ME v Disclosure and Barring Service

In an autobar with representations case, the Disclosure and Barring Service must include a person in the children’s barred list if the prescribed criteria and the regulated-activity condition are met and it is satisfied that inclusion is appropriate. It need not additionally establish relevant conduct or risk of harm under the discretionary-barring provisions.

The Upper Tribunal may intervene only for a material error of law or fact. It may determine factual errors, including on fresh evidence, but may not substitute its own assessment of appropriateness. A decision on appropriateness remains reviewable for irrationality or disproportionality, with appropriate weight given to the DBS’s statutory safeguarding expertise.

The appellant received a police caution for possessing extreme pornographic images involving intercourse or oral sex with animals, contrary to section 63 of the Criminal Justice and Immigration Act 2008. He had previously acted as a Scout Leader and therefore had been engaged in regulated activity relating to children.

The DBS made an autobar-with-representations decision under paragraph 2(8) of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006 and included him in the Children’s Barred List. He appealed under section 4, alleging factual errors, inadequate evidence of transferable risk, irrationality and disproportionality.

The central issue was whether the DBS had made a material error of law or fact in deciding that inclusion was appropriate.

1. Appeal dismissed. The DBS decision was confirmed under section 4(5) of the Safeguarding Vulnerable Groups Act 2006. The Tribunal found no material mistake of law or fact.

2. This was an autobar-with-representations case under paragraph 2 of Schedule 3. The caution satisfied the prescribed criterion, and the appellant’s prior Scout role satisfied the regulated-activity condition. Unlike discretionary barring under paragraph 3, the DBS was not required to establish relevant conduct or risk of harm before considering whether inclusion was appropriate.

3. Section 4 does not create a full merits appeal. The Tribunal may correct material factual errors and legal errors, and may consider proportionality and rationality. It may not substitute its own view of the appropriateness of listing for that of the DBS. Appropriate weight must be given to the DBS as the statutory expert safeguarding body.

4. The DBS had a rational evidential basis for finding that the appellant lacked insight into the harm associated with the material and had adopted harm-supportive thinking. The Tribunal independently found that his explanations were unreliable, that his downloading and retention of the material was sexually motivated or sexually gratifying, and that he lacked insight into potential harm to the human participants and viewers.

5. The DBS was entitled to regard that lack of insight, the appellant’s willingness to transgress legal and sexual boundaries, and the position of trust involved in work with children as providing a sufficient nexus to safeguarding risk. The absence of evidence of a sexual interest in children did not make the assessment irrational.

6. The interference with Article 8 rights was proportionate. The DBS had balanced the appellant’s interests against the substantial public interest in safeguarding children and maintaining confidence in the statutory scheme. The effect on his income and work was limited, the Children’s Barred List was confidential, and statutory review remained available on new material.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal and confirmed the DBS decision to include the appellant in the Children’s Barred List.
• Disclosure and Barring Service: on 24 July 2019, made an autobar-with-representations decision under paragraph 2(8) of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006 to include the appellant in the list.