K v ISA [2012] UKUT 424 (AAC)

UKUT-AAC
K v ISA
[2012] UKUT 424 (AAC) · 2012-11-14
Appeal dismissed. The decision of the Independent Safeguarding Authority not to remove the appellant’s name from the children’s barred list or the adult’s bared list is confirmed.

REASONS FOR DECISION

1 This is an appeal to the Upper Tribunal against a decision of the Independent Safeguarding Authority (ISA) about the inclusion of the appellant (K) in both the adults’ barred list and the children’s barred list maintained by ISA under the Safeguarding Vulnerable Groups Act 2006 (the 2006 Act).2 The decision by ISA was made on 15 11 2010. K’s appeal was one of the first appeals to come to the Upper Tribunal under the appeal procedure provided by the 2006 Act. As the grounds of appeal raised a number of important and new issues, but at the same time there were limited issues of fact in dispute, the Chamber President directed that it be heard by a panel of two judges sitting with one lay member.

The facts

3 The appellant was born in 1979. On 1 April 2009 he was sentenced following conviction at Southwark Crown Court, after a trial, of conspiracy to kidnap and falsely imprison one person and to blackmail another. The offences in question took place in August 2006. He was convicted on the basis that, with his brother, he had organised the offences. At the time of the offences the appellant was on licence following conviction in 2004 of possessing a firearm with intent to endanger life.4 The judge’s sentencing remarks to the appellant included:

“a sentence for public protection is necessary as there is a significant risk

of serious harm being caused to members of the public by commission by

you of further specified offences.”

The judge went on to say that if a determinate sentence had been set it would have been imprisonment for a period of ten years, with a concurrent determinate sentence of eight years for blackmail. The minimum period of custody, after the usual adjustments, was to be three years and 332 days. Release after that period would depend on a decision of the Parole Board. The appellant was also told that he would remain on licence for the rest of his life unless the licence was ended by order of the Secretary of State, which order could not be given for at least ten years.5 When sentencing the appellant, the judge made no comment about the inclusion of the appellant in either of the barred lists although it is accepted that she should have done so. The appellant was later informed by letter that because of the convictions his name would be placed on the barred lists for both children and vulnerable adults. This was notified to him by a letter from ISA on 16 February 2010. He was invited to make representations as to why his name should be removed from those lists. He did so but ISA did not remove his name. He was notified that his name would not be removed by a letter from ISA on 15 November 2010. This appeal results from ISA’s decision not to remove K’s name from the lists.

The inclusion of the appellant in the barred lists

6 Section 2 of the 2006 Act imposes the duty on ISA to maintain both the children’s barred list and the adult’s barred list. The section specifies that Schedule 3 to the Act provides when someone is to be included in either of the lists. Section 3 provides that anyone whose name is on either of these lists is barred from regulated activity with children and with vulnerable adults respectively. The effect on the appellant of having his name on the lists is therefore that he will be severely restricted in any contact with either children or vulnerable adults when he is freed from prison after serving his current sentence.7 Part 1 of Schedule 3 to the 2006 Act deals with the children’s barred list and Part 2 deals with the adults’ barred list. ISA is required by these provisions to include some individuals on the barred lists, but has discretion about whether others are included.8 In this case the appellant’s conduct fell within the group of offences that lead to what is referred to as an “autobar” – a case where ISA is required automatically to place the individual on the barred lists subject to any representations about removal of the name once this has been done.9 The legislation making provision for autobarring in connection with the children’s barred list as follows:2006 Act, section 2

(2) Part 1 of Schedule 3 applies for the purpose of determining whether an

Individual is included in the children’s barred list.2006 Act, Schedule 3, paragraphs 2, 242 Inclusion subject to consideration of representations(1) This paragraph applies to a person if any of the criteria prescribed for the purpose of this paragraph is satisfied in relation to the person.(2) If it appears to the Secretary of State that this paragraph applies to a person the Secretary of State must refer the matter to ISA.

