VW appealed ISA’s decision not to remove him from the Children’s barred list. Convicted for possession and making of indecent images (levels 1,2 and 3). VW was sentenced to a community order with a supervision requirement, and to register on the sex offenders register for 5 years. Along with other images, he had the pictures of girls who were in their mid-teens, who had taken pictures of themselves, and sent them to the defendant.
VW attend as a volunteer at a school event where he came into contact with a number of girls. VW states they then “sought him out” through MySpace. VW then engaged in inappropriate chats with 3 14 year old girls, including having images sent to him – VW’s contact also became abusive and forceful towards the girls [para 4].
The evidence clearly indicated that VW knew the girls were underage/in year 9 at school [para 5]. The ISA redacted search terms and names of files found on VW’s computer [para 7]. Paras 8 – 12 provides details of the numerous materials found on VW’s computer, including 3416 images depicting oral sex between a child and an adult. In June 2009 VW was separately accused of inappropriate contact with a 14 year old girl and possession of a level 5 video, the matter was dropped due to a lack of evidence [para 14]. The ISA concluded that there was significantly more materials found on VW’s computer than for what he was ultimately convicted [para 15].
VW argued that 1) the indecent images of children were all of 16 and 17 year olds and there was no younger child involved 2) 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 3) the images were sent to him without prior prompting from himself 4) at the time of the offence he had just turned 18 and the youngest person was only two years younger than him 5) he was not subject to a sexual offences prevention order 6) he had “no lawful limitations justified in law that was imposed by a British court” 7) being barred was disproportionate to his circumstances 8) it was not in the public interest for him to remain on the Children’s Barred List. He also stated he had fully complied with his sentence, and now took steps to guard against any reoccurrence [para 21]. VW provide numerous letters and documents in support of his case [para 22]. The probation reported has assessed him as a low risk of reoffending [para 23]. The solicitor’s representations stated that the case was at the “bottom end in the scale of seriousness” [para 24].
VW had contested the evidence sent to him by the ISA, correcting inaccuracies about the levels of the images, and reiterating that he though the girls were all 16 or 17. He denied the content of the discontinued 2009 allegations. He stated that he was now in a relationship with a 24 year old woman, he had disclosed the allegations to her, and in seeking work he had been discussing his risk factors with the police and probation [para 27].
VW applied for an enhanced CRB check for a position as trainee within a sports organisation, the police wrote to him enquiring from VW how the appellant had been notified of his barring, “as this was confirmation said to be necessary “prior to initiating a criminal investigation”” [para 28] (namely an investigation for breaching his barring).
The police wrote to the ISA assessing VW as medium risk but, “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 [para 31].
VW challenged the police’s report on various points, including pointing out the obvious discrepancy between probation’s report and the police’s [para 32]. The caseworker assessing the case reviewed the papiers, giving each piece of submitted evidence a weighting. VW’s evidence was generally given a medium weighting, the GP letter and a number of the character references were given a low weighting [35].
The evidence from the police, without explanation, was all given a high weighting, as was the referral letter from the CRB as it was from a “reliable source and confirms that [the appellant] is still applying for positions that give him access to children” [para 36].
The case worker looked at the entirety of the evidence, addressing the Structured Judgment Process (SJP), including the police interviews, namely the decision included evidence outside of indictment for which VW was convicted. The assessment looked at the forceful manner in which he dealt with people in his communications, and the denials that he knew the girls when under 16; the police interviews clearly showed this to be a lie. The “counter-indications” noted by the caseworker were relatively limited [para 40]. The case worker concluded that the images were of far wide scope then he was convicted of and were left to lie on the Court file. VW had an interest in uniformed positions, his internet search terms showed he had an interest in younger girls than the ones he had groomed. His relative age to the complainants was taken into consideration, and he had expressed remorse, but this was “carefully worded as are the rest of his representations” [para 41]. The response was conveyed in writing stating VW had a “significant sexual interest in young teenage girls and your hostility and exploitative nature cause concern” [para 43]. The Tribunal found that the decision letter was “unhelpfully brief” and as such ”created a number of hostages to fortune” [para 44]. ISA stated the barring decision making document should be looked at as a whole, and read in a common sense way; the Tribunal agreed, but concluded there had been several errors of law [paras 45/46].
