FIRST SECTION

DECISION

Applications nos . 31127/11 and 8114/ 13 J.J. against the United Kingdom and S.U. against the United Kingdom

The European Court of Human Rights (First Section), sitting on 1 March 2016 as a Chamber composed of:

Mirjana Lazarova Trajkovska , President , Ledi Bianku , Paul Mahoney, Aleš Pejchal , Robert Spano , Armen Harutyunyan , Pauliine Koskelo , judges , and André Wampach , Deputy Section Registrar ,

Having regard to the above applications lodged on 5 May 2011 and 6 December 2012 respectively,

Having regard to the decision to grant the applicants anonymity under Rule 47 § 4,

Having regard to the decision to declare the applicants ’ Article 13 complaints inadmissible under Rule 54 § 3,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. The first applicant, J.J., is an Australian national, who was born in 1974 and lives in Hertford. He is repres ented before the Court by Mr R. Privett of RadcliffesLeBrasseur , a firm of solicitors practising in London.

2. The second applicant, S.U., is a British national, who was born in 1977 and lives in Burnley. He is repres ented before the Court by the Royal College of Nursing, an organisation based in Birmingham.

3. The United Kingdom Government (“the Government”) are represented by their Agent, Mr P. McKell , of the Foreign and Commonwealth Office.

A. The circumstances of the case

4. The facts of the case, as submitted by the parties, may be summarised as follows.

5. The Safeguarding Vulnerable Groups Act 2006 (“SVGA” – see paragraphs 8-22 below) established the Children ’ s Barred List and the Adults ’ Barred List (collectively the “Barred Lists”). An individual ’ s inclusion in one of the Barred Lists precluded him from taking part in “regulated activity” in relation to the group covered by the list. Seeking to engage in “regulated activity” when not permitted was a criminal offence. Owing to the broad range of circumstances encompassed by “regulated activity”, inclusion in a list in effect precluded an individual from working with the group covered by that list.

6. The applicants were included in the Barred Lists by the Independent Safeguarding Authority (“ISA”) on 13 May 2010 and 28 January 2012 after being convicted of, and cautioned for, a criminal offence respectively. The ISA did not give them an opportunity to make representations before inclusion in the lists. However, various options were open to them to challenge their inclusion. First, they were able to make representations to the ISA that they should be removed. Secondly, they were able to seek judicial review of the initial decision of the ISA to include them in the Barred Lists. Finally, under the version of the law in force at the relevant time they were able to appeal to the Upper Tribunal, on a point of law or a mistake of fact, against a decision by the ISA not to remove them from the Barred Lists.

7. The applicants made representations to the ISA. Following the representations, they were removed from the lists on 21 January 2011 and 24 August 2012 respectively.

B. Relevant domestic law and practice

1. Legislation

(a) The Safeguarding Vulnerable Groups Act 2006

8 . The relevant provisions of the SVGA came into force on 20 January 2009. On 1 May 2012 Parliament enacted the Protection of Freedoms Act 2012. Included in the Act were provisions amending the SVGA to enable representations to be made by affected individuals prior to the ISA making a decision whether to include them in the Barred Lists. The amendments came into force on 10 September 2012. All the complaints brought by the applicants are covered by the law which was in force between 20 January 2009 and 10 September 2012.

( i ) Procedure for inclusion in the Barred Lists

9. Section 1 of the SVGA created a body which came to be known as the ISA. Section 2(1) required the ISA to keep two lists (the “Barred Lists” referred to above) of individuals who were considered unsuitable to work with children and vulnerable adults respectively. Sections 2(2) and 2(3) set out that a decision whether to include an individual in the children ’ s and the adults ’ lists was to be determined in accordance with the provisions contained within the relevant paragraphs of Schedule 3 of the SVGA.

10. Sections 3(2) and 3(3) of the SVGA stated that a person was to be barred from regulated activity with children and vulnerable adults if they had been included in the children ’ s and adults ’ barred lists.

11 . Paragraphs 1 and 7 of Schedule 3 to the SVGA provided that, if any of the relevant criteria for those paragraphs were satisfied, the Secretary of State had to refer the person concerned to the ISA who had to include him automatically on the children ’ s and the adults ’ lists respectively without any right to make representations. The relevant criteria were prescribed in regulations made under the SVGA, namely the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009 (“2009 Regulations”). Paragraphs 2(1) and 2(2) and 8(1) and 8(2) of Schedule 3 similarly provided that if any of the criteria prescribed for those paragraphs were satisfied the Secretary of State had to refer the person concerned to the ISA.

