GE v Disclosure and Barring Service

The decision of the Upper Tribunal is to dismiss the appeal. The decision of the Disclosure and Barring Service did not involve any material mistake of fact or law, and that decision is confirmed. REASONS FOR DECISION Introduction

1. This appeal is about the decision of the Disclosure and Barring Service (“DBS”) communicated by letter of 26 June 2022 to place GE’s name on the Adults’ Barred List (“the Decision”). Factual and procedural background

2. GE applied to work as a live-in care assistant. An allegation against GE that he had had sexual intercourse with his wife without her consent was referred to the DBS. We understand that GE is now divorced from his wife, but given that they were married at the time of the central events, we refer to her as his wife or ‘X’ throughout this judgment. The DBS issued a Minded to Bar letter on 13 February 2022. GE made representations to the DBS, essentially saying that he had been acquitted of rape, that he had a clean record and that his wife was not telling the truth.

3. The DBS issued a final barring decision on 28 June 2022 to include GE’s name on the Adults’ Barred List on the basis of its finding that “ in 2017 whilst being aware that [he] had HIV status [he] engaged in sexual intercourse with [his] wife on more than one occasion without her consent ”.

4. GE appealed against the Decision on 27 September 2022. He filed amended grounds of appeal on 30 November 2022.

5. The allegation against GE first arose on 12 October 2017 when GE’s wife (“X”) contacted police alleging that GE had threatened her with a car. Police attended GE’s home address, during which time X disclosed that GE had raped her. She spoke to one officer who recorded that GE had raped X four or five times. X spoke later that day to another officer who recorded in a statement that X said she had been raped by GE once or twice.

6. On the same day GE was arrested, and interviewed by police. He denied rape. He explained that he had HIV which had been undetectable and non-transmissible. He said that sexual intercourse with his wife was consensual. He said that if his wife said no he would leave her alone. He said the last time they had sex was in the kitchen at the end of August 2017, when his wife had been cooking and consented to sex. Since then, the week before the interview (which would be early October) he suggested that they should have sex but she said no, and he accepted her answer. He said X sometimes removed a condom from him during sex. He said that X had come back from a holiday in Spain in July, that he believed she was having an affair, and that she had made up the allegations to get him out of the property.

7. In November 2017 GE’s wife provided a statement to police saying that she no longer wished to pursue the complaint because she was concerned about the effect on her family, although she did not retract the allegation. She later changed her mind and was interviewed by police in January 2018. In the police interview X said that in 2017 she was told by X that HIV was detectable again, and she wanted the relationship to be over. X alleged that GE had raped her once in the bedroom, holding her by both hands and ignoring her pleas to stop. She alleged that in 2017 GE raped her in the kitchen while holding her, while she made it clear she did not want sex. She also said that he would sometimes take a condom off in the middle of intercourse, which she did not consent to as he was HIV positive. X made a witness statement in November 2019 in which she set out some of the background of her relationship with X.

8. It transpired that in September 2017 about a month before X spoke to police, X had spoken to her GP, and said that her husband was having non-consensual sex with her but that she did not want to go to the police. Her GP made a statement to police to confirm that.

9. GE was charged and stood trial in mid 2021 on two counts of rape. Both X and GE gave evidence at that trial. GE was acquitted. Legal framework

10. The DBS’s Decision was made pursuant to Paragraph 9 of Schedule 3 to the Safeguarding of Vulnerable Groups Act 2006 (the “ 2006 Act ”) which provides: (3) DBS must include the person in the adults’ 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 vulnerable adults, and (b) it is satisfied that it is appropriate to include the person in the list.

11. Paragraph 10 of Schedule 3 defines “relevant conduct” in this as below: (1) For the purposes of paragraph 9 relevant conduct is– (a) conduct which endangers a vulnerable adult or is likely to endanger a vulnerable adult; (b) conduct which, if repeated against or in relation to a vulnerable adult, would endanger that adult 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 vulnerable adult, if it appears to DBS that the conduct is inappropriate. (2) A person's conduct endangers a vulnerable adult if he– (a) harms a vulnerable adult, (b) causes a vulnerable adult to be harmed, (c) puts a vulnerable adult at risk of harm, (d) attempts to harm a vulnerable adult, or (e) incites another to harm a vulnerable adult.

