AA v The Disclosure and Barring Service: [2024] UKUT 332 (AAC)
Upper Tribunal Administrative Appeals Chamber decision by Judge Church on 18 October 2024
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Judicial Summary
This case concerns allegations that the Appellant, at the relevant time an Arabic teacher at a madrassa, sexually assaulted three girls aged 8-9 years old who were pupils at the madrassa. Despite the Appellant being acquitted of all charges in a Crown Court trial, the DBS found the allegations proved on the balance of probabilities, and decided on the basis of those findings to retain his name on the Children’s Barred List. inconsistent with the findings of the regulator made following a superior process where the findings of the regulator had not been successfully appealed. The Appellant accepted that he has been, and might in the future be, engaged in ‘regulated activity’ and he also accepted that the conduct which the DBS say he engaged in amounts to ‘relevant conduct’ in relation to children for the purposes of the Safeguarding Vulnerable Groups Act (SVGA). However, he said he did no such thing. He said he didn’t touch the complainant children at all, let alone touch them sexually, and he maintained that they made up the allegations and told lies about him. In the language of the SVGA, he said that the Barring Decision was based on material mistakes of fact. The Appellant also argued that the DBS made mistakes of law in reaching its decision to include his name on the Children’s Barred List. The Upper Tribunal heard oral evidence that was clearly not available to the decision maker at DBS. We took it, and the transcript of the Crown Court trial, into account when considering whether the DBS made a material mistake of fact on which the Barring Decision was based. What the Appellant said in his live evidence was broadly consistent with his previous written representations, and with his case at his criminal trial. However, there was nothing in what he said that persuaded us that the DBS had necessarily erred in preferring the children’s evidence over AA’s evidence. We were left in the same place that DBS was when it made the Barring Decision: there were inconsistencies in the children’s evidence, but there were also inconsistencies in AA’s own evidence. The DBS was entitled to decide that, notwithstanding the inconsistencies and imperfections in the children’s evidence, it should be preferred to AA’s evidence. However, we did have significant concerns about the DBS’s decision making in this case. It is notable that the complainants who alleged the sexual abuse at the centre of the barring decision also made allegations of widespread and significant physical chastisement of children by AA, and of AA committing sexual assaults on nearly everybody in the class, and the DBS does not appear to have made clear findings in relation to these allegations or to have explained adequately how its assessment of that evidence was factored into the findings of fact that it made. We decided that this amounted to a material mistake of law and warranted the case being remitted to the DBS for redetermination. We did not direct AA’s name to be removed from the Children’s Barred List pending determination by the DBS of the remitted case.