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This hearing / reasonable adjustments
This hearing / reasonable adjustments
The appellant is now 27 years old. He was diagnosed with Autism Spectrum Disorder (ASD) (sometimes referred to as Asperger’s Syndrome) when he was about 13 years old. He is what is often described as ‘high functioning’, but his communication and social interaction skills are significantly affected.
At this hearing, the appellant attended accompanied by his sister, who acted as his representative. The following ground rules had previously been agreed at a case management hearing on 5 February 2025 and were confirmed again at the start of the hearing. Everyone sought to abide by them:
Breaks of 15 minutes approximately every hour, in addition to the normal lunch break;
Additional breaks may be requested as required;
The appellant may bring his own water bottle, with water in it, to the
hearing room;
When questioning the appellant, counsel for DBS and the Tribunal will:
Keep questions as short as possible;
Use simple language with as little jargon as possible;
Use literal language and avoid the use of metaphor and simile;
Ask only one question at a time (no ‘tag’ questions);
Both the appellant and his sister may make submissions to the Tribunal at the beginning and end of the hearing;
While the appellant gives evidence, his sister will take a ‘representative’ role. This means that she cannot answer questions for him, but she can raise with the Tribunal any concerns she has about any questions asked (and in particular if they do not adhere to the ground rules). She may also ‘re-examine’ the appellant after DBS and the Tribunal have finished asking him ‘open’ questions to give him an opportunity to clarify his evidence on any point about which he has been asked by DBS or the Tribunal.
The appellant affirmed the truth of the statement dated 15 February 2023 that he had prepared and which had been attached to the representations submitted to DBS on his behalf by his solicitor. He was then asked questions by Mr Serr and the Tribunal as envisaged in the ground rules. His sister also took the opportunity offered by the Tribunal at the beginning of his evidence to ask some supplementary questions, as well as ‘re-examining’ him at the end.
At the end of the hearing, both parties had an opportunity to make closing submissions. We took a break after Mr Serr’s submissions to allow the appellant’s sister an opportunity to refine the submissions that she had prepared.
We record here at the outset that the appellant could not have asked for a better representative than his sister, who has displayed great fortitude and competence in representing him in these proceedings. We note also the support that the appellant has received from other family members.
- 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