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The relevant legal principles
The relevant legal principles
Relevant legal framework for DBS’s decision
The appellant in this case was originally included on the children’s barred list using DBS’s powers in paragraph 3 of Schedule 3 to the SVGA 2006.
Under that paragraph, subject to the right to make representations, DBS must include a person on the relevant list if (in summary and in so far as relevant to the present appeal):
The person has engaged in “relevant conduct”, i.e. conduct which endangers or is likely to endanger a child (Sch 3, paragraph 3 and 4(1)(a)) or has engaged in conduct which if repeated against a child would endanger or be likely to endanger them (paragraph 4(1)(b));
The person has been or might in future be engaged in regulated activity in relation to children; and,
DBS is satisfied that it is appropriate to include them in the relevant list.
“Endangers” means (in summary) that the conduct harms or might harm the child: see Schedule 3, paragraph 4(4).
By paragraph 4(1)(c) of Schedule 3, “relevant conduct” specifically includes “conduct involving sexual material relating to children (including possession of such material)”. By paragraph 4(3), “Sexual material relating to children” means “(a) indecent images of children, or (b) material (in whatever form) which portrays children involved in sexual activity and which is produced for the purposes of giving sexual gratification”. By paragraph 4(4), “image” means “an image produced by any means, whether of a real or imaginary subject”.
The appellant’s conviction for possession of prohibited images of a child contrary to sections 62(1) and 66(2) of the Coroners and Justice Act 2009 means that he would, if DBS had taken its decision subsequent to that conviction, have been subject to paragraph 2 of Schedule 3. By virtue of regulation 4(5) and paragraph 2(f) of the Schedule to the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009 (SI 2009/37) the appellant’s offence is one of the criteria prescribed for the purposes of paragraph 2. That paragraph provides as follows:
Inclusion subject to consideration of representations
2
(1) This paragraph applies to a person if any of the criteria prescribed for the purposes of this paragraph is satisfied in relation to the person.
(2) Sub-paragraph (4) applies if it appears to DBS that—
(a) this paragraph applies to a person, and
(b) the person is or has been, or might in future be, engaged in regulated activity relating to children.
(4) DBS must give the person the opportunity to make representations as to why the person should not be included in the children's barred list.
(5) Sub-paragraph (6) applies if—
(a) the person does not make representations before the end of any time prescribed for the purpose …
(6) If DBS
(a) is satisfied that this paragraph applies to the person, and
(b) has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to children, it must include the person in the list.
(7) Sub-paragraph (8) applies if the person makes representations before the end of any time prescribed for the purpose.
(8) If DBS
(a) is satisfied that this paragraph applies to the person,
(b) has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to children, and
(c) is satisfied that it is appropriate to include the person in the children's barred list,
it must include the person in the list.
As can be seen, if someone to whom one of the criteria prescribed for the purposes of section 2(1) applies fails to make representations, they must automatically be included on the barred list: section 2(6). If they do make representations, however, then, just as with cases falling with paragraph 3, DBS must decide whether it is appropriate to include the person in the children’s barred list. Barring is not ‘automatic’ where representations have been made.
- 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