SB barred placed on children’s barred list. Appealed ISA decision to Upper Tribunal on the basis that it was a disproportionate – error of law. Appeal granted.
Rolled up hearing, The Queen on the Application of Vetterlein v Hampshire County Council and Hampshire Waste Services Ltd [2001] EWHC Admin 560 referenced [para 7]. Tribunal also said that rolled up hearing was appropriate as SB was a litigant in person so may struggle with distinction between an “arguability” point and “matters of substance”. [para 9].
Regarding access to a lawyer, and the relationship between the Upper Tribunal and regulatory bodies. R (on the application of G) v The Governors of X School [2011] UKSC 30 (see X School case for denial of lawyer at school hearing, Upper Tribunal able to determine their own facts separate from School decision [para 10]).
Tribunal also emphasised a “flexible approach” to permission/rolled up hearings [paras 11/12]. Permission granted.
Facts: SB convicted of possession of incident images, 21 counts possession, 1 count distribution. 36 weeks suspended sentence for 24 months. SOPO and Sexual offenders Treatment Programme ordered, and various other ancillary orders related to non-contact with children.
Images found: 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. [para 24]
SB was referred for barring, automatic with representations. SB provided 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 [para 22]. He also argued that a barring would 1) impose a heavier sentence than imposed by the Court 2) he only had a two year supervision order, which was 1 year less than sought by the probation service 3) inclusion constitutes an unnecessary and unjustified restraint of trade 4) barring would prevention rehabilitation, and his ability to pay something back to society, and presents society from gaining his knowledge 5) baring treated SB with an even higher risk of offending than when he was sentenced, including a risk to an older age group (16/17 year olds), he stated he had also sought private counselling from the Lucy Faithfull Foundation and the Internet Sex Offenders Treatment Programme 6) inclusion was disproportionate 7) the fact that it would show on a background check, and that he would be on sex offenders register for 10 years, was adequate protection. [para 22].
SB also stated that the evidence showed no offending related to his work [para 25]. ISA after considering representations refused to remove; “…remains an unacceptable risk that similar harmful behaviour in the perpetuation of sexual abuse of children, may be repeated in the future.” [para 28]
Mistake of Fact: In the ISA’s reasoning they stated there had been a “disqualification order” – this was an error [para 29]. The Tribunal found this error was not “a material error of fact”, XY v ISA [2011] UKUT 289 (AAC) citied “it must still have been an error as regards some material fact, i.e. that it could have affected the outcome.” [para 30]
Decisions regarding whether SB was medium or low risk are matters of law. (para 32).
Discussion regarding the relationship between the barring/ISA regime and the old Disqualification Orders regime under the Criminal Justice and Court Services Act 2000. In future judges required to tell defendants that the ISA will be dealing with barring, Schedule 3, para 25 of the SVGA 2006 [para 34].
Error of Law: Discussion on section 4(3) SVDA 2006, “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.” If however a decision regarding appropriateness is unreasonable (Wednesbury), irrational or disproportionate then this would be a matter of law [para 38,40].
“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.” [para 41]
“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.” [para 56]
The tribunal looking at the evidence essentially found evidence of insight/contrition/rehabilitation:
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. [para 64]
The credibility of an appellant, and them “as a person”, is relevant to determining proportionality:
“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.”
The Tribunal analysed the level of risk identified on the evidence, concluding that the ISA had not properly taken this into consideration: “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.” [para 61]
“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.” [para 62]
Obiter Dicta: a failure to get up to date reports, “or failure to resolve what may appear to be a contradiction in the reports, would amount to an error of law.” [para 58]
Barring is not a punishment: “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.” [para 66]
Tribunal’s Powers: “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.” [para 66]
Tribunal made a direction that there would be no publicity of any matter likely to lead members of the public directly or indirectly to identify any person who has been involved in the circumstances giving rise to the appeal (rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698)).
Legisia Legal Services Comment: SB was separately prohibited from working with under 16s by a SOPO, so removal of barring only permitted SB to work with 16 – 18 age group. This may have had an influence on the Tribunal’s ultimate decision, which they reference in the penultimate paragraph [para 67].
Case Link: SB v Independent Safeguarding Authority [2011] UKUT 404 (AAC) (04 October 2011)
