BAILII
British and Irish Legal Information Institute


Freely Available British and Irish Public Legal Information

[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales Care Standards Tribunal

You are here: BAILII >> Databases >> England and Wales Care Standards Tribunal >> Cunningham v Secretary of State for Health [2002] EWCST 2(PC) (12 August 2002)
URL: http://www.bailii.org/ew/cases/EWCST/2002/2(PC).html
Cite as: [2002] EWCST 2(PC)
[New search] [Help]

Cunningham v Secretary of State for Health [2002] EWCST 2(PC) (12 August 2002)

John Ernest Cunningham v The Secretary of State for Health
2002.2.PC
Hearing dates: 23rd and 24th July 2002

His Honour Judge David Pearl (President)
Mr David Allman
Mr Ronald Radley

DECISION

1. John Ernest Cunningham appeals under s 4 of the Protection of Children Act 1999 against the decision of the Secretary of State for Health to include him in the list kept by the Secretary of State of persons considered unsuitable to work with children pursuant to s 1 PCA 1999

2. It is common ground that Mr Cunningham's name was included in the s 1 list by way of a transfer from the Consultancy Service Index. (s 3 PCA 1999). By letter dated 10th March 2000, Mr Cunningham was informed of his temporary inclusion on the Consultancy Index. He was informed by letter dated 29th September 2000 that his name was to be retained on the Consultancy Index and by a letter dated 4th January 2001, he was informed that his name was included on the s 1 PCA 1999 list.

3. It is also common ground that Mr Cunningham was named in the Report of the Tribunal of Inquiry into the abuse of children in care in the former county council areas of Gwynedd and Clwyd since 1994: Lost in Care; Chairman (Sir Ronald Waterhouse) HC 201 (the Waterhouse Report). The Report was ordered to be printed on the 15th February 2000. In Mr Cunningham's notice of appeal it is said that the Respondent's policy was to add to its Consultancy Service Index the names of all those persons who, in its opinion, had been named in the Waterhouse Report as having been found to have harmed children or be unsuitable to work with children. This would appear to have been the policy. (See "Learning the Lessons. The Government's response to Lost in Care" Cm 4776 at p 10). Transfer to the s 1 list followed on from a review of the position of each individual by virtue of s 3 of the PCA 1999 as amended by s 99 of the Care Standards Act 2000.

4. In the appeal before us, Mr Philip Coppel of Counsel represented the Secretary of State and Miss Sandhya Drew of Counsel represented the appellant. Our powers are as set out in s 4(3) PCA 1999. This states:
If on an appeal or determination under this section the Tribunal is not satisfied of either of the following, namely -
(a) that the individual was guilty of misconduct (whether or not in the course of his duties) which harmed a child or placed a child at risk of harm; and
(b) that the individual is unsuitable to work with children,
the Tribunal shall allow the appeal or determine the issue in the individual's favour and (in either case) direct his removal from the list; otherwise it shall dismiss the appeal or direct the individual's inclusion in the list.

5. The Tribunal has considered in other cases its powers as set out in s 4(3) in the context of a case where ss 3(3)-(7) PCA 1999 have been applied because the appellant has been named in a Tribunal of Inquiry. (See Barnes 0070 and Glover 0077). Mr Coppel urged us to adopt the approach taken by the Tribunal in Barnes, and reaffirmed, by a differently constituted Tribunal, in Glover. This approach is set out in paragraphs 12-15 of the Barnes decision, that we reproduce below.

"12. Miss Marshall [Counsel for Mr Barnes] does not seek to appeal against the findings of the Inquiry, and she must be correct in this approach. It would be wrong of this Tribunal to enter into any analysis of the procedures adopted by this Inquiry, or indeed any other Inquiry defined by s 2B of the 1999 Act. That is not our function. Rather our function is limited to s 4(3) of the 1999 Act. We agree with Mr Palmer [Counsel for the Secretary of State] when he submits that the Tribunal must give very substantial weight to findings of the Waterhouse Inquiry. However, we are also of the view that it is incumbent on us to look closely at the evidence that was before the Waterhouse Inquiry (as available to us in the transcripts of the Inquiry) and compare what was available to that Inquiry with what has been made available to us. Thus, our approach, although fairly close to that suggested to us by Mr Palmer and set out in paragraph 9 above, departs from it in a number of respects.

13. Evidence that was not before the Waterhouse Inquiry but has been placed before us must be analysed by us in the same manner as we would analyse any evidence. We do not believe that the right approach is simply to "set [this new evidence] in the balance against the very substantial weight of the Inquiry report." Rather, as "new" evidence we must give it close attention. It may support the Waterhouse findings; it may undermine the findings; it may be neutral. The fact that the "new" evidence could have been raised before Waterhouse but was not is a matter that may be of relevance, depending on the reason why it was not raised.

