XYZ v DBS

This appeal is about the Appellant who was, until recently, a PE teacher at a secondary school. In August 2019 it was alleged that the Appellant had formed an inappropriate relationship with a 16-year-old girl whom he had taught, including giving her lifts in his car, communicating with her via Snapchat, urging her to use an app to conceal communications between them, and kissing her.

The pupil’s father made a complaint to the pupil’s school. He said he had become suspicious of his daughter’s behaviour and decided to follow her on 13 August 2019. He said he witnessed her get into a white Audi with the Appellant, and he followed the car until he lost it near Hartlepool. The pupil initially denied any inappropriate relationship with the Appellant to her father and to the police officers who interviewed her. Her father says she then “broke down” and admitted to him that she had been in a relationship with the Appellant, that they had communicated through Snapchat, that since March 2019 the Appellant would regularly give her lifts in his car, and that they had kissed on 4 occasions. She said that she and the Appellant had discussed what to do if they were “found out” and had agreed to deny anything happened. The pupil was then interviewed by the police a second time and shared this version of events, and she shared a consistent version of events with children’s services.

The Appellant was interviewed by the police on 14 August 2019 and gave a “no comment” interview on advice from his solicitor. His mobile devices were taken for examination. The Appellant met with the head teacher of the school which employed him and the parents of the pupil on 20 August 2019, at which the allegations were put to the Appellant by the head teacher. The Appellant made no comment upon legal advice. On 23 August 2019 the pupil met with the head teacher and said that she had been seeing [XYZ] and that they had been messaging on Snapchat and on an app called “calculator” since just after her 16^th birthday, and [XYZ] had given her lifts in his car since March 2019.

The Appellant was not arrested or charged with any offence. The pupil declined to make a formal statement and the police decided to take no further action.

On 1 September 2019, following a brief investigation by his employer, which found the allegations to be proved, the Appellant was dismissed from his job at the school and referred to both the DBS and the Teaching Regulation Agency (“TRA”).

On 15 September 2020 the DBS decided to place the Appellant’s name on the children’s barred list, thereby preventing him from working with children (the “Barring Decision”).

In May 2021 a three-member professional conduct panel of the TRA (the “TRA Panel”) convened for a remote oral hearing. Having heard evidence and argument it made findings of fact and, based on those findings, decided on 23 August 2021 that, while XYZ’s conduct had breached the Teachers’ Standards and demonstrated “extremely poor judgement”, it was not misconduct so serious that it amounted to unacceptable professional conduct or conduct that may bring the profession into disrepute (the “TRA Decision”). The TRA Decision was not appealed.

This appeal is about whether the Barring Decision was based on a mistake of fact or law.

The Appellant made an application for an anonymity order in respect of these proceedings. Generally speaking, there is a strong public interest in cases in courts and tribunals being conducted in public and in the identities of the parties and witnesses being made public. This is often referred to as the principle of ‘open justice’. However, that public interest must always be weighed against countervailing factors, including the relevant individuals’ private right for their private and family life to be respected.

When deciding whether to order anonymity in a case which relates to a barring decision, one must consider the nature of the barring scheme. The DBS does not make the names on the barred lists public. The fact of inclusion is known to the person named, to the DBS and to any party that applies for (and is entitled to apply for) a check of the register in relation to the individual in question (usually a prospective employer) but to no one else.

In R (SXM) v Disclosure and Barring Service [2020] EWHC 624 (Admin), [2020] 1 WLR 3259 the Administrative Court held that the disclosure to the complainant of the outcome of a referral to the DBS was inconsistent with the statutory structure and the public interest in protecting and safeguarding vulnerable groups was sufficiently protected by the barring decision itself and the facility for prospective employers or those otherwise entitled to obtain disclosure of the entry from the DBS.

The case for the pupil receiving anonymity is overwhelming given her age and vulnerability and given the sensitive nature of the evidence. While the case for the Appellant receiving anonymity is somewhat less strong, we were influenced by what the Appellant told us about the impact on his mental health of the reporting of his case before the Teaching Regulation Agency. We were also influenced by the fact that if the Appellant is identified there is a risk that the identity of the pupil might be ascertainable by way of what is sometimes called “jigsaw identification”. For the same reason, we consider it appropriate to prevent any of the other witnesses, and indeed the school, from being identified too. In all the circumstances, the balance of interests favoured the making of an anonymity order in this case in the terms set out above.

