MFAG v The Disclosure and Barring Service

The relevant legislation is in the Safeguarding Vulnerable Groups Act 2006 (‘the Act’). Inclusion in the children’s barred list is governed by section 2 and Part 1 of Schedule 3 to the Act. Inclusion in the adults’ barred list is governed by section 2 and Part 2 of Schedule 3. There are three separate ways in which a person may be included in the barred lists under Schedule 3 to the Act. DBS took two parallel routes to barring in this case.

The first route which was followed here is referred to as ‘autobar with representations’, and relates to the conviction. A person can be included in the lists if they meet prescribed criteria. The person who is proposed to be barred has a right to make representations to the DBS under paragraphs 2 and 8 of Schedule 3 to the Act. The prescribed criteria include a conviction for specified criminal offences, among them possessing an indecent image of a child. It is agreed that this appellant was convicted of two such offences.

Where the DBS is satisfied that the prescribed criteria apply, the effect of paragraphs 2(6), (2)(8), 8(6) or 8(8) of Schedule 3 to the Act is that the DBS must include the person in the children’s or adults’ barred list if it:

The DBS barred the appellant under this route, having received his representations and determined that he had a conviction for a specified offence, was engaged in regulated activity as a pharmacist, and that it was appropriate to include him in both lists. Under this route the relevant conviction is a finding of fact, and there is no requirement to establish relevant conduct or risk of harm.

The third route, referred to as discretionary barring, was also followed here. Under paragraphs 3(3) and 9(3) of Schedule 3 the DBS must include the person in the children’s and adults’ barred list if:

‘Relevant conduct’ is defined under paragraphs 4 and 10 of Schedule 3 to the Act which are set out below, paragraph 4 relating to the children’s list and paragraph 10 relating to the adults’ list:

Further definitions follow in those paragraphs. It should be noted that relevant conduct includes possession of sexual material relating to children, in relation to both the children’s and adults’ lists.

Section 4(2) of the Safeguarding Vulnerable Groups Act 2006 set out the limited bases for an appeal to the Upper Tribunal against a barring decision:

Thus a person included in either barred list may appeal to the Upper Tribunal on the grounds that the DBS has made a mistake of law or a mistake of fact on which the decision was based. Any mistake of fact or law, must be material to the ultimate decision i.e. it may have changed the outcome of the decision.

The appropriateness of a person’s inclusion on either barred list is not within the Upper Tribunal’s jurisdiction on an appeal. The Upper Tribunal does, however, have jurisdiction to determine whether DBS’s decision to bar is irrational or disproportionate, because that would be an error of law.

This case concerns proportionality, and we have heard submissions about what approach we should take to determining that issue. We set out the central case law, and then the approach which we take. Barring is plainly a matter which can affect people’s private lives, and so it may engage Article 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). Article 8 provides a qualified right. A public authority must not interfere with a citizen’s private life unless that interference is proportionate, which means it is necessary to achieve one or more of identified objectives, which include protecting public safety, and protecting the rights and freedoms of others. The DBS must therefore act in a proportionate way when barring.

There are a number of different limbs to proportionality, identified by the courts in cases such as R (Quila) v Secretary of State for the Home Department [2011] 3 WLR and Huang v Secretary of State for the Home Department [2007] 2 AC 167. Proportionality in the context of this case, and many DBS appeals, focuses on one of those limbs: consideration of whether the DBS’s decision struck a fair balance between the rights of the individual and the interests of the community.

The approach which the Upper Tribunal should take to assessing proportionality was considered by the Court of Appeal in Independent Safeguarding Authority v SB [2012] EWCA Civ 977 (‘ISA v SB’), the Independent Safeguarding Authority being the forerunner of the DBS. The Court of Appeal described the ‘requisite approach’ by citing with approval extracts from previous authorities, saying as follows:

The Court in ISA v SB disapproved of the approach taken by the Upper Tribunal in the case before it, saying ‘it seems to me that the UT did not accord any particular weight to the decision of the ISA but proceeded to a de novo consideration of its own’ and ‘I find it difficult to escape the conclusion that the UT was simply carrying out its own assessment of the material before it’. The Court concluded ‘I consider that the complaint that the UT did not accord “appropriate weight” to the decision of the ISA is justified’ (Maurice Kay LJ at [18-23]).

