CB V 3418 2012
| Jurisdiction | UK Non-devolved |
| Judge | Three-Judge Panel / Tribunal of Commissioners |
| Judgment Date | 28 November 2013 |
| Neutral Citation | 2013 UKUT 605 AAC |
| Subject Matter | Safeguarding vulnerable groups |
| Respondent | Disclosure and Baring Service |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | V 3418 2012 |
| Appellant | CB |
IN THE UPPER TRIBUNAL Case No. V/3418/2012
ADMINISTRATIVE APPEALS CHAMBER
Before: Judge E A L Bano
Ms Linda Redford
Mr Richard Beeden
Attendances:
For the Appellant: The appellant in person
For the Respondent Ms Catrine Patry of Counsel, instructed by the Treasury Solicitor
Decision: The decision of the Upper Tribunal is to confirm the decision of the Independent Safeguarding Authority (now the Disclosure and Barring Service).
REASONS FOR DECISION
1. The appellant is a man now aged 72 with a long-standing interest in castration and eunuchs. On 22 August 2008 he was convicted on his plea of guilty to two indictments containing in total 44 counts of making indecent images of children on various dates between 2002 and 2007, contrary to section 1(a) of the Protection of Children Act 1978. Of the approximately 2506 images of children involved in the first indictment, 2469 were on level 1, 16 were on level 2, 6 were on level 3, 14 were on level 4 and 1 was on level 5. The second indictment related to 32 images, of which 21 were on level 1, 3 were on level 2, 3 were on level 3, 2 were on level 4 and 3 were on level 5. The second indictment related to offences allegedly committed by the appellant while he was on bail for the offences in the first indictment.
2. Although the appellant maintained, as he still does, that the disks containing the images which formed the subject of the second indictment had been previously confiscated by the police and returned to him, the trial judge rejected that account and found that the appellant had downloaded new images for his sexual gratification while on bail. The appellant was sentenced to 20 weeks imprisonment on the first indictment and 12 weeks imprisonment on the second indictment, to run consecutively; but the judge declined to make a Sexual Offences Prevention Order under section 104 of the Sexual Offences Act 2003, or a disqualification order under section 28 of the Criminal Justice and Court Services Act 2000.
3. Because the offences were committed before section 2 of the Safeguarding Vulnerable Groups Act came fully into force on 20 January 2009, paragraph 25(4) of Schedule 3 to the 2006 Act prevented the ISA from automatically including the appellant on the children’s barred list because the sentencing court had considered whether to impose a disqualification order, but had decided not to do so. Paragraph 3(4) imposed the same restriction in relation to barring for ‘behaviour’ under paragraph 3. However, no such restrictions applied in relation to barring for ‘risk of harm’ under paragraph 5 of Schedule 3. Although the appellant was initially included in the children’s barred list under paragraph 1 of Schedule 3, his name was therefore removed from the list on 23 December 2010 and he was ultimately placed on the children’s barred list under the provisions of paragraph 5. That paragraph provides:
“(1) This paragraph applies to a person if-
(a) it appears to IBB that the person falls within sub-paragraph (4), and
(b) IBB proposes to include him in the children’s barred list.
(2) IBB must give the person the opportunity to make representations as to why he should not be included in the children’s barred list.
(3) IBB must include the person in the children’s barred list if-
(a) it is satisfied that the person falls within sub-paragraph (4), and
(b) it appears to IBB that it is appropriate to include the person in the list.
(4) A person falls within this sub-paragraph if he may-
(a) harm a child,
(b) cause a child to be harmed,
(d) attempt to harm a child, or
(e) incite another to harm a child.”
4. Following his initial inclusion on the children’s barred list under paragraph 1 of Schedule 3 to the 2006 Act, the appellant was invited to make representations as to why he should be removed from the list and he did so on 14 April 2009. The appellant stated that it had been accepted throughout his trial that he posed no risks to children and that without exception all the photographs found in his possession were of boy eunuchs taken before 1920. The appellant contended that it was wrong to equate his action in downloading images which he believed to be legal with that of a person who took live photographs of children, and the appellant enclosed with his representations testimonials regarding his good character and valuable work, in particular, in fostering church music.
