Neutral Citation Number: [2008] EWCA Crim 2466
No: 2008/3048/A8 
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Date: Friday, 17th October 2008
 
B E F O R E:
 
LORD JUSTICE TOULSON 
 
MR JUSTICE GRIFFITH WILLIAMS 
 
THE RECORDER OF WINCHESTER
(His Honour Judge Brodrick) 
(sitting as a judge of the Court of Appeal, Criminal Division) 

- - - - - - - - - - - - - - - - - - - - -
R E G I N A 

‑v‑ 

STUART JOHN BARLEY
 
- - - - - - - - - - - - - - - - - - - - -

Computer Aided Transcript of the Palantype Notes of  
 Wordwave International Limited
A Merrill Communications Company
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr J Lamb appeared on behalf of the Applicant
Mr D Wilson appeared on behalf of the Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T 

1.	MR JUSTICE GRIFFITH WILLIAMS:  On 26th March 2008 at the Crown Court at Ipswich, the applicant was convicted of sexual activity with a child (count 2).  He was acquitted of a like offence (count 1).  On 15th May he was sentenced by the trial judge, His Honour Judge De Mille, to a community order with a supervision requirement for 2 years and disqualified from working with children, in accordance with provisions of section 28 of the Criminal Justice and Courts Services Act 2000.  Additionally, as he had been convicted of an offence listed in Schedule 3 of the Sexual Offences Act 2003, he was required to comply with the notification to police requirements of Part 2 of that Act for 5 years.
2.	His application to appeal the disqualification order was refused by the single judge and has been renewed to the full court.  We grant leave to appeal.
3.	The facts can be briefly stated.  The applicant was a full‑time teacher at a school in Suffolk.  The 17‑year‑old victim was a full‑time boarding pupil at that school.  On an evening in March 2007 there was a social night in the boarding house where the victim lived.  The appellant was working behind the bar.  During the course of the evening the victim drank six glasses of wine and described herself as very drunk.  She recalls at some point falling over.  Her next recollection was being in her room and kissing the appellant.  He put his tongue inside her mouth and she responded by kissing him back.
4.	What in fact happened was that a senior pupil, whom the appellant told he was going upstairs to look for her, had followed and heard a kissing sound coming from the girl's room, and so it was that the appellant was caught committing the offence.
5.	When the appellant realised that he was being observed, he stopped kissing the girl and said, "This shouldn't have happened."
6.	The victim disclosed that prior to the incident she had received text messages and emails from the appellant, to which she had responded.  Some of them were general messages about her tutor groups, but some of them were flirtatious and suggestive. 
7.	There was a pre‑sentence report before the court in which the probation officer assessed the risk of further offending.  He reported at paragraph 3.1:
"The Court will be aware this is Mr Barley's first conviction.  Whilst the seriousness of the current matter must not be diminished, there is no indication the behaviour on this occasion went beyond inappropriate communication and a kiss.  As a result of his conviction Mr Barley will no longer be allowed to teach thus the opportunities for further offending of this nature are significantly reduced.  It is my view the current matters will have acted as a significant deterrent and as such I would assess Mr Barley as posing no more then a low risk of further offending."
8.	At paragraph 4.1:
"This offence reflects distorted views on acceptable boundaries in a teacher‑student relationship and demonstrates the impact when such boundaries are crossed.  The victim in this case indicates a lasting psychological impact with it having affected her education and social functioning to some extent.  However, whilst this cannot be ignored, the factors in this case do not support an assessment of the risk of harm posed by Mr Barley as being more than low.  The abuse of power did not extend to sexual contact beyond kissing and it would appear the offence was a result of poor judgment and lack of an appropriate response to a risk situation rather than an indication of any deviant sexual interest in young girls."
9.	Additionally, there was before the court evidence from the headmaster of the school, who had terminated the appellant's employment.  His opinion was that the appellant did not pose a threat to young people.
10.	When he passed sentence the sentencing judge said this:
"As I said to your Counsel, I accept that the risk of your offending in such a way again is not high, and indeed could be classified as low, but in my judgment that risk nonetheless remains, even if it is not a high one.  And so it does seem to me that there is a likelihood that you would commit an offence with a child again if, in the course of your working relationship with a child, you were to form the kind of close relationship or friendship that you had with this girl.
In those circumstances, it does seem to me that there should be the disqualification from working with children, and I do so."
11.	Section 28 of the Criminal Justice and Court Services Act 2000 provides that if an offender is convicted of an offence against a child when the offender was 18 years or more and sentenced to a term of imprisonment of 12 months or more, the court must make an order that he be disqualified from working with children unless the court is satisfied, having regard to all the circumstances, that it was unlikely that the offender will commit any further offence against a child.  When an offender is so convicted but not sentenced to a prison sentence of 12 months or more, the court may make a disqualification order if it is satisfied that it is likely that the offender will commit a further offence against a child.
12.	When this appeal was in the list on 10th October last, the court expressed concerns that on the facts of the offence and the material before the Crown Court, the identified risk would seem to be restricted to young girls and not to young men.  If that is the correct conclusion, the provisions of section 28 of the 2000 Act are not such as to permit a limitation or restriction on a disqualification order to either young boys or young girls.  The order is generic and applies to all children.  It seemed to this court that that may be a disproportionate order in this appellant's case and so we said we wanted to consider an alternative of a Sexual Offences Prevention Order, pursuant to the provisions of section 104 of the Sexual Offences Act 2003.  That section applies to the appellant by reason of his conviction of a Schedule 3 offence: see sub‑section (2).  The relevant parts of the section are these:
