Jersey Unreported Judgments

Business license - reasons for allowing an appeal against a decision of DVS

[2024]JRC083

Royal Court

(Samedi)

11 April 2024

Before     :

M. J. Thompson, Esq., Commissioner, and Jurats Hughes and Berry

 

The Appellant in person.

Advocate M J Haines as Amicus

Advocate J. P. Rondel for the Minister for Infrastructure

Advocate M. Berry for the Attorney General

judgment

the COMMISSIONER:

1.        This judgment contains the Court's reasons for allowing an appeal by Mr Want ("the Appellant") against a decision of Mr Gordon Forrest ("Mr Forrest"), Inspector of Motor Traffic and head of Driver and Vehicle Standards ("DVS") on 30 January 2023 to suspend the Appellant from holding a public services vehicle badge ("a PSV Badge") issued pursuant to Article 29 of the Motor Traffic (Jersey) Law 1935 (As Amended) ("the Motor Traffic Law").  The power to suspend a holder of a PSV  badge is contained in Article 30 of the Motor Traffic Law and is vested in the Minister for Infrastructure.  However, Mr Forrest, under authority delegated to him pursuant to powers of delegation exercised by the Respondent and notified to the States Assembly in January 2016, is permitted to exercise the power contained in Article 30 of the Motor Traffic Law to suspend or revoke the holder of a PSV badge.  Article 30(3) gives right of appeal to the Royal Court against a decision to revoke or suspend a PSV Badge.

2.        The issue at the heart of this judgment concerns to what extent a decision maker, such as Mr Forrest or the Respondent, is entitled to have regard to checks carried out by the Disclosure and Barring Service in the United Kingdom ("the DBS").  The DBS is a statutory body created in the United Kingdom pursuant to the Safeguarding Vulnerable Groups Act 2006.  The scope of that Act is set out later in this judgment, but we had to consider the legal status and effect in Jersey of checks carried out by the DBS known as DBS checks, and how far the results of DBS checks may be taken into account in Jersey by public officials in relation to the grant or refusal of licences or permits including a PSV Badge.

Background and chronology

3.        To put the submissions of the parties in context, it is necessary to set out the history of this matter and the events that have led to the present hearing.  This chronology is taken from a combination of the affidavits filed by the Appellant and Mr Forrest, other material in the Court bundle and the submissions of the parties.  There was no dispute between the parties on the factual background to the dispute.

4.        The Appellant first obtained a PSV badge in 2007, which badge was renewed every year until 2016. 

5.        In 2016, the Appellant was convicted in the Magistrate's Court of the offence of indecent assault.  In sentencing the Appellant to a twelve-month binding over order, the Assistant Magistrate, who had presided at the trial of the Appellant, put the offence "in the lowest band of seriousness" whilst stressing that in no way was he seeking to undermine the impact on the victim.  The Appellant was also required to pay compensation to the victim and he was made subject to notification requirements under Article 3 of the Sex Offenders (Jersey) Law 2010 ("the Sex Offenders Law") for a period of two and a half years.

6.        When sentencing the Appellant in 2016, the Assistant Magistrate had the benefit of a social enquiry report from the Jersey Probation and After Care Service.  The report in summary included the following conclusions:

(i)        The Appellant maintained his innocence of the offence stating that the Court did not believe him and rather it believed the victim.

(ii)       The information available to the Probation Service did not give rise to any concerns with regard to the Appellant's capacity to have supportive caring relationships.  His wife and family had also remained supportive.

(iii)      There was no evidence of any deficits regarding the Appellant's capacity to care for others and no evidence of any hostility towards females.

(iv)     The Appellant was meticulous in maintaining contact with the Probation Service.

(v)      That the Appellant presented a low risk of being convicted of further sexual offences.

7.        The prosecution did not ask for a restraining order under Article 10 of the Sex Offenders Law although it could have done so.  The Assistant Magistrate, when sentencing, doubted that he would have made such an order if one had been asked for.

8.        From the answers to questions we put to Mr Forrest it appears that the Appellant was suspended from holding a PSV badge shortly after his conviction.  The Appellant did not challenge that decision.

9.        On 19 December 2018, the Magistrate's Court heard an application by the Appellant to lift the notification requirements imposed on the Appellant in 2016.  This application was accompanied by a "De-Notification Report" from the Jersey Probation and After Care Service dated 21 November 2018.

10.     This report was based on two interviews with the Appellant carried out by the police and the probation service jointly and included the following observations, again by way of summary:- 

(i)        the Appellant wished to apply for return of his PSV badge;

(ii)       there had been no incidents or behaviours of concern since 2016;

(iii)      the Appellant had been managed as a low risk offender since that time;

(iv)     there were no significant changes to issues identified in the original social enquiry report;

(v)      there were no issues of current concern;

(vi)     there were no behaviours or responses that gave rise to any concerns about an especially negative attitude towards the victim or the potential for any form of reprisal; and

(vii)     the Appellant remained at low risk of re-conviction generally and that the Appellant had been assessed and managed by the Offender Management Unit as low risk.

11.     The Assistant Magistrate noted that the assessment was of a low risk nature and accordingly granted the application. 

12.     On 21 January 2019, the Appellant wrote to Mr Forrest seeking to have his PSV Badge reinstated. 

13.     On Tuesday 19 March 2019, an interview took place at DVS.  We do not have any documentation or notes of what was said at this meeting.  However, Mr Forrest orally explained to us that in 2019 he was satisfied that the Appellant was a fit and proper person to have his PSV badge restored because he was no longer subject to the notification requirements under the Sex Offenders Law.

14.     On 3 April 2019, Mr Forrest applied to the States of Jersey Police for a DBS check.  On 11 April 2019, the relevant search was carried out with the result "relevant info (no disclosure)".  We explain later in this judgment the different possible results that DBS checks can lead to, but in summary the outcome of the search meant that there was a relevant offence, namely the conviction in 2016, but in fact the conviction added nothing to the disclosure process.  The police did not therefore disclose any information to the Disclosure and Barring Service on this occasion.

