IN THE UPPER TRIBUNAL	Case No.  V/3418/2012
ADMINISTRATIVE APPEALS CHAMBER

Before: 	 Judge E A L Bano
		 Ms Linda Redford
		 Mr Richard Beeden

Attendances:

For the Appellant:	The appellant in person

For the Respondent	Ms Catrine Patry of Counsel, instructed by the Treasury Solicitor

Decision:  The decision of the Upper Tribunal is to confirm the decision of the Independent Safeguarding Authority (now the Disclosure and Barring Service).

REASONS FOR DECISION

1.	The appellant is a man now aged 72 with a long-standing interest in castration and eunuchs.  On 22 August 2008 he was convicted on his plea of guilty to two indictments containing in total 44 counts of making indecent images of children on various dates between 2002 and 2007, contrary to section 1(a) of the Protection of Children Act 1978.  Of the approximately 2506 images of children involved in the first indictment, 2469 were on level 1, 16 were on level 2, 6 were on level 3, 14 were on level 4 and 1 was on level 5.  The second indictment related to 32 images, of which 21 were on level 1, 3 were on level 2, 3 were on level 3, 2 were on level 4 and 3 were on level 5.  The second indictment related to offences allegedly committed by the appellant while he was on bail for the offences in the first indictment.

2.	Although the appellant maintained, as he still does, that the disks containing the images which formed the subject of the second indictment had been previously confiscated by the police and returned to him, the trial judge rejected that account and found that the appellant had downloaded new images for his sexual gratification while on bail.  The appellant was sentenced to 20 weeks imprisonment on the first indictment and 12 weeks imprisonment on the second indictment, to run consecutively; but the judge declined to make a Sexual Offences Prevention Order under section 104 of the Sexual Offences Act 2003, or a disqualification order under section 28 of the Criminal Justice and Court Services Act 2000.

3.	Because the offences were committed before section 2 of the Safeguarding Vulnerable Groups Act came fully into force on 20 January 2009, paragraph 25(4) of Schedule 3 to the 2006 Act prevented the ISA from automatically including the appellant on the children’s barred list because the sentencing court had considered whether to impose a disqualification order, but had decided not to do so.  Paragraph 3(4) imposed the same restriction in relation to barring for ‘behaviour’ under paragraph 3.    However, no such restrictions applied in relation to barring for ‘risk of harm’ under paragraph 5 of Schedule 3.  Although the appellant was initially included in the children’s barred list under paragraph 1 of Schedule 3, his name was therefore removed from the list on 23 December 2010 and he was ultimately placed on the children’s barred list under the provisions of paragraph 5.  That paragraph provides:

“(1) This paragraph applies to a person if-

(a)	it appears to IBB that the person falls within sub-paragraph (4), and
(b)	IBB proposes to include him in the children’s barred list.

(2)	IBB must give the person the opportunity to make representations as to why he should not be included in the children’s barred list.

(3)	IBB must include the person in the children’s barred list if-

(a)	it is satisfied that the person falls within sub-paragraph (4), and
(b)	it appears to IBB that it is appropriate to include the person in the list.

        (4)  A person falls within this sub-paragraph if he may-

     (a) harm a child,
     (b) cause a child to be harmed,
     (d) attempt to harm a child, or
     (e) incite another to harm a child.”

4.	Following his initial inclusion on the children’s barred list under paragraph 1 of Schedule 3 to the 2006 Act, the appellant was invited to make representations as to why he should be removed from the list and he did so on 14 April 2009.  The appellant stated that it had been accepted throughout his trial that he posed no risks to children and that without exception all the photographs found in his possession were of boy eunuchs taken before 1920.  The appellant contended that it was wrong to equate his action in downloading images which he believed to be legal with that of a person who took live photographs of children, and the appellant enclosed with his representations testimonials regarding his good character and valuable work, in particular, in fostering church music.

5.	In response to the appellant’s representations, the Independent Safeguarding Authority (the successor to the IBB and predecessor of the Disclosure and Barring Service) obtained a copy of the judge’s sentencing remarks and of the pre-sentence probation report, which described the appellant as an “extremely complex character” and “highly likely to re-offend”.  The ISA then requested from the police Public Protection Unit an updated risk assessment, which assessed the risk dynamically of the appellant re-offending as very high.  The ISA also obtained the appellant’s consent to attend an assessment at the Lucy Faithfull foundation.

