Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  V/490/2011

ADMINISTRATIVE APPEALS CHAMBER

 

Before: CG Ward, Judge of the Upper Tribunal; S Howell and L Redford, Specialist Members of the Upper Tribunal

 

Attendances:

Appellant: In person

Respondent: Ms Sarah-Jane Davies of Counsel, instructed by Treasury Solicitor

 

Decision: (a) The Upper Tribunal 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.

 

(b) The Upper Tribunal directs that the title of the case be known as VW v The Independent Safeguarding Authority (VW are not the appellant’s true initials).

 

(c) The Upper Tribunal finds that the respondent’s decision of 17 December 2010 (notified by a letter dated 22 December 2010) involved the making of errors of law and  mistakes of fact.  The decision is set aside.  The respondent must take a new decision and in doing so must comply with the directions in paragraph 75. 

 

(d) Pursuant to section 4(7)(b) of the Safeguarding Vulnerable Groups Act 2006 the Upper Tribunal directs that the appellant’s name is to remain on the Children’s Barred List until such time as the respondent makes its new decision.

 

(e) If either party requires the unredacted particulars of file titles and computer searches which appear in this decision in redacted form, they may apply to the Upper Tribunal in writing within 21 days of the date of the letter sending them this decision

 

 

REASONS FOR DECISION

 

1. The appellant sought permission to appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006 (the “2006 Act”) against the decision taken by the respondent on 17 December 2010 and notified by a letter dated 22 December 2010 not to remove his name from the Children’s Barred List. 

 

2. On 8 March 2011 I gave permission to appeal on all the grounds raised by the appellant other than those which would fall foul of section 4(3) of the 2006 Act and over which the Upper Tribunal consequently had no jurisdiction.  Before the start of the hearing in this matter, the Upper Tribunal tabled a further set of points on which it was prepared to give permission to appeal.  To that Ms Davies very properly invited the Upper Tribunal to add a further point where it was evident that the respondent had not followed the prescribed procedure.  Both she and the appellant indicated that they had no objection to going ahead to deal with the additional points as well as with those previously identified. 

 

3. The appellant was born in April 1990.  For his 18^th birthday he was given a laptop computer.  Within the period of two to three months thereafter he committed a number of offences and engaged in other conduct which forms the subject of the present case.  On 29 June 2009, the appellant pleaded guilty on three counts of making indecent photographs of a child contrary to section 1(1)(a) of the Protection of Children Act 1978 at levels 1, 2 and 3 as defined in R v Oliver and others [2002] EWCA Crim 2766; [2003] 2 Cr App R (S) 15 and one offence of possessing indecent photographs of a child, namely 18 at level 1, 1 at level 2 and 2 at level 3, contrary to s.160(1) of the Criminal Justice Act 1988  The appellant was sentenced to a community order with supervision requirement, under which he was required to attend as directed with the probation officer at the times and places directed for a period of 18 months.  He was required to sign the sex offenders register with the police for a period of five years.  No sexual offences prevention order was made.  A number of other counts were ordered to lie on file.  It appears to be accepted that the images involved in all the various counts were of girls who had photographed themselves and sent the pictures to the appellant over the internet, rather than pictures where they had been photographed by someone else.  The judge and counsel in the criminal proceedings referred to the girls as being “in their mid-teens”.

 

4. These matters had first come to the attention of the police following a complaint about the appellant’s behaviour towards a number of girls aged around 14 years via social networking on the internet.  The appellant, then associated on a voluntary basis with a public organisation, had attended a school as a representative of that organisation in order to assist in the school’s one day event examining the work of the emergency services and other organisations.  It was not the school which the appellant himself had attended and he did not know whether or not it had a sixth form.  The event had been attended by a large number of pupils, who rotated around various displays and activities, so that none of them had involvement with the activity with which the appellant was engaged for more than 25 minutes or so.  At least a very substantial number of the girls who attended wore school uniform.  The appellant says that the girls subsequently sought him out on MySpace and on initial contact misrepresented their ages.  That is not disputed before us.  What followed were exchanges, principally on MSN, with a number of the girls.  With girl A (aged 14) these included an episode (“the dog incident”) when the appellant offered to use his webcam so that A could see him in his boxer shorts provided she put her dog’s collar on and took a picture of herself kissing her dog.  A was reluctant, indicating “that’s weird I don’t want to kiss my dog” and saying it was embarrassing.  She eventually took the picture under pressure and then declined to send it, saying it was too embarrassing.  The appellant pressurised her saying “Oh my God please don’t make me repeat myself, I hold grudges, just send it to me” and similar remarks.  With A he also engaged in suggestive but jokey conversation about who should be sitting on whom and about handcuffs and then discussed the possibility of three girls coming round to be on his bed at once.  To girl B (also aged 14) in MSN exchanges, he asked whether he could tie her to a chair and finger her.  With girl C the appellant had an online conversation on the day of the event in which he asked if she had taken part in the event “today”.  Not getting a reply, he sent a follow-up asking her if she was in year 9 and about her experience of the day.  This elicited a reply confirming that she was indeed in year 9.  The conversation talked about the day, before the girl introduced the idea that her friends had found the appellant attractive.  This prompted the appellant to venture that “I hope you didn’t talk about what would happen if you were alone with me, ha, ha.” In the remainder of this decision the matters in this paragraph are referred to collectively as the “MSN exchanges”.  In the course of them, when things were not going his way, the appellant’s language was uncompromising and forceful. Thus (to A) :

 

“You group of three girls are causing shit and I don’t like it you going to tell me exactly what’s going on what you saying to people and why I’m being ignored…If you don’t manage to find out I will block you and delete you do you understand I’m not happy – that’s you.”

 

5. In the police interviews, the appellant admitted that after speaking to some of the girls on MSN he would guess that they were 15 but did not ask and also that he accepted that they were likely to be in the same age group because they were in the same classrooms.  In the case of C, however, he actually knew – on the day of the event – that she was younger than his “guess”.  She told him that she was in Year 9 (as he himself by his question had suspected) and, as a recent school pupil himself, he cannot have been unaware that on conventional age grouping she could be no older than 14.  It is also evident that the appellant undeniably became aware of girl A’s approximate true age because at one point she asked him “would you go out with someone our age like 14 or 15” to which his reply was “depends if they look 16 which most of you do”.  This appears to have been (possibly immediately) after the “dog incident” and before the comment about the three girls.

 

6. In the course of their investigations, the police obtained possession of the appellant’s computer.  The appellant briefly regained possession of it, alleging he needed it for college work but in fact attempted to delete material from his computer.  The computer was subsequently analysed by PC808 on behalf of the police.  PC808 found a number of live indecent images, with file names and creation dates.  Some were or may have been of adults, but some were not, including aaa.jpeg, a picture of a girl accepted by the appellant to be a child, with a penis in her mouth. 