(3) On the reference being made, ISA must –

(a) include the person in the children’s barred list;(b) give the person the opportunity to make representations as to why he should be removed from the children’s barred list.(4) 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.24 Prescribed criteria

(1) The criteria which may be prescribed for the purposes of paragraphs … 2 …

are -

(a) that a person has been convicted of, or cautioned in relation to, and offence of

a specified description …

10 Section 61 of the 2006 Act empowers the Secretary of State to make regulations, and section 61(3)(h) provides expressly that regulations prescribing criteria for paragraphs 1, 2, 7 or 8 of Schedule 3 are to be made by the affirmative procedure.11 That procedure was used to make the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009 (SI 2009 No 37). These came into effect on 20 January 2009. That date is important because different provisions apply to those convicted of offences before that date as compared with those convicted after that date. The appellant was convicted after that date. Regulation 4 of those Regulations provides:Prescribed criteria – automatic inclusion in the children’s barred list with the right to make representations4. —(1) The criteria prescribed for the purposes of paragraph 2(1) of Schedule 3 to the Act are the criteria set out in paragraphs (2) to (6).

(2) The criterion set out in this paragraph is that before the relevant date—

(a) the person had been made subject to a disqualification order, and(b) condition C in the 2003 Regulations was not satisfied in relation to the person, and(c) regulation 8 of those Regulations applied to the person, and(d) the Secretary of State had not made a direction under section 142(1)(a) of the 2002 Act in relation to that person.

(3) The criterion set out in this paragraph is that before the relevant date—

(a) the person had been convicted of, or cautioned in relation to, an offence specified in Parts 2 to 5 of Schedule 2 to the 2003 Regulations, and(b) any of conditions D to F in those Regulations was satisfied in relation to the person, and(c) regulation 8 of those Regulations applied to the person, and(d) the Secretary of State had not made a direction under section 142(1)(a) of the 2002 Act in relation to that person.(4) The criterion set out in this paragraph is that the person has, on or after the relevant date, been made subject to a risk of sexual harm order within the meaning of section 123 of the Sexual Offences Act 2003 or section 2 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005.(5) The criterion set out in this paragraph is that the person has, on or after the relevant date, been convicted of, or cautioned in relation to, an offence specified in paragraph 2 of the Schedule.(6) The criterion set out in this paragraph is that the person has, on or after the relevant date, been made subject to a disqualification order and the person does not meet any other criteria prescribed in regulation 3 or in this regulation.12 The reference in regulation 4(5) to the offences in paragraph 2 of the Schedule to the Regulations is directly relevant to this case. This is because paragraph 2 of the Schedule starts by listing the following offences:2. The offences specified in this paragraph are—(a) the offences contrary to the common law of England and Wales of— (i) murder,(ii) kidnapping,

(iii) infanticide…

13 That clearly covers the position of the appellant, who is therefore rightly regarded as in the “autobar with representations” category for these purposes. Similar provisions apply to the equivalent list for vulnerable adults. They are not repeated to avoid unnecessary duplication.

The judge’s failure to notify the appellant

14 Mr O’Neill QC did not dispute that the above provisions applied to his client in principle. But he contended that this did not apply to his client in this case because the trial judge responsible for imposing the sentence of imprisonment on the appellant failed to carry out a clear duty to notify the appellant that he was included in the relevant category of offenders.15 Paragraph 25 of Schedule 3 to the 2006 Act providesA court by or before which a person is convicted of an offence of a description specified for the purposes of paragraph 24(1)(a), or which makes an order of a description specified for the purposes of paragraph 24(1)(b), must inform the person at the time he is convicted or the order is made that ISA will include him in the barred list concerned.16 It is not disputed that the judge did not, when sentencing the appellant or at any other time, carry out this requirement. That it is a duty of sentencing judges has been confirmed by the Court of Appeal in Attorney General’s Reference (No 18 of 2011) [2011] EWCA Crim 1300 at paras [19], [23]. The tribunal notes however that this is a duty to be carried out once an individual is convicted. It is not part of the process of sentencing or appealable as an aspect of sentencing.17 It is nonetheless contended for the appellant that a failure to carry out that duty goes to the heart of the statutory scheme under the 2006 Act. Failure to notify the appellant therefore, it is contended, renders the process of placing the appellant’s name on the list as an autobar a nullity, with the consequence that his name should be removed.18 In our view that is not what the scheme requires. Section 2 set out above provides different machinery. It is the task of the Secretary of State, not of the judge, to notify ISA, and the duty of ISA to act when so notified. The Act therefore does not make notification by the judge a part of the machinery of listing.19 The duty on the judge is to warn the convicted person personally. In some cases that warning may be of immediate importance because it goes ahead of the listing process and may be a necessary warning to stop the warned person conducting activities that will be banned under the listing. However, that does not apply in this or similar cases. The appellant was convicted of an offence for which he had been held on remand and for which he was then given an immediate lengthy prison sentence. No occasion arose that might cause him to be exposed to any temptation of acting in a way incompatible with listing.20 In this case the warning that should have been given was neither a necessary part of the process of listing nor a necessary safeguard to protect the appellant from an unintentional breach of the limitations imposed on a person when listed. It cannot therefore be said to go to the heart of the statutory scheme. The logic of the appellant’s argument would, however, risk frustrating the scheme. If a failure by the sentencing judge to carry out this duty meant that the individual could not be put on the lists in that way - without, at the least some delay while the process of barring is restarted correctly - then there is a danger to the public. The risk is that, in those cases where an individual is not in or taken into custody, the individual might act in exactly the way the 2006 is designed to stop him or her acting.21 We do not accept that Parliament intended the “must” in paragraph 25 to have the effect for which Mr O’Neill QC argues. It is a “must” in that it imposes a duty on the judge. But a failure in that duty does not have the effect of avoiding the process to be conducted under the 2006 Act by the Secretary of State and ISA. It may be that such a failure might be relevant in some cases, but as K has at all relevant times been in custody we do not regard it as having any enduring relevance in this case.