14. We must emphasise here that we are dealing specifically in the previous paragraph with "new" evidence. If it is simply "old" evidence, in the sense that the very same evidence was before Waterhouse, then attempts to persuade us to give greater weight to that evidence than Waterhouse did, or to ignore that evidence, would be tantamount to asking the Tribunal to act as a court of appeal. This, the Tribunal will not do.

15.It is the duty of the Tribunal therefore to analyse in detail the findings of the Waterhouse Inquiry as they relate to Mr Barnes, and to examine the evidence on which those findings were made. We must then look at the "new" evidence that is before us. We must bear in mind always that the Secretary of State has the burden of proof, and he discharges this burden if he satisfies us on a balance of probability both as to s 4(3)(a) and s 4(3)(b) of the 1999 Act."

6. It is this approach that we adopt in this case. This approach in no way undermines Miss Drew's submission that it was never part of the Waterhouse Tribunal's responsibility to adjudicate on individual complaints and that s 4(3) PCA 1999 imposes upon us a requirement to conduct a full merits review. We accept her submissions in this regard. We also accept her submission that we must conduct this hearing in accordance with Article 6 of the ECHR as brought into direct application in English law by virtue of the Human Rights Act 1998. We believe that the approach set out in paragraphs 12-15 of the Barnes decision and followed in Glover complies with our responsibility both under s 4(3) PCA 1999 and the Human Rights Act 1998.

7. We were addressed by Mr Coppel on another aspect of the interrelationship between s4(3) PCA 1999 and the Human Rights Act 1998, namely whether a balancing exercise of proportionality is an exercise that is excluded from our consideration. We address this aspect of the submissions at the conclusion of this decision.

Application to exclude evidence under Regulation 14(3)

8. At the outset of the hearing, Miss Drew submitted that we should exclude certain evidence from our consideration of the appeal under Regulation 14(3) of the 2002 Regulations. This allows the Tribunal to direct that a document or the evidence of any witness other than the applicant be excluded from consideration because (a) it would be unfair in all the circumstances to consider it. Miss Drew invited us to exclude witness statements and other material. In particular, Miss Drew emphasised that the witness statements of Kevin Maher should be excluded because it would have been perfectly possible for the Secretary of State to have called Mr Maher to give evidence and therefore allow the evidence to be tested by cross examination. The Secretary of State did not propose to call Mr Maher or any other witness, and in consequence the appellant was denied the opportunity of testing his evidence.

9. We understand that the reason why the Secretary of State has decided in this and other similar cases not to call witnesses was because of a policy decision taken not to subject them to further distress. Mr Coppel drew our attention to paragraph 55.01 of the Waterhouse Report. It says there that the Tribunal "are very conscious of the burden that giving evidence, in whichever form, imposed upon these witnesses; and that the burden was generally most obvious when some of them were subjected to necessarily severe cross-examination by Counsel for those against whom they made specific allegations."

10. We decided not to exercise our power under Regulation 14(3) and exclude the witness statements and other documentary evidence. It is our view that these are matters that go to weight, and that if we were to exclude the evidence we would be failing in our function of carrying out a full merits review.

Failure of witness to give evidence

11. Necessarily, however, the absence of a witness giving evidence before us will inevitably mean that we will have to assess credibility without the benefit of hearing a witness at first hand. We made this point in the case of C (Fam Law 2002 p.515). On appeal, and when dismissing the appeal, Scott Baker J in Secretary of State for Health v C [2002] EWHC 1381 (Admin) said: "I can see great difficulty may be encountered in establishing the truth to the satisfaction of the tribunal where the complainant does not attend to have her evidence tested. Whether of course the allegations can be established without attendance will depend on the particular circumstances of the case."

12. This case is of course different in that we do have the transcript of the evidence given by Mr Maher to the Waterhouse Inquiry. However, the failure to call Mr Maher, who says he is a witness to the events, prevents us from forming any firm view as to his credibility. As Miss Drew says, the fact that he and others gave evidence before Waterhouse and the fact that the transcript of his evidence has been made available to us is no substitute to the witness appearing before us in person.

