England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
V/2490/2010

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/07/2012

Lord Justice Maurice Kay :

1. The question at the heart of this case is whether the Upper Tribunal (Administrative Appeals Chamber), by its decision of 4 October 2011, should have interfered with the decision of the Independent Safeguarding Authority (ISA) not to remove SB from the Children's Barred List. Inclusion on that List prevents the included person from carrying out regulated activities with children in England and Wales. SB, who was the successful appellant to the Upper Tribunal (UT), has played no part in the ISA's appeal to this Court. However, the Royal College of Nursing (RCN) has been permitted to intervene and seeks to uphold the UT's approach to the question of whether the decision to place SB on the List was proportionate. It does not however make submissions on the facts of this particular case. The case raises important issues in relation to appeals against decisions of the ISA.
2. The factual background
3. On 14 July 2009 in the Crown Court at Leeds, SB pleaded guilty to 22 offences. All but one were offences relating to the possession of indecent photographs of children, being a sample of 20 images from the 1232 images were found on two computers. Most were at Level 1 but there were more serious examples, including six at Level 5 (sadism or bestiality involving children). The remaining offence was one of distribution of an indecent photograph of a child, which involved ten Level 1 images. On 25 August 2009, SB was sentenced to suspended sentences of imprisonment; ordered to participate in a Sex Offender Treatment Programme (SOTP) during the 2 years of the suspended sentences; subjected to a Sexual Offence Prevention Order (SOPO) until further order which, among other things, prohibited him from seeking or taking paid or voluntary employment with children under 16; and included on the Sex Offender Register for ten years.
4. In accordance with the statutory procedure, SB's case was referred to the ISA which, on 6 April 2010, informed him that he was on both the Adults' Barred List and the Children's Barred List from that date. He was invited to make representations if he wished to seek removal. On 13 May 2010, he made such representations and attached various documents including his Pre-Sentence Report (PSR), his OASys Report (effectively a risk assessment) and a selection of supportive references. He contended that the orders of the Crown Court amounted to sufficient control over him and that it was disproportionate to include him on the Lists as well. His explanation for his offences was that they facilitated masturbation to which he resorted in order to relieve stress and when under the influence of alcohol. Although at the time he had not considered the children to be victims, he now accepted that his behaviour amount to child abuse. Moreover, he had sought to address his behaviour and had completed the SOTP.
5. By a decision letter dated 16 July 2010, the ISA informed SB that, having considered his representations, it had decided to remove his name from the Adults' Barred List but that it considered it appropriate for him to remain on the Children's Barred List. By a further letter dated 22 October 2010, the ISA set out its reasons:

"… you present a future risk of harm to children and … it is appropriate for you to remain on the Children's Barred List. This is because your conviction for offences relating to possessing and distributing indecent images of children indicates a sexual interest in children posing a risk of harm to children for which the court imposed a Disqualification from Working with Children Order and a Sexual Offences Prevention Order (without limit of time) restricting possessing images of children, accessing child internet sites and working with children.

Your behaviour displays elements of susceptibility to peer pressure and you admit enjoying the kudos of belonging to a group and sharing images in exchange for praise and access to images of an increasingly serious nature, depicting children aged 3 to 13 years old and Level 5 images, indicating a sexual interest of children. Your emotional well being and methods of dealing with sex contributed to your offending and risk of reoffending. It is acknowledged that you recognise your risk factors and are motivated to change your behaviour and engage in treatment programmes to reduce the risk of reoffending. The Probation Service risk assessment concludes you pose a medium risk of harm to children, specifically females around puberty. Information indicates that there remains an unacceptable risk that similar harmful behaviour in the perpetration of sexual abuse of children may be repeated in the future."

The reference to a Disqualification From Working With Children Order was erroneous, as the ISA later conceded.

6. SB appealed to the UT on the grounds that the erroneous reference to a Disqualification Order was a material mistake of fact and that his continued inclusion on the Children's Barred List was disproportionate. Before turning to the decision of the UT, it is appropriate to set out the relevant statutory provisions.

The statutory provisions

7. The ISA was established by section 1 of the Safeguarding Vulnerable Groups Act 2006. The Barred Lists are provided for by section 2. The criteria for inclusion in the Children's Barred List are set out in Part 1 of Schedule 3. The concept of risk of harm is defined in paragraph 5(4) of Schedule 3:

"A person falls within this sub-paragraph if he may –

(a) harm a child,

(b) cause a child to be harmed,

(c) put a child at risk of harm,

(d) attempt to harm a child, or

(e) incite another to harm a child."