12. In this case, the DBS decided that GE had non-consensual sex with his wife. The DBS found that to be “ conduct which, if repeated against or in relation to a vulnerable adult would endanger that vulnerable adult or would be likely to endanger him or her ” under paragraph 10(1)(b). The DBS was satisfied that GE might in future be engaged in regulated activity relating to vulnerable adults, and there is no dispute that is correct: he wanted to work as a live-in carer. The DBS decided that it was appropriate and proportionate to include GE’s name on the Adults’ Barred List.

13. An appeal against the decision to include an individual in the Adults’ Barred List may only be made on the grounds that the DBS has made a mistake on a point of law or in any finding of fact on which the decision was based, under A decision on appropriateness can only be set aside if it was Wednesbury unreasonable. s4(2) of the 2006 Act . The decision whether or not it is appropriate for an individual to be included on the Adults’ Barred List is not a question of law or fact: s4(3) of the 2006 Act .

14. When it comes to mistakes of fact, the starting point for the Tribunal’s consideration will be the DBS decision, although the amount of weight given to the DBS’s findings of fact will depend on all the circumstances : PF v DBS [2020] UKUT 256 . If the Tribunal hears evidence which was not before the DBS, it may be entitled to reach the view that a factual finding of the DBS was wrong: DBS v JHB [2023] EWCA Civ 982 ; DBS v RI [2024] EWHC Civ 95.

15. In KS v Disclosure and Barring Service [2025] UKUT 45 (AAC) (“KS v DBS”) a Presidential Panel of the Upper Tribunal confirmed that the Upper Tribunal must assess the proportionality of the DBS’s decision for itself, rather than carrying out a rationality or Wednesbury assessment of the DBS’s assessment of proportionality. The grounds of appeal and the parties’ submissions

16. I gave unrestricted leave to appeal on 12 September 2024.

17. The grounds of appeal have been framed in various different ways and I agree with the DBS’s helpful compartmentalisation of them into five grounds. In relation to each of those grounds, I have summarised the parties’ respective submissions below. Ground 1: The DBS made an error of fact in concluding that GE had raped X and in doing so had wrongly preferred the evidence of X over GE .

18. This is the central matter in issue. In relation to this ground GE points to his acquittal by a jury which he says was well placed to consider X’s credibility, having heard evidence from her. He points to inconsistencies in X’s accounts, lack of specificity in X’s account about alleged rapes, X’s motive to remove GE from the family home, and her withdrawal of charges after he moved out. GE makes an allegation that X is of bad character and mentions fraud. He relies on his consistency and good character.

19. The DBS says that X’s evidence is credible because she did not set out to accuse GE of rape, that her temporary retraction of support for the prosecution is explicable because of cultural pressures, that she has been broadly consistent including confiding in her GP. The DBS says there is no evidence that X has been dishonest, and that GE’s acquittal is neither here nor there because a different standard of proof is applied. Ground 2: The DBS made an error of law in concluding that GE posed a risk of harm to vulnerable adults and Ground 3: The DBS failed to provide reasons for that conclusion

20. In relation to these grounds GE points to the fact that the allegations arose within a domestic context, and the lack of other evidence that he is a risk. The DBS says that as there is evidence of non-consensual sexual activity there is a risk of harm to vulnerable adults, and that it carefully assessed the risk and gave reasons as set out at [124-5]. Ground 4: The Decision was disproportionate and inappropriate .

