AB v Disclosure and Barring Service

On 10 February 2016 I adjourned the listed hearing so that the DBS could provide a full response to my questions and directed a later hearing be fixed at which the DBS should attend. The DBS helpfully responded on 24 February 2016.

AB sent his pre-sentence report and the judge’s sentencing remarks but this material had been redacted by AB who said that “some parts have been hidden as they are of a private and personal matter and do not have any bearing on the appeal raised”. Paragraph 1 of my case management order dated 10 February 2016 contained no provision for the redaction of this material by the AB. This material should have been provided in unredacted form.

The pre-sentence report redacted the offence details and the first paragraph of the section headed “Offence Analysis”. The transcript of the sentencing remarks was also edited to remove, as far as I could ascertain, detailed reference to the nature of the offences for which the AB was sentenced.

In my directions order dated 9 March 2016 I stated that, if AB considered that I should give a direction pursuant to rule 14(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 prohibiting the disclosure of the redacted material to the DBS, he must make an application to that effect explaining why that was necessary. AB was to provide me with the unredacted material so that I could decide whether the DBS should see it. My decision would be guided by rule 14(2) which allowed me to prohibit disclosure of the redacted information if I were satisfied that disclosure would be likely to cause AB or some other person serious harm and if it was proportionate to give such a direction. If a rule 14(2) application were not made, I warned AB that if he refused to provide this material in an unredacted form, I would exclude it pursuant to rule 15(2)(b)(ii) because the pre-sentence report and the sentencing remarks were not provided in accordance with my direction of 10 February 2016. AB subsequently provided the material in unredacted form by letter dated 1 April 2016 apologising for his actions which he attributed to shame and embarrassment about his offences.

I held a hearing in London on 8 June 2016 at which the DBS was represented by Alison Robson. AB was not present at the hearing because he had to attend training that day in connection with a new job. He stated in an email dated 6 June 2016 that he was content for the hearing to proceed in his absence.

I am very grateful to Ms Robson for her assistance during the hearing. I asked the DBS for additional information pertinent to the disclosure provided by the Probation Service. This was provided following the hearing and AB has had an opportunity to comment on it.

I have read all of the Upper Tribunal bundle.

I have decided to admit this application as it is in the interests of justice to do so.

This application was received almost a month later than it should have been. The DBS submitted at the hearing that I should not admit it on that account. The delay was substantial and, though AB’s explanation is not especially persuasive, I bear in mind that he was representing himself in these proceedings. The chances of this appeal succeeding if I admit this appeal are slight but the degree of prejudice to the DBS if I admit the application are equally negligible. This application raised matters of real concern about the co-operation of statutory agencies with the DBS which warranted further exploration by the Upper Tribunal. Bearing in mind the overriding objective and the matters set out in rules 2(2) to 2(4) inclusive of the Tribunal Procedure (Upper Tribunal) Rules 2008, I find that it is in the interests of justice to admit this application.

I have derived the following grounds of appeal from both the application form and the contents of AB’s correspondence with the DBS.

First, AB said that the DBS decision was procedurally unfair in that the DBS had failed to uphold the law and examine the evidence in this case. Its decision was not independent.

I reject that submission. The DBS is bound by the provisions of the Safeguarding Vulnerable Groups Act 2006 [the Act] and my perusal of all the documentation considered by it during the decision making process has not identified any departure from the applicable law. The DBS use a document entitled the Barring Decision Making Process [BDMP] when considering whether a person should be included on a Barred List. That document contains a number of headings which list the matters required by section 4 of the Act, for example, whether a person is or has been engaged in regulated activity with children or may do so in future. The use of the BDMP provides a clear and legally founded structure to the DBS’s decision making and it was used in AB’s case.

The DBS plainly had regard to the evidence in its possession on which it invited comment from AB prior to reaching a final conclusion. Its reasoning is set out in paragraphs 16 and 17 above and its conclusions cannot be described as either unreasonable, irrational or unlawful.