8. Appeals to the UT are governed by section 4(1). Section 4 then goes on to provide:

"(2) An appeal under subsection (1) may be made only on the grounds that the [ISA] has made a mistake –

(a) on any point of law;

(b) in any finding of fact which it has made and on which the decision mentioned in [section 4(1)] was based.

(3) For the purposes of subsection (2), the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact.

(4) An appeal under subsection (1) may be made only with the permission of the [Upper] Tribunal.

(5) Unless the [Upper] Tribunal finds that the [ISA] has made a mistake of law or fact, it must confirm the decision of the [ISA].

(6) If the [Upper] Tribunal finds that the [ISA] has made such a mistake it must –

(a) direct the [ISA] to remove the person from the list, or

(b) remit the matter to the [ISA] for a new decision.

(7) If the [Upper] Tribunal remits a matter to the [ISA] under subsection (6)(b) –

(a) the [Upper] Tribunal may set out any findings of fact which it has made (on which the [ISA] must base its new decision); and

(b) the person must be removed from the list until the [ISA] makes its new decision, unless the [Upper] Tribunal directs otherwise."

In the present case, the issue of permission to appeal to the UT was dealt with as part of a "rolled-up" hearing. The UT granted permission and, as I shall now describe in more detail, allowed SB's appeal by reference to proportionality.

The decision of the UT

9. Having granted permission to appeal, the UT addressed two issues. First it considered the acknowledged mistake of fact relating to the Disqualification Order. It concluded that, although the statement that SB had been made the subject of a Disqualification Order was an error of fact, it was not "a material error of fact, given that the Crown Court Judge had sentenced [SB] to the conditions of a SOPO. Thus this is not a mistake of fact which affects the decision making process". (paragraph 33). The UT then moved on to the more important question of whether there had been an error of law. It noted that it was the first occasion upon which the UT had had to consider the meaning of section 4(3). It took as its starting point the judgment of Wyn Williams J in R (Royal College of Nursing) v Secretary of State for the Home Department 2010 EWHC 2761 (Admin) where he said (at paragraph 104):

"… if [the ISA] reached a decision that it was appropriate for an individual to be included in a barred list or appropriate to refuse to remove an individual from a barred list yet that conclusion was unreasonable or irrational that would constitute an error of law. I do not read section 4(3) of the Act as precluding a challenge to the ultimate decision on grounds that a decision to include an individual upon a barred list or to refuse to remove him from a list was unreasonable or irrational or, as [counsel for the Home Secretary] submits disproportionate. In my judgment all that section 4(3) precludes is an appeal against the ultimate decision when that decision is not flawed by any error of law or fact. "

10. In the present case, it was submitted to the UT on behalf of the ISA that section 4(3) prevents the UT from considering issues relating to the weight that the ISA had attached to individual issues. The submission was that, in considering weight, the UT would be investigating appropriateness which was expressly excluded by section 4(3). The UT rejected that submission, it considered that it was within its jurisdiction to consider proportionality. It stated (at paragraph 41):

"The only way in which a Tribunal can form a view as to whether a decision … is disproportionate is to engage in 'a weighing of evidence exercise', not so as to ascertain whether the decision is or is not appropriate (that is a matter solely for the [ISA]) but so as to ascertain whether it is disproportionate and therefore outwith the lawful decision-making exercise of the [ISA]. It is therefore the totality of the evidence that the Tribunal must concern itself with. In considering the totality of the evidence, it is in our view necessary to look carefully at individual aspects to that evidence and to form a view whether the conclusion that the [ISA] has placed on the totality of the evidence is disproportionate."

11. Having derived assistance from R (L) v Metropolitan Police Commissioner [2009] UK SC3, the UT held that it was entitled "to examine the evidence and to allocate weight to it and to decide whether the balance has been struck in the right place". (paragraph 45).
12. The UT considered the material that had been before the ISA and concluded that the risk assessment in the PSR, and the references from former colleagues and family members "seemed not to have been given any weight at all". (paragraph 59). It added (at paragraph 62):

"When the [ISA] considers whether to remove a person from the Register, it must consider all of the risk factors in order to reach a decision. It is said that the risk factors indicated an unacceptable risk to children. It is our view that this conclusion cannot be justified by the evidence and that it is a decision which goes beyond a conclusion that falls within the definition of a proportionate decision. There is a failure to take account of the wealth of evidence which supports the approach of the Probation Service that he poses a low risk of reoffending."

