Upper Tribunal (Administrative Appeals Chamber)

 

A.    The DECISION of the Upper Tribunal is to grant permission to the Appellant to appeal the decision of the Respondent dated 20^th September 2011 not to remove his name from the Children’s Barred List.

B.    Having considered the Decision of the Respondent, the Upper Tribunal has reached the view that the Respondent has made a mistake on a point of law, in that the decision was disproportionate.

C.    As the decision is flawed by an error of law, the Upper Tribunal directs the Respondent to remove the name of the Appellant from the Children’s Barred List.

D.    The Upper Tribunal further DIRECTS that there is to be no publication of any matter likely to lead members of the public directly or indirectly to identify any person, including the Appellant, who has been involved in the circumstances giving rise to this appeal.

 

 

Introduction

 

1.     The Appellant has sought permission to appeal under s 4 of the Safeguarding Vulnerable Groups Act 2006 the decision taken by the Respondent (the Independent Safeguarding Authority) by letter dated 20^th September 2010 not to remove his name from the Children’s Barred List.

2.     The Grounds of Appeal are dated 21^st October 2010. On 22^nd October 2010, the Respondent was written to by the Tribunal administration. This letter, attaching the application for permission from SB, stated:

“If you have any comments that you wish the Upper Tribunal Judge to take into account when considering the application, please respond within 14 days.”

3.     SB was written to by the Tribunal administration on the same day and he was told that if he wished to discuss the progress of his case, he should contact the Tribunal on the telephone number that appears on the letter.

4.     The Respondent did not respond to the Tribunal’s letter dated 22^nd October 2010. Ms G. Ward of Counsel on behalf of ISA states that “The ISA did not receive that therefore did not respond to that letter”.  There is no record of the Appellant contacting the Tribunal. Unfortunately, the office of the Tribunal did not retrieve the file until 5^th April 2011.

5.     Given the delay in this matter, and in order to enable the application for permission to be dealt with fairly and justly, and to avoid any further delay (Upper Tribunal Rules, Rule 2), the Chair of this panel directed on 5^th April 2011 that the application for permission be considered at a ‘rolled up’ hearing. The Respondent, by way of the Response drafted by Ms G Ward of Counsel dated 16^th June 2011, did not object to this procedure ‘in the circumstance of this case’.

6.     Accordingly, the matter came before the Upper Tribunal on 23^rd September 2011, both for an oral application for permission to appeal and, if permission be granted, for a substantive hearing of the appeal. The Appellant (RB) represented himself, and Ms Ward of Counsel represented the Respondent (ISA).

 

 

The grant of permission

 

7.     The first question we must consider is whether to grant permission to appeal. We are guided by the procedure that the Tribunal adopted in SJB v ISA [2011] UKUT 286 (AAC), where the Tribunal followed the approach taken by Sullivan J (as he then was) in The Queen on the Application of Vetterlein v Hampshire County Council and Hampshire Waste Services Ltd [2001] EWHC Admin 560. In that case, Sullivan J said;

“…I am satisfied that all the arguments open to the Claimants on matters of fact and law have been placed before the Court. In the circumstances it would be wholly artificial to consider the by now academic question: is the Claimant’s case arguable? I am in a position to determine the substantive application for judicial review on its merits.”

8.     This approach is justified in a case such as the present, for three additional reasons.

9.     First, this is a case where the Appellant appears in person and it is the Tribunal’s view that he would have considerable difficulty in distinguishing between ‘arguability’ points and matters of substance to be raised if and when the hurdle of ‘arguability’ had been overcome.

10. Secondly, we are mindful of the observations made by Lord Hope in R (on the application of G) v The Governors of X School [2011] UKSC 30, where he said (at para 94)

“The principle, when the question of compliance with article 6(1) of the procedure before professional bodies is being considered, is to see whether they are subject to control by a judicial body that has full jurisdiction and does provide the guarantees of article 6(1): Albert and le Compte v Belgium (1983) 5 EHRR 533, para 29; Tehrani v United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2001] IRLR 208; R(Thompson) v Law Society [2004] 1 WLR 2522. The Upper Tribunal is such a body, and had it been necessary to do so I would have been inclined to hold that any breach of article 6(1) at the initial stage was cured by the opportunity for an oral hearing that an appeal to the Upper Tribunal provides.”

