Thomas James Thorpe v R [2025] EWCA Crim 1007

[2025] EWCA Crim 1007Case No 202402410 A2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT
AT KINGSTON UPON THAMES
His Honour Judge Peter Lodder KC
T20210311
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30 July 2025
Before
LORD JUSTICE STUART-SMITHMR JUSTICE CHOUDHURYMR JUSTICE BOURNE
Between
THOMAS JAMES THORPEAppellantREXRespondent
Nicholas Yeo KC (instructed by Reynolds Dawson) for AppellantValerie Charbit (instructed by Crown Prosecution Service) for CrownHearing Hearing date: 10 June 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 30 July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]On 10 June 2025 we gave judgment dismissing the first two grounds of this appeal. We reserved judgment on ground 3 and asked counsel to file an agreed note, if possible, on the statutory provisions which are considered below, which they have done and for which we are grateful. This is our judgment on ground 3, which challenges the inclusion of paragraph 11 in the Sexual Harm Prevention Order (“SHPO”) imposed by HHJ Lodder KC in the Crown Court at Kingston upon Thames on 4 June 2024, following the appellant’s conviction on a charge of attempting to cause or incite a child under 13 to engage in (penetrative) sexual activity, contrary to section 8(1) of the Sexual Offences Act 2003 and section 1(1) of the Criminal Attempts Act 1981 and five other counts.[2]There is no challenge to the judge’s decision to impose a SHPO, or to the terms of that order which restricted the appellant’s computer and internet activity, his possession of devices capable of storing digital images and his having unsupervised contact or communication with children. The challenge is to paragraph 11 of the order, which prohibited him from:
“Seeking or undertaking any employment (including voluntary, paid or otherwise) which will, or is likely, to bring the defendant into unsupervised contact with children under the age of 16 years.”
[3]The appellant’s counsel, Mr Yeo, submits that paragraph 11 conflicts or interferes with the statutory scheme under the Safeguarding of Vulnerable Groups Act 2006, whereby the appellant’s conviction may cause him to be placed on a list of persons who are barred from activities involving work with children. That regime, he submits, is wide enough to ensure that the appellant will not engage in the kind of activity prohibited by that paragraph.[4]Under sections 345 and 346(1)(a) of the SA 2020 a SHPO may be imposed where a person is convicted of a relevant offence and the court is satisfied that it is necessary to do so for the purpose of protecting the public or any particular members of the public from sexual harm from the offender. Under section 343 the order may prohibit the defendant from doing anything described in the order. Such prohibitions should be proportionate and necessary in the individual case, and should not simply be included on a “safety first” approach: see Sokolowski [2018] 1 Cr. App. R. (S.) 30. In Sokolowski it was also said that a SHPO would operate in tandem with the statutory notification scheme and therefore must not conflict with the notification requirements.[5]Mr Yeo also refers to R v Smith [2012] 1 Cr App R (S) 82, a case under the previous statutory regime in which the court had made a Sexual Offences Prevention Order (SOPO). This Court observed that a defendant convicted of sexual offences is likely to be subject to at least three statutory regimes restricting his activities, in addition to being subject to a SOPO on conviction. The Court also held that a SOPO must not conflict with any of those regimes. In particular it was noted (at [9(ii)]) that defendants convicted of offences against children would “almost inevitably be disqualified from working with children in future, and indefinitely, either by a court order under s.28 Criminal Justice and Courts Service Act 2000 (which has since been repealed) or by the Independent Safeguarding Authority (now the Disclosure and Barring Service or “DBS”) placing the defendant on the barring list pursuant to the Safeguarding of Vulnerable Groups Act 2006 (“SVGA”).” The Court also said at [25]:
“Terms seem commonly to be included in SOPOs which prohibit the defendant from activities which are likely to bring him into contact with children. As to those our conclusions are as follows. i) Such a term must be justified as required beyond the restrictions placed upon the defendant by the Independent Safeguarding Authority (“ISA”) under the Safeguarding Vulnerable Groups Act 2006 (“SVGA”). If there is a real risk that he may undertake some activity outside the ISA prohibitions, then such a term may be justified. Otherwise it is not. What is covered by the SVGA needs examination in each case. The key provisions are to be found in s.5 and Sch.4 Pt 1, which defines regulated activities relating to children. Generally speaking, para.2 prevents the defendant from engaging in any form of teaching, training or instruction