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You are here: BAILII >> Databases >> England and Wales Care Standards Tribunal >> Woodcock v Secretary of State for Health [2002] EWCST 4(PC) (29 April 2002)
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Cite as: [2002] EWCST 4(PC)
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Woodcock v Secretary of State for Health [2002] EWCST 4(PC) (29 April 2002)

Stephen Woodcock v Secretary of State for Health
2002.4.PC
Hearing dates; 10th and 11th April 2002

Mr Tony Askham
(Chairman)
Mr David Allman
Mr Ron Radley

DECISION

  1. Stephen Woodcock 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 under s 1 of that Act as being unsuitable to work with children. The letter informing him of that decision was dated 24th May 2001.

  2. Mr Woodcock was included in the s 1 list after consideration by the Secretary of State following a review of his position under s 3 of the Protection of Children Act 1999 as amended by s 99 of the Care Standards Act 2000.

  3. In the appeal before us Mr Andrew Sharland of Counsel represented Mr Woodcock and Mr Philip Coppel of Counsel represented the Secretary of State.

  4. Our powers are set out in s 4(3) of the Act. 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 the child or placed the 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. Standard and burden of proof

    6. It is common ground that s 4 of the Act places the burden of proof on the Secretary of State. We approach an analysis of the evidence, therefore, bearing in mind that it is the Respondent who must discharge this burden.

    The standard of proof

    Mr Sharland, on behalf of Mr Woodcock, attacked the view taken in all of the decided cases under the Act that the standard of proof is the civil burden of the balance of probability. He argued that the reliance by the Tribunal in previous cases of the case of Re H and ors [1996] 1 All ER 1 was an error. Mr Sharland’s arguments were first that the case of re H was a child care case and that a more proper comparison of the function of this Tribunal is to compare it with disciplinary tribunals such as those of the bar, solicitors, or the General Medical Council. He took the Tribunal to the cases of Re a Solicitor [1992] 2 All ER 335; McAllister v The General Medical Council [1993] 1 All ER 982, which he relied upon as authority that in cases where serious charges are brought which could also found criminal charges, it may be appropriate that the onus and standards of proof should be those applicable to the criminal trial. He also relied upon the DFE Circular 11/95 published in October 1995 dealing with misconduct of teachers and workers with young persons. He pointed particularly to paragraphs 21 and 22 of that Circular, which indicated that the Secretary of State needed to employ a standard of proof regarding the alleged misconduct as substantiated as being greater than that which an employer might apply when considering disciplinary action. The employer might decide that the person has been guilty of misconduct which warrants dismissal on the basis of the balance of probabilities. "The Secretary of State must apply a higher standard of proof." Mr Sharland advanced the argument, therefore, that the Tribunal in considering whether or not there had been an act of misconduct were obliged to decide that to the criminal standard of "beyond reasonable doubt", but when deciding the second criteria should do so on the balance of probabilities.

  6. Mr Coppel, in a succinct argument, argued that the Tribunal was not dealing with a criminal matter, therefore the normal burden of proof in a civil matter applied unless statute provided otherwise. He said the statute did not provide otherwise and that it would be incredible for parliament to have considered there would be two different standards of proof for the Secretary of State to satisfy. He pointed out that the purpose of the Protection of Children Act was the protection of children because of their vulnerability to adults and the maintenance of public confidence in the List, especially the confidence of parents. He argued that if the criminal burden was to apply it would undermine the purposes of the Act. He accepted that the discharge of the burden may be dependent on the type and seriousness of the issue before the Tribunal.

  7. We have considered these arguments in detail. We are satisfied that the approach adopted in re H is the correct way in which we should approach the issue of the appropriate standard of proof. In re H, Lord Nichols stated: "Where the matters in issue are fact the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability …… The balance of probability standard means that a court is satisfied an event occurred if the court considers, that on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred, and hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability."