The jurisdiction of the tribunal

22 We find that the appellant was properly placed on the two barred lists following his conviction and sentence. We therefore turn to the challenges raised against the decision of ISA to leave K’s name on the lists after the representations received. These raise two linked questions. What is the jurisdiction in such a case? And, in particular, how does a tribunal deal with a case where the decision is a decision not to remove an individual from a list?23 Section 4 of the 2006 Act governs the jurisdiction of the Upper Tribunal in these appeals. The text is set out in the appendix to this decision.24 In this case the decision made by ISA was the decision not to remove the appellant from the barred lists. Mr O’Neill QC submitted that that was not a decision within the scope of the jurisdictional limitation of section 4(3). K’s appeal case was therefore an open appeal in which the appropriateness of the decision should be considered. That, he submitted, was clear from the letter sent to K by ISA. That was the process required by law, the provisions being in paragraph 8 of Schedule 3 to the 2006 Act. The same machinery is provided in paragraph 2 of that Schedule in respect of inclusion in the children’s barred list in similar circumstances. It is set out at paragraph [9] above.25 From this is it clear that ISA has no decision to take in including an individual in either list. It is for the Secretary of State, not ISA, to be satisfied that the paragraphs apply. If the Secretary of State informs ISA of that satisfaction then ISA is mandated to include the names. The only power ISA has is to remove the name it has included if satisfied that it should do so in the light of representations.26 Mr O’Neill QC submitted that process is not within the scope of section 4(3). This provides:
“ (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.”
27 It is clear from this, Mr O’Neill argued, that there are two sets of situations where an appellant can seek permission to appeal The first is the set of situations where ISA has decided as an exercise of discretion to include an appellant on a barred list. The other is the set of situations where ISA is required to include an appellant on a barred list, but has a power to remove that person after inclusion. Section 4(2) provides a right of appeal on both questions of law and questions of fact from decisions in both sets of situations. But the limitation imposed by Parliament on appeals in subsection (3) applies only to those cases where ISA has taken a positive decision to include an appellant on the lists. In those cases where the inclusion is mandatory, the limitation in subsection (3) does not apply. That is appropriate when the nature of the actions by ISA is considered. In a case such as this, ISA merely had to fulfil a statutory duty in including the appellant on the lists. No decision was required to do this. In particular, there was no consideration of individual circumstances or exercise of any discretion by ISA. Further, to read section 4(3) as covering this situation is unwarranted as this is a restriction on the rights of appeal of individuals to appeal simply by operation of law.28 Mr O’Neill QC also resisted the argument made for ISA that its decisions should in any event be treated with deference. That was a matter raising both constitutional issues under English and Welsh law and human rights issues. We consider the human rights issues separately below. But we also have in mind the guidance of the House of Lords in R(SB) v Governors of Denbigh High School [2007] 1 AC 100 . As Lord Hoffman put it pithily (at paragraph [68]): “what matters is the result…”.29 Mr Grodzinski QC regarded that submission for the appellant as ambitious and wholly unsustainable. A decision not to remove someone from a list, he submitted, necessarily includes a decision that it is appropriate for the individual to be included in the list. If it is not appropriate to include someone in the list then the 2006 plainly requires ISA to remove that person from the lists. That must involve a decision by ISA. That decision is appealable under section 4. But the right of appeal is subject to section 4(3). Further, ISA’s conduct in this case is entirely consistent with that approach. Its letter to the appellant about his continued inclusion on the lists told K:
“… you present a future risk of harm to children and vulnerable adults and … it is appropriate for you to remain in the Children’s Barred List and Adults’ Barred list.”
