[2025] UKUT 167 (AAC)

It is important to remind ourselves as to the precise terms of the factual finding made by the DBS. This was in the following terms:

This conclusion therefore involves two quite distinct findings which need to be separated out.

The first finding is that the Appellant kissed Molly on multiple occasions between June 2021 and December 2022. This finding is not itself in dispute. The Appellant accepted (at the very least) that he would from time-to-time kiss Molly by way of a peck on the cheek ‘to encourage her’. Furthermore, there is in fact a glaring inconsistency in the Appellant’s evidence as to the details of these interactions which is a further example of the unsatisfactory nature of some of his evidence. On the one hand, he acknowledged in his police interview that there had indeed been other occasions on which he had kissed Molly on the lips. Thus, the officer asked him “Have you kissed Molly on the lips more than once? And let’s just start with this one – have you kissed Molly on the lips more than once?”. The Appellant’s response to this unambiguous question was a simple “Yes” (p.50). Yet on the other hand, in his witness statement, he strenuously denied this very same allegation – see paragraph 41 above. Whichever is the true position, the fact remains that there is a clear admission that the Appellant kissed Molly in some way on multiple occasions over the relevant period. In that regard we find there is no mistake of fact by the DBS in making that first finding.

The second finding is that the kiss he gave Molly in June 2022 at Ellie’s birthday party was sexual in nature. This finding, of course, is very much in dispute.

Accordingly, we have to decide whether the kiss that the Appellant gave Molly on the day of Ellie’s birthday party was sexual in nature. We were not directed to any provisions in the 2006 Act which could guide us in this assessment. However, the DBS response to the appeal suggested that some assistance could be obtained from section 78 of the Sexual Offences Act 2003, which stipulates as follows:

Although that provision operates in the criminal law context, we consider it to be an instructive starting point. In particular, it makes a fundamental distinction which we consider may be relevant in other contexts, namely that some types of activity are by their very nature intrinsically sexual while other activities may be seen as sexual when viewed in the light of the circumstances or the perpetrator’s purpose. Thus, section 78(a) covers conduct which is unambiguously sexual, and so an assessment need not be made of the circumstances or any person’s purpose. Section 78(b), on the other hand, covers conduct which may be sexual, depending on the circumstances or a person’s purpose (see further R v H [2005] EWCA Crim 732 and R v Abdulahi [2022] EWCA Crim 412).

We consider that kissing someone on the lips with an open mouth is by its very nature a sexual act. There is a world of difference between that type of kiss and the ‘peck on the cheek’ type of kiss. Indeed, we find it hard to contemplate any situation in which an adult’s kiss on the lips with an open mouth is other than a sexual act. There are a number of features of the evidence which persuade us that the Appellant realised that he had ‘crossed a line’ in kissing Molly in the way he did during the birthday party. For example, the Appellant had refused to answer Ellie when she had asked him whether he had kissed Molly more than once. He also asked Ellie by text for forgiveness, a further acknowledgement that he had overstepped a boundary. Furthermore, the Appellant made several damning admissions about his conduct in his police interview.

The Respondent argues, moreover, that the evidence points to the Appellant having a sexual interest in children. Ms Hartley submitted that this was the most likely explanation for the inconsistencies in the Appellant’s evidence. We understand how the DBS has arrived at that conclusion and cannot say that they have made a mistake of fact in reaching that assessment. However, for ourselves we are not confident enough to make a finding that the Appellant does indeed have a sexual interest in children. In that context we note that the Appellant’s devices were removed for forensic analysis in June 2023 (p.107) but no results are provided in the documentation in the appeal bundle. We think it is a reasonable assumption that this means that there was nothing of any significance found on the Appellant’s mobile phones or laptops. Absent any such further incriminating evidence, we would not ourselves find that the Appellant has a sexual interest in children. However, this does not assist the Appellant in this appeal for two reasons. First, as already noted, we cannot say that the DBS have made any mistake of fact. Second, and in any event, the core finding of fact is that the kiss in question was sexual in nature and again that finding involves no material mistake of fact.