  8. The facts

    9. As is the case with many of the early applications to this Tribunal, this is an old case. Mr Woodcock is faced with a series of allegations relating to the time when he worked as a teacher at Beeches First School. The Secretary of State’s case involved twelve specific allegations against him covering the period from 1987 to 1994. At the end of the case, the Department accepted that they could not proceed with three of the allegations and effectively, therefore, the allegations covered a period from 1987 to 1992. By reason of the length of time which has expired since these allegations first came to light, it was not surprising that a substantial volume of written and video evidence had been lost or destroyed. We did, however, have in respect of most of the allegations, documentary evidence either from social workers or the police of statements which had been taken from a number of children and parents relating to the particular allegations. In the course of the hearing, we heard evidence from PC Neil Williams, a Detective Constable of the West Mercia Constabulary. Between 1990 and 1997, DC Williams was attached to the Child Protection Unit at Bromsgrove Police Station. He was responsible for the investigation into the majority of the allegations which are made against Mr Woodcock. We also heard evidence from Mr Alan Ferguson, who is employed by the Worcestershire County Council within its Social Services Department in the post of Unit Manager, Child Protection/Planning and Review. He gave evidence to us of reviewing the case records relating to Mr Woodcock for the period from 1991 to 1996. We heard evidence also from Gillian Sebright, a Principal Officer employed by Birmingham Social Services since May 1995. She dealt with the involvement of Birmingham Social Services Department into various Inquiries held by the Child Protection Unit in Birmingham from late 1996 to 1998. We also heard evidence from Mr Woodcock.

  9. The first allegation relates to three alleged incidents with two named pupils, A and B, and a third pupil whose name is unknown. The first of these incidents was alleged to have occurred in 1990 when pupils from the school went on holiday to Ilfracombe, Devon. Mr Woodcock was one of the accompanying teachers. Apparently, one of the parents of a boy who went complained that Mr Woodcock had acted inappropriately towards his son. This centred on an incident when the children had been swimming and it was alleged that Mr Woodcock had towelled a boy dry and, in doing so, towelled his genitals, although there was no direct skin to skin contact. This matter was acted upon by the LEA, but no report was made either to the Social Services or to the police. The matter resulted in Mr Woodcock receiving "informal advice" with regard to inappropriate behaviour and the consequences of such, bearing in mind his vulnerable position.

  10. The allegations in respect of the boys A and B arose when a parent of a nine-year-old boy overheard a conversation between her son and another young boy he was playing with. Child A was heard by his mother to say "Mr Woodcock would kiss him on the cheek". This comment caused the parent some concern and the matter was reported. A planning meeting of the Child Protection Unit was convened and background inquiries were made. During initial inquiries, several boys were identified as having been heard talking about being kissed by Mr Woodcock. On 8th November 1991, child A was interviewed by DC Williams and Andrea Shorten, a social worker, and the interview was video taped. No copy of that video tape now exists and no transcript of the evidence exists, but a note of this part of the Inquiry was prepared by Mr Williams and was before us. It was a note dated 11th March 1992 which he told us was made from his contemporaneous records. According to this note, A said that Mr Woodcock would tousle his hair and sometimes kiss him on the cheek. The police traced another boy, B, who again was interviewed both by DC Williams and by Andrea Shorten, this time on 20th November 1991. Boy B said that on one occasion he was kissed on the cheek by Mr Woodcock. From the interview, it appeared that the incidents might have occurred in 1990 or in 1991 and they might have occurred before Mr Woodcock received the informal advice about the holiday school incident.

  11. It became apparent to the police that rumours about these matters had spread around the local housing estate. Many parents expressed the view that Mr Woodcock had done nothing wrong, that he was an exceptionally good teacher and well-liked, although none of these comments were made directly to the police. Because of the rumours in the community, however, it was apparent that Mr Woodcock was aware of the police investigations and the police decided to interview him immediately. He attended the Police Station voluntarily on 27th November. During his interview, he did not deny that he might well have kissed some pupils on the cheek, both boys and girls. He told the police this was something he did quite often to children he thought were unloved and not receiving parental affection. He stated this was something he had done quite unconsciously and did not really apprehend the consequences of the action until he had received the informal advice regarding the holiday incident. He stated he would be careful how he interacted with children in future, being aware of his vulnerable position and the consequences of any inappropriate action. At the time, DC Williams recorded that there was no evidence to suggest there was any sexual motive in Mr Woodcock’s action and he gave the impression of being naïve and not thinking about the consequences. At that time, the police had no evidence to suggest anything else had occurred between Mr Woodcock and current pupils. The police concluded there were no criminal offences committed at that stage.

