SJB v Independent Safeguarding Authority [2011] UKUT 286 (AAC)
UKUT-AAC
SJB v Independent Safeguarding Authority
[2011] UKUT 286 (AAC) · 2011-07-15
[33]This is an application for permission to appeal. The first matter that we need to decide on is whether to grant permission. We have decided that the appropriate approach to take in this case is as suggested by Sullivan J (as he then was) in the case of The Queen on the Application of Vetterlein v Hampshire County Council and Hampshire Waste Services Ltd [2001] EWHC Admin 560 . In that case, Sullivan J said: "…I am satisfied that all the arguments open to the claimants on matters of fact and law have been placed before the Court. In the circumstances it would be wholly artificial to consider the by now academic question: is the claimant's case arguable? …I am in a position to determine the substantive application for judicial review on its merits."34. Applying this approach, we therefore grant permission.35. It is the ISA's case in this appeal that given that there were no outstanding representations, appeal or review (as provided for in article 2(2)(b) of the TPO) it had no choice but to ‘migrate’ SJB onto the new Children's Barred List and that, as a consequence the only legal right available to SJB in 2009 was to make representations against the elements of the wider bar. The ISA argue that they have committed no error of law in undertaking the migration and rejection of the representations made.36. In relation to the decision of the Court of Appeal to quash the Disqualification Order, the ISA state that this was a matter which should have been brought to the attention of the Secretary of State soon after 17 October 2008 and in any event before 20 November 2009. The ISA say that it is not able to consider any representations concerning the quashing of the Disqualification Order because those are matters that go to the terms of the original bar and which they are prevented from considering by law.37. The ISA argue that it was the responsibility of SJB to draw to the attention of the Secretary of State the decision of the Court of Appeal and it is speculation as to what may have happened as a result of the Secretary of State having that information. The ISA argue further that SJB’s right to seek a review of the decision at any time (as existed under the former provisions) was lost when the TPO provisions were applied to him on 20 November 2009.38. The ISA states that the question of fairness of the procedures is not a matter to be determined in this appeal – if thought appropriate it would be something to consider by way of judicial review. Likewise, the disparity between the pre- and post-transfer regimes is not for this appeal to consider and rule upon.39. SJB contends that the decision of the Court of Appeal should have been communicated to the Secretary of State in the same way that the conviction in March 2008 was conveyed to the Secretary of State. He told us that he had no reason to believe that the Court of Appeal decision had not been drawn to the attention of the Secretary of State. He accepts however that he tried to put matters out of his mind from October 2008 and that, in hindsight, he should have sent the information to the Secretary of State himself. He states that it was only as a result of receiving the letter of 20 November 2009 that he sent the Court of Appeal documentation to the ISA. Notwithstanding the fact that the ISA only saw the decision of the Court of Appeal in very late 2009, SJB states that he believes that the decision of three judges in the Court of Appeal should override the decision of a “Government backed department”.40. SJB submits to us that because his case was ‘migrated’ without consideration being given to the Court of Appeal decision, he has lost the 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 gives adequate and sufficient protection.41. SJB does not seek to go behind the SOPO put in place by the Court of Appeal. He feels that that order provides sufficient protection and that the prohibitions placed upon him by his inclusion in the Children's Barred List are excessive and contrary to the views of the Court of Appeal which quashed the wider Disqualification Order in favour of a narrower SOPO. Discussion.42. It is accepted by SJB that he did not notify the Secretary of State of the Court of Appeal's decision to quash the Disqualification Order in October 2008. He should have done so. It is understandable that he would have thought that the Court of Appeal's decision would have been communicated to the Secretary of State as his conviction had been, and the obvious lack of joined up communication between the appropriate authorities and organisations is of concern to us. SJB said that he had not appreciated that there was a clear distinction between the Secretary of State and the ISA. He thought that the latter was a revised version of the former.43. Whilst it is speculation to infer what the Secretary of State may have decided, if he had been told that the Disqualification Order had been quashed, it is clear (by reason of Regulation 9(4) of the 2003 regulations) that if the Disqualification Order (Condition B) was the only Condition, the section 142 listing would have been revoked. However, in SJB’s case, there was also the D3 Condition (section 16 Sexual Offences Act 2003) and so revocation would not have followed just because the Disqualification Order was quashed. Again, we cannot speculate on what the Secretary of State may have decided in relation to the section 142 listing with the D3 