[2025] UKUT 321 (AAC)

The DBS relied on written evidence from witnesses and notes of the incident or reports of meetings contained in the bundle of evidence it filed and served which contained 184 pages. The bundle included all the material relied upon by the DBS in making the Decision and in defending the appeal as well as all of the material provided by the Appellant.

The evidence relied on by the DBS included: that from the Appellant’s former colleagues BB and MJL; internal disciplinary, fact-finding and dismissal meetings; investigation reports and appeal proceedings conducted by managers on behalf of PC; emails and Whatsapp messages of what witnesses and MOO had said; correspondence; and a witness statement from a police officer.

As we note below, none of the eye witnesses relied on by the DBS made formal witness statements containing statements of truth, nor gave oral evidence nor were cross examined. Their evidence was made up of written reports from internal investigations and meeting, notes or correspondence and therefore contained untested hearsay. This is a matter to take into account when considering its reliability and the weight it is to be given.

The Appellant relied upon: her witness statement; contemporaneous accounts given in correspondence and disciplinary proceedings; the witness statement of witness LR; representations sent to the DBS; and oral evidence given to the Tribunal by the Appellant and LR. In contrast to the DBS witnesses, the Appellant gave oral evidence and was cross examined, as was witness LR. When considering its weight, we take into account that the Appellant’s evidence was tested.

We have examined all the evidence in the case with care, both that which was before the DBS and that provided by the Appellant as part of her appeal (most of which was not available to the DBS at the time it made its Decision). We have not found it necessary to refer to every document. It goes without saying that all subsequent written and oral evidence of the Appellant was not available to the DBS when making its Decision.

We make findings of fact on the balance of probabilities as set out below. In light of these, we consider whether the DBS made mistakes of fact in accordance with the approach set out in PF v DBS and DBS v RI. The burden of proof remained on the DBS when establishing the facts and making its findings of relevant conduct in its barring decision. Thereafter on the appeal to the UT, the burden was on the Appellant to establish a mistake of fact (see PF at [51]):

Furthermore, the UT stated in PF:

However, it is not within our jurisdiction, when considering whether there have been mistakes of fact, to make our own evaluative judgments as to risk (for example, whether there would be a risk of repetition or future harm). The proper evaluative judgements which should be made based upon the primary facts found are a matter for the DBS as the expert risk assessor. We would not interfere with risk assessments made by the DBS unless such judgments are based upon mistakes of primary fact or are irrational (contain a mistake of law).

We make findings of fact – both of primary facts and secondary facts (inferences from primary fact). We make the following findings on the balance of probabilities.