11. Thirdly, we are aware of the comment made by Carnwath LJ in Chapple v Suffolk County Council [2011] EWCA Civ 870. Carnwath LJ (who is the Senior President of Tribunals, and whose approach must carry considerable weight) said:

“…In granting permission I had in mind the evolving role of the new Upper Tribunal under the Tribunals, Courts and Enforcement Act 2007, which may provide opportunities for more flexible approaches to meeting the needs of particular cases in the interests of the parties. This court has recently emphasised the important role of the Upper Tribunal in developing practice and giving guidance for the specialist tribunals…”

12. Although Carnwath LJ was dealing with appeals to the Upper Tribunal from the First-tier Tribunal, his approach, in this Tribunal’s view, is of equal relevance in appeals from ISA to the Upper Tribunal. This is particularly the case given that this appeal is one of the first to have reached this stage, and that at the time of considering this matter, only 59 cases have been brought to the Upper Tribunal by Appellants who are appealing decisions taken by ISA. Thus it is early days in this jurisdiction, and one should err on the side of caution when considering whether or not to grant permission.

13. Accordingly, we grant permission to appeal.

 

 

 

The facts of this appeal

 

14. The facts of this case can be summarised as follows. On 14^th July 2009 at the Crown Court in Leeds, the Appellant pleaded guilty upon indictment to 22 counts. The first 21 counts relate to possession of an indecent photograph/ pseudo-photograph of a child contrary to s 160 of the Criminal Justice Act 1988. The 22^nd count relates to distributing an indecent photograph or pseudo-photograph of a child contrary to s 1 of the Protection of Children Act 1978. He was sentenced on 25^th August 2009 at Leeds Crown Court (HHJ McCullum) to 36 weeks imprisonment suspended for 24 months, consecutive for each count. The Judge ordered the Appellant, during the period of the suspended sentence, to participate in the Sex Offenders Treatment Programme as directed. He was made the subject of a Sexual Offence Prevention Order (SOPO) until further Order under ss 104 and 106 of the Sexual Offences Act 2003. In consequence, he was prohibited from having in his possession any photograph of a child under 16 unless with permission of the child’s parent or guardian; from downloading/viewing on any computer images relating to anyone under 16 except for any child related by blood, marriage or a godchild; from possessing any computer software, programme or storage images as specified above; from accessing any internet site relating to children under 16; and from seeking or gaining paid or voluntary employment with children under 16.  He was directed to remain on the Sex Offenders Register for 10 years.

15. The Appellant was referred to ISA following the conviction. The referral was received by ISA on 2^nd December 2009. These offences are contained in the “automatic inclusion” offence list for automatic inclusion in the Children’s Barred List and Adult’s Barred List with the right to make representations, as set out in paragraph 4(5), Schedule para 2(f), and Table Part 2, to the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009 (SI 2009/37).

16. Thus, where a person has been convicted of an offence contrary to s1 Protection of Children Act 1978 or s 160 of the Criminal Justice Act 1988, the ISA must include that person on the two lists.

17. The legal framework of the Safeguarding Vulnerable Groups Act 2006 has been set out in considerable detail by our colleagues in the Upper Tribunal in XY v Independent Safeguarding Authority [2011] UKUT 289 (AAC); by Wyn Williams J in R (on the application of Royal College of Nursing & Ors) v Secretary of State for the Home Department & Anor [2010] EWHC 2761 (Admin); and in the Judgments of the Justices of the Supreme Court in R(on the application of G) v The Governors of X School [2011] UKSC 30. It is not necessary for us in this decision to repeat the details of the legislative framework.

18. So far as the Children’s Barred List is concerned, a person is barred from regulated activity relating to children as defined in Part 1 to Schedule 4 of the Safeguarding Vulnerable Groups Act 2006, namely up to the age of 18 years. Ms Ward correctly summarises the effect of being placed on the list as follows:

“regulated activity (which the person is barred from doing) constitutes working with children either in employment or voluntarily. The prohibition on engaging in regulated activity is enforced by criminal sanctions. Section 7 of the Act provides that an individual commits an offence if he seeks to engage in regulated activity from which he is barred; offers to engage in regulated activity from which he is barred; or engages in regulated activity from which he is barred.”

19. Thus, the consequence for the Appellant of being placed on the List is significant. Baroness Hale of Richmond, in R (on the application of Wright and others) v Secretary of State for Health and another [2009] UKHL 3 (dealing with the former schemes, PoCA and PoVA, which were narrower in scope than the current scheme), said:

“The scope of the ban is very wide…The ban is also likely to have an effect in practice going beyond its effect in law. Even though the lists are not made public, the fact is likely to get about and the stigma will be considerable. The scheme must therefore be devised in such a way as to prevent possible breaches of the article 8 rights.”

20. The Appellant was written to by a Case Worker from ISA in a letter dated 6^th April 2010. This letter sets out the 22 counts on which the Appellant had been convicted, and states also “as part of your sentence you were disqualified from working with children.” The letter goes on to state that his convictions meet the criteria for automatic inclusion in the two barred lists, and that he has been included as from 6^th April 2010. The letter states:

“We are required to invite you to make representations as to why you should be removed from the Children’s Barred List and the Adult’s Barred List.”

