[2024] UKUT 332 (AAC)

However, we do have significant concerns about the DBS’s decision making in this case. It is notable that in KJ’s police interview with DC Beavis she told him that AA “hits people with rulers and stuff, on children” (see page [142] of the appeal bundle) She explained “He will hit me first of all really hard and then punish me too” (see page [144] of the appeal bundle). This was explored further in interview:

It does not appear that these allegations of physical chastisement were addressed in the evidence at the criminal trial, and the DBS has not addressed them in its explanation of its evaluation of the credibility of the respective witnesses and the reliability of their evidence.

There is a further passage after KJ made the allegation about AA “scratching [her] privates” (see page [149] of the appeal bundle) in which DC Beavis asked about whether that behaviour had stopped as she had said she had hoped it would:

It seems unlikely that AA would have found the opportunity to do this to “nearly everybody in the class” and the DBS doesn’t appear to have explored this allegation in any depth, made any finding on it, or to explain how it affected its assessment of the reliability of KJ’s other evidence.

Just because a witness’s evidence on one matter is found to be unreliable doesn’t mean that none of their evidence may be relied upon, but if KJ’s allegations of physical chastisement (or indeed about AA scratching the “privates” of nearly everyone in her class) were found to be unreliable (certainly they don’t appear to have been relied upon either in the criminal trial or in the DBS’s decision making), the DBS should have explained how and why it decided that KJ’s other evidence about the sexual assaults on her was nonetheless reliable. Without such an explanation we cannot understand whether the DBS was entitled to evaluate the evidence as it did. If it didn’t consider this evidence when deciding on the truth of the allegations, that too would amount to an error of law because it was clearly relevant to an assessment of that issue.

The DBS also failed adequately to say in its reasons whether it found that KJ was present at the madrassa on 21 March 2016 (and why) and, if it accepted that she wasn’t present on that day, how it nonetheless found that AA had sexually assaulted her on that day.

These amount to material errors of law.

AA has argued that the DBS erred in various other ways, but because we have decided to remit the Barring Decision to the DBS to make a fresh decision (so any further errors of fact or law that the DBS may have made will be subsumed into the remitted decision), it is not appropriate for us to rule on each of them.