13. In addition, unlike the ISA, the UT had seen and heard SB given evidence. It had been open to the ISA to consider oral representations but it had chosen not to do so. Indeed the UT was informed that it had never done so in any case. It is clear that the UT was favourably impressed by SB's evidence. It considered that he did not seek to minimise his offences; he accepted the seriousness of them; he showed genuine remorse and insight; he had made efforts through counselling to understand his actions; he was a highly respected member of the local community. All this led the UT to decide that "given this evidence, it is highly unlikely that he will engage in similar activity". (paragraph 64). It added (at paragraph 65):

"The Tribunal formed the view that the [ISA] gave no weight, or at least very little weight, to the issue of [SB] as a person. This is something that the Tribunal, in compliance with its duty under Article 6 of the ECHR to hear an appellant in person, has been able to do. The assessment of his oral evidence supported us in our view that the decision of the [ISA] is disproportionate."

The UT then concluded that, in the light of the error of law which it had identified, it would direct the ISA to remove SB from the Children's Barred List rather than remit the matter to the ISA for a new decision pursuant to section 4(6).

The principal grounds of appeal

14. On behalf of the ISA, Ms Natalie Lieven QC advances three grounds of appeal. At this stage, I propose to concentrate upon two of them. The first relates to the correct approach to proportionality in this context. The second concerns the extent to which public confidence in the statutory scheme and the List is a material consideration and, if so, whether it was taken into account by the UT.

(1) The approach to proportionality

15. Although section 4(3) inhibits the UT from revisiting the question "whether or not it is appropriate for an individual to be included in a barred list", Ms Lieven concedes, correctly in my view, that the UT is empowered to determine proportionality and rationality. In this regard, the passage from the judgment of Wyn Williams J in the Royal College of Nursing case (paragraph 8, above) is undoubtedly correct. Thus, the UT cannot carry out a full merits reconsideration. Its jurisdiction is more limited. In this respect, it is narrower than was the jurisdiction of the Care Standards Tribunal under the previous legislation.
16. The ISA is an independent statutory body charged with the primary decision making tasks as to whether an individual should be listed or not. Listing is plainly a matter which may engage Article 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). Article 8 provides a qualified right which will require, among other things, consideration of whether listing is "necessary in a democratic society" or, in other words, proportionate. In R (Quila) v Secretary of State for the Home Department [2011] 3 WLR 836, Lord Wilson summarised the approach to proportionality in such a context which had been expounded by Lord Bingham in Huang v Secretary of State for the Home Department [2007] 2 AC 167 (at paragraph 19). Lord Wilson said (at paragraph 45) that:

"… in such a context four questions generally arise, namely: (a) is the legislative object sufficiently important to justify limiting a fundamental right?; (b) are the measures which have been designed to meet it rationally connected to it?; (c) are they no more than are necessary to accomplish it?; and (d) do they strike a fair balance between the rights of the individual and the interests of the community?"

There, as here, the main focus is on questions (c) and (d). In R (SB) v Governors of Denbigh High School [2007] 1 AC 100 Lord Bingham explained the difference between such a proportionality exercise and traditional judicial review in the following passage (at paragraph 30):

"There is no shift to a merits review, but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test … The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time … Proportionality must be judged objectively by the court …"

17. All that is now well established. The next question – and the one upon which Ms Lieven focuses – is how the court, or in this case the UT, should approach the decision of the primary decision-maker, in this case the ISA. Whilst it is apparent from authorities such as Huang and Quila that it is wrong to approach the decision in question with "deference", the requisite approach requires

"… the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice."

Per Lord Bingham in Huang (at paragraph 16) and, to like effect, Lord Wilson in Quila (at paragraph 46). There is, in my judgment, no tension between those passages and the approach seen in Belfast City Council v Miss Behavin' Ltd [2007] UKHL 19 which was concerned with a challenge to the decision of the City Council to refuse a licensing application for a sex shop on the grounds that the decision was a disproportionate interference with the claimant's Convention rights. Lord Hoffmann said (at paragraph 16):

"If the local authority exercises that power rationally and in accordance with the purposes of the statute, it would require very unusual facts for it to amount to a disproportionate restriction on Convention rights."