Second, AB argued that the DBS was wrong to conclude that he presented a risk to children when the pre-sentence report classified him as low risk. He said that his risk was taken into account by the trial judge who ruled that he could continue to work as long as he had no contact with those under the age of 16 years.

The DBS submitted that AB’s inclusion in the Children’s Barred List was not duplicative of the restrictions placed on AB by the terms of the Sexual Offences Prevention Order. Thus AB’s Sexual Offences Prevention Order made no reference to employment (paid or otherwise) with children. The DBS has a statutory duty to protect vulnerable groups from harm or risk of harm notwithstanding the existence of other parallel legal schemes. In Khakh v DBS [2013] EWCA Civ 1341 it was held that one body cannot be prevented from exercising its statutory powers and duties if another body may do so in due course [see paragraph 36]. Entirely consistent with that case law, the sentencing judge told AB that, in consequence of his conviction, he may be barred from working with children and vulnerable adults [page 163].

I accept the submissions made by the DBS. The concerns about AB held by the DBS can only be addressed by the placing his name on the Children’s Barred List in circumstances where the Sexual Offences Prevention Order is of limited duration and makes no reference to employment (paid or otherwise) with children. Inclusion on the Children’s Barred List prevents AB from engaging in a wide range of activities in different contexts where he might come into contact with children. The DBS had sufficient evidence to make the findings it did and it was wholly appropriate for it to exercise its statutory safeguarding function in AB’s case.

AB submitted that he was classified as low risk to children by the Probation Service and this judgment should have been sufficient for the DBS. On the information available to it in July 2015, the DBS was satisfied that AB represented a risk of serious harm to children and explained its decision carefully in the letter dated 2 July 2015.

The DBS has now had access to the full pre-sentence report and the judge’s sentencing remarks. At the hearing before me, it submitted that a review of this material had not altered its decision in any way. Though AB pleaded guilty at the first opportunity, there were aggravating features such as the length of time over which the images had been accessed and the age of the children in the images, some of them being only about 8 years old. Though he recognised he had a problem and had apparently attended a course run by the Lucy Faithfull Foundation, the sentencing judge was unpersuaded that he was looking at these images out of curiosity and considered him to have done so for sexual gratification.

I am satisfied that risk as assessed by the Probation Service cannot bind the DBS from coming to its own conclusions about whether AB should be placed on the Children’s Barred List. It had sufficient evidence to make the decision it did and nothing that has come to light since that decision was made casts doubt on the appropriateness of that decision either as a matter of law or fact.

Third, AB submitted that he had attended counselling provided by the Lucy Faithfull Foundation and I infer from this that he argues this factor lessens the risk he presents to children and should have been taken into account by the DBS.

It is clear that the DBS did consider AB’s attendance at the Lucy Faithfull Foundation for counselling/treatment [see its letter dated 2 July 2015]. However, despite requests to provide information about this, AB did not do so. The information provided in his application to the Upper Tribunal does not confirm his attendance or explain the precise nature of the course/treatment he attended. I note the transcript of the criminal proceedings prior to sentencing makes reference to a number of documents emanating from AB’s attendance on a Lucy Faithfull Foundation course but he has chosen not to provide this information to the DBS. Even if the DBS were to accept AB had attended such a course, what is stated in the decision letter about that matter remains correct, namely that the DBS has no information from Lucy Faithfull Foundation relating to AB’s engagement in the course or the level of risk AB was deemed to present on completion of it. In the light of all the above, I conclude that AB’s submission lacks any substance as a ground of appeal.

Fourth, AB submitted that the DBS have failed to take into account that his offending was “an internet crime” [page 5] and that he has not actually had direct contact with the child victims depicted in the images.

