GF v Disclosure and Barring Service
| Jurisdiction | UK Non-devolved |
| Judge | Judge Wikeley |
| Neutral Citation | [2020] UKUT 204 (AAC),[2020] UKUT 204 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Safeguarding vulnerable groups,Tribunal procedure,practice,Safeguarding vulnerable groups - Children’s barred list,practice - evidence,Wikeley,N |
| Date | 18 June 2020 |
| Published date | 22 July 2020 |
GF v DBS [2020] UKUT 204 (AAC)
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to dismiss the appeal by the Appellant.
The decision by the Respondent under “customer reference” 00892354601,
communicated to the Appellant by letter dated 25 June 2019, does not involve
any material mistake of fact or law.
The Upper Tribunal further DIRECTS that, in accordance with the Anonymity
Order below, there is to be no publication of any matter likely to lead members
of the public, directly or indirectly, to identify any person who has been
involved in the circumstances giving rise to this appeal (rule 14 of the Tribunal
Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698)).
This decision and ruling are given under section 11 of the Tribunals, Courts and
Enforcement Act 2007 and rules 14, 21 and 22 of the Tribunal Procedure (Upper
Tribunal) Rules 2008.
ANONYMITY ORDER
1. Pursuant to rule 14(1) of the Tribunal Procedure (Upper Tribunal) Rules 20081, we
prohibit the disclosure or publication in particular of—
(a) the Appellant’s name (referred to as “GF” in this decision);
(b) the name of the Appellant’s granddaughter (referred to as “Child A” in this
decision);
(c) the name of the Appellant’s grandson (referred to as “Child B” in this decision);
(d) the name of the Appellant’s daughter (referred to as “Mrs AB” in this decision;
(e) the name of the Appellant’s son-in-law (referred to as “Mr AB” in this decision;
(f) any matter likely to lead members of the public to identify any person mentioned in
any of subparagraphs (a) to (e) above
2. Any breach of the order set out at paragraph 1 above is liable to be treated as a
contempt of court and punished accordingly (see section 25 of the Tribunals, Courts
and Enforcement Act 2007).
Attendances:
For the Appellant: Mr Oliver Renton of Counsel, instructed by direct access
For the Respondent: Ms Galina Ward of Counsel, instructed by the Disclosure and
Barring Service
GF v DBS [2020] UKUT 204 (AAC)
REASONS FOR DECISION
Introduction
1. This is the Appellant’s appeal against the decision of the Disclosure and Barring
Service (DBS) to place him on the Children’s Barred List under the Safeguarding
Vulnerable Persons Act 2006 (“the 2006 Act”).
2. We held a virtual hearing of this appeal on 21 May 2020. The Appellant was
represented by Mr Oliver Renton of Counsel. The Respondent (from now on, “the
DBS”) was represented by Ms Galina Ward, also of Counsel. We are indebted to
them both for their careful submissions both before and at the hearing.
3. As well as the Appellant’s oral evidence, we heard the advocates’ oral
submissions and considered all the documentation in the appeal hearing bundle
(whether or not it was referred to in the hearing itself).
4. For the reasons that follow, the Upper Tribunal dismisses the Appellant’s appeal.
We conclude that there is no material error of law or mistake of fact in the DBS
decision to include the Appellant on the Children’s Barred List.
5. We deal first with a couple of procedural matters, being the decision to proceed
by way of a virtual hearing and the DBS’s provision of late evidence. By way of a
roadmap, our decision as a whole is organised as follows:
Paras 6-12: The decision to proceed by way of a virtual hearing
Paras 13-14: The Disclosure and Barring Service’s late evidence
Paras 15-17: The Disclosure and Barring Service’s decision under appeal
Paras 18-25: The legislative framework under the 2006 Act
Paras 26-27: The grounds of appeal to the Upper Tribunal and the DBS response
Paras 28-30: The people involved and the anonymous abbreviations used in this
decision
Paras 31-37: The Disclosure and Barring Service decision-making process
Paras 38-42: The conviction under section 1(1)(a) of the Protection of Children
Act
1978
Paras 43-99: The evidence about the central allegation
43-44 Introduction
45-62 The Police Occurrence Enquiry Log Report
63-65 The ABE interview transcript and Child A’s evidence
66-73 Documentary evidence from the Children’s Service
74-85 The Appellant’s evidence
86-95 Mrs AB’s evidence
96-99 Other evidence
Paras 100-153: Weighing the evidence and finding the facts
100 Introduction
101-106 The Appellant’s legal submissions
107-111 The legislative provisions governing the reception of
evidence in safeguarding cases
112-114 Some general principles in cases of alleged sexual
abuse
115-120 Police Occurrence Enquiry Log Report: our evaluation
GF v DBS [2020] UKUT 204 (AAC)
121-129 The ABE interview transcript: our evaluation
130-137 The Appellant’s evidence: our evaluation
138-140 Mrs AB’s evidence: our evaluation
141-144 Child B’s evidence: our evaluation
145-153 Our findings of fact taking into account our evaluation of
all the evidence
Paras 154-172: The laptop search terms
Paras 173: Conclusion
Paras 174-177: Postscript
The decision to proceed by way of a virtual hearing
6. This appeal was lodged with the Upper Tribunal in September 2019. In
December 2019 the oral hearing of this appeal was fixed for 21 May 2020. Obviously,
however, the Covid-19 pandemic intervened. On 29 April 2020 the Upper Tribunal
issued case management directions, inviting either party to indicate whether they
wished to apply for a postponement of the appeal hearing. In doing so the judge
made the following observations:
“7. The appeal has a hearing date scheduled for Thursday 21 May 2020.
Paragraph 3 of the Chamber President’s latest guidance states as follows:
‘The UTAAC is not holding face to face hearings at present. In respect of
appeals and applications which are listed for hearing, the parties will be
contacted by UTAAC staff in order to assist the judge to decide whether the
matter is suitable for a telephone or video hearing (for example, by Skype).
The judge must ensure that the case is heard and decided in a just and fair
way. The judge will consider whether and how this can be done.’
8. It will come as no surprise to the parties if I say that I have concluded without
needing to hear any observations from the parties that this appeal is not suitable
for a telephone hearing.
9. The appeal may be suitable for a virtual hearing. The platform that UTAAC
uses for such virtual hearings is Skype for Business. Several such hearings
have already taken place in UTAAC jurisdictions. My provisional view is that
Skype for Business is, in the circumstances, entirely satisfactory for cases
involving legal submissions. Suitability may perhaps be open to question if there
is to be extensive factual evidence including cross-examination. I would
welcome the parties’ observations. If this virtual hearing date is lost, for fairly
obvious reasons I cannot at this stage predict or even hazard a guess as to
when UTAAC will revert to traditional face-to-face oral hearings.”
7. The DBS response was to adopt a position of studied, if unenthusiastic,
neutrality. DBS noted that it was “anticipating extensive cross examination of
witnesses should they attend to give oral evidence, as this is a case in which the
correctness of a major factual finding made by the Respondent is in issue. Although
the Respondent is not requesting a postponement of the forthcoming hearing, it does
share the Tribunal’s concerns regarding the suitability of video hearings in cases
involving extensive factual evidence including cross examination.”
8. The Appellant expressly stated that he was not seeking a postponement. His
position, in essence, was that (as his counsel summed up) “whilst far from ideal, we
would suggest that it would be preferable to proceed by way of video link than to
necessitate potentially considerable delay”. Counsel very fairly noted that MoJ and
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