of children, any form of care, advice, guidance or therapy, and from acting as a driver for children’s activities. That will cover most unpaid as well as formal paid occupations which carry a risk of contact offences. It will for example cover football or other sports clubs and youth groups. We suggest that judges should ordinarily require the Crown to justify an application for a SOPO term relating to activity with children by demonstrating what the risk is which is not already catered for by the SVGA.” i) Such a term must be justified as required beyond the restrictions placed upon the defendant by the Independent Safeguarding Authority (“ISA”) under the Safeguarding Vulnerable Groups Act 2006 (“SVGA”). If there is a real risk that he may undertake some activity outside the ISA prohibitions, then such a term may be justified. Otherwise it is not. What is covered by the SVGA needs examination in each case. The key provisions are to be found in s.5 and Sch.4 Pt 1, which defines regulated activities relating to children. Generally speaking, para.2 prevents the defendant from engaging in any form of teaching, training or instruction of children, any form of care, advice, guidance or therapy, and from acting as a driver for children’s activities. That will cover most unpaid as well as formal paid occupations which carry a risk of contact offences. It will for example cover football or other sports clubs and youth groups. We suggest that judges should ordinarily require the Crown to justify an application for a SOPO term relating to activity with children by demonstrating what the risk is which is not already catered for by the SVGA.”
[6]We were also referred to the cases of R v Lewis [2016] EWCA Crim 1020, [2017] 1 Cr App R (S) 2 and R v Hanna [2023] EWCA Crim 33, [2023] 2 Cr App R (S) 13 where the relevant principles were considered in light of the up-to-date provisions relating to SHPOs and the DBS regime. In Lewis this Court reiterated that a draft of any SHPO should be provided to the sentencing court at least 2 clear days in advance of the sentencing hearing to ensure that its terms can be properly considered.[7]By its Respondent’s Notice, the prosecution does not take issue with the principle that a SHPO must not conflict with the regime under the 2006 Act. However, it submits that a SHPO can impose wider restrictions than are available under the 2006 Act and that this may have the advantage of there being no need for a separate agency, the DBS, to decide whether the appellant should be barred from any activity. In view of the reasons why the judge found the appellant to pose a danger to children, the prosecution submits that the wider restrictions of paragraph 11 were necessary.[8]The prosecution also submits that in this case where a real child was not involved, the appellant’s offending may not trigger automatic (or discretionary) qualification under the 2006 Act because some of its provisions apply only when an offence is “committed against a child”.[9]We disagree with that last point because, as we explain below, automatic barring is triggered by any conviction for an offence under section 8 of the 2003 Act or, as in this case, for an attempt to commit that offence.[10]In brief summary, section 7 of the 2006 Act makes it an offence for an individual to engage in or to seek or offer to engage in a “regulated activity” from which he is barred. By section 5 and paras 1-2 and 10 of sch 4, a “regulated activity” includes specified activities such as teaching or training children or caring for or supervising them or advising or guiding them, or driving them, if the same person carries out that activity frequently or at any time carries it out on more than 3 days in any period of 30 days (or if, in the case of some of the activities, they occur between 2 a.m. and 6 a.m. and involve face-to-face contact).[11]Sections 2 and 3 provide for the Disclosure and Barring Service to bar individuals from regulated activity by being included in the “children’s barred list”. Under section 2(2) and part 1 of schedule 3, a person must be included on the barred list if prescribed criteria apply. Some criteria trigger automatic barring whilst others trigger barring subject to a right for the individual to make representations.[12]The criteria are prescribed by the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009 (SI 2009/37). Under regulation 3(4), a person is automatically barred if “the person has, on or after the relevant date, been convicted of, or cautioned in relation to, an offence specified in paragraph 1 of the Schedule”.[13]Paragraph 1 of the schedule states inter alia:
“The offences specified in this paragraph are— … (d) any offence contrary to a provision specified in Part 2 of [the table set out in this paragraph]”
