SJB v Independent Safeguarding Authority

Factual and Procedural Background

On 28 March 2008, the Appellant was convicted at a Crown Court of an offence of sexual activity with a child under 18 years in an abuse of a position of trust under section 16 of the Sexual Offences Act 2003. Subsequently, on 15 May 2008, the Appellant was sentenced to a Community Order with supervision for two years and disqualified from working with children under section 28 of the Criminal Justice and Court Services Act 2000. The Appellant was also required to comply with Part 2 of the Sexual Offences Act 2003 for five years.

The Appellant was a full-time teacher at a school where the victim, a 17-year-old boarding pupil, was present. The incident occurred during a social event at the boarding house. Following the conviction and Disqualification Order, the Secretary of State issued a direction under section 142 of the Education Act 2002, prohibiting the Appellant from working with children and including his name on List 99.

The Appellant appealed the Disqualification Order to the Court of Appeal, which on 17 October 2008 quashed the Disqualification Order and replaced it with a Sexual Offences Prevention Order (SOPO) prohibiting unsupervised contact with females under 18. The Appellant failed to notify the Secretary of State of this decision.

In October 2009, the Secretary of State's duties were transferred to the Independent Safeguarding Authority (ISA), which migrated individuals from List 99 to the Children's Barred List. The Appellant was informed of this migration in November 2009 and given an opportunity to make representations. The Appellant made representations in late 2009, which were rejected by the ISA in January 2010.

The Appellant sought permission to appeal to the Upper Tribunal against the ISA's decision not to remove him from the Children's Barred List. This appeal was limited to claims that the ISA made a mistake of fact or law.

Legal Issues Presented

1. Whether the ISA was correct to migrate the Appellant onto the Children's Barred List despite the Court of Appeal quashing the Disqualification Order and replacing it with a narrower SOPO.
2. Whether the Appellant could make representations or appeal against his inclusion on the Children's Barred List based on the quashing of the Disqualification Order.
3. Whether the Appellant's procedural and substantive rights, including under Article 6 of the European Convention on Human Rights, were infringed by the ISA's decision.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that the Court of Appeal's decision quashing the Disqualification Order should have been communicated to the Secretary of State as the original conviction was.
• He argued that the ISA's failure to consider the Court of Appeal decision during migration deprived him of the ability to challenge his inclusion on the Children's Barred List properly.
• The Appellant accepted the SOPO provided sufficient protection and did not seek to challenge it but submitted that the broader bar imposed by the Children's Barred List was excessive and inconsistent with the Court of Appeal's narrower order.

ISA's Arguments

• The ISA argued it was legally obliged to migrate the Appellant onto the Children's Barred List as there were no outstanding representations, appeals, or reviews at the time of migration.
• The ISA maintained that representations concerning the quashing of the Disqualification Order were outside their scope and should have been raised with the Secretary of State earlier.
• The ISA asserted that the Appellant lost the right to seek a review under the former regime once the transitional provisions applied, and issues of fairness or procedural disparity were matters for judicial review, not this appeal.
• They also submitted that the Appellant's Article 6 rights were not infringed as the right to challenge the original order existed before migration and the appeal rights were properly extinguished upon inclusion in the new list.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Vetterlein v Hampshire County Council and Hampshire Waste Services Ltd [2001] EWHC Admin 560	Approach to permission to appeal and judicial review, allowing determination on merits where all arguments are before the court.	The court applied this approach to grant permission to appeal and proceed to substantive determination of the appeal.
Attorney-General's Reference (No 18 of 2011) [2011] EWCA Crim 1300	Effect of abolition of Disqualification Orders and automatic barring under Safeguarding Vulnerable Groups Act 2006.	Referenced to explain the legislative context of disqualification orders and their repeal.
R (on the application of G) v The Governors of X School [2011] UKSC 30	Review of ISA's barring regime and its compatibility with human rights.	Noted by the court as relevant background but not directly applicable as the Appellant had rights to make representations before migration.
R (on the application of Royal College of Nursing and others) v Secretary of State for the Home Department [2010] EWCH 2761 (Admin)	Declaration of incompatibility regarding automatic barring without prior representation rights under Human Rights Act 1998.	Referenced to distinguish that the Appellant had rights to make representations prior to November 2009, so this case did not apply.

Court's Reasoning and Analysis

The court examined the legislative framework governing the inclusion of individuals on List 99 and the subsequent Children's Barred List, focusing on the transitional provisions under the Safeguarding Vulnerable Groups Act 2006 and the associated regulations. The Appellant qualified for inclusion on List 99 under two conditions: by reason of conviction under section 16 of the Sexual Offences Act 2003 and by virtue of the Disqualification Order.

The Court of Appeal's quashing of the Disqualification Order did not automatically negate the Appellant's inclusion because the conviction condition remained valid. The Secretary of State was obligated to revoke the section 142 direction if the Disqualification Order ceased to have effect, but this was complicated by the presence of the other condition.

The court found that the ISA was bound by the transitional provisions requiring the migration of the Appellant onto the Children's Barred List and limiting the scope of representations to matters related to the wider bar, excluding reconsideration of the quashed Disqualification Order. The Appellant's failure to notify the Secretary of State of the Court of Appeal decision was a significant factor, as the ISA could not consider those grounds.

The court acknowledged the lack of communication between the Secretary of State and ISA but emphasized that speculation about the Secretary of State's potential actions was not sufficient to overturn the ISA's lawful decision. The court also considered the Appellant's Article 6 rights and concluded that the right to challenge existed under the former scheme and was properly extinguished upon migration.

Finally, the court recognized that while the SOPO provides adequate protection, the Children's Barred List imposes broader restrictions. However, the court was bound by the statutory framework and transitional provisions, which mandated the ISA's decision.

Holding and Implications

The court granted permission to appeal but ultimately DISMISSED the appeal.

The direct effect is that the Appellant remains included on the Children's Barred List, subject to the restrictions therein. No new precedent was established by this decision. The court invited the ISA to consider exercising its exceptional review powers to permit an earlier review of the Appellant's inclusion, taking into account the Court of Appeal's decision. Additionally, forthcoming legislative changes may provide the Appellant with further opportunities to challenge the barring decision in the future.