[2024] UKUT 330 (AAC)

The relevant legislation is in the Safeguarding Vulnerable Groups Act 2006 (‘the Act’). Inclusion in the children’s barred list is governed by section 2 and Part 1 of Schedule 3 to the Act. Inclusion in the adults’ barred list is governed by section 2 and Part 2 of Schedule 3. There are three separate ways in which a person may be included in the barred lists under Schedule 3 to the Act. DBS took two parallel routes to barring in this case.

The first route which was followed here is referred to as ‘autobar with representations’, and relates to the conviction. A person can be included in the lists if they meet prescribed criteria. The person who is proposed to be barred has a right to make representations to the DBS under paragraphs 2 and 8 of Schedule 3 to the Act. The prescribed criteria include a conviction for specified criminal offences, among them possessing an indecent image of a child. It is agreed that this appellant was convicted of two such offences.

Where the DBS is satisfied that the prescribed criteria apply, the effect of paragraphs 2(6), (2)(8), 8(6) or 8(8) of Schedule 3 to the Act is that the DBS must include the person in the children’s or adults’ barred list if it:

The DBS barred the appellant under this route, having received his representations and determined that he had a conviction for a specified offence, was engaged in regulated activity as a pharmacist, and that it was appropriate to include him in both lists. Under this route the relevant conviction is a finding of fact, and there is no requirement to establish relevant conduct or risk of harm.

The third route, referred to as discretionary barring, was also followed here. Under paragraphs 3(3) and 9(3) of Schedule 3 the DBS must include the person in the children’s and adults’ barred list if:

‘Relevant conduct’ is defined under paragraphs 4 and 10 of Schedule 3 to the Act which are set out below, paragraph 4 relating to the children’s list and paragraph 10 relating to the adults’ list:

Further definitions follow in those paragraphs. It should be noted that relevant conduct includes possession of sexual material relating to children, in relation to both the children’s and adults’ lists.