DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to allow the appeal by the appellant, VT.

The decision by ISA under reference 10/51751W/AUT, communicated by letter dated 19 November 2010, involves a mistake of law and is set aside.

The Upper Tribunal’s DECISION under section 4(6)(a) of the Safeguarding Vulnerable Groups Act 2006 is to direct ISA to remove VT from the children’s barred list.  

The Upper Tribunal further DIRECTS that there is to be no publication of any matter likely to lead members of the public directly or indirectly to identify any person who has been involved in the circumstances giving rise to this appeal (rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698)).

Attendances:

For the Appellant:	VT in person

For the Respondent:	Ms Sarah-Jane Davies, instructed by the Treasury Solicitor

REASONS FOR DECISION

Summary of the Upper Tribunal’s decision

1.		This case involves an appeal by VT, a man now aged 66, against a decision by the Independent Safeguarding Authority (ISA) made under the Safeguarding Vulnerable Groups Act 2006 (“the 2006 Act”).  VT had been automatically put on the children’s barred list under the 2006 Act because he had accepted a caution from the police for the offence of possessing indecent images of children.  In accordance with the current scheme under the 2006 Act, ISA had invited his representations as to why he should be removed from that list.  Following receipt and consideration of his comments, ISA had decided to keep him on the children’s list.  The Upper Tribunal’s conclusion is that ISA’s decision involved a mistake of law.  We direct ISA to remove VT from the children’s barred list with immediate effect.

The oral hearing of the appeal to the Upper Tribunal

2.	We held an oral hearing of this appeal at the Leeds Civil Justice Centre on 18 October 2011.  VT attended and represented himself.  ISA was represented by Ms Sarah-Jane Davies of Counsel, instructed by Ms Louise Marriott of the Treasury Solicitor’s Department on behalf of ISA.  We are grateful to both VT and Ms Davies for their oral and written submissions.

The chronology of events leading to ISA’s decision

3.	On 11 November 2008 police officers went to VT’s home to execute a search warrant. They seized various items of computer equipment.  Subsequent forensic examination revealed a total of 306 indecent images of children (mostly young girls) under the age of 18 years on VT’s computer.  These images comprised (on the standard scale, with level 5 being the most serious):

	274	level 1 images
	28	level 2 images
	3	level 3 images
	1	level 4 image

4.	At the time of his arrest, VT denied committing any offence.  Nearly a year later, on 20 October 2009, VT, who was accompanied by his lawyer, was interviewed by police under caution.  He explained the difficult personal circumstances under which he had come to view the images and expressed his deep regret.  At that stage, the police considered but declined to offer VT the opportunity of a caution and referred the matter to the Crown Prosecution Service (CPS).

5.		On 29 January 2010, and following CPS advice to the police, VT accepted a caution for one offence of possessing an indecent photograph or pseudo-photograph of a child, contrary to section 160 of the Criminal Justice Act 1988.

6.	The precise date on which ISA was notified of this caution is not entirely clear, although nothing turns on that.  The PNC (Police National Computer) Data report on file is dated 14 May 2010.   ISA’s Barring Decision Process Document, which records the various stages of its decision-making process, gives the date of referral as 09 June 2010, although of course that could have been the date of referral to the individual ISA caseworker.

7.	On 21 June 2010 the ISA caseworker wrote to VT, explaining that the effect of the caution was that by law he was automatically included on both the children’s barred list and the adults’ barred list under the 2006 Act, but that he had the right to make representations as to why he should be removed from those lists.  We noted the helpful explanations by both Ms Davies and (in her witness statement) by Ms Lisa Hill, the Operation Unit Head at ISA, as to how this procedure will be amended by the Protection of Freedoms Bill currently before Parliament.  We also accept, of course, that we have to apply the law as it now is, not as it may well be.

8.	On 28 July 2010 VT wrote to ISA, stating that he was “at a loss as to why my name should have been added to your register”.  He added that he had not been charged with or convicted of any offence and that the police and CPS had accepted his version of events.

9.	On 23 August 2010 ISA replied, pointing out that the offence for which he had been cautioned resulted in automatic inclusion, subject to the opportunity to make representations (otherwise known as an “auto-bar with reps” case).  ISA suggested that he forward any professional reports or assessments or personal references for their consideration.

