SR v Disclosure and Barring Service (Safeguarding vulnerable groups Children's barred list) [2013] UKUT 103 (AAC)

UKUT-AAC
SR v Disclosure and Barring Service (Safeguarding vulnerable groups Children's barred list)
[2013] UKUT 103 (AAC) · 2013-02-25
The appellant had been a taxi driver under contract with a public authority and had carried both children and vulnerable adults. He was sentenced to eight years’ imprisonment for having assaulted and raped his wife. Under the Safeguarding Vulnerable Groups Act 2006 his name was automatically included by the Independent Safeguarding Authority (ISA) on both the children’s and adults’ barred lists subject to any representations he might make (“autobar with reps”). Following his representations the ISA decided to retain his name on both lists but failed to follow its own procedures; it omitted Stage 3 of the structured judgement process (SJP), observing that there was insufficient information to undertake an effective risk assessment, and it failed to refer the case to the ISA Board as it should have done if public confidence were an issue. The appellant appealed against that decision. Following changes under the Protection of Freedoms Act 2012 his name was removed from the adults’ barred list but not the children’s barred list. The issue before the Upper Tribunal (UT) was whether the ISA had complied properly with its duty in deciding whether or not to remove the appellant’s name from the children’s barred list.Held, allowing the appeal, that:1. to conclude that specifying an offence as triggering the “autobar with reps” procedure created a “presumption” in favour of maintaining a bar was wrong. The legislative intention was that a precautionary principle should be followed whereby a person convicted of such an offence should not be permitted to work with children in regulated activity until the ISA had had the chance to review the case. The ISA erred in law as it failed to consider what it was about the appellant, including his convictions, which made it “appropriate” for his name to remain on the list (paragraphs 13 to 16 and 18);2. the ISA’s failure to apply stage 3 of the SJP was also an error of law for the reasons identified by the UT in AP v Independent Safeguarding Authority [2012] UKUT 412 (AAC) ; [2013] AACR 17 . Its application might have highlighted the need for the ISA to consider how the appellant’s conviction for rape was relevant to his working with children and so, unlike AP v Independent Safeguarding Authority , the appellant’s case was one where the completion of the SJP would have added value (paragraphs 17 to 19);3. public confidence may be a relevant consideration but it was not a factor which the ISA had expressly applied; the decision documents and letter contained no reference to public confidence and no referral was made to the Board in accordance with the ISA’s own guidance. If the ISA had taken public confidence into account through inference, it had done so incorrectly (paragraph 20);4. the ISA’s decision was disproportionate as it failed to ask the appropriate legal question, to identify the harm it was seeking to prevent, and to show clearly that the measures taken were only necessary to accomplish its aim and to strike a fair balance between the rights of the appellant and the interests of the community: see Huang v Secretary of State for the Home Department [2007] UKHL 11 ; [2007] 2 AC 167 and Independent Safeguarding Authority v SB and another [2012] EWCA Civ 977 ; [2013] AACR 24 ) (paragraphs 21 to 24).The UT remitted the case to the Disclosure and Barring Service (the ISA’s statutory successor) to consider the matter properly and directed that, pending the new decision, the appellant’s name remain on the children’s barred list.

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

Mr John Walsh of counsel, acting pro bono, instructed by the Free Representation Unit, appeared for the appellant.Ms Kate Olley, instructed by Treasury Solicitor, appeared for the respondent.The appeal is allowed. The decision of the Independent Safeguarding Authority communicated by a letter dated 11 February 2011 involved a mistake on a point of law. The matter is remitted to the respondent for a new decision pursuant to section 4(6)(b) of the Safeguarding Vulnerable Groups Act 2006 (the 2006 Act). Pursuant to section 4(7)(b) the Upper Tribunal directs that the appellant is not to be removed from the children’s barred list until the respondent makes its new decision.

