PD v Secretary of State [2006] EWCST 651(PC) (2 May 2006)

P D
-v-
Secretary of State
[2006] 651.PC
[2006] 652.PVA

NOTIFICATION OF DECISION ON APPLICATION FOR LEAVE TO APPEAL UNDER s 4(1)(b)

1.	By appeal notice dated 31st January 2006, the Appellant, referred to by initials PD on consideration of Regulation 27(3), sought leave to appeal the Secretary of State’s decision taken on 2nd November 2005 not to remove his name from the PoCA list and the PoVA list, on the basis that she had failed to consider relevant documentary evidence that she ought to have considered in reaching her decision.
2.	Directions were issued on 15th March 2006 for the matter to be heard with oral submissions on 26th April 2006, when Mr P Coppel of Counsel instructed by the Treasury Solicitor appeared on behalf of the Respondent, and Ms S Sleeman of Counsel instructed by Thompsons, Solicitors appeared on behalf of the Appellant.
3.	The background to this application for leave to appeal is follows. 
4.	By letter dated 2nd August 2005, the Appellant’s name was confirmed on the PoCA and the PoVA lists (and also the “list 99”). He did not exercise his right of appeal within the requisite three months. Instead, on 1st November 2005, he wrote to the Respondent asking that consideration be given for removal of his name from the respective lists.
5.	By letter dated 2nd November 2005, the Respondent replied that he had provided no new evidence to convince her that his name should not have been included on the lists. He was informed of his right to seek leave to appeal to the Tribunal under s 4(1)(b) of the Protection of Children Act 1999 of the decision not to remove his name from the PoCA and PoVA lists.
6.	He exercised this right to seek leave to appeal within the statutory time frame. His leave to appeal form states: “I seek leave to appeal …on the basis that [the Secretary of State] failed to consider relevant documentary evidence that she ought to have considered in reaching her conclusion. I believe that the additional evidence would have served to properly contextualise the evidence adduced against me. I believe that the additional documentation…contained evidence that would have brought into question the veracity and reliability of the evidence provided by the two main witnesses in the course of the “Operation Magnolia” inquiry”.  Five documents are then referred to; namely, witness statements of the Head Teacher; witness statement obtained in the course of the enquiry conducted by Leicestershire Constabulary in relation to the conduct of Frank Beck; record of interview of staff and/or residents during 1982-1988 obtained in the course of “Operation Magnolia”; the tape recording of police interviews of two witnesses; and notes or minutes of the disciplinary proceeding where oral evidence was provided by witnesses called on behalf of PD.
7.	The Treasury Solicitor in the Response on behalf of the Secretary of State opposed the application for leave on the basis that the refusal to remove the name from the lists was because the Appellant had failed to provide new evidence “so as to convince [the Secretary of State] that his name should not have been included on the lists”.
8.	The first issue that requires a decision is the approach that should be applied when leave applications under s 4(1)(b) are considered. Neither the Act nor the Regulations provide any specific help on this matter. Mr Coppel advanced the argument the President or Nominated Chairman has a responsibility going beyond adopting a “filter” mechanism as would apply in leave applications, for example in the Court of Appeal. He pointed to the fact that the Appellant’s application is made under s 1(3) of the Protection of Children Act 1999 which states that the Secretary of State may at any time remove an individual from the list if he is satisfied that the individual should not have been included in it. An application can be made for removal under s 1(3) at any time. Mr Coppel argued therefore that, in a case such as this, where a person is included on the List upon a referral arising from a dismissal, ss 2(6)-2(7) applies. Thus, only if the Secretary of State should not (based on the material before her at the time) have reached the opinion-
(a)	that the organisation reasonably considered the individual to be guilty of misconduct (whether or not in the course of his employment) which harmed a child or placed a child at risk of harm; and
(b)	that the individual is unsuitable to work with children
is the Secretary of State empowered under s 1(3) to remove an individual from the List. He submitted that the President or Nominated Chairman, when considering leave applications, should apply the same test.
9.	He advanced five reasons for this submission:
•	Given that the basis for an application under s 1(3) is that the individual should not have been included in the List and given that this is not a question that will be addressed once leave has been given (because once leave is given, the Tribunal must consider only s 4(3)), it should enter into consideration of ss 2(6) – 2(7) at the leave stage;
•	Unless this issue is to be considered, an appeal against refusal under s 1(3) will be identical to an appeal against the original listing. 