10.	On 14 September 2010 VT wrote ISA a detailed letter setting out why he considered that he was not a risk to children or vulnerable adults.  He summed up his 7-page letter by concluding that “Yes I have been foolish, yes I have been naïve, but I have not done anything with criminal intent, and nothing I have seen has influenced my behaviour unfavourably.  I did eventually ‘come to my senses’ and there was no repetition.  All this surely proves that I no way pose any risk at all to anyone”.  VT included with his latter two annexes.  The first (“This is me”) was a batch of personal testimonials from his time working in the NHS and a character reference from his sister.  The second (“This is not me”) were a series of newspaper reports of offenders who had been jailed for possession of indecent images (e.g. “‘Beyond belief’: A pervert’s depravity”).
11.	On 3 November 2010 ISA wrote to the relevant police force seeking further information and asking a series of questions about the offence for which VT had been cautioned.  The police force replied promptly with details on 4 November 2010.  This was the first time that ISA had any information about the circumstances which had led to the caution other than the sparse details on the PNC Data Report and what VT himself had told them.  The police reply concluded with the information that, as a result of the caution, “VT has been placed on the sex offenders register until 28/10/2012.  He has no other convictions or information that indicates he poses a risk of harm to vulnerable groups.”
 
12.	On 5 November 2010 ISA sent a copy of the police force’s reply to VT, asking him for any further comments, which they advised “should be made to us in writing by 30 November 2010, prior to our final decision, to enable us to take these comments into consideration”.  

13.	VT replied promptly with a short letter on 8 November 2010, pointing to a discrepancy in the dates.  The police report had indicated that the offences took place between 06 July 2008 and 04 November 2008 (a week before the police search).  VT argued that the events took place over a shorter period of time – his solicitor’s letter of 22 October 2009 referred to the police account at the interview under caution, namely that “most of the images had been downloaded between August and September 2008” [we interpose that ‘downloaded’ was used here in the sense that the site in question had been visited and viewed, rather than that particular images had been bookmarked or saved or otherwise actively archived on VT’s computer].  At our oral hearing, Ms Davies acknowledged, very fairly, that the sample of 15 images referred to by the interviewing officer all fell within the period from 30 July 2008 until 19 September 2008.  VT then reiterated in his letter to ISA his point that he had made his own decision to cease further visits to the websites in question before the police search.

The Structured Judgment Process: ISA’s policy

14.		The Structured Judgement Process or SJP is a risk assessment tool which is central to ISA’s decision-making processes in both auto-bar with reps and discretionary barring cases.  As ISA’s publicly-available Guidance Notes for the Barring Decision Making process (the “Guidance Notes”) explain, it “is focused on risk factors linked to future harm” (at paragraph 6.2).  Accordingly, the risk analysis is divided into four fields or areas: (A) pre-dispositional factors – harm-related intrinsic drives and interests; (B) cognitive factors – harm-supportive thinking, attitudes and beliefs; (C) emotional factors – relationships; and (D) behavioural factors – self-management and lifestyle.  Each of these four fields is sub-divided into four or more separate sub-categories.  So, for example, the first field, of pre-dispositional factors, is sub-classified into six separate factors: (1) excessive/obsessive interest in sex; (2) sexual preference for children; (3) sexual interest in harming; (4) any other significant sexual interest; (5) intense interest in violence; (6) any other significant interest linked to harmful behaviour.  In all there are 22 risk factors across the four separate fields.  In any given case the caseworker is then expected to make an assessment of each risk factor, as either “No information”, “No concerns”, “Some concerns” or “Definite concerns”.

15.	The Guidance Notes, under the heading “Risk”, then further advise as follows (at paragraph 6.10, emphasis added):

•	“Having completed the assessment as to the presence/absence of risk factors, make a determination as to the level of risk of future harm presented by the individual and in relation to which workforces (i.e. working with children or vulnerable adults). Whilst not automatically compelling a conclusion, it is anticipated that in cases where there are definite concerns in two or more of the four broad areas in relation to a particular behaviour or behaviours, the case would be regarded as ‘minded to’ include the individual on the relevant list. The presumption is that the presenting level of risk of future harm would most sensibly be managed by barring that individual from either or both workforces. Conversely, where there are no concerns, some concerns or insufficient information in the majority of risk areas (i.e. there is one or no area of definite concern), the presumption would be not to bar them.”