30 That approach, he argued, was the clear intention of Parliament. There is no sensible basis on which it could be said that Parliament intended the kind of variable appeal regime suggested for the appellant.31 These provisions were before the court in R (Royal College of Nursing and others) v Secretary of State for the Home Department [2010] EWHC 2761 , in which the decision of the Administrative Court was given by Wyn Williams J. However, that decision concentrated entirely on the human rights issues involved in these issues. No point was taken or considered about the application of section 4(3), the application of which was assumed. That does not assist the argument here save to the extent that it emphasises that this is an issue directly relevant to the rights of an individual to seek protection of his or her fundamental rights in the courts or tribunals. Since then the approach taken by Wyn Williams J in the RCN case to the scope of section 4(3) has been endorsed by the Court of Appeal in SB v ISA [2012] EWCA Civ 978 . Maurice Kay LJ summarised it as follows (at paragraph 15):
“Thus, the UT cannot carry out a full merits reconsideration. Its jurisdiction is more limited. In this respect, it is narrower than was the jurisdiction of the Care Standards Tribunal in the previous legislation.”
32 What would be the effect of the exclusion of section 4(3), as submitted for the appellant, in this appeal? It would mean that K has an unlimited right of appeal to the Upper Tribunal, and that the Upper Tribunal’s powers would not be fettered by subsections (6) and (7). That would mean that the Upper Tribunal in all such cases would be required to hear the case afresh. It would be for the Upper Tribunal to consider all relevant aspects of the decision not to remove an appellant’s name from the lists, respecting as it did so the appellant’s procedural rights both under its own rules and under Article 6 of the Human Rights Convention (in so far as they differ). The extent to which that is restricted if section 4(3) applies was itself in dispute in this case. We set out our views on that matter below. It is sufficient here to note that our conclusion is that there is a restriction so that a complete rehearing is not required. That poses the point made for ISA by Mr Grodzinski. Why would Parliament provide one form of appeal in some situations and not in others?33 This is a difficult issue, not least because of its direct effect in restricting rights of appeal of an individual when his or her personal freedoms to act are in question. The argument for the appellant that reduces the restrictions on rights of appeal must carry some weight. We do not agree with the description by Mr Grodzinski of the appellant’s arguments as unsustainable, let alone with that term adorned by the adjective he chose to use. The language used by the drafters in section 4 creates an ambiguity. Section 4(1) and(2) clearly apply equally to decisions by ISA to put a name on a list and to take a name off a list, as does subsection (4). Subsections (5), (6) and (7) assume that the Upper Tribunal is restricted by subsection (3) in dealing with all appeals. In particular, a literal reading of subsection (3) as suggested by Mr O’Neill would have to be followed in logic by a literal reading of subsection (5). If so, then the Upper Tribunal could find itself in a position where it concluded that ISA had made the wrong decision (but had not erred in fact or in law) but nonetheless was obliged to confirm it. It has no powers to disapply the provision under human rights arguments, however strong they might appear in the light of the decision in R(Royal College of Nursing) v Secretary of State for the Home Department .34 We take the view that we should read section 4 as a whole and not disjunctively. The difference between the views of the two parties depends in part on whether the functions of ISA are regarded as a continuing function or a series of disparate functions. The approach for the appellant divides the duty of ISA to do what the Secretary of State has told it from the duty then to consider if the name it has added to the lists should stay on the lists. The argument for ISA is that the one follows automatically from the other as a continuing process. That, rather than the disjunctive approach, is in our view the better approach. We consider that there is a clear scheme to allow appeals on issues of both fact and law in all cases, and that the section should be read to provide the same appeal rights to all the decisions identified in section 4(1). We therefore reject Mr O’Neill’s argument that there is no limit arising from section 4(3) in this case.

