England and Wales Care Standards Tribunal

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Cite as: [2002] EWCST 10(PC)

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Hudson v Secretary of State for Education and Skills [2002] EWCST 10(PC) (15 August 2002 )

Appeal No: 2002.10
Appeal By: Keith Stuart Hudson
Respondent: Secretary of State for Education and Skills
Hearing Date: 1^st July 2002

Mr Laurence Bennett (Chairman)
Ms Michele Alfred
Ms Christa Wiggin

DECISION

Appeal

Mr Hudson appeals under Regulation 13(1)(a) of the Education (Restriction of Employment) Regulations 2000 against a direction by the Secretary of State for Education and Employment dated 24th August 2001 prohibiting or restricting his relevant employment.

Preliminary application and order

Mr Hudson applied under Regulations 18(1) and 19(1) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002:

a. A restricted reporting order

b. An order that the Press and members of the public be excluded from the hearing.

Mr Hudson stated that the Secretary of State's evidence included a confidential medical report and that an application to the Criminal Cases Review Board may be prejudiced by publicity given to his appeal.

Mr Martin Chamberlain, Counsel for the Secretary of State made no objection to the applications.

We noted that the Secretary of State's documentary submissions included medical evidence which would normally be confidential to the patient, Mr Hudson. We accepted it would be inappropriate for this confidentiality to be compromised any more than necessary for the purpose of the proceedings and concluded that there should be an order restricting reporting until the close of the hearing and that the press and public be excluded. We further concluded that the restricted reporting order should continue thereafter in relation to the medical information. We did not accept that reports of this appeal could improperly affect the outcome of an application to the Criminal Cases Review Board and that there was a basis for a wider order.

The Tribunal's order is that:

a. The Press and public are excluded from the hearing.

b. Reporting of the contents of the proceedings is prohibited until the close of the hearing and thereafter in respect of medical information given in the appeal identifying or relating to Mr Hudson.

Facts

1. Mr Hudson qualified as a teacher in 1973 and taught Science and IT in various schools until May 1996. He is now a self-employed private tutor.
2. In February 1996 Mr Hudson was arrested and interviewed in connection with offences relating to magazines and other materials found in his possession. He was convicted of five offences under Section 42 of the Customs Consolidated Act 1867 relating to the import of magazines of an indecent and obscene nature He was fined £150 on each conviction and ordered to pay costs totalling £1,000.
3. On 24^th August 2001 the Secretary of State made a direction under Regulation 5(2)(b) of the Education (Restriction of Employment) Regulations 2000 (SI 2000/2419). Mr Hudson was notified that "the Secretary of State has made a direction which proves that you may only be appointed or employed:-

a. by a local education authority, as a teacher (whether or not at a school or further education institution) with children and young persons, in an establishment which does not admit male pupils;

b. by any other body, as a teacher at a school or further education institution, which does not admit male pupils;

c. by the governing body of a school or a further education institution which does not admit male pupils, as a teacher or as a worker with children or young persons;

d. by the proprietor of an independent school or at an independent school which does not admit male pupils, as a teacher or as a worker with children or young persons.

The effect of this direction is that you may not be appointed or employed:

a. by a local education authority, as a teacher (whether or not at a school or further education institution) with children and young persons, in an establishment which admits male pupils;

b. by any other body, as a teacher at a school or further education institution, which admits male pupils;

c. by the governing body of a school or a further education institution which admits male pupils, as a teacher or as a worker with children or young persons;

d. by the proprietor of an independent school or at an independent school which admits male pupils, as a teacher or as a worker with children or young persons.

The expression 'worker with children or young persons' means a person, other than a teacher, whose work involves regular contact with persons under 19 years of age.

Your name, Departmental reference number and date of birth will be included in the list of persons, determined by the Secretary of State to be unsuitable for relevant employment (List 99). Local Education Authorities and other bodies concerned with the employment of teachers or childcare workers can make checks to find out whether a person applying to work with children is on the List."

