[2025] UKUT 113 (AAC)

The DBS also found the following allegation was made out, namely that the Appellant was “in possession of illicit images of children (IIOC) and category A videos containing footage of sexual activity between children and male adults.” The Appellant contends that the DBS made a mistake of fact in this respect.

The DBS’s final decision letter explained its reasoning for finding this allegation as proven as follows:

In our view it is important to distinguish two quite separate questions in connection with this allegation of relevant conduct. The first question is whether the missing USB stick held IIOC. The second question is whether the Appellant was knowingly in possession of such IIOC.

On the first question, we are left in no reasonable doubt that the missing USB stick contained IIOC. We find that the detective’s witness statements as to what he found on the memory stick are both detailed and reliable as to their accuracy. We further find that the reliability of those statements is in no way lessened by the fact that the statements were not countersigned by another police officer. The fact that the police later managed to lose the evidence in question, while it understandably meant that criminal charges could not be pursued, does not in any way undermine a finding in civil proceedings that it is more likely than not that the USB stick in question contained IIOC.

As to the second question, however, we are left in some significant doubt as to whether the Appellant was in possession of the IIOC. We regard it as significant that no IIOC were found on the Appellant’s mobile phone or laptop or other devices that were seized by the police. We note also that the TRA did not bring any charges relating to the alleged possession of IIOC. We recognise that there was a handful of search items indicative of someone searching for IIOC and that there was a trace of an indecent movie file having been accessed. However, whilst we were not persuaded by the Appellant’s argument that his mobile phone messages over an extended period of time were in some way attributable to a third party, we cannot rule out the real possibility that a casual visitor to the Appellant’s home (met through e.g. Grindr) introduced the USB stick with the IIOC and made inappropriate searches on his laptop. We recognise the force of Mr Webster’s argument that a positive finding as to the mobile phone messaging may provide support for finding that the memory stick allegation is also made out. Thus, we accept that the findings may be found to be mutually reinforcing to some extent. However, we cannot say on the balance of probabilities that it is more likely than not that the Appellant was knowingly in possession of IIOC. It is possible that he was, but in our estimation, taking into account all the evidence, it was not more likely than not that he was.