Khakh v Independent Safeguarding Authority [2013] EWCA Civ 1341

Case No C3/2013/1298/SSTRF[2013] EWCA Civ 1341
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
Judge David Williams, Judge Alison McKenna and Mr Christopher Wakefield
[2012] UKUT 424 (AAC)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 06 th November 2013
Before
LORD JUSTICE MAURICE KAY,VICE PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISIONLORD JUSTICE ELIASLORD JUSTICE VOS
Between
KHAKHAppellantINDEPENDENT SAFEGUARDING AUTHORITYRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Aidan O’Neill QC (Scot.)(instructed by Messrs Irwin Mitchell) for AppellantMr Sam Grodzinski QC (instructed by The Treasury Solicitor) for Respondent
JudgmentLord Justice Elias :
[1]The Safeguarding Vulnerable Groups Act 2006 (“the 2006 Act”) imposed a duty on the Independent Safeguarding Authority (“the ISA”) to maintain two lists: one is the children’s barred list which identifies those who are barred from certain regulated activities with children; and the other is the adults’ barred list, which identifies those who are barred from certain regulated activities with vulnerable adults. Part 1 of Schedule 3 lays down the principles for determining whether an individual will be included in the children’s list, and Part 2 lays down equivalent principles for determining whether an individual will be included in the adults’ list. The regulated activities are defined in Schedule 4 parts 1 and 2 in relation to children and vulnerable adults respectively, and the Secretary of State is empowered to modify or vary them by order (section 4).[2]The criteria for determining whether someone may be included in the list are prescribed by the Secretary of State pursuant to a power conferred by section 61 of the 2006 Act. Where the criteria are those prescribed for the purposes of paragraphs 1 or 7 of Schedule 3, the individual will be put in the children’s or adults’ list respectively, without any right of appeal or any right to make representations. This will include particularly grave crimes such as rape of a child. However, where the criteria are those prescribed for the purposes of paragraphs 2 and 8 respectively, the individual will still automatically be included on the relevant list but will have the right to make representations as to why he should be removed from that list. The appellant in this case was convicted in 2009 of offences of blackmail, kidnapping and false imprisonment and, by virtue of the kidnap offence, he falls into the latter category: see regulation 4(5) read with paragraph 2 of the schedule to the Safeguarding Vulnerable Groups (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009. He was placed on both the children’s and adults’ lists. He made representations to the ISA seeking removal from both lists but they were unsuccessful. He then appealed to the Upper Tribunal (Administrative Appeals Chamber) pursuant to section 4(1)(a) of the 2006 Act. His appeal was unsuccessful and he now appeals to this court following permission granted by the Upper Tribunal.[3]I have described the law in force at the relevant time. It has since been amended by the Protection of Freedoms Act 2012 and various changes have been made. One is simply a change of name: The ISA is now known as the Disclosure and Barring Service (“the DBS”). But others are of greater significance. They include the following: someone can only be put on the list if they are engaged in regulated activity, or have been or might in future be engaged in such activity; whereas under the old law the ISA would only review listing after a minimum period of ten years, the DBS is now empowered to do so at any stage provided certain conditions are met; and representations can now be made before the individual is put on the list as to why he should not be included rather than seeking his exclusion following an automatic listing. These amendments were in part a response to the criticisms and comment of the scheme by Wyn Williams J in R (Royal College of Nursing and Others) v Secretary of State for the Home Department [2010] EWHC 2761 (Admin). They are not directly relevant to the appeal, but Mr O’Neill QC, counsel for the appellant, did contend that these changes had some bearing on his human rights argument and in particular to the issue of proportionality.

