[2024] UKUT 330 (AAC)

This case concerns proportionality, and we have heard submissions about what approach we should take to determining that issue. We set out the central case law, and then the approach which we take. Barring is plainly a matter which can affect people’s private lives, and so it may engage Article 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). Article 8 provides a qualified right. A public authority must not interfere with a citizen’s private life unless that interference is proportionate, which means it is necessary to achieve one or more of identified objectives, which include protecting public safety, and protecting the rights and freedoms of others. The DBS must therefore act in a proportionate way when barring.

There are a number of different limbs to proportionality, identified by the courts in cases such as R (Quila) v Secretary of State for the Home Department [2011] 3 WLR and Huang v Secretary of State for the Home Department [2007] 2 AC 167. Proportionality in the context of this case, and many DBS appeals, focuses on one of those limbs: consideration of whether the DBS’s decision struck a fair balance between the rights of the individual and the interests of the community.

The approach which the Upper Tribunal should take to assessing proportionality was considered by the Court of Appeal in Independent Safeguarding Authority v SB [2012] EWCA Civ 977 (‘ISA v SB’), the Independent Safeguarding Authority being the forerunner of the DBS. The Court of Appeal described the ‘requisite approach’ by citing with approval extracts from previous authorities, saying as follows:

The Court in ISA v SB disapproved of the approach taken by the Upper Tribunal in the case before it, saying ‘it seems to me that the UT did not accord any particular weight to the decision of the ISA but proceeded to a de novo consideration of its own’ and ‘I find it difficult to escape the conclusion that the UT was simply carrying out its own assessment of the material before it’. The Court concluded ‘I consider that the complaint that the UT did not accord “appropriate weight” to the decision of the ISA is justified’ (Maurice Kay LJ at [18-23]).

The central principles to be derived from ISA v SB appear to us to be that on a proportionality challenge the Upper Tribunal should objectively judge whether DBS’s decision to bar was proportionate, undertaking the ordinary judicial task of weighing up the competing considerations on each side, but giving appropriate weight to DBS’s views. The court did not say that the Upper Tribunal should avoid its own consideration or assessment of the material, and plainly without any such consideration it would be impossible for the Upper Tribunal to make an objective judgment. However, the Upper Tribunal’s consideration should not be ‘de novo’, as such consideration should give appropriate weight to ISA’s decision, rather than starting from scratch.

ISA v SB was followed in DBS v Harvey [2013] EWCA Civ 180 . That case did not create any new legal principles in our view; the Court of Appeal found that the Upper Tribunal when considering proportionality had not given appropriate weight to the DBS’s conclusions (at [45]), and had made errors when drawing conclusions from the evidence including misconceived reliance on certain parts of the evidence (at [40]).

Some of the authorities cited with approval in ISA v SB related to courts which were operating within different jurisdictions to the jurisdiction of the Upper Tribunal in a DBS appeal. Nevertheless, the Court of Appeal in ISA v SB plainly found that the principles espoused in those cases were of application to the Upper Tribunal safeguarding jurisdiction. Those principles of general application have recently been restated by the Court of Appeal in Dalston Projects and others v Secretary of State for Transport [2024] EWCA Civ 172 (‘Dalston Projects’). The Court of Appeal described the role of the first-instance court when assessing proportionality in this way (the Upper Tribunal is a first-instance tribunal in the safeguarding context):