Independent Safeguarding Authority (Appellant) Sb (Respondent) Royal College of Nursing (Intervener)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lord Justice Etherton,Sir Scott Baker |
| Judgment Date | 18 July 2012 |
| Neutral Citation | [2012] EWCA Civ 977 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 July 2012 |
| Docket Number | Case No: C3/2011/3225 |
[2012] EWCA Civ 977
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
V/2490/2010
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay, Vice President of the Court of Appeal, Civil Division
Lord Justice Etherton
and
Sir Scott Baker
Case No: C3/2011/3225
Ms Nathalie Lieven QC and Ms Galina Ward (instructed by Treasury Solicitors) for the Appellant
Mr Ian Wise QC and Mr Stephen Broach (instructed by RCN Legal Services Directorate) for the Intervener
The Respondent did not appear and was not represented.
Hearing date : 10 May 2012
The question at the heart of this case is whether the Upper Tribunal (Administrative Appeals Chamber), by its decision of 4 October 2011, should have interfered with the decision of the Independent Safeguarding Authority (ISA) not to remove SB from the Children's Barred List. Inclusion on that List prevents the included person from carrying out regulated activities with children in England and Wales. SB, who was the successful appellant to the Upper Tribunal (UT), has played no part in the ISA's appeal to this Court. However, the Royal College of Nursing (RCN) has been permitted to intervene and seeks to uphold the UT's approach to the question of whether the decision to place SB on the List was proportionate. It does not however make submissions on the facts of this particular case. The case raises important issues in relation to appeals against decisions of the ISA.
The factual background
On 14 July 2009 in the Crown Court at Leeds, SB pleaded guilty to 22 offences. All but one were offences relating to the possession of indecent photographs of children, being a sample of 20 images from the 1232 images were found on two computers. Most were at Level 1 but there were more serious examples, including six at Level 5 (sadism or bestiality involving children). The remaining offence was one of distribution of an indecent photograph of a child, which involved ten Level 1 images. On 25 August 2009, SB was sentenced to suspended sentences of imprisonment; ordered to participate in a Sex Offender Treatment Programme (SOTP) during the 2 years of the suspended sentences; subjected to a Sexual Offence Prevention Order (SOPO) until further order which, among other things, prohibited him from seeking or taking paid or voluntary employment with children under 16; and included on the Sex Offender Register for ten years.
In accordance with the statutory procedure, SB's case was referred to the ISA which, on 6 April 2010, informed him that he was on both the Adults' Barred List and the Children's Barred List from that date. He was invited to make representations if he wished to seek removal. On 13 May 2010, he made such representations and attached various documents including his Pre-Sentence Report (PSR), his OASys Report (effectively a risk assessment) and a selection of supportive references. He contended that the orders of the Crown Court amounted to sufficient control over him and that it was disproportionate to include him on the Lists as well. His explanation for his offences was that they facilitated masturbation to which he resorted in order to relieve stress and when under the influence of alcohol. Although at the time he had not considered the children to be victims, he now accepted that his behaviour amount to child abuse. Moreover, he had sought to address his behaviour and had completed the SOTP.
By a decision letter dated 16 July 2010, the ISA informed SB that, having considered his representations, it had decided to remove his name from the Adults' Barred List but that it considered it appropriate for him to remain on the Children's Barred List. By a further letter dated 22 October 2010, the ISA set out its reasons:
"… you present a future risk of harm to children and … it is appropriate for you to remain on the Children's Barred List. This is because your conviction for offences relating to possessing and distributing indecent images of children indicates a sexual interest in children posing a risk of harm to children for which the court imposed a Disqualification from Working with Children Order and a Sexual Offences Prevention Order (without limit of time) restricting possessing images of children, accessing child internet sites and working with children.
Your behaviour displays elements of susceptibility to peer pressure and you admit enjoying the kudos of belonging to a group and sharing images in exchange for praise and access to images of an increasingly serious nature, depicting children aged 3 to 13 years old and Level 5 images, indicating a sexual interest of children. Your emotional well being and methods of dealing with sex contributed to your offending and risk of reoffending. It is acknowledged that you recognise your risk factors and are motivated to change your behaviour and engage in treatment programmes to reduce the risk of reoffending. The Probation Service risk assessment concludes you pose a medium risk of harm to children, specifically females around puberty. Information indicates that there remains an unacceptable risk that similar harmful behaviour in the perpetration of sexual abuse of children may be repeated in the future."
The reference to a Disqualification From Working With Children Order was erroneous, as the ISA later conceded.
SB appealed to the UT on the grounds that the erroneous reference to a Disqualification Order was a material mistake of fact and that his continued inclusion on the Children's Barred List was disproportionate. Before turning to the decision of the UT, it is appropriate to set out the relevant statutory provisions.