 

7. (We interpolate at this point that it is necessary to refer to a number of files which contained indecent material and/or have indecent names and to searches based on indecent terms.  In these early days of the safeguarding vulnerable groups jurisdiction, this decision may have wide readership, to which the precise detail of the searches and files is not necessary.  We have accordingly set these out on a redacted basis and made the order at paragraph (e) of our decision in case the parties wish to know in unredacted form the precise item to which we are referring.)

 

8. The appellant also used a file sharing service, from which two incomplete movie files were in the appellant’s “incomplete folder”. Only one was playable by PC808.  The title of file bbb.mpeg was sufficient to indicate that it involved children below the age of puberty and gave some indication to anyone of what the movie involved.  To those familiar with the material it may have conveyed more.  It was a Level 4 movie clip involving a child or children in illegal sexual activity with an adult male.

 

9. PC808 also was able to find out from the hard drive of the appellant’s computer the names (450 in all, though there may have been some duplication) of files which had been in the appellant’s shared folder in the file sharing service.  This does not provide the content of the files but the names of what had been there.  The titles found included ccc.mpeg, which describes in terms leaving no room for doubt the age of the child depicted and the illegal sexual activity concerned and a further title ddd.avi which appears to suggest a young child, an animal and an adult.  There were others.  The appellant accepts that up to 20 of these were indecent in the sense of involving children rather than, for instance, depicting lawful sexual activity between adults. 

 

10. PC808 also was able to investigate search terms used on the file sharing service by the appellant.  The file terms searched included eee and fff which are, according to undisputed evidence, a child pornography series.  Other searches included some which appeared geared to identify material with 13 and 14 year olds in sexual situations, such as hhh and jjj.

 

11. PC808 then examined the registry files which recorded the last nine or ten file names viewed using Windows Media Player .  Every title, none of which can fairly be said to have left much to the imagination as to its sexual nature, involved children and/or animals.  File ggg.mpeg, which had been viewed twice, indicated a 14 year old engaged in sexual activity.

 

12. In “unallocated space” i.e. deleted data in the hard drive, 3,416 images (these depict oral sex between an adult and child and other sexual activities ) were found.  These are said by the appellant to be (in a different format) equivalent to the film (or one of the films) previously referred to but this is disputed by the respondent.

 

13. At all material times, the only other person who used the appellant’s computer was his mother and that only once.  The computer was password protected.  A significant amount of the computer activity was undertaken after midnight and it was not the appellant’s practice to have friends sleeping over (who might thus have had the opportunity to use the computer.) 

 

14. In June 2009 the appellant was investigated for allegedly having made inappropriate contact with a 14 year old and an 18 year old.  The matter was not proceeded with as the 14 year old did not want to give evidence and the 18 year old was an adult and no issue arose.  It is not entirely clear when the alleged incidents occurred, although the appellant says he was 17 at the time of the matter involving the 18 year old.  If that is correct, it pre-dates the offences and other computer use and the MSN exchanges.  In June 2009 a level 5 video clip was found on the family computer but because another person had had access to the computer investigators were unable to confirm who had accessed the images and therefore there was insufficient evidence to charge.  The appellant denies any knowledge of the video clip.

 

15. With the possible exception of the incident(s) referred to in the previous paragraph, it appears likely that details of what was found on the appellant’s computer, going significantly beyond the offences to which he pleaded guilty and even those originally indicted would have been available to the trial judge, as they are set out at length in transcript of police interviews. 

 

16. The offences of which the appellant was convicted are contained in the “automatic inclusion” offence list for automatic inclusion in the Children’s Barred List and Adults Barred List with the right to make representations, as set out in paragraph 4(5), Schedule, para 2(f) and Table Part 2 of the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009 (SI. 2009/37). Accordingly the respondent was obliged to include the appellant on the two lists and invite representations.  By para 2(4) of Schedule 3 of the 2006 Act:

 

“If it appears to ISA that it is not appropriate for the person to be included in the list, it must remove him from the list.”

 

We note that the concept of “appropriateness“ is a wide one, which is sufficient to allow consideration, as here, of matters going beyond the offences which triggered the inclusion on the list (subject to the right to make representations).

 

17. We gratefully adopt from the recent decision of the Upper Tribunal in V/2490/2010 SB v Independent Safeguarding Authority [2011] UKUT 404 (AAC) where the Upper Tribunal observed:

 

“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.”

 

18. Indeed the associated difficulties regarding finding suitable employment are described by the present appellant in submissions:

 

“It is remarkable … how an ordinary job [i.e. while not involving working with children] suddenly becomes untenable due to my barred status”.

 

Previous employers have said that because employees have children, my barred status means I am not allowed to work with their parents.  Children were not allowed to come into my working area.  Another statement is due to my barred status, I am now seen as a sexual predator to all females within the adult working environment. 

 

There is one last employer’s statement to mention.  Having a barred status is socially frowned upon, therefore I bring the company into disrepute.  This again terminated my employment with immediate effect.” 

 

19. The procedures to be followed when the respondent is gathering information include those set out in paras 13 and 16(1) of Schedule 3 to the 2006 Act, which provide as follows:-

 

“13(1) ISA must ensure that in respect of any information it receives in relation to an individual from whatever source or of whatever nature it considers whether the information is relevant to its consideration as to whether the individual should be included in each barred list.

 

(2) Sub-paragraph (1) does not, without more, require ISA to give an individual the opportunity to make representations as to why he should not be included in a barred list.

 

16(1) A person who is, by virtue of any provision of this Schedule, given an opportunity to make representations must have the opportunity to make representations in relation to all of the information on which ISA intends to rely in taking a decision under this Schedule.“

 

20. On 11 February 2010 the respondent wrote to the appellant referring to his convictions, informing him that he had automatically been included in the Children’s Barred List and the Adults Barred List on 11 February 2010 and inviting him to make representations as to why he should be removed from them .

 

21. By a letter dated 21 March 2010 the appellant argued that:

 

(a) the indecent images of children were all of 16 and 17 year olds and there was no younger child involved in his particular case

 

(b) he was not aware it was a criminal offence to have such images in his possession as a person of 16 could lawfully consent to sexual activity

 

(c) the images were sent to him without prior prompting from himself over the Internet chat room MSN

 

(d) at the time of the offence he had just turned 18 and the youngest person was only two years young than him

 

(e) he was not subject to a sexual offences prevention order imposed by a court

 

(f) he had “no lawful limitations justified in law that was imposed by a British court”

 

(g) being barred was disproportionate to his circumstances

 

(h) it was not in the public interest for him to remain on the Children’s Barred List

 

He drew attention to the sentence he had received and to his full compliance with it.  He urged the respondent to contact his probation officer whose name and phone number he gave and to contact any of his character referees, all of whom he said were aware of his conviction.  He indicated that he had taken steps to guard against recurrence of the circumstances in that he no longer participated in internet chat rooms and only used computers in certain circumstances and subject to moderation.