The downloading of indecent images of children from the internet results in harm to children by perpetuating the market and distribution networks for such images. Children are at risk of being forced to participate in the activities resulting in those images and also at risk of psychological harm when they realise either at the time or later that images of themselves are being used as a means of sexual gratification. Some of the activities may themselves be capable of causing a child serious physical and sexual harm – in this context, I note from the transcript of the criminal proceedings that some of the images involved penetrative activity with pre-pubescent children [page 153]. Parliament has recognised the serious nature of the harm caused to children by such offending and that someone convicted of such an offence presents, absent other evidence, a serious risk to children. It has thus legislated to include the offence for which AB was convicted in a list of offences which trigger automatic inclusion on the Children’s Barred List in the absence of mitigating representations.

There is thus nothing of substance in AB’s argument.

Fifth, AB argued that, as he was not included on the Adults’ Barred List, the DBS must have accepted some of his representations that he posed no risk to the vulnerable or to children. I infer that he suggests that, as a result, the decision by the DBS with respect to the Children’s Barred List is irrational and/or unreasonable.

I do not accept this submission. The DBS came to the rational conclusion that, by reason of the nature of AB’s offending, it would not be appropriate to include him on the Adults’ Barred List. There was no evidence that he possessed indecent images of vulnerable adults or that he believed harmful behaviour towards vulnerable adults was acceptable. The risk that he thus posed to vulnerable adults was not sufficiently evidenced to warrant inclusion on the Adults’ Barred List. That conclusion has little bearing on the issue of whether to include AB’s name on the Children’s Barred List – that required a separate evaluation of AB’s offending and of all the information known to the DBS. DBS’s conclusion with respect to the Children’s Barred List was both reasoned and rational.

Finally, AB argued that his inclusion on the Children’s Barred List was a disproportionate interference with his Article 8 right to family and private life under the European Convention on Human Rights.

Whilst the DBS accepted that its decision may constitute a prima facie interference with AB’s Article 8 rights by preventing him from engaging in regulated activity with those under the age of 18, it submitted that any interference was both lawful and proportionate having regard to (a) the serious nature of the offending as shown by the number of images downloaded and the seriousness of those images; (b) the duration of the offending – a period of over 9 years; (c) AB’s lack of insight into his harmful behaviour; and (d) the nature and scope of the restrictions in place with respect to AB imposed by the criminal court.

Whilst I must give due weight to the judgment of the balancing exercise conducted by the DBS, I can interfere with its decision if I objectively conclude that the outcome of the DBS assessment was necessarily disproportionate. In this case I have come to the firm conclusion that the DBS assessment was wholly proportionate. I do so for the reasons advanced by the DBS set out in the above paragraph. The nature of AB’s offending was more than just the viewing of indecent images of children out of curiosity as evidenced by the number of images in his possession (including over 400 video images of children) and by his creation of a file structure for the different images and videos he had downloaded. I agree with the sentencing judge that he looked at these images for sexual gratification rather than curiosity. I note that the pre-sentence report identified a degree of minimisation in AB’s assertion that he acquired the child abuse images in his possession inadvertently. This was entrenched behaviour and there is presently no convincing evidence to suggest that AB now has the techniques of effective self-management to prevent a repeat of his offending behaviour.

Thus, for all the reasons, set out above, I dismiss AB’s application for permission to appeal.

In this case AB did not provide information to the DBS despite its repeated requests that he do so. He stated that he had received legal advice not to do so. I am satisfied that the DBS decision was not influenced by that lack of co-operation per se.

AB’s initial redaction of his pre-sentence report and of the judge’s sentencing remarks may be attributable to a lack of understanding about the conduct of this appeal. However it also betrays a continuing lack of insight into the nature of his offending behaviour.

What has concerned me is that, on request by the DBS for relevant information, the Probation Service failed to provide anything other than a short case summary. The contents were already known to the DBS and so did not advance the DBS’s understanding of the circumstances of AB’s offending and any future risk he might pose. The Probation Service gave no explanation for its failure to provide the information sought by the DBS. Further, the CRC in the area where AB lived and which was likely to be responsible for his management in the community did not even respond to the request for information made by the DBS on 30 March 2015.

