[2024] UKUT 129 (AAC)

The explanation that the DBS gave for the Barring Decision in its ‘Final Decision Letter’ was:

When it made the Barring Decision the DBS was aware that “not guilty” verdicts had been returned in relation to each of the charges on the indictment in the Crown Court trial. LW’s acquittal by the jury at his Crown Court trial was relevant but, contrary to what LW says, it did not establish his innocence of the charges against him. That is not the way that English law works. The “not guilty” verdicts established only that the jury was not sure that all the elements of the offences charged were present.

While the jury at the Crown Court trial had to be sure of LW’s guilt to convict him on any particular charge (what is often referred to as the “criminal standard” of proof), for the DBS to make a finding of fact it only had to be satisfied that it was more likely than not (which is often referred to as the “civil standard”).

The DBS did not have to accept the evidence before it at face value. Rather, it had to evaluate all the relevant evidence before it and decide what weight to give each piece of evidence. Where the evidence conflicted, DBS had to resolve the conflict of evidence by deciding which evidence to prefer.

The DBS had a broad discretion in assessing the evidence and deciding what weight to place on it and how to resolve conflicts of evidence. We are satisfied that the findings that it made were comfortably within the range of reasonable options open to it on the evidence that it had, even though it is possible that another decision maker might have assessed things differently.

However, that is not the end of our task in deciding whether the DBS made any material mistake of fact, because the Upper Tribunal is not restricted to considering the evidence that was before the DBS when it made its decision: we can consider fresh evidence.

We had the benefit of two additional pieces of evidence that were not before the DBS when it made the Barring Decision: the transcript of the judge’s summing up in the Crown Court trial, and the oral evidence that LW gave at the hearing before the Upper Tribunal. We had the benefit of seeing LW cross-examined by the DBS’s counsel, and we had the opportunity to question him ourselves.

When asked by Ms Maunder why he pleaded “guilty” to the pornography conviction he said that when he received the message he hadn’t realised that it was illegal, and had he done so he would have reported it to the police and deleted the image. He explained that it had been sent to him unsolicited on a group WhatsApp and he had never downloaded anything similar.

He explained that when he was first contacted by the DBS the letter was only about the pornography conviction. There was nothing about the allegations of sexual activity with a child. In his response to the second letter, he didn’t say anything about the allegations of sexual activity with a child. This was because he had been acquitted of those charges, so he didn’t think he needed to explain himself. He confirmed that he didn’t tell his employer about the allegations of sexual activity with a child either, because he said he hadn’t done the things alleged and that had been confirmed by his acquittal. He was, however, open about his pornography conviction.

LW said he first came to know Child A through his then partner, who was Child A’s cousin. He accepted that he knew Child A’s age at the time. He admitted to providing Child A with alcohol and tobacco despite knowing her to be only 14. He acknowledged that this was wrong, and against the law, and said he shouldn’t have done it.

LW accepted that he gave Child A lifts in his car on many occasions, saying that sometimes his then partner would be in the car as well, sometimes friends would be in the car, and sometimes it would be just him and Child A. He said Child A would message him to ask for lifts, and this was normal in rural Wales.

Ms Hartley took LW to the police report (at pages 54-55 of the appeal bundle), which describes a text message exchange between LW and Child A about meeting up and being secretive behind LW’s then partner’s back. Ms Hartley asked why he and Child A would be secretive about LW giving her lifts if there was nothing untoward in their relationship. LW said he had no explanation for this.

Ms Hartley put to LW that Child A had used the “number withheld” function when messaging him. He denied this. Ms Hartley took him to the judge’s summing up of the evidence in the Crown Court trial, which showed that he accepted in his evidence in court that Child A did withhold her number, but he said that “it was her idea”. LW said he didn’t know why he would have said that. Ms Hartley suggested that it was because Child A did indeed withhold her number, and that she had done so because she was trying to conceal an inappropriate relationship with LW from LW’s then partner.

