[2025] UKUT 119 (AAC)

We have taken full account of the appellant’s evidence at the hearing, but we do not attempt to summarise it in this decision, other than to the extent that is necessary to deal with the grounds of appeal and to explain our decision. Our findings of fact are made on the balance of probabilities. In this section of the judgment, we simply record the findings we have made on the basis of the evidence before us. It does not follow that, simply because our findings differ from DBS, we consider that DBS has made any material mistake of fact in the decision. We deal with the question of whether DBS has made any such mistake when considering the grounds of appeal below.

The police disclosure received subsequent to DBS’s decision shows that forensic imaging of the appellant’s devices, seized from his home on 15 March 2022, located 4,568 prohibited images of children on his devices, of which 2,179 were live and accessible to the user. The creation date/time range of imagery was from 19 March 2019 to 13 March 2022. The police disclosure does not include formal confirmation as to the categorisation or content of these images. Specimen images are described in the police letter to DBS of 16 December 2024 as “prohibited images of female children aged approximately 8-12 years”.

The police letter records an admission by the appellant of having viewed one video file on the dark web of a female child, believed to be around 11 years old, performing oral sex on an adult male, that the appellant felt sick after viewing it and deleted it.

The appellant and his sister tell us that the images found were all cartoon or animated images, that they were multiple images from the same four animated stories, and that they were categorised by police as Category C. We broadly accept what they tell us about the images as it would be consistent with the charges brought and the sentence imposed on conviction. It is also consistent with the police letter of 16 December 2024 which refers to the images ‘depicting animated characters, such as monster girls engaging in sexual activity with each other, and adults’, although it is unclear as to whether this is a reference to the images found on his device or to the appellant’s admissions to police about his interests. However, we note that, given the appellant’s admission that he had used the dark web to download, but then delete, a video involving a real child, we would expect at least a trace of this to have been located on his devices by forensic imaging, so it may be that not all of the images found were animated ones.

The police report and transcript of the appellant’s police interview on 15 March 2022 has been provided. The interview was conducted without the appellant having an appropriate adult present, and without a solicitor, despite his family’s efforts to ensure that he received such support because of his ASD diagnosis. The appellant says that he went ahead with the police interview without another adult or solicitor because he understood from the police officer that it would be better for him to do so and that, if he helped the police, he would be “on his way” more quickly. It is apparent from the transcript of the beginning of the interview that the appellant did not initially understand the caution. It had to be explained to him again, as a result of which he said that he would “try to be as honest as possible now”. He went on in the interview to make multiple extensive admissions against his own interests.

We acknowledge the concerns that the appellant and his family have about the way this interview was conducted. It was readily apparent to us that, consistent with his ASD diagnosis, the appellant’s communication and interaction skills are quite significantly affected, so instinctively we would have expected arrangements to be made for the appellant to have a solicitor or appropriate adult with him in the police interview. The transcript of the interview leaves us doubtful as to whether the appellant properly understood the terms or effect of the caution, or his right to remain silent.

However, as a panel we have no expertise in criminal procedure, we are not dealing with a criminal case, and nothing in that interview was in the end relevant to the matter for which he was convicted, which was based simply on the images that were found on his device. The only question for us is whether we can fairly rely on what he said in the police interview, insofar as it is relevant to this appeal and DBS’s barring decision. Given that the purpose of the scheme under SVGA 2006 exists to protect vulnerable adults and children, we do not consider that it would be right for us to discount the police interview on the basis of the concerns that have been raised about how it was conducted. What matters in this appeal is how much of what the appellant said to the police constituted reliable evidence as to his activities, knowledge and state of mind.

The appellant and his sister urge us to discount some of what he said in that interview on the basis that he ‘exaggerated’ in order to ‘please’ the police by ‘telling them what they wanted to hear’ so that he ‘could get away quicker’. This particularly relates to what he said during the course of the interview about how he perceived the ages of the children (real or animated) in the images/videos that viewed. The appellant says that he told police he thought they were younger than he really thought they were because that is what he thought the police wanted to hear. We do not wholly accept this. The general impression that we gain, from the records of what the appellant said when he was arrested, and what he said during the interview, was that the appellant was relieved to have been ‘caught’. Indeed, he said as much at several points in the interview, eg. p 193 where he says he “won’t be saying no comment at all” as he “just want[s] to get it out … of [his] system and get some legal advice at the same time” and p 202 where he says that he is “really glad that I’ve been arrested today because otherwise I would have gone further down”. It seems to us that he had been (whether consciously or not) struggling with his sexual feelings for some time, and that he took the interview as an opportunity to unburden himself to an apparently friendly police officer who asked him open questions in an apparently understanding and relatively sympathetic manner. We therefore consider that we can broadly rely on what the appellant said during his police interview.

