[2025] UKUT 333 (AAC)

GE applied to work as a live-in care assistant. An allegation against GE that he had had sexual intercourse with his wife without her consent was referred to the DBS. We understand that GE is now divorced from his wife, but given that they were married at the time of the central events, we refer to her as his wife or ‘X’ throughout this judgment. The DBS issued a Minded to Bar letter on 13 February 2022. GE made representations to the DBS, essentially saying that he had been acquitted of rape, that he had a clean record and that his wife was not telling the truth.

The DBS issued a final barring decision on 28 June 2022 to include GE’s name on the Adults’ Barred List on the basis of its finding that “in 2017 whilst being aware that [he] had HIV status [he] engaged in sexual intercourse with [his] wife on more than one occasion without her consent”.

GE appealed against the Decision on 27 September 2022. He filed amended grounds of appeal on 30 November 2022.

The allegation against GE first arose on 12 October 2017 when GE’s wife (“X”) contacted police alleging that GE had threatened her with a car. Police attended GE’s home address, during which time X disclosed that GE had raped her. She spoke to one officer who recorded that GE had raped X four or five times. X spoke later that day to another officer who recorded in a statement that X said she hadbeen raped by GE once or twice.

On the same day GE was arrested, and interviewed by police. He denied rape. He explained that he had HIV which had been undetectable and non-transmissible. He said that sexual intercourse with his wife was consensual. He said that if his wife said no he would leave her alone. He said the last time they had sex was in the kitchen at the end of August 2017, when his wife had been cooking and consented to sex. Since then, the week before the interview (which would be early October) he suggested that they should have sex but she said no, and he accepted her answer. He said X sometimes removed a condom from him during sex. He said that X had come back from a holiday in Spain in July, that he believed she was having an affair, and that she had made up the allegations to get him out of the property.

In November 2017 GE’s wife provided a statement to police saying that she no longer wished to pursue the complaint because she was concerned about the effect on her family, although she did not retract the allegation. She later changed her mind and was interviewed by police in January 2018. In the police interview X said that in 2017 she was told by X that HIV was detectable again, and she wanted the relationship to be over. X alleged that GE had raped her once in the bedroom, holding her by both hands and ignoring her pleas to stop. She alleged that in 2017 GE raped her in the kitchen while holding her, while she made it clear she did not want sex. She also said that he would sometimes take a condom off in the middle of intercourse, which she did not consent to as he was HIV positive. X made a witness statement in November 2019 in which she set out some of the background of her relationship with X.

It transpired that in September 2017 about a month before X spoke to police, X had spoken to her GP, and said that her husband was having non-consensual sex with her but that she did not want to go to the police. Her GP made a statement to police to confirm that.

GE was charged and stood trial in mid 2021 on two counts of rape. Both X and GE gave evidence at that trial. GE was acquitted.