[2023] UKUT 241 (AAC)

The fourth ground of appeal concerns a discrete and rather narrow point. It concerns the DBS’s reliance on the fact that the Appellant was intoxicated when committing the offences. In its final decision letter, the DBS stated it was “satisfied that on both occasions, you were intoxicated and [your ex-wife] stated that your moods when drinking would become 'aggressive and scary'.” In addition, in its treatment of proportionality and appropriateness, the Respondent stated: “We also consider it to be significant that, given that you committed the offending behaviour in a state of intoxication, you have not provided any evidence that you have addressed your alcohol problems or reduced you [sic] alcohol consumption.”

In this respect Mr Harrison submitted that the Respondent should have concluded that there was no evidence that the Appellant’s alcohol intake had ever affected his role as a teacher and his engagement with regulated activity. Mr Harrison further contended that the DBS’s decision to rely on intoxication as a significant factor in support of its conclusion that Mr W posed a risk to children and/or it was appropriate to include him on the CBL was not just misplaced but was irrational and/or based on a mistake as to the facts. Alternatively, he argued, the DBS’s approach to this issue represented an error of law in that it had failed to take into account a relevant consideration.

In response Ms Scolding submitted that the DBS’s finding of fact that the offences were committed while the Appellant was intoxicated was justified on the available evidence. The statement that the Appellant had not provided any evidence that he had addressed his alcohol problems or reduced his alcohol intake simply reflected the evidential position. In that context, however, we note Mr W’s oral evidence to us that he had not taken any alcohol since he began his sentence over four years ago.

We agree with Ms Scolding that the fact that the Appellant was not intoxicated when working with children does not mean that his intoxication in other contexts is irrelevant or is a factor that cannot be weighed in the balance when judging the scales of proportionality and appropriateness. Moreover, on a fair reading of the final decision letter and the Barring Decision Process document, the issue of intoxication was simply one factor among several and was by no means the most prominent.

It follows that the DBS’s decision in this regard involves no error of law or mistake of material fact and so we dismiss Ground 4.