16.	That statement, of course, is made in the context of the application of the SJP to discretionary cases (hence the reference to a conclusion that ISA is ‘minded to bar’). However, the same document states that, in relation to auto-bar with reps cases, “the SJP will be applied once the representations have been received, after which a decision will be made as to whether it is still appropriate for the person to be included in the list” (at paragraph 2.5.2).  There is no suggestion there that the risk assessment aspect of the SJP is applied in any other way in auto-bar with reps cases than that contemplated at paragraph 6.10 of the Guidance Notes in relation to discretionary barring decisions.

17.	In her witness statement, Ms Hill helpfully referred us to ISA’s internal (and not publicly-available guidance) on auto-bar cases, Autobar Resources for IDM Casework Guidance V2 August 2010 (there is a parallel passage in the internal guidance for discretionary cases).  This also makes it clear that if definite concerns have been found in two or more fields, then the presumption is that the bar remains in place. The internal guidance continues as follows (at paragraph 3.12):

“3.12 Departures from the SJP Guidance

•	There may be occasions where use of the SJP tool does not lead you to the barring decision you may have expected.

•	This will be principally when the criteria for critical concerns is [sic] not met but it is still felt that a barring decision is appropriate.  In such cases, consult your line manager and colleagues.

Alternatively, there may be occasions where the SJP tool suggests a barring to be appropriate but you do not feel such an outcome is appropriate.

•	In both of the above scenarios each case:

o	Must be assessed on a case by case basis;
o	Reasons must be given on the Decision Making Template, and;
o	Must be escalated to line management in the first place (and then the Board).”

ISA’s decision following VT’s representations

18.	On 17 November 2010 an ISA caseworker reviewed VT’s case and completed the Barring Decision Process Document or BDPD.  Stage 1 of the BDPD set out reasons for the original assessment, which of course had been to include VT on both the children’s and adults’ barred lists as an auto-bar with reps case under the 2006 Act.  Stage 2 involved a consideration and analysis of VT’s representations.  Stage 3 was the SJP.

19.		The caseworker then concluded that there were “Some concerns” over four factors in the SJP matrix: A4 (“any other significant sexual interest”), B7 (“child abuse supportive beliefs”), D21 (“poor problem-solving/coping skills”) and D22 (“poor emotional arousal/urge management”).  The caseworker found there were “no concerns” about three factors: C18 (“callousness/lack of empathy”), D19 (“impulsive, chaotic and unstable lifestyle”) and D20 (“irresponsible and reckless”).  The caseworker recorded that she had “no information” about the remaining 15 factors.  None of the 22 factors listed warranted any “definite concerns”.  Given that pattern of findings, it followed from the Guidance Notes that the presumption was therefore against continued listing.

20.	However, in Stage 4 of the BDPD, the final case summary part of the SJP, the caseworker concluded thus:

“Notwithstanding the lack of definite concerns identified through the SJP (due mainly to the lack of information to establish drivers for his behaviour) Mr T’s offence is significantly serious to justify it being appropriate to depart from the guidance.  Indeed, the nature of Mr T’s caution carries a legislative presumption of risk and as Mr T has not provided sufficient evidence or reassurances that he would not access inappropriate images in the future, it is appropriate that his inclusion on the Children’s List be retained.

A final appropriateness test has been conducted and it is considered that Mr T does not present a risk to vulnerable adults and therefore, it is not appropriate or proportionate to maintain his bar on the Adults’ List.

In summary, Mr T’s inclusion on the ISA’s Children’s List will be maintained but he will be removed from the ISA’s Adults’ list.”

21.	On instructions, Ms Davies advised us that VT’s case had been referred to line management, in accordance with ISA’s stated policy, but it had not then been “escalated” to the Board, contrary to that same policy.  We return to this point later.

22.	Meanwhile, on 19 November 2010 ISA communicated the caseworker’s decision to VT.  According to the letter, “We remain of the view, despite your representations, that you present a future risk of harm to children and that it is appropriate for you to remain in the Children’s Barred List.”  As Ms Davies conceded, in something of an understatement, this was a “fairly brief summary” of the contents of the BDPD (and so gave VT very little idea of the details of the real basis of the decision).