5. In response to the appellant’s representations, the Independent Safeguarding Authority (the successor to the IBB and predecessor of the Disclosure and Barring Service) obtained a copy of the judge’s sentencing remarks and of the pre-sentence probation report, which described the appellant as an “extremely complex character” and “highly likely to re-offend”. The ISA then requested from the police Public Protection Unit an updated risk assessment, which assessed the risk dynamically of the appellant re-offending as very high. The ISA also obtained the appellant’s consent to attend an assessment at the Lucy Faithfull foundation.
6. The assessment carried out for the Foundation by Doctor Judith Earnshaw, which was based on six hours of interviews with the appellant together with all the documentary evidence in the possession of the ISA, was extremely comprehensive and investigated the appellant’s psychological drivers in detail. Doctor Earnshaw noted that the appellant saw nothing wrong with viewing naked images of children or adults and thought that such behaviour should be legal, that he did not think that being photographed naked was harmful to the subjects, and did not consider using naked images for sexual gratification to be wrong. Doctor Earnshaw concluded:
“I do not accept that there was no sexual motivation behind [the appellant’s] interest in images of naked boys. I consider it quite possible that this interest may co-exist with a range of other legal sexual interests, and that [the appellant] has probably used the internet over a period of years to explore his sexuality. I anticipate that this behaviour is likely to continue, although increasing age and infirmity may slow down the process. [The appellant] states that his experience of conviction and imprisonment was aversive enough for him not to return to downloading indecent images of boys. Because this is not accompanied by any internal sense that the behaviour is wrong or harmful, and because use of the internet for sexual gratification is often a rather compulsive behaviour, I cannot rule out the possibility that he might reoffend in a similar way. However, I consider the likelihood of his committing any form of contact offence to be extremely low, and I do not see him as presenting a risk to children in real life.”
7. Following his removal from the children’s barred list under paragraph 1 of Schedule 3, the appellant was invited to make further representations in relation to the risk that he might cause a child to be harmed (paragraph 4(b) of Schedule 3 to the 2006 Act). The appellant failed to make representations in time because he was undergoing medical treatment and was placed on the children’s barred list for that reason on 7 July 2011, but he was then allowed to make late representations and did so on 28 August 2011. The appellant strongly disputed the accuracy and conclusions of the Public Protection Unit report and relied on the sentencing remarks of the trial judge and on Doctor Earnshaw’s report in support of his assertion that he presented no risk of harm to children or adults.
8. The appellant’s case was referred to the ISA’s Case Committee, which considered it on 24 and 25 April 2012. On 25 April the Authority wrote to the appellant informing him that they now had new concerns concerning his lack of empathy and child abuse supportive beliefs, evidenced by his view that naked images of children being used for the sexual gratification of others was not harmful and should be legal. The appellant was invited to comment further and did so in letters dated 22 May and 6 June 2012 in which he vehemently denied any sexual interest in young males and again asserted that his interest in eunuchs was purely academic.
9. The Case Committee considered the appellant’s case again on 26 and 27 June 2012 using the Authority’s Barring Decision Making Process Document, including the Stage 3 Structured Judgement Process. The decision on whether it was appropriate to include the appellant on the children’s barred list concluded:
“Throughout the evidence provided it is determined that [the appellant] is assessed as being a low risk of a contact offence regarding a child. However, significant concerns remain that, due to his faulty thinking regarding indecent images of children on the Internet, in that he does not understand why these children are seen as victims or his belief that that there is no child pornography on the internet as the Police have removed it; [the appellant] has an idealised view of how and why indecent images of children are made, he believes that “its rubbish that children are asked to pose naked by photographers” but believes that the money...
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