15.     The DBS check was received by DVS on 15 April 2019.  While DVS do not keep copies of certificates received from DBS, and so we do not have a copy of the 2019 DBS certificate, the court bundle did contain a copy of the 2022 Certificate received by DVS from DBS.  This certificate recorded that no convictions including the Appellant's conviction in 2016 were recorded on the Children's or Adults' Barred Lists maintained by the DBS.  Mr Forrest confirmed in evidence that the certificate received in 2019 would have contained the same information as DVS received in 2022.

16.     We explain later in this judgment the statutory regime under which the DBS operate and what leads to individuals being placed on the Children's or Adult's Barred Lists maintained by the DBS.

17.     On 30 April 2019, Mr Forrest wrote to the Appellant by email and stated the following:

"Further your interview at DVS on Tuesday 19th March 2019, given your previous good record and character references, I am satisfied that you are "fit and proper" for the department to reinstate your Public Service Vehicle Badge with immediate effect."

18.     On 21 June 2019, the DBS wrote to the Appellant, which letter included the following:

"Following your recent application for an enhanced disclosure with barred lists check to work with children and / or vulnerable adults, we received Information from the police about your conviction. We therefore considered whether or not to include you in the Children's Barred List and / or the Adults' Barred List.

Having considered the full circumstances, we have decided that it is not appropriate to Include you In the Children's Barred List or the Adults' Barred List."

19.     The letter also referred to DBS holding disclosure information and police information, but it was not clear what information the DBS held at that time.

20.     The Appellant, through Mr Haines as Amicus, explained that he only found this letter in mid-2023.

21.     On 11 July 2022, the Appellant applied for a further DBS check to be carried out.  This was because it was the policy of DVS to require updated DBS checks every three years.  This led to the DBS providing an enhanced certificate on 13 July 2022 which recorded that no convictions, including the Appellant's conviction in 2016, were recorded on the Childrens or Adults Barred Lists, as noted at paragraph 15 above.

22.     The DVS accordingly renewed the Appellant's badge on 26 July 2022. 

23.     On 22 September 2022, the DBS wrote to the Appellant referring to his conviction in 2016 stating that the DBS intended to include the Appellant in the "Children's Barred List under paragraph 2 of Schedule 3 of the Safeguarding Vulnerable Adults Group Act 2006". 

24.     It is not completely clear why DBS wrote to the Appellant at this stage.  There had been no contact between the police or DVS with DBS.  It may be that the request was triggered by the Appellant's own application for an updated DBS check in July 2022, but the position is not certain.

25.     The Appellant replied to the DBS on 18 October 2022 referring to the fact that the Magistrate's Court had lifted the notification requirements at the end of 2018 and that his PSV badge had been reinstated since April 2019.  He also stated this was an incident at the very low end of offending and offered to provide character references.

26.     On 19 October 2022, the DBS replied to the Appellant stating that they had received his response but it might take them some time to consider it because they were relying on other agencies to send information.

27.     This reference to other agencies appears to be a request the DBS intended to make to the States of Jersey Police because the Jersey police received a request from the DBS dated 20 October 2022 asking for a summary of the police involvement and any other relevant information.

28.     By reference to the affidavit of Marina Cabot, sworn on behalf of States of Jersey Police, the Jersey police replied on 10 November 2022 to DBS and disclosed a police report created in 2016 in relation to the Appellant together with five witness statements.

29.     On 11 November 2022, the Appellant sent a series of character references to the DBS which have also been placed before us and which we considered in reaching our decision. 

30.     On 22 November 2022, the DBS wrote to the Appellant explaining what information they had revealed from the police.  The letter also contained the following statements:

"The DBS recognises your comments in your letter of representation that your offence was not committed against a child, however as detailed in our previous letter to you there are certain offences which, if a person is cautioned or convicted of these offences, constitute automatic inclusion with the right to provide representation in the Barred Lists. As the DBS is aware that you have previously applied for an enhanced disclosure application for a role of "Coach Driver - Schools" with the State Of Jersey Driver & Vehicle Standards, and as you have provided representations which discuss undertaking transport roles with children, it remains appropriate for the consider Barred List.

.....

It is also acknowledged that your letter of representation discussed your engagement with the Probation Service. Should you wish for the DBS to consider any statements or references from the Probation Service, or any other agencies you engaged with to address your offending, these should be provided to the DBS by 22 December 2022."

31.     On 15 December 2022, the Appellant wrote to DBS where he made the following statements:-

"I note your correspondence and in particular your most recent letter dated 22/11/2022.

I note that DBS are resided in England and are subject to the English Law, for my part I live in Jersey and I am subject to Jersey Law.

I note that in your correspondence that you have failed to date to explain to me the procedure you are following, the Jersey Legal Authority under which you are following this process and who is in control of this process.

You have failed to explain the process under which you are taking action, who sits on the panel, the criteria by which decision are taking, and in general a full and detailed explanation of the process.

For the above reasons, at this time I cannot partake in a process that has not been explained to me.

Any process is subject to human rights, to be given a full and detailed explanation.

The process has so far failed to uphold the human rights.

Also, Jersey has a separate Jurisdiction and DBS in the UK have not got any authority over Jersey drivers in this Island."

32.     The Appellant did not provide any probation reports in response to the request from DBS. 

33.     DBS replied on 12 January 2023, which letter included the following statement:

"Thank you for sending information for us to consider. We have considered all the information and decided it is appropriate and proportionate to include you in the Children's Barred List.

It is an offence to carry out or seek work from which you are barred. You also cannot carry out regulated work with children in Scotland. If you are currently in regulated activity you should talk to your employer as soon as possible.

Others will commit an offence if they knowingly engage you in work you are barred from."

34.     In relation to the Appellant's concerns about the jurisdiction of the DBS, the DBS replied as follows within the same letter:

"The DBS acknowledges the concerns you raised in your letter, dated 15 December 2022, regarding the jurisdiction of the DBS and regarding the process the DBS follow having not been explained to you. The DBS provided you with a factsheet which accompanied the Intended To Bar letter, issued 22 September 2022. As listed in that letter, more information on the role of the DBS and our decision making process can be found on our website at https://www.gov.uk/guidance/information-for-individuals-that-havebeen-referred-to-dbs. A further factsheet is also included with this letter."

35.     It is right to interject that the explanation provided explained the position of the DBS in relation to the United Kingdom.  It did not answer the Appellant's questions.  It is also not an offence in Jersey for people to employ individuals who are placed on the Children's or Adults Barred List by the DBS.  We set out later in this judgment both the position in the United Kingdom and our conclusions on the relationship between the DBS and Jersey.