23.	On 27 November 2010 VT wrote to ISA’s Chief Executive, challenging the decision and repeating several of his arguments as to why he should be removed from the children’s barred list.  He also suggested (for the first time) that ISA should obtain a copy of the transcript of his interview under caution, which he claimed would support his case.  ISA replied on 23 December 2010, pointing out that “ISA is not an investigatory body and in the consideration of cases the onus is on the individual to provide ISA with evidence to support their argument”.  However, we do not think that VT can really be criticised for failing to refer to the interview transcript before in his correspondence with ISA, given the limited guidance he was given about the sort of material which might assist his representations.
24.	At this point we should mention a point which only emerged in the course of the oral hearing before us (which in itself provides further evidence of the value of an oral hearing).  VT referred to ISA’s letter of 5 November 20110, referred to at [12] above.  He pointed out that his letter of 27 November 2010, suggesting that ISA obtain a copy of the transcript of his police interview, was within the timeframe suggested in that letter.  We can readily understand how VT thought that he was “in time” and how he came to expect ISA to have regard to the interview transcript.   Ms Davies also accepted that the passage cited from ISA’s letter was potentially ambiguous, and that it could be read to indicate that a final decision would not be taken until after 30 November 2010.  She assured us that ISA were reviewing the contents of their decision letters in the light of the experience in this and other cases.  Given our conclusions below, we need say no more about this aspect of the case.

VT’s submissions on the appeal to the Upper Tribunal

25.	On 13 January 2011 VT lodged an application for permission to appeal against ISA’s decision with the Upper Tribunal (Administrative Appeals Chamber).  On 21 March 2011 the Upper Tribunal issued initial directions on the application requiring ISA to produce further documentation, which ISA complied with promptly; on 31 March 2011 the Upper Tribunal granted VT permission to appeal.  VT accepted the account set out above as to the sequence of events in his case.  We think we can summarise his own case as follows.  

26.	From the procedural point of view, VT felt that he had been unfairly treated by ISA.  Their original letter of 21 June 2010 ([7] above) had come as a complete surprise to him; he had had no inkling as to what information ISA held on him at that stage; ISA had failed to give him any helpful guidance as to what further information he might provide; he felt that his representations had been ignored; and the decision letter of 19 November 2010 ([22] above) had not given him any clear reasons for the refusal to take him off the children’s list.  It was only after he had lodged his appeal that he had seen the detailed BDPD and the SJP matrix, and so it was only at that stage that he could seek to counter particular points that had been made against him.

27.	On the substantive merits of the case, VT’s core submission, put very simply, was that he was not a risk to children.  He pointed to his long professional career in the NHS which had been devoted to helping save lives and to preventing serious injury to men, women and children alike.  He acknowledged that he had viewed the images in question at a difficult time in his personal life when he was suffering from depression, had been involved in disciplinary proceedings at work for an unrelated matter and had been made bankrupt.  He accepted that what he had done was wrong.  However, his searches on the internet had been driven by curiosity, which he described as a “quest” (having seen the sort of newspaper reports included in his “This is not me” annex) that had developed into a “morbid obsession”, rather than by any desire for sexual gratification.  He had been appalled at what he had seen and had voluntarily stopped viewing the images before the police searched his home.  

28.	VT also pointed out that he had not bookmarked any sites or actively downloaded or saved any images (those found on his computer had required detailed forensic examination by police investigators).  He had not paid for access to any indecent images.  He had not joined any groups of like-minded individuals who circulated such images and had certainly not distributed any himself.  He emphasised that he was quite unlike those individuals who had convictions for child pornography offences (his “This is not me” file); as he put it to us, “I’m not exactly in the same league as those people”.  He was not a child molester and did not pose any risk of harm to children.
29.	Furthermore, VT was adamant that neither the police nor the CPS had regarded him as posing any risk to children, and this was why he had been offered a caution rather than prosecuted for the matter concerned.  He simply could not understand how the police and CPS could take one view while an ISA caseworker, as he put it, “sitting in an office”, could take the contrary view.

ISA’s submissions on the appeal to the Upper Tribunal

30.		Dealing with that final point first, Ms Davies referred us to the CPS Code for Crown Prosecutors and Home Office Circular 16/2008.  She pointed out that the decision to offer a caution was a serious step and required a clear admission of guilt in circumstances where there was sufficient evidence to provide a realistic prospect of conviction.  Cautioning also reflected a decision that the public interest could be served by such a mode of disposal.  However, the decision to offer a caution did not of itself reflect an assessment that the individual concerned posed no risk or threat.  Parliament had legislated to the effect that those either convicted or cautioned for specified offences should be included on the auto-bar with reps list. There was, accordingly, no inconsistency between the offer of a caution and the decision to bar under the 2006 Act.