Burden and Standard of Proof

13. It is common ground that the burden of proof is on the Secretary of State to satisfy us as to s 4 (3) PCA 1999. The standard of proof is the balance of probability. Mr Coppel has helpfully set out in his final submissions the appropriate test that we must apply when considering the standard of proof. He submits that there is only one civil standard of proof: the balance of probability. He submits further that the evidence required to satisfy that standard does not become raised according to the "gravity of the allegation." He refers to the two House of Lords cases, Re H [1996] AC 563 at 587 and Secretary of State for the Home Department v Rehman [2001] UKHL 47 at para 55 in support of the proposition that it is right for the tribunal to consider the inherent likelihood of the occurrence of a particular event, and it is that likelihood against which the totality of evidence is to be measured. He submits: "The inherent likelihood of an occurrence may assume particular importance when there is no direct evidence of the occurrence: a judge or tribunal will be justified in being slower to draw from circumstantial evidence an inference as to the occurrence of a fact that is inherently unlikely from one that is not so inherently unlikely." He then goes on to emphasise the importance of the Tribunal being composed of people who because of their training and professional experience are well familiar with the likelihood of there occurring incidents that form the basis of the claim of misconduct and of the reliability of the accounts given of that misconduct. He concludes that it is against the body of experience that they are to judge on the balance of probability the matters before them keeping in mind their inherent likelihood.

14. We have given careful consideration to Mr Coppel's submission, and we have looked also at Scott Baker J's decision in Secretary of State v C where he says at para 15 of the decision "The more serious the allegation, the stronger should be the evidence before the court is satisfied that the event occurred." This approach is rather different to Mr Coppel's submission, and in some cases may make a considerable difference. Our view on this issue can be expressed as follows:

  • We are entitled to draw inferences from the facts presented to us, but we must not speculate;
  • We are entitled, indeed we are obliged, to analyse the facts presented to us in the light of our particular expertise, Parliament having ensured that two of our members being selected from a panel of persons appointed by the Lord Chancellor who are experts in the fields of work that the Tribunal is concerned with. (This is accepted by Scott Baker J at para 50 and also referred to by Buxton LJ and Judge LJ in M (R on the application of) v London Borough of Bromley [2002] EWCA Civ 1113.
  • There are only two standards of proof; the criminal standard and the civil standard. The Tribunal applies the civil standard, namely the balance of probability.
  • When looking at the balance, the Secretary of State will come up to proof and discharge the burden that is on him when and only when the Tribunal forms a view that the Secretary of State's version of events is more likely than not. In some cases, the seriousness of the allegation will make the version of events as described more improbable and therefore more evidence will be required to discharge the burden. In other cases, although a serious incident is alleged, it will be an allegation that the Tribunal's expertise suggests is not so unlikely and therefore the balance of probability will be discharged without much in the way of supporting evidence.

    15. It is therefore against this background that we turn to consider the two allegations against Mr Cunningham that form the basis of the decision to place his name on the s 1 PCA list. We shall deal with each of the two incidents in turn.


The facts

16. Mr Cunningham was born on 23rd March 1946 and between 1962 and 1980 he was employed as a welder or a welder/plater, first at Cammel Laird and Co in Birkenhead and then at BSC at Shotton. In 1981 he changed his work environment dramatically having been made redundant in March 1980 from BSC. In May-July of 1981 he was employed at Glynn Alyn School at Loggerheads and then on September 28th 1981 he began work as a residential child worker at Bersham Hall. He remained at Bersham Hall until 8th June 1983 and on 13th June 1983 he went to Bryn Estyn Home on a series of temporary contracts as a residential child care officer until 31st January 1984. He was re-employed as a night care officer between 22nd March and 30th June 1984.

17. The two incidents that form the basis for the listing took place whilst he was at Bryn Estyn. The first occurred on 23rd October 1983 when he was employed as a temporary residential child care officer, and the second incident was on 30th April 1984 when he was a night care officer.

The first incident

18. The Waterhouse Inquiry (at 10.134) says the following about the first incident:

"The complainant [whom we know to be Simon Birley who is now deceased] and others were taken by Rayfield and Cunningham on a trip to Blackpool, where Birley and another obtained a tin of glue to sniff. They sniffed the glue at the pier and continued to do so when they rejoined the bus. When told by Rayfield to get rid of the tin, Birley said that they would do so in a minute, whereupon Cunningham told Rayfield to pull off the main street and stop the bus in a minor road. Cunningham then went to the back of the bus, opened the door, grabbed Birley by the neck and head butted him in the face, causing his nose to bleed. His fellow glue-sniffer, who admitted being extremely difficult at Bryn Estyn, confirmed this incident in his oral evidence but Cunningham denied assaulting Birley. His account of the matter was that Birley had been kicked out of the minibus by the other boys in order to prevent Cunningham getting at the glue. Rayfield told the police in April/May 1992 that he had no recollection of this incident but he identified an entry in the main school log dated 23rd October 1983 which fixes the date of the incident but does not throw any light on it."