The central principles to be derived from ISA v SB appear to us to be that on a proportionality challenge the Upper Tribunal should objectively judge whether DBS’s decision to bar was proportionate, undertaking the ordinary judicial task of weighing up the competing considerations on each side, but giving appropriate weight to DBS’s views. The court did not say that the Upper Tribunal should avoid its own consideration or assessment of the material, and plainly without any such consideration it would be impossible for the Upper Tribunal to make an objective judgment. However, the Upper Tribunal’s consideration should not be ‘de novo’, as such consideration should give appropriate weight to ISA’s decision, rather than starting from scratch.

ISA v SB was followed in DBS v Harvey [2013] EWCA Civ 180 . That case did not create any new legal principles in our view; the Court of Appeal found that the Upper Tribunal when considering proportionality had not given appropriate weight to the DBS’s conclusions (at [45]), and had made errors when drawing conclusions from the evidence including misconceived reliance on certain parts of the evidence (at [40]).

Some of the authorities cited with approval in ISA v SB related to courts which were operating within different jurisdictions to the jurisdiction of the Upper Tribunal in a DBS appeal. Nevertheless, the Court of Appeal in ISA v SB plainly found that the principles espoused in those cases were of application to the Upper Tribunal safeguarding jurisdiction. Those principles of general application have recently been restated by the Court of Appeal in Dalston Projects and others v Secretary of State for Transport [2024] EWCA Civ 172 (‘Dalston Projects’). The Court of Appeal described the role of the first-instance court when assessing proportionality in this way (the Upper Tribunal is a first-instance tribunal in the safeguarding context):

The Court of Appeal in ISA v SB also confirmed that consideration of public confidence in the statutory scheme and the barring list is implicit in the consideration of fair balance between the rights of the individual and the interests of the community (Maurice Kay LJ at [25]).

The DBS submitted that the following approach should be taken when considering a proportionality challenge:

The appellant invited us to take an objective approach to determining proportionality.

We do not take the approach suggested by the DBS. Based on the approach in ISA v SB our approach is to objectively judge whether the DBS’s decision to bar was proportionate, undertaking the ordinary judicial task of weighing up the competing considerations on each side, but giving appropriate weight to the DBS’s views. We consider that the appropriate weight in this case is significant weight, because the central feature in this appeal is about assessment of level of risk and prediction of future risk, which particularly engages the specialist expertise of the DBS. We are not starting afresh, or making a decision de novo; we do not ignore the DBS’s decision and start again as if DBS had never determined the matter.

The approach which the DBS invited us to take is a more complex, three-stepped approach, and our reasons for not adopting that approach follow in the same three-stepped order.

In short, although the DBS’s proposed framework helpfully identifies matters which are likely to be relevant to the Upper Tribunal’s approach it is overly complicated and rigid and we find it more helpful to focus on the principles set out with clarity in ISA v SB.

DBS also made this further submission about the law (at p500):

We do not accept that interpretation. That is not what DBS v Harvey says, either at the paragraphs referred to or at all. The paragraphs quoted do not refer to interference. The ratio of the case is discussed at paragraph 25 above.

The appellant has made various submissions as set out in the index to the consolidated bundle. The most comprehensive are the ‘perfected grounds of appeal’ of 4 March 2024 (p462) and a skeleton argument dated 26 September 2024 drafted by Mr Bajwa KC. The DBS supplied a written submission dated 28 June 2024, drafted by counsel Mr Bayne, in response to the appeal (p489).

The case was heard on 3 October 2024 by remote video link by agreement. No evidence was called by either party. Both counsel made helpful oral submissions amplifying their written submissions. Mr Bajwa KC, having considered the DBS’s submissions, made a number of eminently sensible concessions about some of the grounds of appeal, which are referred to in our analysis below.

Shortly before the hearing Mr Bayne provided a further bundle of authorities relating to proportionality, bringing to our attention that the Upper Tribunal has recently described the proportionality test in a number of different ways. We are aware that a three-judge panel is to be convened to determine a case which involves proportionality (three-judge panels are convened where a case raises a question of law or special difficulty or an important point of principle or practice). Neither party invited me to adjourn the hearing to await the outcome of that case. Both were content that we should proceed to hear the case, and that if in our deliberations we were of the view that the outcome of the three-judge panel case may materially affect our ruling we would contemplate adjourning to await that case. In the event, and considering the overriding objective, we do not await that ruling. The legal approach appears clear from authorities as set out above, but our decision would not change if we had approached the decision de novo, or in the way urged upon us by DBS, or with an emphasis on irrationality. Further delay would not be in anybody’s interests.

