[2024] UKUT 247 (AAC)

It seems to me plain that the Presidential Panel in PF were saying that where relevant oral evidence is adduced before the UT in an appeal under s 4(2)(b) of the 2006 Act the Tribunal may view the oral and written evidence as a whole and make its own findings of primary fact. I would add that whether or not A stole money from B cannot be considered a matter of “specialist judgment relating to the risk to the public” engaging the DBS’s expertise.

Turning to the decision of this court in JHB, Ms Patry prays in aid the observation in [93] that “on the authorities a disagreement in the evaluation of the evidence is not an error of fact”. But that must be read in the context of the statement in the previous paragraph that it was a case where the UT was looking at “very substantially the same materials as the DBS”. In contrast with the present case, JHB had given very limited oral evidence, which did not have a direct bearing on the decision to place him on the lists (see paragraph [90] of the judgment, cited above).

The ratio of JHB is difficult to discern, partly because this court found that the UT had erred in several respects any one of which might well have vitiated the decision. I venture to suggest that it may be authority for the proposition that if the UT has exactly the same material before it as was before the DBS, then the tribunal should not overturn the findings of the DBS unless they were irrational or there was simply no evidence to justify the decision. The same rule may apply where, as in the JHB case itself, oral evidence is given but not on matters relevant to the decision to place the appellant on one or both of the Barred Lists.’

We have applied the law as set out in the legislation and cases above. Although in this case the Upper Tribunal did not hear oral evidence, this is not a case where the Upper Tribunal has exactly the same material before it as was before the DBS. It is open to the Upper Tribunal to consider all of the evidence before it, which includes significant material which DBS did not have, to determine whether there was a mistake of fact. We note that a finding as to whether or not the appellant borrowed money did not engage any specialist expertise of DBS and so we do not defer to DBS.