[2024] UKUT 129 (AAC)

The background to the appeal is that LW, who was 19 years old at the relevant time, was investigated by the police in relation to allegations that he had had sexual activity with Child A, who was a cousin of LW’s then partner.

Child A alleged that she had been in a form of relationship with LW since about July 2016. She said LW would contact her on Snapchat, by text or by phone. This wasn’t every day, but more when he wanted something, like when his partner wouldn’t have sex with him. She said LW would from time to time give her lifts in his car, buy her food at McDonald’s or KFC, and buy her alcohol and tobacco. Sometimes they would have sex in his car. She says the first occasion on which they had sex was in mid-July 2016 after a visit to McDonald’s. She said LW drove her to an unknown location near Port Talbot near a tip and some factories. LW drove all the way under some bridges, where it was very dark. Child A describes another occasion in October 2016 when LW took Child A and a friend for a drive in his car and then, after they had dropped the friend off home, LW drove Child A to a dark place some garages in front of a horse’s field near her home where they had sex in his car. Child A described another occasion, in December 2016, on which she was driven by LW with a friend of hers who was also 14 (“Child B”) and a friend of LW’s who appeared of similar age to LW (“KW”) to an industrial park near the ruins of Neath Abbey. She said LW asked KW and Child B to leave the car and Child A and LW then had sexual intercourse in LW’s car. She described this in some detail in her police interview. Child B made an allegation that she had sex with KW at the industrial estate when Child A and LW were in the car.

Child A described another occasion on which she was taken by LW alone in his car to the same location where he asked her for sex, but she said she didn’t want to and she ended up giving him oral sex instead.

Child A didn’t disclose her relationship with LW until her cousin saw the nude images she had sent to his Snapchat account and sent screenshots of them to Child A’s mother. When challenged by her mother, Child A disclosed the relationship which her mother reported to the police on 11 January 2017.

LW was interviewed twice by police. Other than giving a clear denial of any sexual contact or sexual relationship with Child A, he responded “no comment” to the questions put to him. KW was also interviewed by police in relation to the allegations about the events at the industrial estate near Neath Abbey, and denied that any sexual activity took place. LW was charged with multiple counts of engaging in sexual activity with a child and causing or inciting a child to engage in sexual activity. KW was charged with engaging in sexual activity with Child B.

The matter went to trial. LW and KW pleaded “not guilty” to all charges. In March 2018, following a 5-day trial in the Crown Court at which LW, KW, Child A, Child B and others gave oral evidence. LW was acquitted of all charges against him.

In connection with its investigation into the allegations described above, LW’s mobile phone was examined by the police and found to contain a video of an adult female being vaginally penetrated by a snake. On 13 April 2018 LW was charged with being in possession of “an extreme pornographic image (intercourse/oral sex with dead/live animal) on 11 January 2017”. He pleaded “guilty” to this offence and received a 12-month community order.

When LW applied for a role as a Support Worker at First Advantage Europe Ltd (Nottingham) an Enhanced Disclosure Barred List check was conducted against the Adults’ Barred List. This prompted DBS to write to LW on 23 February 2022 to say that it was considering placing his name on a barred list and to invite him to make representations (the “Intention to Bar Letter”). The Intention to Bar Letter did not make reference to the allegations of sexual activity with a child.

LW provided written representations in relation to the extreme pornography conviction and a positive reference from his employer.

On 4 May 2922 the DBS later sent another letter which set out additional findings of fact, this time in relation to the matters described in paragraph 1 above. In response LW provided the same representations and the same employer reference that he had provided previously. He did not address the allegations in relation to Child A.

On 26 May 2022 the DBS made the Barring Decision.

LW disagreed with the Barring Decision and sought permission to appeal. His application for permission was granted by Judge Rowland on 1 February 2023.