"104(1) A court may make an order under this section in respect of a person ('the defendant') where any of subsections (2) to (4) applies to the defendant and ‑  ...  
 (b) in any other case, it is satisfied that it is necessary to make such an order, for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant."
13.	The court has received a report dated 13th October from the probation officer.  It is in these terms:
"Mr Barley was sentenced to a Community Order with a 24 months supervision requirement and was disqualified from working with young people under the age of 18 by Ipswich Crown Court on 15 May 2008.  He was placed on the Sex Offender Register.  The index offence, Abuse of Trust ‑ sexual activity with a child, involved Mr Barley kissing a 17 year old female student in her room at ... School.  This was a culmination of a 'flirty relationship' that had developed over the period that Mr Barley was the victim's personal tutor, and Mr Barley continues to deny kissing the victim but maintains that he was 'embracing' her and that his actions, seen by another student, was misinterpreted.  However, the witness statement of the student who observed Mr Barley and the victim states the couple were engaged in a 'consensual, passionate kiss'.
Mr Barley has complied fully with his order and reports regularly.  To date he engaged with the offending focussed work, exploring and analysing his behaviour, and identifying strategies and points in the relationship where he could, and should, have behaved more responsibly.
The victim of this offence is a 17‑year old female student.  Mr Barley does not have any convictions prior to this offence, and there is no evidence to suggest he poses a risk of harm to male students of any age.  Mr Barley was assessed by the PSR author as having a low risk of serious harm to the public and I concur with that assessment.  It is my opinion that Mr Barley's experience of the Justice system, and the extensive consequences of his conviction to his personal and professional life, will provide a strong deterrent to any further offending of this nature.
I am aware that the Court is considering revoking the disqualification order, replacing it with a Sexual Offences Prevention Order.  It is my opinion that providing Mr Barley is prevented from working with young females, there is no reason why he should not be allowed to work with young males under the age of 18."
That is an assessment which the Crown accepts.
14.	We agree with the learned judge's conclusion that there is in this case a risk, albeit not on the high side, of reoffending by the appellant, but we have concluded that that risk is one directed at young girls.  We observe that it is a disquieting feature of this latest report from the probation officer that the appellant, in the face of the clearest evidence in the Crown Court, continues to minimise his behaviour towards the victim.
15.	We are satisfied that the criteria for the making of a disqualification order are met in this case.  However, as the risk which has been identified is one which is limited to young girls, we consider that the Crown Court, had it been appraised of these matters, could have considered the exercise of the court's discretion under section 28 to make no order under that section but to make a Sexual Offences Prevention Order instead.  It is certainly the view of this court that that is the appropriate order in this case.
16.	We observe that a Sexual Offences Prevention Order is necessary when the court is satisfied that there is a need to protect the public, or any particular members of the public, from serious sexual harm from the defendant.  "Serious sexual harm" is defined in section 106(3) of that Act as including physical or psychological harm.  One only has to consider the victim impact statement in this case to appreciate how, in a case of this type of inappropriate behaviour, significantly real psychological harm can be occasioned to the victim.
17.	It was submitted by Mr Lamb that the court should impose, as an alternative to a Sexual Offences Prevention Order, an anti‑social behaviour order.  We were referred to the relevant statutory provision, that being section 1C of the Crime and Disorder Act 1998.  We are satisfied that such orders are not intended to address the risk of this type of offending and we do not consider that an anti‑social behaviour order is an acceptable or appropriate alternative.
18.	The court has therefore concluded, for the reasons we have given, that the disqualification order in this case should be quashed and replaced with a Sexual Offences Prevention Order in the terms helpfully drafted by Mr Wilson, counsel for the respondent.  The Sexual Offences Prevention Order will prohibit the appellant from engaging in any work (paid or unpaid) involving unsupervised conduct with female persons under the age of 18 years until further order.
19.	Although we were invited by Mr Lamb to restrict the order to young girls aged between 12 and 18, we are not satisfied on the information we have that that would be an appropriate order to make.  We observe that if in the course of time the appellant's circumstances are such that he would want to apply to the appropriate authority for a review of that order, he may do so.  But as we have indicated, this court is not prepared to restrict the effect of that order to any age group.  The order will therefore apply to all females under the age of 18 years.
20.	To that extent, and that extent only, the appeal is allowed.
21.	LORD JUSTICE TOULSON:  Mr Barley, no doubt you will have followed and understood that and the consequences of breach will actually be set out in the form of an order.  Breach leads to terms of imprisonment.  We trust and imagine that that would not arise in this case.
22.	THE APPELLANT:  Yes, I understand.  Thank you.
23.	LORD JUSTICE TOULSON:  Mr Gardner, thank you very much for your help on this.  Would you please also convey the court's thanks to Mrs Mendham?
24.	THE LIAISON PROBATION OFFICER:  Yes, certainly.
25.	LORD JUSTICE TOULSON:  Thank you very much indeed.
______________________________