Law and fact: the extent of the Upper Tribunal’s jurisdiction

35 The decision that section 4(3) applies to this appeal raises the inevitable issue of the meaning of that enigmatic provision (as the Upper Tribunal described it in XY v ISA [2011] UKUT 289 (AAC) at paragraph [84]. Again leaving aside the question of any incompatibility with the requirements of human rights legislation for discussion below, the issue is to what extent appropriateness can be viewed in isolation from the relevant law and the relevant evidence. And the determination of what is relevant for both purposes must itself be a question of law.36 It is not surprising that the two parties before the tribunal took strongly divergent views about the limitation inherent in section 4(3) on the jurisdiction of the tribunal. For the appellant a robust approach was argued, while initial arguments for the respondent were couched in terms of deference to an expert body. Since we heard those arguments, and arising from delay caused for the reason described below, we now have the advantage of the decision of the Court of Appeal, noted above, in SB v ISA.37 In the light of that decision in particular, we find neither of the approaches argued before us convincing. Parliament has given the Upper Tribunal this new jurisdiction as a first instance jurisdiction, unlike its previous appellate roles in similar previous cases. And it has clearly given the Upper Tribunal the power to find the facts for itself. So while the tribunal’s role is narrower than that of the Care Standards Tribunal it is at the same time greater than the powers of a review court such as the Administrative Court dealing with judicial review. Its power is a general power to consider errors of law, so again it is not subject to the limits of judicial review. Further, the tradition of the Upper Tribunal is a tradition of proactive (indeed at times investigative) justice. It is not confined to the arguments put before it by the parties. It can act on its own initiative, as indeed we did in this appeal (as described below). Similarly, it makes its decisions within the framework of the Tribunal Procedure Rules, including the overriding objective in rule 2 of those rules that it must deal with cases fairly and justly.38 We therefore reject the argument that our jurisdiction is limited to what is often termed Wednesbury unreasonableness – that the actions of ISA are so unreasonable that no reasonable body of a similar nature could have reached that decision. The Upper Tribunal will have in all cases the duty to ensure that proper findings of fact are made. This will include both considering any alleged factual errors in the ISA decision and also whether ISA has both identified all relevant evidence and given an appellant a chance to make representations on all relevant evidence. Conversely ISA must ignore irrelevant evidence. In cases of dispute it will be for the Upper Tribunal (and of course the courts on further appeal) to indicate what is relevant.39 Once the factual basis is identified correctly, then it is for the Upper Tribunal to consider whether ISA adopted and followed both a correct understanding of the law and the correct procedure in taking the decision it is required by law to take and that it took that decision properly on its merits and not, for example, by relying on an over-rigid policy.40 What the Court of Appeal have now emphasised that the Upper Tribunal cannot do is to go beyond that and impose its own different decision where the decision taken by ISA is one based on properly found facts and properly understood law within the proper area of discretion accorded to ISA as an expert decision maker. It is, in other words, for ISA to have the final say in those cases where there is a proper balance to be struck between the interests of the individual and the interests of children and vulnerable adults generally. And the Court of Appeal has emphasised that in reviewing whether a decision is a matter of balance the Upper Tribunal should follow the lead given by the Care Standards Tribunal in taking into account the significance of public confidence in any decision. As Maurice Kay LJ put it in SB v ISA (at paragraph 25):
“True, public confidence is not an inevitable trump card. However, it is something which must be placed in the scales when consideration is being given to the personal characteristics and interests of an individual.”

Identifying what is relevant

41 Paragraph 16(1) of Schedule 3 to the 2006 Act provides:
“A person who is, by virtue of any provision of this Schedule, given an opportunity to make representations must have the opportunity to make representations in relation to all the information on which ISA intend to rely in taking a decision under this Schedule.”
42 The process of representation in this case is set out in the Barring Decision Process notice completed on 10 11 2010. At Stage 2 of this document there is a summary of the representations followed by a list of documents considered and a short note evaluating the evidence in those documents. Those documents are also referred to in later parts of the notice.43 When first presented with the case we noted that the list appeared to suggest that the ISA caseworkers continued to collect documents that were considered relevant to the case after representations had been made for the appellant. In particular, information was obtained from a police force and from press articles some months after representations were received from the appellant’s solicitors. Further, it was clear that ISA had put weight on those later documents (and in the case of the police report, had put high weight on it). Weight had also been put on press reports for details even though a comment in the notice showed that not all the statements in the press reports had been confirmed from other sources. We indicated our concern about these matters to both parties at the hearing of the case. There appeared on the documents produced to us to have been a failure by ISA to comply with the requirements of proper consultation. Further, any failure to seek representations on matters on which ISA later put weight clearly went to the heart of the proper exercise of discretion in the case.44 As the parties were unable to assure us or themselves at the hearing that all relevant information had been identified to K as required, we issued a direction to ISA requiring it to produce all relevant documents and correspondence. We are is pleased to record that on this being disclosed to K’s representatives they were able to assure us that they had seen almost all relevant documents and that they did not take any point on the documents they had not seen. We therefore take this issue no further. But we records a failure by ISA in this case to show in the process document and in the papers initially produced to us that it had complied fully with the required procedure. And we emphasise that had any substantive failure in the consultation process been established then we would have had no hesitation in allowing this appeal. It is therefore important in all such cases that the representation process be not only conducted properly but also recorded properly. It is plainly an error of law for ISA to rely on information not identified to an appellant as part of the representation process.45 We are, in the outcome, satisfied that the evidence was correctly handled in this case and that no issues of fact arise for consideration. The further question is therefore whether ISA conducted its consideration of the representations for the appellant properly. This must involve considering the arguments put forward by Mr O’Neill QC that the appellant’s human rights were violated in this case. We now turn to that issue.

