[2024] UKUT 286 (AAC)

In a letter dated 21 October 2023 from its legal representatives, DLA Piper, the DBS made an application for various orders under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (‘the UT Rules’). The Appellant consented to and supported that application at the outset of the hearing.

The Tribunal made the following orders at the beginning of the hearing for the following reasons.

We made an order that there is to be no publication of any matter likely to lead members of the public directly or indirectly to identify the Appellant or any person who had been involved in the circumstances giving rise to this appeal (witnesses or complainants) pursuant to rule 14(1)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008. We were satisfied that the Appellant, should not be identified, directly by name or indirectly, in this decision but referred to as ‘JLA’ (or ‘the Appellant’). Having regard to the interests of justice, what is just and fair and in accordance with the overriding objective, and the individuals’ right to privacy under Article 8 of the Convention, we were satisfied that it was proportionate to make such an order and give such a direction.

Identifying the Appellant herself may also lead to the identification of any complainants or witnesses who are either vulnerable themselves or have an expectation of privacy. Revealing the identity of any of the witnesses or complainants to the public would be likely to cause the complainants and the witnesses (residents, carers, healthcare assistants or nurses in residential care homes) emotional or psychological harm as they themselves were vulnerable, the potential victims of harmful conduct, or they had an expectation of privacy. The Appellant has not been prejudiced by anonymising the witnesses – she has been aware of their identities throughout and has been able to identify them to answer their evidence and allegations.

Identifying the Appellant may lead to the identification of all the parties, complainants and witnesses who are to be anonymised / not identified by virtue of the other orders being made and who may otherwise be identified or linked to the Appellant by virtue of the evidence in the case.

Further, the Appellant is the subject of misconduct allegations which took place in a care home. We are satisfied that identifying her at this stage may lead to serious and disproportionate harm to her reputation and employment prospects (an interference with the right to private life under article 8 of the ECHR) when the barring decision of the Respondent is not published generally to the world. There is an expectation of privacy and legal prohibition that the name and identity of the Appellant as appearing on a barred list (and whomever is included on the barred lists) is not publicised to the world or generally (but is known by the Appellant, the DBS, and any other party who may seek to conduct a DBS check upon her eg. a prospective or current employer).

We rely on the further reasons explained in R (SXM) v Disclosure and Barring Service [2020] EWHC 624 (Admin), [2020] 1 WLR 3259.  In that case the victim wanted to know the outcome of the referral to DBS. The Administrative Court held: (a) disclosure was not consistent with the statutory structure; (b) refusing to disclose was neither unreasonable nor disproportionate; and (c) there was no positive obligation to disclose under the Article 8 Convention right. The public interest in the protection and safeguarding of vulnerable groups is sufficiently protected by the barring decision itself and identification of the Appellant’s name only to prospective employers or those otherwise entitled to obtain information regarding him from the DBS.

We therefore make an order prohibiting the disclosure of any information that would be likely to identify the Appellant, complainants or witnesses in the terms set out in the letter on behalf of the DBS dated 21 October 2023.

We also make an order under rule 14(1)(a) that no documents or information should be disclosed in relation to these proceedings that would tend to identify the Appellant or any person who had been involved in the circumstances giving rise to this appeal. Any documents sought to be disclosed would need to be redacted for identifying information as specified in the letter dated 21 October 2023.

We make a further order under rule 14(1)(b) and (2) prohibiting the publication or disclosure of any information or document which may lead members of the public to identify any of the individuals (witnesses and complainants) relied on in the Respondent’s bundle of evidence and the Appellant herself. Identifying the Appellant herself may also lead to the identification of any complainants or witnesses. The individuals listed in the Respondent’s bundle of evidence are to be referred to in the manner set out within the letter dated 21 October 2023.