[2025] UKUT 329 (AAC)

In relation to ground 1, DBS accept that, when they made their barring decision, they knew nothing of the circumstances of the Appellant’s first caution other than that it related to an offence under section 4A(1) of the Public Order Act 1986. Indeed, DBS’ barring decision letter made it clear that the context to the caution was unknown. Nevertheless, DBS was entitled to find that the 3 offences were “a pattern of threatening and violent behaviour which escalated in severity and repeated despite sanction.” Whether the conduct which led to the Appellant’s caution was threatening or abusive or insulting does not matter. In R(R) v DPP [2006] EWHC 1375 (Admin), the High Court described harassment, alarm and distress as relatively strong words befitting an offence which may carry imprisonment or a substantial fine and that the word 'distress' in this context requires emotional disturbance or upset.

At the hearing, Mr Tinkler submitted that the Appellant’s oral evidence about the three incidents reinforced DBS’ finding of a pattern of increasing violence. Regarding the 2000 caution, the Appellant said he got into an argument with police and used abusive language. It could not be dismissed as a ‘childish prank’, as the Appellant seemed to suggest. On the material before DBS, they were perfectly entitled to find a pattern of escalating violence in which, in fairly short succession, the Appellant first acted towards police in a threatening or abusive manner, then assaulted a young person and, finally, committed an ‘exceptionally serious’ assault on his then partner.

Most of DBS’ written submissions on ground 2 dwell on the question whether the ‘youth’ victim of one of the Appellant’s offences was or was not a child. In other respects, it is as if DBS’ written submissions are drafted not by reference to the actual ground of appeal but by reference to the ground as DBS consider it should have been framed. The submissions read as follows:

“Risk assessment is usually a matter for the DBS not the UT as the case law makes clear.

The DBS fully recorded in its decision that the offences were committed more than 18 years ago and [the Appellant] has not committed any relevant conduct since that time. However, [the Appellant] has not produced any evidence of insight or reflection. He has provided no details about the offences that were committed. He has provided no evidence of any community element of his suspended sentence to show how it was completed or any probation reports. He has provided no expert report from a psychiatrist/psychologist addressing current risk.

[The Appellant] committed very serious offences culminating in a serious assault against a partner in a domestic violence context which resulted in a lengthy custodial sentence (albeit suspended). Applying [DBS v JHB (2023) EWCA Civ. 982] there is no mistake of fact in the barring decision which is essentially an appropriateness challenge based on the time since the offences were committed. The appeal should be dismissed.”

DBS’ skeleton argument for the hearing before the Upper Tribunal submits that its barring decision letter did address the “passage of time of these offences” and that the Appellant has “shown little reflection on the actual offences” given his failure to provide evidence “of rehabilitative work to address the offending”.

At the hearing, Mr Tinkler argued that it should have been obvious to the Appellant why he had been barred from working with children and therefore the barring decision was adequately reasoned. DBS’ view was that the Appellant’s criminal history established an ongoing risk. Their decision letter addressed the passage of time by stating that, of itself, this does not mitigate risk. DBS’ decision was not flawed by omitting to find that the Appellant presented some quantifiable level of risk. DBS found that the Appellant posed an unacceptable risk to children, which was in the nature of a risk assessment; a matter which the Court of Appeal has held is exclusively for DBS to evaluate. The Ground 2 issue was essentially the magnitude of risk posed by this individual. It is for DBS to determine risk, and it is uniquely qualified to do so, as the case law authorities recognise. Mr Tinkler also disputed the Appellant’s assertions that none of his offences involved children. The victim of the second offence seemed to be aged 16.

Mr Tinkler submitted that the Appellant had not demonstrated any serious level of reflection on the nature of his offending. The public order incident was passed off as a drunken escapade, the assault on the youth was not viewed by him as a serious matter and the very serious assault on his partner was simply taking matters ‘too far’.

At the hearing, Mr Tinkler submitted that DBS were unable to take account of the Appellant’s football coaching experience because he failed to make representations in response to DBS’ minded to bar letter.

Mr Tinkler argued that, if the appeal were allowed, the matter should be remitted to DBS for a new decision. He did not submit that, pending such a decision, the Appellant should remain on the children’s barred list.