Barley, R. v

Where the statutory conditions for a disqualification from working with children are met, the court retains a discretion under Criminal Justice and Court Services Act 2000 section 28. If the established risk is confined to girls, a generic disqualification applying to all children may be disproportionate. The court may instead make a suitably tailored Sexual Offences Prevention Order.

Such an order must be necessary to protect the public, or particular members of it, from serious sexual harm. That harm includes psychological harm. An anti-social behaviour order is not an appropriate substitute for addressing this form of sexual-offending risk.

The applicant, a teacher, was convicted at Ipswich Crown Court of sexual activity with a child after kissing a 17-year-old female pupil. He received a community order and a disqualification from working with children under section 28 of the Criminal Justice and Court Services Act 2000.

He appealed the disqualification order. The evidence assessed his risk of further offending as low and identified no risk to male pupils. The central issue was whether a generic disqualification, which could not be confined by sex, should be replaced by a Sexual Offences Prevention Order limited to the identified risk.

1. Appeal allowed in part. The court quashed the disqualification from working with children and replaced it with a Sexual Offences Prevention Order.
2. The statutory threshold for a discretionary order under section 28 of the Criminal Justice and Court Services Act 2000 was met. There was a real, though low, risk that the applicant would reoffend if he formed a similarly close relationship with a child in the course of work.
3. However, the identified risk was directed to young girls. A section 28 order is generic and cannot be restricted to children of a particular sex. Had the Crown Court had the further material, it could properly have exercised its discretion not to impose that order and to make a tailored Sexual Offences Prevention Order instead.
4. The conditions in section 104 of the Sexual Offences Act 2003 were satisfied. The applicant had been convicted of a Schedule 3 offence, and a preventative order was necessary to protect a particular class of the public from serious sexual harm. Under section 106(3), serious sexual harm includes psychological harm. The victim impact material demonstrated that inappropriate conduct of this kind could cause such harm.
5. The court rejected an anti-social behaviour order under section 1 C of the Crime and Disorder Act 1998 as an unsuitable alternative. It imposed an order prohibiting paid or unpaid work involving unsupervised conduct with females under 18. The court declined to limit the order further to those aged 12 to 18, while recognising that the applicant could later seek its review.

• Court of Appeal (Criminal Division): Granted leave and allowed the appeal to the limited extent of quashing the generic disqualification order and substituting a Sexual Offences Prevention Order.
• Crown Court at Ipswich: On 26 March 2008, convicted the applicant of sexual activity with a child. On 15 May 2008, imposed a community order and a disqualification from working with children under section 28 of the Criminal Justice and Court Services Act 2000.