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Neutral Citation Number:	2015 UKUT 380 AAC
Reported Number:
File Number:	V 1 2012
Appellant:	Re X (Reporting restriction order: Variation)
Respondent:
Judge/Commissioner:	Judge N J Wikeley
Date Of Decision:	15/06/2015
Date Added:	07/07/2015
Main Category:	Safeguarding vulnerable groups
Main Subcategory:	Children's barred list
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2016] AACR 6. Disclosure and Barring Service – reporting restriction order – application by third party to vary order The local authority had dismissed Mr X, a teacher, for gross misconduct in respect of his inappropriate contact with a teenage pupil and referred the case to the Disclosure and Barring Service (DBS). The DBS concluded that three allegations were substantiated and placed Mr X’s name on the Children’s Barred List. He appealed against that decision to the Upper Tribunal (UT) and it concluded that there had been inappropriate contact between him and the pupil, both before and after she had left school. In dismissing the appeal, a reporting restriction order was imposed by the UT under rule 14(1)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008 to protect the identity and anonymity of, among others, the pupil concerned (not specifically to protect Mr X’s identity). The local authority subsequently sought the UT’s permission to disclose the decision, including the identities of those involved, to the police and the Crown Prosecution Service (CPS) to see whether there were any grounds to reinvestigate any potential offence (a previous police investigation was not pursued on CPS advice). Mr X’s representations to the UT against disclosure essentially raised Article 6 (right to a fair trial) and Article 8 (right to privacy and family life) objections under human rights legislation. Held, allowing the application, that: 1. the Court of Appeal’s guidance in Re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76; [1997] 2 WLR 322, sub nom Re EC (Disclosure of Material) [1996] 2 FLR 725, as developed and applied in Re X and Y (Children: Disclosure of Judgment to Police) [2014] EWHC 278 (Fam) provided a valuable checklist and a good starting point for deciding whether to modify a reporting restriction order in this case (paragraphs 22 to 25); 2. the UT had discretion in deciding whether or not to modify a reporting restriction order so as to permit disclosure, the exercise of which involved a balancing process in the respective weighting of the factors for and against disclosure. For the purposes of this balancing exercise the onus rested upon the body seeking a modification of the reporting restriction order to show why that relaxation should take place. However, the balance at the outset was tilted in terms of disclosure, given the starting point that the UT decision was a public document, that there was a general public interest in transparency in court and tribunal proceedings and, in the instant case, the limited nature of the disclosure sought by the local authority (paragraphs 33 to 35); 3. given the extra safeguards in any future criminal proceedings, no real risk arose to Mr X’s Article 6 right to a fair trial despite his not having been advised about the privilege against self-incrimination or warned of his right not to answer questions at the original UT hearing. There was no possible breach of his Article 8 (right to privacy and family life). The possible re-opening of the previously closed police investigation would obviously cause his family further stress. But Article 8 was a qualified, not an absolute, right and interference by public authorities in those rights was permitted “for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others” (paragraphs 37 to 38); 4. the balance in this case clearly fell in favour of disclosure to the police and CPS, as the factors in favour of such disclosure were both more numerous and weightier than the counter arguments (paragraph 39). The Upper Tribunal varied its original reporting restriction order under rule 6(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008.
Decision(s) to Download:	[2016] AACR 6ws.doc