England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR OCKELTON sitting as a deputy High Court judge)

		Royal Courts of Justice Strand, London, WC2A 2LL
		25th November 2011

Lord Justice Pill:

1. The applicant, Maria O'Connell, seeks judicial review. She has made her application to the High Court, Mr Ockelton sitting as a deputy High Court judge. He has refused it. Ms O'Connell comes to this court and has had her application considered on paper by Sir Richard Buxton, who refused it. The application is renewed for oral hearing and Ms Richards QC appears for the applicant.
2. The applicant is a care worker, having been in the social care industry for many years. On 16 May 2008 she was dismissed by her employers for gross misconduct. On 13 November 2008 she was informed by the Department of Health that she had been provisionally included in the lists known as the Protection of Vulnerable Adults (PoVA) and Protection of Children (PoCA) maintained by the appropriate Secretaries of State. She was told on 29 June 2009 that the Secretary of State had confirmed her inclusion on the lists. The applicant appealed against those decisions to the First-tier Tribunal under Section 86 of the Care Standards Act and Section 4(1)(a) of the Protection of Children Act 1999.
3. The tribunal heard evidence of a final warning having been issued following many years with an unblemished record and that was followed by a further disciplinary hearing in April 2008, the particulars of which are available in the papers, and as a result the applicant was dismissed. By a decision of 20 October 2010 the tribunal rejected her appeal against her inclusion in the barred lists. The tribunal heard evidence and gave a comprehensive decision. I refer only to passages to give the flavour of it. In paragraph 51 :

"We take the view that this may be a way of minimising the difficulties with alcohol to enable her to continue drinking and to avoid taking responsibility for her actions.

52. We concluded that the appellant's evidence was unreliable…"

And reasons are given for that. Paragraph 53:

"We concluded that the admissions reflected a pattern of behaviour over a period of time which could impact significantly on the quality of care which the service users received."

4. Later in the paragraph the allegations of misconduct were said to have been admitted by the appellant and the tribunal found that such conduct had the potential to cause significant harm to vulnerable adults. Similar reference was made in relation to children and the appeals failed.
5. The result was that the applicant is barred for a period of not less than 10 years from certain employments and also from social events in which her assistance might otherwise be given. The relevant provisions need be referred to only briefly. The minimum barred period appears in paragraph 8 of the Baring Procedure Regulations 2008. That must be read with paragraph 9 of the Baring Procedure Regulations and also with paragraph 18 of Schedule 3 to the SVGA 2006, which provides at subparagraph 3 that:

"A person may only apply for permission if a) the application is made after the end of the minimum barred period."

There are other restrictions and requirements.

6. The sole relief now sought by Ms Richards on behalf of the applicant is a declaration of incompatibility. It is submitted that those provisions, briefly summarised, are incompatible with the obligations of the United Kingdom under Article 8 of the Convention. The questions Ms Richards poses are whether the rules engage Article 8.1; if so, is the provision necessary, having regard to Article 8.2?
7. Ms Richards faces a number of difficulties. One is that there is already a High Court decision in which the application for incompatibility has been rejected. That is the decision of Wyn-Williams J in R (The Royal College of Nursing) v SSHD [2010] EWHC 2761 (Admin). In that case relief was given on other grounds but a declaration of incompatibility on the present ground was refused.
8. In substance this is an application for permission to appeal against that decision; no application needed to be made in that case because relief had been obtained on other grounds, and in any event the circumstances may be somewhat different.
9. In refusing permission on the papers Sir Richard Buxton has underlined the absence of evidence on the question of incompatibility. He states:

"No doubt realising that she cannot avoid the findings of the FTT in her own case, the applicant seeks instead a declaration of incompatibility. The argument in support is long on legal analysis but very short, indeed nonexistent, on evidence. An application for a declaration of incompatibility challenges legislative policy, and as such must give cogent justification for that challenge."

Sir Richard then referred to factors which might demonstrate that a 10-year minimum period is compatible with Article 8.