•	It would follow that the Appellant would be able to circumvent the time limits by simply making a request under s 1(3) at any time.
•	It would unpick the efficacy of the removal provisions in application to the Tribunal  under ss 4A-B, by allowing multiple applications to be made within ten years of listing (eg on the basis of the Secretary of State not being able to prove present unsuitability). The whole thrust of ss 4A-B is that once on the list, a person is to remain there for 10 years (or five years in the case of a person who was a child when listed) and that in making an application for removal under s 4A care has to be taken as failure means a further ten year wait (s 4B(4)(b)).
•	There is a policy sense in the suggested construction. It gives a person who can demonstrate to a “respectable” degree that the Secretary of State should not have listed him (ie based on the material that the Secretary of State had) a right of appeal separate from the right of appeal against the listing itself.
10.	Ms Sleeman, in her skeleton argument, sets out the background to this matter, which it is not necessary for me to incorporate into this Decision on the Leave Application. In effect, Ms Sleeman submitted that the application is made on the grounds that, if allowed to proceed to a full hearing, the appeal would have “good prospects of success.” She drew attention to the fact that under s 4(3) the burden is on the Secretary of State. She acknowledged, both in her skeleton argument and in her oral submissions, that although the Appellant denies many of the allegations, he recognises that certain conduct that he has admitted to in the course of meetings as part of the disciplinary process with one of the County Council’s involved could amount to misconduct within the meaning of s 4(3)(a).  She submitted however that the Appellant’s appeal, if allowed to go forward, would focus on the second limb of s 4(3), namely his suitability to work with children (and vulnerable adults).
11.	I have decided, having considered the skeleton arguments and oral submissions of both Counsel, that Mr Coppel’s reasoning is correct as to the proper approach to take when considering applications for leave under s 1(3) and s 4(1)(b). The test is not “good prospects of success” (as submitted by Ms Sleeman) but rather, whether the relevant provision of s 2 has been made out.
12.	Mr Coppel refers to a “respectable degree”. I am a little uncomfortable with such language. It is preferable, in s 2(7) cases, simply to approach the applications for leave by asking and then answering the following question. On the basis of the evidence submitted to the Tribunal that was before the Secretary of State, was she correct in forming the opinion that that organisation reasonably considered the individual to be guilty of misconduct…which harmed a child or placed a child at risk of harm; and that the individual is unsuitable to work with children? One must look at the facts as they were at the date of the original decision taken by the Secretary of State. 
13.	I drew Counsels’ attention to the case of Bromfield-Rabley v Secretary of State [2004] 324.PC. This was a case where the Appellant sought an extension of time under Regulation 35 to appeal her confirmation on the List, having failed to appeal within the statutory three months time scale. Her application under Regulation 35 was refused by me and the s 4(1)(a) appeal was struck out. 
14.	She then sought a decision that the strike out be set aside under what was then Schedule 4 para 7 (see now Reg 4A(4)). The application came before Mr Ian Robertson, the nominated Chairman. He refused to set aside the strike out. He said “…Parliament has applied a very strict regime, thus when approaching any application for leave to appeal out of time, considerable caution must be applied in ensuring that the application is not in reality a back door attempt at an early review…Given the onerous nature of the statutory scheme there is a heavy burden upon the Applicant to show that there are good and valid reasons as to why leave to appeal should be granted out of time.”  
15.	Although Bromfield-Rabley is a case under s 4(1)(a) and whether leave should be granted out of time, the point made by Mr Robertson is equally relevant to s 4(1)(b) appeals, and whether leave should be granted under s 4(1)(b). The Tribunal must be wary of “back door attempts at an early review.” 
16.	The legislative framework is clear. There is a right to appeal as of right in the case of s 4(1)(a) (the decision to include the applicant’s name on the list). This right must be exercised within three months, although there is a power under Regulation 35 to allow an appeal out of time (Regulation 35 has been considered in the following cases: Alan Hawkes v Secretary of State [2004] 243.PC; Brian Hine v Secretary of State [2004] 349.PC; Keith Marlow v Secretary of State [2004] 423.PC; Bromfield-Rabley v Secretary of State [2004] 324.PC). If the right of appeal is not exercised, the Appellant must wait for ten years (or five years if a child at the time of the listing) to apply to the Tribunal for a determination by the Tribunal as to whether or not his name should continue to be included on the list. (ss 4A, 4B).  However, he can apply at any time to the Secretary of State for his name to be removed on the basis that “he should not have been included in it” (s 1(3)). On such an application, If the Secretary of State does not remove his name, he can appeal to the Tribunal under s 4(1)(b). Leave is required, before the matter can go any further.