21. In support of this ground GE relies on the weakness of evidence, the acquittal, and the effect on him of being barred. GE’s solicitors asserted that spousal rape is not a crime in Nigeria and implied that was relevant to proportionality. The DBS says that it carefully considered the proportionality of placing GE on the Barred List as recorded in detail in the Barring Decision Process document and considered the nature of the role that GE applied for and an acknowledgment of the effects that the Decision may have on GE’s employment. The DBS says its decision on appropriateness can only be set aside if it was unreasonable which this plainly was not. Ground 5: The DBS wrongly placed the burden of proof on GE

22. GE says that DBS wrongly required him to produce evidence to back up his denial. The DBS says that reading the decision as a whole it is clear that the DBS analysed the credibility of both accounts properly. The Hearing before the Upper Tribunal

23. The Upper Tribunal had before it all of the evidence considered by the DBS which included statements from police officers who spoke to X when she first made a complaint of rape, a statement from her GP about the disclosure, and GE’s interview by police. In addition, the Upper Tribunal had two documents from the criminal trial: the learned judge’s summing up of the evidence to the jury, and the transcript of X’s account to the police, recorded on 9 January 2018.

24. The hearing of the appeal took place at the Upper Tribunal in Manchester on 26 September 2025. GE represented himself at the hearing. He took the oath, and gave mixed evidence and submissions, and made himself available to be cross-examined by Mr Fulbrook for the DBS.

25. GE was concerned that he did not have legal representation. He was reassured that many appellants come before the Upper Tribunal without representation. He was able to give a full account and explain his case. GE was calm and polite throughout. GE had printed off some, but not all of the papers in the case. When he did not have a page of the papers, the relevant part of the evidence was read to him before he was asked any questions.

26. GE was assisted by an Igbo interpreter. GE sometimes spoke in English, and sometimes spoke through the interpreter. At points, when GE answered in English and we were concerned that GE may not have understood a question, or may not have expressed himself accurately, we asked for the question to be repeated and interpreted, and for GE’s answer to be interpreted.

27. GE’s evidence included the following: a. He repeatedly said that he had never had sex with X without her consent. He was clear that X had the right to say no, and told us that he would have respected that. b. He directed us to the police interview, saying that it was true, but also saying that ‘not everything they wrote was said by me’. c. He showed us photographs of himself, X and X’s step-daughter, which he said had been taken in 2016 and 2017, which he said showed that they were in a relationship then. GE’s description of the photographs is part of the evidence, but the photographs are not part of the evidence. d. He told us that he had a letter which confirmed that HIV can reduce to a level where it is not transmissible. Mr Fulbrook for DBS confirmed that was not in dispute. The letter is not part of the evidence. e. GE made a number of suggestions as to why X might have made up the allegations against him. They included that he had told the family of the person who X had allegedly started a relationship with to leave her alone, and that X wanted him to leave the house. f. GE emphasised that he had been found not guilty by a criminal court. g. GE said that he had started seeing X in 2013 and they were married in 2014. He said that she knew about his HIV status before they went for IVF treatment. He was reminded that in his police interview he had said that he found out about HIV when he went for IVF treatment. He was asked “Do you accept that what you say now is different to what you said in interview” and answered “I told the police that I had HIV. What is written down here is not right”. h. GE said that he had been told when diagnosed that his HIV was not detectable or transmissible. He had then been told in 2016 that it had become detectable (and by implication transmissible). It was suggested to him that X had said she wanted to end the marriage at that point, but he did not agree. i. GE said that X had not taken various opportunities to make or repeat allegations of rape which showed she was lying: she had not told a friend who stayed with them for four months, and did not mention it in the application for divorce. j. GE agreed that in July 2017 X went on holiday to Spain, and when she came back she said she wanted to end the marriage. He told us about difficulties making arrangements for X’s daughter to be looked after while X was away, and how he was worried because X would not tell him where she was going and was erratic. k. GE said he went to Nigeria when X was in Spain, to perform traditional marriage rites. He was reminded that in his interview he said he travelled to Nigeria because someone was dying. He said that was not correct. l. GE said that when his wife came back from Spain she asked him to move out. He asked for some time. The tenancy was in her name but he was contributing to the rent. m. GE accepted that if we found that he had raped his wife that it would be right for him to be barred from working with vulnerable adults.

