[2025] UKUT 228 (AAC)

For the DBS, Mr Richards adopted the structure of his skeleton argument. He submitted the legal principles were fairly well settled. He emphasised that in DBS v JHB, the Court of Appeal emphasised the scope of an appeal under the SVGA 2006. Mr Richards submitted it is tempting in cases like this to treat the hearing almost as a rehearing, and the waters are muddied a little by the fact new evidence is admitted (so it is not solely a review of the DBS decision). Mr Richards submitted the focus remains on the decision made by the authority and whether an error can be found in it.

Mr Richards submitted that the grant of permission to appeal in the case was quite narrow, and turned on the risk assessment of 30 September 2022. He acknowledged that VMAC had brought other matters to the Tribunal’s attention at the hearing, and in written statements. Mr Richards stated he made no criticism of VMAC for raising those matters because VMAC would be anxious to make sure the full breadth of what he wanted to say was before the Upper Tribunal. Mr Richards argued, however, that much of what VMAC wanted to say was irrelevant to what the Upper Tribunal needed to decide.

Mr Richards referred to the decision in DBS v RI, and the distinction the Court of Appeal identified between hunting for errors of fact or law (that this Tribunal was charged with) and replicating the job done by the DBS and coming to a broad conclusion (which was not its role).

Mr Richards submitted there were three broad questions the DBS said should be answered. The first was whether the DBS failed to take into account the content of the risk assessment. He submitted the answer to this question was “No”. The DBS relied on the fact the content of the assessment is referred to by the DBS and on a number of different occasions. Mr Richards submitted this was not a situation where an appellant can come to court and say there was no mention of it in the Minded to Bar letter and the Barring Decision Process summary.

Mr Richards submitted that if there is any criticism in terms of the content of the Final Decision Letter dated 05 September 2023, one has to consider each of those letters going to VMAC in totality. It is not right to pick and choose just because one is the Minded to Bar letter and another is the Final Decision Letter.

Mr Richards argued that as explained in the skeleton argument, the risk assessment is not mentioned in passing but the DBS appears to be performing a balancing exercise in respect of it. In the Minded to Bar letter, the DBS explains the content of the risk assessment helps VMAC but goes on to say that it has concerns. Mr Richards submitted that the DBS had demonstrated some engagement with the risk assessment but in a helpful way.

The second question was, if the DBS had not taken into account the risk assessment, was this an error of fact or law? Mr Richards submitted that again, the answer was “No”. Mr Richards submitted that when the DBS referred to VMAC failing to provide testimonials etc., the plain reading of what the DBS wrote is that VMAC provided these, but they were not sufficient. This was consistent with the fact that it is known that VMAC had provided the documents, and it is known that the content of the risk assessment was referred to in the Minded to Bar letter. Mr Richards submitted that the plain reading of the excerpt was effectively that VMAC had not done enough. Mr Richards emphasised the wording on pages 197 to 198 of the bundle indicated the DBS was making an evaluative judgment of the evidence VMAC had provided. The gist of it was: “We have these concerns, you could have provided sufficient evidence to mitigate them, you have not done so and that is a problem.”.

In response to questions from the Tribunal, Mr Richards submitted that one reading of the wording at pages 13 and 213 was that the DBS had not been given anything, full stop. The difficulty with this reading was that the DBS had plainly been given the risk assessment and had clearly considered it. If the sentence in question is to be read to mean the DBS had not been given anything at all, it was difficult to square with the knowledge that the DBS had been given it and had reviewed it. The other reading of the wording was that the DBS had not been given anything sufficient to mitigate the future risk. Mr Richards submitted that the only sensible way to read that sentence was that the DBS had not been given anything that would mitigate its concerns. Mr Richards argued that there was only one sensible way of reading that wording, and it was the interpretation he was inviting the Tribunal to accept.

Mr Richards also submitted that the DBS has to be given the freedom to express themselves in a way that fits their decision-making process. He submitted that there was a danger in asking too much from the DBS in its written reasoning, because it would mean letters became bloated with content and started to resemble one of the longer judgments in the civil world. Mr Richards submitted that the analysis that was done on pages 73 and 223 was evidence of the DBS looking at the evidence carefully and it was sufficient.

Mr Richards submitted the third question was whether, if the DBS had made an error of fact or law, it had contributed materially to the final decision. Mr Richards submitted that if, for the sake of argument, the DBS did not pay sufficient attention to the content of the risk assessment, the assessment was not a robust piece of evidence. He described it as not being something that moved the needle on its own in terms of the decision the DBS made.

Mr Richards submitted that this had already been addressed in the skeleton argument but further evidence had come to light during the hearing to support the DBS’s position. He argued that LC was only aware of the hitting incident that led to the conditional caution. LC therefore only had a partial picture and it was clear that the DBS had taken into account not only that incident, but the background to it, evidence of which created at least a realistic suspicion that the hitting incident was not the incident that took place.

Mr Richards argued that the risk assessment is a small part of the puzzle, not a major part of the evidence and it was not robust. It is a short document, clearly based on incomplete information. If the DBS are to be criticised for the breadth of its reasoning, similar consideration has to be given to the quality of the risk assessment dated 30 September 2022. For example, the assessment did not explore whether VMAC would be on his own with clients, or interrogate the view it was putting forward. It was not the sort of forensic detailed document to which significant weight can be attached The DBS’s position was that it did not help matters.

Mr Richards submitted that the DBS’s reasoning involved a careful and methodical reviewing of the whole of the evidence and then the decision being made. It had taken into account evidence from a variety of different sources, but also VMAC’s representations, and the reasons for having him on the barring list are set out. These include a reference to VMAC obtaining support from different agencies, and a lack of insight or remorse for the incident with his stepson. Mr Richards submitted that DBS had given careful consideration to these matters and concluded VMAC should be included in the Barred List. He submitted that this is not the sort of flimsy process that can be significantly disturbed by something like the risk assessment.

Mr Richards explained the DBS’s position was therefore that even if there was an error, it does not materially contribute to the decision outcome.

VMAC asked the Tribunal to look at the whole case in a holistic manner. He argued that the Final Decision Letter dated 05 September 2023 said the DBS had evaluated evidence from the police and social services but made no mention of AC at all. VMAC argued that the DBS had not addressed the fact there was no other evidence from the police saying they had attended his house to investigate domestic violence. VMAC argued that social services had not provided full information about what happened, for example, nothing had been mentioned about his attempts to adopt his stepson or the fact he attended all the school meetings arranged for his stepson. VMAC argued that the DBS cannot pick and choose what information they disclose.

VMAC also argued that the DBS had a period of approximately one year for its investigation, and could have asked for further evidence, but never did. Nor did the DBS offer VMAC an oral hearing. VMAC argued there were clear errors in the findings of fact and errors of law. A simple finding of fact was that DBS said he had submitted his representations late on 01 September 2023, but he submitted them before the deadline. VMAC argued that the fact the DBS had made its final decision on 05 September 2023, only a few days after he had submitted his second set of representations, indicates the DBS didn’t give a proper look at what he was saying. The DBS should have taken more time to deal with it rather than dismiss it in a few days.

In response to what Mr Richards had argued about him having a lack of insight and remorse, VMAC argued he had full insight and remorse about what he did. He said he regretted it very much and pleaded guilty and admitted what he did.