21. He is told that if he wishes to make representations, he should send them in writing within 8 weeks of receiving the letter from ISA.

22. The Appellant replied to the letter from ISA by letter dated 13^th May 2010. The letter is accompanied by copies of his pre-sentence report and the OASys Report; a brief summary of his career; and ‘a selection of the 40+ references provided for the Judge at the sentencing hearing.’ The representations in relation to the Children’s Barred list made 8 points, which are follows:

·       To be included on this List gives me a heavier sentence than was handed down by the Judge who had heard all the facts of my case

·       The Judge gave me a supervision order for two years which was one year less even than had been sought by the West Yorkshire Probation Service who had already assessed me as only having a low risk of re-offending

·       There is a breach of articles 6 and 7 of the EConHR

·       My inclusion on the List and consequent exclusion from the possibility of working with 16/17 year olds constitutes an unnecessary and unjustified restraint of trade

·       Denying me access to opportunities to contribute to society via work/ volunteering militates against my rehabilitation and the opportunity to pay something back to society, as well as preventing society benefiting from my knowledge and experience

·       I am now being treated as someone with an even higher risk of offending than when I was sentenced, including a risk to an older age group (16/17 year olds). [He states that since his sentencing, he has completed the Probation Service’s I-SOTP (Internet Sex Offenders Treatment Programme) and sought and obtained private counselling from the Lucy Faithful Foundation child protection charity].

·       My inclusion on the list is disproportionate

·       The fact that I would show up on any CRB check and that I am on the Sex Offenders Register for ten years already affords more than adequate public protection against any perceived risk.

23. By letter dated 15^th June 2010, SB was told by the Case Worker from ISA that submission by him of the Post Programme Report of I-SOTP may be useful, and that if he wished to submit this Report as part of his representations, he should do so by 9^th July 2010. This letter states, in addition that

“Enquiries are being made with the police further to your information relating to the offences and you will be given opportunity to provide comment upon any additional information we may receive, prior to our final decision.”

24. By letter dated 22^nd July 2010, the Case Worker from ISA enclosed the information received from the Police dated 29^th June 2010. The Police document states that on 15^th April 2008, covert internet investigators were working online looking at internet sites that were being used by individuals to access indecent images of children. The Police captured details of a user of an internet forum site entitled ‘school days’ who had posted photos of a young female. The user was later identified as the Appellant. A search warrant was granted, and computers, CD’s and other digital storage media were seized and examined. A total of 1232 indecent images of children were found on two computers, broken down as: movies: level 1 x 21, level 2 x 1, level 3 x 2; images: level 1 x 1130, level 2 x 13, level 3 x 26, level 4 x33, level 5 x 6; Distribution level 1 x10.

25. The Appellant replied to ISA by letter dated 26^th July 2010. The Appellant observed in that letter that the Police information confirmed that his offending was in no way related to the workplace and that it was not in any way related to vulnerable adults.

26. ISA, by letter dated 20^th September 2010 (pp Chief Executive Officer) informed the Appellant that, having considered the Appellant’s representations and the evidence before it, it had decided to remove his name from the Adults’ Barred List, but that it was appropriate for him to remain on the Children’s Barred List.

27. There was further correspondence between the Appellant and ISA dealing with the misleading nature of the Guidance Notes relating to appeals attached to the 20^th September 2010 letter, and the failure of ISA to provide ‘any reasons and justification’ for their decision not remove his name from the Children’s Barred List.

28. The Casework Manager of ISA by letter dated 22^nd October 2010 enclosed a ‘revised decision’ letter dated 20^th October 2010 (pp Chief Executive Officer). The letter deals with the Children’s Barred List in three paragraphs, and states as follows:

“ We have carefully considered all the information put before us on this matter and remain of the view, despite your representations, that you present a future risk of harm to children and that it is appropriate for you to remain in 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 – 13 years old and Level 5 images, indicating a sexual interest in children. Your emotional well being and methods of dealing with stress contributed to your offending and risk of reoffending.

It is acknowledged that you recognised your risk factors and are motivated to change your behaviour and engage in treatment programmes to reduce 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 perpetuation of sexual abuse of children, may be repeated in the future.”

 

 

 

Has there been a mistake of fact?: The absence of a Disqualification Order

 

29. Ms Ward acknowledges that there was no separate Disqualification Order, but she argues that this is not a material error of fact, and that the ISA decision is not affected by the absence of a separate Disqualification Order. We agree with her.

