[2025] UKUT 119 (AAC)

Before we set out our findings of fact and deal with the grounds of appeal in this case, we need to say something about the significance of the appellant having been convicted subsequent to DBS’s decision.

As noted above when setting out the legal framework, DBS’s decision to bar the appellant was made under paragraph 3 of Schedule 3 to the SVGA 2006, but the fact of the appellant’s conviction for possession of indecent images means that, if his case were considered now by DBS, it would need to be considered under paragraph 2 of Schedule 3, the so-called “auto-barring with representations” provision.

We considered at the start of the hearing what implications this has for this appeal. After discussion with parties, we indicated that it appeared to us that it made no difference of principle for the following reasons. The parties agreed.

Our task is to decide whether any of the grounds of appeal succeed by reference to the circumstances as they were at the time of DBS’s decision, at which point the appellant had not been convicted (and nor did he otherwise fall within paragraph 2 at that point). Counsel for DBS confirmed that DBS was not intending to review its decision to make a fresh decision under paragraph 2.

We noted that although paragraph 2 is referred to as an “auto-barring” provision, in fact where representations have been made, DBS has in principle exactly the same discretion under paragraph 2 as it does under paragraph 3 to determine whether it is appropriate to include someone on the barred list. Further, in principle, the conviction changes little that is relevant to DBS’s statutory task of protecting vulnerable adults and children: the same conduct has occurred and the same risk arises whether someone has been convicted for it or not. However, we acknowledge that there may be some different considerations. In this case, for example, the appellant has with his conviction been made the subject of a Sexual Harm Prevention Order. If DBS were taking its decision now, it would need to take into account the terms and effect of that order and consider whether it was necessary also to bar the appellant in order to achieve the statutory safeguarding purposes. The fact of the conviction may also make a difference to what would be expected of DBS in terms of the need to ensure public confidence in the scheme.

This appeal, however, lies against DBS’s decision of 21 March 2023 and must be determined by us by reference to the circumstances as they were at that date, and without taking into account the conviction itself.