On 10th February 2026, Ellie Fargin appeared in the Court of Appeal. Ellie represented the Appellant, and, as pupils, Elliot Wright and Frances Easton were lucky enough to observe.

The facts

The Appellant was employed as a care worker. At the time of the offences, he was on sick leave. The Appellant admitted that sexual conduct took place with the Complainant, a patient. On the day of the trial, he pleaded guilty to one count of s39(1) and (4) of the Sexual Offences Act 2003 (“The Act”), and six counts of s38 of the Act after the judge removed his sole defence. The Appellant appealed the decision.

The three main issues the court had to determine were:

  • Does someone who is off work, but subject to an employment contract, have functions to perform for their employer?
  • Is this question one of fact for the jury, or one of statutory interpretation for the judge?
  • Was the sentence manifestly excessive?

The law

S38(1) of the Act states that a person (‘A’) commits an offence if:
(a) he intentionally touches another person (‘B’)
(b) the touching is sexual,
(c) B has a mental disorder,
(d) A knows or could reasonably be expected to know that B has a mental disorder, and
(e) A is involved in B’s care in a way that falls within section 42.

S42(3) of the Act applies if ‘B’ is a patient for whom services are provided by a NHS body or an independent medical agency; and A performs a function for that body which would bring them (or be likely to bring them) into regular face-to-face contact with B.

(1) Does someone who is off work, but subject to an employment contract, have functions to perform for their employer?

The Appellant argued that s42(3) did not apply because the trust did not expect him to have contact with patients whilst on sick leave. He therefore submitted he had not been performing functions for his employer.

The Respondent argued that the Appellant was caught by s42(3) because Parliament intended to protect vulnerable people (due to their mental health condition from sexual exploitation) by those in a position of trust. Furthermore, s42(3) was designed to catch employees in situations where their contract brought them into regular face-to-face contact with a protected person. The Respondent went on to suggest that if Parliament had intended to end the protection in periods of sickness, leave, or at the end of their contract, this would have been enshrined in law.

The Court of Appeal held that despite being on sick leave, a care worker does have functions to perform. For instance, a care worker is required to act in the interests of their employer, abide by the terms of the contract and follow the instructions of the employer not to visit patients on sick leave. Moreover, the Court of Appeal determined that being on sick leave only affects when a care worker is required to perform their functions, not whether they have functions to perform. If this was not the case, a care worker who wanted sexual contact with a patient would be able to do this, with impunity, by taking holiday.

(2) Is this question one of fact for the jury, or one of statutory interpretation for the judge?

The Appellant argued that the jury should decide whether he was performing functions for his employer when he was on sick leave because it was a question of fact. Furthermore, the Appellant drew comparisons between this case, and how ABH is treated in relation to what the jury are left to decide.

The Respondent submitted that the matter was one for the judge. The interpretation of legislation requires certainty. Moreover, Parliament did not intend for juries to grapple with the complexities of employment law, or to decide whether defendants should be afforded a loop hole defence.

The Court of Appeal held that the judge was correct to decide the question himself. In addition, he was also correct to use the ordinary and legislative purpose to interpret the statute in a way that meant care workers retained their functions whilst on sick leave.

(3) Was the sentence manifestly excessive?

The Appellant submitted the judge erred when passing sentence by using a starting point that was too high. He further submitted that the judge failed to balance the aggravating and mitigating factors and placed too much emphasis on the fact the victim was made to go through a trial.

The Respondent submitted that the judge did not err. There were several significant factors present including that the Appellant groomed and threatened to silence the patient.

The Court of Appeal refused leave to appeal the sentence stating that the sentence was not manifestly excessive. The judge was fully entitled to conclude it was a category A offence, particularly in light on the elements of grooming, use of threats and the patient attempting to take her own life. In addition, the sentence needed to take into account totality, which the judge had done, to reflect the number of offences.

The full judgment is available here.

Frances Easton, Pupil Barrister