For these reasons this judgment shall refer to the Appellant as “XYZ”, the pupil as “Pupil A”, her father as “Father A”, the school as “the School” and the School’s head teacher as “the Head Teacher”.

The Barring Decision was made on the basis that:

The explanation that the DBS gave for the Barring Decision in its ‘Final Decision Letter’ was:

“How we reached this decision

Your representations did not challenge the findings made by us. We are now satisfied these allegations are proven on the balance of probabilities:

•

You, whilst employed as a teacher, entered into a relationship with [Pupil A], a year 11 pupil.

Having considered of [sic] all the information available to it, the DBS is satisfied that you have engaged in relevant conduct in relation to children, specifically inappropriate conduct of a sexual nature involving a child.

We are of the view that you, whilst employed as a teacher, entered into a relationship with [Pupil A], a year 11 pupil. The DBS hold concerns that you hold an exploitative attitude in that you breached a position of trust as a teacher to contact a student and form a personal relationship and it is reasonable to infer that you did so for your own gratification. We are further satisfied that you hold a significant sexual interest in teenage girls in that you have engaged in sexual activity with a 16 year old pupil by kissing her on 4 occasions. You have not recognised the harm that your actions have caused and have acted in a way that any reasonable person would deem irresponsible. Your actions have caused harm to the child in that she would cry when with her mum following the ‘relationship’ being discovered. The allegation was raised by [Father A] following a change in his daughters [sic] behaviour, he also reported a feeling of unease following the interaction at Webley [sic] stadium. There is nothing that would suggest that [Father A] had anything to gain by reporting this matter and the only reason that can be drawn from the available evidence is that police took no action due to [Pupil A]’s unwillingness to move forward with the case for fear of her identity being made public knowledge. It is also noted that the LADO substantiated the allegation against you.

It is acknowledged that these appear to be the first incidents of any kind during your time in regulated activity; however there is an imbalance of power in that you were a teacher and [Pupil A] was a student. You abused your position of trust and exploited opportunities that arose. You contacted [Pupil A] when she turned 16, despite being employed as her teacher for a number of years prior to this. Your actions have been carried out over a sustained period of time and whilst it is acknowledged that there is no indication that you, having repeated your actions during your career in regulated activity, this does not diminish the risk you could pose in the future. You have not displayed any remorse or insight into the impact of your actions and you therefore presents [sic] an unacceptable future risk of harm to anyone in your care; the DBS cannot be certain that you would not act in the same way if presented with a similar situation. It is acknowledged that a large number of character references speak of your exemplary record and your passion for teaching; however this does not diminish the risk that you pose.

Your rights as set out by Article 8 of the European Convention of Human Rights [sic] have been considered. However, the SVGA provides the DBS with the legal power to include you on the Children’s Barred List and as such affords legitimacy to such a decision. The DBS has given regard to the fact that placing you on the Children’s Barred List will last indefinitely and will interfere with your rights to earn a living within your chosen field in regulated activity. It is also recognised that your financial circumstances will be subsequently affected as a result of the restriction on your employment opportunities, as may your standard of living. Particularly as you have specifically chosen to work in the teaching sector, something you would no longer be able to do were your name to be added to the Children’s Barred List. It will also affect your other roles related to sports coaching of children. However, a safeguarding decision must take into account not only the rights of the referred individual but also those of the vulnerable groups who may be at risk of harm as a result of your harmful behaviour. Taking this into consideration, it is deemed both necessary and proportionate to put further safeguards in place and even though information may be shared on your enhanced disclosure certificate, which prospective employers will see, this current safeguard is deemed to be insufficient.

It is noted that the TRA are currently undertaking an investigation into your position, however their decision is not expected imminently and therefore it does not seem prudent to delay the decision making process further to await that outcome. If any new information comes to light following the TRA’s decision, that is likely to alter the DBS decision then a review can be requested. Therefore there are not considered to be any robust safeguarding measures currently in place and whilst there is potential stigma attached to this outcome, should you choose to disclose it, you do pose a risk of causing sexual and emotional harm to children and a barring decision is reasonable in light of this.

As a result, we included your name in the Children’s Barred List using our barring powers as defined in Schedule 3, paragraph 3 of the Safeguarding Vulnerable Groups Act 2006 (SVGA) on 14 September 2020.”