 

22. Enclosed with his letter were a number of documents. As some of the issues in this appeal relate to the respondent’s treatment of these documents, it is necessary to list them.  They were:

 

(a) letter from Probation Officer Ms R

 

(b) letter from legal representative

 

(c) letter from GP

 

(d) pre‑sentence report

 

(e) offender assessment report (“OASys”)

 

(f) certificate of conviction

 

(g) character references, all of them dated February or March 2010, received from JM and PM (143), TR (144), MS (145), CR (146), NB (147) and LF (148). 

 

23. The letter dated 19 February 2010 from the probation officer, Ms R, needs to be set out at some length (use of capitals as in original):

 

“… [The appellant’s] compliance in respect of his Community Order has been excellent.  To date, he has attended 19 of 19 offered appointments and has co‑operated and engaged with the National Probation Service throughout his sentence.  [The appellant’s] previous Offender Manager, [Ms S], noted that [the appellant’s] motivation to address the factors contributing towards his offending behaviour has consistently been high.  Specific work completed has involved identifying protective factors, boundaries and strategies to reduce the risk of any further offending, examines the harm caused by offences of this nature and increased [the appellant’s] understanding of the likely consequences of himself and others of offending.”

 

To assist in your decision making I have supplied copies of [the appellant’s pre‑sentence report, written by Mr [D], Probation Officer, dated 30 July 2009 and a copy of [his] most recent risk assessment, written by [Ms S], Probation Officer on 17 November 2009.

 

As detailed in the documents above, [the appellant] was originally assessed as a LOR risk of harm to known adults, the general public and children.  [The appellant’s] risk level throughout his Community Order has continued to be assessed as LOW risk using the National Probation Services’ risk definition.  The definition of LOW risk of harm is that “the current risk assessment does not indicate identifiable indicators of a risk of serious harm”.  [The appellant] is also assessed as a LOW risk of reoffending.  This assessment is based on the results of an actuarial risk assessment tool that calculates [his] Offending Group Reconviction Score (OGRS) as a 13% probability of reoffending within two years. 

 

If you have any further questions or concerns please do not hesitate to contact me [and the relevant contact details were given].”

 

24. The solicitor’s letter indicated that offences involved “photographs … of girls in their mid‑teens”.  There were 21 images, consisting of 18 pictures graded at Level 1, one at Level 2 and two at Level 3.  The solicitor indicated that he had dealt with a number of such cases in the course of his professional career and that “In my opinion the allegations [of] which you were convicted, if they are to be placed in their proper context, ought to be considered some way down towards the bottom end in the scale of seriousness.”

 

25. The various references are discussed further below.

 

26. On 18 May 2010 the police wrote to the respondent confirming details of the offences and referring also to the June 2009 allegation see [14] above.  This document and the referral to the respondent which had been made by a uniformed organisation of which the appellant had formerly been a member were duly sent to him on 20 May 2010, to give him the opportunity to comment, in accordance with para 16 of Schedule 3. 

 

27. By a letter of 3 June 2010 the appellant replied, correcting inaccuracies about the levels of the photographs involved and reiterating his view that the girls in the photos were all 16 or 17. In relation to the 2009 allegation he indicated that he had not asked the 14 year old to meet up, nor had asked her to engage in sexual conduct or talk about sexually related topics.  In relation to the contact with the 18 year old female, he had himself been under 18 at the time.  He had had nothing to do with the Level 5 movie clip and there were other users of the relevant computer.  He also made detailed representations on the referral document from the uniformed organisation.  He indicated that he was now in a relationship with a 24 year old, without children, who had been visited by the Public Protection Unit who had confirmed that he had been honest with her in the disclosure he had made.  He set out the steps he was taking in relation to pursuing voluntary and paid work, including discussing the potential risk factors fully with the Police Public Protection Unit and the National Probation Trust. 

 

28. In July 2010 the respondent received a form from the Criminal Records Bureau indicating that the CRB had identified the appellant as a match against the respondent’s Adults and Children’s Barred Lists.  It appears that the catalyst for this must have been an application for a certificate from the CRB in connection with an application for employment.  Someone has written on the CRB letter “applied for position as [Trainee] with [a sports organisation] (including one to one care with injured persons).”  The source of that information was the police.  On 29 July 2010 the respondent received an enquiry from the police under section 50A of the 2006 Act seeking details of when and how the appellant had been notified that he was barred from working with children and vulnerable adults, as this was confirmation said to be necessary “prior to initiating a criminal investigation”.

 

29. On 14 September 2010 the police wrote once again, attaching material indicating the number, classification and level of images at point of arrest and charged, the offences, the pleas, the verdicts and the counts that were to remain on the file and providing copies of transcripts of the series of interviews of the appellant by the police.  The letter of 14 September from the police and its various enclosures was duly forwarded to the appellant on 16 September for comment.  Neither at this time nor at any other time were the communication from the CRB, the content of the related information from the police noted upon it or the letter from the police making enquiry under section 50A of the 2006 Act forwarded to the appellant.

 

30. By a letter dated 24 September 2010 the appellant once again made detailed representations, some of which repeated or clarified points previously made.  He enclosed three short extracts from the report of an independent computer forensic expert.  The extracts were unsigned and parts on which the appellant did not seek to rely had been covered up.

 

31. On 1 October 2010 DC225 of the police wrote to the respondent a document which had evidently been compiled following a telephone discussion between the respondent and the police.  Again, it is necessary to set it out at some length (text and emphasis as in original):

 

 “As discussed, details in relation to [the appellant]. 

 

Myself and [DC333] are currently managing [the appellant] as a registered sex offender within the community. 

 

We carry out risk assessments on all our offenders using a static risk assessment tool called the Risk Matrix 2000 which is approved by the Home Office. 

 

Using this tool he was assessed as being a Medium Risk of Re‑Conviction for further sexual offences.  This relates to data studies carried out that have a proven level of accuracy. 

 

The statistics as a guide relate only to re‑conviction, not re‑offending. 

 

If it is borne in mind that only a small percentage of all sexual crimes are ever initially reported, and then that the conviction rates for sexual offences of all reported crimes are again in single figures.  This shows that somebody assessed as being medium risk of re‑conviction may still be committing offences, without however being caught and/or convicted. 

 

I am also trained in carrying out dynamic risk assessments (see below qualifications).  Due to [the appellant’s] continued pre‑occupation with uniformed positions of authority, his inability to understand and present denial of his offending as well as his continued non‑compliance with all professionals involved with him, I have assessed him as being dynamically of higher risk to the community and primarily young teenage females. 

 

As such he is managed on the basis of being a High risk and is visited on Home Office guidance basis. 

 

The risk assessments carried out by the Police are not to be compared to any carried out by other professions primarily the Probation Service, the assessments use differing models and data, with distinct results for differing purposes.

 

I do not feel that it is appropriate for [the appellant] to have contact with children or even with anyone in a vulnerable position, who could potentially be groomed by him.” 

 

The document concludes by setting out the qualifications of, and training received by, DC225.

