[2023] UKUT 275 (AAC)

DBS’s reasons for including MM in the children’s barred list were explained in its ‘Final Decision Letter’ (see page [66] of the DBS appeal bundle) as follows:

“With regards to the Children’s Barred List; whilst you have argued in your representations that you do not pose a risk to children, that you have never sought to work with that group, and that the victims of your offending behaviour were both adult males, concerns remain with regards to the risk that you would pose if allowed to work in regulated activity with children.

This is because you have shown a propensity to cross sexual, social and legal boundaries on more than one occasion and exploited the opportunities which were available to you while working in regulated activity for your own sexual gratification without any apparent consideration as to the impact your behaviour might have on your victims.

It is also on the basis that working in regulated activity would afford you the opportunity to repeat similar behaviour towards a child and while it is accepted that there is no indication that you have a sexual interest in younger children it is believed that you may indecently assault an older, post-pubescent child who has the physical characteristics of an adult male.

Consequently we are satisfied that it is also appropriate to include your name in the Children’s Barred List.”

Mr Kitching, for MM, submitted that the DBS’s logic in concluding that MM should be placed on the children’s barred list notwithstanding that it accepted that it would not, on the evidence, be able to establish that he has a sexual interest in children, was “not merely tortured logic, but perverted logic”. He said there was “more than a whiff of homophobia about” the decision to include his name on the children’s barred list.

We did not find this submission to be persuasive. The definition of “child” for the purposes of the 2006 Act must be borne in mind when considering the rationality of the decision to include MM’s name in the children’s barred list. A “child” is defined as “a person who has not attained the age of 18”. It would therefore encompass a post-pubescent child who has the physical characteristics of an adult.

The DBS acknowledged that the evidence didn’t support a finding that MM has a sexual interest in children, but that was not determinative of whether there was an unacceptable risk that MM might engage in conduct that would, or would be likely to, endanger a child. It only had to establish that, just as MM was tempted by the sight of “young men as they lay in their beds” to sexually assault his adult male victims, he might similarly be tempted, if given the opportunity, to sexually assault a physically mature young male who happened to be under the age of 18.

It was neither unreasonable nor irrational for the DBS to conclude that there was an unacceptable risk that MM might indecently assault such a child, given the circumstances of his offending. He assaulted his victims in circumstances where he was charged with providing them with nursing care. He had no reason whatsoever to believe that they might be amenable to being touched sexually and there was every reason to believe that they would not. He didn’t stop to ascertain whether his victims would welcome such attention. He has explained this in terms of being so overwhelmed by his sexual desires that boundaries that were otherwise “obvious” became blurred. The DBS was entitled to decide that there was an unacceptable risk that MM would not, if faced with an opportunity to sexually assault a physically mature child, stop to ascertain their age if he were overwhelmed by sexual desire, and to control his urges should he find that the person is under 18.

The DBS’s reasoning that MM had “shown a propensity to cross sexual, social and legal boundaries on more than one occasion and exploited the opportunities which were available to [him] while working in regulated activity for [his] own sexual gratification without any apparent consideration as to the impact [his] behaviour might have on [his] victims” provides a rational basis for its concern that he might fail to respect the boundary between an adult and a child of 17.

Nothing in the further evidence that we heard (and which was not available to the decision maker) persuaded us that DBS was mistaken in reaching the conclusions that it reached. Rather, MM’s evidence about being so overwhelmed by sexual desire that he didn’t even think about issues such as professional ethics, consent, criminality or the impact on his victims, and the lack of insight that he demonstrated into what happened and why, tends to provide additional support for the decision to include his name in the children’s barred list.

We find the suggestion made in submissions that the DBS’s decision to include MM’s name on the children’s barred list was homophobic to be wholly unfounded. The DBS expressly acknowledged that MM has a sexual interest in men, which it said was “a normal sexual interest” that didn’t raise any significant concerns (see page [85] of the appeal bundle). What it found to be problematic was not MM’s homosexuality. It was his inability to respect boundaries and his willingness to exploit others for his own gratification.

In terms of the proportionality of the decision to include MM’s name on the children’s barred list, DBS had to conduct a balancing exercise between the public interest in keeping children safe and MM’s own interests, including his Article 8 rights. It acknowledged the likely impact that barring would have on MM, including his future employment opportunities, his volunteering opportunities and his ambition to be ordained as a priest, as well as the stigma that inclusion would attract and the potential impact on MM’s mental health and general wellbeing (see page [96] of the appeal bundle). It also considered whether other measures provided a sufficient safeguard without including MM’s name on the children’s barred list. It decided that, given the risk that it identified and the gravity of the potential harm to children should the risk eventuate, they did not (see page [96] of the appeal bundle). In all the circumstances, it was entitled to reach that conclusion.