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Articles 6 and 8

The Royal College of Nursing & Ors, R (on the application of) v Secretary of State for the Home Department & Anor [2010] EWHC 2761 (Admin)

The High Court has ruled that a scheme which prohibits people convicted or cautioned for certain crimes from working with children or vulnerable adults breaches human rights law.

The system of automatically banning those convicted for or who admit certain crimes from working with children and vulnerable adults without allowing them to make representations breached their rights to a fair trial.

The Safeguarding Vulnerable Groups Act 2006 introduced a ‘Vetting and Barring” scheme for people working with children, whereby a new Independent Safeguarding Authority (ISA) must maintain lists of people who are barred from certain kinds of work with children and adults. That list includes those who are convicted of, or admit to, certain specified criminal offences, including various sexual offences, and those involving violence or the mistreatment of children. Once barred, the restrictions on work last from a minimum of 1 to a maximum of 10 years.

Four of the claimants were nurses. Two had accepted police cautions for leaving their children at home unsupervised, one was convicted of giving a child an unauthorised kiss and the other was subject to an investigation into her being drunk at work. Because of the way the Act works, the first three had all been placed automatically on the barred list after accepting their cautions or being convicted. They were eventually taken off the lists after challenging the decisions, but only after many months of being unable to work in their chosen field.

The Claimants successfully alleged the scheme was unlawful and in breach of the ECHR on in that (inter alia) the scheme requires ISA to place individuals who have been convicted or cautioned for a wide range of offences on the barred lists without the right to make representations prior to listing contrary to Articles 6 and 8 of the ECHR.

The foundation of the Claimants’ case was the decision of the House of Lords (now the Supreme Court) in R (Wright) v Secretary of State for Health & Another [2009] UKHL 3, in which it was held that the procedure under the Care Standards Act 2000 of allowing the provisional listing of care workers onto a similar ‘barred from work’ list as to the present case without their being able to make representations ran contrary to Article 6 and Article 8 rights.
In that case, Baroness Hale said that although that scheme “appears premised on the assumption that permanently to ban a person from a wide variety of care positions does require a full merits hearing before an independent and impartial tribunal“, nonetheless the process does not begin fairly, by offering the care worker an opportunity to answer the allegations made against her, before imposing upon her possibly irreparable damage to her employment or prospects of employment.

The issue in Wright was that a care worker could be banned from working in their chosen profession for many months without having had the chance to make representations in breach of Article 6 However, whilst accepting the obvious differences between the cases, Mr Justice Wyn Williams had no problem finding the reasoning of the House of Lords of significant relevance. He said that the consequences “are as real for the persons placed on the barred lists under the 2006 Act as they were for the persons provisionally listed under the earlier scheme.”

 

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