R v Andrew Culverwell

Unless otherwise stated, all references in this judgment to legislative sections are references to sections in the Sexual Offences Act 2003.

We have before us an application for leave to appeal against conviction (in respect of which a two day extension of time is sought) and an application for leave to appeal against sentence, both applications having been referred to the full court by the Registrar.

On 13 February 2025, in the Crown Court at Bournemouth, the applicant (then aged 53) pleaded guilty to sexual activity with a person with a mental disorder by a care worker (contrary to section 38(1)) (counts 3, 5 and 9).

Following a ruling on 10 April 2025 (“the Ruling”) by His Honour Judge Pawson sitting in the Crown Court at Bournemouth (“the judge”), the applicant pleaded guilty (on re-arraignment) to sexual activity with a person with a mental disorder by a care worker (contrary to section 38(1)) (counts 4, 7, 8, 12, 13 and 14) ("the six counts").

On 14 April 2025, the applicant was convicted after trial of sexual activity with a person with a mental disorder by a care worker (contrary to section 38(1)) (count 10) and causing or inciting sexual activity with a person with a mental disorder by a care worker (contrary to section 39(1)) (count 11).

On 6 June 2025, the judge sentenced the applicant as follows: on count 3, two years' imprisonment; on counts 4, 7, 10, 12 and 14, seven years' imprisonment; on counts 5, 8, 9 and 13, six years' imprisonment; and on count 11, four years' imprisonment. All sentences were ordered to run concurrently. Thus the overall sentence was one of seven years' imprisonment. A Restraining Order and a Sexual Harm Prevention Order were also imposed.

Counts 1 and 2 (causing or inciting sexual activity with a person with a mental disorder by a care worker, contrary to section 39(1)) and count 6 (sexual activity with a person with a mental disorder by a care worker, contrary to section 38(1)) were ordered to lie on file in the usual terms.

The application for leave to appeal against conviction relates to the Ruling and to the ensuing convictions upon the applicant's guilty pleas on the six counts.

At all material times the appellant was employed as a community psychiatric nurse by a NHS Trust. He was the care worker for the complainant for over four years between mid-2016 and the end of 2020. At the beginning of 2021 he was signed off sick (on full pay). He accepted that the sexual activity the subject of the six counts had taken place. His defence was that they had occurred whilst he was off sick, with the result that he fell outside the scope of section 38.

The issue for us is whether, as the applicant submits, the judge was wrong to rule that a care worker who is off sick at the time of the relevant sexual activity falls within the scope of the section 38 offence. It is common ground that the applicant's guilty pleas are no bar to a challenge to conviction in circumstances where, by the Ruling, the judge withdrew the applicant's only defence: see R v Fouad Kakaei [2021] EWCA Crim 503 at [66] and [67].

Given the short length of delay in making the application for leave to appeal against conviction, the fact that the applicant was not responsible for it, and the nature of the issues raised, we grant the necessary extension of time and we grant leave to appeal against conviction. We also record at the outset our gratitude for the helpful and clear written and oral submissions from junior counsel on both sides, Miss Fargin for the appellant (as he now is) and Miss Austin for the respondent.

The appellant was a community psychiatric nurse working for a NHS Trust and the complainant was a patient there. The complainant had been assessed as meeting the diagnostic criteria for high functioning autism spectrum disorder or Asperger's syndrome, recurrent depression and probable complex PTSD, all of which are mental disorders within the meaning of the Mental Health Act 1983.

In September 2016, the appellant was assigned as the complainant's care co-ordinator. When they met, the complainant had suffered from repeated crises and made repeated attempts on her life. For many years the relationship between the two was purely professional.

However, during the first Covid lockdown in 2020, the appellant became sexually involved with the complainant. He was caring for her up until at least 30 December 2020, when her care was transferred to another carer because the appellant was due to undergo planned surgery in January 2021. He went on extended sick leave on 6 January 2021, during which time he remained on full pay (and under contract with the NHS Trust). There was no expectation that he would have any contact with patients during this period. He was scheduled to return to work on 15 June 2021 in a role that would not at first involve face to face contact with patients.

The sexual relationship between the appellant and the complainant continued during this period.

The appellant returned to work for about a fortnight in June 2021 before again being signed off sick. That month, the appellant began to withdraw from the complainant. She experienced a crisis and was hospitalised. As she recovered, on 26 June 2021, she reported her relationship with the appellant to her new carer. The police were informed and they conducted a video recorded interview with her. She said that she and the appellant had shared explicit and sexual messages and that she had shared intimate photographs with him. This had led to the appellant touching her sexually. She said that he would take her to their "special place" where he would take photographs of her genitals, and stroke her thigh and vagina under her clothing. She described this as happening on 3 August 2020 (count 3).

