The Independent Safeguarding Authority: my letter to Ed Balls

Following my letter to Sir Roger Singleton about the ISA’s apparent reluctance to believe that a jury may acquit because it is sure someone is innocent, I have also written to Ed Balls. This time it’s about the lopsided attitude to rethinking past decisions.

Dear Secretary of State,

I was glad to read that you have ordered a review into some of the workings of the Independent Safeguarding Authority. However, I wanted to raise with you one particular issue about the legislation around the ISA which your review does not appear to cover.

In brief, it is this: if you have been previously found innocent of something the ISA can rethink the matter and decide you were guilty after all. But if you were previously found guilty of something, the ISA is not allowed to rethink the matter and decide you were innocent after all.

Before giving the details of where this lopsided attitude applies in the rules, I would like to draw your attention to just what a major departure this is from the way matters are usually run. Many sets of rules give equal rights of appeal – against a finding of innocence or a finding of guilt. The legal system overall is more generous in allowing appeals if someone is found guilty than if someone is found innocent.

But having a system where you can get matters reconsidered if someone was found innocent, but not if they were found guilty? That is an extremely unusual approach, and I cannot see any cogent argument that has been made to justify it. It certainly does though have an unfortunate overtone of thinking “there’s no smoke without fire”.

If you look at the ISA’s “Guidance Notes for Barring Decision Marking Process” they make clear that, in the ISA’s view, where another authority has found someone guilty of a charge, then even if new evidence has since come to light they cannot question that guilty verdict when deciding whether or not to bar someone. However, if someone has been acquitted, the notes again make clear, the ISA believe it does have the legal power to reconsider than in the light of any new evidence.

I hope you will either provide a persuasive case for this inequitable treatment – or change the law.