[2025] UKUT 119 (AAC)

We also consider that, in the context of appeals against DBS decisions, the emphasis that courts and tribunals in other contexts place on it being reasonable to assume that someone who litigates accepts the incidence of publicity that comes with that should perhaps be given less weight. That is because the legislative scheme gives those who are subject to it an expectation that they will not be publicly named and because the right of appeal to the Upper Tribunal is an essential element of that same legislative scheme. The hearing before the Upper Tribunal in DBS cases is the “fair and public hearing … by an independent and impartial tribunal” with “full jurisdiction” which secures that the barring scheme under the SVGA 2006 is compliant with Article 6 of the European Convention on Human Rights: cf R (G) v Governors of X School [2011] UKSC 30, [2012] 1 AC 167 at [33] and [84] per Lord Dyson, [94] per Lord Hope and [101] per Lord Brown. It is important that an appellant should not be deterred from exercising their appeal rights by the fact that an appeal to the Upper Tribunal might bring with it publicity from which they are otherwise protected under the statutory scheme.

Similar considerations apply in relation to the Sexual Harm Prevention Order to which the appellant in this case is subject. The identities of those subject to such orders are not public, but those who need to know will be informed of the existence of such an order on a DBS check.

In this particular case, we are satisfied that the appellant’s right to privacy under Article 8 of the European Convention on Human Rights is engaged as the issues in the case have significantly affected his personal life, mental health and reputation. Indeed, his family have already moved house in order to minimise the risk to him (and them) that may arise where it becomes known that a person has been convicted (or, even, accused) of sexual misconduct/offences in relation to children. Given the publicity that has been afforded to some such cases in the past, we take judicial notice of this risk.

As we have noted, although it is often said that a claimant implicitly accepts publicity by commencing legal proceedings, it is hard to see why someone who exercises their statutory right to appeal DBS’s decision should be deprived of the privacy they would otherwise have enjoyed if they had not appealed but accepted the barring. Although there may be a public interest in the appellant’s name, given the outcome in this case, those who really need to know will continue to be informed by DBS through the scheme in the ordinary way. The public interest in the decision-making processes of DBS and this Tribunal is served by the public hearing and publication of this decision. Such public interest in naming the appellant as remains is in our judgment outweighed in this case by the potential interference with the private rights of him and his family.

We are therefore satisfied that the appropriate balance in this case between the principle of open justice, Article 10 and the appellant’s Article 8 rights, is for the hearing and judgment to be public, but for the appellant to be anonymised.

For anonymity to be achieved in practice in this case, it seems to us that it is also necessary to anonymise the names of the schools at which the appellant worked.