30. We agree with the observations of our colleagues in XY v Independent Safeguarding Authority [2011] UKUT 289 (AAC) when they said at [para 53]:

“As a matter of principle, it seemed to us...if the Appellant could point to any finding of fact on which ISA’s decision was based as being plainly wrong, then that might form the basis of a successful appeal, even if it might not fall with the rather narrow R(Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 at [9] and [10] criteria. Our only qualification to that principle is that it seems to us that it must still have been an error as regards some material fact, i.e. that it could have affected the outcome.”

31. The same point was made by Wyn William J in R(on the application of Royal College of Nursing & Ors) v Secretary of State for the Home Department & Anor [2010] EWHC 2761 (Admin) when he said, at [para 102]

“In my judgement the Upper Tribunal has jurisdiction to investigate any arguable alleged wrong finding of fact provided the finding is material to the decision.”

32. The only mistake on a finding of fact which it has made and on which the decision was based which the Appellant was able to draw to our attention was the issue relating to the Disqualification Order. The other matters on which he drew our attention, namely questions as to whether he should be identified as low risk or medium risk in certain areas, in our opinion are not matters relating to a finding of fact, but rather go to whether there has been a mistake on a point of law.

33. Although the statement that he had been made the subject of a Disqualification Order is an error of fact, it is not in our view a material error of fact, given that the Crown Court Judge had sentenced the Appellant to the conditions of a SOPO. Thus this is not a mistake of fact which affects the decision making process.

34. We are aware that post 12^th October 2009, as a result of the Safeguarding Vulnerable Groups Act 2006 (Commencement No 6, Transitional Provisions and Savings Order 2009 [SI 2009/2611], there has been some disagreement amongst textbook writers as to whether a sentencing Judge, whilst required to inform a Defendant that his name will be submitted to ISA (Schedule 3, para 25 of the SVGA 2006), does not need to consider the question of Disqualification Orders. The Judge in this case sentenced the Appellant on 25^th August 2009, and thus the legal regime had not yet been changed. However, given that the interrelationship between the SVGA and Disqualification Orders was the subject of discussion at the hearing before us, we set out the discussion of the interrelationship between the two regimes by the Court of Appeal (Criminal Division,) as it appears in the relevant paragraphs of Attorney-General’s Reference (No 18 of 2011) [2011] EWCA Crim 1300 for future reference (at paras 16 ff). This may be of use if the matter were to arise in future in cases where the sentencing has been post 12^th October 2009:

 

16. A quite separate and entirely technical question of some general significance arises in relation to the inevitable disqualification of the defendant from working with children. Prior to 2006, disqualification was governed by the Criminal Justice and Court Services Act 2000. Section 28, as is well-known, created a mandatory duty on a court to make a disqualification order when the offence was a qualifying offence - see section 28(2)(a) and (4). There was a limited exception in section 28(5) to which we need not refer. The consequence of such a disqualification order was, and is, that a defendant is unable to work in what is described by the statute as a regulated position - see section 35. The particular work which falls within the notion of regulated position is defined in section 36. The consequences of disobedience to such an order are criminal. It is a criminal offence carrying up to five years' imprisonment on conviction on indictment.

17. In 2006 a new statute, the Safeguarding of Vulnerable Groups Act, set out to replace the scheme under the 2000 Act with a new one. The 2006 Act has been the subject of repeated repeal and amendment but in essence its new scheme involves a separate organisation, originally called the Independent Barring Authority and now called the Independent Safeguarding Authority ("ISA"). What used to be called "disqualification" is now called "barring". It is achieved under the new Act not by order of the court but by act of the ISA which maintains what are called "barred lists". There is a good reason for this because the ISA's remit extends well beyond persons who have been convicted of sexual offences. There are other reasons why people should be prevented for good reason from working with children. However, it does apply to convicted persons and in their case the new procedure is this. The Secretary of State is enabled by the statute to set out criteria by which he assesses people who present a relevant risk. The Act contemplates by schedule 3, paragraphs 1 and 2, that some criteria will result in what is called automatic reference to the ISA and automatic inclusion on the barring list which the ISA keeps, whereas other criteria will lead to a reference to the ISA requiring of it that it give the opportunity for representations to be made by the person concerned. The Secretary of State has prescribed such criteria. He has done it by means of the Safeguarding of Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009, SI 2009 No 37. There is a very long list of qualifying convictions and in essence qualifying sexual offences result in automatic reference by the Secretary of State to the ISA and automatic inclusion by the ISA on the relevant barring list.

18. The effect of being on the barred list is, under the new scheme, that the person in question is prevented from engaging in what this statute calls "regulated activity" - see section 3(2). Regulated activity is then defined in schedule 4 part 1. Once again, a criminal offence of disobedience to the barring is created. The important thing to recognise is that although there is an enormous overlap between what was prevented under the 2000 Act scheme and what is prevented under the 2006 Act scheme, the activities prevented are not identical. We have been told on behalf of the Solicitor General that it is at least possible that there are some activities which are prevented by scheme A but not by scheme B or for that matter vice versa. There probably are not very many but there may be some.