 

32. By a letter dated 3 November 2010 the appellant provided his comments on the document from DC225, which the respondent had meanwhile sent to him.  The key points made were:

 

(a) the information was neither accurate, relevant nor up to date and therefore, as the appellant put it, did not comply with the principles of the Data Protection Act 1998

 

(b) all his dealings were with DC333 and not DC225

 

(c) under the Multi‑Agency Public Protection Arrangements (MAPPA) applicable to him he was at the least serious level of Level 1, defined as “cases where the risk opposed by the offender can be managed by the one agency” and that the agency with primary responsibility for managing him was the Probation Service, not the police

 

(d) DC225 was no longer involved in his case

 

(e) it was a feature of the Risk Matrix 2000 that a person of his age could never score below “medium” risk, thus he was achieving the lowest level thereunder which was open to him

 

(f) he supplied a document purporting to include comments by a Professor G of the Royal College of Psychiatrists on the Risk Matrix 2000 suggesting that the comments showed the Risk Matrix 2000 was concerned with re‑offending not re‑conviction

 

(g) Home Office guidelines for “high risk” meant that he was visited by DC225 only once every three months for a maximum of 30 minutes

 

(h) he disputed that he had a “continued preoccupation with uniformed positions of authority” and gave details of the jobs he had applied for, few (if any) of which could be so described

 

(i) he disputed that he had an inability to understand in relation to the offences committed, pointing out the steps he was taking in relation to disclosure, self‑management and so on

 

(j) he pointed out the discrepancy between the views of DC225 and Probation Officer Ms R, enclosed a further copy of Ms R’s letter of 19 February 2010 and specifically referred to the discrepancy between DC225’s assertion that the appellant was non‑compliant “with all professionals involved” and the view of the Probation Service that up to February 2010 when its letter was written, he had been totally compliant.  He indicated that after receipt of the respondent’s letter forwarding DC225’s letter, he had spoken to the National Probation Trust and that Ms R had requested the respondents to phone her if they needed clarification of any of the comments the appellant had made within his submission.  Her number was given.

 

33. It appears that this was treated as being the end of the information-gathering and representations process and on 2 December 2010 work began on the “Barring Decision Process” document which provides the vehicle for the respondent’s decision to be reached.  It appears to have been completed throughout by one identified caseworker.  We were told by Ms Davies that the respondent’s procedure did not require any review by a supervisor or colleague of the caseworker at any stage. 

 

34. After providing in stage 1 an outline of the offence details and in stage 2 a brief summary of the representations the document then refers to the supporting documents that had been relied upon in three columns, headed “List of documents”, “Flag” and “Evaluate evidence”.

 

35. One entry in those columns refers to “Representation letters from [the appellant] dated 21 March, 3 June, 24 September including …” and it goes on to list 13 documents or categories of document, being essentially a summary of the enclosures with the various letters.  Curiously, the representations letters listed do not include that of 3 November 2010, although a number of the enclosures which are referred to, such as the Risk Matrix 2000 scoring forms dated 6 October 2009, the signed and dated sex offenders registration form and e-mails between the appellant and DC333 about prospective jobs, were sent with that letter.  All this material, collectively, is given “medium weighting”.  As to the letter from probation officer Ms R, the right-hand column observes “The letter from his probation officer supports [the appellant’s] ‘compliance’ with his Community Order and comments on his Pre‑Sentence Report and his most recent risk assessment … at that time which both assessed him as LOW Risk”.  As to the testimonials it provides “The letter from his doctor provides little substance … The testimonials provided present [the appellant] as a hard working young man, with integrity and dedication however only two of them seem aware of his convictions therefore little weigh[t] can be given to them.”

 

36. There is an entry below for “Disclosure from [the police] dated 18 May 2010, 14 September and 1 October 2010.  This is given, without further explanation, “High weighting: factual information from the Police.”  Further below it refers to “CRB Matching Information Letter dated 6 July 2010”. The right‑hand column gives that document “High weighting: This information comes from a reliable source and confirms that [the appellant] is still applying for positions that give him access to children”. 

 

37. Thus we come to the “Structured Judgement Process” that forms stage 3.  For present purposes it is appropriate to focus on those areas where the respondent’s caseworker indicated there were “definite concerns”, namely “any other significant sexual interest”, “hostile attributions” and “exploitative attitudes”.  These are three of 22 pre-defined headings under the process.

 

38. Under “any other significant sexual interest” the caseworker notes the evidence within the police interviews that the appellant guessed the girls were 15 years old; the significant amount of search terms relating to bestiality and child sex abuse; the inappropriate conversations on MySpace (sic) with a 14 year old “indicating that she should have been sitting on him” asking “what she would do if she were alone with him” and talking about handcuffs.  It refers to the “dog incident” described above.  It notes that “a considerable amount of indecent images and video clips were found on [the appellant’s] computer, namely 3,413 indecent images of a child at Level 4. which when viewed sequentially had the appearance of a film, an indecent film of a child at Level 4, a photograph of a child at Level 4 and the 3,413 indecent images of children at Level 4 and two at Level 1.”  It then notes that “there were over 450 files found on [the appellant’s] computer that contained indecent images of children and bestiality, this shows he has a significant interest in these genres.”  As “counter indications” it notes that the appellant is in an age appropriate relationship and was only 17/18 years of age at the time of the offence. 

 

39. Under “hostile attributions” it refers to, under “indications”, the tone of his correspondence with the voluntary organisation from which he was suspended and his forceful tone on MSN/e-mails when people do not respond and when A will not co‑operate in the “dog incident”.  As “counter‑indications” it is highlighted that he is “socially responsible” and a “hardworking diligent and pleasant young man”. 

 

40. Under “exploitative attitudes” the decision maker cites that the appellant “cleverly denies” the allegations put to him and denies any wrongdoing apart from those that he was convicted for.  It refers to his denial that he knew the girls were under 16 even though there is evidence within the taped interviews that he did.  It refers to his denial that he changed his sign-in name on My Space and his denial that he used his webcam during the inappropriate conversation with the 14 year old that had been proven to be wrong because the girl had been able to give details of something she had seen in his bedroom while online.  It refers to his efforts to “groom and manipulate” the 14 year old in the dog incident.  It refers to his denial to use his computer to search other than for “adult or normal pornographic stuff” which is incompatible with the searches referred to earlier and others.  It refers to his attempts to cover his tracks by deleting material on his computer.  As “counter‑indications” it refers to the fact that he had not been in trouble before and that “his behaviour was only applied for a short time, May to July.”  The caseworker observes “whilst this factor is found to be definite, it is clear that it is not [the appellant’s] “driving force” for his behaviour but his attempt to cover his inappropriate action. 

