VT appealed against ISA’s decision to place him on the children’s barred list. VT had been subject to an automatic barring due to accepting a caution for possession of indecent images of children. He had been invited to make representations as to why he should be removed from the list. The ISA decided to keep VT on the list after consideration of his representations (auto-bar with reps). VT appealed, the Upper Tribunal concluded that the ISA had made a mistake of law, and directed VT to be removed from the list [para 1].
306 indecent images of children (mostly young girls) under the age of 18 years of age were found on VT’s computer. These images comprised (on the standard scale, with level 5 being the most serious): 274 level 1 images, 28 level 2 images, 3 level 3 images, 1 level 4 image. VT initially denied the allegation, in interview he admitted possession, stating he was in “difficult personal circumstances under which he had come to view the images and expressed his deep regret [para 4].
The police initially refused a police caution, but ultimately offered VT a caution, which he accepted.
The Tribunal noted that the procedure of automatic barring and then offering the opportunity to make representations would be changed by the Protection of Freedoms Bill (namely where there is a right to make representations, barring would not occur until after the representations are considered [para 7]).
VT set out a detailed letter which included personal testimonials, and also provided comparative examples of cases he had found in the newspapers. He stated: “Yes I have been foolish, yes I have been naïve, but I have not done anything with criminal intent, and nothing I have seen has influenced my behaviour unfavourably. I did eventually ‘come to my senses’ and there was no repetition. All this surely proves that I no way pose any risk at all to anyone” [para 10].
ISA obtained further particulars of the offence from police, and provided them to VT for comment. VT disputed the evidence provided by the police to the ISA regarding the time-frame of offending, stating it was more narrow than the dates suggested by the police, and he also stated that he had stopped accessing the relevant websites prior to the police’s intervention [para 13].
Structured Judgement Process SJP
The Structured Judgement Process or SJP is a risk assessment tool which is central to ISA’s decision-making processes in both auto-bar with reps and discretionary barring cases [para 14]. The Tribunal detailed the structure of the SJP; “In all there are 22 risk factors across the four separate fields. In any given case the caseworker is then expected to make an assessment of each risk factor, as either “No information”, “No concerns”, “Some concerns” or “Definite concerns” [para 14].
The Guidance notes to the SJP state that: “Whilst not automatically compelling a conclusion, it is anticipated that in cases where there are definite concerns in two or more of the four broad areas in relation to a particular behaviour or behaviours, the case would be regarded as ‘minded to’ include the individual on the relevant list.” … “Conversely, where there are no concerns, some concerns or insufficient information in the majority of risk areas (i.e. there is one or no area of definite concern), the presumption would be not to bar them.” [para 15].
The Tribunal noted that there was an internal, not publicly available, guidance document which also stated if there are two or more areas of definite concern, barring should normally follow. The internal guidance also directed that if the criteria for critical concerns are not met, but the reviewer felt barring was still appropriate, the matter should be escalated to a Line Manager and then the Board. Equally the guidance stated if concerns were met, but the reviewer felt barring was inappropriate, again the matter should be escalated to a Line Manager and then the Board. [para 17].
On assessment of VT’s case the caseworker had only found “some concerns” over four factors in the SJP matrix – the presumption was therefore that VT should be removed from the list [para 19]. VT was removed from the adult’s barred list but the casework however concluded that VT was still a risk to children despite the SJP outcome; “Notwithstanding the lack of definite concerns identified through the SJP (due mainly to the lack of information to establish drivers for his behaviour) Mr T’s offence is significantly serious to justify it being appropriate to depart from the guidance. Indeed, the nature of Mr T’s caution carries a legislative presumption of risk and as Mr T has not provided sufficient evidence or reassurances that he would not access inappropriate images in the future, it is appropriate that his inclusion on the Children’s List be retained [para 20].
The matter had been escalated to the Line Manager, but not the Board [para 21]. A very terse response was provided to VT, that provided little detail regarding the reason for his continued inclusion on the children’s barred list [para 22]. VT appealed, reiterating his arguments, and adding that the ISA should have obtained his interview from the police. The ISA stated they were not an investigatory body, and it was up to the appellant to provide supporting evidence [para 23]. The Tribunal noted that VT’s request regarding the interview was within the time frame ISA had given him in which to respond to the police records. Counsel for the ISA said they were reviewing their decision letters in light of VT’s case and others [para 24].
VT’s submissions on the appeal to the Upper Tribunal
VT was granted permission to appeal. VT stated that he had not been given any details about what information ISA held on him when they first wrote to him. ISA had failed to guide him on what information he should provide, his representations had been ignored, and the decision letter gave no reasons. It was only after he appealed that he was able to see the Barring Decision Process Document or BDPD and the SJP matrix [para 26].