Mr Bajwa KC understandably focussed his submissions on the proportionality argument. Ground 13 of the applicant’s Grounds of Appeal asserted that ‘the DBS has made a mistake in its finding of fact and/or a mistake of law by giving an inadequate consideration of the proportionality of the decision’. Although the ground was framed in terms of a challenge to process, in reality it is apparent from submissions that the appellant’s central challenge was that the DBS had overstated risk, and the decision was not proportionate. Complaints such as failure to have regard to relevant considerations or not giving appropriate weight to points was in essence an argument that the DBS’s decision to bar was disproportionate and thus in error of law. The DBS have not argued that the appellant’s arguments should be restricted to procedural issues, and we do not do so . Mr Bajwa KC invited us to approach grounds 6,7,9,10,11 and 12 as submissions which should be factored into the consideration of the proportionality ground. Having considered the DBS’s submissions, Mr Bajwa no longer asserted that those grounds could amount to stand-alone material errors of law and we concur.

The appellant’s submissions point to various facts relating to his behaviour and rehabilitation, and invite the conclusion (at [10]) that ‘objectively the risk that the appellant currently presents to a child and/or a vulnerable adult must be considered to be low, arguably very low’. The appellant drew our attention (at [11]) to matters including those italicised below. We do not find any point to be compelling individually or collectively for the reasons given after each point.

The appellant set out careful submissions pointing to the ways in which his rights were being infringed, and invited us to conclude that the barring was disproportionate.

The DBS submitted that it had carried out an appropriateness and proportionality assessment in which it reminded itself of the various counter-indicators highlighted by MFAG alongside its risk concerns; and sought to balance the risks to the community against the personal impact of a barring decision on MFAG, as it was required to do.

We have been assisted by examining how the DBS reached its conclusions. The DBS’s conclusions are to be found in its final decision letter (p409) and Structured Judgment Process document (p427) . DBS generally uses a standardised framework called the ‘Structured Judgement for Evaluation of Risk of Harm’ to assess risk, and that framework was used in this case. The structure requires a caseworker to consider pre-dispositional factors, cognitive factors, emotional factors and behavioural factors.

The DBS properly noted many points in the appellant’s favour, as do we, including the following:

In relation to the level of risk, the DBS’s observations included the following:

We agree with those central observations, and agree that they demonstrate the presence of risk factors, as identified by the DBS.

In this case DBS identified definite concerns in three areas: ‘Sexual preference for children’ risk factor ; ‘Callousness/lack of empathy’ risk factor and Poor problem solving/coping skills’ risk factor. A ‘definite concern’ is described in DBS’s decision-making process guide in this way: ‘The case material indicates that relevant risk factor(s) are present and that there is a causal link to the relevant conduct (i.e. without the presence of the risk factor(s), the relevant conduct would probably not have occurred).’

DBS also identified some concerns under the ‘Excessive/obsessive interest in sex’ risk factor and ‘Exploitative attitudes’ risk factor. ‘Some concerns’ means that ‘The case material indicates some indications that relevant risk factor(s) are present. However, there is no clear causal link to the relevant conduct or there is a significant amount of material that would reduce these concerns.’

In relation to the risk to children, the DBS concluded that the appellant ‘may not report appropriately any child who discloses that they have been subjected to sexual and/or physical harm’, and may derive sexual gratification from disclosure from a child about sexual abuse or exploitation, and that his behaviour may escalate into contact offences against children. In relation to the risk to vulnerable adults, the DBS noted that some vulnerable adults can present with the physical and mental attributes of children. The DBS concluded that as the appellant had demonstrated a tolerance for the suffering of children, who were vulnerable, he may have the same tolerance to the suffering of a vulnerable adult. If a vulnerable adult disclosed that they were the victim of sexual or physical abuse, the DBS found that he may ‘fail to take the appropriate measures to safeguard by reporting their disclosure’ and may derive sexual gratification from disclosure.

