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Neutral Citation Number:	2013 UKUT 103 AAC
Reported Number:
File Number:	V 1089 2011
Appellant:	SR
Respondent:	Disclosure & Barring Service
Judge/Commissioner:	Judge C G Ward
Date Of Decision:	25/02/2013
Date Added:	15/03/2013
Main Category:	Safeguarding vulnerable groups
Main Subcategory:	Children's barred list
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2013] AACR 31. Children’s barred list – transferability of offences – no automatic presumption in favour of barring – failure to apply structured judgment process an error of law 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(s) to Download:	[2013] AACR 31ws.doc