 

41. The “final case summary” does not need to be set out in full.  However, it assumes that the 450 or so file names which PC808 had found (see [9] above) were all of indecent character.  It referred to the last files viewed using Windows Media and considered that one file had been viewed nine times in one day.  It refers to the improbability of there having been 3,416 indecent images downloaded accidentally and then deleted. It concludes:

 

“Even though [the appellant] was only convicted of a small amount of images in comparison to what was found on his computer, the information provided by the Police leave little doubt that they consider he was guilty of a lot more and he fundamentally admitted to this in the Police interviews.  It cannot go unnoticed that the age difference between [the appellant] and the girls involved is only slight and naivety could have played a part in his behaviour toward them however his conduct within the Police interviews and standard of his representations clearly show that naivety is not the issue.  To be fair his age is taken into account and with regards to “grooming” the girls and behaving inappropriately with them, it could be seen as a reasonable explanation however, the same cannot be said for the search terms he used and the indecent images of children that he had on his computer.  There is concern that [the appellant] has an interest in uniformed positions and also ones that give him access to children [it refers to organisations with which he had been involved] and more recently he has applied for as a “[Post as Trainee]” with [a sports organisation] which includes one to one care with injured persons, including children.  The ISA was made aware of this by [the police].

 

[The appellant’s] solicitor managed to get the CPS to agree not to pursue certain indictments and for those not pursued to “lie on file”.  An offence not admitted to by a defendant may be allowed to lie on the file if the judge agrees that there is sufficient evidence, but it is not in the public interest to have a trial, as the defendant has admitted other offences, and a further conviction would not make a difference to the sentence.  If an offence is left on the file, it can in theory, be reinstated at a future date, but only with leave of the trial judge or Court of Appeal. 

 

The evidence provided shows that it is axiomatic that [the appellant] is a risk to children, his explanations are not realistic and whilst he does indicate some remorse this is again carefully worded as are the rest of his representations. 

…

It is therefore recommended that [the appellant] remains on the Children’s Barred List …”.

 

42. Ms Davies tells us that although phrased as a “recommendation”, this did not have to go anywhere else for ratification.

 

43. A letter was sent on 22 December 2010, in which the decision was conveyed to the appellant that he was to remain on the Children’s Barred List, the substance of which was in the following short paragraph: 

 

“We 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 our risk assessment shows that you have a significant sexual interest in young teenage girls and your hostility and exploitative nature cause concern.  This view is also espoused by the Police within their risk assessment.”

 

44. In our view the form of decision letter then in use was unhelpfully brief.  A significantly more complex decision had in fact been undertaken through the structured judgement process and in our view the brevity with which it was summarised in the letter of 22 December 2010 created a number of hostages to fortune.  In particular, because the structured judgement process inevitably has to look at the evidence under a series of headings (there are 22 each with a short title) there is a risk that the titles of the particular box chosen acquire undue weight if they are singled out in the decision letter when, as in our view here, much of the evidence could equally have been put in a number of other boxes, thus “hostility” and “exploitative attitudes” receive in our view undue prominence in the articulation of the decision in the decision letter.  It is also regrettable in our view that in such a concise summary, otherwise confined to the headings of the structured judgement process, it was thought fit to add a reference indicating that the police were of like mind.  We deal with this below.

 

45. However, it is to the barring decision process document that we are primarily looking for the decision.  Ms Davies invited us to view the document in the context of its being an internal decision-making document and one that was not written by lawyers.  She referred us to planning cases (we assume that for instance Seddon Properties Limited v Secretary of State for the Environment and Macclesfield BC (1978) 42 P and CR 36 is intended) and argued that it should be read in a commonsense way and as a whole.  While not disagreeing with such an approach, the seriousness of the impact of a decision to bar or not to remove a person from the list for that individual means that even if applying the above test the occasional infelicity of language may be overlooked, the sort of commonsense approach required will involve a challenging approach to the substance of what is said.

 

46. We have concluded that the decision involved several errors of law. 

 

47. We consider that the respondent erred by failing to get an up to date report from the Probation Service.  Was that an error of law?  In our view it was and it may be analysed in one of a number of ways, each of which leads to the same conclusion.  Firstly, the appellant had been sentenced at the Crown Court to a community order with a supervision requirement.  Under Criminal Justice Act 2003, section 213(2), the purpose for which a supervision requirement may be imposed is that of promoting the offender’s rehabilitation.  The appellant had been sentenced on 30 July 2009.  By the time of the respondent’s decision, 16½ months of the 18 month sentence had elapsed.  The judge who had passed the original sentence was clearly aware not only of the offences to which the appellant pleaded guilty but also of those charges which were ordered to lie on the file and it is overwhelmingly likely that he was also aware of the evidence about the appellant’s computer use more generally from having had the transcripts of the police interviews.  In those circumstances in determining whether the appellant should remain on the Children’s Barred List was a matter to which the effectiveness or otherwise of the rehabilitative programme ordered by the Crown Court was in our view clearly a material consideration.  Ms Davies says that the processes of probation and court are quite separate from those with which the respondent is concerned and that it forms no part of the respondent’s duty to engage in dialogue with the probation services about different ways of dealing with an individual.  We accept that the function of taking a decision under the 2006 Act is vested in the respondent and nobody else and are not suggesting that the views of the Probation Service should necessarily carry the day:  that would be an abdication of the respondent’s responsibilities.  However, the respondent has to take its decision against the background of all the facts. It cannot seriously be suggested that the sort of work which Ms R’s letter of 19 February 2010 set out as being undertaken with the appellant and how he was responding to it were irrelevant to the risk he might pose in the future, which was the matter with which the respondent needed to be concerned.  The view of the probation officer was likely to be based on the most frequent contact with the appellant.  Not merely had he seen Ms R and her predecessor 19 times in the period between 30 July 2009 when he was sentenced and 19 February 2010, the additional frequency reflecting the more intensive input at the start of the supervision arrangements, but he had carried on seeing her monthly thereafter.  This accorded with the arrangements for the appellant under MAPPA and contrasted with the frequency with which the appellant had been seen by the police, which had initially been once every six months for half an hour, subsequently being increased to once every three months for the same time.  Further, in his submissions of 3 November 2010 the appellant had, with Ms R’s apparent approval, urged the respondent to get in touch with her once again. 

 

48. Ms Davies suggested that the respondent was “not charged with an investigative function”.  In our view that is too widely stated.  The respondent itself has accepted in other litigation that it has the power to seek additional material.  In R (on the application of the Royal College of Nursing and others) v Secretary of State for the Home Department and Anor. [2010] EWHC 2761 (Admin); (2011) 117 BMLR 10, Ms Elizabeth Hunter, the respondent’s Director of Operations, is quoted as indicating  in para 18 of her statement: 

 

“The second stage is information gathering.  The ISA considers all the facts it has on the case and may seek additional material from a range of other sources to ensure it has all known relevant information.”

 

In our view this was both unsurprising and accurate as a statement of law.  It was given in the context of a different category of case but nothing in our view turns on that.  Moreover, in the present case we consider that it was the respondent who made the telephone call pursuant to which DC225 provided his report, so the respondent (correctly) did not perceive any difficulty with that exercise of an investigative function.  In our view the respondent, in determining an application under Schedule 3, needs to be satisfied that there is the evidence to enable it to reach a decision that is correct in law and fact.  If without particular evidence it would not be able to do so, it behoves it to get hold of the evidence to remedy that position.  By not doing so in relation to updated evidence from the probation officer, it may be said that it overlooked a material consideration or that it erred by failing to take reasonable steps to acquaint itself with relevant material.

