[2025] UKUT 041 (AAC)

The nature and scope of the Upper Tribunal’s “mistake of fact” jurisdiction under section 4(2)(b) of the SVGA was considered in RI v DBS [2024] EWCA Civ 95 as follows:

“In conferring a right of appeal in the terms of section 4(2)(b), Parliament must therefore have intended that it would be open to a person included on a barred list to contend before the Upper Tribunal that the DBS was mistaken to find that they committed the relevant act – or in other words, to contend that they did not commit the relevant act and that the decision of the DBS that they did was therefore mistaken.” (per Males LJ at paragraph 49).

The question of what constitutes a mistake in the findings of fact made by the DBS on which the decision was based (for the purposes of section 4(2)(b)) was considered in PF v DBS [2020] UKUT 256 (AAC):

“39.

There is no limit to the form that a mistake of fact may take. It may consist of an incorrect finding, an incomplete finding, or an omission. It may relate to anything that may properly be the subject of a finding of fact. This includes matters such as who did what, when, where and how. It includes inactions as well as actions. It also includes states of mind like intentions, motives and beliefs…

41.

The mistake may be in a primary fact or in an inference... A primary fact is one found from direct evidence. An inference is a fact found by a process of rational reasoning from the primary facts likely to accompany those facts.

42.

One way, but not the only way, to show a mistake is to call further evidence to show that a different finding should have been made. The mistake does not have to have been one on the evidence before the DBS. It is sufficient if the mistake only appears in the light of further evidence or consideration.”

Section 4(7) of the SVGA provides that where the Upper Tribunal remits a matter to the DBS it "may set out any findings of fact which it has made on which [DBS] must base its new decision". In setting out its findings of fact, the Upper Tribunal will:

“….need to distinguish carefully a finding of fact from value judgments or evaluations of the relevance or weight to be given to the fact in assessing appropriateness. The Upper Tribunal may do the former but not the latter. By way of example only, the fact that a person is married and the marriage subsists may be a finding of fact. A reference to a marriage being a "strong" marriage or a "mutually-supportive one" may be more of a value judgment rather than a finding of fact. A reference to a marriage being likely to reduce the risk of a person engaging in inappropriate conduct is an evaluation of the risk. The third "finding" would certainly not involve a finding of fact. Secondly, an Upper Tribunal will need to consider carefully whether it is appropriate for it to set out particular facts on which the DBS must base its decision when remitting a matter to the DBS for a new decision. For example, Upper Tribunal would have to have sufficient evidence to find a fact. Further, given that the primary responsibility for assessing the appropriateness of including a person in the children's barred list (or the adults' barred list) is for the DBS, the Upper Tribunal will have to consider whether, in context, it is appropriate for it to find facts on which the DBS must base its new decision.” (AB v DBS [2021] EWCA Civ 1575, [2002] 1 WLR 1022 per Lewis LJ at paragraph 55)

Notably, the Court of Appeal, in JHB [2023] EWCA Civ 982, at [92]) decided that the Upper Tribunal was not entitled to make different findings of fact from the DBS if it was basing such fresh findings on the same materials that were before the DBS when it made its decision. However, Males LJ, in RI, stated that this restrictive approach should be confined to those cases where the barred person does not give oral evidence, or gives no evidence relevant to the question of whether he/she committed the relevant act relied upon. Where the barred person does give oral evidence before the Upper Tribunal:

“…the evidence before the Upper Tribunal is necessarily different from that which was before the DBS for a paper-based decision. Even if the appellant can do no more than repeat the account which they have already given in written representations, the fact that they submit to cross-examination, which may go well or badly, necessarily means that the Upper Tribunal has to assess the quality of that evidence in a way which did not arise before the DBS.” (per Males LJ at paragraph 55)

Bean LJ stated in DBS v RI at paragraph 37 that:

“Where Parliament has created a tribunal with the power to hear oral evidence it entrusts the tribunal with the task of deciding, by reference to all the oral and written evidence in the case, whether a witness is telling the truth.”