6.  	The assessment carried out for the Foundation by Doctor Judith Earnshaw, which was based on six hours of interviews with the appellant together with all the documentary evidence in the possession of the ISA, was extremely comprehensive and investigated the appellant’s psychological drivers in detail.  Doctor Earnshaw noted that the appellant saw nothing wrong with viewing naked images of children or adults and thought that such behaviour should be legal, that he did not think that being photographed naked was harmful to the subjects, and did not consider using naked images for sexual gratification to be wrong.  Doctor Earnshaw concluded:

“I do not accept that there was no sexual motivation behind [the appellant’s] interest in images of naked boys.  I consider it quite possible that this interest may co-exist with a range of other legal sexual interests, and that [the appellant] has probably used the internet over a period of years to explore his sexuality.  I anticipate that this behaviour is likely to continue, although increasing age and infirmity may slow down the process.  [The appellant] states that his experience of conviction and imprisonment was aversive enough for him not to return to downloading indecent images of boys.  Because this is not accompanied by any internal sense that the behaviour is wrong or harmful, and because use of the internet for sexual gratification is often a rather compulsive behaviour, I cannot rule out the possibility that he might reoffend in a similar way.  However, I consider the likelihood of his committing any form of contact offence to be extremely low, and I do not see him as presenting a risk to children in real life.”

7.	Following his removal from the children’s barred list under paragraph 1 of Schedule 3, the appellant was invited to make further representations in relation to the risk that he might cause a child to be harmed (paragraph 4(b) of Schedule 3 to the 2006 Act).  The appellant failed to make representations in time because he was undergoing medical treatment and was placed on the children’s barred list for that reason on 7 July 2011, but he was then allowed to make late representations and did so on 28 August 2011.  The appellant strongly disputed the accuracy and conclusions of the Public Protection Unit report and relied on the sentencing remarks of the trial judge and on Doctor Earnshaw’s report in support of his assertion that he presented no risk of harm to children or adults.

8.	The appellant’s case was referred to the ISA’s Case Committee, which considered it on 24 and 25 April 2012.  On 25 April the Authority wrote to the appellant informing him that they now had new concerns concerning his lack of empathy and child abuse supportive beliefs, evidenced by his view that naked images of children being used for the sexual gratification of others was not harmful and should be legal.  The appellant was invited to comment further and did so in letters dated 22 May and 6 June 2012 in which he vehemently denied any sexual interest in young males and again asserted that his interest in eunuchs was purely academic.

9.	The Case Committee considered the appellant’s case again on 26 and 27 June 2012 using the Authority’s Barring Decision Making Process Document, including the Stage 3 Structured Judgement Process.  The decision on whether it was appropriate to include the appellant on the children’s barred list concluded:

“Throughout the evidence provided it is determined that [the appellant] is assessed as being a low risk of a contact offence regarding a child.  However, significant concerns remain that, due to his faulty thinking regarding indecent images of children on the Internet, in that he does not understand why these children are seen as victims or his belief that that there is no child pornography on the internet as the Police have removed it; [the appellant] has an idealised view of how and why indecent images of children are made, he believes that “its rubbish that children are asked to  pose naked by photographers” but believes that the money paid to these children help them to ‘get a new life’ and said the money he paid for pay to view sites went to a good cause.  With this in mind it is clear that [the appellant] would reoffend using the internet.

Whilst the issue of [the appellant’s] sexuality (he identifies with a “third gender state”), his attempted self castration and the teddy bears found at his home that were mutilated to have holes between their legs is atypical, it is not specifically a safeguarding issue, however his continued denial that his interest in eunuchs and castrati has no link to his conviction again generates apprehension regarding his future risk to children through non contact offences.

[The appellant] consistently denies that his images contained material of a sexual nature relating to children or that they were sexually explicit in anyway shape or form, this again causes serious concern as it was proven in a court of law [the decision here summarises the offences of which the appellant was convicted and continues]: [The appellant] contends that the images were not new downloads and that he was attempting to help the police however this only goes to further demonstrate that he does not understand the gravity of his actions and does not suppress our original concerns that he presents a future risk of harm to children, in that the use of indecent images of children only contributes to the continued making and distribution of them.  Therefore, it was recommended that [the appellant] remain on the Children’s List…

It is the view of the Board Case Committee that they should take into account the intention of Ministers in respect of offences relating to indecent images of children.