A breach of the appellant’s human rights? Background

46 K has asserted that Article 8 of the European Convention on Human Rights (ECHR) is engaged by ISA’s decision not to remove him from both barred lists (following representations). This is because, when he is released from prison in 2013, he would like to(a) work with young offenders and(b) continue his previous employment working on an ice cream van. It was submitted that his inclusion on the lists would prevent him engaging in both these activities on release from prison.47 We note that the issue of K’s Article 8 rights was not made in representations to ISA but was raised for the first time before the Tribunal. K argues that there is some significance to the absence of specific consideration of article 8 in ISA’s decision; ISA argues that there is not.48 It must be remembered that inclusion on the barred list prevents K from engaging in “regulated activity” only. “Regulated activities” are those defined in schedule 4 to the 2006 Act. Working on an ice cream van would not, in our view, constitute a regulated activity. In those circumstances, we do not regard it as arguable that there was an error of law in a failure by ISA specifically to consider K’s rights under article 8 in respect of his wish to work on an ice cream van. We do accept, however, that working with young offenders would constitute a regulated activity under the existing definition of that term (and the amended definition provided by the Protection of Public Freedoms Act 2012). We have therefore considered whether Article 8 is engaged in relation to the proposed activity of working with young offenders only. It is not clear whether K’s interest in this area would take place in an employed or voluntary capacity; both scenarios are considered.49 We note that K has no previous history of working or volunteering with young offenders. We are told that “K has successfully completed an NVQ in Advice and Guidance with St Giles’ Trust and has expressed an interest in using his qualification and experience [gained whilst in prison] to assist in the rehabilitation of offenders on release” [see substantive bundle page 25]. As K does not currently have an offer of either paid or voluntary work in this field, the intention to work in a regulated activity is considered on the basis that it is a hypothetical prospect only at this stage.

K’s submissions

50 It was argued for K that the Strasbourg jurisprudence recognises that article 8 rights are involved in relation to the right to earn a living through the pursuit of one’s “chosen profession”. We were taken to a number of European authorities where Article 8 was found to be engaged in relation to the practice of a chosen profession. These include Sidabras v Lithuania (the workers were a tax inspector and a state prosecutor, who were banned from a range of professions in both public and private sectors); Turek v Slovakia (where the profession involved was that of an employed administrative assistant in the state education system); and Zickus v Lithuania (in which the profession involved was that of a lawyer).51 In the domestic context, Mr O’Neill referred us to Wright v Secretary of State for Health [2009] 2 WLR 267 where the claimants were registered nurses. In R (L) v Commissioner of Police for the Metropolis the Supreme Court found that Article 8 was engaged in relation to the work of a midday assistant at a secondary school. R (Royal College of Nursing) v Home Secretary) [2010] EWHC 2761 , noted above, also involved nurses. He also pointed to a weaker line of case law which suggests that the European Court of Human Rights considers that the right to practise a profession engages Article 1 of the First Protocol (in relation to paid employment).52 His further submissions were substantially concerned with procedural fairness in making a decision in which Article 8 is engaged and whether ISA was obliged expressly to consider K’s Article 8 rights in making the decision now under appeal.

