Disclosure and Barring Service v JHB
| Jurisdiction | England & Wales |
| Judge | Lady Justice Elisabeth Laing,Lord Justice Baker,Lord Justice Lewison |
| Judgment Date | 17 August 2023 |
| Neutral Citation | [2023] EWCA Civ 982 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2022-001458 |
[2023] EWCA Civ 982
Lord Justice Lewison
Lord Justice Baker
and
Lady Justice Elisabeth Laing
Case No: CA-2022-001458
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER)
Upper Tribunal Judge Jacobs
UA-2021-002014-V
Royal Courts Of Justice
Strand, London, WC2A 2LL
Carine Patry KC and Yaaser Vanderman (instructed by Disclosure and Barring Service Legal Services) for the Appellant
JHB appeared in person
Hearing date: 16 May 2023
Approved Judgment
This judgment was handed down remotely at 10.00am on 17 August 2023 by circulation to the parties or their representatives by e-mail and by later release to the National Archives on 23 August 2023.
Introduction
The Respondent, JHB, was convicted of a sexual offence against a child who was 13 at the time. As a result, his name was included in what came to be known as ‘the children's barred list’. He applied to the Appellant, the Disclosure and Barring Service (‘the DBS’) for a review of his inclusion on that list. The DBS, in a decision dated 22 January 2021 (‘the Decision’) decided not to remove him from that list and to add his name to ‘the adults’ barred list’. JHB then appealed to the Upper Tribunal (Administrative Appeals Chamber) (‘the UT’). In a decision authorised for issue on 23 February 2022 (‘the Judgment’), the UT decided that the DBS had ‘made mistakes of law and fact on which its decision was based’. The UT also ‘ma[de] findings of fact and remit[ted] the matter to the DBS for a new decision’. The issue on this appeal, for which Singh LJ gave permission, is whether, in doing so, the UT acted beyond its powers.
On this appeal, the DBS was represented by Ms Patry KC and Mr Vanderman. JHB represented himself. I thank the parties for their written and oral arguments. Paragraph references are to the judgment of the UT, or, if I am referring to an authority, to that authority.
For the reasons given in this judgment, I have concluded that the UT acted unlawfully. It misunderstood its powers on an appeal against a decision of the DBS, and contrary to both a decision of this Court, and to a decision of a Presidential panel of the UT, purported to make findings of fact when it had no power to do so. I would allow the DBS's appeal. In order to put the legal issue in its context, I will summarise the facts, the Decision, the legal framework and the Judgment. I will then explain why I have reached my conclusion.
The background to the Decision
I have taken this summary of the background from the Decision and from a document which the UT referred to as ‘the Decision Records’. I say more about the Decision Records in paragraph 29, below.
On 15 June 2007, JHB was convicted of sexual activity (by penetration) with a female child under the age of 16 (‘the Offence’). He had pleaded guilty. He was 20 at the time and the child (‘victim 1’) was 13. Victim 1 was the daughter of JHB's father's then partner. JHB sometimes stayed the night in their house, and was allowed to sleep in victim 1's bedroom, as he was seen as being like a brother to her. In her police interview, victim 1 said that, at some point after the Offence, JHB had said to her ‘You'd better not tell anyone 'cos I could get arrested.’
On 13 August 2007 he was sentenced to 30 months' imprisonment, and was disqualified from working with children. He was required to register under the Sexual Offences Act 2003 for ten years. A sexual offences prevention order (‘SOPO’) was made until further order. Victim 1 later gave birth to a child, who, a DNA test showed, was his child. The DBS concluded that JHB had continued to deny that the child was his until his paternity was proved by that test, and that even then, did not admit this immediately.
On 28 November 2018 JHB applied to the DBS for a review of his inclusion in the list, pursuant to paragraph 18 of Schedule 3 to the Safeguarding of Vulnerable Groups Act 2006 (‘the SVGA’). JHB's representations included an NHS psychological and forensic risk assessment from 2016 and an earlier report from 2013 dealing with his completion of his treatment regime as a sex offender (‘the reports’). The DBS concluded that material in the reports showed that JHB had been ‘intentionally dishonest’ with the police about the Offence when he was questioned by them. Material in the reports also supported a further allegation about JHB's sexual conduct in relation to victim 1, which I refer to in paragraph 9.i., below. The DBS's researches also indicated that JHB had been the subject of other allegations, which were similar to the conduct which was the subject of JHB's conviction. Finally, checks by the DBS showed that the requirement that JHB register with the police was indefinite.
