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England and Wales Care Standards Tribunal
You are here: BAILII >> Databases >> England and Wales Care Standards Tribunal >> Mogford v Secretary of State for Education and Skills [2002] EWCST 11(PC) (26 June 2002)
URL: http://www.bailii.org/ew/cases/EWCST/2002/11(PC).html
Cite as: [2002] EWCST 11(PC)
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Mogford v Secretary of State for Education and Skills [2002] EWCST 11(PC) (26 June 2002)
Andrew Charles Mogford v Secretary of State for
Education and Skills
2002. 11. PC
His Honour Judge David Pearl (President)
Miss Margaret Diamond
Miss Judith Wade
DECISION
Background
1. Mr M appeals against the Secretary of State for Education and Skill’s decision to include his name in the list maintained under the provisions of the Education (Restriction of Employment) Regulations 2000 that bar him from "relevant employment as a teacher or as a worker with children or young persons". The decision letter is dated 13th December 2001 and the ground relied upon is that he is not a fit and proper person to be employed as a teacher or worker with children or young persons (Regulation 5(1)©). The Secretary of State made this decision because indecent child pornographic images, text files, emails relating to this material, and bookmarks with links to child pornographic sites, had been found on Mr M’s computer. Mr M denied that he was responsible for this material.
2. We heard the appeal over three days. Mr Sheldon of Counsel appeared on behalf of the Secretary of State and Mr Tyme, Solicitor, represented the appellant. In his submissions, Mr Tyme on behalf of Mr M submitted that we had two responsibilities. First, to consider the evidence that had been presented to us and form a view on this evidence whether or not Mr M was responsible for the creation of the material on his computer. Secondly, and regardless of our conclusion on this factual issue, Mr Tyme asked us to look at whether Mr M constituted a potential risk to children. In this context, he referred us to the Guidance for Education Staff (November 2001) and the examples of the behaviour most likely to lead to barring set out in paragraph 22 of that document. He submitted that even if we were to conclude on the facts that Mr M was responsible for the material on his computer, the conduct in this case did not fall within these examples and that there was no potential risk to the safety of any children. He drew our attention to the character witnesses that had given evidence on behalf of Mr M and to the witness statements that had been submitted on his behalf. All this evidence was supportive of Mr M.
3. Mr Sheldon on behalf of the Secretary of State did not challenge the fact that there had been no inappropriate behaviour with any child in his care or indeed that there was a risk of such behaviour involving a child in his care in the future. However he drew our attention to paragraph 25 of the Guidance for Education Staff, and in particular to the fact that certain behaviour may present an unacceptable example, and that it was necessary to uphold the high standards of behaviour expected of members of the teaching profession.
4. We are of the opinion that Mr Sheldon is correct in his submissions. Mr M himself, whilst denying that he was responsible for the material on his computer, accepted categorically in his evidence before us that anyone who did download such material should not be allowed to teach. One of his character witnesses, Mrs R, the Headteacher of B School, made a similar point when she said that if the matters were found to be true she would not employ Mr M. It is our decision in this case that if we are to find as a matter of fact that Mr M was responsible for the material on his computer, it would inevitably follow that he is not a fit and proper person to be employed as a teacher or worker with children or young persons.
5. The burden of proof rests on the Secretary of State and he has to satisfy us on a balance of probability that Mr M was responsible for accessing the child pornography, both the websites and the texts, repeatedly. Mr Sheldon did not rule out the possibility that Mr M was not acting alone, but he submitted that the overwhelming weight of the evidence points to only one conclusion. Mr M denied that he had accessed child pornography repeatedly. Mr M admitted that he had looked at child pornography on two occasions; once accidentally when he had found himself on the site from a link from a heterosexual pornographic site, and once when he showed a friend. Mr Sheldon said that if the Tribunal were to find that this was the sole extent of Mr B’s involvement, then the Secretary of State would not wish to bar him.
6. Mr M was born on 23rd March 1970 and graduated in English and Drama from the University of Plymouth in 1994. In 1995 he moved to Lincolnshire and took up a post at C School. It would seem that he had a circle of friends in and around the town where he was teaching, and he was fully involved in Rotaract and in tennis. He purchased an Apricot computer in July 1996 for his own use. He bought it from Dixons and he states in his witness statement that he bought the computer in order to help him prepare his schoolwork such as reports and work sheets. An external modem was part of the package and he said in evidence that eventually one of his friends, P, helped set it up so that he could access the internet. We accept his evidence that he used the internet to find material relating to music, football and the mass media.
