[2025] UKUT 192 (AAC)

Mr Badar submitted that an indefinite bar from regulated activity interferes with the Appellant’s right to private life under Article 8 ECHR, encompassing professional and personal development. The DBS’s decision letters merely assert that an indefinite bar is “necessary and proportionate,” without showing consideration of less restrictive alternatives. Given the minor nature of the police resolution and the Appellant’s previously unblemished record, an indefinite bar is excessive and disproportionate. A decision-maker must not interfere more than is strictly required to meet safeguarding objectives. The DBS failed to demonstrate that no other measures short of a permanent bar could protect vulnerable individuals, making the decision disproportionate and incompatible with the Appellant’s Article 8 right to respect for his private life.

We considered this to be the most difficult ground of appeal and one which concerned us the most. Ultimately, however we have decided to dismiss it.

The findings of fact in relation to the Incident are effectively conceded and established on the balance of probabilities and they amount to “relevant conduct” within the relatively broad definition provided by the Act.

We are satisfied that it was rational for the DBS to conclude at the time of making the Decisions that the conduct was indicative of serious – and concerning – underlying attitudinal issues (including a marked lack of empathy) of a type likely to be relatively difficult to remediate (and incompatible with regulated activity).

Similarly, we are satisfied that it was rational for the DBS to conclude, given the proven conduct, MC posed “a” risk of harm, in that he might repeat the conduct in the future. The assessment of the level of that risk as significant was/is, in accordance with the authorities set out above, generally a matter for DBS not the UT, so long as it was a rational evaluation.

Mr Serr for the DBS submits that on any reasonable and objective view it was appropriate and reasonably necessary (and therefore proportionate) to include MC on the barred lists in order to achieve DBS’s legitimate (and important) safeguarding aims. DBS conducted the necessary “balancing act” exercise. DBS had regard to the adverse impact that a barring decision may well have on MC’s right to respect for private life (including his ability to gain employment in regulated activity). He argues that it was entirely open to DBS to conclude that there was insufficient evidence of sufficient “insight” from MC (which is conceptually different to “remorse”) or “remediation”. He contends that there was no less-restrictive measure available, sufficient to achieve the legitimate aim, or to maintain confidence in the wider safeguarding regime; DBS did not, for example, have any power to implement the options (e.g. a suspension, additional training) raised by MC in the Reps [85].

Mr Serr also argues that although MC has referred to being barred for “life”, that is too simplistic a representation. In reality, there would be an opportunity for DBS to carry out a review of the Decision, in due course, and/or if there were a sufficiently material change in circumstances. The review of his inclusion on the list can take place if there is a change of circumstances – pursuant to paragraphs 18 or 18A of Schedule 3 to the Act.

Having now heard all the evidence, and making our own assessment of proportionality, we accept these submissions. The decision to include the Appellant on the ABL was proportionate and did not constitute any breach of MC’s right to respect for his private life (privacy) for the purposes of Article 8 ECHR.

We accept that there are a number of mitigating factors in relation to the Incident and the impact on MC himself:

Nonetheless we consider the barring Decisions to include MC on the ABL to be proportionate bearing in mind the following aggravating factors:

It is accepted that barring represents an interference with a person’s private life for the purpose of Article 8 of the European Convention on Human Rights (ECHR) but the question is whether it is proportionate. We consider that there was no mistake of law in the barring decision based upon the findings made at the time, and as now made following the hearing, on the grounds of proportionality.

In summary, the proportionality of DBS’s decisions to include individuals on the barred lists should be examined applying the tests laid down by Lord Wilson in R (Aguilar Quila) v Secretary of Stage for the Home Department [2012] 1 AC 621 at para 45:

These four questions were later developed by Lord Sumption in Bank Mellat [2013] UKSC 39 at 20:

In assessing proportionality, the Upper Tribunal has ‘…to give appropriate weight to the decision of a body charged by statute with a task of expert evaluation’ (see Independent Safeguarding Authority v SB [2012] EWCA Civ 977 at [17] as set out above). However, we must conduct our own assessment of proportionality afresh rather than simply review the DBS’s assessment.

We are satisfied that each of questions a)-d) should be answered in favour of inclusion on the ABL being proportionate based on the findings that the DBS made at the time (and those findings are confirmed because we have found they contained no mistakes of fact).

On the basis of the findings that the DBS made and we have upheld, we are satisfied that it was proportionate and reasonably necessary to bar MC from regulated activity with vulnerable adults in order to achieve the public interest in the (important and) legitimate safeguarding aim.

There is no real question that the public interest and legislative objective of safeguarding vulnerable groups is sufficiently important to justify the interference with private life that barring constitutes and that barring is rationally connected to protecting those groups.

We are satisfied that no other measures were available sufficient to adequately safeguard the risk of future harm that the DBS rationally decided that MC posed. We are satisfied that the DBS was entitled to consider that the Appellant presented a risk of harm to vulnerable adults at the time of the decision based upon the findings as originally made and upheld by us. The decision that the Appellant posed a risk of repeating similar acts at the time of the Decisions was also rational. We find that the DBS’s evaluation of the future risk continues to be rational as at the time of the hearing.

We are therefore satisfied that barring was necessary and struck a fair balance between MC’s right to a private life and the interests of the community. The DBS expressly carried out the “balancing act” exercise required. Based on the findings we are satisfied for ourselves that barring strikes a fair balance, notwithstanding the impact that it has had and will have upon the Appellant.