4. On 21^st November 2001, Mr Hudson gave Notice of Appeal to the Tribunal. His grounds of appeal refer to his enquiries of the Department of Education and Skills (DfES) asking for details of their specific concerns. He stated that "My interest in the physical development of children is purely academic and has never involved any risk to children." He made comment on an interview with the DfES in the presence of Dr Diane Ernaelsteen, who was at the time Consultant Medical Advisor to the DfES. He stated that relevant weight has not been given to his good teaching record and to letters, testimonials and references from parents appreciating work he has done with their children. He also stated that Dr Ernaelsteen and Ms Elizabeth Anne Hunter, a Casework Manager with the DfES Teachers Misconduct Team should have visited him at work and home so that they would gain a "realistic and positive picture of the way that I work with children and thus be able to appreciate that I do not pose any kind of risk to children." He suggested that account should be taken of expert evidence of the specialist officers of Sussex Police, particularly D I West who have visited home and work.
5. Ms Hunter explained to the Tribunal how the decision to impose restrictions on Mr Hudson's employment had been made. She said that it was considered that his conviction was relevant misconduct. In the case of misconduct involving indecent material teachers are usually prohibited from employment at schools. The Secretary of State seeks to ascertain whether there is a reasonable mitigating factor for the misconduct and for some reassurance that the conduct will not recur. The Secretary of State requires evidence that the risks have been assessed and understood by the individual and appropriate steps taken by him.
6. Ms Hunter stated that the magazines were collections of photographs of children, mainly of boys aged seven to eighteen. Although she has not seen the material, the information she has is that it included pictures of young boys and teenagers actually or simulating masturbation. A transcript of a tape-recorded interview concluded on 1^st April 1996 at Hailsham Police Station indicates that in addition to the magazines, photographs had been compiled into albums by Mr Hudson including some of boys "pretending to masturbate."
7. Ms Hunter stated that research indicates that there is a link between possession and viewing of obscene and indecent material and touching and ultimately offending behaviour. She said that some people go on to offend and some do not, but it is difficult to know in any certain way the risk posed to others by a particular individual.
8. Ms Hunter stated that it was difficult to measure the level of risk posed by Mr Hudson but as any risk to children is unacceptable, a recommendation was made to the Secretary of State to make a direction which took into account that the material concentrated on young males. If Mr Hudson had accepted the implications of his conviction and had taken steps to manage the risk in a way acceptable to the Secretary of State then the Secretary of State would have reconsidered the restrictions on his employment.
9. Ms Hunter drew attention to a psychiatric report by Dr Janet M Parrott, Consultant Forensic Psychiatrist, Bexley Hospital and two reports by Dr Ernaelsteen. She said that the reports emphasised Mr Hudson did not appreciate the seriousness of his conviction and nor did he accept the inappropriateness of the material. The reports stated that this material was pornographic and indicated paedophile interest.
10. Dr Parrott interviewed Mr Hudson on 26^th February 2000. She also read extracts from Customs and Excise interviews and a report from a Probation Officer. Her report stated that "Mr Hudson spent a considerable period of time discussing the formal wording of his convictions. He did this in a manner that suggested there was a misunderstanding of the nature of the material seized by both the authorities involved in bringing the charges and by myself. Perusal of the list of material and the titles of videos suggest that this was not the case and the facts are that Mr Hudson has been convicted on the basis that these were prohibited. My impression was that Mr Hudson was dismissive of the supposition that someone in possession of such material is more likely than not to be sexually attracted to children. He describes this material as naturist and when challenged with regard to a specific item with overt sexual content he minimised its significance. Similarly the issue of responsibility was heavily coloured by the notion that he was not aware that the material was prohibited. It is difficult to comment in relation to risk given this limited framework but such minimisation and denial can increase risk in that it allows a person to avoid considering means of risk management. On the basis that possession of this material is questionable with regard to possible longstanding paedophile interests Mr Hudson does not offer any explanation that would address the concerns of the DfEE in this respect."