12. Paragraphs 2(3) and 8(3) of Schedule 3 dealt with the steps that the ISA was then required to take. They provided:

“On the reference being made, ISA must–

(a) include the person in the [relevant] barred list;

(b) give the person the opportunity to make representations as to why he should be removed from the [relevant] barred list.”

13 . Paragraphs 2(4) and 8(4) of Schedule 3 provided that:

“If it appears to ISA that it is not appropriate for the person to be included in the list, it must remove him from the list.”

14. Regulation 4 of the 2009 Regulations dealt with the prescribed criteria for including people on the children ’ s list pursuant to paragraph 2 of Schedule 3. Of relevance to these applications was paragraph 5 of Regulation 4 which set out a criterion consisting of being convicted or cautioned of an offence specified in paragraph 2 of the Schedule to the Regulations, on or after the relevant date specified in the 2009 Regulations.

15. Regulation 6 of the 2009 Regulations dealt with the prescribed criteria for including people on the adults ’ list pursuant to paragraph 8 of Schedule 3. Of relevance to these applications was paragraph 6(b) of Regulation 6 which set out a criterion consisting of being convicted or cautioned of an offence specified in paragraph 4 of the Schedule to the 2009 Regulations, on or after the relevant date specified in the 2009 Regulations.

(ii) Consequences of inclusion in the Barred Lists

16. As set out above, section 3 of the SVGA resulted in a person being barred from taking part in regulated activity with a group if he was included on the barred list for that group. Section 5 specified the SVGA provisions governing what constituted a regulated activity and therefore in what specific activities a barred person was unable to engage.

17. Section 7 made it an offence for a person to engage, or to seek to or offer to engage, in a regulated activity despite being unable to because of his inclusion in one or both of the Barred Lists.

(iii) Challenges to inclusion in the Barred Lists

18. In addition to being able to seek judicial review of a decision of the ISA to include him on one of the Barred Lists, in certain circumstances, including those of the applicants, the SVGA gave a person an opportunity to make representations after initial inclusion on the list and subsequently to appeal if inclusion was confirmed by the ISA following those representations.

19 . Paragraph 15 of Schedule 3 to the SVGA provided that the Secretary of State could make regulations in order to make provision for the procedure to be adopted by the ISA in any decision it had to take under the Act. In accordance with paragraph 15, the Secretary of State made the Safeguarding Vulnerable Groups Act 2006 (Barring Procedure) Regulations 2008 (“2008 Regulations”). Regulation 2(2) of the 2008 Regulations provided that the ISA had to give notice in writing of the opportunity to make representations to any person who was afforded that possibility by Schedule 3 to the SVGA. Regulation 2(5) of the 2008 Regulations provided that a person to whom notice was given had eight weeks from the day on which he was to be treated as having received notification of the opportunity to make representations.

20. Paragraph 16(1) of Schedule 3 provided that a person who by virtue of the SVGA had the right to make representations had to be able to do so in relation to all of the information on which the ISA proposed to rely to take its decision. Paragraph 16(3) excluded from the scope of the right to make representations, that a finding of fact by a body defined in paragraph 16(4) was incorrect.

21. In practice, in the period and circumstances covered by the current applications, the letter sent by the ISA, to inform a person that they had been referred to the ISA and included on the Barred Lists, also included notice of the right to make representations and a warning that a failure to do so within the time-limit would result in him remaining on the list.

22 . Section 4 of the SVGA afforded rights of appeal to the Upper Tribunal. Section 4(2) specified that such an appeal could only be made on the grounds that the ISA had either made a mistake of law or a mistake in any finding of fact on which its decision was based. Section 4(3) excluded from the ambit of question of law or fact the ISA ’ s decision as to whether it was appropriate to include someone on one of the Barred Lists. Section 4(4) imposed a permission requirement before a person affected by a decision of the ISA could appeal to the Upper Tribunal. Section 4(5) required that unless it found a mistake of law or fact, the Upper Tribunal had to confirm a person ’ s inclusion on the Barred Lists. Section 4(6) allowed the Upper Tribunal, if it found a mistake of fact or law, to either remove a person from the Barred Lists or to remit the case to the ISA. Under section 4(7), following a remittal to the ISA, and pending its new decision, a person had to be removed from the Barred Lists, unless the Upper Tribunal directed otherwise.

(b) The Human Rights Act 1998

23 . Section 3 of the Human Rights Act 1998 (“the 1998 Act”) provides that:

“(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

(2) This section–

( a ) applies to primary legislation and subordinate legislation whenever enacted;

...”

24 . Section 4 of the 1998 Act provides:

“(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.

(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.

