ME v Disclosure and Barring Service (Safeguarding): [2022] UKUT 63 (AAC)
Upper Tribunal Administrative Appeals Chamber decision by Judge Jones on 20 December 2021.
Read the full decision in .
Judicial Summary
“The Appellant appealed the decision of 24 July 2019 of the Respondent (the Disclosure and Barring Service or ‘DBS’) to include his name in the Children’s Barred List (“CBL”) pursuant to paragraph 2(8) of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006 (“the Act”) - ‘autobar with representations’.
The decision letter relied on the fact that a police caution had been issued to the Appellant on 18 December 2018 (“the Caution”). The Decision letter explained the nature of the Caution: ‘You admitted to the Police that you were interested in bestiality and were subsequently found to be in possession of 41 ‘live movie clips’ and 72 still images relating to this.’
The Appeal was dismissed by the Upper Tribunal on each ground.
In particular the Tribunal was satisfied that the DBS was entitled to conclude that the material the Appellant sought, had been cautioned for possessing and the evidence he gave about this, demonstrated his ‘harm supportive thinking’ that the abuse of adults and animals involved in such material is acceptable. The Appellant recently and willingly broke the law for his own pleasure by viewing and possessing such material.
The Tribunal was satisfied that it was rational for the DBS to decide that the Appellant demonstrated no insight into the harm caused to humans (to him as viewer and the human participants in the material) by his viewing and storing of criminal pornography and that viewing the material perpetuated the harm. The DBS was entitled to find that the Appellant manifested ‘harm supportive thinking’ and was prepared to transgress legal boundaries in its risk assessment that this mindset may be transferrable such that he may pose a risk to any children in his care. It is not for the Tribunal to conduct its own risk assessment or substitute its own view on appropriateness but the ‘transferability of mindset’ was a rational reason for the DBS to rely on.”