A v Disclosure and Barring Service

On an appeal from the Upper Tribunal, the Court of Appeal reviews points of law and does not reweigh factual findings. The statutory might in future condition for regulated activity requires an evidence-based reason to think that the person genuinely might undertake that activity. A current application or present engagement is unnecessary, but speculation alone is insufficient. Relevant intentions, expressions of interest and qualifications may be considered as part of the evidence as a whole. Proportionality requires a holistic balance between the risk of harm and the restriction imposed, including rehabilitation, elapsed time and Article 8 interests. A barred-list decision is a safeguarding measure, not additional punishment, and the statutory scheme does not permit a bar limited to a particular subgroup of children.

A was included in the Children’s Barred List after the Disclosure and Barring Service refused to remove his name. His relevant convictions and other conduct concerned adult women, but the DBS concluded that he might in future engage in regulated activity involving children and that retention was proportionate. The Upper Tribunal, after hearing evidence and considering the documents, dismissed his appeal in decision UA-2022-000899-V, promulgated on 2 September 2023. A appealed to the Court of Appeal, arguing that the regulated-activity test had not been met, that the factual findings were mistaken, and that continued listing was disproportionate. The central issue was whether the Upper Tribunal had made an error of law.

Appeal dismissed. The appeal from the Upper Tribunal was confined by section 13 of the Tribunals, Courts and Enforcement Act 2007 to a point of law. It was a review appeal under rule 52.21 of the Civil Procedure Rules 1998. A pure finding of fact could be disturbed only if no reasonable tribunal could have reached it, applying DBS v RI [2024] EWCA Civ 95 and Volpi v Volpi [2022] EWCA Civ 464.

The Upper Tribunal’s function on an appeal from the DBS was different. It could hear oral evidence and assess credibility when deciding whether the DBS had made a mistake of fact. It could not merely review the evidence before the DBS and substitute its own factual conclusion. The Upper Tribunal had properly considered A’s evidence, his contemporaneous statements, the documentary material and the inconsistencies in his account. It was entitled to reject his evidence about his future intentions and there was no demonstrable error in its factual findings.

The might in future condition under the Safeguarding Vulnerable Groups Act 2006 imposed a low but evidence-based threshold. The Upper Tribunal had not speculated. A specific application for coaching work was unnecessary, and his qualification was not treated as decisive. The evidence as a whole, including his stated intentions and relevant training, supported the conclusion that he might undertake regulated activity.

Proportionality required a balance between the risk of serious harm if the relevant conduct were repeated against children and the restriction on A’s activities. The Upper Tribunal properly considered the age and nature of the past conduct, the passage of time, rehabilitation, continued minimisation and Article 8 interests. The statutory scheme could not impose a bar limited to a particular age or category of children. Listing was a safeguarding procedure, not additional punishment; public confidence could not replace an holistic assessment of risk and rehabilitation.

Later information that A’s son no longer played football might support a review application under Schedule 3, paragraph 18A of the Safeguarding Vulnerable Groups Act 2006. It was for the DBS, not the Court of Appeal, to assess that change of circumstances.

• Court of Appeal (Civil Division): dismissed A’s appeal against the Upper Tribunal’s decision.
• Upper Tribunal (Administrative Appeals Chamber) (UA-2022-000899-V): dismissed A’s appeal against the DBS decision on 2 September 2023.
• Disclosure and Barring Service: refused to remove A from the Children’s Barred List.