CD v Disclosure and Barring Service

DBS’s decision

On 23 May 2024, DBS included CD in the children’s barred list and the adults’ barred list. CD was notified on the following day. The decision was based on these findings of relevant conduct:

The grounds of appeal

We limited our consideration to the grounds on which permission was given, as required by Disclosure and Barring Service v JHB [2023] EWCA Civ 982 at [97]. Upper Tribunal Judge Jacobs gave permission to appeal limited initially to the issue of proportionality. He later extended this pursuant to the power identified in Section III of KS v Disclosure and Barring Service [2025] UKUT 45 (AAC). As a result, the grounds became (in Mr Macdonald’s words from his skeleton argument):

The oral hearing

Judge Jacobs directed an oral hearing, which took place in the Rolls Building in London on 1 September 2025. We are grateful to Mr Bayne and Mr Wilkinson for their contributions on behalf of DBS. Mr Macdonald appeared pro bono through the good office of Advocate. The Upper Tribunal is always assisted by the generosity of those who act pro bono and the organisations that arrange the representation. We thank them both on behalf of this tribunal and on behalf of CD who benefited from their assistance. Finally, we are grateful to CD for her evidence of events of long ago in what she called her dark period.

The legislation

The decision was made under paragraphs 3 and 9 of Schedule 3 SVGA. We set out paragraphs 3 and 4, which relate to children. Paragraphs 9 and 10 are the equivalents for vulnerable adults and are essentially the same.

Section 4 SVGA contains the Upper Tribunal’s jurisdiction and powers.

Our approach to the case

We heard evidence from CD as we are entitled to do: Disclosure and Barring Service v JHB [2023] EWCA Civ 982 at [95]. That evidence was contained in a witness statement dated 15 August 2025. She supplemented this in response to questions from Mr Macdonald, on cross-examination by Mr Bayne, and in answer to questions from the panel.

Having heard that evidence, we approached the case in accordance with the decision of the Court of Appeal in RI v Disclosure and Barring Service [2024] 1 WLR 4033. Bean LJ there approved at [29] the submission by counsel for RI at [28] that

In deciding whether DBS made a mistake of fact or law, we had to consider the circumstances as they were at the date of DBS’s decision, which was 23 May 2024. See SD v Disclosure v Barring Service [2024] UKUT 249 (AAC). We are entitled to take account of evidence that was not before DBS, provided that it can be related back to that date.

Some background on CD

The police national computer lists five different names for CD and four different dates of birth, spread over 30 years. She comes from Jamaica, where she qualified as a nurse in 1994. She came to the United Kingdom in 1999. She told us that she had worked in Scotland and England as a nurse, preferring to work with the elderly, until 2003. She then entered a dark period. The Home Office has certified that she was a victim of modern slavery subjected to sexual exploitation between 2003 and September 2019. During that period she abused alcohol and drugs. This was a feature of her offences and the other behaviour relied on by DBS. It also affected her mental health, leading to drug-induced psychosis.

CD has successfully moved on in her life, as Mr Bayne acknowledged. She continues, though, to experience mental health difficulties. She was subject to assessment under section 2 of the Mental Health Act 1983 in 2025, but was discharged by the First-tier Tribunal on 11 June 2025. The tribunal found that she had a mental disorder ‘best described as delusional disorder or some other mental disorder’. It based this finding solely on CD’s concerns about her neighbours. The tribunal found that this had ‘moved from reasonable into delusional beliefs, based as it was on a paucity of evidence.’ CD did not have insight into her mental disorder, insisting that her concerns were justified despite being, in the tribunal’s words, ‘tenuous evidence at best.’ We note, just to put them aside, that the tribunal did not rely on CD’s concerns about her skin condition or about her mobile phone being hacked. The tribunal also found that the nature of the disorder warranted CD being detained for assessment. However, it concluded that there was no risk to CD’s health or safety or ‘any need for her to be detained for the protection of others.’ The reference to the protection of others reflects the criteria under sections 2(2)(b) and 72(1)(a)(ii) of the 1983 Act; it does not cover the full range of risks that DBS has to consider.

The grounds of appeal

The order of the grounds reflects the order in which they were accepted. It makes more sense to deal with them in a different order, leaving proportionality (ground 1) until last.

Ground 2 mistakes of fact.

The mistakes are that CD acted in self-defence in the case of Victims 3 and 5. CD did not accept that either of those men was a victim. She insisted that she was the victim and they were perpetrators. We have followed DBS’s terminology for convenience rather jump between two different labels or invent a third.

The incident took place in the early hours of the morning on 26 April 2008.

The evidence against CD comes from V3, CCTV footage, and witnesses.

V3 said that CD approached him offering oral sex and tried to open or remove his trousers. He refused, saying he was gay. He went into a shop, where CD followed him. He was approached by a man and a woman, who said CD had taken his wallet. When he confronted her, she handed it back, but without the £200 it had contained. She lashed out at his throat with a weapon, cutting his neck. Although the wound required 11 stitches, he did not feel the wound at the time. He had been drinking.