36.     The DBS concluded that a barring decision was appropriate.  We address later why the DBS appear to have reached those conclusions.  The letter however included the following statements:

"In having more recently discussed that you are innocent of the offence, however, you have therefore failed to accept responsibility for the full extent of your harmful behaviour towards the victim, and have failed to evidence to the DBS that you have taken any steps to address why you committed this abusive behaviour towards a woman known to you through your employment, nor that you understand the significant harm you caused the victim. It is therefore considered likely that you may repeat harmful behaviour towards others in the future.

Your actions were not committed against a child, nor were they committed within a regulated activity setting, however you repeatedly failed to accept the wishes of the victim and facilitated a situation during which you sexually touched the victim knowing this was without her consent. You have provided positive references in respect of your time employed as a coach driver, including from undertaking school runs, however it is stated that following your conviction your public service vehicle badge was only reinstated in 2019 and that this role which included school runs ceased as a result of the pandemic. It is therefore not known how often you fulfilled transport roles with children in this role. Furthermore, one of the references from a childcare organisation, although praising your engagement transporting children to and from their location to school, specifies that this was undertaken with staff present on both morning and afternoon journeys supervising the children. As such, you have failed to reassure the DBS that in future you would be able to appropriately engage in regulated activity with children without concern. The DBS must also consider your potential engagement in all forms of regulated activity with children, which may include greater care and supervision responsibilities, and not just roles you have previously undertaken.

It is of concern that if engaged in regulated activity with children in the future you may again prioritise your own sexual gratification and sexually abuse a child, particularly as in a setting with children you may be engaged with post-pubescent female children up to 17 years of age. This may result from you taking advantage of your role, and the relationships and opportunities which such engagement would provide, or may be a result of you inappropriately considering friendly behaviour demonstrated towards you was a form of flirting. You may also prioritise your own needs in any context, not necessarily only sexually, at the expense of the welfare of a child. As you were able to commit such an offence without understanding or whilst disregarding the harm you would cause, in regulated activity you may fail to recognise and therefore act on harm being caused to a child in a setting where they would be dependent upon you to safeguard them. Your failure to consider the wishes or consent of the victim also means that you may fail to consider or may ignore the wishes of a child in relation to their own care or wellbeing. In view of the risk of harm posed it is appropriate to include you in the Children's Barred List."

37.     The letter also informed the Appellant of his right to appeal to a tribunal known as the Upper Tribunal based in London within three months.  The DBS also noted that they might reconsider their decision if they identified an error or received more information about the Appellant in the future.

38.     At the same time as dealing with the DBS, the Appellant had made Mr Forrest aware of the correspondence from DBS.  He firstly emailed Mr Forrest on 29 September 2022, which email included the following statement:

"I have recently renewed my PSV badge and received the attached Letter from Disclosure and Barring service who I believe act on your behalf suggesting they have a intention to bar me over the incident back in 2016. I refer to the email below dated the 30th November 2019 where you felt as Motor Traffic officer I was fit and Proper and for the department to re instate my Public Service Vehicle Badge with immediate effect."

39.     Mr Forrest replied asking for a full copy of the letter of 22 September 2022 because Mr Forrest had only received the first page.

40.     This led to a meeting between the Appellant (who was accompanied by a Mr Paul Battrick) and Mr Forrest on 18 October 2022.  By reference to paragraph 13 of his first affidavit, Mr Forrest stated:

"At that meeting, I noted that the letter from the DBS to the Applicant stated that the Applicant could make representations to the DBS as to why he considered he should not be placed on the Children's Barred List. I explained to Mr Want that it was for him to write to DBS and that it was not for Driver and Vehicle Standards to write to DBS on his behalf."

41.     On 26 January 2023, a further meeting took place between Mr Forrest and his deputy and the Appellant and Mr Battrick.  At paragraph 15 of his first affidavit, Mr Forrest stated:

"I explained that, having considered the facts, I had to suspend the Appellant's badge indefinitely, by reason of his conduct, as he had been placed on the DBS Children's Barred List, the reasoning for which was outlined in the aforementioned DBS' "Final decision" letter dated 12th January 2023."

42.     This was followed up by a letter dated 30 January 2023.  This letter included the following statements:

"The letter informs you of the decision reached by them to include you in the Children's Barred List and outlines how they reached this decision further to you making an enhanced disclosure application for a role of Child Workforce Coach Driver with the Driver and Vehicle Standards agency in Jersey." [Emphasis added]

"The DBS acknowledges that by your inclusion in the Children's Barred List, you will be -- unable to fulfil school-contracts and other-employment opportunities-whilst undertaking ... driving roles, and, as such, the decision therefore Impacts on your ability to work as a PSV Driver and Badge Holder for the foreseeable future in Jersey."

43.     In paragraph 26 of his first affidavit, Mr Forrest deposed as follows:

"26. ...it is clear from the Final Decision Letter (as outlined above) that the Appellant's lack of remorse weighed heavily on the decision of the DBS to place Mr Want on the Children's Barred List."

44.     At paragraph 27, he stated as follows:

"27. In my view it is clear that the Disclosure and Barring Service consider that the Appellant has not taken responsibility for his actions, and as such may offend again. It is for the Appellant to challenge the decision of the DBS. This is something that the Minister has put to Mr Want (as explained in further detail below), but to the best of my knowledge Mr Want has been unwilling or unable to challenge the decision of the DBS. The assumption of the DBS seems to be that Mr Want may offend again as he has not taken responsibility for his actions for which he was convicted, so he could offend against adults or "post- pubescent female children up to 17 years of age"."