 

49. Of course, the respondent did have an earlier report from Ms R, but by the time the decision came to be taken, further work had been done by the Probation Service with the appellant to the extent of a further 10 months (or more than half the sentence period).  In the Upper Tribunal’s decision in XY v ISA [2011] UKUT 289 (AAC) at para 118 of its decision the Upper Tribunal drew attention to the need for clear protocols for checking whether further information was needed on particular aspects of a case and the existence of such protocols might here too have picked up that the passage of time had made an updated report necessary.

 

50. We also consider that the respondent erred in failing to resolve a conflict in the evidence, when obtaining an updating report from Ms R might have enabled it to do so.  Quite apart from anything else that may be said about DC225’s report, it asserted that the appellant was “dynamically of high risk to the community and primarily young teenage females” due to his “continued preoccupation with uniformed positions of authority, his inability to understand and denial of his offending as well as his continued non‑compliance with all professionals involved with him.”  The appellant had denied such a preoccupation and such an inability in his response and they were matters as to which the Probation Service would have a view.  As to the sweeping third ground – “continued non‑compliance with all professionals involved with him” (underlining added) - this was clearly at odds, as regards the lead agency, with what Ms R had said in February 2010.  We would not have sought to criticise the respondent if it had concluded that a person who truly had failed to comply with all professionals involved with him posed a significantly greater risk:  but the respondent needed to find out whether that was so, given that there was a powerful suggestion that it was not. 

 

51. We also consider that the respondent erred in law by failing to apply any rational basis to the evaluation of the evidence of DC225.  That document contains an assessment of risk, a personal view as to the people with whom the appellant should or should not be permitted contact and as regards the dynamic risk assessment is based on contested fact.  When it comes to evaluating it however, it is attributed  “High weighting:  factual information from the police”.  Part of the problem may arise because the weighting given to it is a composite one also given to the disclosures from the police dated 18 May 2010 and 14 September 2010.  Those genuinely did contain “factual information”.  DC225’s report in substantial measure contains non‑factual material.  The document clearly did carry very high weight for the decision maker:  as already noted, it was (uniquely from all the information received) singled out for mention in the short decision letter.  The lack of a clear and rational approach to evaluating this evidence means that an argument that it was afforded high weighting, in effect substantially because of the mere fact that it was from the police, is hard to counter.

 

52. We consider that there was similarly a lack of any rational approach to the evaluation of the letter of 19 February 2010 from Ms R.  Using a similar technique, this was assessed in a composite process involving 12 other documents or categories of documents of varying degrees of significance.  In effect a weighting was given to the appellant’s representations and enclosures “lumped together”, without individual consideration of the weight to be given to the various enclosures.  Had a rational basis been applied to this evaluation, we consider that the respondent would have recognised both that the Probation Service was particularly well placed to give an informed view and therefore that an updated report from it was required. 

 

53. We also consider that the respondent erred in law and in fact as well in relation to the testimonials.  The caseworker notes that only two of the testimonials seem aware of the appellant’s conviction.  However TR, MS and CR all state in terms that they are aware of the convictions; in our view it is to be inferred from the references by JM and PM, from NB and from LF that each of them was also aware.  The appellant had asserted that each was aware and invited the ISA to get in contact with them if it wished.  Instead the ISA has concluded that only two were aware.  That in our view is a finding of fact (even if its purpose was to assist the respondent in evaluating the evidence) and as such incorrect, but it is also an error of law as being a position which no reasonable decision maker could adopt on the evidence before it.  On any possible view it was three and in our view six.  Further, even if the respondent had been right in saying that only two of the referees were aware of the appellant’s convictions, it is a legally perverse approach in our view to give little weight to those that do demonstrate their awareness of the convictions on the grounds that there are a number of others that do not.

 

54. We do not accept Ms Davies’s submission that any shortcomings in relation to the references were cured by how they were treated elsewhere in the barring decision process document.  The use made of them is set out at [39] above, but, though the respondent was thereby acknowledging their relevance, its flawed conclusion that they should be given little weight remained unaffected.  For the same reason, we cannot accept Ms Davies’s submission that the respondent’s reasoning in respect of weight was more copious than stated.

 

55. A further error of law arose in relation to the treatment of the evidence from the CRB coupled with the information received from the police that the appellant was applying for a job which involved contact with children.  As Ms Davies  acknowledges, this material ought to have been put to the appellant under sch 3, para 16, but was not.  As noted at [36] above, the information was given high weighting and regarded as significant as suggesting that the appellant was continuing to apply for positions giving him access to children; this was relied upon also in the “Final Case Summary” [46].

 

56. The appellant provided to the Upper Tribunal a letter from the owner and crew chief of the sports organisation to which he had applied, triggering the letter referred to at [28] from the CRB.  The letter indicated that it was never the policy to allow one to one treatment of a casualty of any sort; it pointed out that the vast majority of persons involved are adults and that while in theory the organisation could be asked to assist with an injured or ill spectator who was a minor, the letter-writer would require a parent or guardian to be with them during treatment.  No trainees were allowed to work unsupervised on any duty.  It follows that the failure to put the CRB documents to the appellant for comment was material, in that it led to a mistaken view of the facts relevant to whether the appellant had reformed, on which high weighting was placed  The error of law was therefore a material one. 

 

57. We also consider that there were a number of errors of fact within the respondent’s decision.  We emphasise that had any of them stood alone, they may have had limited materiality.  The exact number of indecent items which an individual has may not be as important as the fact that he has a significant number of them.  Nonetheless, the number of errors is of concern and it is not possible to say, particularly when taken together with the errors of law, that they were immaterial.

 

58. The respondent erred in fact in saying that the appellant’s computer contained 3,413 indecent images of a child at Level 4, which when viewed sequentially had the appearance of a film, an indecent film of a child at Level 4, photograph of a child at Level 4 and 3,413 indecent images of children at Level 4 and two at Level 1.  It is not in dispute that there were 3,413 indecent images of a child at Level 4 which, when viewed sequentially, had the appearance of film which were in the hard drive of the appellant’s computer.  Nor is it in dispute that there were not, additionally, a further 3,413 indecent images of children to be found and thus that the barring decision process document was wrong.  It is not possible to counter that by saying that the figure “3,413” is so specific and so large that it must have been an obvious case of clerical error, for within the summary a point of substance is made that “having this amount of indecent images [i.e. 3,413] on his hard drive unintentionally seems incomprehensible.  A valid point made within the police evidence is that the appellant must have been “accidentally” clicking on indecent images every day between May and July to have the amount he did on his computer.”  The 3,413 indecent images do not support this argument.  If they had the appearance of a film they were doubtless downloaded as such rather than being the fruit of frequent and excessive generation of images in the short period between May and July 2008.  This was an error of fact and (as used) a material one.