31.	As noted above (at [21]), Ms Davies conceded that in VT’s case ISA had failed to follow its own guidance to refer the case to the Board, even though the presumption for barring had not been maintained following the application of the SJP.  This guidance was in mandatory terms and (at least aspects of it) had been published.  Although the guidance was just that, and not legally binding, one would normally expect a public body to set out reasons as to why the guidance was not being followed, and this had not been done in VT’s case.  In the particular circumstances of this case, Ms Davies therefore accepted that she was in some difficulty in challenging the proposition that ISA’s decision involved an error of law on the basis of the failure to follow the published guidance without an adequate explanation. 

32.	However, Ms Davies submitted that ISA had not made any mistakes as regards the facts.  The decision under appeal was the decision as a whole, documented in the BDPD, and not simply the summary contained in the decision letter (see XY v ISA [2011] UKUT 289 (AAC) at [40]).  The BDPD demonstrated that ISA had undertaken a careful assessment of the risk factors in VT’s case.  By accepting the caution (with the benefit of legal advice), VT had acknowledged his guilt of the offence.  The transcript of the police interview did not add anything of substance; it was entirely consistent with the police’s replies to ISA’s questions and with VT’s own account.

33.	Furthermore, Ms Davies submitted that, having made those findings of fact, the decision as to whether it was appropriate to bar VT (or rather, strictly, to maintain the bar for VT) was a question that, under the statutory scheme, fell with the exclusive ambit of ISA.  She argued that the Upper Tribunal panel which had recently decided the case of SB v ISA [2011] UKUT 404 (AAC) to the contrary had fallen into error. The panel in that case had decided that the decision to bar on the facts was disproportionate and involved an error of law, in effect enabling the Upper Tribunal to substitute its own decision.  In her submission, it was important to distinguish between the doctrine of proportionality in the ECHR/Human Rights Act context and in the domestic context.  Absent any Convention issues, a decision could only be disproportionate in the domestic context if it fell into one of the traditional categories of error of law, e.g. the traditional concepts of unreasonableness, irrationality or perversity.  In any event, on the facts of this case, involving VT, ISA had demonstrably acted in a proportionate fashion, concluding that there was no reason to keep VT on the adults’ barred list whilst maintaining his inclusion on the children’s list.

34.	Ms Davies also noted that we had had the advantage of hearing VT give evidence, answering questions both from her and from the panel.  She submitted that VT seemed to think that he had accepted the caution on the basis of a “technicality”.  Moreover, he had not participated in a sex offenders’ treatment programme or undergone any therapeutic work on the avowed basis that, in his view, he did not need it.  He had not expressed a clear and full acknowledgement of his own wrongdoing and, she submitted, we could not be sure that he would not repeat the offences.  In those circumstances, and given the importance attached to the issue of public confidence, ISA’s decision that it was appropriate for him to remain on the children’s list, preventing him from working with children on a paid or voluntary basis, was entirely proportionate. 

Our conclusions on the appeal against ISA’s decision

35.	In this case the Upper Tribunal had originally granted permission to appeal (at that stage, rather as for VT, with only partial sight of all the documentation) on the basis that it was arguable that ISA had erred in law by (1) failing to make appropriate findings of fact beyond the simple fact that VT had accepted a caution; and (2) failing to ask VT if he wished to provide a copy of the transcript of his police interview before reaching its decision.  In the course of the written submissions, a third potential ground of appeal emerged, namely that (3) ISA may have erred in law by departing from the stated policy in its own guidance that there was a presumption not to bar in the absence of “definite concerns” across at least two areas of the SJP and then by failing to refer the case to the Board for consideration and final decision in accordance with that guidance.

36.	As to (1), we accept – as was also held in XY v ISA [2011] UKUT 289 (AAC) – that the appeal to the Upper Tribunal is an appeal against ISA’s underlying decision, not the decision as communicated in somewhat stark terms in the decision letter itself.  We acknowledge, therefore, having seen the BDPD and the SJP matrix that ISA plainly did make further findings of fact, beyond the simple fact that VT had accepted a caution.  