On 6 August 2021 (nearly a year after the Barring Decision) the TRA Panel made the TRA Decision. At the oral hearing the TRA Panel heard live oral evidence from Father A and the Head Teacher (called by the TRA) and also from XYZ. Each of these witnesses was available for cross examination. Pupil A did not attend and was not available for cross examination.

The TRA Panel found, on the basis of XYZ’s admissions in a ‘Statement of Agreed Facts’ document, that:

“[XYZ] engaged in and / or developed an inappropriate relationship with Pupil A, including by:

Meeting up with and / or taking Pupil A on one or more occasions:

i.

in his car;

ii.

in / to Hartlepool on or around 13 August 2019;

iii.

outside of School”

(see page 669 of the appeal bundle).

XYZ further accepted that this conduct amounted to “unacceptable professional conduct and conduct that may bring the profession into disrepute”. The TRA Panel found these matters to be proved.

The TRA Panel went on to consider four further allegations, being that XYZ had engaged in and / or developed an inappropriate relationship with Pupil A by:

“b.

instructing and / or inviting Pupil A to communicate with [him] via Snapchat, which did not retain copies of [his] messages or encrypted [his] messages;

c.

communicating with Pupil A on one or more occasions between December 2018 and September 2019 using Snapchat;

d.

kissing Pupil A on one or more occasions;

e.

cuddling Pupil A on one or more occasions.”

The TRA Panel found each of Father A, the Head Teacher and XYZ to be honest in the evidence they gave, but it noted that much of Father A and the Head Teacher’s evidence was evidence of what they had been told by Pupil A, and it was troubled that Pupil A had not attended to give evidence and to have her evidence tested, that her evidence in her witness statement differed from that which she gave in her first police interview, and that no proper explanation had been given for her failure to attend and give evidence. The TRA Panel decided, therefore, to give Pupil A’s evidence only very limited weight. The TRA Panel decided that Father A’s evidence about seeing a photograph on Pupil A’s mobile phone of Pupil A and XYZ kissing was honestly given but it considered that Father A may have misinterpreted the photograph as he viewed it only fleetingly.

The TRA Panel did not find any of the further allegations proved. Based on its findings of fact the TRA Panel decided that while XYZ’s developing an inappropriate relationship with Pupil A by meeting up with her in his car, in or to Hartlepool and outside of school was “ill-advised and inappropriate” (see page 678 of the appeal bundle), there was “no discernible pattern to it” and it decided that such conduct was not “conduct of a sexual nature” and was not “sexually motivated” (see pages 677-8 of the appeal bundle). It concluded that XYZ’s conduct did not amount to conduct which may bring the teaching profession into disrepute.

We discuss the TRA Panel’s decision making and its reasons further in paragraphs 91 to 100 below.

XYZ accepts that he has worked in regulated activity with children as a teacher, and he accepts that he intends to engage in regulated activity with children in the future as a sports coach.

However, he disagrees strongly with the Barring Decision and with the findings of fact on which it was based. While he now accepts having given lifts to Pupil A in his car alone on two occasions, and accepts (in retrospect) that this was inappropriate, he denies vehemently having had any form of sexual relationship with, or sexual interest in, Pupil A.

He denies that he communicated with Pupil A on social media, he denies that he asked Pupil A to use an app to conceal communications between them, and he denies ever kissing Pupil A. He also denies having any sexual interest in teenage girls.

He says that the findings of the TRA Panel, which followed a contested hearing before an expert panel at which live evidence was given and at which the parties were represented, establish that the Barring Decision was based on mistakes of fact and should be set aside.

His appeal raises three main legal issues to be addressed by this panel:

Because the nature and extent of the Upper Tribunal’s jurisdiction and powers in relation to appeals against barring decisions is somewhat unusual, we set out below an outline of the statutory framework for appeals such as this.

DBS was established by the Protection of Freedoms Act 2012, taking on the functions of the Criminal Records Bureau and the Independent Safeguarding Authority. One of its main functions is the maintenance of the children’s barred list and the adults’ barred list (the “Barred Lists”, and each a “Barred List”). Its power and duty to do so arises under the Safeguarding Vulnerable Groups Act 2006 (the “2006 Act”).

Section 2(1)(a) of the 2006 Act places a duty on the DBS to maintain the Barred Lists. Under Section 3(2)(a) of the 2006 Act a person is barred from “regulated activity” relating to children if they are included in the children’s barred list. Under Section 3(3)(a) a person is barred from “regulated activity” relating to vulnerable adults if they are included in the adults’ barred list.

