Key Facts
- •MM was convicted in 1999 of two counts of indecent assault against adult male patients while working as a nurse.
- •In 2022, the DBS added MM's name to the adults' and children's barred lists.
- •MM appealed this decision, seeking removal from both lists to pursue voluntary work and ordination as a priest.
- •The appeal raised issues of the significance of time elapsed since offending and the basis for inclusion on the children's list based on adult offending.
Legal Principles
The Upper Tribunal's jurisdiction is limited to reviewing mistakes of law or fact by the DBS; assessments of risk and appropriateness of inclusion on barred lists are for the DBS.
DBS v AB [2021] EWCA Civ 1575, Khakh v Independent Safeguarding Authority [2012] EWCA Civ 1341
A mistake of fact can include incorrect, incomplete findings, or omissions, relating to actions, inactions, or states of mind.
PF v DBS [2020] UKUT 256 (AAC)
The Upper Tribunal can make findings of fact but not value judgments or risk evaluations; it must identify a 'wrong' DBS finding before making its own evaluation.
DBS v JHB [2023] EWCA Civ 982
For children's barred list inclusion, the DBS must have a rational basis for assessing the risk of harm to a child (defined as under 18), considering all ages.
Safeguarding Vulnerable Groups Act 2006 (SVGA), Schedule 3, Part 1, paragraph 3; Section 59 of the 2006 Act
Past conduct demonstrating a willingness to cross boundaries can allow inference of willingness to transgress other boundaries.
Case Law
Outcomes
Appeal refused; DBS decision confirmed.
The DBS decision was not based on a mistake of fact or law. While the Tribunal considered additional evidence (oral testimony), it did not overturn the DBS's findings.