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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
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 because the kids didn’t look like they were in distress’
The appellant’s statement that ‘it was weird because the kids didn’t look like they were in distress’ was mentioned in the BDP document as an indicator in favour of barring. The appellant’s argument is that DBS failed to acknowledge the connection between the appellant saying this and his ASD diagnosis. The appellant also argues that, as we have ourselves found in our findings of fact above, the appellant’s ASD is relevant to any understanding of how and what he was thinking.
We consider that the link between the appellant’s ASD and his behaviour could have been recognised by DBS to a greater extent than it seems to have been. However, it cannot be said that DBS wholly failed to take the appellant’s ASD into account as it clearly features in the decision.
Nor do we consider that DBS materially erred in any respect as regards the appellant’s ASD diagnosis. The essence of the appellant’s argument is that his ASD explains some of his behaviour and makes it less ‘culpable’. We agree, but we do not consider that these factors have much bearing on the decision that DBS has to make. The scheme under the SVGA 2006 is not concerned with punishment, or with any assessment as to a person’s culpability for the relevant conduct that gives rise to a risk to children/vulnerable adults. Those are the preserves of the criminal law. The scheme under the SVGA 2006 is concerned solely with the protection of children and vulnerable adults. If DBS considers a person poses a risk, it is unlikely to make a significant difference to whether it is appropriate to bar that person that the risk in part arises from a particular condition from which that person suffers.
In this case, taking the appellant’s ASD properly into account has resulted in us reaching the conclusion that there were a number of factual errors in the decision, but that those errors were immaterial for the reasons we have explained. This ground of appeal is also not therefore one that amounts to a material error of fact or law in the decision.
- 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