11. Dr Ernaelsteen and Ms Hunter jointly conducted an interview with Mr Hudson in the presence of his ATL representative on 10^th April 2001. Dr Ernaelsteen said that the interview incorporated a medical assessment. The interview touched upon his teaching career, his interest in naturism, memories of childhood and family, understanding of unacceptable behaviour and circumscribed interests. She reported that "Mr Hudson is sexually attracted to young boys and that he has satisfied his interest through his activities with naturism and the photographic and other material he held and which was deemed pornographic by the courts. I conclude that this interest is homosexual, paedophilic and inappropriate ……… I conclude that Mr Hudson's circumscribed interests and his voyeuristic interest in naked boys and young males, which must reasonably and inevitably be concluded to have a strong sexual component, are engrained and unchanging. The risk of breakthrough or sexualised behaviour with real boys must be considered to remain a future possibility but potentially low risk. The evidence suggests that Mr Hudson has no interest in girls. I conclude that it would be reasonable for the Minister therefore to determine that Mr Hudson should be excluded from teaching in any school with male pupils and from any boarding establishments with male pupils." She also concluded that "Mr Hudson is less likely to break through into any intimate or actual indecent touching, except in situations which allow for such closeness and intimacies, when temptations may present themselves. I do not consider Mr Hudson to be predatory. Nor do I consider that he is likely to exhibit grooming behaviour."
12. Dr Ernaelsteen, who Mr Chamberlain advised is a Paediatric Psychiatrist told the Tribunal that although there is no record of improper behaviour with a pupil, she felt that in certain conditions there is a risk this might occur, this risk cannot be managed. Dr Ernaelsteen has not seen Mr Hudson since the interview, the sole occasion they met. She gave her opinion that it is reasonable he continues as a private tutor.
13. DC Graham Oliver, Weald Child Protection with Sussex Police stated in a letter dated 10^th May 2001 that "Mr HUDSON is on the Sex Offenders Register until February 2003 and although he is visited at home from time to time by the Police in order to monitor any change of circumstances, he has never been part of any Sex Offenders Programme………..Having reviewed the file on Mr HUDSON, I have seen some correspondence relating to his objection to being included on the Sex Offenders Register and also with regards to references being supplied by the Police in favour of Mr HUDSON. The Police have never agreed to supply any such references and have always refused when asked."
14. Mr Chamberlain on behalf of the Secretary of State made submissions as to the weight to be given by the Tribunal to Mr Hudson's conviction for an offence involving the possession of material of a nature which indicated risk to children. The material included photographs of young boys masturbating. It is a matter of concern that Mr Hudson cannot accept that this raises questions and indicates a sexual interest in children, in particular boys. In the absence of other mitigating factors, the Secretary of State has imposed the least onerous restrictions available to her.
15. Mr Hudson stated to the Tribunal that he does not accept the Secretary of State's conclusion as to risk. He does not consider that the material which led to his conviction is obscene. The material was legitimately available in Germany and in his view contained pictures of general naturist interest. He commented that the Authorities had seemingly disregarded material that was not pictures of boys and young males.
16. Mr Hudson said that he is an active naturist. He attends naturist events, such as weekends and holidays and sporting activities, such as swimming in local centres. The events usually involve families and allow opportunities to enjoy a common interest. He has as a result made naturist friends.
17. Mr Hudson said that his private tuition business is expanding. He said that no concerns have been expressed relating to it and that to his mind the risks to pupils might be considered greater. In schools other staff are present especially in Science lessons, doors and windows could be left open and it is unlikely that a teacher would be left alone with a pupil. He stressed that the Police have not made an objection to his current business albeit they have not provided a reference. He recognised that other people may perceive a risk and he now leaves the door open when teaching children. Mr Hudson emphasised Dr Ernaelsteen's view that the risk of a "break through" is very small.
18. Mr Hudson said that he had good relationships with pupils at his schools. He was seen by them as a person to whom they could take their problems and who could be trusted. He considers that he is compassionate and sensitive to his pupils and does not feel that he requires strategies to manage his behaviours. He referred to the letters of support he had submitted relating to his activities as a tutor. He suggested that Dr Ernaelsteen formed a view based on the conviction and not on any systematic or medically valid examination.