In addition there is a consideration of public confidence in the scheme being undermined should [the appellant] not be retained in the children’s list by virtue of the high level of risk of further internet offending that he poses.

Having considered [the appellant’s] representations and notwithstanding the requirement to set aside the autoinclusion as a result of the judge considering and not imposing a disqualification order, [redacted passage]; the case committee determined, having considered the Judges comments in respect of [the appellant’s] conduct, the Lucy Faithfull Foundation report and [the appellant’s] continued denial of sexual motivation, along with his repeated offending whilst on bail and the high likelihood of further internet offending, that it was appropriate to retain [the appellant] in the Children’s List.”

10.	The Authority’s decision was notified to the appellant in a letter dated 20 July 2012, and on 5 October 2012 solicitors instructed on his behalf applied to the Upper Tribunal for permission to appeal against the authority’s decision.  The grounds of appeal contended that a likelihood of internet offending was not the same as a risk of causing harm to children, and that in deciding not to make a Sexual Offences Prevention Order or disqualification order the judge, who was in possession of all the relevant evidence, expressly excluded the possibility that the appellant was likely to commit ‘contact’ offences against children in the future.  In R v Terrell [2007] EWCA Crim. 3079 the Court of Appeal held that the future risk of harm to children resulting from downloading indecent images of children did not justify the imposition of a sentence of imprisonment for public protection (“IPP”), and the grounds of appeal argued that a similar approach should be taken when deciding whether there is a risk of harm for the purposes of paragraph 5 of Schedule 3 to the 2006 Act.  The fact that the appellant committed further offences on bail was a ‘red herring’ and the maintenance of public confidence was not the test for deciding whether a person should be placed on the children’s barred list.  Judge Bano gave permission to appeal on 30 November 2012 because he considered that the case might raise important issues concerning the approach which should be taken by the ISA when a risk of re-offending relates to non-contact rather than contact offences, and the DBS (who were later substituted for the ISA as respondents to the appeal) submitted a detailed response on 25 January 2013.  The respondents submitted a supplementary response on 31 January 2013 and the appellant’s solicitors replied to those submissions on 9 May 2013.

11.	At the hearing of the appeal, the appellant relied in large measure on his earlier representations to the ISA and on the written grounds of appeal and reply to the respondent’s submissions prepared by his solicitors.  He reiterated that he had never caused any harm to children, that the trial judge, who had seen the images which he had downloaded,  had accepted that he presented no future risk to children, that most of the images which he had downloaded were historic.  In those circumstances, he submitted that there was no proper basis for the decision to retain him on the children’s barred list.

12.	Ms Patry submitted that the harm to children resulting from the making and dissemination of pornographic images fell within the harm contemplated by paragraph 5(4) of Schedule 3 to the 2006 Act.  She submitted that it was unnecessary to show that harm would be suffered by any identifiable child or by a child in any particular country, and that for the purposes of paragraph 5(4) it was sufficient to show that any conduct which a person was likely to repeat would be harmful to children generally.  The criteria for the imposition of a SOPO or disqualification order were different from those for the inclusion of a person on the children’s barred list and there was no requirement that a person should be included in the list only if there was a risk of future ‘contact’ offences.

13.	Our powers on this appeal are governed by section 4 of the Safeguarding Vulnerable Groups Act 2006, which so far as material, provides:

“An individual who is included in a barred list may appeal to the Upper Tribunal against
(a) a decision under paragraph 2 or 8 of Schedule 3 not to remove him from the list:

(2)  An appeal under subsection (1) may be made only on the grounds that ISA has made a mistake-
(a)  on any point of law;
(b) in any finding of fact which it has made and on which the decision mentioned in that subsection was based.

(3)  For the purposes of subsection (2), the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact.

(4)  An appeal under subsection (1) may be made only with the permission of the Upper Tribunal.
(5)  Unless the Upper Tribunal finds that ISA has made a mistake of law or fact, it must confirm the decision of ISA.

(6)  If the Upper Tribunal finds that ISA has made such a mistake it must-
(a)  direct ISA to remove the person from the list, or
(b)  remit the matter to ISA for a new decision.”

