[2024] UKUT 379 (AAC)

These grounds all concern sexual misconduct towards female work colleagues at three different times in three different care homes. The DBS’s decision letter states that they considered the fact that seven adult women raised concerns about LM, the majority reported multiple instances of varying degrees of sexualised behaviours. The DBS considered as an aggravating factor the fact the police investigation did not deter LM from carrying out similar behaviour subsequently. The DBS concluded that the pattern of behaviour was repetitive and reflective of a harm endorsing attitude. The DBS considered that the failure to inform social services of LM’s investigation for sexualised behaviours in 2019/2020 was a purposeful act of concealment designed to minimise the potential impact of the assessment process and that the sexual entitlement appears ingrained.

LM’s grounds of appeal seek to identify that, in the case of a number of similar allegations being made, the DBS and thus the Upper Tribunal can have regard to them but must consider the cogency of the evidence when looking at this. In particular, bad character should not bolster a weak case (relying upon R v Hanson [2005] EWCA Crim 824). LM’s grounds of appeal make various submissions about the weakness of the evidence and material in the 2007, 2013 and 2018 allegations of sexualised behaviour and set out that the paucity of the evidence and the absence of underlying materials, alongside the lack of charge of the Appellant in respect of the 2007 and 2013 charges showed that these were weak cases which should not be relied upon. LM further provides explanations as to why the incidents in 2007 and 2013 were malicious in nature.

The DBS submits that the Appellant had admitted inappropriate behaviour in the workplace in 2018 including unzipping a colleague’s top (for which he received a caution), hugging colleagues and engaging in conversations of an explicit nature. It submits that having three different allegations made by several different women at three difference care homes over a period of 10 years is both relevant and significant. The DBS relied upon the case of R v Mitchell [2016] UKSHC 55 [2017] AC 571, where Lord Kerr identified – albeit in a criminal context when determining how propensity should be put to a jury in a case where it is relevant – is to look not at each and every incident and decide if it has been proven, but to look at the issue of propensity in the round (at paragraph 39 – 43 of Lord Kerr’s speech). R v Mitchell was a case where a Defendant, who was charged with a murder by stabbing, had used knives on a number of occasions, none of which had led to a conviction but showed, in the minds of the prosecutor, a propensity to use a knife.

As set out in O Brien v Chief Constable of Police [2005] UKHL 26 [2005] 2 AC 534, the court considered the issue of similar fact evidence stating that evidence must be relevant to be admissible in any proceedings. To be relevant it is (citing DPP v Kilbourne [1973] AC 729 at 756):

“Relevant if it is logically probative or disapprobative or some evidence which requires proof ….relevant (i.e. logically probative or disapprobative) evidence is evidence which makes the matter which requires proof more or less probable.”

In O Brien, Lord Bingham (paragraph 4 of his speech in O Brien) says this about evidence of what happens on a previous occasion:

“That evidence of what happened on an earlier occasion may make the occurrence of what happened on the occasion in question more or less probably can scarcely be denied…..to regard such evidence of such earlier events as potentially probative is a process of thought which an entirely rational, objective and fair minded person might, on the facts , follow….it is undesirable that judicial decision making on issues of fact should diverge more than it need from the process followed by rational, objective and fair minded people called upon to decide question of fact in other context where reaching the right answer matters. Thus, in a civil case such as this the question of admissibility turns, and tuns only, on whether the evidence which it is sought to adduce, assuming it is (provisionally) to be true, is in Lord Simon’s sense [see above] probative . If so, the evidence is legally admissible. That is the first stage of the inquiry.”

The second stage (paragraphs 5 and 6 of Lord Bingham’s speech) identifies the factors which a judge will consider in deciding whether to admit the evidence even if probative. This would include the wider public interest in exposing wrongdoing, the public righting of wrongs, but also whether or not the evidence will distort a trial, focus only on collateral issues to be decided, the case for causing unfair prejudice if the evidence is admitted and the burden in time and resources of dealing with the admitted evidence and the passage of time in some cases.

Lord Kerr’s reasoning in R v Mitchell (above) at paragraph 43 where he says that a jury can consider issues of propensity in the round. Lord Kerr says that:

“43…………There are two interrelated reasons for this. First, the improbabilities of a number of similar incidents alleged against a defendant being false is a consideration which should naturally inform a jury’s deliberations on whether propensity had been proved. Secondly, obvious similar in various incidents may constitute mutual corroboration of those incidents. Each incident informs another.”

44.

…. The jury should be directed that, if they are to take propensity into account, they should be sure that it has been proved. This does not require that each individual item of evidence said to show propensity must be proved beyond reasonable doubt. It means that all the material touching on the issue should be considered with a view to reaching a conclusion as to whether they are sure that the existence of a propensity has been established.”

In R v P (Children: Similar Fact Evidence) [2020] EWCA Civ 1088, the court had to consider whether evidence from private law family proceedings of coercively controlling behaviour from a new relationship that a father had formed subsequent to the end of his relationship with a mother, who made allegations of coercive control against him in private law proceedings relating to children should be admitted. The court considered various factors relating to the admission of such evidence, one of which was that domestic abuse does not usually consist of a serious of isolated incidents, but of harmful patterns of behaviour over time, and where issues of coercive control and stalking cannot necessarily be labelled and identified as separate incidents (paragraph 22 of R v P) and bearing in thin that a pattern of harassment and other forms of domestic abuse is only discernible by conducting a broader examination of these allegations (as identified by Lord Justice Baker in re LG (Re-opening of Fact Finding) [2017] EWHC 2626 (Fam) at [27]). Lord Justice Peter Jackson ((at 26)) identified that R v Mitchell was applicable to family cases which show that the prevent facts must form a sufficient basis to sustain a finding of propensity, but each individual item of evidence does not have to be proved.

We have borne these points in mind when considering propensity in this case, examining the view of the DBS that such propensity could be established against the allegations raised and critically looking at the evidential material upon which the DBS reached their conclusions.

We deal with Grounds 7 – 5 in reverse order in this judgment as there is the most information and evidence garnered from Ground 7 which is relevant to the factual position in respect of Grounds 6 and 5. Our conclusion having examined these issues is that the material in respect of all these allegations is relevant and shows a pattern of behaviour which gives rise to a risk of harm, even given the absence of underlying evidence in respect of the 2013 and 2007 incidents. We set out our reasons for this in more detail below.