[2024] UKUT 401 (AAC)

Following a hearing before Upper Tribunal Judge Hemingway, the Appellant was granted permission to appeal against DBS’ barring decisions. The judge’s permission determination read as follows:

“3.

I grant permission to appeal on the basis that the DBS arguably made mistakes of fact with respect to all of the factual findings it relied upon…As to that, I take account of the fact that the appellant has (at least on the face of it) previous good character; that she has been able to provide impressive references which might have some relevance to the question of her credibility; that notwithstanding the nature of the sexual assault allegations against her no criminal proceedings have been pursued (though I appreciate of course that the standard of proof in criminal cases is significantly higher than it is in cases such as this) and that there is, at least on one view, a lack of corroborative evidence with respect to those allegations. I am satisfied, in light of all of that and having heard oral argument, that the appellant has a realistic prospect of demonstrating that such errors of fact have been made.

4.

As to proportionality, on the assumption that the DBS did not make a mistake of fact with respect to its findings concerning the sexual assaults, I see no realistic prospect of the appellant being able to demonstrate that the decision to include her in the Children’s Barred List was disproportionate. The seriousness of the conduct (if it did take place) and the consequent risk to female children very comfortably underpins that decision. I refuse permission with respect to that particular argument.

5.

As to placement on the Adults Barred List and its proportionality or rationality, even if there has been no mistake of fact, I consider it to be arguable that the DBS erred in the manner suggested. In particular, with respect to rationality, the findings related to sexual assaults said to have taken place when the relevant child was eleven years old or younger. It is unclear how any sexual interest in female children of such a young age will translate into a risk to vulnerable adults. Further, the justification for placement on the Adults Barred List as contained in the decision letter is vague and relies only upon an alleged willingness “to transgress legal boundaries to satisfy your own sexual needs”. Whilst, if the factual findings have been soundly made, the appellant has demonstrated such a willingness, there does not appear to be any obvious risk if her sexual interest lies in pre-pubescent girls. I am satisfied, therefore, that with respect to the Adults Barred List, the appellant has reasonable prospects of showing that the decision to include her in that list is irrational or disproportionate.”