LW v DBS

An appeal against a barring decision under section 4 of the Safeguarding Vulnerable Groups Act 2006 is confined to whether DBS made a mistake of law or fact on which its decision was based. The Upper Tribunal may consider fresh evidence, including oral evidence given at the appeal hearing. It may make its own evaluation of that evidence when deciding whether DBS was mistaken. The Tribunal must not substitute its assessment of appropriateness for DBS’s decision, since appropriateness is excluded from the statutory appeal grounds. An acquittal establishes only that the criminal jury was not sure of guilt. DBS may make findings on the civil standard of proof, provided it evaluates the evidence and resolves conflicts within the broad range of reasonable decision-making.

LW appealed against the DBS decision of 26 May 2022 to include his name in the Adults’ Barred List. The DBS relied on his conviction for possession of an extreme pornographic image and findings that, when he was 19, he bought alcohol and tobacco for a 14-year-old child, possessed nude images of her, and engaged in oral sex and sexual intercourse with her.

LW had been acquitted of criminal charges arising from the alleged sexual activity. He argued that the DBS’s findings were mistaken and that his conviction and admitted conduct did not justify barring. Permission to appeal was granted on 1 February 2023. The central issue was whether the DBS had made a material mistake of law or fact within section 4 of the Safeguarding Vulnerable Groups Act 2006.

1. Appeal dismissed. The DBS had not made any material mistake of law or in a finding of fact on which the Barring Decision was based. The Barring Decision was confirmed.
2. An acquittal does not establish factual innocence. It establishes only that the criminal jury was not sure that all elements of the offences were present. DBS was entitled to decide the facts on the balance of probabilities.
3. DBS had to evaluate all relevant evidence, decide what weight to give it, and resolve conflicts. Its findings fell comfortably within the range of reasonable options open to it, even though another decision-maker might have reached a different assessment.
4. The Upper Tribunal was not limited to the evidence before DBS. It could consider the Crown Court summing-up and LW’s oral evidence, including his evidence under cross-examination. The Tribunal was therefore entitled to assess that evidence and decide whether the DBS findings were mistaken.
5. The authorities confirm that a mistake of fact may concern a primary fact, an inference, an omission, or a person’s state of mind. The Court of Appeal’s restrictive approach in DBS v JHB was confined by DBS v RI to cases where the barred person gave no relevant oral evidence. Where oral evidence is given before the Upper Tribunal, the Tribunal may decide whether the person committed the relevant act.
6. The Tribunal rejected LW’s account that his relationship with Child A was non-sexual. The secrecy of their meetings, requests that Child A come alone, remote locations, provision of alcohol and tobacco, and nude images sent to LW’s Snapchat account supported the DBS findings. The new evidence did not show that DBS had been mistaken.

• Crown Court: LW was acquitted in March 2018 of charges relating to sexual activity with Child A.
• DBS: On 26 May 2022, DBS included LW in the Adults’ Barred List.
• Upper Tribunal (Administrative Appeals Chamber): Permission to appeal was granted on 1 February 2023. The appeal was dismissed and the Barring Decision confirmed.