28. GE was asked about when he had last had sex with X. GE told us “ Sex did not happen after she came back from Spain” [which was in July 2017] and explained that he would not have had sex with her after that time because he suspected that she had been unfaithful. Mr Fulbrook reminded GE that the transcript of his police interview records : “ Q So since you came back from Spain have you had a sexual relationship with [X]? A (inaudible) a couple of times and everybody was she is happy well im happy…” and GE went on to say in that interview that they had last had sex in the August Bank holiday. When GE was asked about the discrepancy, GE said that he had not told police that they had sex after X returned from Spain and the interview transcript is wrong.

29. GE was asked about X’s allegation that he raped her in the kitchen. He told us “ there was no sex in the kitchen ” and explained that it was a very small kitchen and he had never, and could not have, had sex in there. Mr Fulbrook reminded GE that the police interview records: “Q did you have sexual intercourse with her in the kitchen A yeah yeah Q and did she consent A more than consent” Again GE said that the transcript must be wrong and he had not said that to police. In relation to the same allegation, Mr Fulbrook also asked GE about part of the trial judge’s summing up of the evidence at the criminal trial. The summing up includes the following description of part of GE’s evidence to the jury: “But then he [GE] said ‘ I have had sex in the kitchen. She was cooking. She asked me to cut meat and put some in her mouth. Then she put some in my mouth. I took some rubbish out and she pushed herself back on to me. She said although she wasn't happy with me, she said that that day –’ They would -- it just seemed to be they would have sex. That was the only time they had sex in the kitchen .” GE told us that he could not remember saying anything like that. GE was asked whether he was saying that the judge’s summary was wrong, and did not answer clearly. He repeated “ I cannot remember saying that ”.

30. Mr Fulbrook for the DBS amplified his written submissions, focussing on the following points: a. GE had been inconsistent about some very significant points and was not credible b. Apparent inconsistencies in X’s account did not show that she was not credible; they are explicable when looking at her fuller account in police interview. c. GE’s suggestions for why X might have made up the allegation do not hold water for various reasons. The best explanation for her evidence is that she alleged rape because she genuinely believed what had happened to her. d. X’s temporary withdrawal of support for the prosecution case does not show that she is not credible. She explained that it was because she was concerned that she would be disapproved of for making such an allegation. In any event, she reverted to supporting the prosecution, showing how strongly she felt about it.

31. Although some of the evidence before us was about the chronology of GE’s HIV diagnosis and his wife’s awareness of the condition, Mr Fulbrook realistically conceded that the issue of who knew what about HIV and when was not a material issue. Analysis

32. When considering GE’s evidence we made a number of allowances. We bore in mind that he was giving evidence to us through an interpreter, which can make evidence less coherent, and can make it harder to judge a witness’s credibility through tone of voice or choice of words. We bore in mind that GE was being asked about events many years ago, and that memories fade. We bore in mind that when GE was being interviewed by police he did not have an interpreter: he did not make any complaint about that at the time, but it is plain from the transcript that he struggled to express himself with precision at some points.

33. When considering X’s evidence we bore in mind that X did not give oral evidence in front of us and that we had not seen X being questioned in order to make a first-hand assessment of her credibility.

34. We kept in mind the importance of avoiding assumptions when determining issues relating to allegations of sexual violence, and domestic violence. We bore in mind that there are no typical rapes and no typical responses to rape; that a delayed complaint of rape is not necessarily a false complaint; and that it is common experience that victims of domestic abuse may try to hide what is going on. We kept in mind that just because a person gives a consistent account about an event does not necessarily mean that account must be true, any more than inconsistent accounts must be untrue. We had in mind that different people can respond to unwanted sexual activity in different ways. Some may protest and physically resist throughout the event but others may be unable to protest or physically resist. This may be out of fear or because they are not a very forceful person.

