[2023] UKUT 241 (AAC)

The third ground of appeal is that the DBS decision to include the Appellant on the CBL was disproportionate. Before we consider the parties’ respective submissions, we start by considering how the DBS approached the question of proportionality.

The final decision letter, which drew on the discussion in the Barring Decision Process document, dealt with this issue as follows:

Mr Harrison drew our attention to the well-known four-stage test for assessing proportionality as adumbrated in the relevant case law of the Supreme Court. In particular, he focussed on the third and fourth stages of that test, namely whether inclusion on the CBL is no more than is necessary to achieve the relevant objectives and whether inclusion strikes a fair balance between the individual’s rights and the wider community’s interests. In that context Mr Harrison stressed the Appellant’s lengthy and unblemished teaching career and the stigma associated with inclusion on the CBL. Taking account also of the factors highlighted under Ground 2, Mr Harrison submitted that inclusion of the Appellant on the CBL represented a particularly severe interference with his Article 8 rights. It was argued that there would be sufficient other procedural safeguards in place on the Appellant’s release – he would be on the sex offenders’ register, subject to his (as yet unknown) specified licence conditions and his convictions would be apparent on any DBS check. Last but not least, Mr Harrison contended that the DBS’s decision showed that it was erroneously treating public confidence as a trump card in its assessment of proportionality. For all these reasons, he argued, the decision to include the Appellant on the CBL was disproportionate.

Ms Scolding acknowledged that the Appellant’s Article 8 rights were engaged by the decision to place him on the CBL. However, she emphasised that Article 8 is a qualified right and the qualifications are themselves expressed in broad terms. Ms Scolding further submitted that we should resist Mr Harrison’s implied invitation to usurp the DBS’s function and to re-weigh the various factors in the scales of proportionality. As such, she suggested that Mr Harrison was straying into asking the Upper Tribunal to engage in a full merits review, when both statute and case law demonstrated that the Tribunal’s role was not so extensive. Public confidence, she argued, was part and parcel of the assessment of proportionality. Furthermore, and in any event, public confidence had not operated as a trump card in the DBS’s assessment of proportionality in this case. Rather, the Respondent had relied on the aggregated impact of three factors, namely the seriousness of the offending behaviour, the Appellant’s continued denial of that behaviour and the issue of public confidence.

In short, we agree with Ms Scolding on this ground of appeal. The starting point (and in some respects the end point) must be the limited role of the Upper Tribunal in appeals under the 2006 Act. Thus, the Upper Tribunal is precluded from engaging in “a de novo consideration of its own” (B v Independent Safeguarding Authority [2013] 1 WLR 310 at 316F). Subsequent case law has only reinforced this principle (see notably DBS v AB [2021] EWCA Civ 1575 and DBS v JHB [2023] EWCA Civ 982). It follows that the fact that as a panel we might have come to a different decision on the issue of proportionality does not mean in and of itself that the DBS’s decision to include the Appellant on the CBL was disproportionate.

We note in passing that the Appellant explained to us that his main reason for objecting to his inclusion on the children’s barred list was the effect on his wife and young child. He appeared to be concerned that his barred status would on his release from prison curtail his family life with his child e.g. providing lifts for his child and their friends. But as Ms Scolding explained, a person’s barred status stops them from engaging in regulated activity and not in their family life. Thus, activities carried out in the course of a family relationship are excluded from the scope of the 2006 Act (section 58) and so this concern will count for little in the scales of proportionality.

As such, and for all the reasons above, we dismiss Ground 3.