Judge of the Upper Tribunal, Administrative Appeals Chamber (lead on Independent Safeguarding Authority (ISA) work))
9.30am: I arrive at the tribunal and meet the two specialist tribunal members I am sitting with on the panel. One has a background in social work and the other is an academic with experience of child protection issues. We have all reviewed the case papers prior to the hearing. The appellant is representing himself and the respondent (ISA) is represented by counsel.
As well as hearing appeals from the First-tier tribunals, the Upper Tribunal has first appeal jurisdiction for decisions taken by the ISA. The ISA is a statutory body whose role is to place people on lists prohibiting them from working with children and/or vulnerable adults. This is a new jurisdiction and today's hearing is only the third case to be heard. Our job is to determine if there has been an error of law or mistake of fact in a decision they have made.
The appellant was placed on the ISA lists after being convicted of viewing and distributing pornographic images of children through an internet forum. He was sentenced to 36 weeks imprisonment, suspended for 24 months, and placed on the Sex Offenders Register for 10 years. There was also a sexual offences prevention order (SOPO) imposed, which included a ban on working with children up to the age of 16.
The appellant submitted that placing him on the ISA barred lists is disproportionate and accordingly an error of law.
We decide that as the appellant does not have legal representation, he should be given the opportunity to hear the case against him first. We also decide that to be efficient, the application for permission to appeal and the full appeal should be 'rolled-up' into one hearing.
10.40am - The hearing starts. Counsel for the ISA makes it clear that the offences for which the appellant was convicted led to his automatic inclusion, under statute, on the ISA barred lists. He had the right to make representations as to why he should be removed, which he did, arguing that placing him on the lists was disproportionate because he had committed non-contact offences and the public was already adequately protected by the orders made in court.
Noon - The appellant outlines how being on the ISA's children barred list has prevented his further rehabilitation. For example he has been unable to do a number of voluntary jobs, such as teaching English to 16-18-year-olds.
His argument is that being on the list is disproportionate because the Probation Service assessed him as a low risk of re-offending and his overall level of risk to be low; he committed a non-contact offence; he has done everything the Probation Service requested; and has attended self-help groups.
12.50pm -Submissions by the parties and questions from the tribunal.
1.10pm - The hearing ends. I explain that the tribunal will send a written decision to the appellant and the ISA in around two weeks.
The panel has a quick break for lunch.
1.30pm - We decide that it is arguable there has been an error of law on the grounds of proportionality - it is difficult to say otherwise after a hearing of more than two hours - so permission for appeal is granted.
We move on to the substantive appeal, reviewing the evidence and reading the relevant case law. We decide the ISA has made a disproportionate decision - and therefore an error of law. They did not give weight to matters which should have been taken into account and there was insufficient evidence the appellant posed an unacceptable risk. We decide to quash the ISA decision and direct that the appellant be removed from the children barred list.
This is an important decision. It is the first case in which the Upper Tribunal has over-turned a decision by the ISA.
I promise to circulate a draft written decision to the specialist tribunal members for comment in the next couple of days.
3.30pm - I leave the tribunal and head to my office for an hour to catch up on some paper work for other ongoing cases.
4.30pm - I head home to write the decision for a mental health appeal I heard yesterday.
David Pearl is also a Senior Circuit Judge sitting in the Principal Registry of the Family Division; a Deputy High Court Judge sitting in the Administrative Court hearing judicial reviews; a Judge of the First-tier Tribunal, Health Education and Social Care Chamber (Mental Health) and a former JAC Commissioner.