[2025] UKUT 030 (AAC)

We were aware that while DKS’s evidence was tested at the hearing, the DBS called no witnesses, so the evidence that the DBS relied upon from DKS’s colleagues was untested and so was to be treated with caution.

Mr Hugheston-Roberts said that had the DBS placed DKS’s name on the Adults’ Barred List on an interim basis only, he would have no complaint, but it was wrong for the DBS to have made a final barring decision without having waited for the conclusion of the criminal proceedings.

This submission is misconceived because, unlike many professional regulators under their respective statutory regimes, the DBS has no power to make an interim order. It must make a binary decision whether to place the referred person’s name on the relevant barred list(s) or not, and it must do so in accordance with the provisions of the SVGA. Should circumstances later change, or should new evidence emerge which indicate that it was mistaken in its barring decision, it is open to the DBS to review its barring decision and, if appropriate, to remove the person’s name from the relevant list(s).

The DBS didn’t hear any oral evidence. We had the benefit of hearing DKS’s evidence tested under cross-examination. We were not impressed by him as a witness. DKS was initially adamant that he had not been in room 12A with SH on 27 April 2020. He then conceded, after his previous accounts were put to him, that he had been. He was equally insistent that it would have been “impossible” for him and SH to have cleaned DJ and changed his bedding in room 12A together as SH had alleged due to space constraints, before having to accept that that would have been exactly what they did.

DKS’s case on mistake of fact was based on two main propositions:

However, the evidence of the night check record and the ‘Statement of Wellbeing’ is only evidence of what was recorded in them. The entries are not necessarily complete, and they are not necessarily accurate. The records do not demonstrate that DJ didn’t have an episode of bowel incontinence around 10pm requiring him to be cleaned and his bedding changed, and they don’t demonstrate that DKS and SH couldn’t have been in room 12A around 10pm. Indeed, during the course of the hearing before us, DKS came to accept that these things happened just as SH had alleged.

As for the assertion that the evidence of SH, KG, AH and DA was “lies” (or, in the case of DA, possibly the result of confusion), we decided based on our assessment of DKS as a witness at the hearing before us that it was more likely that DKS’s evidence was untruthful, and he was motivated to give false evidence by his wish to have his name removed from the Adults’ Barred List so that he could resume his chosen profession.

While we acknowledge that the jury in the criminal trial was not persuaded so that it was “sure” that DKS did what was set out in the indictment, the DBS was entitled to make the findings that it made based on the evidence before it, and to make the Barring Decision based on those findings.

Further, based on the evidence that we heard, we are not persuaded that the DBS made any material mistake of fact.

Mr Hugheston-Roberts made robust submissions to the effect that DKS had been prevented from presenting an effective challenge to the case for his being barred due to the ongoing criminal proceedings, and that it was inappropriate for the DBS to make a final barring decision based on a “desktop audit” of the paper referral file only, without the benefit of oral evidence being tested at the criminal trial. However, the case which DKS advanced at the hearing was essentially the same as that which was set out in the written representations made by Blackfords LLP on his behalf in response to the Minded to Bar letter, and DKS did not seek to introduce any transcript of the evidence in the criminal trial, or indeed any other significant new evidence, into these proceedings other than the night check logs and the ‘Statement of Wellbeing’ document, which we do not find to be probative of the matters in issue in this appeal for the reasons explained in paragraph 76 above. As such, even if its decision to proceed to a final decision without waiting for further evidence to become available did amount to a procedural irregularity, it could not have been material.