“It is possible that there could be cases where the information should not be included in a certificate because it is disproportionate to do so.” 43. The Chief Constable has the responsibility to decide whether it is relevant to include so-called ‘soft material’, but such disclosure is subject to judicial scrutiny by way of judicial review. Lord Woolfe provides examples of information which should not be disclosed, such as information of a trifling nature. It seems to us that whether such information is of a trifling nature is a question that goes to weight, and the court is entitled to take a view different to the Chief Constable. The Chief Constable might think the information is highly relevant, but it is open to the Court to form a different view and to decide that disclosure of that material is disproportionate to the need to disclose; which is of course to alert potential employers to perceived risks. 44. The Supreme Court considered the issue in R(L) v Metropolitan Police Commissioner[2009] UKSC 3 . The Supreme Court upheld the right of the Police to disclose information in an enhanced CRC about allegations that had not been tested in a court, and held that such disclosure was compatible with art 8 EConHR. The key test must always be proportionality, and the Supreme Court decided that on the facts of the case before it, the Police had addressed their minds to the proportionality question. Indeed the Police had withheld certain information which they thought was insufficiently robust to justify disclosure, but that the other information which was the subject of the challenge was relevant to the reason for the disclosure; namely the risk to children. Lord Hope set out the test in following way at [para 42]: “So the issue is essentially one of proportionality. On the one hand there is pressing social need that children and vulnerable adults should be protected against the risk of harm. On the other there is the applicant’s right to respect for her private life. It is of the greatest importance that the balance between these two considerations is struck in the right place”. 45. We believe that exactly the same test should be applied when considering the SVGA regime. On an appeal, the Tribunal is entitled to examine the evidence and to allocate weight to it and to decide whether the balance has been struck in the right place. 26. Ms Leventhal informed us that the decision in SB v ISA is the subject of an appeal to the Court of Appeal, and that the hearing has been set for a date in May 2012. We were informed that the ISA will seek to argue that the Upper Tribunal erred in its approach to the question of proportionality. 27. ISA’s position in this case is as set out in paragraphs 10-12 of the Amended Skeleton argument, as follows: (10) the ISA’s submission is that, by virtue of section 4(2) SVGA, the Upper Tribunal is considering whether there is an error of law in its decision, not undertaking a full re-hearing of whether or not it is appropriate (including proportionality) for PH to be included on the Adults’ Barred List. Section 4(3) SVGA makes it clear that this question is for the ISA in the first instance and should not be interfered with absent an error of law. (11) as to whether or not there is an error of law, the Upper Tribunal should accord significant weight to the expert judgment reached by the ISA and ought not to interfere with the ISA’s detailed balancing exercise…unless it can objectively conclude that its ultimate conclusion is necessarily disproportionate. This is not, and cannot as a matter of law, be the same as the Upper Tribunal considering whether or not it would have reached the same view on the evidence. (12) It is plain from the ultimate decision of the ISA in the circumstances of this case that its judgement on proportionality does not constitute an error of law, particularly when one considers the painstaking assessment of the evidence in this case and the careful way in which the balancing exercise was undertaken. Given the level and nature of the risk (serious physical harm) which the ISA properly concluded exists to vulnerable adults, the limitation on PH’s right to pursue his employment when weighed against this plainly cannot be objectively considered as disproportionate. 28. In her closing submissions, Ms Leventhal reiterated the proposition that the Tribunal should give the decision of the ISA ‘significant weight’. She submitted that that is what the statutory scheme under section 4(3) envisages, that ISA has undertaken a detailed balancing exercise and that it has applied the correct legal approach. 