7. He states in his witness statement that three friends, P,V and R, stayed with him on the Saturday evening of 26th April 1997. He said that he left the house at 9.30am on the morning of the Sunday 27th April to play tennis and in the afternoon drove to PC World with his computer to arrange for it to be repaired. In his evidence before us he said that the problem related to the fact that a game he had bought ran in DOS rather than in Windows, and the CD Driver on his computer did not work in DOS. He said that Dixons told him that there was nothing that they could do, and they had suggested he went to PC World.
8. What happened next is graphically described by one of the employees of PC World who prepared a Witness Statement for the Police two days later. "I had a look at the computer to try and find out what was causing it to crash when it was in DOS mode and whilst I was doing this I came across a directory on the computer which displayed photographs of nude boys." The police were called, and Mr M was arrested and interviewed later that evening. He was asked by the police officer how photographs of naked boys got to be on his computer. His reply was as follows:
"To be honest I don’t know. I can’t deny viewing these pictures on the internet because I was doing a general look around the internet on the dark side just to see whether all the stories were true of what existed on the internet."
9. The computer was sent to a forensic scientist, and the hard disc was examined and searched. A number of picture files were found containing images of young boys either entirely or partially unclothed and one text file containing a story describing a sexual act between a male adult and a young boy was also found [Tribunal bundle D127]. The file dates span the period between September 1996 and April 1997.
10. Mr M appeared before the Magistrates’ Court on 14th May 1998 and was convicted of possessing indecent photographs or pseudo-photographs of children pursuant to s160 (1)(3) Criminal Justice Act 1988. He was placed on probation for two years and ordered to pay £500 towards the costs of the prosecution. He appealed both against conviction and sentence and his appeal against conviction was allowed and the conviction quashed by the Crown Court on 28th August 1998. The Judge’s reasons for the decision are "In light of expert evidence adduced by Crown as to possible knowledge of appellant of storage of pictures in question, conviction wholly unsustainable. We could not in evidence we have heard conclude he had requisite knowledge. After expert evidence Crown offered no further evidence and did not seem to resist the appeal without any indication from us."
11. The Department carried out their own enquiries and commissioned their own expert report of the hard disk from a computer expert, Mr T, who on his examination of the disc found significantly more material. His report to the Department is dated 3rd November 2000 [tribunal Bundle D243]. The Teacher Misconduct team wrote to Mr M on 15th December 2000 seeking his explanation of the matter and enclosing a copy of Mr T’s report. Russell Jones and Walker, his then solicitors, replied on his behalf on 12th April 2001 [Tribunal Bundle E2-9].
12. He attended a medical examination by a psychiatrist on 11th April 2001. The conclusion of the psychiatrist was "it will of course be for the Department of Education to weigh up the conflicting interpretations of the computer evidence, and I cannot…assist on this."
13. The Teacher Misconduct Team interviewed him on 5th September 2001. Mrs Elizabeth Anne Hunter, the Casework manager, was present at the interview on that day and she gave evidence before us. In her witness statement, she says: "In my view it is clear from the note that Mr M was not a credible witness as he could not provide a convincing argument as to how indecent material came to be found on his PC. Further he showed no anger at the fact that the material had been found there and no intention to discover who had used his PC to access the material, the presence of which could result in him losing his entire career. The only explanations Mr M ventured were complicated technical explanations, which did not satisfy me or the DfES technical advisor, Huw Evans, who was present at the interview. Mr M admitted that he lived on his own but that friends had access to the PC. He would not accept that any of those friends would have accessed indecent material on his PC and refused to consider or investigate the possibility."
14. The letter informing Mr M that the Secretary of State had decided to bar him is dated 13th December 2001. The thrust of Mr M’s ground of appeal is that he is not responsible for the material arriving on the computer. The material that the Department said was on his computer and which we have had regard to is the 11 images that were the subject of the prosecution, and the additional 29 items found by Mr T that were not the subject of the prosecution. These are 3 cached images, 16 cached texts, 4 cached web links, 2 intact saved texts and 4 saved texts that had been deleted. The text files contain descriptions of explicit sexual activity involving young boys or adults and boys. Mr T also found e-mails and bookmarks. He found four different book mark files which he found unusual in itself, and one of these bookmark files "Usual.htm" contained folders relating to child pornographic sites. These sites were last visited on 27th April 1997. Mr T was able to tell us that the last use by a user of the computer was at 13.59 on 27th April 1997.
