Vetting and barring scheme breaches human rights, High Court rules

Legislation preventing people convicted or cautioned for certain crimes from working with children or vulnerable adults breaches human rights law, the High Court has ruled.

The Safeguarding Vulnerable Groups Act 2006 introduced a “vetting and barring” scheme for people working with children, under which the Independent Safeguarding Authority (ISA) maintain lists of people who are barred from certain kinds of work with children and adults.

The lists include 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 one to a maximum of 10 years.

But in its judgment in the case of The Royal College of Nursing & Ors, R vs Secretary of State for the Home Department & Anor, the High Court said that automatically banning those convicted for, or admitting, certain crimes from working with children and vulnerable adults without allowing them to make representations breached their rights to a fair trial.

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 argued that the scheme is contrary to Articles 6 (right to a fair trial) and 8 (right to private and family life) of the European Convention on Human Rights because it requires the 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.

The Secretary of State had argued that the potential consequences of the automatic barring system were justified by the seriousness of the relevant offences and the serious effects that allowing perpetrators to work with children would have.

The judge rejected this because, firstly, there was a significant delay between the offences being reported and the claimants’ names appearing on the barred lists, which suggested the scheme was not as fast or effective as it may have been painted. Secondly, and most importantly, the claimants, who were convicted of relatively minor offences, were the kind of people who would suffer most from the automatic barring measures.

The Safeguarding Vulnerable Groups Act 2006 was introduced as a response to the Bichard inquiry, which called for better information sharing in the wake of the murders of two schoolgirls by school caretaker Ian Huntley in Soham in 2002.

It was designed to protect children and vulnerable adults by preventing those posing a known risk from gaining access to them through their work.

In June, the Government said registration under the vetting and barring scheme had been put on hold while the system was “fundamentally remodelled”.

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