Legality of sex offender index challenged

Roger Pearson reports on an appeal brought by a social worker who was dismissed following allegations of child abuse.

An appeal is pending in a case which questions the legality of the Department of Health's consultancy service index of alleged sex offenders.

The purpose of the index is to assist employers in child care to decide on the suitability of a person to work with children.

Reasons for inclusion on the index are not given unless they are the result of a criminal conviction or a caution.

The appeal is being brought by a former Kent social services worker who was sacked after allegations that he sexually assaulted a foster-child in his care.

It was also alleged that he had abused his own and his partner's children.

The man had challenged his dismissal but both an industrial tribunal and the employment appeal tribunal rejected his claim for unfair dismissal.

The appeal follows Mr Justice Richards' refusal last December to rule that the index was unlawful in the High Court.

The challenge was brought on the grounds that the index could not be operated lawfully in the absence of parliamentary authority and that such authority had not been given.

However, Mr Justice Richards said he was wholly unpersuaded by this argument and in his opinion considered the index lawful.

In addition to challenging the legality of the index itself, the man questioned the standard of proof and procedure adopted in including names on the register.

On the question of the criteria leading to his inclusion on the index, the man argued that the standard of proof required should be "beyond reasonable doubt".

He argued that the burden of proof had been reversed so that now the onus was on him to persuade the Home Secretary to remove him from the index.

He also claimed that inclusion of his name was in breach of the European Convention on Human Rights because he had been put on the register without any prior warning.

However, the judge rejected the challenge to the criteria for inclusion along with argument that the decision to include the man's name on the index amounted to a "determination" of his civil rights and obligations and was in breach of the European Convention on Human Rights.