Having considered the DBS’s approach, which we found to be thorough, rational and fair, taking account of all central relevant points raised by the appellant and all central material, we remain of the view that the DBS’s conclusions as to risk should be given significant weight. We agree with the DBS’s conclusions and the rationale for them given by the DBS in its decision-making documents. We agree with the DBS’s assessment of risk levels as set out above, having considered the points in the appellant’s favour and observations from both parties about risk. We are satisfied that the appellant does pose a material risk to the safety of children and vulnerable adults for the reasons that the DBS sets out.

The DBS do not say that the appellant is sexually attracted to vulnerable adults and we do not make such a finding. There is no evidence in this case of behaviour which harms vulnerable adults, and the DBS do not assert that the appellant has carried out any offences involving vulnerable adults. The DBS say that aspects of the appellant’s behaviour demonstrate character traits which mean that he also poses a risk to vulnerable adults. That concept, of behaviour against children evidencing a risk against vulnerable adults, or vice versa, has been referred to by the DBS and Upper Tribunal in other cases as ‘transferability’. We are satisfied that the appellant’s predispositions are as set out in paragraphs 46 and 47, and that they amount to significant risk factors. Some of those predispositions, such as sexual interest in children, relate only to risk to children. Others such as lack of empathy, exploitative attitudes and poor coping skills create risks to both children and vulnerable adults; they are transferable risk factors. The DBS’s conclusion, with which we agree, is that those character traits mean that the appellant may be willing to transgress boundaries and fail to safeguard vulnerable adults.

We note that the type of material viewed was extreme, and that the appellant must have been desensitised to the harm being caused to children and capable of prioritising his own sexual gratification. We note in particular that although these offences were a considerable time ago, that the appellant has behaved in this way during two separate periods in his life, separated by a five year gap, and we agree with the DBS’s view that there can be no confidence that the passage of time means he will not offend again. We note, as the DBS did, that the appellant has undertaken various programmes but there is limited evidence as to whether and how those programmes have lowered his risk level.

The DBS explicitly noted that inclusion in the lists would result in significant interference with the appellant’s Article 8 rights, because it would prevent the appellant from engaging in his chosen profession, which he had spent years training for at personal financial cost, and have a significant effect on his ability to find employment and support himself financially. The DBS weighed that interference against the risks it had identified and concluded that inclusion in both lists was appropriate and proportionate. We agree.

We accept submissions that the effect of barring on the appellant’s life is severe for all the reasons set out. However, given the type of risk posed and the nature of pharmacists’ duties, we are satisfied, as the DBS was, that barring strikes a fair balance between the rights of the appellant and the interests of the community and was no more than was required to accomplish the aim of safeguarding children and vulnerable adults.

We make two further linked observations which have played some small part in our decision-making. First, we consider that public confidence would be undermined by permitting the appellant to work with children or vulnerable adults; the serious nature of the offending, public concern about this type of offending, and the position of trust that pharmacists hold means a decision not to include on both lists could undermine public confidence in the ability of the DBS to safeguard vulnerable groups. Second, we note that the particular type of offence which the appellant was convicted of is on the autobar with representations list for both children and vulnerable adults. Similarly, evidence of possession of indecent images of children (in the absence of a conviction) is listed as a type of ‘relevant conduct’ in relation to both children and vulnerable adults, which can lead to discretionary barring. It seems that possessing indecent images of children is thus recognised by Parliament as behaviour which involves such gross transgression of normal moral boundaries that it indicates a prima facie risk in relation to not just children, but vulnerable adults as well.

For completeness we find that it was not irrational for DBS to include the appellant on either list. Mr Bajwa KC did not press an argument of irrationality, and there is no basis on which it could be said that DBS’s approach was irrational. We do not find that DBS failed to address its mind properly to the question of proportionality; the route followed by DBS was structured, evidence-based and logical. Finally, if we had applied the route to addressing proportionality as set out by the DBS we would have arrived at the same answer.

We turn to the remaining grounds of appeal.

The relevant finding by DBS which was challenged was this: ‘on an unspecified occasion/s between 16 February 2016 and 21 July 2016 you used specific search terms to search for and view material depicting the sexual abuse and/or exploitation of pre-teen children’.