ISA’s Submissions

53 It was submitted for ISA that there is no interference with Article 8(1) rights on the facts of this case. Further, if K’s Article 8(1) rights are interfered with by his continuing inclusion on the barred lists, then such interference is proportionate in accordance with article 8 (2) ECHR in view of the seriousness of his crime.54 Mr Grodzinski argued that not every case involving inclusion on the barred list involves Article 8, as the question of engagement is always fact sensitive. ISA relies in this regard upon Wright v Secretary of State for Health [2009] 2 WLR 267 , in which, when considering a predecessor barring scheme, Baroness Hale stated:
“There will be some people for whom the impact upon personal relationships is so great as to constitute an interference with the right to respect for private life and others for whom it may not…”
ISA also relied upon R (Royal College of Nursing) v Home Secretary in which Mr Justice Wyn Williams followed this approach.55 On the facts of this case it is argued for ISA that(i) K has no current employment;(ii) that, taken at its highest, he has merely expressed an interest in working with young offenders on release, and this cannot be said to be a sufficiently serious interest to constitute an interference with his article 8 rights.

Our conclusions

56 We entirely accept that legislative or administrative measures which prevent or impede disproportionately the practice of a chosen profession engage article 8 rights. In R(L) v Commissioner of Police of the Metropolis [2010] 1 AC 410 , Lord Hope of Craighead followed the Strasbourg jurisprudence in stating that:
“Excluding a person from employment in her chosen field is liable to affect her ability to develop relationships with others, and the problem that this creates as regards the possibility of earning a living can have serious repercussions on the enjoyment of her private life….”
57 The immediate question is whether article 8 is engaged on the facts of this case. Does a hypothetical prospect or a mere expression of interest in a particular profession (such as K’s interest in working with young offenders) constitute a “chosen profession” for Article 8 purposes? Neither party pointed us to a definition of “chosen profession” in the authorities. From the authorities cited, we discern that in this context a “chosen profession” is not necessarily one involving long training or requiring a person to obtain professional qualifications (for example, the midday supervisor in a school). However, we conclude that it is one in which the person concerned is either already working or one in which they have worked in the past and in relation to which they realistically seek future employment. Baroness Hale in Wright refers at [19] to “the right to remain in the employment one currently holds…[and] the right to engage in a wide variety of jobs in the care sector even if one does not currently have one”. We conclude that K’s merely hypothetical interest in working with young offenders is, at present, too remote from a “chosen profession” as that term has been understood in both European and domestic authority, to engage Article 8. In particular, it does not seem to us that there can be said to be an interference with K’s ability to develop relationships with others in the context of a hypothetical activity.58 We have also considered whether a “chosen profession” in this context could encompass K’s involvement in voluntary work with young offenders. We note that the position of charity trustee or volunteer is covered by the SVGA 2006. It seems likely that K’s work with young offenders would, initially at least, be as a volunteer. We were not referred to any authorities in relation to Article 8 and the effect of any limitation on the ability to engage in civil society organisations. We note that the basis of the engagement of Article 8 in relation to a chosen profession is that “excluding a person from employment in her chosen field is liable to affect her ability to develop relationships with others”. It seems to us that this is no less true in relation to voluntary work than in relation to employment. We conclude that, if Article 8 were engaged on the facts of this case, then it would need to be considered in the context of K’s involvement in regulated activity whether it were paid or voluntary. However, as concluded above, the prospect of K working with young offenders is, in our view, currently of too remote a nature to engage Article 8.59 As Lord Hope stated in R (L) at [23] “the question is whether the issue that has been raised is within the scope of the article. If it is not within its scope, the question of a possible breach of it does not arise at all”. In relation to the argument that Article 1 of the First Protocol may be engaged here, we do not find it arguable that K has property rights in relation to the expectation of income from a profession which he never has practised and has no immediate prospect of practising. We do not consider the point further in view of the facts of this case. Further, as we have concluded above that the facts of this case are not within the scope of Article 8, we also do not need to go on to decide whether any Article 8 infringement would be proportionate. Finally, for the same reasons we also do not need to decide whether ISA’s decision making process took sufficient account of K’s article 8 rights.60 In our view, if, prior to his release from prison, K receives a credible offer of a voluntary or paid position with young offenders or after he is released, he undertakes some further relevant training course and/or is offered a job working with young offenders, then ISA would need to re-consider (if K made a valid application for reconsideration under paragraph 18 of Schedule 3 to the Act) at that point whether to continue his inclusion on the barred list in the light of his new circumstances, taking his Article 8 (and possible A1P1 rights) into account. We conclude that, on the facts of this case at present, there is no Article 8 issue for ISA or this Tribunal to decide.

