R v Robert Hanna

A sexual harm prevention order may be made only where it is necessary to protect the public from a real risk of sexual harm caused by future unlawful conduct within the statutory scheme. The court must assess the facts, the particular risk established by the offending, and the protection already supplied by statutory restrictions.

Offending which depended upon a position of trust, without evidence of a wider risk to children generally or to younger children, does not justify a broad order. An order must last no longer than necessary. An indefinite order is not a default option and requires careful consideration of its duration.

The appellant, a teacher, was convicted at Inner London Crown Court of sexual offences involving a 16-year-old pupil. The offences depended upon his position of trust. He received concurrent sentences of three years’ imprisonment for the intercourse counts and a sexual harm prevention order of indefinite duration.

He renewed an application for leave to appeal against sentence and appealed the order. The written order was materially wider than the order pronounced in court, so the Court of Appeal considered the order which the judge had actually stated. The central issue was whether an order restricting unsupervised contact with girls under 16 was necessary despite the statutory notification, barring and teaching-prohibition regimes.

1. The court allowed the appeal against the sexual harm prevention order and quashed it. It refused the renewed application for leave to appeal against the custodial sentence.

2. The concurrent three-year sentences for four offences of intercourse were not arguably manifestly excessive or wrong in principle. The aggravating features justified sentences near the top of the relevant guideline category. The judge also had to reflect the multiple offences, committed over several months, while giving credit for mitigation and totality.

3. Under section 346 of the Sentencing Act 2020, an order had to be necessary to protect the public or particular members of it from the risk of sexual harm. That risk concerned physical or psychological harm caused by future offences within Schedule 3 to the Sexual Offences Act 2003. The judge had not properly addressed necessity, the absence of evidence of risk to children under 16, or the appropriate duration of the order.

4. The convictions required proof that the appellant had acted while in a position of trust towards a 16-year-old pupil. There were no previous convictions and no evidential basis to infer a real risk of sexual offending against children generally or against children under 16. The appellant was already subject to indefinite notification requirements, barred from regulated activity relating to children, and prohibited for life from teaching in prescribed settings. Those restrictions materially reduced the risk said to justify the order.

5. Accordingly, the statutory necessity test was not met, whether for the order pronounced by the judge or the more restrictive order drawn up by the court. The sexual harm prevention order was quashed.

• Court of Appeal (Criminal Division): Allowed the appeal against the sexual harm prevention order and quashed it. It refused renewed leave to appeal against the three-year custodial sentence.

• Inner London Crown Court: On 19 October 2021, convicted the appellant of offences contrary to sections 16(1) and 17(1) of the Sexual Offences Act 2003. On 23 November 2021, imposed concurrent custodial sentences and an indefinite sexual harm prevention order.