The facts

[4]The appellant was convicted at Southwark Crown Court after a trial of conspiracy to kidnap and falsely imprison one person and blackmail another. The offences took place in August 2006. He was at the time on licence following a conviction in 2004 for possessing a firearm with intent to endanger life and that offence in turn marked an escalation from earlier offences. The abduction and kidnapping were extremely unpleasant. The victim had been detained for some 22 hours, and was badly beaten during the period of his detention. Numerous demands for £20,000 were made to his friend. The appellant was convicted on the basis that he was, with his brother, the organiser of these offences. Although he was not personally involved in the acts of abduction or detention themselves, he was intimately involved in directing others at all key stages. The probation service assessed him as having a high risk of causing serious harm to members of the public. The judge in passing sentence noted that whilst there was evidence to show that he had shown some positive engagement whilst in prison, he had demonstrated little indication of real remorse for his actions. The judge imposed a sentence of Imprisonment for Public Protection with a determinate sentence of ten years for the kidnap and false imprisonment, and a concurrent determinate sentence of 8 years for the blackmail. This meant that the minimum term the appellant had to remain in prison before being considered for parole was five years less time spent on custody on remand. This resulted in a minimum term of 3 years 332 days.[5]By committing these offences the appellant became subject to the provisions of the 2006 Act in the way I have described. The judge ought to have informed him that his name would be included on each of the barred lists at the time of his conviction: see paragraph 25 of Schedule 3. That language is cast in mandatory terms - “must inform the person at the time he is convicted”. The judge did not do so. The appellant was later notified by the ISA that he was on the two lists pursuant to a duty imposed by paragraph 14 of Schedule 3 to take all reasonable steps to notify.

The decision of the ISA

[6]The facts and matters taken into account by the ISA when determining to keep the appellant on the two lists are identified in a document entitled “Barring Decision Making Process” (“BDMP”) dated 10 November 2010. This is a detailed document designed to ensure that a structured decision is reached, having regard to all relevant matters. The reasons were summarised more briefly in the decision letter of 15 November 2010. It was recognised in his favour that the appellant’s conduct did not involve offending behaviour directed against either children or vulnerable adults, and that his conduct in prison had been exemplary. Nonetheless the ISA considered that the appellant should remain on both lists because of the risk of harm to children or vulnerable adults outside the prison environment if he were to be placed in a position of trust or responsibility over them. The letter identified the principal factors leading to that conclusion: the escalation in the seriousness of his offending; his susceptibility to peer influence; his anti-social attitudes and propensity to use violence; his callousness and lack of empathy for others; his failure to understand the impact of his actions; and the lack of any real remorse.

The grounds of appeal

[7]There were originally five grounds of appeal but one of them, relating to the scope of the Upper Tribunal’s jurisdiction, is no longer being pursued in the light of two decisions of this court in B v Independent Safeguarding Authority [2012] EWCA Civ 977; [2013] 1 WLR 308 and Disclosure and Barring Service (formerly Independent Safeguarding Authority) v Harvey [2013] EWCA Civ 180. Of the four remaining grounds, the first is a submission that the decision to place the appellant on the barred lists was a nullity because of the failure of the judge to inform him that he would be placed on the lists at the time of his conviction. The other three grounds allege defects in the ISA’s decision making process: that it was unreasonable; that it failed to address material considerations; and that the decision infringed the appellant’s Article 8 rights. The focus of the oral submissions was on the first and last ground, namely the judge’s error and the human rights’ point. However, the other grounds are still pursued. I will consider them in the order they were advanced in the notice of appeal.