Other considerations

61 The final question is whether we are satisfied, within the limits imposed on us by section 4(3) of the 2006 Act, that ISA properly conducted the decision making process in this case.62 The starting point for any such consideration must be the conviction of the appellant by the Crown Court and the sentence imposed on the appellant taken together with the appellant’s previous criminal record. Those offences cannot be overstated. The convictions were for conspiracy to kidnap under common law, offences under the Taking of Hostages Act 1982 and conspiracy to blackmail contrary to section 21 of the Theft Act 1968. There are six previous convictions between 1998 and 2004 as well as two cautions before that. Further, the offences for which there are previous convictions include dishonesty (using an insurance document with intent to deceive) disorderly and unruly behaviour (resisting or obstructing a constable and disorderly behaviour likely to cause harassment alarm or distress) and having an imitation firearm with intent to commit an indictable offence. The appellant was given a six year sentence for the last of those offences.63 For the appellant it was argued that these offences did not involve vulnerable adults or children. It was also argued, with sound supporting evidence, that the appellant had taken clear steps to address his errant conduct while in prison following this conviction. And it was further argued that the appellant could be a volunteer to take part in initiatives aimed at, for example, young gang members, to seek to dissuade others from following his pattern of conduct. Specifically, the appellant had expressed an interest in assisting in the rehabilitation of young offenders and had completed an NVQ in advice and guidance with the St Giles Trust.64 We are conscious that there will be cases where individuals can be shown to have reformed completely and to have turned from a serious criminal career to a pattern of exemplary conduct. There will therefore be cases where the continued inclusion of an individual on the barred lists will not be necessary in the public interest or for maintenance of public confidence and indeed may actually be against the public interest. And any policy that did not consider this would be open to criticism as too rigid a policy.

The ISA decision

65 It is with that in mind that we turn finally to the case summary presented about the appellant in the document completed on 10 11 2010. We do not need to set that out at length in this decision. We have decided that we are satisfied that the procedure followed by ISA leading to this case summary was adequate, even if it was not explained adequately. No material errors of fact have been identified to us or by us in that process and summary. Nor have we had our attention drawn to any significant omissions from the evidence gathering process. We are satisfied from that summary that ISA did take account of the representations for the appellant and in particular the evidence of recent behavioural changes.66 The conclusion of that summary is that:
“Although K’s previous behaviour was not commissioned against vulnerable groups; and his good conduct towards vulnerable prisoners is noted; his history of re- offending, willingness to use violence to achieve goals and resolve disputes and his lack of concern for potential victims of his actions, raises concerns regarding any future conduct he may have with vulnerable adults or children with whom he may have a dispute or confrontation.
As a result of the documented offending behaviour and the risk assessment it is not appropriate to consider removing K’s name from either barred list at the present time.”Subject to an obvious drafting error, we find that that is a decision made without error of fact or error of law and it is confirmed. Unlike the Upper Tribunal in SB v ISA, we do not find any reason to consider any question of reweighing the evidence before ISA or of exploring the balance struck in that decision. The drafting error is that it was appropriate to consider removing K’s name because it is appropriate to do so in all autobar with representation cases. What this summary should have said is that, having considered the matter, it was not considered by ISA appropriate to remove K’s name at that time. That is the decision confirmed.

Judge David Williams

Judge Alison McKenna

Christopher Wakefield

APPENDIX

Section 4 of the Safeguarding Vulnerable Persons Act 2006

Appeals

4(1) An individual who is included in a barred list may appeal to the Tribunal against—(a)a decision under paragraph 2 or 8 of Schedule 3 not to remove him from the list; (b)a decision under paragraph 3, 5, 9 or 11 of that Schedule to include him in the list; (c)a decision under paragraph 17 or 18 of that Schedule not to remove him from the list.(2) An appeal under subsection (1) may be made only on the grounds 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 Tribunal.(5) Unless the Tribunal finds that ISA has made a mistake of law or fact, it must confirm the decision of ISA.

(6) If the Tribunal finds that ISA has made such a mistake it must—

(a)direct ISA to remove the person from the list, or (b)remit the matter to ISA for a new decision.(7) If the Tribunal remits a matter to ISA under subsection (6)(b)— (a)the Tribunal may set out any findings of fact which it has made (on which ISA must base its new decision); and (b)the person must be removed from the list until ISA makes its new decision, unless the Tribunal directs otherwise.(8) The Secretary of State may by regulations make provision as to the procedure of the Tribunal (including provision as to the award of costs by the Tribunal).(9) A person may appeal on a point of law to the Court of Appeal against a decision of the Tribunal.(10) An appeal under subsection (9) may be made only with the permission of the Court of Appeal.

Cited in 1 later judgment