REASONS FOR DECISION

1. The appellant was a taxi driver who had previously carried both vulnerable adult and child passengers under contract with a public authority. He appealed against the decision of the Independent Safeguarding Authority (ISA) (the statutory predecessors of the present respondent), communicated by a letter dated 11 February 2011, that it was appropriate for his name to remain on the children’s barred list.2. The decision had originally retained his name on the adults’ barred list also. However, as part of the changes introduced by or pursuant to the Protection of Freedoms Act 2012 (the 2012 Act), conveying vulnerable adults in a taxi ceased to be a “regulated activity” (see regulation 26 of the Safeguarding Vulnerable Groups Act 2006 (Miscellaneous Provisions) Regulations (SI 2012/2112)). The rationale for such a change appears to have been that enhanced checks with the former Criminal Records Bureau (now subsumed within the responsibilities of the respondent) were henceforth to be available in respect of applicants for taxi driver’s licences and so, as regards vulnerable adults, it was considered that the matter of an individual’s suitability could be left to the relevant licensing authority to determine. The changes introduced pursuant to the 2012 Act also included a requirement that a person could only be listed if the ISA reasonably believed that the person concerned “is or has been or might in future be engaged in regulated activity”, together with a power to review those cases where a person had previously been listed, but did not meet this “regulated activity” criterion. Accordingly, on 4 October 2012 the ISA removed the appellant from the adults’ barred list and on 31 January 2013 he was given permission to withdraw that part of his appeal. No changes were made to whether or in what circumstances carrying children in a vehicle may constitute a “regulated activity” and thus the appellant’s inclusion in the children’s barred list and his appeal against that listing continued.3. The appellant was convicted in the Crown Court on two counts of rape and one of common assault. The victim in each case was the appellant’s wife. Though it appears she may have some difficulties, there is no suggestion that she was or is a “vulnerable adult” as defined by section 59 of the 2006 Act. The particulars of the offence of rape of which the appellant was convicted referred to “repeated unspecified instances of rape”. The common assault was committed in the presence of some of the children of the family. There is no suggestion that any of the children witnessed any of the rapes. On 10 November 2009 the appellant was sentenced to a total of eight years in prison.4. A number of points should be made in relation to the Crown Court trial.(a) In his sentencing remarks the judge observed that “I do not consider that he qualified for a sentence of imprisonment for public protection. The risk of significant harm or substantial harm to the public is minimal.” Under section 225(1) of the Criminal Justice Act 2003 (the CJA 2003), special sentencing provisions applied:

“where –

(a) a person aged 18 or over is convicted of a serious offence committed after the commencement of this section, and(b) the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.”By section 224(3) “serious harm” means death or serious personal injury, whether physical or psychological. By subsection (1) of that section an offence is a “specified offence” for these purposes if it is a “specified violent offence” or a “specified sexual offence”. It is not necessary to refer in detail to the provisions of Schedule 15 of the CJA 2003, save to observe that Part 1, which contains a definition of “specified violent offences”, lists a wide range of offences of varying degrees of seriousness, while Part 2, which deals with “specified sexual offences” covers not only rape but, along with many which would involve an assault, others, such as possession of indecent photographs of a child, which do not. We therefore do not think that Ms Olley was correct in submitting that the trial judge was directing his remarks to the risk of the appellant committing rape on members of the public if she intended to suggest that his remarks were to be taken as limited to that issue. In our view a context for the judge’s remarks is provided by the definition of “serious harm” with which he had to be concerned. The judge was saying, but only saying, that there was not a significant risk to members of the public of “death or serious personal injury, whether physical or psychological” occasioned by the commission of such offences. While a case falling within that definition would doubtless be of concern to the respondent, we would consider that a risk of less serious harm than is referred to in sections 224 and 225 of the CJA 2003 would also still be of legitimate concern to it.(b) Having been sentenced to 30 months or more in prison, the appellant is registered on the sex offenders register under the Sexual Offences Act 2003 (the SOA 2003) indefinitely. As a result the appellant was (and is) required to inform the police within three days if there are any changes to his name, address or vehicle details and within seven days of any plans to leave the United Kingdom for three days or more. Failure to comply with these and other requirements is an offence under section 91 of the SOA 2003 with a maximum penalty of five years’ imprisonment. Further requirements have subsequently been imposed by the Sexual Offences Act 2003 (Notifications Requirements) (England and Wales) Regulations (SI 2012/1876) but these post-date the ISA’s decision. (c) No question arose of a disqualification order under Criminal Justice and Court Services Act 2000, as the appellant’s offences were not committed “against a child” for the purposes of section 26 of that Act. (d) There is no indication that a sexual offences prevention order under the SOA 2003, sections 104–113 was made, but nor is