Tribunal's Conclusions with Reasons

i. We have carefully considered the written evidence and submissions presented to the Tribunal prior to the hearing and the oral evidence and submissions given at the hearing.

ii. Regulation 14 of the Education (Restriction of Employment) Regulations 2000 states that "Where ….. the Tribunal considers that the direction is not appropriate it may order the Secretary of State to revoke or vary the direction."

iii. The burden of proof lies upon the Secretary of State. We must be satisfied in Mr Hudson's case that on a balance of probabilities, the direction on the grounds of misconduct is appropriate.

iv. Regulation 13(3) of the Education (Restriction of Employment) Regulations 2000 states that "Where a person has been convicted of any offence involving misconduct, no finding of fact on which the conviction must be taken to have been based shall be challenged on an appeal under these Regulations."

Our conclusions are:

a. We note that the Secretary of State's recommendations follow an investigation by the DfES Misconduct Team arising from a conviction in the Criminal Courts for an offence involving indecent material. We accept from the evidence provided on behalf of the Secretary of State including transcripts of Customs and Excise interviews that this material includes pictures of boys and young males, some of whom were masturbating or simulating masturbation. Mr Hudson's view is that the material is consistent with his naturist interest and not indicative of any inappropriate sexual activity.

b. From the description of the material and the fact that it has been found obscene by the Criminal Courts, we accept that it indicates an interest in young males which is inappropriate. Whilst it may be that Mr Hudson does not see why this is the case, we consider that possession of the material indicates that he is attracted to this area of activity.

c. We have taken careful account of Ms Hunter, Dr Parrott's and Dr Ernaelsteen's views as to the level of risk which this interest might pose. The question they appear to have asked is whether there might be a "break through" into actual activity with a pupil, such as touching. Their evidence suggests that the risk is small but real, not least because Mr Hudson does not appear to recognise the bounds of acceptable behaviour. This is illustrated by his continuing failure to comprehend objections to the nature of the material he imported. We find their views are supported by the facts and are consistent with the research mentioned by Ms Hunter. We conclude from that evidence that there is a risk of offending behaviour, albeit, low.

d. It is apparent from the evidence given by Mr Hudson in the proceedings, his response to questions and his demeanour that he did not appreciate concerns expressed. If he did, he did not address them. Whether or not Dr Ernaelsteen's diagnosis is accurate, we heard from Mr Hudson that he does not accept that the material found in his possession is indecent or that it points to sexual interest. This is contrary to the facts of the conviction and the assessment of the risks he poses. We conclude that it is appropriate for the Secretary of State to consider a direction on the grounds of Mr Hudson's misconduct notwithstanding any medical condition he may have.

e. Mr Hudson is a qualified teacher, it is appropriate that he be allowed to continue teaching in a way in which identified risks are not taken. He clearly has teaching skills to offer. This is evident from the success of his private tutoring business. Ms Hunter's stated view is that any significant level of risk to pupils arising from the employment of teachers by schools is unacceptable. She explained that as the material involved boys, the Secretary of State's restrictions upon Mr Hudson are limited to working with boys in a school setting. We agree, we do not see how the restrictions could be more precise or closely defined. We conclude that more limited restrictions would not suffice and that the Secretary of State's direction is appropriate.

f. In summary we have concluded that:

i. Mr Hudson has a conviction involving indecent material.

ii. This material contains photographs of naked boys and young males, some of whom are in sexually active poses.

iii. The conviction is evidence of misconduct and gives rise to a power to restrict Mr Hudson's employment.

iv Mr Hudson's behaviour indicates a risk that he may participate in inappropriate physical activity.

v. Although the risk is low, it exists and must be taken into account.

vi. There should be restrictions upon Mr Hudson's employment as a teacher.

vii. These restrictions should relate to Mr Hudson's employment in institutions which admit male pupils.

viii. Mr Hudson's name should be included in the list maintained by the Secretary of State (List 99) setting out such restrictions.

We conclude that the Secretary of State's direction dated 24^th August 2001 is appropriate. The decision is the unanimous decision of the Tribunal.

Laurence Bennett (Chairman)
Michele Alfred
Christa Wiggin

Order

Mr Hudson's appeal is dismissed.

Date: August 2002

Signed: Chairman: L J Bennett