29. In contrast, Mr Broach submitted that the approach to proportionality adopted by the Tribunal in SB is correct. It is submitted by Mr Broach in his Amended Grounds that “proportionality requires that the means used to impair the right in question are ‘no more than necessary’ and that a ‘fair balance’ is struck between the interests of the individual and the wider interest, in this case protecting vulnerable adults from unsuitable individuals. By virtue of Human Rights Act section 6 the question of whether the decision to place the Appellant on the Adults Barred List was proportionate is one for the Court to decide, weighing all relevant factors into account.” 30. Given that the legal arguments surrounding the approach that should be adopted in these cases was argued before us, both in the written skeleton arguments and in oral submissions, it is only correct for the Tribunal to set out its approach in this case to the legal issue, notwithstanding that the matter will be considered by the Court of Appeal in the near future. 31. It is our view that the approach that should be adopted to the principle of proportionality is as set out both in the authorities cited in the extract from SB v ISA quoted earlier in this Decision and in the three leading authorities, namely Huang v SSHD[2007] UKHL 11 ; Belfast City Council v Miss Behavin’ Ltd[2007] UKHL 19 , and Regina (Quila and another) v SSHD[2011] 3 WLR 836 . 32. Only if in some way the legislative framework established under theSafeguarding Vulnerable Groups Act 2006 (in particular s 4(3) of that Act) demands that these cases be distinguished can it be said that Mr Broach’s submission is incorrect and that we should depart from the approach advanced in SB and adopt Ms Leventhal’s submission. We say this because all of the authorities set out the law on proportionality very clearly and leave no room for doubt. 33. In Huang v SSHD[2007] UKHL 11 , Lord Bingham specifically referred to the need to balance the interests of society with those of interests and groups. Lord Bingham quoted R (Razgar) v SSHD[2004] 2 AC 368 where the House said that the judgement on proportionality “must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage.” 34. Mr Broach drew our attention to observation by Lord Bingham at para 15 that “in any event, particularly where the applicant has not been interviewed, the authority [referring to the Immigration Appellate Authority; the predecessor to the Immigration Tribunals] will be much better placed to investigate the facts, test the evidence, assess the sincerity of the applicant’s evidence and the genuineness of his or her concerns…” 35. It is our opinion that this observation is particularly pertinent in this area, given that the ISA has not had the opportunity of hearing PH give evidence, whereas this Tribunal (with two experienced specialist members) has been able to hear PH give evidence and test his evidence in some detail. 36. In Belfast City Council v Miss Behavin’ Ltd[2007] UKHL 19 , Baroness Hale asked the question: who decides whether or not a claimant’s Convention rights have been infringed? She answered the question by stating that it is the court before which the issue is raised. 37. At para [31] Baroness Hale said: “In human rights adjudication, the court is concerned with whether the human rights of the claimant have in fact been infringed, not with whether the administrative decision-maker properly took them into account.” 38. Baroness Hale then goes on to discuss the weight to be accorded to the views of the various public authorities involved in making the decision which is alleged to have infringed Convention rights. 39. Lord Mance expressly observed that the existence of a discretionary area of judgment means that there may be decisions which a court could regard as proportionate, whichever way they went, but that the decision maker may be forced to strike the balance for itself if the decision maker has not addressed his or her mind at all to the existence of values or interests which are relevant under the Convention. 40. Regina (Qila and another) v SSHD[2011] 3 WLR 836 is also of considerable importance. Baroness Hale said: “…this court will treat with appropriate respect the views taken by those whose primary responsibility it is to make the judgments in question. But those views cannot be decisive. Ultimately, it is for the court to decide whether or not the Convention rights have been breached”. 41. Mr Broach in his Skeleton Argument makes four points. First, that the Upper Tribunal in SB directed itself correctly as to the proper approach to proportionality. Secondly, the conclusion as to whether or not ISA’s decision is proportionate can only properly be reached by the Tribunal after it has conducted its own balancing exercise, weighing all the evidence as it deems appropriate. Thirdly, it is not for the Tribunal to reach its own view on the merits, but rather to ask the four questions identified by Lord Bingham in Huang : (i) is the legislative objective sufficiently important to justify limiting a fundamental right? (ii) are the measures which have been designed to meet it rationally connected to it? (iii) are they no more than necessary to accomplish it? (iv) do they strike a fair balance between the rights of the individual and the interests of the community? 