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DBS’s failure to address the substance of the references that the appellant had provided, and to take those into account when considering what risk he poses to children
DBS’s failure to address the substance of the references that the appellant had provided, and to take those into account when considering what risk he poses to children
It is unfortunate that the decision-maker at DBS did not read the appellant’s references properly and referred to them as being from the appellant, his family and solicitors, when in fact they included at least one, quite powerful, reference from a long-standing friend with some professional understanding of the issues. It would have been better if DBS had also acknowledged specifically that these references not only said that they did not believe the appellant would do this again, but that in their experience of him he did not display any sexual interest in children. However, we do not consider that there was any material mistake of fact or law in DBS’s decision in this respect. In a case such as this which is concerned with a person’s intimate thoughts and actions, which people may be able to conceal from even their closest family and friends, it is usual, and perfectly rational, for a decision-maker to place little weight on references as DBS has done in this case. We would have done the same. We do not therefore find that the minor factual error as to the identity of the referees was a material error of fact. Further, DBS’s obligation to give adequate reasons does not require it to spell out the content of the references. The references were a relevant factor and DBS properly took them into account. The weight that DBS gave to the references was a matter for DBS. There was no material mistake of fact or law in the decision in this respect.
- Heading
- The decision of the Upper Tribunal is that there are no mistakes of fact or law in the decision of the Disclosure and Barring Service. The decision of the Disclosure and Barring Service confirmed. The
- Introduction
- This hearing / reasonable adjustments
- DBS’s decision
- The grant of permission to appeal
- Developments since DBS’s decision in this case
- The relevant legal principles
- The Upper Tribunal’s jurisdiction on appeal
- The significance of the appellant’s conviction to DBS’s decision and this appeal
- The evidence and our findings of fact
- The grounds of appeal
- DBS’s finding that the appellant attempted to pay for indecent images of children, rather than that he attempted to pay for images of persons aged 18 and over
- DBS’s finding that the appellant viewed the indecent image (video) of a child a second time rather than just that he accessed the dark web a second time
- DBS’s finding that the appellant must have realised the female in the video was a child at the time that he masturbated, and not just subsequently as he said
- DBS’s finding that the appellant went to great lengths to access the dark web, when in fact it was straightforward (and not illegal) to do so
- DBS’s failure to address the substance of the references that the appellant had provided, and to take those into account when considering what risk he poses to children
- DBS’s failure to take into account the appellant’s ASD diagnosis, and his difficulty identifying body language and facial emotion when considering the relevance of his statement that ‘it was weird bec
- Proportionality
- Roger Graham
- We bear in mind that we should not order a restriction on publication simply because both parties seek it: see X v Z Ltd [1998] ICR 43, CA. However, in this case, we are satisfied that the private int
- Open justice means that justice must not only be done, it must be seen to be done. In Cape Intermediate Holdings Limited v Dring [2019] UKSC 38 , [2020] AC 629 the Supreme Court explained the purpose
- Article 6(1) of the European Convention on Human Rights (ECHR) provides that: “Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the inter
- Numerous cases have emphasised the link between open justice and the right under Article 10 of the European Convention of Human Rights to freedom of expression and have provided guidance on the nature
- An order anonymising someone who would otherwise be named in court proceedings is an interference with the principle of open justice. As Lord Reed JSC described in A v BBC [2015] AC 588 at [23]: “It i
- Ordinarily, it is said that it is not unreasonable to regard a person who brings proceedings as having accepted the normal incidences of their public nature, including the potential embarrassment and
- In this particular jurisdiction, the considerations are somewhat different to those in the authorities we have mentioned, because this is an appeal in relation to the appellant’s inclusion on the barr
- Conclusions