In response to the questions posed in my directions order dated 10 February 2016, the DBS gave me the following information.

Where a person has been convicted of a relevant criminal offence, the DBS write to him/her indicating an intention to bar and inviting representations as to why the individual should not be included in one or both Barred Lists. If a person does not make representations, they are automatically included in the relevant lists without further information gathering provided that there is sufficient information to proceed and the relevant statutory tests are met, these being the test for regulated activity and that for relevant conduct. If however a person submits representations, this may trigger further information gathering which may include a request to the National Offender Management Service [NOMS] for a copy of any pre-sentence report and/or OASys report. NOMS is responsible for the running of prison and probation services in England and Wales. There may be some cases where it is felt appropriate to request information from Probation Services notwithstanding the fact that a person has not made reference to such information in the body of his/her representations.

In this case the DBS did not contemplate further action to obtain information from the Probation Service when that Service failed to produce the information the DBs had asked for. This was because the facts of AB’s case and the information in the possession of the DBS enabled it to make an adequate appraisal of risk in relation to AB. The relevant statutory tests were met and it was deemed appropriate for his name to be included in the Children’s Barred List.

The DBS told me that “it is not uncommon for Probation Services to withhold disclosure of material held and there is no legislative power compelling the provision of information to the DBS by Probation Services nor is there a formal Memorandum of Understanding in place (though any Memorandum would not provide a legal basis for disclosure)” [page 102]. Some Probation Regions disclose full information to the DBS whereas others only disclose partial information. Others simply disclose nothing at all.

DBS provided me with a document from NOMS entitled “Safeguarding of Children and Vulnerable Adults: Changes to Disqualification Order Regime and Access to Information on Barred Status of Offenders” dated 31 January 2014. That document largely concerns itself with access by Probation Services to information about an offender’s barred status from DBS and has little to say about any information sharing when DBS makes a request for the same from the Probation Service. There are two paragraphs relevant to this issue which I reproduce in full as follows:

The DBS does not have an investigatory function but, as part of its decision-making process, it can seek relevant information from other organisations, agencies and bodies. This can include, for example, police reports, court documents, competent body findings, adult social care or children’s services reports, and employer disciplinary hearing records. It may, therefore, approach a probation provider for disclosure of relevant information on an offender, for example from sources such as pre-sentence reports and OASys. Any requests should be considered on a case-by-case basis and in compliance with information sharing policies and data protection principles. In doing this, it is important to bear in mind that the DBS is carrying out a statutory function with the purpose of preventing crime (harm to children and vulnerable adults). It may be necessary to extract from or redact records to ensure that only information that is relevant and proportionate to the function of the DBS and to safeguarding and prevention of crime purposes is disclosed.

When considering the appropriate level of disclosure, the probation provider also needs to bear in mind that the DBS is obliged to share with the person concerned all the information it has used to make its barring decision. If information cannot be passed to the person being considered for barring, for example in the interests of the prevention and detection of crime, the DBS cannot legally consider this information in the barring decision-making process. It is required to secure only as much relevant information as is necessary and reasonably sufficient to make a fair and defensible barring decision. The test applied by the DBS in relation to barring considerations is the civil standard of proof, “on the balance of probabilities”.”

This document concludes by stating the intention to establish information sharing agreements with the DBS to provide terms and conditions for the use and processing of the personal data involved in the information sharing process. It suggests that “guidance on the type of sharing agreements and the parties who should enter into them with the DBS will be issued shortly” [paragraph 2.16].

The DBS told me that there were difficulties with putting in place an Information Sharing Agreement/Memorandum of Understanding with NOMS. Over 80% of offenders are managed by Community Rehabilitation Companies acting on behalf of NOMS but a protocol for information sharing has yet to be established between NOMS and these Companies. Until that is implemented, NOMS cannot put an Information Sharing Agreement in place with DBS.