19. Under the 2006 Act scheme there is accordingly no occasion for the court to make any order at all. The Secretary of State deals with it by referring the convicted person to the ISA. Instead the duty on the court is simply to tell the defendant that that is what will happen. That is provided explicitly in the Act in schedule 3, paragraph 25.

20. The difficulty arises, as so often in modern legislation, from piecemeal commencement and the obscure terms of a commencement order. The relevant commencement order is the Safeguarding of Vulnerable Groups Act 2006 (Commencement No 6, Transitional Provisions and Savings) Order 2009, SI 2009 No 2611. The relevant provision is paragraph 3(2) which reads as follows:

"(2) The provisions of CJCSA referred to in paragraph (1) shall cease to have effect for the purposes of enabling a disqualification order to be made in relation to a person who is barred from regulated activity by virtue of section 3(2) of the Act."

21. The question which that paragraph leaves unanswered is this. If after the relevant commencement date, which was 12th October 2009, a defendant is convicted of a relevant sexual offence and will inevitably as a result be referred by the Secretary of State to the ISA and will inevitably be placed by the ISA on the barred list, is the court still governed by section 28 of the 2000 Act so that it must make a disqualification order? One possible construction of the paragraph is that the court does remain under a duty to make the disqualification order because at the moment that the court passes sentence the barring process has not yet been completed and so the person in question is not yet barred. That appears to be the view taken by at least one distinguished academic commentator who is experienced in examining the intricacies of sentencing legislation, Dr David Thomas. The alternative view is its transparent purpose of the statute to replace the 2000 scheme by the new 2006 scheme and that what paragraph 3(2) must mean is that where the defendant is inevitably to be barred under the new scheme, the duty to make a disqualification order under the old scheme no longer arises. That is the view taken by the learned editors of Archbold. Judges are entitled to know which is right.

22. We have been very much assisted by submissions made by Mr Heywood QC on behalf of the Solicitor General. He invites us to consider the apparent wording of the paragraph and he draws attention to the expression "a person who is barred" which we agree on the face of it does not seem to apply to a defendant such as this defendant, although it will do within a week or two or perhaps at most two or three months, when the process as between the Secretary of State and the ISA has been gone through.

23. The difficulty with that construction is twofold. First, it transparently does not give effect to the plainest possible Parliamentary intention which Mr Heywood agrees is plain, namely that the 2006 Act should replace the 2000 Act in this respect. Secondly, if that is the meaning of paragraph 3(2) then the effect will be this. The court will be required to make a section 28 2000 Act disqualification order. Two weeks or two months later the process required by the 2006 Act will take place and the ISA will incorporate the defendant onto the barred list. Thereafter the two forms of disqualification will run concurrently, but they are not necessarily the same because, as we have said before, there exists the possibility that some conduct is prevented by one but not by the other. It is true that the criminal sanction of imprisonment will not, it seems, be applicable to such a person under the 2000 Act scheme once that person is included on the barred list. That appears to be the effect of paragraph 3 of the Commencement Order read as a whole, so that any prosecution thereafter would have to be under the 2006 Act and there would not exist the risk of double prosecution. But prosecution apart, any defendant is entitled to know or to be able to be advised on what he or she can or cannot do. We do not believe that it can possibly have been the intention of Parliament or those framing the commencement order that there should continue to exist indefinitely a section 28 disqualification which is largely but not entirely dead in the water alongside a 2006 barring. There would be real difficulties for a defendant if that was so because, prosecution apart, there may be a number of occasions on which it is necessary for such a person to answer questions about what he can or cannot do, particularly on official or employment documents.

24. For those reasons, we are persuaded that in order to give effect to the transparent Parliamentary intention, the proper reading of paragraph 3(2) of the commencement order should be that the elliptical expression "who is barred" should be read as meaning "who is or is to be barred" under the 2006 Act. The result of that is that the court in such a case need no longer make a section 28 2000 Act disqualification order. Instead what it should do is to tell the defendant, as required by schedule 3 paragraph 25 of the 2006 Act, that he will be included by the ISA on the barred list. We have no doubt that that gives effect to the Parliamentary intention.

25. In this case, confronted by the disagreement between commentators to which we have referred and which is entirely understandable in the face of the obscurity of the legislation, the judge did both. It was not in the end necessary for him to do so, but we say nothing more than that the order under section 28 was unnecessary and in future cases need not be made. We are very grateful for all concerned for their assistance in this case.

 

 

 

Has there been an error of law?

