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T he indecent image: second finding of relevant conduct
The indecent image: second finding of relevant conduct
We consider there are significant evidential problems with this finding. It was not in dispute that the indecent image was found on JA’s phone. What was in dispute was that JA was aware the image was there. There is no evidence to establish, on the balance of probabilities, how the image was obtained or that the Appellant either viewed or shared the image. The real question is whether the finding amounts to relevant conduct - did it harm or cause a risk of harm to a child? Given there is no evidence to prove JA was aware the image was on his phone, we find DBS have not proved on the balance of probabilities JA committed relevant conduct in relation to this finding. We do not consider therefore DBS could rationally maintain this as a finding of relevant conduct and in that respect, the respondent is in error 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