VT made submissions that he was a devoted NHS worker, had been suffering from depression, disciplinary proceedings for an unrelated matter, and he had been made bankrupt. His looking at images had become a morbid obsession, and he had been appalled at what he had seen, and had stopped looking at the images prior to his arrest [para 28]. He had not bookmarked or saved images, he had not paid for access to images, he had not joined any indecent images groups, he said he was not a child molester [para 28]. He stated the police had not seem him as risk, given he was issued a police caution, and could not understand why ISA had taken the contrary view [para 29].
ISA’s submissions on the appeal to the Upper Tribunal
ISA said that a police caution does not mean that a person poses no threat, a caution is a serious matter requiring an admission to an offence where there is evidence sufficient to prosecute. Parliament expressly legislated to permit autobar decisions on the basis of a caution [para 30]. ISA conceded that failure to follow their own internal policy of referring to the Board, did present an issue for ISA in terms of there being an error of law [para 31]. ISA stated they had not made any error regarding the facts, and the appeal concerned the decision as a whole, not just the summary (see XY v ISA 2011). ISA stated they had made a detailed and careful assessment; accepting the caution was an admission of guilt and the transcript of the interview added nothing to the case that was not already know [para 32].
ISA stated that SB v ISA was wrongly decided, that the Tribunal should not have concluded that the ISA’s decision was disproportionate (an error of law). The ISA argued that only traditional concepts of errors of law should be considered by the Tribunal, namely unreasonableness, irrationality or perversity. ISA stated in any event they had acted in a proportionate fashion [para 33]. The ISA also stated that they felt VT had no real insight into his offending, and that he believed he had only accepted the caution “on the basis of technicality” [para 34].
Conclusions
Permission was granted on grounds that the ISA had erred in law 1) failing to make appropriate findings of fact beyond the simple fact that VT had accepted a caution; and (2) failing to ask VT if he wished to provide a copy of the transcript of his police interview before reaching its decision (3) ISA may have erred in law by departing from the stated policy in its own guidance that there was a presumption not to bar in the absence of “definite concerns” across at least two areas of the SJP and then by failing to refer the case to the Board for consideration and final decision in accordance with that guidance [Para 8]. The Tribunal found the appeal was against the underlying decision in the BDPG and SJP matrix, not the terse letter the ISA had sent VT (following XY v ISA 2011) [para 36].
The Tribunal found that it would have been desirable for the ISA to have had the interview transcript prior to coming to a conclusion, and the ambiguity regarding the closing date for further representations was “unfortunate” but did not find an error of law on this basis [para 37]. The Tribunal found it was a clear error of law not to have referred to the Board, nor to explain the reasons for the departure from the published guidance [para 38].
The Tribunal did not accept that there was an inconsistency between the police offering a caution, rather than prosecuting, and the ISA’s decision to bar. The Tribunal stated that the police’s decision did not reveal that the police had made a categorical statement that VT posed no risk [para 39].
The Tribunal disagreed with the ISA’s submission that they could not assess whether the decision by the ISA was disproportionate and found that they could assess the evidence in line with the Tribunals ruling in SB v ISA . The Tribunal found that the Upper Tribunal was an expert panel and so was capable of “sitting in the shoes of the original decision maker” and so should not be constrained in the same way as the High Court in a conventional Judicial Reviews [para 47]. The Tribunal stated that there were some cases where an oral hearing would be helpful for the ISA, but these were in limited circumstances. “However, we consider that this is a case where the absence of an oral hearing before ISA has in fact made it “unduly difficult for the ISA to make findings of fact applying its own judgment to the material.” [para 49]
The Tribunal expressed reservations that the ISA had made a decision to maintain the bar where 15 of the 22 SJP factors had no information at all, and only 4 had “some concerns” and no “definite concerns” [para 49].
The Tribunal concluded that VT did not pose a risk to children, finding it would be unfair to VT to remit the matter back for the ISA to assess VT’s risk. There was no further evidence the ISA would have that the Tribunal has not seen [paras 50/51]. The Tribunal reiterated that barring is not a punishment, but is there to protected vulnerable groups. The Tribunal found it “extremely unlikely” that VT would ever deliberately harm or injure a child taking into account the facts of the case, and reviewing the mitigation/circumstances of VT [paras 52/53]. The Tribunal noted that VT had no wish to continue working with children, and the caution would be revealed on a background CRB check [para 54]. The Tribunal stated that the finding that VT posed no risk was a finding of fact. Given the finding that VT posed no risk, the Tribunal stated the only possible reason to find that it was appropriate to maintain VT on the list was a question of public confidence:
However, in that context we note the observation in ISA’s Guidance Notes that “issues of public confidence will more likely play a useful supportive role alongside other significant factors in marginal barring decisions. It would certainly be a rare and highly exceptional case where public confidence is the main reason for a barring decision in the absence of other significant factors” (at paragraph 8.6). We agree with that proposition. For the reasons set out above, we also do not believe that this is such a “rare and highly exceptional case”. Rather, we take the view that a well-informed member of the public would take the view that ISA’s normal presumption in applying the SJP should have applied. Therefore, in the light of our findings, we find that it is not appropriate for VT to remain on the children’s barred list
[para 55]
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)).
