, how its terms should accommodate the family court’s jurisdiction.

1. Appeal allowed. The sentencing judge had exercised the power under section 104 of the Sexual Offences Act 2003 erroneously. He had not applied the statutory risk assessment or decided whether an order was necessary. Describing protection for L as appropriate came close to the insufficient test of desirability identified in R v Halloren [2004] 2 Cr App R (S) 301.

2. The Court exercised the power afresh. A SOPO required an assessment of the likelihood of further Schedule 3 offending and whether L would suffer serious physical or psychological harm as a consequence. The future offence did not have to be committed directly against L. On the further evidence, there was a risk of future Schedule 3 offending in L’s proximity and of serious psychological harm to a child who was already disturbed. An order was therefore necessary.

3. A factual dispute concerning the foundation for a SOPO did not mean that the issue had to be left to the family court. That course would abdicate the criminal court’s statutory function and could cause harmful delay. A Newton hearing might resolve some disputes, but was inappropriate where the critical evidence would come from a young child. The criminal court could consider hearsay, giving it appropriate weight, and had to decide whether the statutory conditions were met on the available material.

4. The original lifetime prohibition was too inflexible. A SOPO protecting a child within the family may be framed to reflect the flexibility of proceedings under the Children Act 1989, while the criminal court continues to apply the statutory SOPO criteria rather than determine contact as a family court would.

5. The order was varied. Until L reached 16, the appellant was prohibited from communicating, or seeking to communicate, directly or indirectly with him without an order of a judge exercising jurisdiction under the Children Act 1989.

• Court of Appeal (Criminal Division) — Allowed the appeal and varied the SOPO: [2005] EWCA Crim 3660.

• Crown Court at Luton (Judge Breen) — On 1 February 2005, imposed concurrent sentences totalling six years’ imprisonment and made a SOPO prohibiting, among other matters, contact or communication with the appellant’s son.