 

35. In accordance with paragraph 2 of the Order dated 5^th April 2011, the Respondent submitted the document headed “Barring Decision Process.” The Document was “Quality Assured” on 18^th September 2010. It is this document which sets out in detail the Original Assessment, the Representations, the Structured Decision Making Process, and the Final Case Summary. It is this document which requires examination when considering whether there has been an error of law.

36. This case highlights in a stark way the meaning of s 4(3) SVGA 2006.  This is the first occasion that the Upper Tribunal has had to consider the meaning of s4(3) of the SVGA 2006 which states:

“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.”

37. In XY v Independent Safeguarding Authority [2011] UKUT 289 (AAC) the Tribunal said at [para 19] that it took the view that what may be the potential complications surrounding section 4(3) did not arise in that case.

38. Our starting point is that Ms Ward accepted that Wyn Williams J’s approach was the correct one. He said at [para 104] of the Royal College of Nursing case:

“...If [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 Mr Grodzinski [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.”

39. Ms Ward submitted, however, that section 4(3) prevents the Tribunal from considering issues relating to the weight that ISA attached to individual issues. She submitted that the amount of weight the Respondent attached to a particular issue is not for the Tribunal to re-determine, and that when one particular issue is one of many factors, this goes to “appropriateness” expressly excluded by s 4(3).

40. We are not able to agree with this submission. We are mindful that we must read section 4(3) in a way that is compatible with the Human Rights Act 1998, and the approach adopted by Wyn Williams J, in our view, is the correct way to proceed. If a decision taken by ISA to place a person on a list, or not to remove him from the list, is disproportionate to the facts as presented to the Respondent, then there is an error of law, and the Tribunal on appeal is entitled, indeed obliged, to direct ISA to remove the person from the list, or remit the matter to ISA for a new decision.

41. The only way in which a Tribunal can form a view as to whether a decision of the Respondent 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 Respondent) but so as to ascertain whether it is disproportionate and therefore outwith the lawful decision making exercise of the Respondent. 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 Respondent has placed on the totality of the evidence is disproportionate.

42. We gain support for this analysis from a consideration of the case law dealing with disclosure of information in enhanced Criminal Records Certificates provided under s 115(7) of the Police Act 1997. The issue arose in R(X) v Chief Constable of West Midlands Police [2005] 1 WLR 65, where Lord Woolfe said:

“It is possible that there could be cases where the information should not be included in a certificate because it is disproportionate to do so.”

43. The Chief Constable has the responsibility to decide whether it is relevant to include so-called ‘soft material’, but such disclosure is subject to judicial scrutiny by way of judicial review. Lord Woolfe provides examples of information which should not be disclosed, such as information of a trifling nature. It seems to us that whether such information is of a trifling nature is a question that goes to weight, and the court is entitled to take a view different to the Chief Constable. The Chief Constable might think the information is highly relevant, but it is open to the Court to form a different view and to decide that disclosure of that material is disproportionate to the need to disclose; which is of course to alert potential employers to perceived risks.

44. The Supreme Court considered the issue in R(L) v Metropolitan Police Commissioner [2009] UKSC 3. The Supreme Court upheld the right of the Police to disclose information in an enhanced CRC about allegations that had not been tested in a court, and held that such disclosure was compatible with art 8 EConHR. The key test must always be proportionality, and the Supreme Court decided that on the facts of the case before it, the Police had addressed their minds to the proportionality question. Indeed the Police had withheld certain information which they thought was insufficiently robust to justify disclosure, but that the other information which was the subject of the challenge was relevant to the reason for the disclosure; namely the risk to children. Lord Hope set out the test in following way at  [para 42]:

“So the issue is essentially one of proportionality. On the one hand there is pressing social need that children and vulnerable adults should be protected against the risk of harm. On the other there is the applicant’s right to respect for her private life. It is of the greatest importance that the balance between these two considerations is struck in the right place”.

45. We believe that exactly the same test should be applied when considering the SVGA regime. 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.

46. In this exercise, therefore, we have examined in detail the Pre-Sentence Report, the OASys Report, and the References submitted by the Appellant, and we have then examined the Structured Decision Making Document to see whether the Decision taken by the ISA not to remove him from the Children’s Barred List is disproportionate to the material submitted by the Appellant.

47. The Pre-Sentence Report dated 6^th August 2009 is underpinned and informed by the Offender Assessment System (OASys) in the identification of the risk of reconviction and the risk of serious harm presented by the Appellant.  The Report notes that the Appellant understands that individuals who view images such as those which he did are not only promoting the sexual abuse of children but are also involved in the abuse process itself, even though there is no physical contact with the victims. It seems that he became involved with an internet site and was then invited to join a forum on a site called ‘schooldays’ which was by invitation only. The Pre-sentence Report says

“He states that he felt quite privileged to have been asked to join and enjoyed the kudos of belonging. I understand from [the Appellant] that as part of the forum images of children were shared and after a while he was not only encouraged to share images but pressurised to do so under the threat of expulsion from the forum.”

