[2023] UKUT 241 (AAC)

There are essentially three ways under Schedule 3 to the 2006 Act in which a person may be included on one or other (or both) of the two barred lists. The first is ‘automatic inclusion’, where the DBS must include a person on e.g. the CBL where specified criteria (e.g. conviction for certain criminal offences) are met (Schedule 3, paragraph 1). The second is ‘inclusion subject to consideration of representations’, also known as ‘autobar with representations’, where the DBS must consider (subject to representations) whether to include a person on the CBL if particular criteria (e.g. conviction for various other offences) are met (Schedule 3, paragraph 2). The third discretionary category comprises cases in which the DBS must first decide whether there is ‘relevant conduct’ or a ‘risk of harm’ (Schedule 3, paragraphs 3 and 5).

Paragraph 2 of Schedule 3 (as amended), which is headed ‘Inclusion subject to consideration of representations’, provides as follows:

The offence of rape committed against an adult (contrary to section 1 of the Sexual Offences Act 2003) is specified for the purposes of paragraph 2(1) of Schedule 3 to the 2006 Act: see the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009 (SI 2009/37) regulation 4(5) and the Schedule, paragraph 2(e)). The Appellant’s case therefore falls within the second category described in paragraph 7 above. As such – given that Mr W had made representations and had been engaged in regulated activity relating to children – the sole issue for the DBS to determine in this case was whether it was “satisfied that it is appropriate to include the person in the children's barred list” within paragraph 2(8)(c).

In terms of the DBS’s own internal processes, the procedure for these cases of ‘autobar with representations’ involves four decision-making stages. If a case progresses to stage 3, the DBS is required to apply a Structured Judgment Process (or ‘SJP’), which is a form of risk assessment covering a total of 21 potential risk factors. Stage 4 then involves the application of the final test of appropriateness for inclusion on the relevant barred list.

The right of appeal is governed by section 4 of the 2006 Act. An appeal may only be brought against one of a number of specified decisions (section 4(1)). The only grounds of appeal are for a mistake on “any point of law” or in “any finding of fact which it has made and on which the decision mentioned” in subsection (1) is based (section 4(2)).However, for these purposes “the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact” (section 4(3)) and so is effectively non-appealable.