Prior procedural irregularity: the judge’s error

[8]The appellant’s submission is that the procedural failure by the judge went to the heart of the statutory scheme. It vitiated the subsequent decision to place him on the two lists and therefore he should now be removed from them.[9]The relevant test to apply when determining the consequences of non-compliance with a mandatory obligation of this nature was laid down by Lord Steyn in R v Soneji [2005] UKHL 49, with whose judgment Lords Cullen, Carswell, Rodger and Brown agreed. The earlier domestic jurisprudence had required the courts to distinguish between mandatory and directory provisions but Commonwealth courts had found this to be a less than helpful approach and Lord Steyn agreed. After analysing the relevant jurisprudence, he observed (para 23) that:
“the emphasis ought to be on the consequence of non-compliance and posing the question whether Parliament can fairly be taken to have intended total invalidity.”
[10]Applying that test, I have no doubt whatsoever that Parliament cannot fairly have intended that the consequence of the judge’s failure should be that the appellant’s inclusion on these lists was a nullity. I rely on the following three inter-related reasons in particular. First, the scheme is designed to protect children and vulnerable adults, and I cannot believe that Parliament can have intended that a failure by the judge should undermine that vital public objective. If the appellant were right, the judge’s error would relieve a criminal from the consequences of listing even though that potentially puts children and/or vulnerable persons at risk. Indeed, the logic of the appellant’s argument, as Mr O’Neill conceded, is that listing would be a nullity even where a person had committed a very serious crime leading to his inclusion on the lists without the right to make representations at all. In my judgment it cannot be inferred that Parliament could possibly have intended that consequence. Mr O’Neill submitted that there is another route under paragraphs 3 and 9 respectively of Schedule 3 by which someone may be included on the relevant list even if he is relieved from the automatic inclusion because of the judge’s error. But that is by no means clear - it may be said that Parliament cannot have intended those paragraphs to be invoked where the more stringent provisions cannot be relied upon - and in any event those provisions give fewer safeguards to the protected groups than are provided by paragraphs 2 and 7.[11]Second, as the Upper Tribunal observed, notification by the judge is not part of the machinery of listing itself. It is for the Secretary of State to notify the ISA and thereafter the ISA has an unqualified statutory obligation to include a person on the barred list, even if it may subsequently remove him following representations. Mr O’Neill described the failure by the judge as creating a “domino effect”. That does not seem to me to be an apt description. The obligation of the Secretary of State to refer a person to the ISA for listing is not in any way contingent on the action of the judge. That duty arises whether the judge has carried out his duty or not.[12]Third, in practice the listed person will suffer no prejudice whatsoever as a result of the judge’s error. Indeed, the ISA itself is obliged to take reasonable steps to notify him, as happened in this case: see paragraph 14 of Schedule 3.[13]Mr O’Neill emphasised the mandatory language of paragraph 25. But that merely creates the problem, it does not solve it. If the duty were not cast in mandatory terms, it would not be necessary to determine what the consequences of a breach should be. And there is nothing in the statute which suggests that a breach should have the drastic effect suggested by Mr O’Neill.[14]Mr O’Neill relied in particular upon two decisions of the House of Lords, London and Clydesdale Estates v Aberdeen District Council [1980] 1 WLR 182 and R v Clarke [2008] UKHL 8; [2008] 1 WLR 338. In the former the appellant was not told, as he should have been, that he had a right of appeal against a decision compulsorily to purchase his land. Lord Hailsham held that the effect was that the certificate authorising the purchase was a nullity, saying (p.186):
“I do not think that we are entitled to play fast and loose with the statutory requirements designed to inform the subject as to his legal rights against an authority possessed of compulsory powers”
[15]In Clarke the House of Lords held that the failure to sign a bill of indictment from the outset and during most of a criminal trial had invalidated the trial, notwithstanding that the defendants, who had been found guilty following what was otherwise a perfectly proper trial, thereby escaped their just deserts. There was no proper indictment and therefore no valid trial, and signing the bill towards the end of the trial could not correct the earlier invalidity. Lord Bingham observed that:
“.. it may be thought that if the state exercises its coercive power to put a citizen on trial for serious crime a certain degree of formality is required.”
[16]In my judgment, these cases are merely illustrations of the general principle. They do no more than demonstrate that the relevant provision must be considered in the context of the legislation as a whole. In both of them the mandatory duty in question was of far greater significance to the individual than the judge’s duty in this case to inform the defendant that he would be listed. I gain no assistance from them.[17]Accordingly, I reject this ground of appeal.

The ISA decision; unreasonableness

[18]It is important to put this submission in context. The jurisdiction of the UT when considering an appeal from a decision not to remove the appellant from a barred list is limited to cases where the ISA has made a mistake on any point of law, or in any finding of fact on which its decision was based: section 4(2). A point of law, as Mr Grodzinski QC, counsel for the ISA, properly concedes, includes a challenge on Wednesbury grounds and a human rights challenge. But it will not otherwise entitle an applicant to challenge the balancing exercise conducted by the ISA when determining whether or not it is appropriate to keep someone on the list. In my view that is plain from traditional principles of administrative law but in any event it is put beyond doubt by section 4(3) which states in terms that the decision whether or not it is appropriate to retain someone on a barred list is not a question of law or fact. It follows that an allegation of unreasonableness has to be a Wednesbury rationality challenge i.e. that the decision is perverse.[19]In fact, although described as a reasonableness challenge, the way in which this argument was advanced in the skeleton argument focused more on an allegation that the ISA failed to have due regard to three matters in particular. The first was that the appellant was not convicted of an offence against children or vulnerable adults and there was no basis for saying that he was a potential risk to either group. Second, it was said that the ISA failed to refer to an OASys analysis which had concluded that he was not a specific risk to either group. Finally it was alleged that the ISA had failed to recognise that any potential risk could be adequately dealt with by the Parole Board when deciding whether, and on what terms, the appellant should be released on licence.[20]I reject this submission. It is plainly not the case that someone should be removed from the list or lists simply because there is no evidence of direct offending against children or vulnerable adults. The statutory criteria for determining whether someone should be placed on a barred list are not so limited and had the legislation required this, it would have said so. No doubt that is a factor for the ISA to consider, and its decision letter shows that it did in this case, but the weight to be afforded to it is for the ISA itself. As to the OASys analysis, the ISA plainly did consider that also as the BDMP made clear. Indeed, it stated in terms that it was a factor of “high weight”. The submission that the ISA ought to have taken account of the powers of the Parole Board is also in my view misconceived for reasons I will set out when considering the Article 8 submission, where the point was put more forcefully.[21]In my judgment, to the extent that there is still a rationality challenge, it is quite impossible to say that the decision not to remove from either list was Wednesbury unreasonable. There were cogent concerns expressed by the ISA, each of which was a proper consideration informing its decision. This comes nowhere near the standard of irrationality required for judicial intervention.