48. The Report says that the Appellant accepts full responsibility for his action and his inappropriate behaviour although the Report states also that it could be argued that he minimises the offences by stating that his interest was only in older girls whose images fuelled his fantasies of previous sexual encounters and ‘what might have been’ from his youth.

49. It provides information of his background:

“Prior to the commission of these offences, [the Appellant] was a well respected member of the community. He was a member of xxx Council between 1996 and 2000 and was Deputy Mayor of xxx in 2004/5 and Mayor in 2005/6. He was also involved in lots of voluntary organisations and environmental committees. He took part in car schemes taking people to hospital appointments and do their shopping. [The Appellant] began to drink heavily when his wife left him. He admits it was an issue for some years and he eventually contacted xxx Substance Misuse Service and saw a counsellor for a year. He stopped drinking for three months but then relapsed. However, he has now abstained from alcohol for eighteen months. [He] acknowledges that alcohol was a disinhibitor in respect of his offending as he tended to drink and then to go onto the internet sites.”

50. The Report says that he has enrolled on a course run by the Lucy Faithfull  Foundation, and that he has contacted Samaritans, the Priory, Relate, Sex and Love Addicts Anonymous, private Counsellors, and his GP, so as to seek help and advice.

51. Based on his assessment of the Appellant, the writer of the Pre-Sentence Report considers the risk of further offending of this nature to be at a relatively low level. The Report states that there is no evidence that he was seeking out opportunities to move from fantasy to reality, and it is said also that he is clearly at a stage where he is extremely motivated to change and is committed to engage in treatment which would further reduce his risk of re-offending.

52. The OASys Report completed on 29^th March 2010, describes that the risk of reoffending is low. It is stated that it is unlikely that he will refuse to cooperate or engage in treatment, as he has already accessed treatment himself. The OASys Report is asked also to assess the risk of serious harm the offender poses in the community to children. This is identified as medium (that is there are identifiable indicators of risk of serious harm in that the offender has the potential to cause serious harm but is unlikely to do so unless there is a change in circumstances, for example, failure to take medication, loss of accommodation, relationship breakdown, drug or alcohol misuse.)

53. Both the Appellant and Ms Ward drew our attention to the fact that the OASys Report states that the risk of reoffending is low, yet it states that the risk of serious harm that the offender poses in the community to children as medium. We are inclined to agree with the Appellant’s view that the medium risk is only apparent if the Appellant loses the support of his daughter, and other community networks. In other words, it is the identifiable indicators which are medium risk, and the risk of re-offending remains low.

54. We have read the letters written in support. His daughter ends her letter by writing:

“I have seen first hand how devastated he is that his life has taken this turn. He has sought help by means of a counsellor, and in the same way, more importantly, by speaking to his family and friends about his actions. It is because of this, and knowing the type of man my father is, that I am absolutely confident that he will not reoffend.”

55. We have read the letters in support of the Appellant written by his former wife, the Rural Dean and former fellow Councillor, and a number of other former fellow Councillors, all of whom speak highly of him, and are supportive of him.

56. The approach that we take is to look at all of this evidence and see whether the decision taken by the Respondent, in the light of this evidence, is disproportionate. This is not the same as asking ourselves the question whether we would have arrived at the same decision. Only if we are to decide that the decision taken cannot be justified by the evidence available to the decision maker can we conclude that the decision is disproportionate and therefore constitutes an error of law.

57. The apparent disparity between the assessment of being of on the one hand, of low risk of reoffending and on the other hand, of medium risk of harm to children, by itself, is not a matter on which this Tribunal can resolve. We have expressed above at paragraph 53 that we prefer the view of the Appellant on this matter, but given the material presented to the Respondent we can well understand that it gives weight to the assessment as medium risk of harm to children. This Tribunal might not have given the same weight without, perhaps, seeking some further resolution to the apparent conflict.

58. We do not need to express a view as to whether failure to obtain an explanation for the disparity can amount to an error of law. But we do accept that there may well be cases where the failure to obtain an up to date report, or failure to resolve what may appear to be a contradiction in the reports, would amount to an error of law.

59. We are concerned however that the assessment of low risk of reoffending by the Pre-Sentence Report, and the references from former colleagues and from his family, particularly his daughter, seem not have been given any weight at all. The Evaluation of the Evidence of the Pre Sentence Report simply refers to Probation Service stating that there is a low risk of reoffending, without any evaluation of this information. The List of Documents says that the family and former colleagues describe a supportive family man, full of remorse for his offending and displaying integrity and commitment to his work within local government.

