[2025] UKUT 069 (AAC)

We begin with the grounds of appeal set out at paragraphs 9b and c above – these are disputes about primary facts found by DBS, where there is a conflict of evidence between

It is common ground (i.e. all the evidence agrees) that DGW had a personal relationship with the 14 year old girl over a period of months in 2001. The question posed by the ground of appeal at paragraph 9b above is whether the relationship was “inappropriate and sexual”.

In our view, the evidence of the 14 year old girl, as recorded in the transcript of her police interview in 2001, and (importantly) corroborated by other young women or girls who described themselves as friends of DGW (all to the effect that DGW and the 14 year old girl did have sex) is, on the balance of probabilities, to be preferred to that of DGW (to the effect that they did not). We accept what DGW says about his having been acquitted by a jury of two counts of unlawful sex with a child under 16; however, the test for conviction in criminal proceedings (“beyond reasonable doubt”) is quite different from the test we apply here (which version of events was more likely?). Factors that explain our evidential preference include (a) the element of corroboration in the former evidence, and (b) our judgement that it is more likely that DGW’s evidence is “bending the truth”, than that the evidence of the 14 year old girl and the other young women and girls is “bending the truth”. It follows from our evaluation of the evidence that, in our view, DBS did not make a mistake in finding that DGW’s relationship with the 14 year girl was sexual and (for that reason if for no other, given that DGW was 26) inappropriate; and so the ground of appeal at paragraph 9b above is not made out.

The question posed by the ground of appeal at paragraph 9c above is whether DGW had received warnings from the police prior to his taking the 14 year old girl away from the residential unit in his car; and whether DGW bought alcohol and cannabis for her.

It seems from the contemporaneous written evidence that DGW accepted that he received a letter from the police in April 2001 asking him to stop seeing the 14 year old girl; and yet he continued to see her, including taking her in his car. We therefore find no mistake in DBS’s finding that DGW received warnings from police as regards his taking the 14 year old girl away in his car.

As regards whether DGW bought alcohol for the 14 year old girl, we again prefer the evidence of the 14 year old girl, as recorded in the transcript of her police interview in 2001, and (importantly) corroborated by other young women or girls who described themselves as friends of DGW, and a police officer (all to the effect that DGW did buy her alcohol) to that of DGW (to the effect that he did not). The factors explaining our evidential preference are the same as those referred to in paragraph 22 above.

The evidence for DGW having bought cannabis for the 14 year old girl is somewhat thinner (and may explain why DBS’s finding is somewhat tempered by the words “at least once …”): it was said by the 14 year girl herself in her police interview; and corroborated by the police statement of two members of staff at the residential unit. On the balance of probabilities, and for much the same reasons as set out in the preceding paragraphs, we prefer that evidence to DGW’s.

We accordingly find no mistake in DBS’s finding that DGW had bought alcohol and cannabis for the 14 year old girl; and so the ground of appeal at paragraph 9c above is not made out.

Turning now to the ground of appeal at paragraph 9a above, one of the findings of DBS considered in that ground was set out as follows in DBS’s decision letter (with the finding focused on in the appeal ground, highlighted):

Concerns remain that the information in the case indicates that you are of the belief that children you know to be under 16 to be able to consent to sex. Whilst you denied having sex with children under the age of consent, the information indicates that you had sex on two occasions with the 14 year old female when you were aged 26 and a second female considered to be your girlfriend at that time disclosed to police you had began having sex when she was aged 15 and a half when you would have been aged around 20/21.

DGW denies having the belief highlighted in the finding above – but he also denies having had sex with the 14 year old girl (whereas we find no mistake in DBS’s primary factual finding, that he did). In our view, the correct way to the view the finding highlighted in the extract above is that it is DBS’s inference, from its primary factual finding that DGW had sex with the 14 year old girl, that he must have thought she could give consent. We see no mistake in that inference, as to DGW’s beliefs at the time. As to whether DGW’s beliefs, at the time DBS made its decision, had changed, DGW’s evidence did not persuade us that they had, largely because he continued to deny that he had sex with the 14 year old girl at the time, and that he knew the true age of his then-girlfriend when he first had sex with her when she was 15½ (whereas, on the evidence, we think it likely that he did know her age at the time); we are unpersuaded that DGW’s beliefs with regard to having sex with under-18 year olds have changed since 2001 – and since we consider it a valid inference to suppose that DGW thought such persons could give consent back then, we have to conclude that he still held the same views at the time of DBS’s decision.