Schedule 3 to the 2006 Act applies for the purposes of DBS determining whether an individual is included in either or both Barred Lists.

By section 59 of the 2006 Act “child” means a person who has not attained the age of 18.

Under Section 3(2)(a) of the 2006 Act a person is barred from “regulated activity” relating to children if they are included in the children’s barred list.

XYZ has been included by the DBS on the children’s barred list pursuant to Schedule 3, Part 1, paragraph 3 of the SVGA (which relates to children and is headed “Behaviour”)

Paragraph 3 of Part 1 of Schedule 3 to the 2006 Act provides:

“3.

(1) This paragraph applies to a person if –

(a)

it appears to DBS that the person—

(i)

has (at any time) engaged in relevant conduct, and

(ii)

is or has been, or might in future be, engaged in regulated activity relating to children, and

(b)

DBS proposes to include him in the children’s barred list.

(2)

DBS must give the person the opportunity to make representations as to why he should not be included in the children’s barred list.

(3)

DBS must include the person in the children’s barred list if —

(a)

it is satisfied that the person has engaged in relevant conduct,

(aa) it has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to children, and

(b)

it is satisfied that it is appropriate to include the person in the list. ...”

By section 5(1) of the 2006 Act, a reference to regulated activity relating to children must be construed in accordance with Part 1 of Schedule 4. Regulated activity relating to children includes any form of care or supervision of children (paragraph 2(1)(b) of Schedule 4), and any form of advice or guidance provided wholly or mainly for children (paragraph 2(1)(c) of Schedule 4) carried out frequently by the same person (paragraph 1(1)(b) of Schedule 4). XYZ does not dispute that teaching or providing sports coaching amounts to “regulated activity”.

“Relevant conduct” in relation to children is explained in paragraph 4 of Part 1 of Schedule 3 to the 2006 Act as follows:

“4.

(1) For the purses of paragraph 3 relevant conduct is –

(a)

conduct which endangers a child or is likely to endanger a child;

(b)

conduct which, if repeated against or in relation to a child, would endanger that child or would be likely to endanger him;

(c)

conduct involving sexual material relating to children (including possession of such material);

(d)

conduct involving sexually explicit images depicting violence against human beings (including possession of such images), if it appears to DBS that the conduct is inappropriate;

(e)

conduct of a sexual nature involving a child, if it appears to DBS that the conduct is inappropriate.

(2)

A person’s conduct endangers a child if he –

(a)

harms a child,

(b)

causes a child to be harmed,

(c)

puts a child at risk of harm,

(d)

attempts to harm a child, or

(e)

incites another to harm a child. …”

Section 4 of the 2006 Act provides for a right of appeal to the Upper Tribunal in limited circumstances:

“4.

Appeals

(1)

An individual who is included in a barred list may appeal to the Upper Tribunal against-

…..

(b)

a decision under paragraph 2, 3, 5, 8, 9 or 11 of Schedule 3 to include him in the list;

(c)

a decision under paragraph 17, 18 or 18A of that Schedule not to remove him from the list.

(2)

An appeal under subsection (1) may be made only on the grounds that DBS has made a mistake-

(a)

on any point of law;

(b)

in any finding of fact which it has made and on which the decision mentioned in that subsection was based.

(3)

For the purposes of subsection (2), the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact.

(4)

An appeal under subsection (1) may be made only with permission of the Upper Tribunal.

(5)

Unless the Upper Tribunal finds that DBS has made a mistake of law or fact, it must confirm the decision of DBS.

(6)

If the Upper Tribunal finds that DBS has made such a mistake it must-

(a)

direct DBS to remove the person from the list, or

(b)

remit the matter to DBS for a new decision.

(7)

If the Upper Tribunal remits a matter to DBS under subsection 6(b) -

(a)

the Upper Tribunal may set out any findings of fact which it has made (on which DBS must base its new decision); and

(b)

the person must be removed from the list until DBS makes its new decision, unless the Upper Tribunal directs otherwise.”

The nature and extent of the Upper Tribunal’s “mistake of fact” jurisdiction has been the subject of several recent decisions of the Upper Tribunal and the Court of Appeal.

