DS V 628 2016
| Jurisdiction | UK Non-devolved |
| Judge | Judge E. Jacobs |
| Judgment Date | 11 July 2016 |
| Neutral Citation | 2016 UKUT 327 AAC |
| Subject Matter | Safeguarding vulnerable groups |
| Respondent | Disclosure and Barring Service |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | V 628 2016 |
| Appellant | DS |
Decision of the Upper Tribunal
(Administrative Appeals Chamber)
This decision is given under section 4 of the Safeguarding Vulnerable Groups Act 2006 (SVGA):
The Disclosure and Barring Service (DBS), in its decision notified on 25 November 2015 under reference 08/57486 (DIT) including DS on the Children’s Barred List, did not make mistakes in law or in the findings of fact on which its decision was based.
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted ANONYMITY. No report of these proceedings (in whatever form) shall directly or indirectly identify him or any member of his family. Failure to comply with this order could lead to a contempt of court.
Reasons for Decision
A. History- We refer to the history of this case only in so far as it is necessary in order to make our decision intelligible. We refer in more detail to some of the evidence when we come to the arguments of counsel
- DS has been subject to two sets of allegations concerning boys: one set was in 1998 (sometimes referred to as historic in the argument before us) and the other in 2010. The former involved DS’s cousin; the latter involved a teenager whom DS was mentoring under the Youth Offender Team programme. Both sets of allegations led to a number of criminal charges from which DS was acquitted, in one case on the direction of the trial judge
- The 1998 allegations concerned DS’s male cousin. The incidents were said to have occurred between 1991 and 1995 when the cousin was between 9 and 14 years old. They involved oral and manual masturbation while they were on holiday with other members of the family. This led to eight charges of indecent assault and gross indecency with a child. DS denied the charges and was acquitted.
- The 2010 allegations concern LR, who was 13 at the time. He alleged two incidents. One occurred when he was sharing a tent with DS on a camping trip. He claimed that DS had touched his penis. The other occurred when he was staying overnight at DS’s flat. He claimed that he had to share DS’s bed, as the airbed that he had used on previous visits was not inflated, and that DS masturbated him manually during the night. This led to two charges of sexual assault on a male. The judge directed the jury to find him not guilty in respect of the incident during the camping trip and the jury found him not guilty in respect of the incident at the flat.
- The DBS assessed whether he should be added to a barred list on two occasions. The first assessment was made in respect of the 2010 allegations and without knowledge of the 1998 allegations. This assessment concluded that the allegations against DS were not proven. In May 2013, the DBS decided not to add him to the lists despite:
- having been trained in his duties and boundaries as a mentor;
- avoiding completing the necessary paperwork to record contact for over two months;
- failing to report safeguarding concerns when LR said his father was beating him;
- allowing him access to alcohol;
- taking him on a camping trip;
- allowing him to visit his flat and sleep there;
- realising that he was taking a risk.
The 1998 allegations came to light later in 2013 when DS applied for an enhanced criminal record check. This led to a further assessment by the DBS. This new assessment concluded that all the allegations, both those in 1998 and those in 2010, were proven on the balance of probabilities and the decision was taken to add DS to the Children’s Barred List. That was in November 2015.
- DS applied for permission to appeal to the Upper Tribunal and Judge Jacobs gave him permission to appeal, saying:
I accept, of course, that the DBS was applying the civil standard rather than the criminal standard and that they were entitled to take account of the totality of DS’s conduct. Nevertheless, I consider that the detailed grounds submitted on DS’s behalf have a realistic prospect of success. Without limiting my permission, it is arguable that the DBS did not properly find the facts relating to DS’s conduct with his nephew and LR.
- Unlike the Upper Tribunal’s appellate jurisdiction under sections 11 and 12 of the Tribunals, Courts and Enforcement Act 2007, our powers in this case are governed by section 4 of the Safeguarding Vulnerable Groups Act 2006:
4 Appeals
…
(2) An appeal under subsection (1) may be made only on the grounds that DBS has made a mistake–
(a) on any point of law;
(b) in any finding of fact which it has made and on which the decision mentioned in that subsection was based.
(3) For the purposes of subsection (2), the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact.
DS’s grounds of appeal had argued that the DBS had made a mistake on a point of law under section 4(2)(a). That is how the case was presented on the appeal itself. There was no attempt to argue that the DBS had simply made a mistake in a finding of fact under section 4(2)(b), despite the suggestion in the grant of permission.
B. The oral hearing- We held an oral hearing on 27 June 2016. DS was represented by Ms Anita Davies of counsel. Ms Zoe Leventhal of counsel represented the DBS, speaking to a skeleton prepared by Ms Galena Ward of counsel. We refer to DBS’s argument as being put by Ms Leventhal merely as a convenient way of referring to the joint contribution.
- Ms Davies argued that the DBS had made mistakes on points of law in three respects:
- reasonableness;
- Article 6(2) of the European Convention on Human Rights;
- Article 8 of that Convention.
We take her arguments in turn.
C. Reasonableness The arguments- Ms Davies argued that it was unreasonable to reach a different conclusion in November 2015 from the earlier decision just because of the historic allegations. There was no evidence of the earlier trial itself, the summing up or the nature of the jury’s acquittal. The DBS did not analyse the evidence that was available, merely repeating the allegations. Turning to the 2010 allegations, the DBS’s reasoning was circular, using each set of allegations to establish the truth of the other. The reasoning was unconvincing. As to the camping trip, it was irrational to find the allegation proved when LR himself had said in court that any touching was not deliberate. Finally, it was unreasonable to criticise the representations made on DS’s behalf for providing no further evidence, since he did not know what evidence was held by the DBS and, anyway, what sort of evidence could be produced?
- Ms Leventhal accepted that unreasonableness and rationality would show an error of law and that detailed analysis of the allegations by reference to the evidence was required. But it was not enough to show that a different analysis was possible. The documentation showed that the DBS had undertaken a very detailed analysis of the allegations. It could not consider evidence that was not available. It could not be realistically argued that the decision was not open to the DBS.
- The change of assessment: it was not unreasonable to come to a different conclusion in 2015 from the one reached in 2013 once the 1998 allegations were available; quite the reverse. Those allegations were significant because of the clear similarities between the allegations:
- Both sets of allegation involved boys of around the same age;
- There was no sensible reason for them to invent their accounts;
- Both boys were vulnerable;
- DS befriended them;
- He shared a bed with them;
- He masturbated them without asking for any reciprocation
The fact that LR was not aware of the allegations that had been made by DS’s cousin strengthens the significance of these similarities.
- Incomplete evidence: it was not unreasonable to rely on the evidence of the 1998 allegations despite it being incomplete. It is untenable to argue that allegations should be ignored just because all the evidence that had at one time existed was no longer available. The fact that the evidence is incomplete goes to the significance that can be attached to it, not to its...
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