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October 14, 2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
J U D G M E N T
LORD JUSTICE LAWS: This is an appeal with permission granted by Elias LJ on 12th February 2014 against a decision of the Upper Tribunal (Administrative Appeals Chamber) dated 16th July 2013 (see [2013] UKUT 339). By that decision the Upper Tribunal dismissed the appellant's appeal against an earlier determination of the First Tier Tribunal ("the FTT") made as long ago as 3rd March 2009.
The history of the case is complex and unusual. The appellant was a qualified mental health nurse. On 22nd November 2007 his name was placed on the Protection of Children and Protection of Vulnerable Adult lists. The placement was confirmed on 10th July 2008. As the Upper Tribunal was to observe, nothing turns on the statutory setting of the lists; it is enough to say they are a mechanism by which a person may be prohibited from working with children or in education or with vulnerable people if he is unsuitable by virtue of his conduct or on certain other grounds.
There were three reasons for the appellant's inclusion on the list of which, according to the appellant at least, the most serious was an allegation of assault on a patient referred to as "KG" during a riot at a secure unit. Of course, as Miss Blackmore for the Secretary of State has been at pains to insist, the issue is not strictly as to a criminal assault but as to the appellant's suitability to work with children or the vulnerable.
The appellant appealed against the listing. He claimed to have been acting in legitimate self-defence on the occasion of what I will call the assault.
On 3rd March 2009 the FTT dismissed his appeal. Permission to appeal to the Upper Tribunal was refused by the FTT and then by the Upper Tribunal, which also declined to set aside their refusal. These decisions on the applicant's application for permission to appeal against the FTT determination were made in 2009 and 2010.
However, in separate proceedings before a panel of the Conduct and Competence Committee of the Nursing and Midwifery Council it was found on 21st February 2011, following a hearing, that the allegation of assault was not well-founded. The appellant thereafter sought judicial review of the Upper Tribunal's refusal of permission to appeal to it against the FTT decision of 3rd March 2009. Judicial review permission was granted by Wilkie J on 8th July 2011, by which time the Supreme Court had delivered judgment in Cart , [2011] UKSC 28 , on the availability of judicial review against a refusal b
AI Generated Summary
Laws LJ, with Patten LJ and Macur LJ concurring, allowed the appeal of a mental health nurse whose inclusion on the Protection of Children and Protection of Vulnerable Adult lists was contested. After the First-tier Tribunal dismissed his appeal and the Upper Tribunal refused permission, the Administrative Court (HHJ Sycamore) quashed the UT refusal, finding a serious procedural irregularity: the FTT failed to consider colleague William Buck’s material statement about the riot involving patient KG. Despite that, and after later granting permission, the Upper Tribunal (Judge Levenson) dismissed the substantive appeal while disputing the Administrative Court’s premise and focusing on legality. The Court of Appeal held that on remittal the Upper Tribunal was bound to treat the Administrative Court’s ratio as an axiom, requiring either allowance and remittal to the FTT or a rehearing. The matter is to return to the UT on the footing of the serious procedural error.