45.     His conclusion is to be found in paragraph 28 as follows:

"28. In summary, my position and the position of DVS has been not to challenge the conclusions of the Disclosure and Barring Service and given that they have put the Appellant on the Children's Barring List, it makes it impossible as it stands for the regulator to allow him to continue as a PSV driver. To reiterate, it is for the Appellant to challenge the decision of the DBS." (underlining added)

46.     In his second affidavit at paragraph 10, Mr Forrest stated:

"During the suspension meeting, I explained to the Appellant that, in light of the "Final Decision" letter from the DBS that placed the Appellant on the Children's Barred List, by reason of the Appellant's conduct I had but to suspend his PSV badge for the foreseeable future, as being placed on the Children's Barred List clearly rendered Mr Want not fit as to character to drive a public service vehicle in a situation where he may have to carry young adults or children on their own in a bus or a taxi-cab, a situation which occurs on a regular basis in the PSV world in an unsupervised environment." (underlining added)

47.     He also stated the following at paragraph 13:

"13. It is not my function to look behind the findings of the DBS on the basis that an applicant for a PSV badge will not accept the legal standing of the DBS. To do so would be to fatally undermine the purpose of the policy and the role of DBS. They are the professional body set up to make such determinations, this equally applies to applicants for PSV badges as it does to other areas of Government and the private sector who use the UK Disclosure and Barring Services to benchmark whether a potential employee is fit and proper. It is not my role to usurp this function."  (underlining added)

48.     Mr Forrest, in his oral evidence, confirmed that when DBS put an individual on a barred list, that individual was no longer fit and proper to hold a PSV badge.  A person on a barred list was a risk to the public and it was not a risk that Mr Forrest was willing to take by granting to such a person a PSV Badge.  As Mr Rondel put it in submissions, the decision to suspend the Appellant as a result of the DBS was an automatic one.  Mr Forrest also confirmed that it was for the Appellant to go back to DBS to get himself off the Childrens Barred List.

49.     In his affidavit evidence, Deputy Sir Philip Bailhache sought to meet with the Respondent after the suspension of the Appellant's PSV badge, to see if the decision could be changed.

50.     The then Minister for Infrastructure has filed an affidavit in these proceedings.  Although the former Minister explained that he was considering overturning the decision, in the interim the Appellant lodged his appeal and so no decision was made by the Respondent in relation to Mr Forrest's decision.  The implication from this evidence was that the Respondent (Deputy T. Binet) then decided to wait the outcome of the appeal.

51.     As part of the process of the Respondent considering whether or not to review Mr Forrest's decision, an updated probation report dated 31 May 2023 was obtained in relation to the Appellant and sent to the Respondent.  The Probation Service continued to assess the Appellant's risk of sexual reconviction as remaining within the low bracket and stated that the following factors contributed to this:

·      "Stable relationship with his wife and reports positive social supports in the community.

·      Stable employment.

·      No reported substance issues.

·      No evidence of sexual deviance or dysregulation.

·      Generally well-Integrated in society.

·      Has been consistently cooperative when involved with professionals and services."

52.     The letter also noted that ultimately it was a matter for the Minister as to whether or not the Appellant was suitable to hold a PSV badge and not for the report from the Probation Service to determine.

53.     We observe at this stage that the failure of the Respondent to take a decision is regrettable because under the powers of delegation exercised by the Respondent in January 2016, the power of delegation refers to a right of appeal to the Respondent against a delegated decision.  In future cases it is preferable for any such right of appeal to be exhausted before any appeal is determined by the Royal Court.  Where an individual issues proceedings against a decision of an individual acting under delegated authority, in order to avoid any argument at a later date that any appeal to the Royal Court is out of time, we consider it preferable for any such appeal to be stayed until rights of appeal to the relevant Minister have been exhausted.  The Royal Court should only have to determine appeals against administrative decisions under delegated authority after that decision has been reviewed by the Minister or other primary decision maker.

54.     However, such a review did not happen in this case.  Accordingly, no appeal to the Respondent against Mr Forrest's decision has taken place and therefore the Court is required to consider that decision and the events leading to it.

55.     We finally note that the Appellant has not appealed the decision of the DBS which is again a matter we return to later in this judgment. 

The UK legislation

56.     In view of the arguments raised by the Appellant, it is necessary for us to summarise as best we can the applicable legislation in force in the United Kingdom in relation to the DBS.  We do so by our reading of the relevant statutory legislation and assisted by counsels' understanding of that legislation. 

57.     The Criminal Records Bureau (the predecessor to the DBS) was established by the enactment of the Safeguarding Vulnerable Groups Act 2006 ("the 2006 Act").  The DBS took over the responsibilities established by the 2006 Act in 2012.  The current version of the 2006 Act in Section 2 therefore requires the DBS to maintain the Children's Barred List and the Adults' Barred List.

58.     If a person is on a Barred List, they must not, in the United Kingdom, engage in any regulated activity (Section 3).  For children, regulated activity includes any form of care or supervision of children (paragraph 2(1)(b) of Schedule 4), and any form of advice or guidance provided wholly or mainly for children (paragraph 2(1)(c) of Schedule 4) carried out frequently by the same person (paragraph 1(1)(b) of Schedule 4).

59.     Section 4 creates rights of appeals to the Upper Tribunal which is a tribunal.  The Upper Tribunal is an appeals tribunal which deals with tax matters, immigration appeals, land and administrative appeals.  Permission is required from the Upper Tribunal to make an appeal to it. 

60.     Section 6 defines individuals who are providers of a regulated activity. Under Section 7, it is now a criminal offence for a barred person to engage in any regulated activity.  Under Section 9, a person who permits to engage in a regulated activity who is on a Barred List also commits a criminal offence.

61.     Section 28 establishes an independent monitor to review the operations of the DBS. 

62.     There are other obligations on various bodies within the United Kingdom to provide information to DBS, but it is not necessary to refer to the detail of these for the purposes of this judgment.

63.     The DBS maintains a list of offences where they must place a person on a Barred List.  This includes offences committed in Jersey.  For the most serious offences, a person is placed on a barred list without any right to make representations.  For other offences, the DBS is required to place an individual on a Barred List subject to giving that individual an opportunity to make representations to the DBS as to why that person should not be included in the Childrens Barred List.  An offence of indecent assault in Jersey against an adult is an offence where an individual has a right to make such representations.

64.     There are other ways in which a person can be placed on a Children's Barred List but they are not relevant to this case.

65.     Similar provisions exist in relation to the Adults' Barred List.

66.     The information the DBS can provide where a DBS check is applied for is as follows:

(i)        A basic check which shows unspent convictions and conditional cautions;

(ii)       An enhanced check shows spent and unspent convictions and adult cautions and whether or not a person is listed on one of the Barred Lists.  If a person is not on a Barred List spent convictions and cautions are not disclosed;

67.     Anyone can apply for a basic check.  An enhanced check is provided for anyone engaged in regulated activity.  Such a check requires employers or other organisation the individual is involved with or dealing with to agree to an enhanced check being provided. 