ISA decision: failure to take account of relevant considerations and adequacy of reasons

[22]The basic argument here is that the ISA failed to take properly into account the representations made on the appellant’s behalf or the documents he submitted. These documents included sentencing comments; an OASys report; evidence about certain courses he had taken, including shame violence intervention programmes and enhanced thinking skills; and various character references. The submission is quite unsustainable as a matter of fact. The ISA specifically identified each of these matters in the BDMP document and, moreover, indicated what weight it afforded to them in its overall assessment.[23]There is also a complaint about the adequacy of the ISA’s reasons. In my view, the ISA has given perfectly adequate reasons. I would accept that the ISA must give sufficient reasons properly to enable the individual to pursue the right of appeal. This means that it must notify the barred person of the basic findings of fact on which its decision is based, and a short recitation of the reasons why it chose to maintain the person on the list notwithstanding the representations. But the ISA is not a court of law. It does not have to engage with every issue raised by the applicant; it is enough that intelligible reasons are stated sufficient to enable the applicant to know why his representations were to no avail.[24]I am fully satisfied that this obligation was complied with in this case. The decision letter itself identified the principal factors informing the ISA’s conclusions. It was not incumbent on the ISA to say more; in particular, there was no obligation for example, as the appellant alleges, for it to specify how its decision was consistent with the principle of sentencing rehabilitation.[25]I would therefore dismiss this ground also.