19. The Waterhouse Inquiry concluded at 10.146 that the complaint against Mr Cunningham in relation to this complaint was justified and that his explanation of the incident is unacceptable. It said that he used excessive force against Birley in provocative circumstances.

20. We have read the transcript of the evidence given to the Waterhouse Inquiry by Kevin Maher. He told the Inquiry that he and Simon Birley went glue sniffing underneath the pier at Blackpool and that they returned to the mini van at 10.00pm. He remembered Simon Birley giving Mr Cunningham verbal abuse, and that five minutes into the journey "John Cunningham who was in the passenger seat got out, come round to the back of the van, grabbed Birley by the throat, butted him on the face right on the nose, shoved him back in his seat". In an answer to a question he said that the incident took place inside the van.

21. Mr Maher made a statement on this matter to the police on 14th April 1992. This statement was put to him by Counsel at the Waterhouse Inquiry but not in a developed way so as to draw out the inconsistencies. The statement to the police contains a slightly different account from the statement he had given in evidence to the Waterhouse Inquiry. The main difference is that in the 1992 statement Mr Maher says that Mr Cunningham " grabbed Birley by his upper clothing and physically dragged him out of the bus to the passenger side, because of it being dark at that time of night the two moved out of my view. After no more than 5 minutes Simon climbed back into the rear of the van, Mr Cunningham got back into the front and we continued on our way home. Simon was in great distress and although it was dark in the rear of the van I could clearly see that he was bleeding heavily from his nose."

22. In his evidence before us, as in his evidence before the Waterhouse Inquiry, Mr Cunningham denied that he had assaulted Birley on 23rd October 1983. We have looked carefully at all the evidence that has been presented to us about this incident. The supporting evidence is that of Kevin Maher, who by his own account had been sniffing glue that evening. There is a substantial discrepancy between what he told the police in 1992 (Birley was dragged out of the van) and what he told Waterhouse (the incident happened in the van). There are no records that we have been shown or that were before Waterhouse that support Maher's version of the event or Mr Cunningham's version of the event. Miss Drew submits that the absence of any records supports Mr Cunningham's version.

23. Waterhouse says that Mr Cunningham's explanation of the event was unacceptable. Miss Drew in her submissions says that this should not be sufficient to discharge the burden of proof. She submits: "The important functions of the Waterhouse Inquiry did not extend to detailed adjudication on individual allegations. No reasons were given why Maher's account was preferred notwithstanding the inconsistency."

24. In his submissions to us, Mr Coppel agreed that the allegation of 23rd October 1983 was the less serious of the two allegations. However, he submitted that if Mr Maher had invented the incident, some plausible explanation should be given as to why he did and that no explanation had been given by Mr Cunningham. He said that there was no evidence of a financial advantage or a personal gain. He also drew our attention to a discrepancy in Mr Cunningham's account of the event. Whereas in his witness statement he gave a positive account of the other boys in the bus injuring Birley, in his evidence to us he had said that he had no recollection of Birley having any injury at all.

25. In examining all of this evidence, we have formed the view that the Secretary of State has not discharged the burden that is on him on a balance of probability that Mr Cunningham assaulted Simon Birley on 23rd October 1993. The only evidence he provides is the evidence of Kevin Maher by way of a statement in 1992 and the transcript of his evidence to Waterhouse in 1997. We were not able to test Kevin Maher's account, and we note that there are two different descriptions by him of what happened. Mr Cunningham has always denied that he assaulted Birley. There is no contemporaneous record of the incident, and when Mr Rayfield was questioned about it in 1992 he remembered the trouble of the glue sniffing but made no reference to any injury to Birley or to any assault by Cunningham on Birley.

26. We have applied the approach we set out
·

  • in Barnes to the Waterhouse findings.
  • in C to the absence of any live evidence provided by the Secretary of State
  • above, on the principles relating to the standard of proof

27. We have no doubt in relation to the first matter that the Secretary of State has not come up to proof and therefore we cannot find as a fact that Mr Cunningham has been guilty of misconduct as alleged. Accordingly, s 4(3)(a) PCA 1999 is not satisfied and we do not need to consider s 4(3)(b) PCA 1999. We turn our attention therefore to the second matter.

