Legislation that blacklists people convicted of certain crimes from working with children and vulnerable adults without allowing them a ‘right to be heard’ first is in breach of human rights law, the High Court has ruled.
The Safeguarding Vulnerable Groups Act 2006, which introduced a “vetting and barring” scheme, also allowed for the creation of a blacklist of banned individuals by the Independent Safeguarding Authority.
Banned individuals include people who are convicted of or admit to specific criminal offences such as sexual misdemeanours and violence or the mistreatment of children. Once barred, the restrictions last from one to 10 years.
But in the case of The Royal College of Nursing & Ors, R versus the Secretary of State for the Home Department & Anor, the High Court ruled that blacklisting such people from working with children and vulnerable adults without allowing them to make prior representations breached their rights to a fair trial as laid down in Article 6 of the Human Rights Act.
Judge Mr Justice Wyn Williams said: “The denial of the right to make representations in advance of listing is a denial of one of the fundamental elements of the right to a fair determination of a person’s civil rights, namely the right to be heard.”
The Court did not accept, however, that the individuals facing an automatic ban should be allowed to make oral representations against the decision, that they should be allowed to appeal such decisions on the grounds of inappropriateness or that the maximum ban period of 10 years was disproportionate.
Nonetheless, the Judge did say that, as the entire scheme was under review, he hoped that the issue of a minimum barring period would be “looked at anxiously in the light of the information available”.
The Royal College of Nursing brought the initial proceedings to court, along with four 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 being investigated for allegedly being drunk at work.
Because of the way the Act works, the first three were blacklisted after accepting their caution or being convicted, but were eventually removed from the list after many months of being unable to work while challenging the decision.
The Secretary of State had argued that the potential consequences of an automatic barring system were justified due to the seriousness of the relevant offences and the potentially serious effects of allowing convicted or cautioned individuals to work with vulnerable groups.