68.     The types of checks that are provided are set out in the Police Act 1997.  In summary, what is provided is either a criminal record certificate or an enhanced criminal record certificate.

The position in Jersey

69.     In relation to Jersey, the provisions of the Police Act (Criminal Records) (Jersey) Order 2010 extended parts of the 2006 Act and the Police Act 1997 to Jersey.

70.     Pursuant to Article 31 of the States of Jersey Law 2005, the proposal to extend parts of the Police Act 1997 and the 2006 Act were debated by the States Assembly which passed a proposition in 2009 agreeing that the proposed Order in Council should be extended to Jersey.

71.     The provisions extended to Jersey were modified in 2012 by an Order in Council, which Order in Council was presented to the States Assembly on 6 August 2012. 

72.     The provisions extended to Jersey were found in Part 5 of the Police Act 1997, and that part of the 2006 Act establishing an independent monitor. 

73.     The provisions of the 2006 Act establishing Children's Barred Lists and Adults' Barred Lists were not therefore extended to Jersey.  Nor were the provisions in Section 4 of the 2006 Act setting out rights of appeal.  In relation to rights of appeal, however, during oral submission, Advocate Rondel drew our attention to the fact that when the amended legislation was included in 2012, it was intended that any appeal process would take place in the United Kingdom, rather than Jersey.  The then Home Affairs Minister noted:

"To set up our own independent appeals approach would be very, very expensive and, frankly, we would have difficulties of consistency in relation to that."

74.     The searches carried out under the Police Act relate to central records.  By virtue of the Order in Council extending the Police Act to Jersey in 2010 and then amending it in 2012, central records was extended to include convictions in Jersey as well as other parts of the United Kingdom.  This has two effects.

75.     Firstly, anyone in the United Kingdom can now obtain details of any relevant criminal conviction under a criminal record certificate or an enhanced criminal record certificate (where one can be applied for) which has been committed in Jersey. 

76.     Secondly, for anyone in Jersey, the criminal record certificates and enhanced criminal record certificates that can be applied for will cover all disclosable criminal offences committed in the United Kingdom and other Crown Dependencies.

77.     The extension of the Police Act expressly referred to the provision of enhanced criminal record certificates.  These certificates cover whether individuals are on Barred Lists. It also referred to whether or not an individual was on an Adults' Barred List (see Sections 113E(4)and (5)A. (3)A and 113BB of the Police Act) but not on a Children's Barred List except in cases of Crown Appointments.   The Order in Council as extended to Jersey although it is far from easy to follow therefore contemplated that individuals would be placed on Barred Lists by the DBS, even though the express obligation to maintain such lists and the related criminal offences referred to above were not extended to Jersey.   We discuss later in this judgment the differences between the UK and the Jersey position. 

The parties' submissions

78.     The Appellant, with the assistance of Mr Haines as an amicus on an unpaid basis, to whom the Court wishes to express its gratitude, made the following submissions.

79.     The relevant legal test on the appeal was that set out in Bisson v Minister for Infrastructure [2020] (1) JLR 51.

80.     The Appellant then contended that Mr Forrest had acted inconsistently in returning the Appellant's PVS Badge in 2019, renewing the same in 2022 and then revoking it in 2023.

81.     The Appellant also criticised the DBS for acting inconsistently because on 21 June 2019, as set out at paragraph 19 above, DBS had decided not to place the Appellant on the Children's Barred List or the Adults' Barred List.  Yet in 2022 the DBS chose to place the Appellant on the Children's Barred List for the same offence contrary to its decision taken in 2019. The DBS had therefore acted inconsistently.  The DBS had also failed to explain in their letter of 22 September 2022 or in their letter of 12 January 2023 their change of position.

82.     Mr Forrest had not been given a reason in law to explain why the Appellant was no longer a fit and proper person.

83.     The Appellant also contended that DBS had no jurisdiction to conduct proceedings in England over a resident in Jersey applying English law and procedure.  This was unconstitutional by reference to the Charter of Elizabeth I of 27 June 1562.

84.     The Appellant was further critical of Mr Forrest for failing to address the inconsistencies between the letters of DBS written in 2019 and in 2022. 

85.     Both the DBS and Mr Forrest failed to take into account the opinions of the Magistrate's Court and the reports from Probation.

86.     The Appellant's conviction related to one incident concerning an adult.  Nothing in relation to his conviction gave rise to any issues concerning children.

87.     The DBS only had evidence from the police.  There was a significant difference between the conclusions the DBS had drawn as set out in its letter of 12 January 2023 and the approach of the Court both on sentencing and when it came to lift the notification requirements.  The DBS therefore failed to take into account the matters referred to at paragraphs 6 to 8 and 11 to 12 above.

88.     The Appellant emphasised his good character generally and the references he had received which were all consistent with the conclusions reached by the Magistrate's Court and the reports from Probation. 

89.     The Appellant accepted that by November 2022, he decided to cut off communications with the DBS because they were in England.

90.     In relation to the meeting with Mr Forrest on 26 January 2023, this was not a meeting where Mr Forrest listened to any concerns the Appellant had about the conclusions of DBS.  Rather, Mr Forrest had already made up his mind to suspend the Appellant's PSV badge.  The Appellant therefore contended that the approach followed by Mr Forrest and therefore the Respondent was procedurally unfair. 

91.     In addition, Mr Forrest and therefore the Respondent, failed to exercise their own discretion and they could not delegate that decision to DBS.  Yet, it is clear, that is what had occurred, both from Mr Forrest's affidavits, his oral evidence and his letter of 30 January 2023. 

92.     The Appellant was also critical of Mr Forrest's letter of 30 January 2023 because it directed the Appellant to appeal the decision of the DBS.  The Appellant contended that this would require him to travel to another country to employ legal advisers skilled in English law without any right to obtain legal aid and to submit to the jurisdiction of a foreign Court.  He therefore criticised the Respondent's approach as being deeply flawed.

