Upper Tribunal Administrative Appeals Chamber

[2023] UKUT 241 (AAC)

Fecha: 08-Sep-2023

The DBS decision to bar the Appellant under the SVGA 2006

The DBS decision to bar the Appellant under the SVGA 2006

12.

In July 2019 the DBS sent Mr W an “intention to include in barred list” letter to the effect that it was considering whether to place him on the CBL. This letter did not reach the Appellant at the time and had to be reissued later that year. The Appellant (and his wife) made detailed written representations and provided positive character references, including from colleagues in the teaching profession.

13.

On 15 May 2020 the DBS issued its final decision letter, notifying Mr W that the DBS had decided it was appropriate and proportionate to include him on the CBL. The central findings were put in these terms in that letter:

Why we are writing to you

We wrote to you on 03 July 2019 to tell you that we intended to include you in the Children's Barred List and explained why.

We have carefully considered all of the information we have received, including your representations, and we have reached our final decision that it is appropriate to include you in the Children's Barred List.

How we reached this decision

We remain of the view that you have previously been / might in the future be engaged in regulated activity with children. This is because you were previously employed as a teacher.

You have made representations disputing whether the events that gave rise to your conviction happened. We have not considered your representations in this regard. This is because we do not re-examine the facts that gave rise to your conviction but treat them as proven so long as the conviction stands.

Having considered your representations, we have decided that it is appropriate to include you in the Children's Barred List.

This is because we are satisfied that you prioritised your sexual needs above those of the victim/felt entitled to have sex with her and disregarded her wishes, as on both occasions she told you she didn't want to have sex and crossed her legs, to prevent you doing this, but you forced these apart/pinned her arms back before penetrating her.

The DBS is also satisfied that you committed the offending behaviour in the context of having gradually eroded [your ex-wife's] self-esteem/confidence and established domination/control of her in verbally abusing her, calling her a 'bitch/cow' etc, using 'mind games', such as telling her 'you hate me/you don't love me'/telling her off for leaving things out and putting things in the 'wrong place'.

You also attempted to manipulate [your ex-wife] when after the first incident of Rape, you told her to be 'careful of what she was insinuating'.

We are satisfied that, in committing the offending behaviour, you focussed on your own needs with no consideration as to the potential impact on [your ex-wife] or her feelings.

The DBS is satisfied that on both occasions, you were intoxicated and [she] stated that your moods when drinking would become 'aggressive and scary'.

Your lack of empathy is further evidenced by the fact that after [she] had complained about you 'prodding' her, you told her that she was a 'wimp' and that it wasn't anything to moan about'.

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 is compounded by the fact that you deny the offending behaviour and therefore, the DBS has no reassurance that you would not repeat this, should you work with children again.

The DBS is satisfied that if you were to repeat the offending behaviour in regulated activity, children could suffer serious sexual and/or emotional harm.

The serious level of harm caused to the victim is evidenced by the fact that she stated she feels 'disgraced, demeaned and belittled' by your behaviour and now struggles to trust males, suffers from anxiety, panic attacks, depression/has resorted to self-harming.

14.

The final decision letter then continued by addressing human rights arguments around Article 8 of the ECHR, as incorporated by the Human Rights Act 1998, along with considerations relevant to both the proportionality and appropriateness of making a barring decision. We refer to the relevant passage in the context of our discussion of Ground 3 at paragraph 52 below. The final decision letter then concluded as follows:

In conclusion, the serious nature of the harmful behaviour is reflected in the fact that you established dominance over the victim before disregarding her wishes in raping her on two occasions. The serious level of harm caused to the victim is evidenced by her police statement and you continue to deny the offending behaviour. Consequently, despite the passage of time and your evidently appropriate engagement with children over a period of over 30 years, the DBS is satisfied that it is proportionate to include your name in the Children's Barred List and we give particular emphasis this respect to public confidence in the DBS's ability to safeguard vulnerable groups, in the event of a decision not to bar you from working with children.

Therefore your name has been included in the Children's Barred List under paragraph 2 of Schedule 3 of the Safeguarding Vulnerable Groups Act 2006 (SVGA) on 14 May 2020.

15.

As such, the DBS were in effect highlighting three factors to support its decision that it was appropriate to include Mr W on the CBL. These were the seriousness of the offending behaviour, his denial of that behaviour and public confidence in the ability of the DBS to safeguard vulnerable groups.