ISA decision: breach of Convention rights

[26]The final submission is that the decision of the ISA constituted a disproportionate interference with the appellant’s Article 8 rights. The complaint as originally drafted appeared to be that the ISA had not engaged with this issue at all, and that whilst the Upper Tribunal had done so, it merely focused on the substantive requirements of Article 8 and not the procedural obligations which required it to consider the manner in which the decision was taken. The Upper Tribunal concluded that placing the appellant on the lists did not even come within the scope of Article 8. No question of justification therefore arose, and the Upper Tribunal did not address that issue.[27]I would categorically reject these submissions. The Article 8 argument was never advanced in the representations to the ISA and there was no obvious reason why Article 8 should be engaged so as to require consideration. So far as the Upper Tribunal is concerned, the procedural obligations under Article 8 only arise at the justification stage when analysing proportionality; but that stage was not reached here. In any event, the procedural protections afforded by the ISA readily satisfy any Article 8 procedural obligations.[28]In so far as the submission was that the Upper Tribunal ought to have found that there was a breach of Article 8 because the ISA should have specifically addressed the issue, it fails for two reasons. First, there was no reason why the ISA should have addressed it, for reasons I have given. Second, and in any event, it is well established that the question is whether the decision involved a breach of a Convention right, not whether the reasoning process was defective, or indeed non-existent: see R (SB) v Headteacher and Governors of Denbigh High School [2006] UKHL 15 per Lord Bingham at paragraph 31 and Lord Hoffmann at paragraphs 66-.68; and Belfast City Council v Miss Behavin’ Ltd [2007] UKHL 19 per Lord Rodger at paragraphs 23-24.[29]In the course of his oral argument Mr O’Neill widened this challenge and submitted that the Upper Tribunal was wrong to find that the case did not even come within the ambit of Article 8. He submitted that it erred in so holding and that had the question of justification been addressed, the proper conclusion is that justification could not be established here.[30]The basis of the submission that Article 8 was engaged was that the right to practice one’s profession or occupation can, in an appropriate case, constitute an aspect of a private life protected by Article 8. This is also now reflected in Article 15(1) of the EU Charter of Fundamental Rights which provides that “everyone has a right to engage in work and to pursue a freely chosen or accepted occupation.”[31]That Article 8 may be infringed where the state interferes with opportunities for work was recognised by the House of Lords in Wright v Secretary of State for Health [2009] 2 WLR 267, another case where the appellant was placed on a barred list whose effect in that case was to prevent him from working in his chosen field. Baroness Hale accepted that a ban of this nature would in some cases so interfere with the private life of an individual that it would fall within the scope of Article 8. It may give rise to a stigma and will interfere with personal relationships (para 36). Lord Hope followed this approach in R (L) v Commissioner of Police for the Metropolis [2009] UKSC 3; [2010] 1 AC 410 when, after citing Strasbourg jurisprudence, he observed that:
“Excluding a person from employment in her chosen field is liable to affect her ability to develop relationships with others, and the problems that this creates as regards the possibility of earning a living can have serious repercussions on the enjoyment of her private life: see Sidebras v Luthuania (2004) 42 EHRR 104, para 48.”
In my view, these cases show that whether there is a prima facie interference requiring justification will be fact sensitive.[32]In this case the appellant submitted that he was adversely affected, at least by remaining on the children’s barred list, because there was a possibility that after release from custody he might want to work with young offenders. The Upper Tribunal concluded that this was merely a hypothetical interest at this stage being no more than an expression of interest, and that it was too remote to constitute an interference with the right to work in a chosen profession. It did note, however, that if the appellant were subsequently to want to undertake relevant training to work with young offenders, or received a credible offer of voluntary or paid work in that area, the ISA would need to reconsider whether listing was still appropriate (para 66).[33]The appellant submits that this analysis is defective because there is nothing in Article 8 which allows a remoteness test to be applied. I disagree; the fact that the appellant has never worked in this field and that he has as yet no fixed intention to do so is highly relevant to a fact sensitive analysis of the likely impact of listing on his private life. He has not acquired friends or colleagues in that area of occupation, and will not be stigmatised in that world.[34]In my judgment, the Upper Tribunal was fully entitled to reach the conclusion it did, and the question of justification did not, therefore, arise.[35]I would add that even if entry on the list constituted a prima facie breach of Article 8, I have no doubt that any interference, which on any view would be very limited, would readily be justified in this case. The ISA had a cogent basis for concluding that the appellant would be risk to children and vulnerable adults given the nature of his offending and his character traits. Measured against that risk, the vague possibility that he might at some indeterminate time in the future wish to take up an occupation in which he has not yet engaged at all carries no real force. As the Upper Tribunal pointed out, he can always seek a reconsideration if circumstances were to change in a material way; and as a result of the recent amendments, he would not now have to wait ten years before being able to so.[36]I briefly touch on one final issue relied upon by Mr O’Neill. He submitted that in any proportionality analysis it was relevant that the Parole Board could impose conditions on release which could, if appropriate, in substance achieve what listing is designed to achieve. It would be a less intrusive means of achieving a legitimate objective. I do not accept that submission. First, as Mr Grodzinski, counsel for the respondent, submitted, it is far from clear that the Parole Board could impose as conditions of a licence the same bars on employment as are created by the listing process. I would add that the Parole Board is not concerned with the same considerations as the ISA. Its focus is on the question whether a prisoner poses a continuing threat to life and limb: see R (Sturnham) v Parole Board (No. 2) [2013] 3 WLR 281 para 45 per Lord Mance. That is a different set of concerns from those which the ISA has to address. Furthermore, the ISA has to determine the appropriateness of listing at the time when representations are made whereas the Parole Board is engaged at a much later date when release is under consideration. In my judgment, it is plain that Parliament has decided that the two procedures should operate in parallel. Indeed, there are circumstances where someone may be placed on the barred list even though no offence has been committed. Disposal[37]For these reasons, which substantially reflect those of the Upper Tribunal, I would dismiss this appeal.

Lord Justice Vos:

[38]I agree.

Lord Justice Maurice Kay:

[39]I also agree.

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