R, R. v

A sexual offences prevention order made for a specified fixed period must last for at least five years. It may be made under section 104 of the Sexual Offences Act 2003 only where necessary to protect the public, or a particular person, from serious sexual harm. Such orders should not be sought or made routinely.

A disqualification from working with children under section 28 of the Criminal Justice and Court Services Act 2000 cannot be imposed for a fixed term. The court must decline to make it where satisfied that further offending against a child is unlikely. Unlawful protective orders were therefore quashed where neither the statutory duration nor necessity requirements were met.

Two applications were heard together because they raised similar issues concerning protective orders imposed following guilty pleas to sexual activity with a child.

R had received concurrent terms of imprisonment and a sexual offences prevention order lasting only until the complainant reached 16. C had received imprisonment, a five-year disqualification from working with children, and a five-year sexual offences prevention order. The Registrar referred the legality of the protective orders to the full court.

The central issues were whether the orders complied with their statutory duration requirements, whether either sexual offences prevention order was necessary, and whether an unlawful order could properly be replaced on an offender’s appeal.

1. The applications succeeded. The court quashed R’s sexual offences prevention order. It quashed both C’s disqualification from working with children and his sexual offences prevention order.

2. Section 107 of the Sexual Offences Act 2003 requires a sexual offences prevention order made for a fixed period to endure for at least five years. R’s order, which expired when the complainant reached 16 and therefore lasted for less than five years, was unlawful.

3. An order under section 104 of the Sexual Offences Act 2003 requires necessity for protecting the public or a particular person from serious sexual harm. The statutory words require an individual assessment; protective orders should not be put before sentencing judges as routine draft orders. R’s impending release, licence conditions and the complainant’s approaching sixteenth birthday meant that no order was necessary. C’s circumstances, including the low assessed risk and the context of the offence, likewise did not establish necessity.

4. The five-year disqualification imposed on C was also unlawful. Under section 28 of the Criminal Justice and Court Services Act 2000, a disqualification order was not available for a lesser fixed period than indefinitely. Further, section 28(5) required no order if the court was satisfied that future offending against a child was unlikely. On the available evidence, there was no proper basis for apprehension that C would commit such an offence.

5. The court considered, but did not finally determine, whether section 11(3) of the Criminal Appeal Act 1968 would prevent it from substituting a more onerous order on an offender’s appeal. It considered that an order newly restricting work with children could be more severe. Prosecutors should instead use the statutory procedure permitting an application to the Crown Court to correct an omission under section 28.

• Court of Appeal (Criminal Division) — in [2010] EWCA Crim 907, the court allowed the applications and quashed the unlawful orders.
• Crown Court at Leeds — R pleaded guilty and received imprisonment with a sexual offences prevention order.
• Crown Court at Northampton — C pleaded guilty and received imprisonment, a five-year disqualification from working with children, and a five-year sexual offences prevention order.