Condition and SOPO in place, but Mr Grodzinski acknowledged that gender specific section 142 directions, whilst uncommon, were nevertheless sometimes the appropriate Direction to make.44. Had the Secretary of State made a gender specific section 142 direction it is unclear as to how this would have been treated by the ISA when SJB was ‘ migrated’ onto the new list in 2009. The Children’s Barred List does not permit conditions, and to that extent it differs from the “List 99” and is similar to the former PoCA and PoVA lists.45. We raised with Mr Grodzinski whether or not SJB had been prevented from exercising his Article 6 rights by being unable to challenge the ISA’s decision not to consider the Court of Appeal's order. Mr Grodzinski submitted, and we agree, that the right to challenge the making of any order arose under the old Scheme once the letter of July 2008 had been written and soon after the decision of the Court of Appeal. We note that there was a right of representation to the Secretary of State at that time. Former rights of appeal to the First-tier tribunal (the successor to the Care Standards Tribunal) continue to apply until one of the events as set out in Articles 5(5), 6(5) or 7(4) occurs. One of these events, being included in the new barred list, extinguishes his right of appeal to the First-tier Tribunal.46. We are aware that the Supreme Court has looked at the ISA’s barring regime in R (on the application of G) v The Governors of X School [2011] UKSC 30 (published 29 June 2011). We are also aware that the High Court made a declaration of incompatibility under the Human Rights Act 1998 in 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) that the automatic barring of an individual without the right to make representations prior to listing was incompatible with EConHR. Neither of these cases apply to SJB as he had the right to make representations up to November 2009.47. Regulation 8(3) of the 2003 regulations does not assist SJB either, because the requirements of that provision are both that there has to be a positive decision by a court not to make a Disqualification Order and that the Secretary of State has to be aware that there has been that consideration.48. The Tribunal is aware of course that if the Secretary of State had been informed that the Disqualification Order had been quashed by the Court of Appeal and replaced with an SOPO, it would still have been open to the Secretary of State to make a direction against SJB under section 142 of the Education Act on the grounds of ‘misconduct’.49. Applying the provisions of the TPO it is our finding that the ISA is bound by the provisions of article 2 of the TPO and so is limited in what matters the representations can address. Accordingly, the decision to “migrate” the Appellant onto the Children’s Barred List was a decision in accordance with the law, and accordingly the appeal must fail and be dismissed. Concluding Remarks.50. We understand that pursuant to paragraph 18 of schedule 3 to the Safeguarding Vulnerable Groups Act 2006, the ISA is able to review a person's inclusion on a barred list. A person may only apply for a review of their inclusion with the permission of the ISA and that permission is only granted if the ISA thinks that the person's circumstances have changed since he was included on the list and the change is such that permission should be granted. Whilst it is normal that this application for permission can only occur after the minimum barred period in respect of that person has expired (10 years in the case of this SJB), we also understand that the legislation does not prohibit the ISA granting permission of its own volition where the minimum barred period has not expired. We acknowledge that such permission would only be granted 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 appeal51. We believe that it could be arguable in this case that the ISA was provided with inaccurate information when the details of SJB were provided to it by the Secretary of State because the Secretary of State was unaware that the Disqualification Order had been successfully quashed on appeal.52. We understand that the SOPO will remain in force until further order and that the group of individuals which the Court of Appeal considered were at risk by SJB's behaviour are protected. It does not seem logical to us that SJB is made the subject of a wider bar by his ‘migration’ to the Children's Barred List when the Court of Appeal was clearly satisfied that the protection needed was adequately put in place by the SOPO.53. Whilst the provisions of the law require that this appeal has to be dismissed, it could be that the dismissal of the appeal does not address the justice of SJB's case. We would invite the ISA to consider exercising its exceptional powers to give permission to review SJB's inclusion before the minimum barred period has expired and to take into account in granting that review the decision of the Court of Appeal.54. Should the ISA decide not to use its exceptional powers, we are aware that the ISA is going to be merged with the CRB to form the Disclosure and Barring Service as a result of the Protection of Freedoms Bill currently before Parliament. Clause 70 of the Bill once enacted is intended to insert a new paragraph 18A into Schedule 3 of the Safeguarding Vulnerable Groups Act to enable individuals to apply for a review of the barring decision at any time. Thus, SJB may well have a remedy in the near future. His Honour Judge David Pearl His Honour Judge Simon Oliver Ms Caroline Joffe 15 th July 2011