After the hearing on 8 June 2016, I was told by the DBS that it was currently reviewing all of its formal Memoranda of Understanding with keepers of registers – such as the Care Council and the Health Care Professions Council - and with supervisory authorities such as the National College for Teaching and Leadership and the Care Quality Commission. I was also told that it was working with NOMS to develop a formal Memorandum of Understanding to facilitate information sharing. I am grateful for that information.

The DBS is a non-departmental government body that carries out the statutory functions previously undertaken by the Criminal Records Bureau and the Independent Safeguarding Authority. These are (a) processing requests for criminal records checks as defined in Part V of the Police Act 1997; (b) deciding whether it is appropriate for a person to be placed in or removed from a Barred List; and (c) maintaining the Barred Lists. It is beyond dispute that its functions render it a vital part of the wider safeguarding landscape for both children and vulnerable adults.

I regard the failure by Probation – whether the Region or the local Community Rehabilitation Company – either to respond at all or to explain its refusal to provide relevant information to the DBS as undermining the effectiveness of safeguarding for the most vulnerable in society. Probation Services and CRCs are under a statutory obligation pursuant to section 11(2)(a) of the Children Act 2004 to discharge their functions having regard to the need to safeguard and promote the welfare of children. I note that the section 11 duty is conferred on CRCs by virtue of contractual arrangements entered into with the Secretary of State for Justice. That statutory obligation is also stated clearly in chapter 2 of Working Together to Safeguard Children 2015 [paragraph 31].

The lack of co-operation evident in this case suggests a failure by the Probation Service and by CRCs to have regard to that duty. It is also troubling to be told that what occurred in this case is relatively commonplace for the Probation Service. Why that is, I do not know.

The lack of a statutory foundation for information sharing with the DBS by the Probation Service may be part of the answer. The absence of formal information sharing protocols may also contribute to the confusion apparent in the mixed responses of different Probation Service Areas. The latter is a matter which requires addressing as a matter of some urgency given that it is over two years since NOMS stated that guidance on information sharing would be issued “shortly” [see paragraph 62 above].

I have not heard argument about the relationship between the duties imposed on the Probation Service by the Children Act 2004 and those imposed by the Data Protection Act 1998. If appropriate, that issue may warrant further exploration in a future case of this type.

Given my concerns, I considered whether I should invite representations on this issue from NOMS via the Ministry of Justice. I decided not to do so as this would merely prolong this litigation and stretch unacceptably the inquisitorial function of the Upper Tribunal. I have however decided that I should invite the Chief Executive of the DBS to send a copy of this ruling to the Chief Executive of NOMS who has the responsibility for the Probation Service as a whole (including responsibility for services delivered by CRC).

This decision will also be placed on the website of the Upper Tribunal (Administrative Appeals Chamber).

AB has two teenage daughters with whom, I understand, he continues to live. As a matter of first principle a decision by the Upper Tribunal is a public document. Were AB to be identified from that document, his family would also be easily identified. Whilst I have received no direct evidence about this, it is clear that, by reason of their age, his daughters are vulnerable to any adverse publicity which may arise in consequence of this decision and its publication.

At the hearing I invited the DBS whether it wished to object to a ruling preventing identification of AB and any person who was a child at the time of his conviction in November 2014. I indicated that my Reasons would be redacted so as to remove any identifying information. DBS indicated that it had no objection to that course. AB was subsequently asked to express a view and was content that I make the order proposed. He said that his daughters had a life to live without the shadow of his wrong doing following them around.

I am satisfied that I should make an order pursuant to rule 14(1)(b). It is clear to me that, if I were not to do so, there is a risk that disclosure of any identifying information in my Reasons would be likely to place AB’s daughters at risk of serious emotional or other harm by reason of their father’s exposure as a sex offender with an interest in indecent images of pre-pubescent children and extreme pornography.

For the reasons I have explained, I refuse permission to appeal. No arguable error of law or fact has been identified in the approach of DBS and I have not been able to detect one in my scrutiny of all the material available to me.