What constitutes a mistake in the findings of fact made by the DBS on which the decision was based (for the purposes of section 4(2)(b)) was considered recently by the Upper Tribunal in PF v DBS [2020] UKUT 256 (AAC). At paragraph [39] the panel stated:

“There is no limit to the form that a mistake of fact may take. It may consist of an incorrect finding, an incomplete finding, or an omission. It may relate to anything that may properly be the subject of a finding of fact. This includes matters such as who did what, when, where and how. It includes inactions as well as actions. It also includes states of mind like intentions, motives and beliefs.”

In AB v DBS, in the context of discussing the Upper Tribunal’s power to make findings of fact under section 4(7) of the 2006 Act, Lewis LJ noted (at [55]) in relation to the Upper Tribunal’s jurisdiction to make findings of fact that it would:

“need to distinguish carefully a finding of fact from value judgments or evaluations of the relevance or weight to be given to the fact in assessing appropriateness. The Upper Tribunal may do the former but not the latter. By way of example only, the fact that a person is married and the marriage subsists may be a finding of fact. A reference to marriage being a “strong” marriage or a “mutually supportive one” may be more of a value judgment rather than a finding of fact. A reference to a marriage being likely to reduce the risk of a person engaging in inappropriate conduct is an evaluation of the risk. The third “finding” would certainly not involve a finding of fact.”

It was noted in PF v DBS that:

“41.

The mistake may be in a primary fact or in an inference... A primary fact is one found from direct evidence. An inference is a fact found by a process of rational reasoning from the primary facts likely to accompany those facts.

42.

One way, but not the only way, to show a mistake is to call further evidence to show that a different finding should have been made. The mistake does not have to have been one on the evidence before the DBS. It is sufficient if the mistake only appears in the light of further evidence or consideration.”

In DBS v JHB [2023] EWCA Civ 982 the Court of Appeal returned to the issue of the extent of the Upper Tribunal’s jurisdiction under the 2006 Act on issues of mistake of fact. Laing LJ said that a finding may be “wrong” even if there was some evidence to support it, or it was not irrational, and it may also be “wrong” if it is a finding about which the Upper Tribunal has heard evidence which was not before the DBS, and that new evidence shows that a finding by the DBS was wrong (see paragraph [95]).

However, the Court of Appeal decided that, while the Upper Tribunal had identified what it said were mistakes of fact, it did not explain why the relevant DBS findings were “wrong” or outside “the generous ambit within which reasonable disagreement is possible”. Rather, it had looked at very substantially the same materials as the DBS and made its own findings on those materials, which differed from those of the DBS. This, the Court of Appeal said, was impermissible, because it was only entitled to carry out its own evaluation of the evidence that was before the DBS if it had first identified that the DBS had made a finding which was not available to it on the evidence on the balance of probabilities.

The scope of the mistake of fact jurisdiction was further considered by the Court of Appeal in the recent cases of Kihembo v DBS [2023] EWCA Civ 1547 and in DBS v RI [2024] EWCA Civ 95. The decision in Kihembo confirmed that PF v DBS remains good law. In RI v DBS Males LJ explained that the restrictive approach adopted by the Court of Appeal in JHB should be confined to those cases where the barred person does not give oral evidence at all, or gives no evidence relevant to the question of whether the barred person committed the relevant act relied upon. Where the barred person does give oral evidence before the Upper Tribunal:

“the evidence before the Upper Tribunal is necessarily different from that which was before the DBS for a paper-based decision. Even if the appellant can do no more than repeat the account which they have already given in written representations, the fact that they submit to cross-examination, which may go well or badly, necessarily means that the Upper Tribunal has to assess the quality of that evidence in a way which did not arise before the DBS” (per Males LJ at [55])

Males LJ interpreted the scope of the Upper Tribunal’s jurisdiction under section 4(2)(b) of the 2006 Act as follows:

“In conferring a right of appeal in the terms of section 4(2)(b), Parliament must therefore have intended that it would be open to a person included on a barred list to contend before the Upper Tribunal that the DBS was mistaken to find that they committed the relevant act – or in other words, to contend that they did not commit the relevant act and that the decision of the DBS that they did was therefore mistaken. On its plain words, the section does not require any more granular mistake to be identified than that” (RI v DBS, per Males LJ at [49]).