  12. The second group of allegations made against Mr Woodcock deal with a wide variety of pupils in his care between 1991 and 1992. These matters came to light by chance. The parent of pupil C, speaking to a friend, asked her whether she knew Mr Woodcock. It transpired that her son, C, had been in his class. The other parent told the parent of C that she had been speaking to another parent at the school and that that parent had told her that that parent’s son had complained that Mr Woodcock had been doing "rude things" to him. This reminded the mother of child C of an incident when she had picked C up from school. C had told his mother that Mr Woodcock was always putting his arm around him, cuddling him and kissing him. At the time, she had told C that this was a serious thing to be saying about a teacher and asked for confirmation that C was telling the truth, which had been given. Because C said that he was not particularly upset, his mother did nothing about the matter at the time.

  13. As a result of what was said in a conversation with the other parent, on 1st July 1992, C’s mother spoke to C again with her husband present. She asked him to think carefully about what had happened and to tell her. C said that when he was in Mr Woodcock’s class, Mr Woodcock would cuddle him and put his arms around him. He demonstrated to his parents how the cuddling took place. He indicated that Mr Woodcock would kiss him on the lips and also, when cuddling him, he would put his hands onto his bottom and move them around. C said that Mr Woodcock would also put own hand down his own trousers and move it around when he was cuddling him. As a result, the matter was reported to the police. The acts described by child C to his parents were repeated by child C both to social workers and to DC Williams and the documentary evidence produced to us is consistent.

  14. At the same time as child C was making these disclosures to his parents, child D was telling his mother, on 29th June 1992, that "Mr Woodcock is bent". He described to his mother that Mr Woodcock had given him and another friend, child E, a cuddle. He did not like Mr Woodcock doing it because he had held him really tightly and pressed himself up against him. Child D explained that this was not the first time that this sort of thing had happened. He went on to describe that on other occasions Mr Woodcock had held him on his knee and then went on to describe an incident when he had been taken to the book corner in the classroom in the absence of the other members of the class and that Mr Woodcock had laid on top of him and moved up and down on him and asked him if it was nice.

  15. On the following day, the parent of child D reported the matter to her health visitor who, in turn, reported the matter to Social Services. The parents of child D were present when child D was interviewed by DC Williams and the social worker. The witness statement before us from the mother of child D, indicates that the version given by child D to the police and to the social worker was entirely consistent with the version that he had given his parents.

  16. Both child C and child D suffered nightmares following the incident which might have been connected with it, and child D remained concerned about being taught by male teachers.

  17. As a result of the statements which had been given to DC Williams, he proceeded in the company of social workers to interview a number of other children in the school who had been in the class of children C and D. Children E, F, G, H and I were interviewed and those interviews were videoed. The videos were not available to us but records made at the time giving a summary of the evidence given in videos were. Child F maintained that Mr Woodcock sat him on his lap and pushed him from side to side when holding him. He also maintained that Mr Woodcock gave him "hard cuddles" and smacked his bottom softly whilst jokingly telling him he was a naughty boy. Child F maintained that he had been kissed by Mr Woodcock on the cheek, neck and ears region and that Mr Woodcock had blown in his ear. Both child E and child F maintained that other children had been treated in the same way by Mr Woodcock. Other children were interviewed but made no complaint against Mr Woodcock.

  18. Child G maintained that he had been hugged around the shoulders and kissed on the head, neck and ears region. Child G maintained that he had been kissed on the head. Child H maintained that he had been held hard against Mr Woodcock so he could feel Mr Woodcock’s genitals against him, had been held by the waist tightly so that his thigh touched Mr Woodcock’s private parts, that he had been cuddled around the waist and lower back, and that on other occasions he had been given tight cuddles. All of the video recordings have been lost or destroyed but we saw each of the records of the interviews which were consistent with the allegations being made.

