Want v Minister for Infrastructure: [2024] JRC 083

Royal Court Judgments of interest issued during Quarter 2 of 2024 included Want V Minister for Infrastructure [2024] JRC 083.

This article examines the case of Mr. Want and the implications of DBS checks on his PSV badge in Jersey. After a 2016 conviction for indecent assault, Mr. Want navigated the legal landscape involving the Disclosure and Barring Service (DBS) and its impact on business licenses.

We analyse the legal positions in both the UK and Jersey, focusing on how DBS results influence licensing decisions and the importance of considering individual circumstances. Explore key insights on safeguarding, legal responsibilities, and the nuances of criminal record assessments for taxi drivers and other regulated activities.

Facts

Mr. Want obtained a PSV badge to act as a taxi driver in 2017 which was renewed every year until 2016.  In 2016 Mr. Want was convicted in the Magistrate’s Court of indecent assault and sentenced to a 12 month binding over order as the Magistrate put the offence “in the lowest band of seriousness”. Notwithstanding that, Mr. Want was also required to pay compensation to the victim and was made subject to notification requirements under Article 3 of the Sex Offenders (Jersey) Law 2010 for a period of 2 ½ years. The prosecution did not ask for a restraining order under Article 10 of the Sex Offenders (Jersey) Law 2010.

In 2018, the Magistrate’s Court heard an application from Mr Want to lift the notification requirements. Such application was supported by a ‘De-Notification Report’ from the Jersey Probation and After Care Service. The Magistrate noted that the assessment was of a low risk nature and granted the application. Mr Want subsequently applied to DVS to have his PSV Badge reinstated on 21 January 2019.

On 19 March 2019, an interview took place between Mr. Want and the DVS. It was explained that DVS were satisfied that Mr. Want was a fit and proper person to have his PSV badge restored because he was no longer subject to the notification requirements.

On 3 April 2019, DVS applied to the States of Jersey Police for a DBS check. The result of that check was “relevant info (no disclosure)”. The certificate recorded that no convictions, including Mr. Wants conviction in 2016 were recorded on the Children’s or Adults’ Barred Lists maintained by the DBS.

As a result, DVS reinstated Mr. Want’s PSV Badge.On 21 June 2019, the DBS wrote to Mr Want stating: “Following your recent application for an enhanced disclosure with barred lists check to work with children and / or vulnerable adults, we received Information from the police about your conviction. We therefore considered whether or not to include you in the Children’s Barred List and / or the Adults’ Barred List.”

Having considered the full circumstances, we have decided that it is not appropriate to Include you In the Children’s Barred List or the Adults’ Barred List.”

On 11 July 2022, Mr want applied for a further DBS check to be carried out. This was because it was the policy of DVS to require PSV Badge Holders to submit to a DBS check every three years. The results of that certificate recorded that no convictions, including the Mr Want’s conviction in 2016, were recorded on the Children’s or Adults’ Barred Lists. Mr Want’s PSV Badge was duly renewed.

On 22 September 2022, the DBS wrote to Mr Want referring to his conviction in 2016 and stating that the DBS intended to include him in the “Children’s Barred List under paragraph 2 of Schedule 3 of the Safeguarding Vulnerable Adults Group Act 2006”. Mr Want sought to challenge the decision of the DBS, however the DBS ultimately concluded that a barring decision was appropriate. Mr Want made DVS aware of the correspondence he had had with DBS. This resulted in DVS revoking Mr. Want’s PSV badge. A representative of DVS stated in oral evidence that: “when DBS put an individual on a barred list, that individual was no longer fir and proper to hold a PSV badge”.

Mr Want sought to challenge the decision of DVS to revoke his PBS Badge.

Legal analysis: the UK Position

The Court noted that the DBS was established in the United Kingdom by the enactment of the Safeguarding Vulnerable Groups Act 2006 (the 2006 Act). That act requires the DBS to maintain the Children’s Barred List and the Adults’ Barred List.

The DBS maintains a list of offences where they must place a person on one of those lists. This includes offences committed in Jersey. For the most serious offences, a person is placed on a barred list without any right to make representations. For other offences, the DBS is required to place an individual on a Barred List subject to giving that individual an opportunity to make representations to the DBS as to why that person should not be included in the Children’s Barred List. An offence of indecent assault in Jersey against an adult is an offence where an individual has a right to make such representations.

Legal analysis: the Jersey Position

The Court noted that the provisions of the Police Act (Criminal Records) (Jersey) Order 2010 extended parts of the 2006 Act and the Police Act 1997 (the Police Act) to Jersey.Crucially, the provisions of the 2006 Act establishing the Children’s Barred Lists and the Adults’ Barred Lists were not extended to Jersey. The extension of the Police Act expressly referred to the provision of enhanced criminal record certificates. These certificates cover whether individuals are on the Barred Lists. The Court noted that: “The Order in Council as extended to Jersey [was] far from easy to follow therefore contemplated that individuals would be placed on Barred Lists by the DBS, even though the express obligation to maintain such lists and the related criminal offences referred to above were not extended to Jersey”.

The Court further noted that, as a matter of English law, if a person is on a barred list, they must not engage in any regulated activity (which would include any form of care or supervision of children or any form of advice or guidance provided wholly or mainly for children). The Court noted that it was not an offence in Jersey for people to employ individuals who are placed on the Children’s or Adults’ Barred List. The Court emphasised that this means that: “for any decision, where a public authority in Jersey is deciding whether or not to grant a permit or licence and requires an applicant for such a permit or a licence to undergo a DBS check, it is for that decision maker to decide whether or not to grant the permit where an applicant “fails” a DBS check because the applicant has been placed on a Barred List by the DBS.” The Court held that what weight is applied to the result of a DBS check is a matter for the decision maker to determine but stressed that whilst an adverse DBS check may be conclusive in many cases, that does not detract from the obligation of the decision maker to make a decision (i.e. the decision maker cannot formulate an automatic policy). The Court further noted that the decision maker must listen to any applicant who has something to say.

The Court ultimately concluded in this case, that Mr. Want’s PSV badge should not have been suspended, notwithstanding the fact that the DBS placed him on the Children’s Barred List. This was for the following reasons:

• The DBS did not have the benefit of the detailed probation reports
• Greater weight should have been given to the views of the Magistrate both on sentencing and the lifting of the notification requirements
• The previous good character of Mr. Want
• There did not appear to have been any issues of concern raised since 2016 or since the PSV badge was restored to Mr. Want in 2019

Comment: This is an interesting judgment showing the application and extent of DBS checks in Jersey. As the Court noted, the results of a DBS check cannot in and of themselves form the basis of a decision, although they can of course influence preferring a certain course of action over another. Employers and Businesses who seek DBS checks may want to review their policies and procedures to ensure that they do not have any automatic decisions making policies in the event that a person ‘fails’ a DBS check.

KEY WORDS: Business Licence; DBS Checks;

This was an interesting case concerning the legal status and effect in Jersey of checks carried out by the Disclosure and Barring Service in the United Kingdom and how far the results of such checks may be taken into account in Jersey by public officials in relation to the grant or refusal of licences or permits.