Bean LJ rejected the DBS’s argument that the Upper Tribunal was in effect bound to ignore an appellant’s oral evidence unless it contains something entirely new. He said in RI v DBS at [37] that:

“where Parliament has created a tribunal with the power to hear oral evidence it entrusts the tribunal with the task of deciding, by reference to all the oral and written evidence in the case, whether a witness is telling the truth.”

Mr Dingley said that, since it knew that the TRA proceedings were on foot and that those proceedings would typically involve the hearing of live evidence and the opportunity to cross-examine witnesses, the DBS should have delayed making a final decision on XYZ’s referral until the TRA proceedings had concluded. This, he says, would have avoided the situation which eventuated, with the DBS making what XYZ maintains were mistaken findings of fact.

This submission ignores the fact that the DBS is a creature of statute with a statutory responsibility to carry out its safeguarding role as provided by the 2006 Act. When a matter is referred to it, the DBS has no option but to consider the referral and to decide whether the criteria for inclusion are met. If it finds that the criteria are met, then the DBS must place the referred person’s name on the applicable list or lists.

The 2006 Act does not contain any provision requiring the DBS to await the conclusion of other proceedings that relate to matters common to the referral before deciding whether to make a final barring decision. The 2006 Act does not empower the DBS to make an ‘interim’ barring decision pending the determination of other proceedings, which leaves a potential “safeguarding gap” during which the referred person would be entitled to continue to work in regulated activity, potentially exposing vulnerable people to an unacceptable risk of harm in the period up to the DBS making its decision whether to bar. Had Parliament intended that the DBS should not make a final decision before other proceedings had been concluded, it would surely have said so.

The 2006 Act does provide for the right of a barred person to apply for a review of their inclusion in a barred list in certain circumstances (see paragraph 18 of Schedule 1 to the 2006 Act) (a “Paragraph 18 Review”). It also gives the DBS a power to review its barring decisions at any time (provided that no application for a Paragraph 18 Review has been made and no Paragraph 18 Review is ongoing) if it is satisfied in the light of a) information which it didn’t have at the time of the person’s inclusion in the list, (b) any change in circumstances in relation to the person concerned, or (c) any error by DBS, that it is not appropriate for the person to be included in the list (see paragraph 18A of Schedule 3 to the 2006 Act). It is clear from the inclusion of these powers in the statute that Parliament intended that a barring decision would survive contradictory findings in other proceedings, and would stand unless and until the DBS carried out such a review and found that inclusion in the list was no longer appropriate.

The DBS acknowledged in its Final Decision Letter that the TRA was at that time undertaking an investigation in relation to XYZ, but it noted that the TRA proceedings were not expected to conclude imminently (the TRA Decision came about a year later) and it referenced the availability of a review should new information come to light. In the circumstances it was open to the DBS to proceed to make a final barring decision.

For these reasons, we are not persuaded that the DBS’s decision to make the Barring Decision prior to the conclusion of the TRA proceedings was in error of law.

Mr Dingley pointed out that the TRA Decision was reached by an expert panel following an adversarial hearing at which both parties were represented, live evidence was given, and witnesses were cross-examined. The allegations which it considered were practically identical to those which the DBS found to be proved on the balance of probabilities, and upon which it based the Barring Decision. The TRA Panel’s findings of fact differed in important respects from those made by the DBS. In particular, while the DBS found that XYZ had, while employed as a teacher, entered into a relationship with Pupil A, including messaging with her, meeting her outside school, giving her lifts in his car, and kissing her on 4 occasions, and that this amounted to conduct of a sexual nature involving a child, the TRA Panel decided that XYZ had not instructed and/or invited Pupil A to communicate with him via Snapchat or encrypted messages, did not communicate with Pupil A using Snapchat, and that XYZ did not kiss or cuddle Pupil A. While the TRA Panel found (based on XYZ’s admissions, that XYZ did give Pupil A lifts in his car alone outside school, including to Hartlepool, it did not find that this conduct was conduct of a sexual nature or that it was sexually motivated.

Mr Dingley maintained that there was nothing improper in the findings reached by the TRA Panel. In any event, he argued, even if a tribunal makes a “wrong” decision, it is a fundamental principle of English law that such a decision stands for so long as it is not successfully appealed. He relied on R (on the application of Coke-Wallis) v Institute of Chartered Accountants in England and Wales [2011] UKSC 1 at [30] for the proposition that the principles of cause of action estoppel apply to a decision of a regulatory body such as the TRA just as they do to a court of competent jurisdiction. While XYZ has criticised the TRA Decision, he did not appeal it. It therefore stands, whatever imperfections it may contain.

