Automated Summary
Key Facts
KCN was accused by service user SU of sexual misconduct in 2017, including kissing, fondling, and forcing oral sex. He was acquitted in the Crown Court in 2023. The Disclosure and Barring Service (DBS) included him in both children's and adults' barred lists in 2024, relying on the civil standard of proof (balance of probabilities) despite his acquittal. The DBS considered SU's detailed and consistent account, DNA evidence linking KCN to the scene, and his denial as insufficient to counter the risk of future harm to vulnerable individuals. The appeal was dismissed as DBS's findings were deemed legally and factually sound.
Issues
- The primary issue was whether the Disclosure and Barring Service (DBS) made a mistake in law or fact by finding the allegations against KCN proved on the balance of probabilities, given his acquittal in the Crown Court. The tribunal also assessed the proportionality of including KCN in both the children's and adults' barred lists, considering the risk to vulnerable individuals versus the impact on his human rights.
- The second issue centered on whether DBS's decision to bar KCN was appropriate under the Safeguarding Vulnerable Groups Act 2006, particularly given his acquittal on criminal charges and the absence of prior incidents. The tribunal evaluated whether the civil standard of proof sufficiently supported the barring decision and if the protective measures outweighed the infringement on KCN's right to private life.
Holdings
- DBS did not make mistakes in law or in the findings of fact on which its decision was based. DBS's decision is confirmed.
- The Upper Tribunal upheld the civil standard of proof (balance of probabilities) applied by DBS, distinguishing it from the criminal standard (beyond reasonable doubt). The tribunal found DBS's analysis of the evidence credible and concluded that the evidence supported the finding of relevant conduct.
Remedies
The Upper Tribunal confirmed the Disclosure and Barring Service's decision to include KCN in both the children's and adults' barred lists, as DBS satisfied the criteria for relevant conduct and appropriate barring under the Safeguarding Vulnerable Groups Act 2006.
Legal Principles
The Disclosure and Barring Service (DBS) applied the civil standard of proof (balance of probabilities) rather than the criminal standard (beyond reasonable doubt) when assessing the allegations against KCN. The Upper Tribunal confirmed that DBS was entitled to evaluate the evidence under the lower civil standard, distinguishing it from the jury's criminal standard in the trial. The Tribunal found no error in DBS's application of this principle.
Precedent Name
- PF v Disclosure and Barring Service
- RI v Disclosure and Barring Service
Cited Statute
- Safeguarding Vulnerable Groups Act 2006
- Tribunals, Courts and Enforcement Act 2007
- Criminal Justice and Court Services Act 2000
Judge Name
- Elizabeth Bainbridge
- Edward Jacobs
- Roger Graham
Passage Text
- DBS was entitled to assess the evidence to the civil standard on the balance of probabilities... It was litigating a different issue, albeit an issue that involved the same evidence.
- We find no fault with DBS's analysis of the evidence or its finding on the balance of probabilities. We largely accept Ms Hartley's analysis of the evidence to the same effect.
- The DBS is satisfied you demonstrated harmful behaviour triggered by a service user's refusal to comply with a request for sex and that you forced the service user to engage in sexual activity against her will.