The Decision
The Decision described the procedural background, and said that the DBS had considered all the information, including JHB's representations. The DBS had decided that it was ‘appropriate and proportionate’ to keep JHB's name on the children's barred list, and to include his name on the adults' barred list. The DBS had taken into account the conviction (see paragraph 5, above).
The DBS considered that three further allegations were ‘proven on the balance of probabilities’. I will refer to these allegations collectively as ‘the further conduct’.
i. On several unspecified dates in January and February 2006, JHB engaged in sexual activity with victim 1, who was 13 at the time. That activity included touching and penetrating her vagina with his fingers. At the UT hearing, JHB accepted that this finding was correct (paragraph 8 of the Judgment). Victim 1 was the same person as the subject of JHB's conviction (see paragraph 5, above) (also paragraph 8 of the Judgment). I will refer to this as ‘finding 1’.
ii. On the night of 28 May 2010, he had non-consensual intercourse with his girlfriend, who was 16 (‘victim 2’). I will refer to this as ‘finding 2’.
iii. On 20 May 2010, he bought alcohol for two women who were 18 and 19 (‘victim 3’ and ‘victim 4’), later got into bed with them while they were asleep (and not aware of him) and touched victim 3. I will refer to this as ‘finding 3’.
The DBS was satisfied that JHB had ‘engaged in relevant conduct in relation to children’. That conduct was inappropriate sexual conduct involving a child, and conduct which, if repeated against or in relation to a child, would endanger that child, or would be likely to endanger him or her. The DBS was also satisfied that JHB had engaged in relevant conduct in relation to vulnerable adults. That conduct was conduct which, if repeated against or in relation to a vulnerable adult, would endanger that vulnerable adult, or would be likely to endanger him or her. The DBS considered that JHB had taken advantage of his victims ‘by exploiting their vulnerability and manipulating them’.
He had exploited his position as a trusted family friend of victim 1 to have sexual activity with her. He had been considered ‘to be like a brother to her’. She was vulnerable due to her age and not able to consent, yet JHB had ‘pressured her into having sexual intercourse with’ him. The DBS was now satisfied that he had also engaged in the conduct described in paragraph 9.i., above. The DBS was also satisfied that he had manipulated victim 1 into not disclosing this by telling her that he would not visit any more if she told anyone, and that, if she did, she could get him arrested. His conduct towards victim 1 was ‘likely to have caused her significant sexual harm and significant, lasting emotional harm’.
The DBS was also satisfied in relation to finding 2 (see paragraph 9.ii., above). JHB had been alone with victim 2 and she was ‘very heavily intoxicated’, and therefore could not validly consent. That was further evidence of his ‘exploitative behaviour’. It was likely to have caused victim 2 ‘significant sexual and emotional harm’.
The DBS was satisfied in relation to finding 3 (see paragraph 9.iii., above). The DBS acknowledged that victim 3 did not want to make a complaint to the police about this, but its view was that ‘this behaviour is considered likely to cause emotional harm if it were to be repeated against a vulnerable person within regulated activity’.
JHB had shown a ‘significant lack of empathy for’ his victims. He had committed serious sexual offences against a child even though she had asked him not to. He had little regard for the impact on victim 1, who had been 13. He had made her feel as if it was her fault, and that she could not tell anyone. She did not tell anyone she was pregnant until she was 26 weeks' pregnant. That showed the impact which his behaviour was likely to have had on a 13-year-old. He continued to deny his behaviour even when he knew that she was pregnant and despite the bad effect which that was likely to have had on her.
JHB's probation officer noted that JHB did not seem to be remorseful, and that his expressions of regret were not genuine. JHB had a poor attitude in his interview. He had tried to make jokes despite the fact that he was being interviewed about a sexual offence. The DBS took into account that this happened a long time ago and that JHB claimed to have ‘addressed empathy towards’ his ‘victims as part of [his] treatment.’ This only showed a ‘fundamental lack of understanding of the severity of [his] actions’. JHB had not said, in any of his correspondence with the DBS, anything about his victim or about the effect of his behaviour on her. All he had said was to acknowledge that he ‘did wrong 15 years ago’.
Shortly after his release from prison after serving the sentence for the Offence, he had non-consensual sex with victim 2, which showed a ‘considerable lack of empathy’ for her. The next day, when victim...
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