O'Connell v Secretary of State for the Home Department & Anor

At the permission stage of a judicial review alleging incompatibility with Article 8, the court may grant permission where the challenge is arguable even though the claimant has not yet produced evidence. A declaration of incompatibility is a serious constitutional remedy and should not be determined without an evidential basis. The parties should have an opportunity to place evidence before a first-instance judge. The Court of Appeal should not ordinarily assess that evidence for the first time. Compatibility issues may have a general public importance beyond the individual claimant’s merits, but the court need not embark on an issue where the case is plainly unmeritorious. The proper course was therefore to grant permission and allow the case to proceed in the Administrative Court.

The appellant, a care worker, was included in the Protection of Vulnerable Adults and Protection of Children barred lists after disciplinary proceedings. Her appeals to the First-tier Tribunal failed. She sought judicial review and a declaration that the minimum barring provisions in the Baring Procedure Regulations 2008 and SVGA 2006 were incompatible with Article 8.

Mr Ockelton, sitting as a deputy High Court judge, refused the application. Sir Richard Buxton refused permission on paper. On renewal, the Court of Appeal considered whether the absence of evidence and the weak prospects of removing the appellant from the lists prevented permission, and whether the case should be retained in the Court of Appeal. The central issue was whether the compatibility challenge could properly proceed as a general question rather than depend on the appellant’s individual merits.

1. Permission. The renewed application was granted. The compatibility challenge was arguable despite the contrary decision in R (The Royal College of Nursing) v SSHD [2010] EWHC 2761 (Admin) and the absence of evidence. At the permission stage, the appellant was not required to produce evidence where the issue concerned legislative policy, the relevant evidential burden was arguable to lie with the Secretary of State, and the evidence could not properly have been produced before the tribunal.
2. General importance. The authorities concerning F (a child) established that compatibility questions may have a general public importance and do not always depend on the individual claimant’s merits. There was nevertheless a limit: where a case plainly had no merit, the court should not embark on the compatibility issue. This case was not plainly unmeritorious.
3. Evidence and proportionality. A declaration of incompatibility is a serious constitutional step and should not be made without an appropriate evidential foundation. The Article 8.2 issue required assessment of the legitimate aim, the importance of the right, and the extent of the interference. The observations in Wood v The Commissioner of Police for the Metropolis [2009] EWCA Civ 414 and R (F & Thompson) v SSHD [2010] UKSC 17 made the evidential question arguable, but the Court of Appeal did not determine compatibility on the merits.
4. Proper forum. The Court of Appeal should not act as a first-instance court by assessing evidence produced for the first time on appeal. Although CPR 52.16 permitted the case to be retained, it was better for the claim to proceed in the Administrative Court, where evidence could be heard and assessed. The High Court might confirm or depart from the earlier decision, with a further appeal available if necessary. The order was that the application was granted.

• Court of Appeal (Civil Division): Sir Richard Buxton refused permission on the papers. On renewal, Lord Justice Pill granted permission and directed that the case proceed in the Administrative Court rather than be retained under CPR 52.16. [2011] EWCA Civ 1537
• High Court, Queen’s Bench Division, Administrative Court: Mr Ockelton, sitting as a deputy High Court judge, refused the judicial review application.