The Tribunal found the failure by the ISA to get an updated probation report to be an error of law. The ISA said it was their duty to assess the case and not be led by the probation service. The Court found that the Court’s sentence was supposed to be rehabilitative, and probation had the most contact with VW. The ISA had to take their decision “against the background of all the facts” [para 47] which included obtaining a fresh probation report.
The ISA stated they were not charged with conducting “an investigative function”. The Tribunal disagreed stating that the ISA, “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” [para 48]. The Tribunal stated that in the case of XY v ISA they had already highlighted the “need for clear protocols for checking whether further information was needed on particular aspects of a case” [para 49].
The Tribunal also found that there were clear conflicts between the police’s report, VW’s case, and probation’s earlier report – a further report was needed to clear up these conflicts [para 50]. The Tribunal found that there had been an error of law in the ISA failing to apply any rational basis to the evaluation of the police’s assessment of VW – effectively it appeared the police’s assessment was given a high weighting simply because it came from the police [para 51]. The ISA had effectively lumped all of VW’s evidence into one group, without giving weighting to the individual 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” [para 52].
The case worker had concluded that only 2 of the 7 character references were aware of the conviction; this appeared to materially incorrect. The ISA said this was both an error of fact and law; as to the error of law it was one, “which no reasonable decision maker could adopt on the evidence before it.” [para 53].
With respect to VW applying for a position to which he was barred, VW had never been an opportunity to respond to this. He provided evidence to the Tribunal that showed the role was not in fact regulated activity with children. The fact that the CRB documents had not been put to VW meant that it had led the ISA to a mistaken view of the facts, upon which a high weighting was placed. This was found to be a material error of law [para 56].
The ISA said there were a number of errors of fact, there had been an error by the ISA regarding the number of images found on VW’s computer, and how they got there, and how/when they were viewed [para 58 – 63].
The Tribunal accepted that there was no duty on the ISA to provide VW the barring decision process document. There is a duty under para 16 of the SVGA on the ISA 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 Tribunal accepted that the decision document was not “information” but “rather a record of the respondent’s evaluation of that information” [para 64].
ISA sought to argue that a determination on whether VW had a significant sexual intertest in young teenage girls was not a finding of fact, but an assessment of risk, and that the Tribunal could not assess risk. The Tribunal disagreed [para 66] (also see VT v ISA – the Tribunal assessed the risk posed by an appellant). The Tribunal found from the totality of the evidence showed that he did have an interest in young teenage girls [para 67], they also found that he was “hostile” [para 68]. The Tribunal also found that VW had an exploitative attitude, inter alia, noting the manner in which he tried to limit the scope of information the police, ISA and the Tribunal could consider; “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” [para 69]. There was no error in not holding an oral hearing; the Tribunal felt that the best evidence would have been an up to date probation report [para 70].There was no merit in the VW’s argument that he had not received adequate child protection training; training would not have addressed the need not to watch child pornography[para 71].The Tribunal found there had been no error of law or fact in finding VW had engaged in “grooming” or that he had been “clever” in his answers – he had sought to minimise his conduct, and he had attempted to delete images from his computer on the pretext of needing it to study [para 72]. The Tribunal did not need to decide whether ISA’s decision had been unreasonable as ISA’s decision was flawed in other ways [para 73].
The Tribunal chose to remit the case to ISA, rather than direct VW be removed from the list. The Tribunal found VW’s conduct did raise 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.” VW was to remain on the list in the interim pending ISA’s fresh decision. The decision was to be anonymised due to VW’s “extreme youth” and that many matters in question had not been proved to the criminal standard. The Tribunal did not take a view on how the ISA should decide the fresh assessment; they noted if VW were to be kept on the list, pending the new power that was to be introduced under section 70 of the Protection of Freedoms Bill, VW could apply for a review in due course to show that he had made changes to his conduct [paras 74 -78].
Case Link: VW v Independent Safeguarding Authority [2011] UKUT 435 (AAC)