...”

25. Finally, section 6(1) of the 1998 Act provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Section 6(2) clarifies that:

“Subsection (1) does not apply to an act if–

(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.”

2. Case-law

26. In R (Royal College of Nursing & Others) v. Secretary of State for the Home Department & Another , [2010] EWHC 2761 Admin, the High Court considered a challenge to the lawfulness of various aspects of the SVGA barring scheme, including the requirement to place individuals cautioned for, or convicted of, prescribed offences on the Barred Lists without granting them the right to make representations before being listed.

27. On 10 November 2010 the High Court decided that the scheme violated Articles 6 and 8 insofar as it required the ISA to place on the Barred Lists without the right to make prior representations individuals who had been cautioned for, or convicted of, certain offences. The court made a declaration of incompatibility (see paragraph 24 above) in respect of both Articles.

COMPLAINTS

28. The applicants complained under Articles 6 and 8 of the Convention about the procedure for the listing of their names on the Barring Lists.

THE LAW

29. Article 35 § 1 of the Convention provides:

“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”

A. The parties ’ submissions

30. The Government argued that the six-month period started to run from the date on which the applicants ’ names were placed in the Barred Lists and not the date on which they were removed. The cases did not concern a “continuing situation” of the nature identified in Berry and Others v. the United Kingdom ( dec. ), nos. 19064/07, 31588/09 and 38619/09, §§ 70-71, 16 October 2012 . Relying on Zakár v. Hungary ( dec. ) , no. 19696/13, 4 March 2014, the Government argued that the placement of their names on the Barred Lists was a specific event on an identifiable date and should be challenged as such. The Court ’ s judgment in Posti and Rahko v. Finland , no. 27824/95, § 39, ECHR 2002 ‑ VII, meant that a continuing situation required continuous activities by the State which rendered a person a victim. The mere fact that an event had significant consequences over a period of time did not mean the event constituted a continuing situation (ibid. § 40).

31. The first applicant argued that in his case the material situation commenced when his name was listed and continued until it was removed from the Barred Lists. The Government was re-running the argument which the Court had rejected in Berry and Others , cited above. The scheme in that case did not differ in any material respect from the SVGA scheme. The Government had not attempted to demonstrate that it did. The reasons relied on by the Court in Berry and Others , §§ 76, 78, 80 and 82 still applied. As the Court had observed in Berry and Others , cited above, the longer the listing lasted, the greater the harm suffered by the person listed. Adopting the Court ’ s approach in Berry and Others , cited above, did not give rise to any legal uncertainty or prejudice to the State. He further argued that his case was analogous to Iacov Stanciu v. Romania , no. 35972/05 , 24 July 2012. His situation remained identical for each day of his listing. He was expressly prevented from practising his profession each day he was listed.

32. The second applicant argued that the date on which the six-month period started to run in his case was the same as the date found by the Court in Berry and Others , cited above, namely the date on which his name was removed from the Barred Lists. The Government had pointed to nothing factual which could distinguish his case from Berry and Others . During each day of his listing he was prevented from working. If any explanation was required for his delay in lodging an application, it was to be found in the very significant financial hardship and emotional distress he had suffered. He observed that the Government had not argued that his application was manifestly ill-founded under Article 35 § 3.

B. The Court ’ s assessment

33 . The relevant general principles under Article 35 § 1 are set out in the Court ’ s decision in Berry and Others , cited above, §§ 62-65.

34. In Berry and Others , cited above, the Court found that the relevant date from which the six-month period began to run was the date on which an individual ’ s name was confirmed in, or removed from, the barring lists. It found that it was arguable on the particular facts before it that the period during which the applicants ’ names were listed was so closely linked to the decision to list them that it would have been artificial to ignore the continued effects of the decision to list when assessing when the six-month period started to run.

35. On the basis of all the material before it, and noting in particular that the Government did not argue that the SVGA regime was distinguishable from the statutory regime examined in Berry and Others , cited above, the Court finds that there is no reason t o distinguish the present case from Berry and Others . Accordingly, the Court finds that the applicants lodged their applications within the six ‑ month time-limit.

36. The Court considers that the applicants ’ complaints under Articles 6 and 8 raise serious questions of fact and law which are of such complexity that their determination should depend on an examination on the merits. They cannot, therefore, be considered manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. The Court therefore declares the applications admissible.

For these reasons, the Court, unanimously,

Joins the applications ;

Declares the applications admissible, without prejudging the merits of the cases.

Done in English and notified in writing on 24 March 2016 .

Andre Wampach Mirjana Lazarova Trajkovska Deputy Registrar President