The other finding of DBS considered in the ground of appeal at paragraph 9a above was set out three paragraphs down in DBS’s decision letter, as follows (with the finding focused on in the ground of appeal again highlighted):

Taken together this indicates that you have an attitude that you will do what you want, irrespective of the safety or concern for others. You demonstrated a willing (sic) to behave this way, irrespective of the potential harm for vulnerable children.

The intervening paragraphs of DBS’s decision letter, to which “Taken together …” at the beginning of the extract above refers, included some additional factual findings, as follows:

You demonstrate an attitude that it is ok for you, as an adult to have frequent communication with a 14 year old female who was residing at a local authority residential unit. You would frequently take the female, and on occasion other children, out in your car without permission or authority from her care givers. Furthermore, you would play loud music and rev your engine to attract attention and when staff have confronted you that it was inappropriate for you to be there, you told them to 'fuck off and get back in' and laughed. This was also despite being warned by police not to have any contact with the female or other children at the residential unit and you were subsequently convicted of abducting an unmarried girl under 16. Whilst you stated you would have contact because you knew what it was like to be in care and the female would threaten to harm herself, this does not seem plausible due to the frequency and level of contact and police were unable to corroborate that you had been under the care of social services.

Our analysis of whether DBS made a mistake in finding that DGW had the “attitude” set out in the extract at paragraph 30 above, is essentially similar to our analysis at paragraph 29 above about whether DGW had the “belief” in the extract at paragraph 28 above:

It follows from what we conclude at paragraphs 29 and 32 above that the ground of appeal at paragraph 9a above is not made out.

As regards the ground of appeal set out at paragraph 9d above, we are persuaded by Mr Fisher’s argument that it cannot be a mistake of law for DBS to have failed to take into account information that it did not have when making its decision. On the other hand, if the information is relevant, in our view it can be a mistake in a finding of fact to omit to make relevant factual findings on the basis of such information (see [39] of PF v DBS [2020] UKUT 256 (AAC)). In this case, however, what DGW has told us about the course of his life since 2001 – that there have been no reported concerns with regard to safeguarding children or vulnerable adults, that he has been in a relationship with the same partner since 2006 and had six children with her, now aged between 8 and 18, and that he has (unfortunately) experienced mental health difficulties – do not seem to us to be facts which would have made a difference to DBS’s decision. This is because, looking at the “barring decision summary” document which encapsulated DBS’s reasoning, DBS had “definite” concerns in the areas of “child abuse supportive beliefs” and “attitudes endorsing harmful behaviour” – which engage the findings about DGW’s continuing beliefs and attitudes that were the subject matter of the ground of appeal at paragraph 9a above – and in respect of which we have found no mistake. The information about the course of DGW’s life since 2001 do not disturb these findings. It follows that the ground of appeal at paragraph 9b above discloses no material factual mistake on DBS’s part.

The ground of appeal refers, in the alternative, to DBS’s decision being disproportionate, in the light of the facts about the course of DGW’s life since 2001. In our view, the limb of the test of proportionality most relevant to the analysis here is the one which asks whether, balancing the severity of the measure’s effect on DGW’s rights against the importance of the objective of the measure (safeguarding children), to the extent the measure will contribute to its achievement, the former outweighs the latter (this is “step four” of the test as articulated by Lord Reed in Bank Mellat v HM Treasury (No 2) [2014] AC 700 at [74]).

Here, the effect of the measure is to stop DGW carrying out the caretaking role that was offered to him at the school of one of his children. We can see that preventing him taking this role will have a negative impact on DGW financially and also in terms of his mental wellbeing, as he would like to take up the role. On the other side is the importance of safeguarding children, to the extent barring DGW will contribute to it. DBS’s judgement, as the expert and regulating body in safeguarding, that the balance favours barring in this case, is to be accorded appropriate weight. In our view, and having regard to DBS’s factual findings, in which we have found no material mistake, the effect on DGW is outweighed by the contribution to safeguarding children achieved by including DGW in the barred list. DBS’s decision was not, therefore, mistaken on a point of law by reason of being disproportionate.