93.     This led to the submission that the DBS had no legal basis to make orders prohibiting a Jersey resident from taking employment position which involved dealings with adults or children in Jersey, or to impose what amounted to a restraining order. 

94.     Mr Rondel, on behalf of the Respondent, contended that Mr Forrest's decision to suspend the Appellant's PSV badge was one that was reasonable, there were no errors or unfairness which were sufficiently serious to render Mr Forrest's decision unreasonable and Mr Forrest had not fettered its discretion in this case.  There had been no wrongful delegation of any statutory power to another body.

95.     Mr Rondel emphasised that the protection of children was a relevant consideration as to whether the Appellant was fit and proper to hold a PSV badge.  As the DBS had placed the Appellant on a Children's Barred List that meant that the Appellant was no longer fit and proper.

96.     To the extent that the Appellant contended that the DBS did not have all material information, that was the fault of the Appellant for not providing all information in his possession to DBS.

97.     Mr Rondel accepted that Mr Forrest had made a decision on 26 January 2023.  However, Mr Forrest had not made any decision when he met the Appellant in October 2022.  He simply advised the Appellant to engage with the DBS.  There was nothing inappropriate with that approach.

98.     Mr Rondel also fairly accepted that Mr Forrest was not shying away from paragraph 13 of his affidavit that a revocation or suspension of a PSV badge was automatic where someone "failed" a DBS check.

99.     The option of suspending the PSV badge was a neutral one because if the Appellant had appealed then Mr Forrest had made it clear that he would review the decision to suspend.  Mr Rondel therefore accepted that there had been no procedural hearing in January 2023 because Mr Forrest had made it clear that it was for the Appellant to engage with DBS.

100.   The difference between 2019 and 2022 was the letter from DBS sent in January 2023. 

101.   Mr Rondel also emphasised by reference to British Oxygen Co v Minister of Technology [1971] AC 610 the discussion at page 625, paragraphs c to f, where there was nothing wrong in principle with an authority developing a policy so that applicants to that authority knew where they stood.  In this case, the approach of Mr Forrest to not allowing anyone to benefit from a PSV licence was the application of such a policy.  There was therefore no basis to interfere with Mr Forrest's approach.

102.   In relation to the claim for damages, Article 44 of the Motor Traffic Law meant that the Respondent could only be held liable in damages where it was shown that the act or omission complained of was in bad faith.  There was no evidence of bad faith in the present case and therefore the Respondent could not be held liable to pay damages to the Appellant.

103.   It was also open to the Appellant to seek a further review from the DBS because he had not provided the relevant probation reports and the probation report obtained in 2023 to the DBS. 

104.   Mr Berry, for the Attorney General, filed written submissions in relation to the Royal Charters referred to by the Appellant.  He contended that the Charter rights were not engaged because the Appellant had a right, which he had exercised, to bring the present proceedings before the Royal Court to challenge the decision of Mr Forrest and the Respondent.  The Appellant's constitutional rights were therefore protected.

105.   Mr Berry also contended on behalf of the Attorney General that the existence of the Charters did not confer jurisdiction on the Royal Court to determine legal proceedings arising from a decision of English public authority under English law.

106.   In addition, while the Appellant had not exercised a right of appeal under the 2006 Act, there was no punishment inflicted upon him for any failure to do so.  Again therefore, none of the privileges set out in the Charter of Elizabeth I and the subsequent Charter of James II had been breached.

107.   Mr Haines, in reply, emphasised that Mr Forrest "took the decision of the DBS to put the Appellant on the Barred List as making his decision for him".  Accordingly, the decision was unlawful as there had been a failure to exercise a discretion.

108.   To the extent that Mr Forrest was concerned about the position of vulnerable islanders, he should have assessed that risk by reference to the probation reports.  He should have also had regard to the sentencing comments of the Assistant Magistrate.

109.   Mr Forrest had also failed to follow a fair process.

110.   The DBS approach was also flawed they did not have all material information and had "acted on a very one-sided account of the events".

Discussion and decision

111.   We start by reference to the applicable legal test for an appeal under Article 30(3) of the Motor Traffic Law which all parties were agreed was set out in Bisson.  The headnote to the appeal states as follows:

"(1) The court would allow an appeal if it were satisfied that the decision of the respondent was wrong. It did not have to go further and conclude that the decision was plainly wrong or so wrong as to be unreasonable or Wednesbury unreasonable. When considering whether a decision was wrong, the court would consider three aspects on the appeal: (i) whether the decision was one that the respondent was empowered in law to make (i.e. whether the decision was intra or ultra vires); (ii) whether the procedure adopted by the respondent was a fair one; and (iii) how the decision was reached on its merits. Whether the respondent took into account new relevant factors or failed to have regard to relevant factors. Whether the final decision in its merits was wrong. The court would give weight to the decision of the respondent, bearing in mind expertise and experience. The weight to be given to the expertise and experience of the decision-maker would depend on the nature of the decision made. In the present case, it was conceded that this was not a decision calling for a great deal of expertise and accordingly the court would not give significant weight to the decision."

112.   At paragraphs 13 and 14 of Bisson the Royal Court stated as follows:

"13 When considering whether the decision was wrong, the court will (following Bisson (E.R.) v. Infrastructure Min. (1) ([2016]JRC227) and (3) ([2019]JRC133)) consider three aspects on the appeal: (1) whether the decision was one which the respondent was empowered in law to make (i.e., was the decision intra or ultra vires); (2) whether the procedure adopted by the respondent was a fair one; and (3) how was the decision reached on its merits? Did the respondent take into account new relevant factors or fail to have regard to relevant factors? Was the final decision on its merits wrong or not? In this regard, the court will give weight to the decision of the respondent, bearing in mind their expertise and experience.

14 The weight to be given to the expertise and experience of the decision-maker will depend upon the nature of the decision made (as per the dicta of William Bailhache, Bailiff in Bisson (E.R.) v. Parish of St. Helier (Connétable) (4) regarding an analogous appeal provision in the Firearms (Jersey) Law 2000). Counsel for the respondent conceded that this was not a decision calling for a great deal of expertise and accordingly the court does not give significant weight to the decision made by the respondent in this case."

