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50.In assessing proportionality, the Upper Tribunal has ‘…to give appropriate weight to the decision of a body charged by statute with a task of expert evaluation’ (see Independent Safeguarding Author
50.In assessing proportionality, the Upper Tribunal has ‘…to give appropriate weight to the decision of a body charged by statute with a task of expert evaluation’ (see Independent Safeguarding Authority v SB [2012] EWCA Civ 977 at [17] as set out above). However, we must conduct our own assessment of proportionality afresh rather than simply review the DBS’s assessment.
51.We are satisfied that each of questions a)-d) should be answered in favour of the barring decision being proportionate based on the findings that the DBS made at the time and the findings we have made on appeal (even though we found the second finding of relevant conduct to contain mistake(s) of law).
52.On the basis of the findings that the DBS made in its final decision letter and the findings we have made in this appeal, we are satisfied that it was proportionate and reasonably necessary to bar JA in order to achieve its (important and) legitimate safeguarding aims.
53.There is no real question that the public interest and legislative objective of safeguarding vulnerable groups is sufficiently important to justify the interference with private life that barring constitutes, and that barring is rationally connected to protecting those groups.
54.We are satisfied that when making the barring decision, there were no other measures in place sufficient to adequately safeguard children from JA participating in regulated activity and committing further acts of relevant conduct such that it was the least intrusive measure necessary.
We are also satisfied that barring was necessary and struck a fair balance between JA’s right to a private life and the interests of the community. The DBS expressly carried out the “balancing act” exercise required. Based on our findings we would have done the same. We are satisfied that the DBS was entitled to find that the Appellant presented a risk of harm to children at the time of the decision based upon the first finding of relevant conduct as originally made. The decision that the Appellant posed a risk of repeating similar acts at the time of the barring decision was also rational.
We are persuaded in this regard; the DBS has used its own expertise as a statutory body considering issues of this kind and has come to a barring decision that we agree was proportionate. In all the circumstances of this case, considering the serious nature of the Respondent’s first finding, we do not consider the DBS decision to include the Appellant on the Children's barred list was disproportionate. Neither do we consider, given the evidence available to DBS, their decision on this issue is irrational. There was no mistake of law.
- Heading
- A summary of the Upper Tribunal’s decision
- Introductory matters
- The statutory framework
- The appeal provisions
- The guidance in the case law
- Mistakes of law
- The DBS’s barring decision
- A brief summary of the factual background to the appeal
- The grounds of appeal and the parties' submissions
- The oral hearing of the substantive appeal
- JA’s oral evidence at hearing
- Our assessment of the appellant’s evidence and findings of fact
- Other grounds of appeal relating to first finding of relevant conduct
- T he indecent image: second finding of relevant conduct
- Materiality
- Proportionality
- 49.These four questions were later developed by Lord Sumption in Bank Mellat [2013] UKSC 39 at 20
- 50.In assessing proportionality, the Upper Tribunal has ‘…to give appropriate weight to the decision of a body charged by statute with a task of expert evaluation’ (see Independent Safeguarding Author
- Conclusions