The statutory provisions
The ISA was established by section 1 of the Safeguarding Vulnerable Groups Act 2006. The Barred Lists are provided for by section 2. The criteria for inclusion in the Children's Barred List are set out in Part 1 of Schedule 3. The concept of risk of harm is defined in paragraph 5(4) of Schedule 3:
"A person falls within this sub-paragraph if he may –
(a) harm a child,
(b) cause a child to be harmed,
(c) put a child at risk of harm,
(d) attempt to harm a child, or
(e) incite another to harm a child."
Appeals to the UT are governed by section 4(1). Section 4 then goes on to provide:
"(2) An appeal under subsection (1) may be made only on the grounds that the [ISA] has made a mistake –
(a) on any point of law;
(b) in any finding of fact which it has made and on which the decision mentioned in [section 4(1)] was based.
(3) 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.
(4) An appeal under subsection (1) may be made only with the permission of the [Upper] Tribunal.
(5) Unless the [Upper] Tribunal finds that the [ISA] has made a mistake of law or fact, it must confirm the decision of the [ISA].
(6) If the [Upper] Tribunal finds that the [ISA] has made such a mistake it must –
(a) direct the [ISA] to remove the person from the list, or
(b) remit the matter to the [ISA] for a new decision.
(7) If the [Upper] Tribunal remits a matter to the [ISA] under subsection (6)(b) –
(a) the [Upper] Tribunal may set out any findings of fact which it has made (on which the [ISA] must base its new decision); and
(b) the person must be removed from the list until the [ISA] makes its new decision, unless the [Upper] Tribunal directs otherwise."
In the present case, the issue of permission to appeal to the UT was dealt with as part of a "rolled-up" hearing. The UT granted permission and, as I shall now describe in more detail, allowed SB's appeal by reference to proportionality.
The decision of the UT
Having granted permission to appeal, the UT addressed two issues. First it considered the acknowledged mistake of fact relating to the Disqualification Order. It concluded that, although the statement that SB had been made the subject of a Disqualification Order was an error of fact, it was not "a material error of fact, given that the Crown Court Judge had sentenced [SB] to the conditions of a SOPO. Thus this is not a mistake of fact which affects the decision making process". (paragraph 33). The UT then moved on to the more important question of whether there had been an error of law. It noted that it was the first occasion upon which the UT had had to consider the meaning of section 4(3). It took as its starting point the judgment of Wyn Williams J in R (Royal College of Nursing) v Secretary of State for the Home Department 2010 EWHC 2761 (Admin) where he said (at paragraph 104):
"… if [the ISA] reached a decision that it was appropriate for an individual to be included in a barred list or appropriate to refuse to remove an individual from a barred list yet that conclusion was unreasonable or irrational that would constitute an error of law. I do not read section 4(3) of the Act as precluding a challenge to the ultimate decision on grounds that a decision to include an individual upon a barred list or to refuse to remove him from a list was unreasonable or irrational or, as [counsel for the Home Secretary] submits disproportionate. In my judgment all that section 4(3) precludes is an appeal against the ultimate decision when that decision is not flawed by any error of law or fact. "
In the present case, it was submitted to the UT on behalf of the ISA that section 4(3) prevents the UT from considering issues relating to the weight that the...
To continue reading
Request your trial
-
CM V 4510 2013
...account the relevant Court of Appeal case law, such as R v Independent Safeguarding Authority (Royal College of Nursing intervening) [2012] EWCA Civ 977 and Disclosure and Barring Service v Harvey [2013] EWCA Civ 180. For present purposes there are three main points to note about the releva......
-
SR V 1089 2011
...v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167 and Independent Safeguarding Authority v SB and another [2012] EWCA Civ 977; [2013] AACR 24) (paragraphs 21 to The UT remitted the case to the Disclosure and Barring Service (the ISA’s statutory successor) to consi......
-
GF v Disclosure and Barring Service
...for the Home Department [2010] EWHC 2761 (Admin) (“the RCN case”) at para [104] and Independent Safeguarding Authority v SB and RCN [2012] EWCA Civ 977; [2013] WLR 308 (at paragraph [14]). Subject to section 4(3), we have an untrammelled jurisdiction to make findings of fact. As Wyn William......
-
ME v Disclosure and Barring Service (Safeguarding)
...expressly enabled by statute, to make safeguarding decisions of this specific kind (e.g. B v Independent Safeguarding Authority (CA) [2012] EWCA Civ 977, [2013] 1 WLR 308 ; Independent Safeguarding Authority v SB (Royal College of Nurses intervening) [2012] EWCA Civ 977; [2013] 1WLR 308 49.......