Factual and Procedural Background
The Disclosure and Barring Service ("the DBS") is an Executive Non-Governmental Public Body established in 2012 under the Protection of Freedoms Act 2012, replacing the Criminal Records Bureau and the Independent Safeguarding Authority ("the ISA"). The DBS maintains the Children's and Adults' Barred Lists.
The Appellant, a General Practitioner since November 2000, faced two complaints in 2001 alleging sexual abuse. Although not criminally charged, the Professional Conduct Committee ("the PCC") of the General Medical Council ("the GMC") found the allegations proved, resulting in a 12-month suspension from the Medical Register.
In August 2003, the PCC allowed the Appellant to return to practice under supervision. Subsequently, it was alleged that the Appellant deliberately misled the PCC, leading to removal from the Medical Register effective April 2006. The ISA investigated and decided in August 2011 to include the Appellant in the Children's and Adults' Barred Lists.
The Appellant appealed to the Upper Tribunal ("the UT") against the 2011 decision. The UT found the ISA had erred and remitted the matter for reconsideration. The DBS, successor to the ISA, decided in February 2014 to continue including the Appellant in the Barred Lists. The Appellant sought permission to appeal this decision to the UT, which was refused in October 2014. Subsequent attempts to obtain permission to appeal to the Court of Appeal were also refused by the UT in November 2014. The Appellant now applies to the Court of Appeal for permission to appeal the UT's refusal.
Legal Issues Presented
- Whether the Court of Appeal has the power to grant permission to appeal against a refusal of permission to appeal by the Upper Tribunal against a decision of the DBS.
- If the Court has such power, whether it should exercise it in this case.
Arguments of the Parties
Appellant's Arguments
- The broad language of section 13(1) and (2) of the Tribunals, Courts and Enforcement Act 2007 ("the TCEA") supports a right to appeal the UT's refusal of permission to appeal.
- The principle in Lane v Esdaile as interpreted in Kemper Reinsurance v Minister of Finance does not exclude appeals in this context.
- The Wellcome Trust case was distinguished on the basis that the DBS is an Executive Non-Governmental Public Body, not a tribunal of law.
Respondent's Arguments
- The principle established in Lane v Esdaile that decisions refusing leave to appeal are final and not subject to further appeal applies here.
- The Wellcome Trust decision supports that refusals of permission to appeal by the UT are not appealable.
- Kemper Reinsurance is distinguishable because it concerned judicial review, not appeals.
- The statutory language does not expressly provide for appeals against refusals of permission to appeal in this context.
- The policy underlying leave requirements is to prevent frivolous or unnecessary appeals.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Lane v Esdaile [1891] AC 210 |
Decisions refusing leave to appeal are final and not subject to further appeal unless expressly provided. |
The Court applied this principle as the foundational rule governing appeals against refusals of permission to appeal. |
| In re Housing of the Working Classes Act 1890, Ex parte Stevenson [1892] 1 QB 609 |
Confirmed the finality of decisions granting or refusing leave to appeal. |
Supported the application of the Lane v Esdaile principle to statutory leave provisions. |
| Kemper Reinsurance v Minister of Finance [2000] 1 AC 1 |
Distinguished judicial review applications from appeals; leave to apply for judicial review does not exclude appeals against refusal of leave. |
The Court distinguished Kemper to hold that the principle excluding appeals against refusals of leave applies specifically to appeals, not judicial review. |
| The Wellcome Trust Limited v 19-22 Onslow Gardens Freehold [2012] EWCA Civ 1024 |
Confirmed that there is no right of appeal against refusals of permission to appeal to the UT in the context of appeals from the Leasehold Valuation Tribunal. |
The Court relied on this case to reject the Appellant's argument that the Court of Appeal had jurisdiction to grant permission to appeal against the UT's refusal. |
| Dhillon v Secretary of State for the Home Department (1987) Cr App R 14 |
General application of the principle that refusals of leave to appeal are final. |
Cited to reinforce the longstanding nature of the principle excluding appeals from refusals of leave. |
| Campbell v The Queen [2010] UKPC 26; [2011] 2 AC 79 |
Special leave to appeal to the Privy Council can be granted even after refusal of leave to appeal by lower courts; the rule in Lane v Esdaile does not apply to special leave. |
The Court held this precedent was not applicable to the statutory context of the TCEA and the UT's refusal of permission to appeal. |
| R (Cart) v Upper Tribunal [2011] UKSC 28; [2012] 1 AC 663 |
Court should be cautious in finding legal error in tribunal decisions; appeals to this court are limited to points of law. |
Emphasized the standard of review applicable to the Appellant's case on appeal. |
| R v Secretary of State for the Home Department, ex parte Zulfikar [1996] C.O.D 256 |
Parole Board's approach to denial of guilt in risk assessment. |
Discussed in relation to whether the DBS erred in placing weight on the Appellant's denial of allegations. |
| R v Parole Board, ex parte Oyston [2000] Prison LR 45 |
Denial of guilt is a factor in risk assessment but not necessarily conclusive. |
Used to reject the Appellant's argument that the DBS improperly treated denial of guilt as decisive. |
| R (on the application of Wright) v Secretary of State for Health [2009] UKHL 3; [2009] 1 AC 739 |
Article 8 ECHR engaged in barring decisions; assessment of proportionality and discretion. |
Applied to assess whether the DBS decision breached the Appellant's Convention rights. |
Court's Reasoning and Analysis
The Court began by examining the statutory framework governing appeals from the First-tier Tribunal ("FTT") to the Upper Tribunal ("UT") and from the UT to the Court of Appeal under the Tribunals, Courts and Enforcement Act 2007 ("the TCEA"). The key issue was whether the Court of Appeal has jurisdiction to grant permission to appeal against the UT's refusal to grant permission to appeal.
The Court referred extensively to the longstanding principle established in Lane v Esdaile and related cases, which holds that decisions to grant or refuse leave to appeal are final and not subject to further appeal unless expressly provided by statute. This principle is grounded in the policy of preventing frivolous or unnecessary appeals and preserving judicial resources.
The Court acknowledged the Appellant's reliance on Kemper Reinsurance, which distinguished judicial review applications from appeals, holding that refusals of leave to apply for judicial review may be subject to appeal. However, the Court found Kemper distinguishable because the present case involves appeals, not judicial review.
The Court also considered The Wellcome Trust decision, which held that the Court of Appeal lacked jurisdiction to hear appeals against refusals of permission to appeal by the UT in a similar statutory context. The Court found no compelling reason to distinguish that case here, despite the DBS being an Executive Non-Governmental Public Body rather than a tribunal of law.
The Court rejected the Appellant's argument that the broad statutory language in section 13 of the TCEA implied a right of appeal against refusals of permission to appeal, emphasizing that clear and express statutory language is required to displace the established principle.
On the merits, the Court reviewed the DBS decision to continue including the Appellant in the Barred Lists, noting the detailed reasoning and consideration of evidence, including the GMC findings, psychiatric reports, and the Appellant's behavior. The Court found no legal error in the UT's refusal to grant permission to appeal.
Accordingly, even if jurisdiction existed to hear the appeal, the Court would refuse permission to appeal on the merits.
Holding and Implications
The Court held that there is NO JURISDICTION in the Court of Appeal to grant permission to appeal against the UT's refusal to grant permission to appeal against the DBS decision.
As a result, the application for permission to appeal to the Court of Appeal is refused. The Court did not set any new precedent beyond affirming the established principle that refusals of permission to appeal are final absent clear statutory language to the contrary. The direct effect is that the Appellant's recourse to further appeal on this issue is barred.