J, R. v

An exclusion requirement within a community order is primarily protective. It should prevent, or reduce, the risk of further offending rather than punish the offender. The requirement must be proportionate to the risk shown by the case.

A prohibited activity requirement must also be properly confined. A restriction which unnecessarily prevents ordinary contact with neighbouring complainants is disproportionate. Where those requirements are excessive, they may be set aside while the remaining elements of the community order continue.

The appellant was convicted at Caernarfon Crown Court of exposure after masturbating in the driveway of his home while looking towards his next-door neighbour and her young child.

At Mold Crown Court, the Recorder imposed a community order. It included a two-year exclusion from the appellant’s own home and a three-year prohibition on approaching or communicating with the complainant, her partner or daughter.

The appellant appealed those two requirements. The issue was whether they were proportionate to the risk of further offending and appropriately framed.

1. Appeal allowed. The court set aside the exclusion requirement and the prohibited activity requirement. The supervision and unpaid-work requirements of the community order remained in force.

2. The primary purpose of an exclusion requirement is not punishment. It is to prevent, or at least reduce, the risk of further offending. Its duration and effect must therefore be proportionate to the risk disclosed by the particular case.

3. The appellant had committed a serious and distressing sexual offence, but there had been no further incident between the offence and either trial or sentence. Excluding him from his own heavily mortgaged home for two years was disproportionate when balanced against the risk of further offending. The financial consequences for his family reinforced that conclusion.

4. The prohibited activity requirement was likewise disproportionate. Its terms were so broad that, after returning home, the appellant would breach it by even greeting his next-door neighbours. A protective restriction must not extend beyond what is justified by its risk-reduction purpose.

• Court of Appeal (Criminal Division): By [2008] EWCA Crim 2002, allowed the appeal against two requirements of the community order and set them aside.
• Crown Court: Following conviction at Caernarfon Crown Court, the appellant was sentenced at Mold Crown Court to a community order which included the challenged exclusion and prohibited activity requirements.