 

59. As to whether there were 3,413 indecent images which when viewed sequentially had the appearance of a film and an indecent film of a child at Level 4 we find that in the appellant’s “incomplete folder” (268) there was a Level 4 movie clip where a child is shown giving oral sex to an adult.  This file is bbb.mpeg.  This file had been played on Windows Media Player (281).  We also find that the 3,413 images also show oral sex, as well as masturbation of the child by the adult.  The indications are that the child or children were broadly between the same ages (around 7 to 10).

 

60. Whether it is the case that what is described in relation to the first film is, as it were, scenes from within the 3,413 images, as is within the bounds of possibility from what we know about them, or whether they are two separate items, matters not in our view and we make no finding on the point.  What does matter is (as we find) that the material showing such activities as are described and involving children of that age was on the appellant’s computer and that there was no viable alternative explanation of how it got there. 

 

61. We also find that it is an error of fact that “there were over 450 files found on the appellant’s computer that contained indecent images of children and bestiality”.  What is described as “files” were in fact titles of files.  The files themselves were not there and it is not possible to say what images they contained, only to draw inferences from the titles.  Further, Ms Davies accepts that it cannot be maintained that over 450 of them contain indecent images of children and bestiality, but rather that there was a lesser number, but more than could be explained by chance.  It is accepted by the appellant and not challenged that up to 20 of the titles were of an indecent nature involving children. 

 

62. Although not a ground of appeal in formal terms, Ms Davies also accepts that the decision was in error of fact in asserting that when the last files viewed using Windows Media Player were examined one file had been viewed nine times in one day. Rather it is the case that all the last nine or ten files viewed of an indecent nature and some had been viewed twice, but none had been viewed nine times in one day with the degree of obsessiveness which that perhaps implies.

 

63. Having dealt with the respects in which the decision went wrong, we now turn to points raised by the appellant and/or the Upper Tribunal which we either dismiss or do not find it necessary to deal with because of the conclusions we have reached on other points.

 

64. Other non‑compliance with Schedule 3, para 16(1)?

As already noted the decision letter refers to "our risk assessment”.  The appellant complained that he received no such document.  It has emerged that there were two documents which might be termed a “risk assessment”, that provided by DC 225’s letter of 1 October 2010 and the respondent’s barring decision process document.  As regards the former, that had been provided to the appellant, as noted above.  It may be that the brevity of the decision letter led the appellant initially to think that there was a further “risk assessment”, properly so termed.  However, Ms Davies told us, and we accept, that there was no other “risk assessment” in existence apart from the barring decision process document itself.  She submitted that the duty under para 16 is to give an opportunity to make representations “in relation to all of the information on which ISA intends to rely in taking a decision”.  The barring decision process document is, she submits, not “information” as such but rather a record of the respondent’s evaluation of that information and thus is not subject to the para 16(1) duty.  There is, she points out, no duty on the respondent to put its provisional views to the claimant for comment.  We accept these submissions. 

 

65. Risk assessment flawed for non-compliance with Data Protection Act 1998?

We have dealt above with the evaluation by the respondent of DC Rogers’ report.  We agree that it was flawed though not for the reasons given by the appellant.  Para 13 of Schedule 3, in referring to the respondent’s duties “in respect of any information it receives in relation to an individual from whatever source or of whatever nature” is clearly envisaging that the respondent may consider a wide range of information as part of the process of balancing the need to protect children with the legitimate interests of the individual being considered.  That does not mean that it does not have to evaluate it critically, including addressing the sort of consideration which the appellant suggested was wrong with DC 225’s report.  However we do not see it as a Data Protection Act point.  Tribunals generally have very few limitations on the evidence they can consider and are relied upon to evaluate it for themselves.  If that process was intended to be made specifically subject to questions of compliance with the Data Protection Act, we agree with Ms Davies that one could have expected clear words to say so and there are none.

 

66. Error in finding of fact: “significant sexual interest in young teenage girls”?

As a preliminary comment (which applies equally to the matters in [68] and [69], Ms Davies sought to persuade us that the conclusion that the appellant had a significant sexual interest in young teenage girls was not a conclusion of fact, but an assessment of risk and that the Upper Tribunal had no ability to consider it under section 4(2)(b) of the 2006 Act.  We disagree.  It may be a finding of secondary rather than primary fact (such as which movie the appellant had viewed) but examples abound within the law of where such conclusions on a secondary level are nonetheless matters of fact (the reasonableness of an employer’s actions in unfair dismissal being but one example).  Accordingly, we proceed to consider the substance of the points.

 

67. The appellant has sought to limit the focus to the photographs in respect of which he was convicted or charges were left to lie on file.  His point has been that the girls concerned were aged at least 16 and thus lay within the age group only recently added to the protection offered by the statutes under which the appellant was convicted, a development of which he says he was unaware, and who were over the age of consent for (actual) sexual relations.  We do not find that the appellant’s sexual interest was so limited.  The judge and counsel at the Crown Court considered that the photographs were of girls “in their mid‑teens”, which leaves open the possibility that they were below, as well as above, their 16^th birthday.  His dealings with the year 9 girls on MSN, including references to them sitting on him, threesomes, tying up and fingering and the dog incident are all amply sufficient to support the respondent’s finding.  On the very day of the event he was aware that Year 9 girls were involved and had made contact on MySpace.  He indicated that he was happy to go out with 14 or 15 year olds as long as they looked 16.  Knowing what he knew, he was at very least naive and reckless as to A’s true age at the time of the dog incident and even when told, there was no sign of an intention to disengage from the nature of the exchange, carrying on to a discussion about three girls on his bed.  Some of the file titles such as hhh and jjj support the conclusion of significant sexual interest in this age group as do files viewed on Windows Media Player, such as ggg.mpeg.  “Significant” in the phrase “significant sexual interest” in our view is not being used so much as a description of the keenness of the interest but of its nature as relevant for the respondent’s purposes.  The content and context of the MSN exchanges and the searches provide evidence in support of this.  The appellant may have had other sexual interests as well (so the description given was not exhaustive) but that does not detract from the correctness in our view of what was found.

 

68. Error of fact:  hostility?.

Ms Davies confirmed that the phrase “hostile attributions” used in the barring decision process document is intended to mean, simply, hostility.  We have commented above on the dangers of summing up a complex decision making process in the ultra-concise headings of the structured judgement process.  Whether hostility is quite the best word to sum up conduct which also has elements of frustration and a desire to dominate may be debateable.  But we are satisfied that the evidence amassed by the respondent with regard to the manner of the appellant’s dealing with others, especially the year 9 girls and in particular his dealings with the girl in the “dog incident”, was sufficient to justify the respondent’s finding of “hostility” in the sense in which, and for the purpose for which, the term was being used.  We are not materially assisted by the indignant tone of the appellant’s correspondence with a voluntary organisation from which he was being suspended, but we do not consider that the respondent needs to rely on this to make out its case.