It was properly conceded by Mr Bajwa KC that this could not amount to a material error, even if it was an error. However, as the length of time of offending was referred to in the DBS’s assessment, and may play some small part in the proportionality assessment, we consider it proper to determine the point.

The appellant’s submissions are that DBS’s finding was a mistake of fact because the appellant’s conduct was limited to a one month period as set out in the indictment. The DBS’s submissions are that this finding is a finding about conduct which is separate from the finding relating to the conviction, and there is no mistake of fact. The DBS said in written submissions that it is based on the forensic report ‘which identifies the use of relevant search terms between 16.02.16 and 21.07.16. Those dates are consistent with, and corroborated by, MFAG’s own account during his pre-sentence report interview that he had been viewing similar images for around 5 months; and they were not challenged by MFAG in his submissions to the DBS.’

We do not accept that summary by the DBS’s summary of the evidence. The forensic report does not show the use of search terms over a 5 month period as contended. It shows ‘user access to files’ with file names relating to indecent images of children between 17 February 2016 and 20 July 2016. The term ‘user access to files’ is not explained in the report. The pre sentence report does not include an admission by MFAG that he had been viewing images for 5 months. The report says ‘the current online activity occurred over a period of 5 months’ (p310); it does not say that MFAG said that the current activity had occurred over a period of 5 months, and we consider that this part of the report is simply summarising the author’s understanding about the online activity. The author of the report was under the impression that the offence dates were between 16 February 2016 and 21 July 2016 (p309), based on the dates in the referral form which is filled in by the court (p289).

However, we are satisfied that, at the very least, the forensic report supports an inference of some activity by the appellant relating to indecent images of children from the 17 February 2016 to 21 July 2016, i.e. a five month period, although it cannot be said what type of activity that was, or what seriousness of images it related to. The DBS was loose in its language, but there was no mistake of fact, and there was certainly no material error as has been conceded.

Ground 2 relates to the following observations by DBS in its decision letter (p410,413) :

The appellant submits that the DBS “made a mistake in the above finding of fact on the basis that an inference cannot reasonably be drawn of there being either a sexual images risk and/or sexual contact risk to a vulnerable adult” (paragraphs 65 et seq, p454). The appellant submits that there is no evidence of MFAG having an interest in sexual images of a vulnerable adult and/or being likely to engage in offending behaviour involving actual sexual contact with a vulnerable adult.

The DBS submits “Ground 2 is a challenge to the DBS’s statement that MFAG’s conduct, if repeated, may in the future endanger a vulnerable adult. Had the DBS found, for example, that MFAG had an interest in sexual images of vulnerable adults, then that finding would have been susceptible to being overturned on appeal as being unsupported by evidence; but that is not the finding. The DBS has merely accurately identified and recorded a risk.”

DBS pursued the discretionary barring route in addition to the ‘autobar with representations’ route which related to the convictions. The first paragraph complained of relates to the discretionary barring route. The DBS was not saying in the passage above that the appellant had engaged in inappropriate behaviour towards vulnerable adults which might be repeated, although it may read in that way at first sight. Rather, DBS was setting out the basis upon which it followed the ‘discretionary barring’ route under paragraph 10, Schedule 3 of the Act. The discretionary barring route requires the DBS to identify ‘relevant conduct’. There is a list in paragraph 10 of types of ‘relevant conduct’. The list of types of relevant conduct includes conduct involving sexual material relating to children which, perhaps surprisingly, DBS chose not to rely on. The type of relevant conduct which DBS did rely on was ‘conduct which, if repeated against or in relation to a vulnerable adult, would endanger that adult or would be likely to endanger him’. It is not clear to us what the DBS meant. Plainly conduct relating to indecent images of children is not conduct which can be ‘repeated’ against vulnerable adults. Did DBS mean that the appellant might view pornography which involved adult participants who were vulnerable and not consenting?

Regardless of the lack of clarity, there is no material error of law in the observations by DBS. Given that we have found that the decision to bar was proportionate, the DBS have an unassailable ‘autobar with representations’ route to the appellant being placed on both lists. It follows that any errors in relation to the discretionary barring route cannot be material.

It is for all of the above reasons that we dismiss the appeal and confirm the decision of the DBS.