113.   This is the test we have applied.

114.   We next refer to the differences between the DBS regime in the United Kingdom and in Jersey.  In the United Kingdom, as we have endeavoured to summarise above, if a person is placed on a Barred List, that person must not engage in any regulated activity which includes any form of care or supervision of children.  It is also an offence for individuals or organisations who are providers of a regulated activity to engage a barred person.  These provisions do not form part of Jersey law and therefore, as noted above, DBS erred in their letter of 23 January 2023 as they were referring to the position in the United Kingdom.  Their letter was not therefore an accurate statement of the position under Jersey Law.

115.   In addition, the requirements contained in the 2006 Act to maintain Barred Lists have not been extended to Jersey expressly.  However, the results of searches carried out for individuals in Jersey will include whether or not the DBS has placed an individual on a Barred List.

116.   It is important to recognise that the extension of the legislation to Jersey allowed for details of offences committed in Jersey to be provided to the DBS and provided to anyone making inquiries of the DBS, whether those inquiries are made from within the United Kingdom, other Crown Dependencies or from Jersey.  This allows those making checks from Jersey to obtain information about individuals within the island to check whether they have committed offences elsewhere.  It also allows individuals in other parts of the United Kingdom or the Crown Dependencies to obtain information about offences committed in Jersey.  The details of offences provided therefore covers anyone who commits an offence in Jersey, whether they are here for a very short period of time or whether their connections with the island go back for many generations.  The legislation therefore provides much greater protection to the public because it broadens the scope of searches that can be carried out as it is obvious that there is a significant benefit to the scope of checks that can be carried out being expanded.

117.   Where the difficulty arises with the legislation as extended to Jersey is the lack of any express reference to Barred Lists and the express reference to a right of appeal.  As set out at paragraph 77 above, there are only references to the Adults' Barred List and a limited reference to the Children's Barred List without the full Barred list regime being extended to Jersey.  This leaves Jersey residents being required to work out for themselves that they have a right of appeal under the 2006 Act in respect of any decision of the DBS they do not like.  This is not satisfactory.

118.   The position is further not helped by the fact that the guidance sent by DBS is standard in nature.  It does not recognise that the legislation that operates in the United Kingdom has not been extended fully to Jersey.  We can well understand why the Appellant was confused in relation to the ability of the DBS service to place him on an Adults' and Children's Barred List.  We therefore encourage the Minister for Home Affairs and the Attorney General to consider whether the legislation extended to Jersey requires amendment to make it clear that DBS do have the power to place individuals on Barred Lists even if that does not lead to the commission of criminal offences and to set out expressly any right of appeal against such a decision.  We further consider that there should be guidance available specific to the regime in Jersey and making it clear what are the rights of appeal.  While it is a matter for the Minister, consideration might also be given to giving Jersey residents access to specialists who could advise on any right of appeal.

119.   For the present appeal, the most significant difference between the United Kingdom and Jersey is that the criminal sanctions that apply in the United Kingdom in relation to individuals on Barred Lists do not apply in Jersey. 

120.   This means that for any decision, where a public authority in Jersey is deciding whether or not to grant a permit or licence and requires an applicant for such a permit or a licence to undergo a DBS check, it is for that decision maker to decide whether or not to grant the permit where an applicant "fails" a DBS check because the applicant has been placed on a Barred List by the DBS.  In the United Kingdom by contrast for regulated activity, there is no such decision to be made because it is a criminal offence to both engage in regulated activity or to employ a person on a Barred list for a regulated activity.

121.   What weight the decision maker in Jersey gives to that DBS check is a matter for that individual to determine.  We can well understand given the nature of DBS checks that very significant weight may be given to an adverse DBS check.  Indeed, an adverse DBS check may be conclusive in many cases.  However, that does not detract from the obligation on the decision maker to make the decision.  The decision must not be automatic.  Rather, it must follow an independent exercise of discretion.

122.   We also accept that decision makers may issue guidance indicating that a failure to pass a DBS check or being placed on a Barred List by the DBS may well result in an application being refused.  However, a decision maker cannot formulate an automatic policy.  The decision maker must also listen to any applicant who has something new to say.  In the case of a DBS check, this means that a decision maker must listen to any additional information an applicant wishes to provide about a decision of the DBS and must allow an applicant an opportunity to do so.

123.   In the present case, as Mr Forrest made clear in his written and oral evidence, and Mr Rondel fairly accepted, the approach of Mr Forrest was not to "look behind the findings of the DBS" or to "usurp" their functions.  Mr Forrest also accepted that he had no choice but to suspend the PSV badge of the Appellant.  Mr Forrest also stated that it was for the Appellant to challenge the decision of the DBS, i.e. not Mr Forrest.  What this means is that Mr Forrest, as the decision maker, who was required to decide whether or not to suspend the Appellant's PSV Badge, has not in fact made the decision.  Rather, the decision has been made by DBS because once they placed the Appellant on the Children's Barred List, it automatically followed that the Appellant's PSV licence would either be revoked or suspended.  As Mr Forrest did not make an independent decision, the suspension of the Appellant's PSV Badge has to be set aside.

124.   We wish to stress that there is a distinction between an approach of automatically refusing a licence or permit as a result of someone being placed on a Barred List, and a decision where the decision maker has decided independently of the DBS check not to grant a permit or licence.  Indeed, we accept in many cases that a decision maker may well refuse to grant a permit or licence where the outcome of a DBS check gives rise to cause for concern because of a desire on the part of the decision maker to protect the public.  However, it is where any refusal of a permit or a licence becomes automatic as a result of an unsatisfactory DBS check that a decision maker falls into error.  That is what has occurred in this case.

125.   It also follows from what we have just said that it is important that where a person is placed on a DBS check as part of an application for a permit or licence to do something, that such a person is afforded an opportunity to persuade the decision maker why the decision maker should not base a decision on the basis of the DBS certificate received.  In the words of the British Oxygen case, the decision maker must listen to any applicant who has something new to say.

126.   In this case, there was no procedural hearing.  The meeting on 26 January 2023 was to inform the Appellant that his PSV licence was being suspended.  We are therefore satisfied that in addition to setting aside the decision of Mr Forrest on the basis that he had not made his own decision, the procedure adopted was not a fair one because there was no opportunity afforded to the Appellant to try to persuade Mr Forrest not to suspend his licence by reference to the findings of the Assistant Magistrate and the conclusions of the two probation reports obtained in 2016 and 2019 to which we have referred.