CCTV shows CD holding something and lashing out a few times. It is not possible to see what she was holding. Witnesses say that she slashed V3’s neck, but disagree whether the weapon was a knife or a bottle.

No money or weapon was found.

CD denies that she approached V3 and offered sex. She accepts that she took his wallet, but only because it was falling out of his pocket. It was empty and she handed it back. She had no weapon with her and did not cut his throat. At best, she may have cut him with her fingernails as she fended him off. V3 was attacking her and, when the police arrived, he had to be restrained and handcuffed.

There is evidence from witnesses who describe her taking V3’s wallet and slashing his throat. There is no reason to doubt their independence. Their accounts differ slightly, but that is not unusual. They disagree about the weapon, but it was night-time with the parties moving around, so their view would have been restricted. There is no reason to suspect collusion in their accounts. The description of the CCTV footage is not as specific as the witnesses at the scene on account of the image moving and changing focus, but it generally supports what the witnesses on the ground reported.

We do not accept CD’s account.

CD’s account of taking V3’s wallet as it was falling out of his pocket is implausible. She might have warned him that his wallet was hanging out of his pocket, but taking it makes no sense. What the man and woman saw in the shop is more plausible and fits best with the evidence was a whole.

There is no doubt that V3 sustained a serious injury that required 11 stitches. CD’s explanation of how that may have occurred is implausible, indeed incredible. Her fingernails could not have caused such an injury.

CD rightly says that no weapon was ever found, nor any money. Both could have been dropped in what seems to have been a running fight before the police arrived. The money would soon have been picked up, a bottle kicked aside, and a small knife lost in the general rubbish discarded by the public along the street in the early hours. The absence of this evidence does not detract from the combined evidence of V3, the CCTV and the witnesses.

V3’s account of her approaching him for sex and of her taking his money combine to show a motive. CD needed money (possibly for drugs) and, when she failed to sell him her sexual services, she resorted to theft.

Finally, V3, the CCTV and the witnesses all agree on the sequence. First CD attacked V3, then they chased each other. V3 probably wanted to recover his money and she wanted to get away. There was a struggle. By her account, that was when her nails must have cut V3’s neck as she defended herself. But all the other evidence puts her attack on his throat earlier in the sequence, negating any self-defence. V3 had to be restrained by the police, but that was because he was angry at being robbed.

On the balance of probabilities, having made our own assessment of the evidence before us, our findings coincide with those made by DBS. There was no mistake of fact regarding V3.

The position relating to the charge brought against CD is confusing. She has said that V5 was trying to rape her. She told us that V5 was later charged with raping another woman. CD’s solicitor had told her that. In her witness statement, she says the case against her was thrown out and she was found not guilty. It is not clear whether the prosecution offered no evidence against her or the case was left to lie on the file. Whichever is correct, the position is the same: CD was never convicted of any offence in relation to V5. It was, though, open to DBS to decide on the balance of probabilities whether CD had committed an offence.

V5 did sustain a single puncture wound to his left hand with a sharp object and required hospital treatment. The issue is whether CD was responsible. The ground of appeal was that she had acted in self-defence. That argument assumes that she did inflict the wound. However, her evidence, both in her witness statement and orally at the hearing, was that she did not inflict the wound at all. She admitted to pushing him and suggested that he had grazed his hand as he fell, but that is very different from a deep puncture wound.

On the basis of CD’s own evidence, this ground of appeal is not made out. CD did not injure V5 in self-defence. There is reliable evidence for the puncture wound and CD does not admit to doing anything that could have caused it. The screwdriver she was carrying (probably for protection) was tested and no blood or DNA from V5 was found.

DBS’s reasoning is, though, unsatisfactory. It relied on the CCTV evidence from Peckham High Street to reason that CD was in an alley with V5 for only 20 seconds, which was too short a time for him to attempt to rape her. However, CD’s evidence is that the assault took place earlier in the evening in Camberwell, after which both parties travelled by bus to Peckham. As we are limited by the grounds of appeal, we have not considered this finding further. This does not mean that we have considered it afresh and confirmed it. Whatever the truth of the matter, DBS’s reasoning is faulty and will need to be reconsidered when a new decision is made.

Ground 3 mistake of law – modern slavery

In its decision letter, DBS accepted that:

CD had mental health problems;

she had been the victim of modern slavery;

her circumstances had drastically changed; and

she had abstained from drugs and alcohol.

Mr Macdonald argued that although DBS had acknowledged these matters, it had not analysed the impact on her behaviour and the assessment of risk. He pointed out that there had been no incident of violence or anti-social conduct since 2019 when she escaped.