10. The further point taken against the applicant, a separate point, was that on which Mr Ockelton refused permission. His emphasis, to a degree reflecting the opening sentence of Sir Richard Buxton, is that:

"No doubt at all there is no evidence which would persuade a judge of this court or a person to whom an application might be made that the claimant be removed from the list."

"So, looking at the matter as it is at the moment, this is a case in which the period of time for which the claimant is barred cannot have any perceptible effect on her."

11. Ms Richards makes the point on the facts of the case that the period has only quite recently begun and that if the ban is effective no application can be made by her until 2020, but her point on the court procedure is that declarations of incompatibility and their consideration do not depend on the facts of a particular case. Thus the problems which Ms Richards confronts are, first, the decision, following very careful consideration of the rules by Wyn-Williams J; secondly, that there is no evidence before the court which would enable a sensible decision to be made on this issue; and, thirdly, that for the present at any rate, and no challenge is made to this, the applicant's likelihood of having a ban removed is very low for the reasons given by the tribunal.
12. It is of course unattractive for this court to decide matters without any consideration of the evidence at a lower court. This court does not normally consider evidence for the first time; if it is to do its duty it must rely on analysis of evidence and findings of fact by tribunals or courts at a lower level.
13. Ms Richards confronts her difficulties in this way. First she submits that this is an application for permission and in this type of situation evidence will not be available at this stage and until further directions are given. Secondly, in relation to who should provide the evidence, she relies on the decision of this court in Wood v The Commissioner of Police for the Metropolis [2009] EWCA Civ 414. Consideration was given by the court to Article 8.2 of the Convention. Dyson LJ, giving a judgment following that of Laws LJ, stated at paragraph 84:

"In other words, the court is required to carry out a careful exercise of weighing the legitimate aim to be pursued, the importance of the right which is the subject of the interference and the extent of the interference. Thus an interference whose object is to protect the community from the danger of terrorism is more readily justified as proportionate than an interference whose object is to protect the community from the risk of low level crime and disorder."

14. Having set the scene that way, Dyson LJ stated at paragraph 90:

"It is for the police to justify as proportionate the interference with the appellant's article 8 rights. For the reasons that I have given, I am of the opinion that they have failed to do so. I would allow this appeal."

15. Similar statements made in R (F & Thompson) v SSHD [2010] UKFC 17. Lord Phillips stated at paragraph 56:

"No evidence has been placed before this court or the courts below that demonstrate that it is not possible to identify from among those convicted of serious offences, at any stage in their lives, some at least who pose no significant risk of re-offending. It is equally true that no evidence has been adduced that demonstrates that this is possible. This may well be because the necessary research has not been carried out to enable firm conclusions to be drawn on this topic. If uncertainty exists can this render proportionate the imposition of notification requirements for life without review under the precautionary principle? I do not believe that it can."

16. Thus, submits Ms Richards, at least arguably Sir Richard Buxton's approach is erroneous; it is for the Secretary of State to justify the ban and not for the applicant to produce evidence to the contrary. She relies on the apparently draconian nature of a ban for a period of ten years.
17. In relation to Mr Ockelton's approach, Ms Richards relies on the case of F (a child) which reached the Supreme Court via the Divisional Court and the Court of Appeal. In each court statements were made that the law's concern is with generality rather than the merits of a particular case when a declaration of incompatibility is sought. Latham LJ in the Divisional Court stated at paragraph 33:

"…as a matter of principle, an offender is entitled to have the question whether the notification requirements etc continue to serve a legitimate purpose determined…"

18. At paragraph 33 in the Court of Appeal, Dyson LJ giving the judgment of the court stated:

"It was important to both claimants as well as to the Secretary of State and the public at large to know whether the scheme was incompatible with art 8 on the grounds that there was no right to review notification requirements that had been imposed for an indefinite period."

19. In the Supreme Court Lord Phillips at [2010] UKSC 17 stated at paragraph 5:

"It is not to be inferred from the judgments below that, had either claimant been entitled to challenge, by way of a review, the notification requirements made in his case, the challenge would have succeeded. The only issue raised by these appeals is a general one. Does the absence of any right to a review render lifetime notification requirements disproportionate to the legitimate aims that they seek to pursue?"