60. In the evaluation of this evidence, it is stated:

“Information is of some value. References from family and former colleagues submitted for court sentencing considerations. Content of references are consistent and are written in knowledge of his guilty plea.”

61. What the so called ‘Evaluation of the Evidence’ does not do is actually to evaluate the evidence. It says it is of some value, but then would appear to ignore it. The Final Case Summary is as follows:

“His behaviour displays elements of susceptibility to peer pressure he admits enjoying the kudos of belonging to a group and sharing images in exchange for praise and access to more images of an increasingly serious nature. His behaviour became addictive and he admits he returned to the internet again and again using the images for arousal and masturbation as a means of stress relief.

His emotional well being and risk of self harm is identified as a significant risk factor in his offending and risk of reoffending. Long term problems relating to anxiety and stress resulted in his early retirement on health grounds and his ineffective and inappropriate methods of stress relief contributed to his offending.

He admits a long standing misuse of alcohol as a coping mechanism and acknowledges alcohol was a disinhibitor and contributory factor in his offending. Information indicates he recognises his risk factors and is motivated to change his behaviour and engage in treatment to reduce his risk of reoffending. He contends he has abstained from alcohol since his arrest and has not used drugs for some 8 years. He voluntarily sought counselling from the Lucy Faithfull Foundation and has completed the Sex Offenders Treatment programme. The Probation Service risk assessment concludes he poses a medium risk of harm to children, specifically around puberty, low risk of harm to adults and poses a low risk of reoffending.

[The Appellant] was formerly of good standing in his community and was involved in numerous voluntary and community matters. He expresses a fervent wish to continue helping others. Whilst his offending and risk factors indicate an unacceptable risk to children (our italics), there is insufficient information to indicate he has harmed or poses a risk of harm to vulnerable adults.”

62. It is the first clause in the final sentence which has caused us to conclude that the Respondent has arrived at a decision which is disproportionate to the evidence and accordingly that it has made an error of law. When the Respondent 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.

63. The Tribunal has had the opportunity of hearing the Appellant. We are aware, of course, that although it is open to the Respondent to consider oral representations, it did not do so in the present case, and indeed we understand that it has never done so in any case that it has considered. The opportunity of appealing to the Upper Tribunal the decision of the Respondent makes academic any argument (as advanced by the Appellant) that the proceedings of the Respondent are not art 6 compliant.

64. We did have the benefit of seeing and hearing the Appellant. We formed the view that the Appellant did not minimalise his offences, that he accepted the seriousness of them, and that he showed genuine remorse. He had insight into his behaviour and he told us that he has made efforts through his counselling sessions to understand his actions and to acknowledge the stressors which contributed to the offences. The Tribunal felt that he gave his evidence honestly and openly. He was a highly respected member of the local community, and his actions have led to him losing this public standing. He told us that this has led to his considering taking his own life. We decided that, given this evidence, it is highly unlikely that he will engage in similar activity.

65. The Tribunal formed the view that the Respondent gave no weight, or at least very little weight, to the issue of the Appellant as a person. This is something that the Tribunal, in compliance with its duty under art 6 of the EConHR to hear the Appellant in person, has been able to do. The assessment of his oral evidence supported us in our view that the decision of the Respondent is disproportionate.

66. Being placed on a Children’s Barred List is not a punishment. The Appellant has been punished by the Court. Being placed on the Children’s Barred List is to provide protection for children. The legislation establishes a delicate balance between protecting rights of children (and vulnerable adults) and protecting the rights of those who wish to work, either as employed or as volunteers, with them. If the Tribunal reaches the conclusion that being placed on the list (or, as in this case, not being removed from the list) amounts to an error of law it must either direct ISA to remove the person from the list, or remit the matter to ISA for a new decision. (s 4(6)(a)(b)). In this case, the Tribunal has decided to direct that ISA should remove the Appellant from the list.

67. We understand that the only practical consequence so far as the Appellant is concerned is that he may be able to return to volunteering as a teacher of English for immigrants and asylum seekers, some of whom may be over 16 and under 18. He is of course, by virtue of the SOPO still prohibited from working with children under the age of 16, and from utilising computers in the way as set out in the conditions attached to the SOPO. To that extent we take the view that children are sufficiently protected.

68. Finally, we wish to associate ourselves with the comments made by our colleagues in XY v Independent Safeguarding Authority [2011] UKUT 289 (AAC) at [para 117] about the layout of the Barring Decision Making Process document. Other concerns which this case has highlighted, namely the inaccurate information contained in the Guidance Notes, and the paucity of reasons given in the Decision Letters, have already been addressed by the Respondent.

 

His Honour Judge David Pearl

Mrs Susan Howell

Dr Keith White.

4^th October 2011.