there any discussion in the evidence before us as to whether any consideration was given to making one. (e) Though there were technical problems of sentencing law arising from a change in legislation during the period over which the rapes were found to have occurred, these need not detain us. The appellant is now approaching the time when the question of his eligibility for parole falls for consideration. In the usual way, if parole is granted, this is liable to be subject to detailed conditions.5. Particulars of the appellant’s convictions were required to be added to the list maintained by the then Criminal Records Bureau, pursuant to the provisions of the Police Act 1997, where they would be destined to remain indefinitely. Ms Olley accepted before us that anyone contemplating permitting the appellant to engage in “regulated activity” relating to children would be entitled to obtain an enhanced disclosure certificate, on which the convictions would appear (and in any event it appears that they would also show on a standard certificate).6. When the convictions came to the attention of the ISA, the appellant was listed on both lists and given the opportunity to make representations under paragraph 2(2) (children) and paragraph 8(2) (vulnerable adults) of Schedule 3 to the 2006 Act: ie it was what is known as an “auto bar with reps” case. This was correct, as a conviction for rape, even if not of a child or of a vulnerable adult, results in the “auto bar with reps” procedure being applied: see (in the case of the children’s barred list) the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009/37, regulation 4(5) and Schedule, paragraph 2, Table, Part 1. There are equivalent provisions for the vulnerable adults list.7. The appellant took up the opportunity of making representations, submitting (among other matters) an Offender Assessment System (OASys) report completed while he was in prison. The report drew attention to the difficulty in exploring questions of motivation with the appellant given his continuing denial of the offences. The report contained a risk assessment which identified a high risk to the appellant’s wife if the appellant was in the community, but a risk to children, whether the appellant was in the community or in custody, that was “low”. The terms of reference of the OASys report indicated that the expression “low risk of serious harm” was to be understood as meaning that “current evidence does not indicate the likelihood of serious harm”. The Probation Service as compilers of the OASys report proposed a set of conditions to address what they perceived as the risk following his release from prison.8. The ISA’s decision letter of 11 February 2011 was brief. The relevant part stated that:
“We remain of the view, despite your representations, that you present a future risk of harm to children and vulnerable adults and that it is appropriate for you to remain in the children’s barred list and the adults barred list.”
It listed the representations and evidence considered before continuing:
“We have also taken into account the mitigation that you have provided in your defence and reviewed our assessment of the risk of harm you may present in the future.
We remain of the view that, given the seriousness of the offence for which you were convicted and the severity of the sentence imposed by the judge, we believe that there is a significant risk that similar harmful behaviour could be repeated in the future. Your representations do not provide sufficient reassurances that you might act differently in similar circumstances and it is considered proportionate and appropriate therefore, that your name be retained on the children’s barred list and the adults barred list.”9. The Upper Tribunal has in other cases been prepared to accept that it is the substantive decision by ISA that is to be considered, rather than just the formulation of it in the letter notifying it, and we do so also. The vehicle used for decisions by the ISA is the Barring Decision Process document. After evaluating the available evidence (stage 2 of the process), the compiler did not proceed to stage 3, the structured judgement process, observing that:
“a Structured Judgement Process (SJP) has not been undertaken in this case as the information available to the ISA does not provide sufficient contextual information to undertake an effective risk assessment. The case has proceeded directly to stage 4 for conclusion.”
10. The structured judgement process is a matrix enabling predispositional factors, cognitive factors, emotional factors and behavioural factors (22 in all) to be examined. It provides a structure for “indications” and “counter indications” to be identified. In respect of each of the 22 factors it is possible to identify that there is “no information”, “no concerns”, “some concerns” or “definite concerns”. The structured judgement process provides the opportunity to identify the number of “definite concerns” and to review the impact of risk factors identified as “definite concerns” or areas identified as “critical concerns”. It provides an opportunity for the decision‑maker to consider whether the representations and supporting documentary evidence cast doubt on the original barring decision and to identify whether a specialist referral is considered appropriate. None of these steps were gone through in the present case.11. The final case summary, after repeating the explanation why the structured judgement process was not undertaken, records:
“[The appellant’s] representations failed to provide any credible reassurance that he presented little or no future risk of harm towards vulnerable groups. By continuing to deny that he raped his wife [the appellant] does not accept any responsibility for his harmful behaviours. Additionally he has not shown any remorse for his actions or for the impact his actions may have upon his wife, rather, he mitigates that she has mental health problems and she is the aggressive one.