35. We bore in mind the cultural context. In particular, we noted that X described family and cultural pressure not to allege rape against her husband. We did not, however, place any weight on the assertion by GE’s solicitors that legal differences between the UK and Nigeria had some relevance to the proportionality of the decision, and GE did not seek to repeat that submission to us. That is a wholly unmeritorious submission that should not have been made. This is not a case about some sort of nuanced cross-cultural misunderstanding: X says that she was forcibly made to have sex twice against her will, and GE says that did not happen.

36. In reaching our conclusion we have taken account of all of the submissions which we have read, and heard at the hearing and all of the evidence. We have not resolved all of the factual issues which have been raised because we do not consider that they need to be determined in order to reach a conclusion. As just one example, we have not determined the chronology of GE’s HIV diagnosis because that is not necessary to determine the appeal.

37. We did not accept GE’s evidence. We found him to be a witness who could not be believed. In particular: a. We reject GE’s suggestion that the police interview transcript is unreliable. It would have been transcribed by a professional; there is no reason to think it was not transcribed with care and indeed there are parts of the interview where the transcriber has written ‘inaudible’ rather than guess; and the phrasing used in interview is consistent with the phrasing used by GE when speaking English in front of us. b. We reject GE’s suggestion that the transcript of the judge’s summing up is unreliable. Again, it would have been transcribed by a professional with care. We find that the learned judge accurately quoted from and summarised the evidence in the trial. The judge’s summary and quotes could only have come from the judge’s notes taken during the trial. If there had been any significant inaccuracies, we would have expected GE’s barrister to correct them before the jury retired to consider its verdict, but there was no such submission. c. It follows that GE has been inconsistent about matters which are central to the allegation of rape. He has been inconsistent about when he last had sex with X, about whether he had sex with her at all after she came back from Spain in July 2017, and about whether he ever had sex with her in the kitchen. d. Despite the passage of time, we would expect GE, if being honest, to consistently recall whether he had sex with his wife at all after she returned from Spain, and whether he ever had sex with her in the kitchen. Our conclusion is that GE is not being honest, and that has given different accounts because he is hiding the truth that he had sex with his wife against her will, once in the kitchen and once in the bedroom. e. We did not take any account of alleged discrepancies about the timing of HIV diagnosis, or reasons for GE going to Nigeria, as we considered on close analysis of the evidence that those discrepancies could have arisen as a result of misunderstandings or language difficulties.

38. In GE’s favour, we bore in mind that GE has no convictions or cautions and no pattern of behaviour of this type, but that was outweighed by the indications that GE was not truthful. We bore in mind that GE had been acquitted in the criminal court, but given that the criminal court applies a different standard of proof that has little bearing on our decision.

39. We accept X’s evidence that she was forced to have sex twice against her will, for the following reasons: a. X’s first disclosure was to her GP and not to police. She did not go to the police at that time. That points away from X maliciously inventing an allegation against GE to get him out of the house or for any other reason. b. When police attended, X did not immediately disclose rape. It was only after talking to police for some time about her relationship that she made the disclosure. That also points away from X maliciously inventing an allegation against GE to get him out of the house or for any other reason. c. X has been consistent, when asked for details, in describing two occasions when she was physically overpowered and made to have sex against her will, once in the bedroom when she had been asleep and once in the kitchen. d. X maintained her account when cross-examined in the criminal trial. The learned judge’s summing up does not disclose any significant discrepancy between her evidence at trial and her detailed account in police interview. e. Although GE has made allegations that his wife has been dishonest or committed fraud, no details have ever been provided, nor any evidence of a conviction, and so we do not give those allegations any weight. f. Although X did not take a number of opportunities to make disclosures, and although there was some delay between the first rape and first disclosure, we find that is explicable by her concerns about the effect on her family, and her cultural belief that her husband was entitled to have sex with her. g. We reject GE’s submission that her descriptions of what happened were not specific. X described two occasions of rape clearly, one in the bedroom and one in the kitchen, and the lack of specificity relates to other incidents where she says she submitted to his demands. It is not surprising that she is not specific about those other allegations: her evidence is that they happened often.