The complainant told the police that she liked being touched by the appellant and that she fell in love with him. She said that when they exchanged sexual messages, she became sexually excited. On one occasion, she said, the appellant told her to go to the bedroom and masturbate but that she was too nervous to do as he asked (count 11). She said that he would put his fingers in her vagina (count 13) and that they had sexual intercourse (count 12). She went on to describe multiple occasions when she and the appellant had had sexual intercourse (count 4).

The complainant also described how the appellant would penetrate her anally with his penis (counts 7 and 14) and penetrate her anally with his finger (count 8). She said that on multiple occasions she performed oral sex on the appellant (count 5), and that he performed oral sex on her (count 9). She said that the appellant asked her to put her finger into his anus and that she would urinate on him as it made him orgasm. She described an occasion when the appellant advised her to buy a vibrator, and then penetrated her vagina with the vibrator (count 10).

The complainant said that she and the appellant spent three nights together at her parents’ apartment over a period of months. She said that the appellant never wore a condom but never ejaculated inside her. She said that she had enjoyed the sex and had learnt a lot through the appellant, looking for a protective parent figure. She knew that the appellant was married but he said that he was going to get a divorce. She said that the appellant had told her that they could start a new life together. He was going to retire and buy somewhere to live so that they could live comfortably on his pension. However, in June 2021, the appellant had begun to distance himself from the complainant and that had led to her becoming unwell and taking an overdose.

On 2 July 2021, the appellant was arrested and interviewed by the police. He answered "No comment" to all questions.

On 5 July 2021, he was suspended by the NHS Trust. He immediately tendered his resignation. Following an interim disciplinary hearing on 27 July 2021, he was suspended by the Nursing and Midwifery Council on 28 July 2021.

At trial, the appellant accepted that the sexual acts alleged in the six counts had taken place. His defence was that, at the time of those acts, he was on sick leave and so outwith the scope of section 38. His contention was that the effect of his status on sick leave was that he did not fall within either section 42(3) or (4).

It was agreed that the appellant was caring for the complainant up until at least 30 December 2020. From 7 January 2021, it was agreed that he was on sick leave until June 2021 when he returned to work, and that he was on full pay throughout. On 28 June 2021, as we have described, he was suspended from work.

Although the issue had been raised by the parties before the start of the trial, at the close of the prosecution case the judge was invited to determine outright the question of whether the appellant was a care worker within the meaning of section 38 and section 42 should be determined by him (as the prosecution contended) or by the jury (as the defence contended).

The judge identified the questions to be determined as: "Does someone who is off work but still subject to a contract of employment have functions to perform for their employer?" and "Is that a question of fact for the jury or a matter of statutory interpretation and therefore a matter of law?" He said that the answer to the first question was "yes" and that the answer to the second question was "it is a matter of law". He ruled that the appellant was caught by section 42(3); Parliament's intention must have been to protect vulnerable people from the risk of exploitation by those having care for them. The judge went on to say that if he was wrong about section 42(3), he had reached the same decision in relation to section 42(4).

He ruled that these were all matters of law, not matters for the jury who were not expected to descend into an analysis of contractual employment law.

Miss Austin for the respondent resists the appeal. Her position is that the judge was correct to conclude that the statutory interpretation of a care worker under section 42(3) was a matter of law, and that it was his responsibility to determine the question. She refers to and emphasises the breadth of the provision in section 42(3) and points to the fact that, on the appellant's construction, there would be a complete defence when a person employed as a care worker engaged in acts with a patient, prohibited by sections 38 to 41, whilst outside their contracted hours or when on leave. This, she submits, cannot have been Parliament's intention. She concedes, in relation to section 42(4), that the issues there raised were ones that should have been left to the jury.

Section 38 provides materially as follows:

Section 42 provides materially as follows:

Section 39 (causing or inciting sexual activity), section 40 (sexual activity in the presence of a person with a mental disorder) and section 41 (causing a person with a mental disorder to watch a sexual act) all define care workers by reference to section 42 as well. Section 43 exempts spouses and civil partners, and section 44 exempts sexual relationships which pre-dated care relationships (again by reference to section 42).