127.   We accept in reaching this conclusion that how to balance on the one hand the views expressed by the DBS with other material provided by an Applicant may not be easy.  The hurdle for an applicant to clear in respect of a decision maker may also be a high one.  That, however, does not avoid the requirement for a decision maker to adopt a fair procedure.  In this case there was no procedure and accordingly for this reason also Mr Forrest's decision has to be set aside. 

128.   We also should comment upon the observations of Mr Forrest that it was for the Appellant to appeal to DBS.  While the Appellant did not help himself by not providing the probation reports to DBS, as noted above, the information provided by DBS was also confusing and failed to recognise the differences between the legislation in the United Kingdom and the legislation as extended to Jersey.  However, this submission is not an answer to the requirement of procedural fairness or to the obligation on Mr Forrest to reach a decision on the merits.  The fact that the Appellant possessed a route to persuade the DBS to change its mind or to overturn that decision does not avoid the responsibility upon a decision maker to make a decision themselves on the merits and to adopt a fair procedure in doing so.

129.   We next turn to consider the constitutional arguments raised by the Appellant.  In view of our decision, it is not necessary for us to address these arguments.  However, given the importance of the issues raised, it is right for us to comment on the arguments advanced.  In summary, we agree with the position put forward by Mr Berry on behalf of the Attorney General.  Any constitutional rights of the Appellant under the Charters of Elizabeth I or James II have not been breached because the Appellant has a right of appeal to the Royal Court under the Motor Traffic Law.  This position would also extend to any ability to challenge any decision of a decision maker before the Royal Court whether by way of right of appeal or by judicial review proceedings if there was no right of appeal. 

130.   In relation to the decision of the DBS, this Court is not reviewing the decision of the DBS; it is reviewing the decision of the DVS to suspend the Appellant's PSV licence.

131.   We further agree with Mr Berry that the Charters also do not confer a jurisdiction on the Royal Court to determine legal proceedings arising from a decision of an English public authority under English law, such as a decision by the DBS.  That is a matter for the English Courts which is why we have made the observations at paragraph 117 and 118 above about the legislation making clear what was implicit when the legislation was passed, and by exploring whether the practical difficulties to which the Appellant alluded to in terms of appealing against a decision of the DBS can be provided by some form of access to experienced practitioners.

132.   We also agree with Mr Berry that the Appellant has not been required to appear before any Court in England.  Nor can he be subject to any punishment for not attending or not appealing.  We should add for the sake of completeness that, if the Appellant had hypothetically chosen to move to England, he then would be subject to the provisions of the 2006 Act, but that would be in respect of a jurisdiction where he had chosen to reside.  That situation does not exist in Jersey.  We wish to add that should the provisions of the 2006 Act in relation to Barred Lists be extended to Jersey and the equivalent criminal offences be created, consideration might then have to be given to how decisions of the DBS would affect residents of Jersey.  That situation, however, does not exist at present in the way the 2006 Act and the Police Act have been extended to Jersey.

133.   We next turn to consider, having decided to set aside Mr Forrest's decision, whether we should have remitted that back to Mr Forrest for consideration or whether we should reach our own decision.  By reference to paragraph 14 of Bisson cited at paragraph 112 above, we concluded that the decision whether or not to grant a PSV licence was not a decision that called for a particular degree of expertise and therefore, as in Bisson, we felt able to reach our own decision. 

134.   On the unusual facts of this case, we concluded that the Appellant's PSV badge should not be suspended, notwithstanding the fact that the DBS had placed the Appellant on the Children's Barred List.  This was the for the following reasons.

135.   Firstly, the DBS in particular did not have the benefit of the detailed probation reports.

136.   We also concluded that greater weight should be given to the views of the Assistant Magistrate, both on sentencing and the lifting of the notification requirements.

137.   Thirdly, we have had regard to the previous good character of the Appellant. 

138.   Fourthly, we took into account that there do not appear to have been any issues of concern raised since 2016 and, in addition, since the PSV licence was restored to the Appellant in 2019.  We accept in that regard that part of the period of time when the Appellant held a PSV licence was affected by Covid, which means that less weight can be given to this factor than would otherwise be the case.

139.   While the Appellant remains dissatisfied with the conviction in 2016, as the DBS noted, he has also moved on from the conviction.  His partner continues to support him, and he has received the support of his colleagues.

140.   In reaching these conclusions, we are fully conscious of the concerns of the DBS that individuals who have committed sexual offences against adults may also commit offences against children.  We do not therefore accept the submission that the fact that the Appellant's offence involved an adult rather than a child does not mean that the DBS is not entitled to take that offence into account and to evaluate the risk of offences being committed against children.

141.   However, we felt that the conclusions reached by the DBS, when set against the conclusions of probation which were confirmed in 2023, in this case put matters too highly.  We have therefore preferred to rely on the conclusions reached by the probation reports to which we have referred.  The probation service and the police had the benefit of the full picture and met the Appellant in person both in preparing reports and as part of the notification requirements. By contrast, the conclusions of the DBS were a desk based review of material relied upon by the prosecution in 2016. DBS have also not explained their change of position between 2019 and 2022.

142.   We recognise that our decision might be described as unusual but, on the particular facts of this case, we felt that there was sufficient evidence that allowed for the Appellant to have his PSV Badge restored to him.  We wish to record in that regard that we made it clear to the Appellant when we announced our decision that he must continue to behave as he has since his conviction, and that any departure from the standards he has maintained since that conviction run the risk of his PSV licence being removed altogether.

143.   Finally, we should deal with the claims for damages the Appellant advanced if the decision of Mr Forrest was set aside.  As Mr Rondel submitted, and as Mr Haines fairly accepted, there is no evidence of bad faith in this case.  Accordingly, there is no basis to award damage to the Appellant. 

144.   For all these reasons, the Appellant's appeal is allowed apart from his claim for damages.

Authorities

Motor Traffic (Jersey) Law 1935 (As Amended). 

Sex Offenders (Jersey) Law 2010. 

Police Act (Criminal Records) (Jersey) Order 2010. 

States of Jersey Law 2005. 

Bisson v Minister for Infrastructure [2020] (1) JLR 51. 

British Oxygen Co v Minister of Technology [1971] AC 610.