Sarfraz v Disclosure and Barring Service

Where legislation makes permission a condition of an appeal, a general statutory right of appeal does not permit an appeal against a refusal of permission unless Parliament has used clear contrary language. The Lane v Esdaile principle applies whether the proposed appeal is a first or second appeal, and whether the underlying decision was made by a judicial tribunal or an administrative body.

Broad references to a right of appeal or a decision, and an express list of excluded decisions in Tribunals, Courts and Enforcement Act 2007, do not displace that necessary implication. Authorities concerning permission for judicial review or special leave under prerogative-based provisions are distinguishable.

The appellant, a former general practitioner, had been included in the Children’s and Adults’ Barred Lists following findings concerning sexual misconduct and later dishonesty in professional regulatory proceedings. An earlier appeal to the Upper Tribunal had resulted in a remittal, but the Disclosure and Barring Service decided on 26 February 2014 to maintain his inclusion in both lists.

The Upper Tribunal refused permission to appeal that decision on 8 October 2014 and then refused permission to appeal to the Court of Appeal on 14 November 2014. The appellant applied to the Court of Appeal for permission to appeal from that refusal. The central issue was whether the court had jurisdiction under the Tribunals, Courts and Enforcement Act 2007 to entertain such an application.

1. Application dismissed. The court had no jurisdiction to grant permission to appeal against the Upper Tribunal’s refusal of permission to appeal to itself.

2. The principle in Lane v Esdaile, as explained in later authority, was that a statutory requirement for permission to appeal necessarily makes the grant or refusal of that permission final unless legislation clearly provides otherwise. General language conferring a right of appeal from a tribunal decision did not suffice. Nor did the express exclusion in section 13(8)(c) of the Tribunals, Courts and Enforcement Act 2007 of certain First-tier Tribunal permission decisions imply a contrary right for decisions concerning other bodies.

3. The principle was not confined to cases where an earlier decision had been made by a tribunal of law. Its purpose was to make the permission stage an effective screen for unmeritorious appeals. It therefore applied equally to the proposed appeal from the Disclosure and Barring Service. Kemper Reinsurance concerned permission to seek judicial review, not permission to appeal, and Campbell v The Queen concerned the distinct statutory expression of the royal prerogative to grant special leave. Neither displaced the principle. The reasoning in The Wellcome Trust applied with equal force.

4. Although unnecessary to the disposition, the court would also have refused permission on the merits. The Disclosure and Barring Service was entitled to give considerable weight to the appellant’s manipulative and dishonest conduct in assessing future risk. A continued denial of guilt could be a significant factor, but was not treated as conclusive. The Service was also entitled to make its own assessment rather than accept the psychiatric opinion.

5. The appellant’s article 8 rights were engaged, but the interference was justified under article 8(2) of the Convention. The decision pursued the protection of vulnerable people and was proportionate in light of the risk assessment and the Service’s wide discretionary judgment. Kitchin LJ agreed.

• Court of Appeal (Civil Division): held that it lacked jurisdiction to grant permission to appeal from the Upper Tribunal’s refusal of permission; it would in any event have refused permission on the merits: [2015] EWCA Civ 544.

• Upper Tribunal (Administrative Appeals Chamber): Judge Edward Jacobs refused permission to appeal to the Court of Appeal on 14 November 2014, following the Upper Tribunal’s refusal on 8 October 2014 of permission to appeal from the Disclosure and Barring Service decision: V/2733/2014.

• Disclosure and Barring Service: on 26 February 2014 decided to continue the appellant’s inclusion in the Children’s and Adults’ Barred Lists under the Safeguarding Vulnerable Groups Act 2006.

• Earlier Upper Tribunal proceedings: on 6 June 2012, the Upper Tribunal found error in the Independent Safeguarding Authority’s 2011 decision and remitted the matter for a fresh decision.