14.  We have come to the conclusion that there was no mistake of law or fact in the ISA’s decision to place the appellant on the children’s barred register under the provisions of paragraph 5 of Schedule 3 of the 2006 Act.  On the basis, in particular, of Doctor Earnshaw’s report, the Authority accepted that the risk of the appellant committing any form of contact offence in the future was low, but she considered it likely that he would continue to download indecent images of boys for the purposes of sexual gratification.  The Court of Appeal in Terrell identified the type of harm resulting from such offending as:

“…harm to children through the perpetuation of the market or distribution networks for indecent images.  This puts children at risk of being forced to participate in the activities leading to such images, or causes psychological harm to a child who realises either at the time or later that images of him or her are being used as objects of perverted sexual gratification.” (para. 26)

Although the Court held that that type of harm did not justify a sentence of imprisonment for public protection, which would deprive an offender of his liberty, it went on to hold that it did not prevent the imposition of a SOPO:

“ Perpetuating the market or distribution network for indecent images encourages others to commission, take or create indecent images of a level which may be capable of causing ‘serious’ harm to children, and the child or children who might be photographed could well become aware of the use to which those photographs could be put.” (para. 34) 

15.	In ISA v SB and Royal College of Nursing [2012] EWCA Civ 977 the Court of Appeal gave consideration to the approach to be taken by the Upper Tribunal when determining appeals from the ISA.  The appellant had been convicted of 22 offences relating to the possession of indecent photographs of children and one offence of the distribution of an indecent photograph of a child.  He had been sentenced to a suspended term of imprisonment, ordered to participate in a Sex Offenders Treatment Programme and made subject to a SOPO.  The ISA placed the appellant on the children’s barred list under paragraph 5(3) as presenting a future risk to children, but the Upper Tribunal overturned that decision because they considered that it was disproportionate.  However, the Court of Appeal restored the decision of the ISA because they considered that the Upper Tribunal had given insufficient weight to the decision of the Authority and had not properly taken into account public confidence.

16.	In AP, as in this case, the appellant had been convicted of offences concerning images of children and had also been placed on the children’s barred list under paragraph 5 of Schedule 3. There is no indication in the judgment of the Court of Appeal that the risks to be considered when deciding whether a person should be placed on a barred list are limited to the risks of future ‘contact’ offences.   We therefore uphold Ms.Patry’s submission that for the purposes of paragraph 5 of Schedule 3 to the 2006 Act ‘harm’ encompasses the kind of harm to children resulting from the downloading of pornographic images, as explained by the Court of Appeal in Terrell.

17.	We also reject the argument that the trial judge’s decision not to make a SOPO prevented the ISA from including the appellant in the children’s barred list.  A SOPO can be imposed only where it is necessary to protect the public or a section of the public from serious sexual harm from the defendant.  For the reasons we have given, we have come to the conclusion that the 2006 Act is concerned with harm more broadly, including the risks of harm to children resulting from the downloading of pornographic images.  So far as the judge’s refusal to make a disqualification order is concerned, the 2006 Act allows cases to be dealt with under paragraph 5 of Schedule 3 if the court has considered whether to make a disqualification order but decided not to do so, so that the decision not to make such an order cannot be a reason for not including a person on the children’s barred list under that provision.

18.	We have come to the conclusion that the ISA’s decision in this case was fully justified for the reasons given in the Barring Decision Document.  The Authority clearly approached this case with great care, including commissioning an extremely comprehensive psychologist’s report.  The appellant’s refusal to accept that even level 4 and 5 pornographic images of children were objectionable justified the Authority’s characterisation of his thinking as faulty.  The trial judge specifically rejected the appellant’s account of how he came to be in possession of the images which formed the subject of the second indictment and the fact that the claimant committed further offences while on bail was in our view further evidence of his lack of insight into his offending behaviour.  There is in our view no reason to question the Authority’s conclusion that in those circumstances public confidence would be undermined by a decision which would allow the appellant to engage in regulated activity.

19.	We therefore consider that there was no mistake of fact or law in the authority’s decision and accordingly dismiss this appeal. 

Signed on the original by:			E A L BANO
							Judge of the Upper Tribunal
and on behalf of					Ms Linda Redford
							Member of the Upper Tribunal
and							Mr Richard Beeden
							Member of the Upper Tribunal

Dated:                                                                28 November 2013