[2025] UKUT 86 (AAC)

DBS in this appeal initially took the position that no procedural error could be material unless the appellant was able to show that the outcome would or might have been different if the procedural error had not occurred. We observed that the consequence of that argument would appear to be that, unless the appellant could establish that there was some other error in the decision (eg as to fact or proportionality), a procedural error would never amount to a mistake of law for the purposes of section 4(2)(a). However, in the course of argument, counsel for DBS accepted that this was not necessarily the case and that there were some types of procedural error that would be materially unfair (and thus amount to mistakes of law) even if it could not be shown that the outcome would be in any different.

We observe that the position arrived at by counsel for DBS in the course of argument in fact accords with Brooke LJ’s list of errors of law in R (Iran), which identifies procedural errors of law as follows: “committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings” (our emphasis).

In argument, counsel for DBS acknowledged that one type of procedural unfairness that would amount to a material error, whether or not it could be shown that the outcome would be different, would be bias or apparent bias on the part of the decision-maker.

We observe that bias is one of what are frequently articulated as being the two pillars of natural justice. As Dyson LJ put it in AMEC Capital Projects Ltd v Whitefriars City Estates Ltd [2005] 1 All ER 723 at [14]:

14.

The common law rules of natural justice or procedural fairness are twofold. First, the person affected has the right to prior notice and an effective opportunity to make representations before a decision is made. Second, the person affected has the right to an unbiased tribunal. These two requirements are conceptually distinct. It is quite possible to have a decision from an unbiased tribunal which is unfair because the losing party was denied an effective opportunity of making representations. Conversely, it is possible for a tribunal to allow the losing party an effective opportunity to make representations, but be biased. In either event, the decision will be in breach of natural justice…

We also drew to counsel’s attention at the hearing that, in the context of decisions of the Parole Board, the Supreme Court in Re Reilly’s Application for Judicial Review [2013] UKSC 61, [2014] AC 1115 emphasised that fairness may require an oral hearing even where there is no real prospect of the outcome being different in the case and that material unfairness may arise where a prisoner is denied the opportunity of participating in a decision “with important implications for him, where he has something useful to contribute”: see in particular [2(iv) and (v)] in the Supreme Court’s judgment in that case.

In the context of the scheme under the SVGA 2006, the High Court in RCN confirmed at [103] that it was not necessary for the Independent Safeguarding Authority (DBS’s predecessor body) to hold an oral hearing in order for the scheme as a whole to comply with Article 6 of the European Convention on Human Rights. However, part of its reasoning for so concluding was (at [103]) that “the Upper Tribunal can put right any errors of law and any material errors of fact and, further, can do so at an oral hearing if that is necessary for the fair and just disposition of the appeal”. After being referred to this passage by counsel for DBS, we suggested that, in deciding whether a procedural error amounts to a mistake on a point of law for the purposes of section 4(2)(a), it might be relevant to consider whether the error was one that was capable of being remedied through the appeal process or not. Counsel for DBS accepted that this might be a relevant consideration, and we conclude that it is.

Counsel for DBS further accepted that we would need to bear in mind in this respect that an appeal to the Upper Tribunal is not “a full merits based appeal” (cf RCN at [104]) because the question of whether or not it is “appropriate” for someone to be included on a barred list is not a question of law or fact for the Upper Tribunal: SVGA 2006, section 4(3). We observe that the question of whether or not it is “appropriate” to bar someone will in many cases be a question that is susceptible of being rationally and lawfully answered either “yes” or “no” by DBS on the same facts. In other words, a different decision-maker at DBS might reach a different decision in a particular case without there being any error in the decision that could be successfully challenged as a mistake of law on appeal to the Upper Tribunal. Equally, relatively minor factual details, perhaps of context or presentation, of the sort that would be unlikely to be regarded as a mistake of fact on appeal may nonetheless lead a DBS decision-maker to make a different decision on whether it is appropriate to bar.

Accordingly, we consider that a procedural error is likely to make a material different to the fairness of the proceedings, and thus constitute a mistake on a point of law, if it results in the appellant being deprived of the opportunity to have DBS fairly consider whether or not it is appropriate for the appellant to be included in (or removed from) a barred list. Fairness in this context will normally mean a decision that complies with the two main pillars of natural justice, i.e. a decision that is, at least: (i) free from bias; and, (ii) taken after having given the appellant an effective opportunity to make representations.

As regards the latter requirement, we note that DBS’s position in response to this appeal was to ‘not admit’, but ‘require the appellant to prove’ that an individual should be given a “reasonable opportunity” to make representations in relation to decisions made under the SVGA 2006. For the avoidance of doubt, we are satisfied that the principles of natural justice do normally require an individual to be given a reasonable/effective opportunity to make representations and that, save where the statutory scheme under the SVGA 2006 dictates otherwise, or the interests of children or vulnerable adults require it, DBS must act in accordance with the normal principles of natural justice when making its decisions.