Lady Hale added (at paragraph 37):

"Had the Belfast City Council expressly set itself the task of balancing the rights of individuals to sell and buy pornographic literature and images against the interests of the wider community, the court would find it hard to upset the balance which the local authority had struck."

These passages are illustrative of the need to give appropriate weight to the decision of a body charged by statute with a task of expert evaluation.

18. Ms Lieven's first complaint is that the UT failed to accord appropriate weight to the decision of the ISA. The sixteen page decision of the Upper Tribunal was undoubtedly the product of a careful and conscientious consideration. However, it seems to me that the UT did not accord any particular weight to the decision of the ISA but proceeded to a de novo consideration of its own. Its language is not entirely consistent but Ms Lieven points in particular to this passage in paragraph 45:

"On an appeal, the Tribunal is entitled to examine the evidence and to allocate weight to it and to decide whether the balance has been struck in the right place."

19. It may be that the UT did not think that the decision of the ISA merited any or much weight because it took the view that it was a flawed decision. It concluded that the ISA had failed to take account of

"… the wealth of evidence which supports the approach of the Probation Service that he poses a low risk of reoffending" (paragraph 62)

and that the ISA had given "no weight, or at least very little weight, to the issue of the Appellant as a person" (paragraph 65). In both respects, the UT based its decision not only on the material which had been considered by the ISA but on the oral evidence given by SB. It considered itself to be advantaged by the hearing of oral evidence, something which the ISA would have been able to undertake for itself but which, it seems, as a matter of policy it never does.

20. For my part, I find it difficult to escape the conclusion that the UT was simply carrying out its own assessment of the material before it. Thus, whereas it concluded that SB

"did not minimalise his offences, he accepted the seriousness of them, and he showed genuine remorse",

the detailed assessment carried out by a caseworker for the ISA had concluded that:

"although he accepts responsibility for his offending he appears to minimise his behaviour contending that his interest was in older girls fulfilling fantasies of previous sexual encounters in his youth, however images of younger children were still on his computer."

21. The assessment of the ISA caseworker was itself a careful compilation produced on a template headed "Structured judgment process" which tabulated "indications" and "counter indications" in adjacent columns. Moreover, examination of that assessment and the decision which it informed suggests to me that the conclusion of the UT that the ISA had failed to take account of "the wealth of evidence" that SB imposes a low risk of reoffending and "gave no weight or at least very little weight, to the issue of [him] as a person" was simply erroneous. The "wealth of evidence" seems to relate to the numerous positive references but it is apparent that these were taken into account in the caseworker's assessment and in the decision of the ISA. The assessment was a fair representation of the many indications and counter indications and specific mention was made of the numerous references and the fact that SB had voluntarily sought counselling.
22. This brings me to two particular points. First, there is the fact that, unlike the ISA, the UT saw and heard SB giving evidence. However, it cannot be suggested that it was unlawful for the ISA not to do so. It had had at its disposal a wealth of material, not least the material upon which the criminal conviction had been founded and which had informed the sentencing process. The objective facts were not in dispute. Secondly, Mr Ian Wise QC, on behalf of the Royal College of Nursing, emphasises the fact that the UT is not a non-specialist court reviewing the decision of a specialist decision-maker, which would necessitate the according of considerable weight to the original decision. It is itself a specialist tribunal. Whilst there is truth in this submission, it has its limitations for the following reasons: (1) unlike its predecessor, the Care Standards Tribunal, it is statutorily disabled from revisiting the appropriateness of an individual being included in a Barred List, simpliciter; and (2) whereas the UT judge is flanked by non-legal members who themselves come from a variety of relevant professions, they are or may be less specialised than the ISA decision-makers who, by paragraph 1(2) of schedule 1 to the 2006 Act "must appear to the Secretary of State to have knowledge or experience of any aspect of child protection or the protection of vulnerable adults". I intend no disrespect to the judicial or non-legal members of the UT in the present or any other case when I say that, by necessary statutory qualification, the ISA is particularly equipped to make safeguarding decisions of this kind, whereas the UT is designed not to consider the appropriateness of listing but more to adjudicate upon "mistakes" on points of law or findings of fact (section 4(3)).
23. For all these reasons I consider that the complaint that the UT did not accord "appropriate weight" to the decision of the ISA is justified.

