[2023] UKUT 241 (AAC)

The Appellant’s second ground of appeal is that the DBS’s conclusion, namely that he should be included on the CBL in the light of his conduct in relation to an adult, was Wednesbury unreasonable and/or irrational. Mr Harrison rightly acknowledged that, in principle, conduct in relation to adults may be transferable to children (and vice versa). However, he submitted that the DBS had not asked itself the correct question. As such, he argued, the DBS’s reasoning had failed to identify a proper factual foundation for a conclusion of transferability in this case and that reasoning was inconsistent with, and contradicted by, the DBS’s own risk assessment. The proper starting point, Mr Harrison submitted, was that a conviction for adult rape, despite being self-evidently an extremely serious matter, does not necessarily lead to an individual being included in the CBL, given the structure of Schedule 3 to the 2006 Act.

Mr Harrison then identified several contextual factors that militated against a finding that the risk of harm was transferable from adults to children (such as there being no evidence that Mr W ever had a sexual interest in children and there was no evidence of any harm to children having been perpetrated throughout a long career in education). In addition, the sole ‘definite concern’ identified in the Barring Decision Process document was ‘entitlement to sex’, which flowed directly from the fact of his convictions. Mr Harrison highlighted the following passage in the final decision letter: “We consider the offending behaviour to be transferrable to regulated activity where you could be in a position where you could prioritise you own needs and manipulate/dominate a child with a view to satiating your sexual needs with them.” This was, he contended, at best confused in that it focussed on whether the Appellant would have the opportunity in regulated activity to commit the offending behaviour rather than on whether that behaviour was transferable in the sense of creating an unacceptable risk that the Appellant would cause harm to children in a different context. At worst, Mr Harrison submitted, it was a bare and unreasoned assertion of transferability.

Ms Scolding took issue with Mr Harrison’s starting point for this ground of appeal, arguing that “the legislature has identified that these offences are sufficiently serious so that a risk of harm is by presumption established” (Respondent’s skeleton argument at §11). With respect, we consider that the language of a “presumption” is not helpful in this context, for the reasons identified by the Upper Tribunal in SR v DBS (at paragraph 14). However, where Ms Scolding is on much firmer ground is on her preferred starting point, namely that the Upper Tribunal has to give a margin of respect to the DBS’s expertise in its analysis, particularly of risk assessment. Thus, according to the Court of Appeal in B v Independent Safeguarding Authority [2013] 1 WLR 310, the Upper Tribunal must “give appropriate weight to the decision of a body charged by statute with a task of expert evaluation” (at 316E). As Lewis LJ in the Court of Appeal further explained in Disclosure and Barring Service v AB [2021] EWCA Civ 1575; [2022] 1 WLR 1002:

Ms Scolding went on to observe that so far as this ground of appeal was concerned there was no suggestion that there had been a mistake of fact on the part of the DBS. Instead, Mr Harrison’s submission was that the DBS’s evaluation of the risk posed by the Appellant was irrational and indeed perverse. The reality of the matter, she suggested, was that the Appellant was in effect inviting the Upper Tribunal to engage with the assessment of appropriateness, despite Mr Harrison’s avowed acknowledgement that such an enquiry was precluded by section 4(3) of the 2006 Act.

Turning to the assessment of the risk of harm and its transferability, Ms Scolding submitted that the DBS’s evaluative judgement as to the risk of harm in the context of regulated activity was founded on facts that provided a proper foundation for a conclusion on transferability. These findings were principally that the Appellant had prioritised his sexual needs over those of the complainant and had demonstrated an ‘entitlement’ to have sex with someone with whom he was in a relationship, that he had shown what could fairly be described as ‘coercive control’ and had manipulated the complainant when she indicated that she considered his actions amounted to rape. Furthermore, the Appellant had become aggressive when intoxicated and had demonstrated a lack of empathy when she complained about being prodded by him.

Ms Scolding rejected Mr Harrison’s submission that the DBS’s reasoning was inconsistent with, and contradicted by, its own risk assessment. As well as the ‘definite concerns’ identified over ‘entitlement to sex’, the DBS had found ‘some concerns’ in relation to exploitative attitudes, lack of empathy and poor problem solving or coping skills. These were all relevant risk factors and, Ms Scolding submitted, they were more than sufficient to constitute facts which gave rise to a risk of harm, and even a low risk of a serious harm had to be accorded great weight.

We have given anxious consideration to this ground of appeal but in the final analysis we are persuaded by Ms Scolding’s submissions. We must not lose sight of the fact that this is not a full merits review type of appeal. We therefore reminded ourselves that on an appeal under the 2006 Act it is not our role to decide afresh whether any risk of harm posed by the Appellant to adults is transferable to children. The DBS has an expertise in risk assessment and it is not our function to second guess that evaluation. In the present case the DBS had established the evidential basis for a risk of harm through its factual findings about the Appellant’s offending behaviour. The DBS had weighed up both the positive and negative considerations and reached the conclusion that the latter outweighed the former. This DBS assessment was reinforced by its conclusions as to the sole ‘definite concern’ and several ‘some concerns’ about the various domains considered in the Barring Decision Process document. These concerns were all transferable, involving as they did the abuse of power in an intimate relationship, amounting to an abuse of trust. Attractively presented as though his submissions were, we were not persuaded by Mr Harrison that the DBS’s assessment of the risk of harm and transferability was irrational – this was, at heart, a difference of opinion that fell quite some way short of the required threshold for perversity.

As a result, we must dismiss Ground 2.