37.	As to (2), we can understand VT’s frustration at the limited guidance he received from ISA about the sort of information which might be provided by way of his representations. As he put it, “After receiving the letter inviting me to provide reasons as to why I should be removed from their list, I telephoned them and asked them what information they would require, they said they couldn’t tell me, so how was I supposed to know what was required?”  In our view it would have been desirable for ISA to have that information to hand before reaching its decision, if only because the transcript of a (relatively) contemporaneous police interview could provide some insight into the individual’s responses.  We also note the unfortunate ambiguity in ISA’s letter of 5 November 2010 about the closing date for further representations.  However, in the light of our next finding, we need not resolve the point but are inclined to take the view that there was no error of law by ISA on this matter.

38.	As to (3), we certainly agree with Ms Davies’s candid admission that she is in some difficulty.  ISA had a clearly stated policy expressed in mandatory terms that was contained in both guidance published to the world at large and in internal protocols.  The guidance was that normally a decision to bar would require definite concerns across at least two areas of the SJP.  In the absence of such a profile, the decision to bar could be maintained but only if the case was taken to line management and then to the Board for a final decision.  In VT’s case the presumption did not apply, the case was not escalated to the Board as required and no adequate explanation was given for that departure from published guidance.  In our view, this failure alone amounts to a clear error of law on the part of ISA.

39.	Before going any further, we should state that we do not accept VT’s argument that there is necessarily an inconsistency between (a) the CPS/police decision to offer him a caution rather than to prosecute and (b) ISA’s decision that he represents a risk to children.  In short, we accept Ms Davies’s submissions on this aspect of the case (at [30] above).   We think VT is reading too much into the police statement referred to at the end of [11] above.  Put simply, the police were saying (rather inelegantly) that they simply had no other information as to whether or not VT posed a risk to vulnerable groups.  They were not making a categorical statement that he posed no such risk.  However, that simply leaves unanswered the question as to whether in fact VT does pose such a risk.  We return to this below.

The consequences of the Upper Tribunal’s conclusion on the appeal

40.	According to section 4(5) of the 2006 Act (as amended), “Unless the Tribunal finds that ISA has made a mistake of law or fact, it must confirm the decision of ISA.”  It follows that as we have found that ISA had made a mistake of law (see [38] above), we cannot simply confirm its decision.

41.	Section 4(6) and (7) of the 2006 Act then provide as follows:

“(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.”

42.	According to section 4(6), we must therefore decide whether to direct ISA to remove VT from the list or in the alternative to remit the matter to ISA for a new decision.  Ms Davies’s submission was that, in the event we found an error of law on the part of ISA, the only possible course of action open to us in the circumstances of this case was a remittal to ISA.  She pointed out that by virtue of section 4(3), “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” and so was outwith the right of appeal in section 4(2).  Appropriateness was, she argued, therefore exclusively a matter for expert determination by ISA.  The possibility of the Upper Tribunal directing ISA to remove a person from the list, as contemplated by section 4(6)(a) was not inconsistent with this principle.  She gave two illustrations of where such a direction might be entirely proper.  The first was where it transpired that the allegations made in respect of an individual in fact related to a completely different person who by chance shared the same name.  The second was where ISA’s decision had related to the right individual, but the only basis for listing was an allegation of misconduct accepted by ISA but which had been subsequently proven, in the course of an appeal to the Upper Tribunal, to be completely unfounded.  In both those situations, she submitted, it would be otiose for the Upper Tribunal to remit the case to ISA for reconsideration.

43.	VT, appearing for himself, was understandably not in a position to counter this sophisticated legal argument.  However, this is an inquisitorial and not an adversarial jurisdiction.  We are not persuaded by Ms Davies’ submissions on the scope of section 4(6)(a).  In our view, if we have found an error in ISA’s decision, we may in effect re-make the decision ourselves.  We do not believe that we are confined to the very narrow situations envisaged by Ms Davies’ two examples.  We have reached that conclusion for a number of reasons.

44.	First, we acknowledge that section 4(3) of the 2006 Act provides that appropriateness is not a question of law or fact.  However, that statement is prefaced by the qualifying phrase “For the purposes of subsection (2)”.  Section 4(2) in turn deals with the possible grounds of appeal by an individual against any of the decisions made by ISA and listed in section 4(1).  This undoubtedly suggests that if ISA has made no mistakes of law or fact, then a simple difference of opinion as to whether it is appropriate to bar is not itself susceptible of appeal to the Upper Tribunal.  However, that does not necessarily mean that once valid grounds for appeal have been shown, then the issue of appropriateness is necessarily “off limits” to the Upper Tribunal.  For example, if that were the case, one might expect subsection (3) to start with the qualifying phrase “For the purposes of subsection (2) above and subsection (6) below”.