By contrast, he submitted, the Barring Decision was reached without a hearing, without the benefit of any live evidence, and without XYZ being given an opportunity to test the evidence which the DBS relied upon as establishing that he had engaged in “relevant conduct” in relation to children. As such, Mr Dingley argued, the TRA Decision should, at the very least, be accorded significant weight.

Indeed, he went considerably further: it would be inappropriate, he said, for the Upper Tribunal to engage in a ‘review’ of the TRA Decision, and it would be res judicata and an abuse of process for the Upper Tribunal either to make findings of fact that contradicted the findings reached by the TRA Panel or to find that the TRA Panel’s findings were in error.

He cited Lord Sumption’s discussion of the principles of res judicata in Virgin Atlantic Airways Limited v Zodiac Seats UK Limited [2013] UKSC 46 at [17] et seq.

“17.

Res judicata is a portmanteau term which is used to describe a number of different legal principles with different judicial origins. As with other such expressions, the label tends to distract attention from the contents of the bottle. The first principle is that once a cause of action has been held to exist or not to exist, that outcome may not be challenged by either party in subsequent proceedings. This is “cause of action estoppel”. It is properly described as a form of estoppel precluding a party from challenging the same cause of action in subsequent proceedings. Secondly, there is the principle, which is not easily described as a species of estoppel, that where the claimant succeeded in the first action and does not challenge the outcome, he may not bring a second action on the same cause of action, for example to recover further damages: see Conquer v Boot [1928] 2 KB 336. Third, there is the doctrine of merger, which treats a cause of action as extinguished once judgment has been given upon it, and the claimant’s sole right as being a right upon the judgment. Although this produces the same effect as the second principle, it is in reality a substantive rule about the legal effect of an English judgment, which is regarded as “of a higher nature” and therefore as superseding the underlying cause of action: see King v Hoare (1844) 13 M&W 494, 504 (Parke B) … Fourth, there is the principle that even where the cause of action is not the same in the later action as it was in the earlier one, some issue which is necessarily common to both was decided on the earlier occasion and is binding on the parties: Duchess of Kingston’s Case (1776) 20 St Tr 355. “Issue estoppel” was the expression devised to describe this principle by Higgins J in Hoystead v Federal Commissioner of Taxation (1921) 29 CLR 537, 561 and adopted by Diplock LJ in Thoday v Thoday [1964] P 181, 197-198. Fifth, there is the principle first formulated by Wigram V-C in Henderson v Henderson (1843) 3 Hare 100, 115, which precludes a party from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier ones. Finally, there is the more general procedural rule against abusive proceedings, which may be regarded as the policy underlying all of the above principles with the possible exception of the doctrine of merger.

18.

It is only in relatively recent times that the courts have endeavoured to impose some coherent scheme on these disparate areas of law. The starting point is the statement of principle of Wigram V-C in Henderson v Henderson (1843) 3 Hare 100, 115. This was an action by the former business partner of a deceased for an account of sums due to him by the estate. There had previously been similar proceedings between the same parties in Newfoundland in which an account had been ordered and taken, and judgment given for sums found to be due to the estate. The personal representative and the next of kin applied for an injunction to restrain the proceedings, raising what would now be called cause of action estoppel. The issue was whether the partner could reopen the matter in England by proving transactions not before the Newfoundland court when it took its own account. The Vice-Chancellor said:

“In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time … Now, undoubtedly the whole of the case made by this bill might have been adjudicated upon in the suit in Newfoundland, for it was of the very substance of the case there, and prima facie, therefore, the whole is settled. The question then is whether the special circumstances appearing upon the face of this bill are sufficient to take the case out of the operation of the general rule.”

Mr Dingley said that these principles had clear application in these proceedings, where the subject matter is substantially the same, the burden is on the party seeking to establish misconduct/relevant conduct, and the standard of proof to be applied is identical (being the civil standard).

The first thing to say about this argument is that the Barring Decision was made a year before the TRA Decision, not after it. This appeal is about whether the Barring Decision was based on a mistake of fact or involved a mistake of law. The determination of that exercise cannot properly be characterised as an attempt by the DBS (or indeed the Upper Tribunal) to “re-litigate” the TRA Decision.