. One of the items specified in part 2 of the table is “Sexual Offences Act 2003, section 8”.[14]By virtue of regulations 1(1) and 1(6)(a), the reference to a conviction for a relevant offence includes an offence of attempting to commit that offence.[15]By count 2, the appellant was convicted of attempting to commit an offence under section 8 of the 2003 Act. The entry in the table in the schedule to the 2009 Regulations is not subject to any rider that it has to be “committed against a child”, no doubt because section 8 refers to children under 13. The rider is attached to offences in the first part of the table which are not child-specific.[16]Paragraph 25 of schedule 3 to the 2006 requires a court by or before which a person is convicted of a relevant offence to inform him that the DBS will or may include him in the relevant barred list. A notice to that effect was given to the appellant in the present case.[17]We note in passing that since section 7 states that an individual on the barred list must not “seek” or “offer” to engage in the relevant activity, the SHPO, contrary to a submission made by the prosecution, does not achieve a wider reach by restricting the appellant from “seeking” relevant employment.[18]Mr Yeo contends that paragraph 11 conflicts or interferes with the statutory regime because, if the appellant wished to seek some potentially relevant employment, he would have to apply to the Crown Court for a variation of the SHPO in addition to making any necessary submissions to the DBS in relation to his inclusion on the barred list. Parliament’s intention, Mr Yeo submits, was that only the latter should be necessary and that the DBS would have sole responsibility.[19]Mr Yeo further argues that any wider reach of paragraph 11 is rendered unnecessary by paragraph 10 of the SHPO. That paragraph, to which the appellant does not object, in any event prohibits him from: “10. Having unsupervised contact or communication of any kind with any child, of any gender, under the age of 16 other than; a) Such as is inadvertent and not reasonably avoidable in the course of daily life, such as college or education, Or b) With the consent of the child’s parent or guardian (who has knowledge of the defendant’s convictions) and with the express approval of Social Services and the police public protection team for the area. In relation to point 10(a) – the defendant must let the relevant safeguarding lead and police public protection team know of the conditions set in the application if attending a place of education that provides education to individuals under the age of 16.” a) Such as is inadvertent and not reasonably avoidable in the course of daily life, such as college or education, Or b) With the consent of the child’s parent or guardian (who has knowledge of the defendant’s convictions) and with the express approval of Social Services and the police public protection team for the area.[20]It seems to us that this is not a case of a conflict between the SHPO and the regime under the 2006 Act. Whilst Parliament may have intended that a SHPO would be the primary means by which an offender would be restricted from seeking relevant employment, there clearly could be cases involving relevant employment falling outside the definition of “regulated activity” under the 2006 Act, as was recognised in the discussion in the cases referred to above. Counsel for the prosecution, Ms Charbit, has given the example of an activity previously undertaken by the appellant namely working as a crew member on a yacht. It would be a question of fact whether, in any given case, that activity would or would be likely to bring him into unsupervised contact with any child under 16.[21]Therefore the question, in our judgment, is whether the inclusion of paragraph 11 was made reasonably necessary by a real risk of such contact taking place as a result of the appellant engaging in an activity which was covered by it and which was not a “regulated activity”, bearing in mind also the prohibition imposed by paragraph 10.[22]The risk must be assessed in the context of the judge’s finding that the appellant is dangerous, which was based on detailed findings about his grooming behaviour, the images of which he was in possession, his internet search history which included search terms making very concerning references to sexually violent behaviour with young or “teen” girls and his attitude as revealed by the pre-sentence report.[23]As a result of those matters there was and is a pressing need to protect young girls from being caused sexual harm by the appellant. Paragraph 11 was framed to capture circumstances which would fall outside the statutory barring regime and in which, if the risk eventuates, the applicant might seek to argue that any contact with a child falls within the exceptions to paragraph 10.[24]It appears that this question was not explored before the sentencing court in as much detail as it could and should have been. Having considered the evidence and heard the submissions ourselves, we are not able to conclude that the risk was not sufficient to justify the inclusion of paragraph 11 in the order.[25]Ground 3 therefore fails.[26]The appeal will therefore be dismissed.