The exercise is one of statutory interpretation, applying normal principles. The court is required to identify the meaning borne by the words in question in the particular context. Other provisions in a statute and the statute as a whole may provide relevant context. The words of the statute have primacy and are to be interpreted in the sense which best reflects their ordinary and natural meaning and accords with the legislative purpose, an objective concept: see R (on the application of O) v Secretary of State for the Home Department [2022] UKSC 3; [2023] AC 255, at [29] and [31].

For the reasons set out below, it is clear that Parliament intended section 38, by reference to section 42, to capture care workers on sick leave. This is so as a matter of the ordinary and natural meaning of the statutory wording; it is also consistent with legislative purpose. Abuse of a position of trust is the essence of the section 38 offence. That abuse exists whether the sexual activity occurs on-shift or off-shift.

In more detail, our analysis is as follows.

Section 38 creates the offence. Subsection (1)(e) makes clear through the word "is" that the "involvement" must be contemporaneous with the sexual activity. Section 42 then defines what manner of involvement is required. The relevant wording of section 42(3) provides that "A has functions to perform for the body or agency or in the hospital or clinic in the course of employment which have brought A or are likely to bring A into regular face to face contact with B".

Section 42(3) is concerned with the status of the offender (A) as a care worker. The appellant's submissions wrongly assume that the section requires that the care worker be performing his functions at the time of the sexual activity: it is said for the appellant that "once [the appellant] was on sick leave, … he was not performing functions for the NHS in the course of his employment as per subsection (3)…".

However, section 42(3) requires only that, at the time of the sexual activity, the care worker has relevant functions to perform. There is no requirement for the performance of the functions to be contemporaneous with the sexual activity. Whilst the duties imposed by the NHS Trust employer on the care worker must be extant at the time of the sexual interaction, the face-to-face contact does not have to be contemporaneous.

The gravamen of the section 38 offence is that a care worker abuses their position of trust and confidence by engaging in sexual activity with a patient. It is concerned with the abuse of the trust that is necessary for carers to treat their patients. Accordingly, the section 38 offence is phrased very broadly. The term "functions" in section 42 (3) covers the activities of a nurse with direct care of a patient but also, for example, those of a receptionist at a clinic (as identified in the Explanatory Notes). A carer must have functions to perform at the relevant time, but section 42 only requires that those functions have historically brought (or are likely to bring) them into regular face to face contact with the patient.

Section 38 (by reference to section 42) thus focuses on the status of the defendant as a care worker, for it is that status that creates the position of trust and confidence. It is entirely logical for there to be no requirement that the care worker be physically performing their function at the relevant time, because a carer continues to hold their position of trust (and to hold ethical duties) regardless. That trust and confidence is no less abused simply because sexual activity takes place on a care worker's day-off.

While on sick leave, a care worker may continue to have functions that have historically brought them into regular face to face contact with a patient. One such function is to act at all times in the interests of the patients of the NHS Trust employer. Another is to abide by the terms of their employment contract. Another is to obey their employer's instructions. In this case, before the appellant's sick leave, those functions were to be performed by visiting the patient (bringing them into regular face to face contact). While on sick leave, those functions were to be (or should have been) performed by not visiting the patient.

Putting this another way, the fact that a care worker is away on sick leave only affects when it may be next that the care worker is required to perform their functions; it does not vary those functions. Were the appellant's position correct, it would allow a complete defence to all care workers otherwise falling within offences under sections 38 to 41 if they happened to be on leave (including on holiday or even just non-working time in an ordinary working week) at the relevant time. A care worker who wanted to have sexual contact with someone for whom he cared would be able to do so with impunity by taking sick leave or booking holiday for the period of any anticipated sexual encounter between them.

In the present case, the uncontested evidence established that, whilst on sick leave, the appellant remained employed with functions to perform for the NHS Trust in the course of employment which had brought the appellant into regular face to face contact with the complainant.

The appellant argues that these issues should all have been left to the jury. Miss Fargin for the appellant raises an analogy with an offence of assault occasioning actual bodily harm. In those cases, where both sides disagree on whether an injury amounts to actual bodily harm, the question is left to the jury.

However, our analysis above explains the legal scope of section 42(3) and whether Parliament intended it to include care workers on sick leave. That answers a question of law. The question of fact which follows is whether section 42(3), correctly explained by the judge as including care workers on sick leave, applies to the appellant. There was no factual question for the jury to determine in this case. On the agreed facts and/or evidence that was common ground, the appellant fell within the scope of section 38. What the appellant challenges is the legal effect of undisputed facts. There may be cases where, armed with our interpretation of sections 38 and 42(3), there are still factual questions for the jury to answer, but this was not one of them.