Ms Hartley took LW to page 243 of the appeal bundle, in which the judge says in relation to “the text messages of 7 January and his request to her that she comes alone” that LW was asked why he said that to her. LW’s response was recorded by the judge to have been: “I don’t know why I said that to her”. Ms Hartley put to LW that the only reason why he might ask Child A to come alone was if he was having sex with her. LW agreed with this proposition, but denied having asked Child A to come alone. He also denied saying “I don’t know why I said that to her”.

With regard to the two nude images of Child A, LW accepted that these were sent to his Snapchat account, but he denied having had them in his possession, saying that he didn’t open them himself. Rather, his then partner had logged into his Snapchat account and viewed them, and had taken screenshots of them. It was only the screenshots that LW saw.

LW denied having solicited the images from Child A. In cross-examination, Ms Hartley suggested it would be very odd for a 14-year-old child to think that LW would want her to send nude images of herself if he hadn’t expressed any sexual interest in her. He agreed that it would, but denied being in any kind of sexual relationship with Child A and denied having asked Child A to send any nude images.

In response to questioning from the panel, LW said Child A wasn’t aware that he and his then partner were able to access each other’s Snapchat messages, and accepted that she would have assumed that any Snapchat messages she sent to LW’s account would be opened only by him. However, he said she may have sent them to him in the hope that he would open the messages on his device in his partner’s presence.

LW said that all of Child A’s allegations about sexual activity between them were lies and fantasy. He said he didn’t know why she would tell lies against him, but she did.

We did not find LW to be a compelling witness. We did not accept his evidence that there was nothing sexual in his relationship with Child A. We explain why below.

LW sought to portray his relationship with Child A to be wholly non-sexual in nature: while accepting that he gave her lifts in his car, he maintained that there was nothing remarkable in this, and it was common practice in rural Wales for people with cars to give lifts to people without cars. He said there was nothing secretive about it. Indeed, he said his then partner was in the car with them sometimes. We reject his characterisation of their relationship because:

Further, LW accepted that, as well as giving Child A lifts in his car, he was in the habit of buying alcohol and tobacco for Child A. He recognised that this was wrong, and that he shouldn’t have done it. Considering all the evidence in the round, we think it most likely that the buying of alcohol and tobacco for Child A was part of a campaign of sexual grooming. He took Child A to the Neath Abbey location because it was remote and dark, and because he was therefore unlikely to be witnessed doing something he knew to be wrong and against the law.

While LW accepted that Child A had sent nude images to his Snapchat account, his evidence was that she did so wholly without prompting or encouragement from him. We do not accept this evidence, because we think it much more likely that Child A sent the nude pictures to LW because he had asked her for nude pictures, either then or in the past. We do not think it at all likely that Child A would have sent such pictures to her cousin’s boyfriend if the circumstances were as LW said they were (i.e. there was nothing sexual in the relationship between them).

We are also unpersuaded by LW’s suggestion that Child A sent the images to his Snapchat account in the hope of them being seen by LW’s then partner to make her jealous. That is because if Child A wanted LW’s partner to see the images (rather than LW himself) it is most unlikely that she would seek to do so by sending them to LW’s Snapchat account, given that she was unaware that LW’s partner was able to access the account. It was much more likely that she sent the images in the way that she did because she expected only LW to be able to access them, and because she knew that the images would not be saved on the app, and so they would be unlikely to be viewed by LW’s partner.

We find Child A’s sending of nude images to LW’s Snapchat account to be compelling evidence in support of the existence of a sexual relationship between LW and Child A.

Having read the judge’s summing up of the evidence given by each of the witnesses at the trial (including their evidence under cross-examination), we conclude that there is nothing which casts particular doubt on the reliability of the prosecution witnesses. Indeed, the evidence of Child A and Child B is remarkably consistent with LW’s evidence as to the events up to the point when Child A says that she had sex with LW in his car. As to what happened after, we prefer Child A’s and Child B’s accounts to LW’s and KW’s.

In short, nothing in the new evidence before the Upper Tribunal persuaded us that the DBS was mistaken to find, on the balance of probabilities, that LW bought alcohol and tobacco for Child A, had nude images of Child A in his possession, engaged in oral sex with Child A, and engaged in sexual intercourse with Child A.

For these reasons we dismiss the appeal and confirm the Barring Decision.