[The appellant] has one caution and two convictions for common assault, spanning a period of nine years. He has shown how he is willing to break bail conditions placed upon him in order to continue to contact his wife, thus resulting in a second conviction for common assault. This is a clear indicator that [the appellant] is not fully or able to modify his abusive behaviours.Probation assessed [the appellant] as being a high risk in relation to known adults in the community, a medium risk to the public and a low risk to the children in the community. Parliament have assessed [the appellant’s] offences to be serious enough to be automatically placed on both the children’s barred list with the opportunity to provide representations and the adults barred list, with the opportunity to provide representations and the judge’s eight year sentence supports the seriousness of his offences. [The appellant] has not provided any clear or compelling evidence to suggest that he would behave differently under similar circumstances, therefore future risk of harm in relation to children and vulnerable adults has not been satisfactorily addressed. The lack of such information combined with the seriousness of [the appellant’s] actions and the severity of the sentence imposed by the judge, determines that it therefore is both appropriate and proportionate that [the appellant] should remain on the children’s barred list and the adults barred list.”12. Under paragraph 2 of Schedule 3 to the 2006 Act, what ISA was statutorily required to decide was whether it was “not appropriate for the person to be included in the list” in which he had been placed under the “auto bar with reps” procedure. This was a list regulating who could engage in “regulated activity” with children.13. We can accept that by stipulating rape of an adult as an offence subject to the “auto bar with reps” procedure in respect of the children’s list the legislator, with Parliamentary authority, was indicating, given the nature and seriousness of the offence, that a precautionary principle was to be followed: a person convicted of such an offence should not be permitted to work with children in regulated activity until the specialist body, the ISA, had had the chance to review the appropriateness or otherwise of the person’s ongoing inclusion in the list. Nonetheless the question which remained for the ISA was whether it was appropriate for the person to remain on the list. This is not an offence which carries an automatic bar, as would have been the case had the offence been committed against a child: see SI 2009/37, regulation 3 and Schedule paragraph 1. The ISA had to decide what (if anything) it was about the appellant, particularly in the light of the convictions which had triggered the process, which made it “appropriate” to maintain the bar in respect of his working with children.14. Ms Olley submitted that convictions and cautions classified as auto-inclusion offences (including autobar with reps cases) are so categorised due to what she termed a presumption that persons convicted or cautioned of such offences are a risk to children and/or vulnerable adults and therefore there exists a presumption in favour of barring the individual. We consider that, so stated, the submission is too wide. The structure created by the 2006 Act (it has since been amended) did reflect a policy of “bar first, then investigate” where such convictions or cautions were involved and to that extent the legislative starting point was one of barring. That carries with it an indication of how the legislator viewed the potential seriousness of the risks which may accompany convictions or cautions of the type described. But in our view, to view it as creating a “presumption” at the stage of deciding whether maintaining the bar is appropriate is to read something into the legislation which is not there and which is liable, as here, to deflect the ISA or (now) the respondent from the task statutorily required of them.15. While we were told that the appellant, acting in person, is pursuing a renewed application for permission to appeal against his convictions to the Criminal Division of the Court of Appeal, we proceed on the basis that the convictions were correct until such time (if any) as they are overturned. We appreciate that criminal law does not differentiate between the offence of rape of an adult committed in a domestic setting and elsewhere and we do not seek to detract from the seriousness of the offences of which the appellant has been convicted. However, the remit of the ISA is not one of punishment, or even of the general prevention of harm, but of the safeguarding of children and vulnerable adults. Consideration was therefore needed of how the convictions impacted on the appropriateness or otherwise of barring him from working with children.16. This the ISA failed to give. Both the “final case summary” and the decision letter recorded that (emphasis added) “the appellant has not provided any clear or compelling evidence to suggest that he would behave differently under similar circumstances , therefore a future risk of harm in relation to children and vulnerable adults has not been satisfactorily addressed.” The question needing to be considered was not (or not merely) how the appellant would behave in respect of his marital relations but what, if anything, that implied about the appropriateness of his working with children. The appellant appears to have had a profoundly misguided view of the relationship between man and wife. There may have been a variety of factors in play, as to which it would be wrong for us to speculate. But those were, as appears not least from the OASys report, likely to result in serious risk