[2025] UKUT 029 (AAC)

We also consider that, in the context of appeals against DBS decisions, the emphasis that courts and tribunals in other contexts place on it being reasonable to assume that someone who litigates accepts the incidence of publicity that comes with that should perhaps be given less weight. That is because the legislative scheme gives those who are subject to it an expectation that they will not be publicly named and because the right of appeal to the Upper Tribunal is an essential element of that same legislative scheme. The hearing before the Upper Tribunal in DBS cases is the “fair and public hearing … by an independent and impartial tribunal” with “full jurisdiction” which secures that the barring scheme under the SVGA 2006 is compliant with Article 6 of the European Convention on Human Rights. A decision to place someone on a barred list (or not to remove them) is a determination of an individual’s civil right to practise their profession and to work with children/vulnerable adults: see R (G) v Governors of X School [2011] UKSC 30, [2012] 1 AC 167 at [33]. Although in that case the Supreme Court rejected the argument that Article 6 applied at the earlier stage of the employer’s internal disciplinary proceedings, the Court proceeded on the assumption that Article 6 did apply to the decision-making of DBS’s predecessor, the Independent Safeguarding Authority (ISA), and that, as such, the availability of an appeal to the Upper Tribunal as a court of “full jurisdiction” ensured the scheme as a whole was compliant with Article 6: see [84] per Lord Dyson, [94] per Lord Hope and [101] per Lord Brown. It is therefore important that an appellant should not be deterred from exercising their appeal rights by the fact that an appeal to the Upper Tribunal might bring with it publicity from which they are otherwise protected under the statutory scheme.

In this particular case, we are satisfied that the appellant’s right to privacy under Article 8 of the European Convention on Human Rights is engaged as the issues in the case are capable of significantly affecting her personal life and reputation, although the appellant has in fact been able to obtain alternative employment as a dental receptionist notwithstanding being placed on the barred list, so the impact on her of publicity would not be so great as in some cases. We also place limited weight on the appellant’s Article 8 rights because she has not provided any evidence of the impact on her of publicity, beyond bare assertions that she wishes for privacy. However, revealing the appellant’s name would represent a significant departure from the statutory scheme that was evidently intended by Parliament to strike the appropriate balance between public interest and private rights in this context as explained in SXM. As we have noted, although it is often said that a claimant implicitly accepts publicity by commencing legal proceedings, it is hard to see why someone who exercises their statutory right to appeal DBS’s decision should be deprived of the privacy they would otherwise have enjoyed if they had not appealed but accepted the barring. There is also no particular public interest in anyone knowing the appellant’s name in this case beyond the important general principle of open justice. In this case, the principle of open justice is very nearly as well served by the public hearing and the publishing of this judgment without names as it would be with names.

We are therefore satisfied that the appropriate balance in this case between the principle of open justice, Article 10 and the appellant’s Article 8 rights, is for the hearing and judgment to be public, but for the appellant to be anonymised.

For anonymity to be achieved in practice in this case, it seems to us that this means the name of the pre-school in which the appellant worked must also not be made public as this was a relatively provision and we consider there is a high risk of the appellant being identified if the pre-school is identified. It also means in our judgment that the names of other individuals in the case should be anonymised as publishing the names of multiple individuals who all worked at the same time in the same place would in our judgment bring a risk of ‘jigsaw identification’.

However, we are also satisfied that the other individuals in the case require anonymisation in their own right. Their Article 8 rights are also engaged. It may be said that the state (this Tribunal included) has a responsibility to protect the privacy of the children involved. As to other staff members, their personal reputations are not engaged to the same degree as the appellant’s, but some of them have been the subject of argument and allegations as to their professionalism or credibility. The proceedings relate to matters that occurred at their work some time ago which those involved would have had no reason to think would become public. These other staff members have not been involved in these proceedings, are probably unaware of the proceedings and have had no opportunity to answer any allegations made against them in these proceedings. These are all relevant factors as the TYU case makes clear. There is a real risk of unfairness to these staff members if their names are made public, and revealing their names would do little in this case to further the principle of open justice as their identities are not important to the facts of the case.

All these factors mean that, even absent the considerations about the appellant, we would have made Rule 14 orders requiring the staff members and service users referred to in these proceedings to be anonymised.