It is important to remember that DBS has a protective jurisdiction, a point made by DBS in its letter. The purpose of the barring scheme is not to punish or pass judgement on a person’s behaviour. It is to protect children and vulnerable adults. See R (SXM) v Disclosure and Barring Service [2020] 1 WLR 3259, where the Divisional Court said at [38] that

Mr Macdonald tried to distinguish between CD’s situation and conduct before 2019 and thereafter. Mr Bayne pointed out that even before 2019 there had been gaps between incidents longer than between 2019 and DBS’s decision. Be that as it may, there is a more important factor: CD’s mental health. We have already referred to, and quoted from, the decision of the First-tier Tribunal in its mental health jurisdiction. We have described how the tribunal decided CD’s application. We note that, in its reasoning, it did not see the delusional disorder as unrelated to her previous mental history. It recorded that she had ‘a previous diagnosis of psychotic illness’ and said that the diagnosis of delusional disorder ‘is also consistent with her mental health history and previously exhibited psychotic symptoms including her previously held belief that she had parasites under her skin.’ CD told us that investigations subsequently proved that she did have a skin condition. The tribunal’s point was not, though, limited to that. Our conclusion is that it is not possible to sever CD’s mental state before and after 2019. The evidence from the specialist First-tier Tribunal’s decision was not before DBS when it made its decision, but it reinforces DBS’s reasoning. It is evidence that, despite Mr Macdonald’s argument, there has been a continuity in CD’s mental health issues.

Ground 4 mistake of law - insight and remorse

This is a criticism of the adequacy of DBS’s reasoning.

Khakh v Independent Safeguarding Authority [2013] EWCA Civ 1341 dealt at [23] with the standard of reasons required of DBS (formerly ISA – Independent Safeguarding Authority):

We consider that Mr Macdonald has set too demanding a standard against which to test DBS’s reasons. We do, though, consider that those reasons failed to make sufficient allowance for the effect of the conditions of modern slavery in at least two respects. First, given her mental state at the time, including the effect of the drugs and alcohol, it is not surprising that CD’s recollection of events may not be perfect. Second, the circumstances in which she found herself, through no fault of her own, may affect her ability to accept responsibility for everything she did. It is not surprising that her expression of regret and remorse may seem more detached than would be accepted of someone who had been fully responsible for their actions. We conclude that there was a mistake of law.

Ground 1 mistake of law – proportionality

We have assessed for ourselves the proportionality of DBS’s inclusion of CD in the barred lists as at the date of its decision, in accordance with the Upper Tribunal’s decision in KS.

whether the objective of the measure is sufficiently important to justify the limitation of a protected right

The measure is the barring scheme under SVGA and DBS’s decision under that scheme. Its objective, in the most general terms, is to protect children and vulnerable adults from harm by those entrusted with their care in regulated activity. That objective is sufficiently important to justify interfering with CD’s exercise of her Article 8 Convention right.

whether the measure is rationally connected to the objective

DBS’s decision under the barring scheme prohibits CD from engaging in regulated activity. That is rationally connected to the objective of the scheme.

whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective

Mr Macdonald argued that provision of an enhanced criminal record certificate would be a less intrusive measure. This was the first part of his argument on proportionality.

These certificates are governed by Part V of the Police Act 1997. Section 113B provides:

Mr Bayne argued that there was an element of discretion in what information is, and is not, included in a certificate. To reinforce his point, he drew attention to a certificate in evidence that did not contain all of the information about CD. Mr Macdonald replied that the decision was made by a chief officer of police acting under statutory powers and guidance.

We accept Mr Bayne’s argument, although we would prefer to say that the chief officer has to exercise a judgment rather than a discretion. Whatever the right word, the point is the same: these certificates cannot be relied on to provide a complete and accurate statement of the information known to the officer and, therefore, give a full account of CD’s history. They cannot be relied on as a sufficient and less intrusive alternative to including someone in a barred list.

whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter

Mr Macdonald argued that DBS’s balancing exercise was defective. This was the second part of his argument on proportionality.

We accept that CD’s Article 8 rights will be affected in that she will not be able to work in nursing, for which she originally qualified, or with the elderly, for which she told us she had a particular affinity. Her career options will be further restricted by being excluded from all other forms of regulated activity, with both children and vulnerable adults. That side of the balance is beyond dispute.

On the issue of the balance, Mr Macdonald relied on grounds 2, 3 and 4. We have rejected his arguments on self-defence (ground 2). We have also rejected his argument on CD’s mental health (ground 3). That removes any reliance on those grounds under proportionality. We have, though, accepted that DBS failed in its reasoning to make sufficient allowance for the effect of modern slavery on CD’s insight and remorse (ground 4).

That leaves two further arguments. Both involve CD’s current mental health. One relates to CD’s risk assessment and challenges CD’s anti-social and pro-violence thinking, her lack of empathy and poor problem-solving skills. The other relates to DBS placing insufficient weight on the severity of the consequences for CD and the impact on the wider community. Both these arguments depend on the assessment of CD’s mental health and on whether there is a continuity before and after 2019. We have already explained how the decision under the Mental Health Act 1983 shows continuity. The tribunal’s decision was not made until 2025, so neither the decision nor its reasoning were before DBS when it made its decision. Given the specialist input into the tribunal’s decision, we find that the reasoning can safely be related back to the time when DBS included CD in the barred lists. The state of her mental health justified the inclusion and, with it, the restrictions on her Article 8 rights.

For those reasons, we find that DBS’s decision was proportionate.

Conclusion

As we have found that DBS made a mistake of law by giving inadequate reasons in respect of CD’s insight and remorse, we have remitted the case for DBS to make a new decision. CD will remain in the lists pending that decision.