The second incident

28. We can deal with the second incident relatively shortly. The second incident concerns an allegation that Mr Cunningham assaulted Carl Barrett on 30th April 1984. According to the transcript of the evidence given by Barrett to the Waterhouse Inquiry, he and another boy had been drinking and he was drunk when he returned to Bryn Estyn. A member of staff, Liz Evans, tried to prevent him from going up to the dormitory and he tried to get past her. There was an altercation between them. By all accounts Miss Evans ended up in a highly distressed state. There is considerable factual dispute as to how Mr Cunningham became involved. Suffice it to say that Mr Cunningham has agreed all along that he accepts that he caused an injury to Barratt but that this was sustained during the course of the struggle which he had with him to try to restrain him. Barratt says that Mr Cunningham grabbed him before striking him on the nose with a torch.

29. We do not need to arrive at any conclusion as to whether Mr Cunningham hit Barratt with a torch or whether it was simply a whack with the hand. As the Waterhouse Report says, at 10.146, "he has virtually admitted using excessive force on 30th April 1984" and that the injury to Barratt, that necessitated a visit to the hospital that night, was as a result of Mr Cunningham's violent response to the incident that had occurred between Barratt and Miss Evans. In his evidence before us he accepted that he caused Barratt's injury that night.
30. In her submissions to us, Miss Drew stated that Mr Cunningham accepts that the evidence of what happened that night, even reading it in a way which is most favourable to Mr Cunningham, amounts to misconduct that harmed a child.

31. The important issue in relation to the second incident is whether s 4(3)(b) is satisfied. We have read carefully all the references that have been produced by Mr Cunningham in support of his appeal. In particular, there is a strong reference from Mrs Worthington who worked with him at South Meadows Children's Home from 1985. These reports are all supportive of Mr Cunningham. We are under a duty to assess the risk to children if Mr Cunningham were to return to work with children. He has no training in child care. We believe that the Barratt incident is an illustration of his vulnerability within the environment in which he was working in 1983/84. There is nothing that we have read or heard which persuades us that the situation has changed since then. We feel that if Mr Cunningham were to be placed in such a provocative situation again, he would not be able to handle the situation in any way that would be different from how he dealt with the situation in 1984. We feel that the assessment by the Waterhouse Inquiry of Mr Cunningham is correct in saying at 10.146 "He was not a man who regularly resorted to force but he was ill-suited to work with difficult adolescent children". The Report goes on to refer to his later career at three children's homes confirming this view. Miss Drew correctly wonders where this information comes from. However, we have had an opportunity of hearing Mr Cunningham give evidence, and have been able to form our own assessment. Notwithstanding the positive commendations that we have read, we have reached the conclusion that he is unsuitable to work with children.

Proportionality

32. Mr Coppel addressed us on whether the Tribunal was entitled to consider the question of proportionality. He submitted that proportionality, in the sense of weighing the public interest in protecting children against the risk of harm from adults in child-related employment against an individual's private rights to pursue whichever line of employment he might like, has already been taken into account by Parliament in creating the listing scheme under PCA 1999. If s 4(3)(a) and 4(3)(b) are satisfied then the Tribunal must dismiss the appeal, and there is no third criterion that the Tribunal must satisfy itself that inclusion on the list is proportionate. Furthermore, proportionality does not enable the Tribunal to elasticise the first and second requirements.

33. We have given very careful consideration to Mr Coppel's arguments. Since the hearing, the Court of Appeal judgements in R (on the application of M) v London Borough of Bromley have become available. Judge LJ speaks of the "statutory scheme [that] seeks to balance the interests of the vulnerable and avoid the risk of harm to them from contact with an unsuitable adult, while…protecting an innocent individual from wrongful inclusion on the list". The Tribunal has to consider both of the criteria that the Secretary of State has to fulfil before including a name on the list. At first instance in M before Scott Baker J, the Judge said that "Parliament has provided for a comprehensive and detailed investigation to take place before an impartial tribunal whose purpose is to decide whether or not an individual's name has properly been included on the list." This approach was approved by Buxton LJ in the Court of Appeal.

34. The Tribunal therefore has much the same considerations in front of it as has the Secretary of State. It is our view that one aspect of suitability is an assessment of risk, and that this inevitably involves issues of balance and of proportionality. To this extent, we disagree with the approach urged upon us by Mr Coppel.

35. In this case, we have decided that there is a risk and therefore have decided that Mr Cunningham is unsuitable to work with children. Our decision is unanimous.


Accordingly, and for the reasons set out in detail we dismiss this appeal.


His Honour Judge David Pearl
Mr David Allman
Mr Ron Radley

Dated: 12 August 2002


 

About BAILII - FAQ - Copyright Policy - Disclaimers - Privacy Policy amended on 25/11/2010