40. We considered the apparent discrepancy in X’s first accounts to police with care. On the face of it, she told one police officer that she had been raped once or twice, and another that she had been raped four or five times. In assessing that evidence, the detail is important.

41. X’s first account to police is recorded by the first police officer in this way: “She said she was fed up of how he treated her and, when asked what was meant by this, she stated that he had raped her either four or five times. She stated that she had shared a bed with him up until three weeks ago because he refused to move out. It was whilst in bed that he had sex with her without her consent. She continued saying and on one occasion he raped her in the kitchen while she was trying to cook. She then stated that Mr G was HIV positive and that he was aware of this at the time of raping her” .

42. That police officer then called for a specialist DC to come to the scene, and when that DC spoke to X, it is recorded that “she informed me that she had indeed been raped by her husband once or twice. She stated that she doesn’t always want to have sex with her husband but sometimes she just lets him”. The contemporaneous notes written by that officer record slightly different words from X as follows “ I don’t want to but he pesters me. Sometimes I let him but once or twice he has pinned me down and forced me without my consent I did not want to do it”.

43. In a later statement X explained that “ when the police arrived, I was asked questions about our relationship and I simply told the truth. I did not know until I was spoken to by the Police officer that I had been raped. It was a shock to me, in my culture an African male’s wife has to obey her husband’s every need....I didn’t know the laws around non-consensual sex. So when I told the police officer that I wanted GE to leave me alone because he had been sleeping with me without my consent, the officer told me that it was rape .”

44. It is of note that X’s disclosure to her GP, which is her first recorded account, does not include the word ‘rape’: she referred to sex without her consent. It appears, therefore, that it would have been police, rather than X who first used the word ‘rape’ to describe what had happened. The short statements by police at the scene are not intended to be a verbatim account of X’s allegations: that is the purpose of the lengthy police interview, in which she clearly describes two specific incidents where she was forced to have sex, and a number of other incidents where she submitted to sex. We find that the apparent inconsistency in X’s first accounts to police arose because X and/or the police were sometimes using the word ‘rape’ to describe situations where physical force was used against X, and sometimes using it to include situations where X submitted to sex. The apparent differences in the number of rapes in X’s first disclosure to police is therefore not a discrepancy which causes us to disbelieve X.

45. We have no hesitation in accepting X’s account and rejecting GE’s account.

46. Dealing with the particular grounds of appeal: a. Ground 1 is rejected. DBS did not make a mistake of fact for the reasons we have given. b. Grounds 2 and 3 are rejected. There is in fact no requirement in the statutory framework for the DBS to determine whether GE was likely to repeat the same behaviour against vulnerable adults. The relevant test is whether the conduct, if repeated against a vulnerable adult , would endanger that adult. It is self-evident that forcing sex on a non-consenting vulnerable adult would cause them harm. Where the DBS made findings about the risk that GE posed to vulnerable adults, that was within the context of the tests of appropriateness and proportionality. There is nothing in the DBS’s findings about risk which is unlawful, and clear reasons were given by the DBS for its findings. c. Ground 4 is rejected. The decision was proportionate. Given the finding that GE had non-consensual sex with his wife, it is not arguable that it is disproportionate to bar him from working with vulnerable adults. GE accepted as much at the hearing. d. Ground 5 is rejected. The DBS’s choice of language in some documents is unfortunate and may have given the impression that GE’s account would be rejected unless he could provide some corroborative evidence. However, looking at the DBS’s material as a whole, it is clear that the DBS did not reverse the burden of proof. Conclusion

47. There was no mistake of fact or law in the Disclosure and Barring Service’s decision, and the appeal is therefore dismissed. Kate Brunner KC Judge of the Upper Tribunal Suzanna Jacoby Josephine Heggie Specialist Tribunal Members Authorised by the Judge for issue on 4 October 2025