A v Disclosure and Barring Service

Factual and Procedural Background

This appeal arises from a decision of the Upper Tribunal ("UT") dismissing the Appellant's appeal against the Disclosure and Barring Service's ("DBS") refusal to remove him from the Children's Barred List ("CBL"). The Appellant, an adult male with a history of criminal convictions including sexual offences against adults, challenges the DBS's finding that he meets the test for regulated activity relating to children under the Safeguarding Vulnerable Groups Act 2006 ("SVGA"). The Appellant contends that he does not meet this test and that the UT erred in upholding the DBS decision as proportionate.

The Appellant has a complex offending history involving convictions for sexual assault and related offences committed between 2008 and 2011, with no victims being minors at the time. He has not reoffended since 2012 and has undergone rehabilitation, including completion of a sex offender treatment program and discharge of a Sexual Offences Prevention Order ("SOPO"). Despite this, the DBS maintained his inclusion on the CBL due to concerns about the risk he might pose to physically mature females under 18, a group considered children under SVGA.

The Appellant sought removal from both the Adult Barred List ("ABL") and the CBL following the elapse of the minimum barred period. The DBS removed him from the ABL but retained his name on the CBL, citing evidence of his potential future involvement in regulated activity with children, notably through football coaching activities. The Appellant completed a Level 1 Football Coaching qualification and received a permanent suspension from football imposed by the Football Association ("FA") on the basis of his DBS listing.

The UT reviewed the evidence, including witness statements, the Appellant's own testimony, and correspondence, and found no error in the DBS's factual findings or proportionality assessment. The UT concluded that the Appellant might in future engage in regulated activity with children and that his inclusion on the CBL was appropriate and proportionate.

Legal Issues Presented

1. Whether the DBS erred in fact or law in finding that the Appellant might in future be engaged in regulated activity relating to children under the SVGA 2006.
2. Whether the Upper Tribunal erred in upholding the DBS decision as proportionate, particularly in light of the Appellant's rehabilitation and the nature of his offending history.
3. Whether the Appellant's inclusion on the Children's Barred List was justified given that his convictions involved adult victims and that he had not applied for or intended to undertake regulated activity with children.

Arguments of the Parties

Appellant's Arguments

• The test for regulated activity relating to children had not been met as he had not applied for or intended to coach children's football teams in a regulated capacity.
• His coaching qualification had expired and he was subject to a permanent suspension from football by the FA, preventing future coaching.
• The letter from a close friend supporting his SOPO removal was irrelevant and misunderstood his intentions.
• His youngest victim was 19, and he had no offences against children; positive reports from social services and police supported his low risk.
• He argued that the DBS and UT set the "might in the future" bar too low and that his minimal involvement in football did not satisfy the frequency or regulated activity criteria.
• He highlighted relevant DBS guidance indicating that evidence must support the likelihood of future regulated activity, not mere speculation.
• The retention on the CBL was unfair and punitive given his rehabilitation and elapsed time since offences.

Respondent's (DBS) Arguments

• The UT made no error of law in upholding the DBS decision.
• The Appellant's completion of a football coaching qualification and expressed interest in coaching constituted evidence he might in future engage in regulated activity.
• The Appellant's statements and documentary evidence indicated intentions beyond merely "running the line," supporting the DBS's position.
• The nature and persistence of the Appellant's offending, including callousness and lack of empathy, justified continued inclusion on the CBL for safeguarding purposes.
• Proportionality was properly assessed by the UT, balancing the risk of harm to children against the restrictions imposed on the Appellant.
• The FA's permanent suspension was a consequence of the DBS listing, and removal from the CBL would likely lead to lifting the suspension.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court carefully reviewed the UT's detailed analysis of the evidence, including the Appellant's conduct, intentions, and rehabilitation efforts. It acknowledged the low threshold for the "might in the future" test under the SVGA but emphasised that this threshold is not so low as to encompass mere speculation. The UT's consideration of documentary evidence, including letters from acquaintances and the Appellant's own statements, led to a reasonable conclusion that the Appellant might engage in regulated activity with children in the future, particularly in relation to football coaching.

The Court found no error in the UT's rejection of the Appellant's claim that he only intended minimal involvement such as "running the line," given the conflicting evidence suggesting a broader intention to coach. The UT's adverse credibility findings regarding the Appellant's inconsistent statements and minimisation of past offending were held to be within the bounds of reasonableness.

Regarding proportionality, the Court accepted the UT's holistic assessment balancing the risk posed by the Appellant against the restrictions imposed by continued listing. It noted the UT's recognition of the Appellant's rehabilitation and the limited proportion of children potentially at risk, but concluded that the DBS's safeguarding duties justified retention on the CBL. The Court emphasised that the statutory scheme does not allow for listing limited to particular subgroups of children.

The Court also clarified that it does not re-assess facts but reviews the UT's decision for legal error or unreasonableness, neither of which were found here. The Court acknowledged new information about the Appellant's son's football involvement but held that such changes in circumstances are for the DBS to consider in future review applications.

Holding and Implications

The Court DISMISSED the appeal, affirming the UT's decision to uphold the DBS's refusal to remove the Appellant from the Children's Barred List.

The direct effect of this decision is that the Appellant remains barred from engaging in regulated activity with children, including football coaching roles, and the FA's suspension related to this listing remains in place. The Court did not establish any new precedent but reinforced the established principles governing the standard of appellate review, the application of the "might in the future" test, and the proportionality assessment in safeguarding decisions under the SVGA.