Second, we are unpersuaded that any of the species of estoppel or quasi-estoppel, or other substantive or procedural rules identified by Lord Sumption in Virgin Atlantic v Zodiac (see paragraph 58 above) is applicable to the current situation. Neither is the Supreme Court’s decision in Coke-Wallis (see paragraph 55 above) of assistance to the Appellant. While the TRA would generally be bound by its own findings, the DBS was not party to the TRA proceedings concerning XYZ, and it would have had no standing to appeal the outcome even had it wished to.

Mr Dingley’s response to that is that the DBS was aware of the TRA proceedings and, had XYZ appealed, it could have applied to be joined as an interested party. However, he did not refer me to any authority for the proposition that a non-party was bound in any way by the outcome of proceedings simply because he was aware of their existence and could possibly have applied to join as an interested party in the event that an appeal was brought.

Mr Serr, for the DBS, directed us to the dicta of Newey LJ in Greene v Davies [2022] EWCA Civ 414 at [54] on the issue of whether inviting a Court or tribunal to make findings inconsistent with findings made in earlier proceedings amounted to an abuse of process. Newey LJ acknowledged that it could be, but said that it needn’t be an abuse of process:

“54.

… it is not necessarily an abuse of process to invite a Court or tribunal to make a finding inconsistent with one made in earlier proceedings. To quote Sir Andrew Morritt V-C in Bairstow, at para 38, “[a] collateral attack on an earlier decision of a court of competent jurisdiction may but is not necessarily an abuse of the process of the court”. R v L demonstrates that a person can be the subject of a criminal prosecution requiring proof beyond reasonable doubt despite a High Court judge having concluded that guilt had not been proved even to the civil standard. Equally it can be seen from Ashraf v General Dental Council that disciplinary proceedings can potentially be brought “on substantially the same subject matter as had been the subject of failed criminal proceedings”. Similarly, a determination by a civil Court cannot necessarily preclude disciplinary proceedings based on allegations which the civil Court had rejected …”

There is nothing in the 2006 Act (or elsewhere in statute) that requires the DBS to accept the factual findings of any other decision-making body, including a regulator such as the TRA (exercising the powers of the Secretary of State for Education). The status of findings of fact made by a ‘competent body’ (defined in paragraph 16 to Schedule 3 to the 2006 Act) is dealt with in Schedule 3 to the 2006 Act. However, it provides only that, where the DBS must give a person an opportunity to make representations, that does not include the opportunity to make representations that findings of fact made by a competent body were wrongly made. In other words, the findings of fact in such proceedings before competent bodies are binding on the referred person who was party to those proceedings. It says nothing about them being binding on the DBS. That position is consistent with the common law principles rehearsed by Lord Sumption in Virgin Atlantic v Zodiac in the passage quoted above in paragraph 58, and with the decision in Coke-Wallis referred to above in paragraph 55.

Mr Dingley says that the Upper Tribunal’s role is circumscribed by the findings of fact made by the TRA Panel, on the basis that they were the product of a process that, given that it involved the giving of live evidence and an opportunity to challenge that evidence, was superior to the process carried out by the DBS. He says it would be improper for the Upper Tribunal to make any finding that contradicts the findings of fact comprised in the TRA Decision, and the Upper Tribunal may only uphold the Barring Decision if it was a decision that was still open to the DBS if any findings of fact that conflict with the TRA Panel’s findings are ignored. This is a striking proposition indeed. Parliament has given the Upper Tribunal, a superior court of record, a statutory jurisdiction to decide appeals in respect of barring decisions based on mistake of fact (and law). There is no basis in statute, in the authorities, or in principle for circumscribing the jurisdiction of the Upper Tribunal in the way suggested by Mr Dingley.

For all these reasons, we do not accept that it is either improper or an abuse of process for the DBS to resist XYZ’s appeal on the basis that it made no material mistake of fact. Neither do we accept that the Upper Tribunal is bound to adopt the TRA’s findings.

So, what is the status of the TRA Decision vis-a-vis the Upper Tribunal? It is evidence of what was said at the hearing, of what the TRA Panel decided, and why it decided as it did. It represents no more than that. The Upper Tribunal must give the findings of the TRA Panel appropriate weight, just as it must give appropriate weight to the Barring Decision, and to all the other evidence before it. Our task is to make our own assessment of all the evidence before us to decide whether the Barring Decision was based on a mistake of fact.

We discuss what we made of the evidence in paragraphs 128 to 142 below