SR V 1089 2011
| Jurisdiction | UK Non-devolved |
| Judge | Judge C G Ward |
| Judgment Date | 25 February 2013 |
| Neutral Citation | 2013 UKUT 103 AAC |
| Subject Matter | Safeguarding vulnerable groups |
| Respondent | Disclosure & Barring Service |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | V 1089 2011 |
| Appellant | SR |
[2013] AACR 31
(SR v Disclosure and Barring Service [2013] UKUT 103 (AAC))
Judge Ward V/1089/2011
Mrs Elliot
Mr Flynn
25 February 2013
Children’s barred list – transferability of offences – no automatic presumption in favour of barring – failure to apply structured judgment process an error of law
The appellant had been a taxi driver under contract with a public authority and had carried both children and vulnerable adults. He was sentenced to eight years’ imprisonment for having assaulted and raped his wife. Under the Safeguarding Vulnerable Groups Act 2006 his name was automatically included by the Independent Safeguarding Authority (ISA) on both the children’s and adults’ barred lists subject to any representations he might make (“autobar with reps”). Following his representations the ISA decided to retain his name on both lists but failed to follow its own procedures; it omitted Stage 3 of the structured judgement process (SJP), observing that there was insufficient information to undertake an effective risk assessment, and it failed to refer the case to the ISA Board as it should have done if public confidence were an issue. The appellant appealed against that decision. Following changes under the Protection of Freedoms Act 2012 his name was removed from the adults’ barred list but not the children’s barred list. The issue before the Upper Tribunal (UT) was whether the ISA had complied properly with its duty in deciding whether or not to remove the appellant’s name from the children’s barred list.
Held, allowing the appeal, that:
- to conclude that specifying an offence as triggering the “autobar with reps” procedure created a “presumption” in favour of maintaining a bar was wrong. The legislative intention was that a precautionary principle should be followed whereby a person convicted of such an offence should not be permitted to work with children in regulated activity until the ISA had had the chance to review the case. The ISA erred in law as it failed to consider what it was about the appellant, including his convictions, which made it “appropriate” for his name to remain on the list (paragraphs 13 to 16 and 18)
- the ISA’s failure to apply stage 3 of the SJP was also an error of law for the reasons identified by the UT in AP v Independent Safeguarding Authority [2012] UKUT 412 (AAC); [2013] AACR 17. Its application might have highlighted the need for the ISA to consider how the appellant’s conviction for rape was relevant to his working with children and so, unlike AP v Independent Safeguarding Authority, the appellant’s case was one where the completion of the SJP would have added value (paragraphs 17 to 19)
- public confidence may be a relevant consideration but it was not a factor which the ISA had expressly applied; the decision documents and letter contained no reference to public confidence and no referral was made to the Board in accordance with the ISA’s own guidance. If the ISA had taken public confidence into account through inference, it had done so incorrectly (paragraph 20);
- the ISA’s decision was disproportionate as it failed to ask the appropriate legal question, to identify the harm it was seeking to prevent, and to show clearly that the measures taken were only necessary to accomplish its aim and to strike a fair balance between the rights of the appellant and the interests of the community: see Huang 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 24).
The UT remitted the case to the Disclosure and Barring Service (the ISA’s statutory successor) to consider the matter properly and directed that, pending the new decision, the appellant’s name remain on the children’s barred list.
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
Mr John Walsh of counsel, acting pro bono, instructed by the Free Representation Unit, appeared for the appellant.
Ms Kate Olley, instructed by Treasury Solicitor, appeared for the respondent.
The appeal is allowed. The decision of the Independent Safeguarding Authority communicated by a letter dated 11 February 2011 involved a mistake on a point of law. The matter is remitted to the respondent for a new decision pursuant to section 4(6)(b) of the Safeguarding Vulnerable Groups Act 2006 (the 2006 Act). Pursuant to section 4(7)(b) the Upper Tribunal directs that the appellant is not to be removed from the children’s barred list until the respondent makes its new decision.
REASONS FOR DECISION
1. The appellant was a taxi driver who had previously carried both vulnerable adult and child passengers under contract with a public authority. He appealed against the decision of the Independent Safeguarding Authority (ISA) (the statutory predecessors of the present respondent), communicated by a letter dated 11 February 2011, that it was appropriate for his name to remain on the children’s barred list.
2. The decision had originally retained his name on the adults’ barred list also. However, as part of the changes introduced by or pursuant to the Protection of Freedoms Act 2012 (the 2012 Act), conveying vulnerable adults in a taxi ceased to be a “regulated activity” (see regulation 26 of the Safeguarding Vulnerable Groups Act 2006 (Miscellaneous Provisions) Regulations (SI 2012/2112)). The rationale for such a change appears to have been that enhanced checks with the former Criminal Records Bureau (now subsumed within the responsibilities of the respondent) were henceforth to be available in respect of applicants for taxi driver’s licences and so, as regards vulnerable adults, it was considered that the matter of an individual’s suitability could be left to the relevant licensing authority to determine. The changes introduced pursuant to the 2012 Act also included a requirement that a person could only be listed if the ISA reasonably believed that the person concerned “is or has been or might in future be engaged in regulated activity”, together with a power to review those cases where a person had previously been listed, but did not meet this “regulated activity” criterion. Accordingly, on 4 October 2012 the ISA removed the appellant from the adults’ barred list and on 31 January 2013 he was given permission to withdraw that part of his appeal. No changes were made to whether or in what circumstances carrying children in a vehicle may constitute a “regulated activity” and thus the appellant’s inclusion in the children’s barred list and his appeal against that listing continued.
3. The appellant was convicted in the Crown Court on two counts of rape and one of common assault. The victim in each case was the appellant’s wife. Though it appears she may have some difficulties, there is no suggestion that she was or is a “vulnerable adult” as defined by section 59 of the 2006 Act. The particulars of the offence of rape of which the appellant was convicted referred to “repeated unspecified instances of rape”. The common assault was committed in the presence of some of the children of the family. There is no suggestion that any of the children witnessed any of the rapes. On 10 November 2009 the appellant was sentenced to a total of eight years in prison.
4. A number of points should be made in relation to the Crown Court trial.
(a) In his sentencing remarks the judge observed that “I do not consider that he qualified for a sentence of imprisonment for public protection. The risk of significant harm or substantial harm to the public is minimal.” Under section 225(1) of the Criminal Justice Act 2003 (the CJA 2003), special sentencing provisions applied:
“where –
(a) a person aged 18 or over is convicted of a serious offence committed after the commencement of this section, and
(b) the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.”
By section 224(3) “serious harm” means death or serious personal injury, whether physical or psychological. By subsection (1) of that section an offence is a “specified offence” for these purposes if it is a “specified violent offence” or a “specified sexual offence”. It is not necessary to refer in detail to the provisions of Schedule 15 of the CJA 2003, save to observe that Part 1, which contains a definition of “specified violent offences”, lists a wide range of offences of varying degrees of seriousness, while Part 2, which deals with “specified sexual offences” covers not only rape but, along with many which would involve an assault, others, such as possession of indecent photographs of a child, which do not. We...
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