R v XBV

For a sexual harm prevention order (SHPO), a prohibition or requirement must be necessary to protect the public from sexual harm. It must also be effective, clear, realistic and readily enforceable, and must not be oppressive or disproportionate. A direction drafted as a prohibition on refusing to act may in substance be a requirement, engaging section 347A of the Sentencing Act 2020. The court must identify a supervisor and receive evidence about suitability and enforceability before imposing it. Open-ended polygraph directions and undefined, unlimited relationship-reporting duties failed those standards. A sentencing judge may find severe psychological harm from a child victim’s evidence without expert medical evidence. Chronological age must not be treated mechanically; developmental and emotional age may inform mitigation. The custodial sentence was upheld, but the defective SHPO provision was deleted.

The appellant pleaded guilty to sexual assault of a child under 13 and rape of a child under 13 arising from sexual offending against his 11-year-old half-sister. The Crown Court at Sheffield imposed eight years’ imprisonment, an extended licence period and an SHPO. With permission, the appellant appealed against sentence, arguing that the sentencing categorisation and starting point were excessive and that paragraph 6 of the SHPO was unnecessary, disproportionate and unclear. The central issues were whether the evidence supported severe psychological harm and breach of trust, and whether the polygraph and relationship-reporting obligations complied with sections 343 and 347A of the Sentencing Act 2020.

1. Disposition. The appeal was allowed in part. The challenge to the custodial sentence was rejected, but paragraph 6 of the SHPO was deleted.
2. Sentence. The victim’s personal statement and her father’s evidence demonstrated severe psychological harm. Expert medical evidence was not required for that finding. The judge was therefore entitled to place the offence in harm category 2. The appellant’s emotional immaturity and intellectual limitations did not prevent a finding of breach of trust. The evidence showed that he understood that sexual activity with an 11-year-old was wrong and that sexual activity required consent. The sentencing judge was entitled to reject the argument that it had been inappropriate to leave him responsible for younger children.
3. Chronological age should not be treated mechanically. Developmental and emotional age may justify mitigation. The judge had taken account of the appellant’s serious physical illness, immaturity, intellectual limitations, lack of previous convictions and prosecution delay. Given the sustained offending and other serious aggravating features, a category 2A starting point of 13 years and a sentence of 10 years after trial were justified. The final sentence of eight years after credit for the late guilty plea was not manifestly excessive.
4. SHPO. Under section 343 of the Sentencing Act 2020, a provision must be necessary to protect the public or a particular person from sexual harm. As explained in R v Parsons [2017] EWCA Crim 2163, it must also be effective, clear, realistic and readily enforceable, and must not be oppressive or disproportionate. The court also considered R v David [2023] EWCA Crim 1561.
5. Although paragraph 6 was drafted negatively, its substance was a requirement to engage in polygraph testing and to report new relationships. It therefore engaged section 347A. The order contained no supporting evidence from an appropriate police officer or offender manager about suitability and enforceability. In any event, the polygraph obligation was unlimited as to officer, subject matter and duration. The relationship obligation did not define the relationships to be reported or when the duty arose and was also unlimited in time. Both obligations were vague, unnecessary, oppressive and disproportionate. Paragraph 6 was accordingly deleted.

1. Court of Appeal (Criminal Division): The appeal against sentence was allowed in part. The custodial sentence was upheld, but paragraph 6 of the SHPO was deleted: [2025] EWCA Crim 1320.
2. Crown Court at Sheffield: On 25 October 2024, HHJ Slater sentenced the appellant to eight years’ imprisonment, with an extended licence period of one year, and imposed an SHPO and related orders.