17.	The only sensible interpretation I can give to this legislative framework is that when considering leave in an application under s 4(1)(b), the President or nominated Chairman must consider more than simply whether “there is an arguable case” or “whether there would be a realistic chance of success under s 4(3)”.  If Ms Sleeman is right in her approach, there would be nothing to stop an Appellant making numerous applications under s 1(3) followed by s 4(1)(b) appeals as and when circumstances changed on “suitability”. Such an approach would make nonsense of the “three-month in which to appeal” time limitation from confirmation on the list, followed by a ten year period (or a five year period in the case of a child) on the list before the Tribunal could consider suitability as at that future date. 
18.	Having decided therefore that leave applications engage ss 2(6)-(7), it is necessary to look at the material that was before the Secretary of State. I cannot accept Ms Sleeman’s approach that material that was not considered by the Secretary of State is relevant. She submitted that there is other material, although  PD does not have that material at the present time, and that that is a relevant consideration. That submission is equally unattractive.
19.	I have looked carefully at the documentation that was before the Secretary of State. Even without the concessions about misconduct made by Ms Sleeman, I have no doubt at all but that the documentation shows evidence of misconduct which harmed a child or placed a child at risk of harm. There can be no argument but that the Secretary of State was correct in reaching the opinion that the referring organisation reasonably considered PD to be guilty of misconduct which harmed a child or placed a child at risk of harm. 
20.	The only issue, therefore, relates to whether the Secretary of State made a correct decision as regards whether, on that evidence, PD is unsuitable to work with children (and with vulnerable adults). Having looked at the documentation, I have no doubt but that the Secretary of State properly reached her decision on unsuitability on the basis of the evidence before her. I refer in particular to the conclusion of Helen Kenward in her Consultation Report for the Hertfordshire County Council: “the balance of probabilities that PD abused twelve children causes him, in my view, to be a risk in working within the social care sector.” Ron Lock’s Report refers to the blurred professional and personal boundaries. Ray Wyre, in his Report, refers to the fact that PD did behave unprofessionally and abusively within the regime of the children’s home. It is the case that Mr Wyre suggests that the “years since Radcliffe Road in which PD appears to have led a respected professional life still raises concerns that the more serious allegations (of rape and buggery) may not be true”. Neither Mr Lock nor Mr Wyre really engage in the question of “suitability”. That is really a question for the Secretary of State. It is my view, having considered all of this evidence, that she was entitled to form the view that he was, at the time she made her decision, unsuitable to work with children. That is the only issue that is relevant in the leave application. It is of course possible, if leave were to be granted, for a Tribunal on the substantive appeal considering s 4(3), to reach a different view as to the position today. But that is not the test that must be applied when considering leave applications.
21.	In this case, on the basis of all the evidence before the Secretary of State, that I have read, I am satisfied that the decision to confirm PD on the lists was taken in accordance with ss 2(6)(7). Accordingly, the decision refusing to remove his name after the s 1(3) application, was correct, and leave to appeal that decision under s 4(1)(b) should not be given.
22.	Having refused leave, the application is dismissed under Schedule 4 paragraph 6.
23.	In accordance with Schedule 4 paragraph 7, the Applicant may request in writing a reconsideration of the decision to refuse leave. Such a request must be received within ten working days after receipt of this Notice. It must be born in mind however that the Directions dated 15th March 2006 set out a framework for dealing with this matter, and the application for leave was set down for an oral hearing with skeleton arguments. There was liberty to apply to vary the Directions, which was not taken by the parties. Accordingly, it is my opinion that paragraphs 7(2) and 7(3) have already been complied with. However, if the Applicant requests a reconsideration of the refusal of leave within the ten day period, this reconsideration will be considered by a nominated Chairman. If no request for a reconsideration is made, the refusal of leave to appeal will become final, ten working days after receipt of this Notification.

NOTIFICATION ACCORDINGLY: REFUSAL OF LEAVE TO APPEAL

His Honour Judge David Pearl
President
2nd May 2006.