The judge was therefore correct to conclude that, as a care worker on sick leave could continue to have functions to perform which have historically brought them into regular face to face contact with patients, they could fall within section 42(3). The judge was also correct to conclude that, as the appellant did not challenge that he was a care worker on sick leave, there were no remaining questions for the jury to answer.

Given our conclusion on section 42(3), there is no need for us to determine the section 42(4) issue. As we have identified, it is now common ground between the parties that it was an issue that should have been left to the jury on the facts.

However, by way of assistance, we address it briefly. Unlike subsection (3), the question in section 42(4) is not simply about the existence of functions to perform. Rather, subsection (4) asks whether, for the duration of his sick leave, the appellant acted in such a way as to be a "provider of care, assistance or services". That involves applying the ordinary meaning of those words to conduct. The particular details of the conduct here had not been agreed or determined and were matters properly to be left to the jury, as both sides before us today have accepted.

For the reasons set out above, the judge was correct to interpret the ordinary meaning of sections 38 and 42 (3), together with the legislative purpose, as encompassing a care worker on sick leave. The appellant's challenge was to the legal effect of his status on sick leave, not the facts, something on which the judge was entitled to rule himself.

Accordingly, the convictions on the six counts are not unsafe. We dismiss the appeal against conviction and we turn to the application for leave to appeal against sentence. The reporting restriction that we previously imposed under section 4(2) of the Contempt of Court Act 1981 is lifted with immediate effect.

The court had the benefit of Victim Personal Statements from the complainant, alongside a pre-sentence report and a psychiatric report on the appellant. We have considered all of this material.

In sentencing, the judge observed that the appellant had groomed and manipulated the complainant who was highly intelligent but acutely vulnerable. She was someone with whom the appellant could indulge his fantasies and the suggestion that there might be a long-term relationship was fiction. The appellant had committed an egregious breach of trust. The fact that the complainant had enjoyed the physical relationship was no mitigation and was the mischief at which this part of the Sexual Offences Act 2003 was aimed. The judge stated that the complainant was utterly blameless and that the appellant's behaviour had caused her tangible harm. The appellant had exploited her vulnerability as a vehicle for his own sexual pleasure and he had proved a real threat to her. He had exploited the imbalance in their relationship for his own purposes without thought as to the consequences for her. The judge did not accept that the appellant's depression or his spinal condition provided any explanation for his behaviour. Although he had expressed deep regret for the upset caused, he had put the complainant through the process of a trial.

The judge placed counts 4, 5, 7, 8, 9, 10, 12, 13 and 14 into category 1A, giving a starting point of five years' imprisonment, with a range of four to ten years. He confirmed that he had considered totality.

The aggravating features were the number of the counts, the duration of the offending, and the fact that the complainant was compelled to leave her home.

Reflecting on R v Manning [2020] EWCA Crim 592 and R v Ali [2023] EWCA Crim 232, the judge identified the mitigating features as the lack of previous convictions and the appellant's medical issues.

In relation to count 3, to which the appellant had submitted a basis of plea, there had, in effect, been a Newton hearing. The judge had found against the appellant that the appellant had stroked the complainant's vagina. That reduced the credit. It was a category 2A offence and a sentence of two and a half years' imprisonment on that count would be reduced to two years.

Put simply, Miss Fargin submits that the judge erred in determining the sentence by taking too high a starting point for the offending and thus imposing a sentence that was manifestly excessive. The judge (in her words) "went too high" by elevating the starting point of five years, for example, to seven years' imprisonment on count 10.

We can take the application for leave very shortly, for there is nothing arguably manifestly excessive about a custodial term of eight and a half years' imprisonment on counts 3, 4, 12, 7 and 14, or one of seven years' imprisonment on count 10. Such terms lay well within the sentencing range for category 1A offending, which of course gives a starting point for a single offence. Here there were many offences, and the judge had to take totality into account, given that he was imposing concurrent sentences. The lead sentences had to reflect all of the appellant's offending.

Further, there were multiple category A features here: grooming, sexual images and the use of threats. There is a particularly troubling feature of the threats made in the summer of 2021: the appellant threatened to alter the complainant's health records in a way that would potentially reduce the level of care to which she would be entitled. As a direct result of this, the complainant attempted to take her own life.

The judge was fully entitled to conclude that the aggravating features outweighed the mitigating features, reflecting, for example, the fact that the complainant had to leave her home.

For all these reasons we refuse the application for leave to appeal against sentence.