20. I have expressed my concerns about proper fact-finding; making a declaration of incompatibility is a serious constitutional step which, as Sir Richard Buxton emphasised, should not be taken lightly; it should be made on the basis of evidence which someone has made available to the court. There is no such appropriate evidence at present in this case. Ms Richards notes that she has had no opportunity to present it, and in any event there is no obligation on the applicant to do so. It would not have been possible to call the evidence before the tribunal; the tribunal could not in any event make a declaration of incompatibility, and the issue before it of whether there should be a ban was a not one which brought into focus the length of a ban if a ban was imposed by virtue of the statutory provisions.
21. The further difficulty which I have already mentioned is that one has a carefully reasoned decision of Wyn-Williams J which is quite contrary to the case to be put forward by Ms Richards if she obtains permission. Wyn-Williams J was also conscious of the factual matrix and the need for it. He stated at paragraph 122:

"I am not prepared to hold that this analysis, albeit somewhat simplistic, is wrong. On that basis I am persuaded, just, that the period of 10 years, although on any view a long one, is not unjustified. I am conscious, however, that my judgment has been reached on very little factual material. Since the scheme as a whole is under a review I express the hope that the issue of minimum Baring periods will be looked at anxiously in the light of all the information available which bears upon this topic."

22. I have come to the conclusion that Ms Richards has negotiated the minefield with sufficient success to justify the grant of permission. Clearly Wyn-Williams J was exercised by the point and said that he would have been assisted had further material been available to him. Secondly, I accept that it would not have been appropriate, having regard to considerations as to where the duty to provide evidence arises and indeed not possible before the tribunal, for the applicant to have produced evidence. There is force in her submission that an applicant is entitled to permission to appeal, having regard to where the burden is and to the nature of the relief sought, without at the permission stage having evidence before the court.
23. Consideration of the purpose of the grant of permission in my judgment sufficiently deals with the point made by Sir Richard Buxton. Mr Ockelton took a different tack; the case of F (a child) was cited to him; I have already cited the conclusion he reached on that issue.
24. There is sufficient authority by virtue of F (a child) that there is a general interest in questions of incompatibility which do not always depend on the merits of the particular case. There must be limits to that; if the case plainly has no merit then it would not be appropriate to embark upon the question of incompatibility in relation to it, but I cannot put the present case into that category.
25. I propose to grant permission. I set out the considerations by which I have done so in some detail because of the difficulties involved and in the hope that it may be of assistance in future proceedings. I am saying only that the point is arguable and no more than that. The further question is whether the case should take its course or whether I should exercise the power of this court under CPR 52.16 to retain the case in the Court of Appeal. I stress the importance of evidence in my judgment in making decisions about incompatibility. There should be an opportunity for the parties to produce evidence before a judge before a decision on incompatibility is taken. It would not, in my judgment, be right for this court in this situation to act in effect as a first instance court and have to assess for the first time the evidence which may be produced before the court, if it proceeds in this court. The disadvantage of leaving it in the High Court is of course the decision of Wyn-Williams J, which appears to me to be of considerable persuasive authority, but I regard it as the better of the two courses that the application should be heard in the High Court, where it is more appropriate that evidence can be produced before the court. Of course the aim in judicial review is to limit the amount of evidence in the administrative court; but where incompatibility questions are raised, having regard to the clear authority on this point, and to the concerns expressed in the cases cited about the lack of evidence, that an opportunity should be given.
26. It may be that on appropriate material the administrative court would take a view different from Wyn-Williams J, although I am far from giving an indication to that effect. It may be that the material would confirm and reinforce the conclusion he reached in that case. If the court felt itself unable to depart from Wyn-Williams J, the opportunity to apply for permission to appeal to this court would of course be present. Even though it is just possible -- and I am not encouraging it -- that the case will end up in this court, I consider that the better procedure is that it should proceed in the administrative court. I give permission to apply on that basis.

Order: Application granted