(2) Public confidence

24. The decision of the UT did not refer to public confidence as a material consideration. Ms Lieven points to the fact that, under the previous legislation, the jurisprudence of the Care Standards Tribunal was redolent with acknowledgement of the significance of public confidence although it was not expressly referred to in the legislation. Thus in CN v Secretary of State [2004] 398 PC the Care Standards Tribunal said:

"We cannot underestimate the importance we attach to public confidence … the public at large and those who entrust their children into the hands of professionals have a right to expect, indeed to demand, that such people who are placed in such important positions of trust working with children 'in a childcare position' are beyond reproach."

This passage was referred to by Munby J in Secretary of State for Children v BP [2009] EWHC 866 (Admin), where he said (at paragraph 24):

"… the tribunal, in my judgment, is plainly right, and for the reasons it has given, in stressing the vital importance of the issue of public confidence. This does not mean, of course, that the tribunal is simply to pander to the unreasoned baying of the mob; but it does mean that it is entitled to have regard to matters which are likely to be of concern to ordinary sensible people. For my part I would not wish to question the tribunal's jurisprudence. In my judgment it is quite plainly correct."

25. I can see no reason why this approach should not be equally applicable to the decisions of the UT on appeal from the ISA. True, public confidence is not an inevitable trump card. However, it is something which must be placed in the scales when consideration is being given to the personal characteristics and interests of an appellant. Indeed, as Mr Wise himself submits, it is implicit in the fourth question posed by Lord Bingham in Huang and Lord Wilson in Quila concerning the fair balance between the rights of the individual and the interests of the community. In my judgment, it will always be a material consideration but, on the face of it, it was not specifically addressed in the decision of the UT in the present case.

Other matters

26. As I stated earlier, the ISA formulated three grounds of appeal. It seems to me that, if it is successful in relation to the two grounds that I have considered so far (or either of them) the other ground does not arise. In essence, it was a complaint that, if the UT had been correct in treating the question of proportionality as being one upon which it was entitled to reach its own conclusion, then it must follow that this court is itself entitled and bound to conduct the same exercise in deciding whether the Upper Tribunal's conclusion on proportionality was correct. However, if we are to allow the appeal of the ISA on what I have described as its principal grounds of appeal, further consideration of this ground would be otiose. In these circumstances, it is unnecessary to address the several factors which would have been urged upon us by Ms Lieven in support of the proportionality of the decision of the ISA. However, I think it appropriate to refer to one matter which has been in dispute. The UT took comfort from the fact (as it saw it) that its decision had limited practical consequences because the SOPO prohibits SB from working with children under the age of 16 with the result that the practical effect of maintaining his name on the Children's' Barred List would simply relate to 16 and 17 year olds. For my part, I do not think that the UT was justified in taking this view. There was and is undoubtedly a public interest in the protection of 16 and 17 year old girls, and they and their parents have a real interest in measures which inhibit SB access to them.
27. Next, I should refer to the authority of Wright v Secretary of State for Health [2009] UKHL 3. It featured in submissions and Mr Wise seeks to place some reliance upon it. In my judgment, the circumstances in Wright were significantly different from those in the present case. Listing by the Secretary of State in Wright cannot be equiparated with a decision of the ISA in circumstances such as those in the present case, as to which the ISA is an expert and independent body considering materials including representations made on behalf of a person in the position of SB.
28. Finally, I acknowledge the difficulty faced by the UT in a case such as this. I can think of no other statutory regime in which a tribunal is expressly prohibited from revisiting "appropriateness" but is obliged to address proportionality. However, the lines have been drawn and, as I have said, they are different lines from those which governed the jurisdiction of the Care Standards Tribunal under the previous legislation. His Honour Judge David Pearl, who presided in the UT in the present case, was formerly a distinguished President of the Care Standards Tribunal. I do not underestimate the difficulty of the transition from that regime, which permitted a full merits review, to the present one.

Conclusion

29. It follows from what I have said that I would allow the ISA's appeal, quashing the decision of the UT and restoring that of the ISA.

Lord Justice Etherton:

30. I agree.

Sir Scott Baker:

31. I agree that the appeal should be allowed for the reasons given by the Vice-President. The determining factors are, in my view, first that the UT did not give weight to the decision of the ISA (a body with particular expertise) and second that the maintenance of public confidence is an important element in the balancing exercise between the interests of the public and those of an individual who has been convicted of serious offences involving indecent images of children.