45.	Second, we take the view that, insofar as there is any ambiguity in the drafting of section 4 as a whole, this issue should be resolved in favour of the individual.  Obviously we accept that the overriding purpose of the 2006 Act is ultimately to protect children and vulnerable adults.  However, this section is dealing with an individual’s rights of appeal against a decision by a State agency which may have significant repercussions for that person.  In that context we would require very clear statutory wording to arrive at the construction urged on us by Ms Davies, which would effectively shackle any proper merits review of ISA decisions.  There is, moreover, nothing in the wording of section 4(6) to suggest that section 4(6)(a) should be read in the very narrow sense contemplated by her two examples.

46.	Third, we believe that our approach is more consistent with the emerging case law on the scope of the 2006 Act.  For example, in R (on the application of Royal College of Nursing & Ors,) v Secretary of State for the Home Department & Anor [2010] EWHC 2761 (Admin); [2011] 117 BMLR 10, Wyn Williams J. held that “all that section 4(3) precludes is an appeal against the ultimate decision when that decision is not flawed by any error of law or fact” (at [104]).

47.	Fourth, we consider that our interpretation is more consistent with the principle that a specialist tribunal, such as the Upper Tribunal sitting in a panel comprised of a judge and two expert members (appointed because of their extensive professional experience in the field) is “standing in the shoes of the original decision-maker”.  It does not seem to us right that the powers of an expert tribunal hearing an appeal under the 2006 Act should be limited in quite the same way as, for example, is the role of the High Court in hearing conventional judicial review proceedings.

48.	Fifth, and finally, we note that ISA only very rarely holds oral hearings itself (see the discussion in XY v ISA [2011] UKUT 289 (AAC) at [85]-[108]).  Of course, we acknowledge that the value of testing evidence at an oral hearing can sometimes be exaggerated.  As the late Lord Bingham of Cornhill observed in his book entitled The Business of Judging (2000), “the current tendency is (I think) on the whole to distrust the demeanour of a witness as a reliable pointer to his honesty” (p.9).  The same point was made by Lord Dyson in the Supreme Court’s decision in R (On the application of G) v The Governors of X School [2011] UKSC 30.  Lord Dyson also observed as follows (at [80]):

“There must be very few cases where the lack of an oral hearing (with examination and cross-examination of witnesses) would make it unduly difficult for the ISA to make findings of fact applying its own judgment to the material. It is only in very few cases that a decision-making body is faced with a conflict of evidence which it resolves solely or even primarily on the basis of the demeanour shown by the witnesses. There is usually something else.”

49.	We certainly accept the proposition that cases in which the outcome of the whole case turn on the demeanour of a witness alone will be relatively unusual.  As Lord Dyson states, “there is usually something else.”  However, we consider that this is a case where the absence of an oral hearing before ISA has in fact made it “unduly difficult for the ISA to make findings of fact applying its own judgment to the material.”  This is illustrated by the SJP matrix.  It will be recalled that the ISA caseworker concluded that there was simply “no information” about 15 of the 22 factors.  We have considerable reservations about a decision that a person represents a risk to children when there are no “definite concerns” listed at all and “some concerns” about just 4 of the 22 factors.

The Upper Tribunal’s disposal of this appeal

50.	For the reasons explained above, we consider that we have the jurisdiction under section 4(6)(a) of the 2006 Act to make a decision directing ISA to remove VT from the children’s barred list.  In our view we have a discretion to exercise when deciding which alternative course of action under section 4(6) to adopt.  That discretion must be exercised judicially.  We have therefore carefully considered whether we should allow VT’s appeal, set aside ISA’s decision and remit the matter to ISA along with findings of fact (under section 4(6)(b) and 4(7)).  However, for the reasons that follow we have concluded that VT does not represent a risk to children.  In those circumstances we do not think that is sensible to make detailed findings of fact to that effect only then to remit the matter back to ISA for further consideration, even accepting that ISA’s Board has (through the failure of its own internal processes) not considered VT’s case.  That course of action would not be fair on VT.  We seriously doubt whether any further material evidence will emerge if the matter is remitted (VT told us that he has been in recent correspondence with the CPS but we suspect that is unlikely to produce anything helpful by way of a risk assessment).  Crucially, we do not think that the interests of protecting children would be in any way undermined by proceeding to take the decision ourselves.  Instead, therefore, we make our own decision under section 4(6)(a) for the following reasons.

