SJB Convicted of sexual activity with a child under 18 in abuse of a position of trust. Sentenced to a community order with supervision for two year, and was disqualified via a Disqualification Order from working with children under section 28 CJCS Act 2000.

Facts

SJB  was a full time teacher at a school in Suffolk. The 17 year old victim was a full time boarding pupil at that school. On an evening in March 2007 there was a social night in the boarding house where the victim lived. The Appellant was working behind the bar. During the course of the evening the victim drank six glasses of wine and described herself as very drunk. She recalls at some point falling over. Her next recollection was being in her room and kissing the Appellant. He put his tongue inside her mouth and she responded by kissing him back [para 2]

SJB was included on the old “List 99” regime under section 142 of the Education Act 2002 and Regulation 8 of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 [para 3]

SJB appealed the Disqualification order, the appeal succeeded but the order was replaced with a Sexual Offences Prevention Order (SOPO)  under section 104 of the Sexual Offences Act 2003. SOPO was “until further order he be prohibited from engaging in any work (paid or unpaid) involving unsupervised contact with female persons under the age of 18 years” [para 5]

All names on “list 99” were transfer to new Children’s Barred List in October 2009, via a process called “migration” [para 7]. On migration SJB was sent a letter dated 20 November 2009 offering him an opportunity to make representations within 8 weeks as to why he should be removed. [para 9]

SJB sent representations, highlighting that his Disqualification order had been replaced with a SOPO, the ISA said these representations were “outside the scope of those that can be taken into consideration for inclusion” [para 11]. SJB appealed to the Upper Tribunal.

Legal Framework

SJB was automatically included on list 99 under regulation 8 of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 (‘the 2003 Regulations’) as he had been convicted of an offence listed in the Regulation, and also because he had been given a Disqualification Order [paras 14 – 21]. The court noted, although not relevant to SJB’s case, that Disqualification Orders were repealed by the Safeguarding Vulnerable Groups Act 2006, referring to Attorney-General’s Reference (No 18 of 2011) [2011] EWCA Crim 1300 (also see: SB v ISA 2011) [para 22].

A direction to be placed on list 99 could be revoked if a Disqualification order is quashed [para 23]. As SJB was transfer from list 99 and he had a right to make representations, and a right to appeal to the Upper Tribunal [para 28]. The Tribunal notes that SJB’s representations could only cover the broader terms of his barring under the Safeguarding Vulnerable Groups Act 2006 (SVG) as opposed to restrictions under Section 142 of the Education Act: “because the restrictions placed on an individual by reason of a placement on the Children’s Barred List are broader and wider in context than the restrictions under section 142 of the Education Act, a person is able to make representations only as to the wider bar and not the whole bar.” [para 30]

Rolled up hearing as per The Queen on the Application of Vetterlein v Hampshire County Council and Hampshire Waste Services Ltd [2001] EWHC Admin 560 (and see SB v ISA) [para 33]. Tribunal granted permission then proceeded to the merits.

SJB sought to argue that as his Disqualification Order had been quashed that he should not have been migrated from list 99 to the barred list. The ISA stated that as he had not notified the Secretary of State of the successful appeal, he had no right to raise the issue now that he had been transferred and it was in any event pure speculation as to what might of happened had the Secretary of State been informed. [paras 36 – 39].

The fairness of the rules was not a matter for the Tribunal, that was a matter for judicial review [para 38].

SJB argued that as he was migrated without consideration being given to the Court of Appeal decision to quash his Disqualification Order, he lost his ability to argue that, in light of the terms of the SOPO, he should not have been barred in the first place, and that the SOPO gave adequate and sufficient protection. He stated the his inclusion in the Children’s Barred List was excessive and contrary to the views of the Court of Appeal which quashed the wider Disqualification Order in favour of a narrower SOPO [paras 40/41].

Discussion

Court empathised with SJB that he had expected the Court of Appeal to communicate the quashing of the order to the Secretary of State [ para 42].

The Court agree it was speculation to infer what the Secretary of State might have decided, and moreover highlighted even if the Secretary of State had been told the Disqualification Order was quashed, SJB also qualified for listing due to being convicted for a qualifying offence [para 43].

No conditions possible for barring, as opposed to list 99 that could include gender specific directions [para 44]

Reiterating the right to make representations prior to automatic barring per R (on the application of G) v The Governors of X School [2011] UKSC 30 (published 29 June 2011) and R (on the application of Royal College of Nursing and others) v Secretary of State for the Home Department and another) [2010] EWCH 2761 (Admin) [para 46].

Tribunal found SJB’s Article 6 rights had not been violated by being unable to challenge the ISA’s decision not to consider the Court of Appeal’s ruling as he had an opportunity to communicate the successful appeal to the Secretary of State prior to migration.  

Tribunal concludes that the migration to the children’s barred list was in accordance with law [paras 46 -48]

Tribunal acknowledged that paragraph 18 of schedule 3 to the Safeguarding Vulnerable Groups Act 2006 permits the review of barring decision, prior to expiry of the minimum baring period, in exceptional circumstances “such as where the barring decision was probably wrong as a consequence of the ISA being provided with inaccurate information or following a change of circumstances. Indeed we understand that an example of such a case would be where a person, subsequent to the bar, successfully overturned a conviction on appeal” [para 50]

The Tribunal found that this “exceptional circumstances” procedure should apply in SJB’s case, and stated the procedure will be given statutory force via the Protection of Freedoms Bill inserting a new paragraph 18A into Schedule 3 of the Safeguarding Vulnerable Groups Act [paras 52 – 54]

Case Link: SJB v Independent Safeguarding Authority [2011] UKUT 286 (AAC) (15 July 2011)