to the appellant’s wife but not to children. If that is indeed so, then it illustrates why not every offence of rape attracts a straight “auto bar”. The contextual factors required to be examined and were not.17. In this regard we consider that the decision not to apply Part 3 of the structured judgement process was ill-advised, both contributing to the foregoing error of law and amounting to one in its own right. Nowhere is it really explained why in this case sufficient information was thought to be lacking to enable an effective risk assessment to be undertaken. The ISA had the lengthy OASys report which, while acknowledging the difficulties in assessing risk, had managed to do so. They had the representations by the appellant, who is an intelligent man able to express himself well on paper. They had the judge’s sentencing remarks. Nothing in the extent of the information available in this case appears radically different from that which has been seen in other auto bar with reps cases. The structured judgement process itself acknowledges that there may not be information available on each and every one of the 22 categories and in such a case it is possible to tick the box for “no information”. If the necessary extent of information was not available, then, as noted above, the structured judgement process might have pointed to the appropriateness of a specialist referral. In any event, we consider that applying the structured judgement process would have led the ISA to recognise the missing link in their reasoning thus far and to take such steps as they thought fit to address it.18. The ISA failed to ask itself the question which the structure of the legislation required it to ask and that was an error of law.19. We would add that we also regard the failure to apply the SJP as an error of law in its own right for the reasons identified by the Upper Tribunal in AP v ISA [2012] UKUT 412 (AAC) ; [2013] AACR 17 at [16]–[26], which we do not need to set out at length here. The present case is not a case where we can say that the stage omitted was one which “adds no value to the decision-making process”: see AP at [21]. While there were undoubted similarities between the case in AP and the present case in that serious offences were involved and a state of denial maintained, the offences in AP included those of violence against children and so that case did not require the ISA to engage with the “transferability” issue and we come to a different view from the Upper Tribunal in AP when we come to assess the impact of the non-compliance in the case with which we are concerned.20. We fully accept that public confidence may be a relevant consideration. However, we do not consider that it was a factor which the ISA consciously applied and, if it applied it unconsciously, it did so incorrectly. There is no mention of public confidence anywhere in the barring decision process document or in the decision letter. The first mention of it was in submissions to the Upper Tribunal. Further, the “Guidance Notes for the Barring Decision Making Process” issued by the Board of the ISA observes (at paragraph 8.6, third bullet point) (emphasis added) that:
“In reality, issues of public confidence will more likely play a useful supportive role alongside other significant factors in marginal barring decisions. It would certainly be a rare and highly exceptional case where public confidence is the main reason for a barring decision in the absence of other significant factors. When there is a reliance on public confidence as a factor when making a decision, cases should be escalated to the Board .”
The present case was not escalated to the Board. If public confidence was taken into account at all, on the material before us, it can only have been otherwise than expressly, through what the ISA inferred from the inclusion of the offences of which the appellant was convicted in the “auto bar with reps” procedure. However, as indicated at [13] and [14] above, the policy reflected in the legislation in our view is that a person who has raped a child should be barred from working with children. A person who has raped an adult should be barred from working with children until the matter has been investigated by the ISA as expert body and may be barred thereafter if it is appropriate to do so. We do not consider therefore that the legislator of that provision, acting under the authority of Parliament, provides a guide as to the impact of “public confidence” sufficient to get the ISA’s decision home in this case in the absence of any express consideration whatever of the role of public confidence.21. We turn to proportionality. As we have found that there were other errors of law in any event, we do so lest the case go further, but more briefly than we might otherwise have done. As will appear, we believe that the outcome on this ground is largely determined by the same errors as above, put another way. It appears to us that the appellant’s Article 8 rights are plainly engaged, given his previous work, to which there is no indication that he would not return were he in a position to do so (and indeed, the maintenance of his name on the children’s barred list even after the amendments made under the 2012 Act indicates that the ISA accepts as much).22. There are two approaches to the question of proportionality, depending on whether one is considering it for Human Rights Act purposes. We consider that the ISA loses on both. The conventional approach when assessing proportionality for Human Rights Act purposes is that it is for the reviewing court to determine the proportionality of an act for itself, not to ask whether the decision-taking body asked itself the right questions: see for