 

69. Error of fact: “exploitative attitude”?

Similar comments apply about the limitations of the title.  We accept that a teenage boy, when confronted by girls wanting to become his “friends” on MySpace might be flattered, wish to become friendly with them and might harbour hopes of a relationship developing.  Given the context in which he had met them, that was a trap for the unwary into which he fell but we do not see that of itself as indicating an exploitative attitude.  However, particularly in his dealings with girl A we see an insistence on attempting to get what he wanted in the face of the girl’s evident unwillingness which would be inappropriate even in parties more evenly matched in age and which sat very uneasily with the imbalance caused by their age difference to which he was at least recklessly indifferent . This can in our view properly be termed exploitative.  We also accept that in his dealings with the police and the respondent and even to some extent the Upper Tribunal, the appellant has sought to narrow down the scope of the conduct under consideration, preferring wherever possible to limit it to the photos in respect of which he was convicted or charges ordered to lie on file.  The impression is one of seeing what he can get away with and that, within the limitations of the headings of the structured judgement process, may properly be viewed as an “exploitative attitude”.  It is also the case that those who use child pornography are conniving in the exploitation of the children depicted in it.  While (as the respondent’s caseworker noted) there may be questions of how much weight to place on a finding of “exploitative attitude”, in particular in our view in the light of the appellant’s youth and the activities in which he was engaged, we cannot say that the respondent erred by finding that he had one.

 

70. Ought the respondent to have held an oral hearing?

While the respondent accepts the following cases such as the RCN case that there may be cases where an oral hearing is appropriate it argues that this was not one of them.  The Upper Tribunal’s concern was that the appellant had engaged in a variety of unsatisfactory acts, some of them criminal, in 2008, when he had only just achieved adulthood himself.  It is unrealistic to suppose that on reaching adulthood individuals have acquired fully developed understanding and a maturity of approach in sexual matters.  The crucial question to determine was the extent to which the appellant had by the time of the respondent’s decision been able to learn to modify and control his behaviours.  The best and in the Upper Tribunal’s view essential step to achieve that was the obtaining of an up‑to‑date report from the probation officer (see above).  We suspect that a well drafted request to the probation officer for information and a response provided with the care shown in the earlier reply of 19 February 2010 would have provided the necessary information without there being any indicator that an oral hearing was necessary.  The value of an oral hearing in this case would probably only have been as providing the opportunity to limit the damage caused by other errors in the decision making process and so we would not go so far as to say that the respondent erred on this ground alone by not holding one.

 

71. Error by overlooking appellant had no training in child protection issues?  There is a conflict on the evidence as to whether the appellant had had such training or not.  The respondent sets no great store on his having become involved with the girls, placing more weight on other matters, saying:

 

“to be fair his age is taken into account and with regards to ‘grooming’ the girls and behaving inappropriately with them, it could be seen as a reasonable explanation however, the same cannot be said for the search terms he used and the indecent images of children that he had on his computer.”

 

If indeed it is a fact that he has had no training in child protection issues, we do not consider it was a material one.  While child protection training might have gone into issues about acceptable professional boundaries, it would not have gone into the need to avoid viewing child pornography.

 

72. Error in law or fact in finding that appellant had engaged in “grooming” and/or had been “clever” in his answers (with connotations of deviousness)?

“Grooming” is a word of some ambiguity.  While it is sometimes used to denote a specific criminal offence, in popular language it is sometimes understood to refer to a process of “softening up” an intended sexual target. In that sense, the “dare”, the offer to strip down to his boxer shorts on webcam and the overtly sexual references in the MSN exchanges support the finding.  As regards being “clever” in his answers, we referred above to the tendency to seek to minimise the conduct under discussion.  He attempted to be “clever” by deleting images from his computer on the pretext of needing it for study.  We find no error of law or fact here. 

 

 

 

73. Proportionality/Wednesbury unreasonableness. 

We do not find it necessary to consider this point.  The decision is flawed in other ways which mean that it is not necessary to consider these tests of the validity of the decision as a whole.

 

Disposal

 

74. As the Upper Tribunal has found the respondent has made mistakes of law and fact, we are required by section 4(6) of the 2006 Act either to direct the respondent to remove the person from the list or to remit the matter to the respondent for a new decision.  We choose the latter.  In our view the appellant has engaged in conduct which rightly raises concerns as to the appropriateness of his working with children unless (at very least) he has significantly and lastingly moved on from the behaviour and attitudes exhibited at that time.  Of the errors we have identified, the most serious are those which have jeopardised the respondent’s ability properly to assess that issue.  We are confident that with the help of the guidance provided by this decision they will now do so. 

 

75. Under section 4(7)(a) the Upper Tribunal may set out any findings of fact which it has made on which the respondent must base its new decision.  The findings in paras [53] [58] [59] and [61] are to be understood as such findings but are not to be treated as exhaustive. 

 

76. By section 4(7)(b) the person must be removed from the list until the respondent makes its new decision unless the Upper Tribunal directs otherwise.  We have directed otherwise.  Firstly, this is an “auto bar with reps” case in which Parliament’s starting point is that those who have committed the offences which the appellant committed should be placed on the list.  We accept that there may be some cases of such a type where it is not appropriate to make a direction for the person to remain on the list, but this is not one of them.  In this case, we do consider it appropriate to make the direction because the seriousness of the conduct displayed – not only in relation to the matters the subject of the conviction – in 2008 makes it appropriate that children are protected on an interim basis until such time as the extent to which the appellant has moved on has been properly evaluated. 

 

77. A word about the anonymisation of this decision.  We have done so principally because many of the matters relied on have not had to be proved to the criminal standard of proof and because of the appellant’s extreme youth when the events in question took place.  The matter was not contested and not the subject of argument but we would incline to the view that, particularly in view of the appellant’s youth, considerations of article 8 of the European Convention on Human Rights might be engaged.

 

78. Finally, a word about review.  In making these comments, we do not intend to make any implication about how the respondent should determine the matter which is now being remitted to it.  However, one of the appellant’s concerns in these proceedings has been that as he contends that he had already made the changes to his behaviour by the time he was included in the list, he might have difficulty when eligible to do so in bringing himself within paragraph 18(4)(a) of Schedule 3 by showing that there had been any change of circumstances such as could open the door to a review.  Accordingly we merely mention that, should he find himself in the position that he does not succeed on the remitted decision and thus in due course wished to seek a review, Clause 70 of the Protection of Freedoms Bill currently before Parliament introduces a further power of review by the respondent, supplemental to the one conferred by the existing Schedule 3, para 18.  We have no doubt that the appellant could investigate this further, should he find himself in that situation.

 

79. It remains for us to thank Ms Davies for the measured, professional way in which she presented the respondent’s case and also to commend the appellant for his careful and thorough presentation and for the dignity and courtesy displayed throughout two days of hearing which had not been sought by him, but rather directed by the Upper Tribunal.

 

 

(Signed on the Original)

 

 

 

CG Ward

Judge of the Upper Tribunal

 

 

 

S Howell

Member of the Upper Tribunal

 

 

 

L Redford

Member of the Upper Tribunal

 

2 November 2011

 

(typographical error corrected under

rule 42 3 November 2011)