R (Royal College of Nursing and Others) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Wyn Williams |
| Judgment Date | 10 November 2010 |
| Neutral Citation | [2010] EWHC 2761 (Admin) |
| Docket Number | Case No: CO/8027/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 November 2010 |
[2010] EWHC 2761 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: MR JUSTICE WYN WILLIAMS
Case No: CO/8027/2010
Mr Ian Wise QC & Mr Stephen Broach (instructed by First Claimant's Legal Services Directorate) for the Claimants
Mr Sam Grodzinski (instructed by Treasury Solicitors) for the Defendant
The Interested Party did not appear and was not represented
Hearing dates: 12 th & 13 th October 2010
Mr Justice Wyn Williams:
Introduction
In these proceedings the Claimants challenge the lawfulness of a scheme established under the Safeguarding Vulnerable Groups Act 2006 which prohibits those placed on lists established under the scheme from working with children and/or vulnerable adults. The First Claimant is concerned about the scheme because of its impact and potential impact upon its members. The Second, Third and Fourth Claimants are aggrieved because the Interested Party placed them upon lists established under the scheme (although they have all now been removed). The Fifth Claimant has been joined to these proceedings because the Interested Party is currently considering whether to place her upon a list.
All the Claimants allege that the scheme is unlawful in four specific respects. Each claims relief; the relief sought is dependant upon which aspects of the Claimants' case I find proved. Before identifying and discussing the grounds upon which the scheme is said to be unlawful (and the relief sought) it is necessary to set out the relevant statutory provisions and the facts relevant to each of the Individual Claimants.
The Safeguarding Vulnerable Groups Act 2006 and the Regulations made thereunder
Section 1 of the Safeguarding Vulnerable Groups Act 2006 (hereinafter referred to either as "the Act" or "the 2006 Act") establishes the Independent Safeguarding Authority, the Interested Party in these proceedings. In accordance with section 2 of the Act the Interested Party must establish and maintain two lists; the children's barred list and the adults' barred list. Section 2 also provides that Part 1 of Schedule 3 of the Act will apply for the purpose of determining whether an individual is included in the children's barred list and Part 2 of that Schedule will apply for the purpose of determining whether an individual is included in the adults' barred list.
The effect of being placed upon one of the lists is specified in section 3 of the Act. Section 3(2) provides that a person is barred from regulated activity relating to children if he is included in the children's barred list and subsection (3) provides that a person is barred from regulated activity relating to vulnerable adults if he is included in the adults' barred list. Regulated activity relating to children and vulnerable adults is defined in Parts 1 and Parts 2 respectively of Schedule 4 to the Act. In summary, regulated activity constitutes working with children or vulnerable adults either in employment or voluntarily. The prohibition on engaging in regulated activity is enforced by criminal sanctions. Section 7 of the Act provides that an individual commits an offence if he seeks to engage in regulated activity from which he is barred; offers to engage in regulated activity from which he is barred; or engages in regulated activity from which he is barred. The offences created by this section are triable both upon indictment and summarily. If the offence is tried upon indictment and the alleged offender is convicted he faces a maximum term of imprisonment of 5 years.
As I have said, whether a person is to be included upon a barred list is governed by Schedule 3 of the Act. Part 1 of Schedule 3 relates to the children's barred list; Part 2 relates to the adults' barred list. For all intents and purposes the criteria are identical; accordingly I set out below only those provisions which relate to the adults' barred list. They are in the following terms:-
"7(1) This paragraph applies to a person if any of the criteria prescribed for the purposes of this paragraph is satisfied in relation to the person.
(2) If ISA is satisfied that this paragraph applies to the person it must include the person in the adults' barred list.
8(1) This paragraph applies to a person if any of the criteria prescribed for the purposes of this paragraph is satisfied in relation to the person.
(2) If ISA is satisfied that this paragraph applies to the person, it must:-
a) include the person in the adults' barred list, and
b) give the person an opportunity to make representations as to why the person should be removed from the adults' barred list.
(3) If it appears to ISA that it is not appropriate for the person to be included in the list, it must remove him from the list.
9(1) This paragraph applies to a person if –
a) it appears to ISA that the person has (at any time) engaged in relevant conduct, and
b) ISA proposes to include him in the adults' barred list.
(2) ISA must give the person the opportunity to make representations as to why he should not be included in the adults' barred list.
(3) ISA must include the person in the adults' barred list if –
a) it is satisfied that the person has engaged in relevant conduct, and
b) it appears to ISA that it is appropriate to include the person in the list.
11(1) This paragraph applies to a person if –
a) it appears to ISA that the person falls within sub-paragraph (4), and
b) ISA proposes to include him in the adults' barred list.
(2) ISA must give the person the opportunity to make representations as to why he should not be included in the adults' barred list.
(3) ISA must include the person in the adults' barred list if –
a) it is satisfied that the person falls within sub-paragraph (4), and
b) it appears to ISA that it is appropriate to include the person in that list.
(4) A person falls within this sub-paragraph if he may –
a) harm a vulnerable adult,
b) cause a vulnerable adult to be harmed,
c) put a vulnerable adult at risk of harm,
d) attempt to harm a vulnerable adult,
e) incite another to harm a vulnerable adult."
Paragraph 10 contains a detailed definition of relevant conduct for the purposes of paragraph 9.
The criteria prescribed for the purposes of paragraph 7 and 8 of Schedule 3 are to be found in the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009 (The 2009 Regulations). Regulation 5 provides that the criterion prescribed for the purposes of paragraph 7(1) of Schedule 3 to the 2006 Act is that the person has been convicted of, or cautioned in relation to, an offence specified in paragraph 3 of the Schedule to the Regulations. In England and Wales the offences specified in paragraph 3 are offences contrary to sections 30 to 41 of the Sexual Offences Act 2003 and their equivalent if committed by serving members of the armed forces. All the offences specified are sexual offences against persons with a mental disorder. Regulation 6 provides that the criteria prescribed for the purposes of paragraph 8(1) of the Schedule 3 to the 2006 Act is that the person (a) has been made the subject to a risk of sexual harm order pursuant to section 123 Sexual Offences Act 2003 or (b) has been convicted of or cautioned in relation to offence specified in paragraph 4 of the Schedule to the Regulations. Schedule 4 contains a large number of sexual offences, offences involving violence and offences relating to mistreatment of children. A list of the offences included in Schedule 4 as at 3 September 2010 is set out as an appendix to the first witness statement of Mr. Jonathan Green, a senior legal officer and solicitor employed by the first Claimant. (I am told that the Schedule has been amended recently but nothing turns on that.)
A person convicted of or cautioned in respect of any of the offences specified under paragraph 3 of the Schedule to the Regulations is placed upon the relevant list and he has no right to make representations with a view to seeking his removal from the list. A person convicted of or cautioned in relation to any of the offences in paragraph 4 is placed upon the list but has the right to make representations to the effect that he should be removed.
An individual who is included in a barred list may appeal to the Upper Tribunal against a decision under paragraph 8 of Schedule 3 of the 2006 Act not to remove him from the adult barred list. He also has a right of appeal to the Upper Tribunal against a decision to include him on the list pursuant to paragraphs 9 or 11 of the Schedule. (There are equivalent rights of appeal in relation to the children's barred list). The nature of the right of appeal is circumscribed by sub-sections (2) to (4) of section 4 of the 2006 Act. These subsections read as follows:-
"(2) An appeal under subsection (1) may be made only on the ground that 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 that subsection 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."
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