instance, Baroness Hale at [31] in the decision of the House of Lords in Belfast City Council v Miss Behavin’ Limited [2007] UKHL 19 ; [2007] 1WLR 1420 ; [2007] 3 All ER 1007 . Ms Olley submits however that because of the wording of section 4(2) of the 2006 Act and in particular its use of the perfect tense “has made a mistake … on any point of law”, the Upper Tribunal should be examining whether the ISA, on the material before it, correctly addressed (among other things) proportionality. If that submission was that the Upper Tribunal, as part of its jurisdiction over decisions involving a mistake on any point of law, is entitled to consider whether the ISA’s decision lacked proportionality, along with other factors which may have vitiated it in law, then we agree. If her submission was that even in a case involving human rights considerations the Upper Tribunal is limited to the treatment by the ISA of the material before it, then we reject it as contrary to authority.23. To the extent that we are required to consider whether the ISA acted proportionately on the material before it, we find that it did not. This flows both from the ISA’s failure to identify accurately the harm it was seeking to guard against (see especially [16] above) and from the lack of any apparent attempt to consider whether what it was seeking to achieve could be achieved with lesser limitations on the individual. Including someone on a barring list is a wholesale measure compared with allowing individual employers the opportunity, with knowledge of the facts, to make their own decision. However, in the present case, the only reference to proportionality is in the decision letter and relies (“therefore”) on the legally incorrect issue of whether the appellant would act differently in similar circumstances. There is no consideration of whether any combination of inclusion on the sex offenders’ register and/or the availability of information about the appellant’s convictions via CRB checks and/or the conditions likely to be attached to him on release from prison might be a suitable, lesser, measure and thus to balance the interests of the appellant and the public.24. If the question is correctly to be considered by us now, we would hold that the action was disproportionate. But this adds little to what we have said above. Because the right legal question was not asked, the risk against which it is sought to guard has not been identified so as to allow the respondent to show that the measures implemented are rationally connected with it, are no more than necessary to accomplish it or strike a fair balance between the rights of the individual and the interests of the community (cf Lord Wilson in Huang v Secretary of State for the Home Department [2007] UKHL 11 ; [2007] 2 AC 167 , cited with approval in the safeguarding context by Maurice Kay LJ in Independent Safeguarding Authority v SB and another [2012] EWCA Civ 977 ; [2013] AACR 24 ).25. We would add that in reaching the above conclusions, we have placed no weight on a piece of evidence post-dating the ISA’s decision. We viewed it provisionally (in legal jargon de bene esse ) in the face of Ms Olley’s objections to its admissibility. However, the extract was a single page from a much longer document, undated and did not identify the author and we found it of no assistance in any event and have placed no reliance upon it, thus a ruling on its admissibility is not needed.26. We are conscious of the remarks of the Court of Appeal in SB concerning the relative expertise of the ISA (under paragraph 1(2) of Schedule 1 to the 2006 Act, the chairman and other members of its Board) and the Upper Tribunal. However, the present case is not one where questions of proportionality turn on a differing evaluation by the ISA and the Upper Tribunal of the evidence (such as might conceivably raise questions of relative expertise), but on misapplication of the law and on failure of procedure. In that context, the “appropriate weight to the judgment of the ISA as the body with responsibility for a given subject matter and access to special sources of knowledge and advice” which we are required by SB at [16] to give to the decision which has come before us, while genuine enough, is tempered by those errors, as it is also by the indications (in the departures from internal guidance) that the decision-taking process in this case may not have run as the Board of the ISA may have intended it.27. As the primary errors on the basis of which we are allowing the appeal are the failure by the ISA to address, adequately or at all, the correct legal issue and a material failure of procedure, we consider that the appropriate step is to refer the case back to the respondent so that it may consider the matter properly. Nothing that we say in this decision should be taken as expressing a view either way as to the eventual result.28. In view of the interpretation we have placed on the specifying of the offences and the auto bar with reps procedure, we consider that it is right to direct that the appellant remain on the children’s barred list pending the new decision to be taken by the respondent.29. Finally, we should record our thanks to both counsel in this case. Not only is the statutory framework complex but a number of the arguments are such that it would have been extremely difficult for a person in the appellant’s position to have pursued them unaided, no doubt with limitations on the resources available to him while in prison. An attempt to secure legal aid proved unsuccessful for reasons that are not clear to us and the appellant was indeed fortunate to secure the assistance of Mr Walsh, acting pro bono, through the Free Representation Unit.

Cited in 2 later judgments