15. Mr H, a friend of Mr M over many years, was called as an expert by Mr M. There is really little disagreement by the two experts of the technical material that is before us. The difference is really over the interpretation. Mr H submitted that the evidence was consistent with someone trying to hide the fact that he was browsing Mr M’s computer for child pornography, and that Mr M used the bookmark file "Safe" whereas the pornographic sites were on the hidden bookmark "Usual". He said that Mr M was a novice user at the time, and the change of the extensions on the file was beyond his then technical ability and knowledge. He said that he understood that the default bookmark had been changed from "Usual" to "Safe". The mystery is that when the computer was taken into PC World, the bookmark that was current was "Usual". This suggests that the computer had been used the night before and that the user had been in "Usual". The file system activity produced by Mr T confirms this. An email was received at 22.25 on 25.04 (the Friday) and an email sent at 22.27 that night. Mr M said that he did not send emails that night. There was then browsing on the internet between 22.28 and 22.52. He said that he did not browse on the internet that night. On the Saturday night, Acrobat and Screamer were both installed. Mr M said that he did not install Screamer, and then from 23.36 the computer was used to access a whole series of pornographic child websites, through to 0.27 on the Sunday morning, which was the last, internet access. We accept the evidence of the experts, which says that the file system activity then shows that the systems that were open closed down. After the "Usual" bookmark, the very next closure was a spreadsheet that contained private lesson earnings that had been created by Mr M.
16. The Secretary of State points to the appearance of the spreadsheet as a clear piece of evidence that establishes that Mr M must have been the one using the computer that evening. None of his friends would have been interested in his spreadsheet. On the other hand, Mr M suggested that the spreadsheet could have been open from a previous session, and saved as part of the closing down process.
17. What happened that weekend on the Saturday night was the subject of intense cross-examination of Mr M by Mr Sheldon. Mr M said that he went to the pub with his female friend V, leaving P and R in the house. On their return around 20.00, they all watched a film, and then he went to bed because he said that he was playing tennis in the morning. He said that he never used the computer that night.
18. We have looked very carefully at the other dates when the unacceptable material was placed on the website, in particular when emails were sent to pornographic sites using the name "Saturnius" seeking packs of photographs. Mr M said that all of these dates were consistent with him being out of the house playing tennis or going to Rotaract meetings. Mr M was asked several times by Mr Sheldon who had accessed this material and sent the emails if it wasn’t him. Eventually, he said that although he wasn’t 100% certain, he thought that it was likely to be P. Mr Sheldon said that if it were P then he was taking an incredible risk, especially asking for material to be sent back to Mr M’s computer.
Our Decision and Reasons.
19. We have examined all the evidence that has been presented to us, both documentary evidence and oral evidence given at the hearing. We discount the observation by Mrs Hunter that Mr M showed little anger at his interview. It seems to us that demeanour can often be misleading, and that it is no substitute to a careful analysis of the facts.
20. In looking at the facts, we conclude that the Secretary of State has been able to satisfy us on a balance of probability that Mr M either was solely responsible for the material or that he participated with others in obtaining this material and knew that it was on his machine. We have reached this conclusion for the following reasons.
21. First, and of considerable importance to us, is the fact that Mr M has frequently changed his story. Perhaps most telling is the fact that whereas he told the interview team that he was visiting his girlfriend on the weekend 25-27 April, he now tells us that P, V, and R were staying at his house that weekend. Whilst we appreciate that these events were a long time ago, the weekend in question must have been such an important one for him that he would surely have been able to recollect from the interview what he had been doing that weekend. Another inconsistency relates to exactly who set up the internet on his computer. He said in the interview that RS had helped set up his internet link. RS in evidence to us told us that that was not correct and that he did not help Mr M set up the internet access. Mr M told us in his evidence that P set up the internet for him.
