KCN v Disclosure and Barring Service

In an appeal against inclusion in the children’s and adults’ barred lists, the Upper Tribunal may consider whether the Disclosure and Barring Service made a mistake of law or fact. The Tribunal must confirm the decision unless such a mistake is established.

An acquittal in criminal proceedings does not prevent the Service from deciding, on the balance of probabilities, that the underlying conduct occurred. The criminal and civil standards reflect different degrees of certainty and concern different issues, even where they rely on the same evidence. The Service may take the criminal verdict and the absence of a complainant into account, while reaching its own protective assessment. The burden of proving a mistake rests on the appellant.

KCN appealed under Safeguarding Vulnerable Groups Act 2006 section 4 against the DBS decision to include him in both barred lists. DBS found, on the balance of probabilities, that he had engaged in inappropriate sexual conduct involving an adult service user and conduct which, if repeated against a child, would be likely to endanger that child.

The alleged conduct had also formed the subject of criminal proceedings. KCN was acquitted after trial in the Crown Court. The Upper Tribunal considered whether DBS had made a mistake of law or fact by finding the allegation proved despite the acquittal, and whether the evidence justified the findings on which the barring decision was based.

1. The appeal was dismissed and DBS’s decision was confirmed. Under Safeguarding Vulnerable Groups Act 2006 section 4(2), KCN bore the burden of showing a mistake of law or fact. He had not discharged that burden.

2. The criminal acquittal did not make DBS’s decision unlawful. The jury had been required to apply the criminal standard, whereas DBS applied the balance of probabilities. Those standards reflected different degrees of certainty. DBS was therefore not relitigating the criminal issue unlawfully, but determining a different protective question on the same evidence.

3. The complainant’s death and consequent absence from the criminal trial were relevant matters. DBS was entitled to take them into account, although they were not decisive. The Tribunal accepted that no evidence was available which had not been before the jury.

4. The Upper Tribunal could make its own assessment of the evidence, as recognised in RI v Disclosure and Barring Service [2024] 1 WLR 4033. KCN’s decision not to give evidence was not held against him, but it meant that the Tribunal did not have the benefit of his evidence or cross-examination.

5. The Tribunal found SU’s account detailed, credible and promptly reported. It was consistent with the distribution of KCN’s DNA, while his explanations were inherently implausible. The Tribunal also took account of his being alone with SU contrary to correct practice and leaving bleach with her despite her suicidal threat. It found no fault in DBS’s analysis and would have reached the same conclusion on a fresh assessment.

6. The burden principle stated by the Presidential Panel in PF v Disclosure and Barring Service [2020] UKUT 256 (AAC) was applied. The Tribunal did not need to determine the appropriateness of barring as a question of law or fact, and no proportionality argument was advanced.

• Upper Tribunal (Administrative Appeals Chamber): [2026] UKUT 56 (AAC) — appeal against DBS’s barring decision dismissed; DBS’s decision confirmed.
• Disclosure and Barring Service: decision dated 21 November 2024 — KCN included in the children’s and adults’ barred lists.