What we take from that interview, together with the appellant’s evidence at this hearing, that is relevant to this appeal is as follows.

The interview lasted 1 hour and 10 minutes. The appellant during the course of the interview provided the police officer with extensive, intimate details about his sexuality and personal sexual history from his early teenage years onwards. He described how he had become interested in Anime since he was introduced to it by a friend when he was about 14, and how this had developed into a sexual interest in pornographic animation. He explained that all the characters were animated and ‘not real’. Some were monsters or half monsters, some appeared to be young girls, others appeared older.

The sexual animations/images that the appellant accessed were all produced with disclaimers that say that the characters portrayed are over 18. The appellant’s case is that he genuinely believed these disclaimers. It was suggested to him by counsel for DBS at this hearing that he cannot have done so, and that he must have known the characters were under 18, as when he was asked by police what age he thought these characters were he said “11 or 12”.

We have considered carefully what we make of the evidence on this point, both by reference to what the appellant said in the police interview and what he said to us at this hearing. The conclusion that we draw is that the appellant did genuinely believe the disclaimers. It is apparent from the evidence we have of his communication and interaction that he does take language literally. Although we do not have independent expert evidence on the point available, all members of this Tribunal panel have substantial experience in special educational needs. We accept what the appellant says about this being a feature of ASD. We find that he genuinely thought that the disclaimers meant it was lawful to view this sort of material. We find he also genuinely believed that it was not illegal to watch animated pornography of any sort. This is apparent from his whole conduct, and also in particular the police interview at p 221 where he says as much.

However, we do not consider that it follows that he also believed that these animated characters looked over 18. Although we accept what the appellant and his sister say about another feature of his ASD being that he has more difficulty than most people in judging ages, in evidence to us, he explained what he said to police about the characters looking 11 or 12 as being what he thought the police would see when they looked at them. We consider the appellant was being truthful about that and what it means is that he recognised that these were images that looked like children, even though he simultaneously genuinely believed the disclaimers that they were ‘in fact’ over 18. He had been justifying his conduct to himself on that basis, as well as on the basis that they were ‘only’ animations and ‘not real’. We acknowledge that the notion that an incorporeal animated character can ‘be’ a different age to the age it ‘looks’ may seem irrational, but humans are not always rational and we are in this decision simply recording the conclusions we have reached about how the appellant thinks.

The appellant in his police interview also describes his sexual interest in terms of attraction to petite, flat-chested women. He told police about a relationship he had with an adult woman, older than him, who fitted that description.

When he was arrested, police searched his house and, in addition to his electronic devices, seized a box the appellant had with three ‘fleshlights’ (artificial vaginas for use as male masturbation devices). The box depicted cartoon images of young girls and the police officer who interviewed the appellant suggested to him that the ‘fleshlights’ appeared to represent young females. The appellant’s response was that the box said that the ‘characters’ were all women who lived alone, so again the appellant believed that ‘they’ were over 18. Again, we accept his evidence on this point on the same basis, and with the same substantial caveat, as we have accepted his evidence about disclaimers above.

We asked the appellant at this hearing whether he recognised that the body types he appeared to be seeking out are body types that look like children. He said that he did now, but he did not really at the time, although there are indications (eg p 225) of the police interview that he recognised the contribution that this aspect of his sexuality had to ‘leading him down this path’. At this hearing, he said that this was something that had been addressed in his Safer Lives program, and that he had learned that it is not illegal to have sexual thoughts about children, what is illegal is to act on those thoughts. He described how he has learned to address those thoughts, and his pornography addiction generally, by becoming much more sociable, taking up new hobbies, and taking cold showers.

