[2023] UKUT 275 (AAC)

This appeal is about MM, who was in 1999 convicted of two counts of sexual assault, and whose name was added to the adults’ and children’s barred list in 2022. MM wants his name removed from both barred lists so that he can undertake voluntary work for the Roman Catholic church and related charities, and so that he can pursue the possibility of being ordained as a priest.

The appeal raises two important legal issues:

Our conclusion in relation to the first issue is “it depends”, but the passage of time without any repetition of the relevant behaviour (even if a very long time) is not enough on its own to make inclusion on a barred list irrational, unreasonable or disproportionate. What “it depends” on will usually be the degree of insight that the relevant individual has developed into their past behaviour and how to manage the risk that they might act similarly again.

Our conclusion on the second issue is that where an individual has engaged in relevant activity against vulnerable adults of a sexual nature, it is not a condition of inclusion of that individual’s name on the children’s barred list that the individual has a sexual interest in children. The DBS is obliged to consider the evidence and to make an evidence-based assessment of the appropriateness of inclusion in the children’s barred list. If inclusion is based on a concern that the individual may engage in sexual activity with a child, the DBS must have a rational basis for assessing there to be such a risk. Because of the way that “child” is defined in the relevant legislation, when considering the risk that a child might be endangered, the DBS must consider not only pre-pubescent and pubescent children, but also physically mature under 18s.

Where an individual’s past conduct has demonstrated a willingness to cross boundaries and to exploit vulnerabilities it may, depending on the circumstances, be permissible to infer from an individual’s willingness to transgress one boundary that that person might be willing to transgress another boundary. It was neither unreasonable nor irrational for the DBS to infer from MM’s willingness to transgress the boundaries prohibiting sexual contact between a nurse and a patient in his care as well as the boundary prohibiting sexual touching without consent, that MM might be willing to transgress the boundaries prohibiting sexual contact with someone under the age of 18, or between a priest and a member of his congregation.