51.	We stress that we have had the opportunity both to review all the documentation before ISA along with the BDPD itself as well as hearing direct from VT in person.  We can understand why, on the limited information before ISA on the papers, there were so many “no information” findings in the SJP.  We also agree with ISA’s conclusion that there were no “definite concerns” flagged up against any of the factors in the SJP.  We recognise that the SJP is a useful tool for caseworkers in the risk assessment process.  However, the point of the SJP is to arrive at an overall or global assessment of risk – is this person a risk to children or vulnerable adults?

52.	We remind ourselves that the purpose of the 2006 Act is to protect children (and vulnerable adults), and not to act as a sanction or further punishment.  The critical question for us is therefore whether VT represents a risk to children.  In our judgment he does not.  We find as a fact that it is extremely unlikely that he would in any way ever deliberately harm or injure a child with whom he is in direct personal contact.  This would be contrary to his many years of professional practice and to his strong religious beliefs.  We also find it highly unlikely that he would repeat the offence for which he accepted the caution.  We find that the indecent images were viewed over a relatively short period of time when he was going through a difficult time in his personal life.  There were no obvious aggravating factors, such as payment for access to images, subscribing to a network or any other form of distribution of the images in question.  There is no history of alcohol or substance abuse.  In addition, VT had voluntarily ceased viewing the sites in question before the police visited him.

53.		The assessment of risk must be taken in the context of all the evidence.  Having heard from VT, we are satisfied that he is a proud man who has found it difficult to come to terms with what he did during that limited period in 2008.  His strong sense of his own self-image and personal defence mechanisms have made it difficult for him to acknowledge that viewing indecent images on the web is in itself an abusive activity.  This was demonstrated early in the hearing before us when he sought to make a semantic distinction between children being exploited and children being abused.  However, even at the outset of the hearing he had also accepted that he had intentionally visited the sites in question and that it had been wrong of him to view the images.  We were somewhat surprised when he told us (but we also accept) that he had not received child protection training as part of his job.  We suspect that the lack of such training has contributed to a certain lack of understanding of the full nature of child abuse.  We also concluded that to some extent personal pride had hindered full insight into his own behaviour.  However, we are satisfied that he had never engaged in any abusive behaviour before the period in 2008 and we are also satisfied that he has not done so since.  We accept his submission that this was an isolated period of offending.  We also note that he has retired from work and has not indicated any wish to work with children in a paid or voluntary capacity.  The very fact that he has accepted a caution will in any event be revealed on any Criminal Records Bureau (CRB) check.

54.	In all those circumstances we have reached the conclusion that VT does not pose a risk to children.  We make that as a finding of fact. It is well established that, for example, a finding in care proceedings that a child is at risk of harm is a finding of fact.  Likewise, a finding in asylum proceedings that a person is subject to a real and substantial risk of persecution in another country is a finding of fact.  The same principle applies in the present context.

55.	Given that finding, is it appropriate for VT to remain on the children’s barred list? We naturally recognise the harm and abuse involved in accessing child pornography on the internet, as did the former Care Standards Tribunal in its case law.  We have also had regard to the need for public confidence in the listing regime.  In our judgement, given our finding that VT does not himself represent a risk of harm to children, the only possible reason for maintaining his inclusion on the list is the question of public confidence.  However, in that context we note the observation in ISA’s Guidance Notes that “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” (at paragraph 8.6).  We agree with that proposition.  For the reasons set out above, we also do not believe that this is such a “rare and highly exceptional case”.  Rather, we take the view that a well-informed member of the public would take the view that ISA’s normal presumption in applying the SJP should have applied.  Therefore, in the light of our findings, we find that it is not appropriate for VT to remain on the children’s barred list.

Conclusion

56.		We therefore allow the appeal by VT for the reasons set out above and direct ISA to remove VT from the children’s barred list.  

Signed on the original				Nicholas Wikeley
on 31 October 2011					Judge of the Upper Tribunal

							Susan Last
Member of the Upper Tribunal

							Graham Harper
Member of the Upper Tribunal