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)

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)).

Case Link: VT v ISA [2011] UKUT 427 (AAC) (31 October 2011)

The appellant was a staff nurse at an elderly care unit. KS was referred to the ISA by the Dept. of Health. He was placed on adult barred list.

ISA found two of the allegations unsubstantiated but three other allegations were upheld on “the balance of probabilities” that he had engaged in “relevant conduct” which endangered a vulnerable adult:

• deliberately inflicted pain on one patient by pinching his nipples and at least one previous occasion
• deliberately inflicted pain on another patient by pinching his nipples on a number of occasions
• behaved in a strict and authoritarian manner with patients and staff.

The CPS had not prosecuted, the ISA stated this was irrelevant as they considered matters on a lower standard (the balance of probabilities).

Appealed on the basis that 1) “strict and authoritarian” is not defined anywhere as “relevant conduct – error of law 2) that the ISA had wrongly decided the facts – error of fact.

The court made observations on the practice of “rolled up hearings” – permission and substantive hearing, referred to observations in SB v ISA [2011] UKUT 404 (AAC)

Permission

Error of Fact: Tribunal said just because there is denial by an appellant does not mean that a mistake of fact is plainly arguable. “Such a denial may be entirely devoid of merit.” [para 25]

Error of Fact Permission Test: “…it is the Tribunal’s view, at least on the facts of this case, that the denial by the Appellant, together with the admitted defects in the strength of the evidence, that it is at least arguable that the Appellant has acted upon a mistake of fact upon which the decision was made, even if the Tribunal on the basis of the evidence decides, that the Respondent made no error of fact on which the decision was made.” [para 25]

The NMC had found “no case to answer” – Tribunal said they were “not influenced either way by the decision taken by the NMC.” [para 26]

Appellant gave evidence; Tribunal watched DVD of evidence; convinced Tribunal that permission in relation to the mistake of fact should be granted. (para 26)

Error of Law: Arguable case that “behaving in a strict and authoritarian manner to staff and patients” is not relevant conduct. [para 26]

Error of Law

Relevant Conduct: “It is our view that an allegation that a person is strict and authoritarian to staff and/or to patients by itself would not normally amount to ‘relevant conduct’ so as to engage the protective measures of the SVGA 2006. The issue is whether this behaviour ‘intimidates patients or puts them in fear.’ If it does do so, then it falls within the definition of ‘relevant conduct.’” [para 42]

Procedural Flaws in the minded to bar letter: Appellant claimed minded to bar letter’ does not provide any specific allegation relating to ‘strict and authoritarian manner with patients and staff’ and so it was impossible for the Appellant to respond to the allegations. Tribunal found it was “abundantly apparent to us that the Appellant was aware of the allegations against him” [para 44].

Challenge on the basis of lack of reasons: The Barring Decision Making Process document sets out very clearly the reasons for the decision to place the Appellant’s name on the adults’ barred list. [para 51]

Proportionality

The ISA has an inherent power to reconsider its decisions – to be amended by the Protection of Freedoms Bill to make this express [para 57].

““In circumstances where an individual is found to have mistreated vulnerable elderly patients in his care, by deliberately inflicting pain on them on more than one occasion, and by definition, to have lied about that ever since, it cannot be said that it is unreasonably onerous or oppressive to prevent that individual from working with vulnerable adults. Applying the more structured approach, it is submitted that the essential question is whether the legitimate aim of protecting vulnerable adults could be achieved by some lesser means than placing the Appellant on the list. The protection of other such vulnerable adults can only be achieved by placing the individual on the adults’ barred list. This is not a case where the individual has admitted to wrongdoing, and has demonstrated to the ISA or the Tribunal that he has learnt from his mistakes or taken steps to ensure that similar conduct will not happen in the future. There is no ‘partial’ listing. In those circumstances, it cannot possibly be said to be disproportionate for such an individual to be included in the list.”

59. We agree entirely with the observations made by Ms Davies in this submission, and indeed it is this point which sets the factual basis of the present case apart from the factual basis in the case of SB v ISA (see paras 64 ff).

60. We do not believe that there has been an error of law, and that ground of appeal is dismissed.”

Mistake of Fact

The ISA must make an error of “material fact” [Para 61]. Tribunal found the evidence “compelling” (para 64). “Putting the totality of this evidence together, we are satisfied on a balance of probability that the Appellant did pinch CW’s nipples in the way which is alleged… We do not believe that the Respondent made a mistake of fact in deciding, on a balance of probability, that CW had his nipples pinched on that evening.” [para 65]

Regarding the second victim and Hearsay evidence, “It is indeed the case that much of this evidence is hearsay evidence, and accordingly we accept that it should not be given the same weight as direct evidence. However, we are entitled to consider it, together with the other evidence which we have seen relating to DM.”

Inconsistency in comments/interviews by appellant “Ms Davies suggests that the most likely explanation for the inconsistency is that the account was untrue, and that the Appellant had forgotten what he had said by the time of the disciplinary investigation. Whilst we would not be prepared to go that far, we do believe that the two accounts undermine to some extent the credibility of the Appellant. We simply do not accept that the minutes of the disciplinary hearing are simply a typing error. The name CW appears five times.” [para 75]

With respect to the “strict and authoritarian behaviour”: “There is more than sufficient evidence in the documents that we have seen to arrive at the conclusion that the ISA have not made a mistake of fact on which the decision was made relating to the Appellant’s general attitude to patients (acting in a strict and authoritarian manner) of such a degree that it intimidated patients.” [para 80]

Appeal dismissed [para 81]

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)).

Case Link: KS v ISA [2011] UKUT 426 (AAC) (26 October 2011)

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)

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)