22. Linked to this is the point that only at the very last moment in the hearing, and after observations from us, did Mr M name P as the person probably responsible. We are puzzled as to why no real attempt has been made to find P, or indeed either of the other friends, R or V whom he says were with him that weekend. They were members of Rotaract and we were told that P was President at the time. Mr M told us that he could not see anyone admitting to the computer activity now, and that in any event going back to the town where he lived frightens him and he would feel at personal risk if he went back. On the other hand, he has friends who have clearly stood by him, and indeed Mr H and Mr RS gave evidence on his behalf. We must apply common sense in this matter and it would in our view be consistent with Mr M’s version of events for steps to have been taken by him and by his friends to find at least R and V so as to corroborate his story. This he has not done, and that is in our view consistent with the fact that his version of events is not credible. We are entitled to draw inferences from the evidence presented to us, and there is simply no satisfactory explanation as to why P only emerges on the third day of the hearing as the person most likely to be responsible, during cross examination, and after an intervention by the Tribunal. In addition to this, we were told that P had his own computer and there appeared to be no explanation at all as to why P should use Mr M’s computer to view child pornography, when he could just as easily have done this on his own computer.
23. We have given particular attention to the email material. Mr M said he did not send the one sent to bigprofit@savetrees.com [C25] on 25th April 1997. This was posted on the Friday evening, and in his evidence to us Mr M said that the friends stayed with him over the Saturday night but only when confronted with the bigprofit email did he say that they might have been with him on the Friday as well.
24. The only email he told us he was responsible for was the one sent to pipex at 13.27 on Saturday September 14th. In this email he asks pipex to delete two messages. He tells them not to read his messages. He denied that he was "Saturnius" and in particular he denied using this name to ask feldon@neosoft.com to send him a picture pack marked Des [B412-415]. We have formed the view that Mr M’s explanation is simply not credible. If, as he suggests, someone else (maybe P) was seeking this material it would have been too much of a risk to have the material sent to Mr M’s email address. A message comes from feldon on March 21st 1997 telling him about a CDRom containing nude and clothed pictures of males and nude pictures of females. He said that he did not ask for this email. Again, we find it totally incredible that if he was entirely innocent, on receipt of an unsolicited email of this kind, and knowing others use his machine he did not challenge any of his friends as to why such a message should suddenly appear on his emails.
25. It is his evidence that the material presents itself on the computer at times when he is playing tennis or at Rotaract meetings. He says that he is at Rotaract every other Monday. Yet P was President of Rotaract and it would be likely that P also would have been at Rotaract on those occasions. The timing of the file system activity is important, and we have carefully examined the evidence presented by Mr T. As to the weekend 25-27 April, we do think that it is relevant evidence that his spreadsheet is closed down at 0.28 on 27.4.97. We find it incredible to be told by Mr M that he had opened his spreadsheet at some other time and failed to close it down. It is our interpretation of the evidence that Mr M must have been using the computer at this time, either alone or with someone else, surfing the net and finding child pornography sites and text messages, and therefore when closing down the computer his spreadsheet would have been closed. The spreadsheet would have been of no interest to his friends, and he himself said in evidence that it was unlikely that he would have opened the spreadsheet and left it for a couple of days. We can only infer that he was working on the spreadsheet earlier that evening or the previous day.
26. We have looked carefully at the evidence of Mr H who suggested to us that from his knowledge of Mr M, he did not have sufficient knowledge to create the additional bookmarks. There is also the suggestion that if Mr M had had sufficient knowledge of computers at that time, then he would have ensured that the "Safe" bookmark was the bookmark that was opened when he took the computer into PC World. Mr T cast a different interpretation on the computer evidence as to the state of knowledge of the user, and thought it consistent with an average user that separate bookmarks could be created. It is wrong of us to speculate as to the reason why "Usual" appeared when he went into PC World. He may have simply forgotten to change the bookmark file; he may have thought that as the problem was the DOS, PC World would have no reason to look at his bookmarks. Both explanations are consistent with the facts. We do not consider that Mr H’s evidence (and indeed RS’s evidence that was of a similar character) of the standard of Mr M’s knowledge at that time, can be sustained when weighed against the overwhelming evidence that we have set out above that goes against Mr M’s explanation.
27. We wish to make it clear that we are not branding Mr M a paedophile. We do not consider him to be a risk to children. What we do say is that on the evidence we are satisfied that the Secretary of State has discharged the burden on him on a balance of probability that Mr M was responsible for the child pornography that was on his computer. That is the extent of our decision. But for the reasons set out in paragraphs 2-4 of our decision, our finding is all that is required for us to agree with the Secretary of State that Mr M is not a fit and proper person to be employed as a teacher or worker with children and young persons. .
28. Our decision is unanimous.
Accordingly we dismiss the appeal.
His Honour Judge David Pearl (President)
Miss Margaret Diamond
Miss Judith Wade
Dated: 26 June 2002