42. The fourth submission by Mr Broach is that the Tribunal, on the facts, will be invited to find that there is no evidence of any significant risk to vulnerable adults posed by the Appellant, and that the limitation on the Appellant’s rights encompassed within the barring decision is disproportionate when viewed against any risk that the Tribunal concludes he does pose. 43. We have to say that we agree with Mr Broach. We can answer each of the first three questions posed by Lord Bingham in the affirmative, and state that it is the fourth of Lord Bingham’s questions which is of importance in this case. 44. We can find no basis for agreeing with the submission by Ms Leventhal that the cases, all of which with the exception of course of SB being binding on us, are all to be distinguished because of the existence of s 4(3). It is our view that s 4(3) is concerned with the issues relating to any particular factual framework to the original conduct, whereas proportionality, as the Appendix 5 to the caseworker Guidance correctly states, focuses on the nature and level of future risk. Put another way, given the facts of a particular case, is it appropriate to place this particular person on the Barred List? “Appropriateness” is a judgement call, and is not subject to any right of appeal. “Proportionality” is a question of law, and is subject to a challenge based on an error of law. The evidence of Dr Medley . 45. We turn now to consider the evidence of Dr Medley whose medical report is dated 3 rd October 2011. Dr Medley is a Consultant Psychiatrist in adult mental health at the Highbury Hospital, Nottingham. He interviewed PH at the Priory Clinic on 20 th September 2011, and he has had access to the Nottingham Health Care psychiatric reports of the Nottinghamshire Health care Trust, in particular Dr Taylor, and the GP records. This is Dr Medley’s second Report, the earlier Report being dated 10 th November 2010. 46. Dr Medley’s conclusion is as follows: “I remain of the view that the overall diagnosis with PH is of recurrent depressive disorder and, as a result of depression, and considerable work stress, there was an index offence in 2009 in which he assaulted a pupil in his class. Subsequently, he has been followed up by the community forensic services. His presentation now is very different. There is no evidence of depression. Indeed this seems to have lifted over the last year. He has worked on his thoughts and feelings and behaviour around the time of the index offence, in psychotherapy. The incident itself remains out of character; there is no history of any previous aggression or violence and none subsequently. No particular abnormal thought processes were revealed during the course of his therapy or follow up with the community psychiatric nurse. In terms of future risk, now that he has retired as a teacher, it is highly unlikely that he would be in a situation where the same factors would operate. He has considerable insight, not only in handling stress but also into how to avoid being in a similar situation in the future. It is difficult therefore to see how he could pose a risk to adults, certainly in the kind of charitable work that he is interested in. I therefore see no reason for him to be barred from working with vulnerable adults, although some basic safeguards would seem prudent, which he himself recognises. Firstly, he is aware that he should not work again with children. Secondly, I would suggest a basic risk assessment of any post that he is interested in. This might for example identify if he were likely to be subject to any particular degree of threat or provocation. Thirdly, he recognises that he would not work alone. Fourthly, he has become aware of the need to identify if his mental state is in any way changing, in particular becoming depressed. Now that he is away from the particular sensitive and stressful area of teaching, although he may still suffer depressed mood, he is unlikely to become stressed by the situation again. Lastly, he should remain in contact with his GP and, for the moment, the community forensic services.” 47. The Review by the ISA dated 11 th November 2011, signed by the ISA Caseworker, and endorsed by Ms A Hunter, the Director of Operations, deals with Dr Medley’s Report in the following way. It notes that since the incident, PH has taken significant steps to address his long-term issues with depression, through psychiatric support, psychotherapy and GP support which has included a change of medication. The Review by ISA states that whilst acknowledging the significant progress that PH has made, it is “also important to highlight the relatively short period of time which has elapsed since this marked improvement.”