Both to the police and to us, the appellant denies having ever thought about real children in the way that he thought about the animated characters. We accept that to some extent, but we consider that he had at some point begun to realise, whether he ever properly acknowledged that to himself or not, that he might be sexually attracted to real children. We draw that inference from parts of the police interview such as p 219 where the appellant acknowledges including the word “young” in the search terms he used online, and also p 213 where, when asked by police about whether he had viewed real life child pornography, he said that he had, although it was “difficult to find” and described a few images/videos he had seen in addition to the one he later downloaded from the dark web (p 213).

We accept the appellant’s evidence to us at this hearing, consistent with his written evidence previously, that accessing the dark web is unfortunately relatively easy for someone with even average IT skills and requires only the downloading of a different browser from an open-access source on the ordinary internet. We accept the appellant’s evidence to us that he was drawn to investigate the dark web because some animated material that he had seen on YouTube could be obtained on the dark web. However, we infer both from his developing interests as outlined above, and from what he clicked on once on the dark web, that he was also at least curious to see what child-appearance pornography he could access.

Once on the dark web, he looked at a number of sites out of general interest as to what is available on the dark web, but also navigated to a pornographic site that advertised itself as including child pornography, bestiality, necrophilia and other material. This site included a disclaimer that in fact there was no such real material on the site and all participants were over 18. Our conclusion about the appellant’s belief in this disclaimer applies equally here. However, he tried to access the site because of his interest in the kind of images that it advertised itself as containing. That includes the child pornography.

This first site was behind a bitcoin paywall. The appellant used PayPal to convert some money into bitcoin and tried to access the site, but it did not work. We accept his evidence that it was not difficult for someone with average IT skills to use PayPal to convert money to bitcoin. We also accept the appellant’s evidence, despite the submissions of counsel for DBS, that he did not see any particular significance to the use of bitcoin as being an ‘untraceable’ currency that would only be used for illegal activities. We accept the appellant’s evidence that he was naïve about such matters and that his general sense at the time was that bitcoin was just a ‘growing currency’. In this respect, we note from the police interview that the appellant has no particular technological expertise and was unfamiliar with some technology that the police asked him about, such as peer-to-peer sites (p 225).

The appellant then navigated to another site which allowed him to download a zip folder of material for free, from which he opened and watched one real child pornography video. This is the video which he said in evidence at this hearing he did not realise involved a child until the end of the video. He said that at that point, he felt physically sick, deleted the video and later told his mother and friend about it. We do not wholly accept his evidence about the point at which he realised the video involved a child. The appellant describes how the child’s face was on screen at the start of the video ‘talking to herself’. Even allowing for the make-up, and the appellant’s difficulties with judging ages, there is an inconsistency in what the appellant says about only realising when he saw the child’s face unobscured at the end of the video, given that he also describes her face being unobscured at the start. At this hearing, he said that the reason he did not realise at the start of the video was that the child “just treated it like a normal situation – that is why I did not think it was wrong at the time until the video ended”. In other words, we find, it was the fact that the child did not appear to be in distress or being abused that initially made him think there was nothing wrong, rather than any belief he had about her age. These factors, together with the findings we have already made about what the appellant was looking for on the dark web, lead us to conclude that he must have known from the start of the video that she looked like a child, even if he did not realise until the end that she must actually be a child. We do, however, accept that at the end of the video he felt disgusted with himself and that this is why he felt the need to tell someone about what had happened.

We also record here that we accept that the appellant did not view this particular video a second time. His solicitors got this point wrong in the representations they prepared for him to send to DBS (p 72). They seem to have misunderstood his statement which was appended to those representations, which is (we note) not as clear on this point as it might be. However, we accept that what he meant in his statement was that he went back on the dark web generally to check what he had seen, but he did not re-watch this video. We accept his evidence in this respect because he had downloaded this video and so did not need to go back on the dark web to find it. He wrote in the statement (which he swore at this hearing was true): “I did go back on the dark web one more time after a couple of days but only for the fact that I wanted to see what I saw was real, and it was. I told my friend, and I told my mum. I was disgusted at what I did and I couldn’t keep it a secret. My friend had reported me and told me weeks later after my mum told me to delete the files to ensure I don’t look at them again, and I did delete them.” We note that it is apparent from this statement that the appellant did not immediately delete the video (as he has said elsewhere), but only after his mum told him to. We consider his statement is likely to be the most reliable evidence in this respect as it was what he wrote closest to the time.