MM v Disclosure and Barring Service Case Highlights Importance of Time Passage and Risk Assessment in Barring Decisions

Introduction

The Upper Tribunal case of MM v Disclosure and Barring Service [2023] UKUT 275 (AAC) involves an appeal against decisions to include the appellant’s name on both the children’s and adults’ barred lists. The case centers around legal principles concerning the assessment of risk, the passage of time since offences, insights into past behaviors, and the scope of judicial review on barring decisions.

Key Facts

MM, previously convicted of two counts of sexual assault in 1999, sought to remove his name from the barred lists to undertake voluntary work and potentially be ordained as a priest. The Disclosure and Baring Service (DBS) had included his name on both lists based on his past conduct and potential future risks. The appeal hinged on two critical legal issues: the significance of the passage of time since an offence and the inclusion on the children’s barred list based on sexual offenses against adults.

Legal Principals

Significance of Time Passage

The tribunal opined that the mere passage of time, even if long, without repetition of offending behavior, does not automatically make inclusion on a barred list irrational, unreasonable, or disproportionate. The degree of insight the individual has gained into their past behavior is pertinent when considering the passage of time.

The case drew on DBS v AB [2021] EWCA Civ 1575 and PF v DBS [2020] UKUT 256 (AAC) to outline the scope for appeals against DBS decisions. Appellants can challenge DBS rulings only if there’s a mistake of fact or law. A finding can be deemed a mistake pending new evidence or if it falls outside the reasonable disagreement range (DBS v JHB [2023] EWCA Civ 982).

Inclusion on Children’s Barred List

The tribunal confirmed that individuals could be placed on the children’s barred list without having a sexual interest in children. DBS must rely on evidence-based assessments when considering inclusion. Here, DBS argued that an individual’s propensity to breach boundaries with adults could infer a risk to children, particularly those who are physically mature but under 18, in line with the legal definition of a child under section 59 of the Safeguarding Vulnerable Groups Act 2006.

Scope of Judicial Review

The tribunal’s jurisdiction is limited to identifying if DBS made a legal or factual mistake (section 4(2) of the 2006 Act). When assessing the appropriateness of barring decisions, courts may not engage in subjective evaluations, such as the weight or relevance given to the evidence — decisions considered as value judgments, not questions of fact (AB v DBS).

Outcomes

The Upper Tribunal refused the appeal, holding that the DBS’s decisions were neither irrational nor erroneous in law. It found no material error of fact made by DBS in its initial decision making, and the further evidence provided in the Tribunal did not alter the factual conclusions reached by DBS. The Tribunal supported DBS’s view that, despite the lack of recent offenses, the appellant’s limited insight into his behavior and understanding of power dynamics presented an ongoing risk if allowed in positions with access to vulnerable individuals.

Conclusion

The case reaffirmed the significance of demonstrable insight into past offenses and the management of future risk in decisions to include individuals on barred lists. It also illustrated judicial restraint in the review of DBS decisions, allowing appeals only on strict grounds of legal or factual errors. The decision serves as a reminder that risk assessments for safeguarding purposes will consider the breadth of an individual’s historical conduct and potential future behaviors within regulated activities involving vulnerable groups.