Khakh v Independent Safeguarding Authority

A breach of a mandatory statutory duty does not make a subsequent safeguarding-listing decision invalid unless Parliament can fairly be taken to have intended that consequence. The court must assess the function of the requirement within the statutory scheme, the protection of children and vulnerable adults, the independence of the listing machinery, and any prejudice caused by the breach.

In a restricted statutory appeal, a challenge to retention on a barred list must identify an error of law or fact. A rationality challenge requires perversity. Article 8 may be engaged by exclusion from a chosen occupation, but the issue is fact sensitive. A remote and speculative intention to enter a field of work may not amount to an interference requiring justification.

The appellant was convicted of blackmail, kidnapping and false imprisonment. His kidnapping conviction led to automatic inclusion on both the children’s and adults’ barred lists under the Safeguarding Vulnerable Groups Act 2006, subject to representations seeking removal.

The Independent Safeguarding Authority refused to remove him. It relied on the seriousness and escalation of his offending, his character traits, and the risk of harm if he held a position of trust over children or vulnerable adults. The appellant appealed unsuccessfully to the Upper Tribunal, Administrative Appeals Chamber: [2012] UKUT 424 (AAC).

On a further appeal, he contended that the sentencing judge’s failure to notify him of listing made the listing a nullity, that the Authority’s decision was unreasonable and inadequately reasoned, and that it disproportionately interfered with his Article 8 rights. The central issue was whether any of those matters required his removal from the barred lists.

1. Appeal dismissed. Elias LJ, with whom Vos LJ and Maurice Kay VP agreed, held that the sentencing judge’s breach of paragraph 25 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006 did not invalidate the appellant’s listing. Applying R v Soneji [2005] UKHL 49, the question was whether Parliament fairly intended total invalidity. It could not have intended that a failure to give notice would undermine the protective purpose of the scheme and expose children or vulnerable adults to risk.
2. The judicial notification duty was not part of the listing machinery. The Secretary of State’s referral duty and the Authority’s obligation to list operated independently of it. The Authority also had a duty to take reasonable steps to notify the person concerned, so the breach caused no practical prejudice here. London and Clydesdale Estates and R v Clarke were illustrations of the contextual approach, not authorities requiring invalidity on these materially different facts.
3. The Upper Tribunal’s jurisdiction was confined to errors of law or fact. The appropriateness of retaining a person on a list was not itself a question of law or fact. Accordingly, a challenge described as one of unreasonableness could succeed only if the decision was perverse. The Authority had considered the absence of direct offending against protected groups, the OASys material, and the other representations. Its risk assessment was plainly not irrational.
4. The Authority gave adequate reasons. It had to state the basic facts and sufficient intelligible reasons to permit an appeal. It was not required to address every submission or explain every asserted consistency with a sentencing objective.
5. The Article 8 challenge failed. The relevant question was whether the decision breached a Convention right, rather than whether the Authority had expressly reasoned about Article 8. Exclusion from a chosen occupation can, in an appropriate case, affect private life. However, the appellant had never worked with young offenders and had only a hypothetical interest in doing so. The Upper Tribunal was entitled to find that the effect of listing was too remote to engage Article 8.
6. Even if Article 8 had been engaged, any limited interference would have been justified by the safeguarding risk and the possibility of seeking reconsideration if circumstances materially changed. The Parole Board’s different function and later timing did not provide a less intrusive equivalent safeguard. The two statutory procedures were intended to operate in parallel.

• Court of Appeal (Civil Division): dismissed the appellant’s appeal from the Upper Tribunal.
• Upper Tribunal, Administrative Appeals Chamber: dismissed the appellant’s appeal from the Independent Safeguarding Authority’s refusal to remove him from the children’s and adults’ barred lists: [2012] UKUT 424 (AAC).