  19. DC Williams believed then, and still believes, that the account given by each of the children was entirely truthful and that there had not been any collusion between them. As a result of the allegations, Mr Woodcock was arrested on suspicion of committing indecent assaults against boys C and D. He was arrested on 27th July 1992 and was subsequently charged with three offences involving indecent assault on both boys and an act of gross indecency with one of them.

  20. Following the arrest of Mr Woodcock and the attendant press coverage, a male young person, J, approached the police. He had attended St Chads Youth Club in Rubery, where Mr Woodcock was a youth leader. He recalled an occasion when he was 14 and with a friend was invited back to Mr Woodcock’s home after school in order to try out some games which Mr Woodcock said he intended to use on the forthcoming weekend. He recounted that he was asked to lie down on his stomach and described how Mr Woodcock lay on top of him. He described how Mr Woodcock rubbed himself up and down his body and, in particular, he could feel his private area rubbing up and down his bottom. He described that Mr Woodcock was breathing heavily throughout the activity. He said that he was not aware of any of the younger boys involved in the incidents referred to earlier in this Judgment and the police could find no connections with them. J subsequently made a witness statement in connection with this appeal, which was in the papers before us, in which he confirmed the truthfulness of the allegations he had made to the police at that time. Shortly after Christmas, J decided not to appear before the Tribunal and give evidence and the Secretary of State decided not to insist on his attendance.

  21. The police then referred all of the papers in this matter to the Crown Prosecution Service, who ultimately decided to discontinue the prosecution against Mr Woodcock. The CPS decided that, so far as boys A and B were concerned, there was nothing capable of corroborating their complaints and the CPS were concerned about the harm to the boys should the matter proceed. The CPS considered that at that time, although the courts were willing to hear younger children, the boys were so young and the trial procedure, even with the aid of video link, would be traumatic for them. The CPS did not feel they were capable of relying upon the other children’s complaints of kissing because by the time these children had been seen there was substantial public and press interest in the case and that a number of them accepted in their statements that Mr Woodcock’s behaviour was being talked about in the playground.

  22. The LEA, as Mr Woodcock’s employers, proceeded with disciplinary action against him, with a view to him being dismissed. Mr Woodcock resigned from his employment before those proceedings could be completed. There is a dispute between himself and those from Social Services as to whether or not the LEA and his Trade Union advised him to resign. He maintains that he would not have been given a fair hearing for a variety of reasons, and felt there was no alternative but to tender his resignation.

  23. Following his resignation, the LEA wrote to the Department of Education with a view to the Secretary of State precluding Mr Woodcock’s further employment in schools by including him on List 99. After two years of deliberation, the Department of Education declined so to name him. It is unclear to us what investigation, if any, was undertaken by the Department of Education, but it is apparent that in the course of their investigation they invited Mr Woodcock to be seen by a psychiatrist, Dr N V Griffin of the Reaside Clinic in Birmingham. Following interview, Dr Griffin concluded that Mr Woodcock had not initiated or sustained a significant emotional adult relationship, but had devoted his time and energy to a large number of social activities, mainly associated with the church. Dr Griffin said that it was "possible to speculate this lifestyle is a consequence of underlying psychological disturbance, but if so, Mr Woodcock appears unaware of this and there is no evidence of any form of significant psychiatric disorder, or abnormality of personality. With regard to the possibility that Mr Woodcock has a sexual interest in young children, of either gender, I can say that the only evidence for this is the allegations themselves, in the face of his denial.". The Department subsequently decided not to place him on List 99.

  24. Following that decision, Mr Woodcock was able to take up again employment as a teacher and carried out a series of roles in schools in the Birmingham area. In one of those roles, it was alleged that he had rubbed one of his pupils on the stomach, back and chest in such a way as to distress the child and cause him to run out of the classroom. That allegation is not proceeded with before us in this appeal. Subsequently, a referral was received by Birmingham Social Services expressing concern that Mr Woodcock had obtained employment in a Birmingham school and about the number of voluntary activities taken by Mr Woodcock where unsupervised contact with children was possible or likely. In August 1997, the Chief Executive of Hereford & Worcester County Council wrote to the Department of Health requesting their consideration of including Mr Woodcock’s name on the Consultancy Index and subsequently Birmingham Social Services Department also made representations to the Department of Health who placed Mr Woodcock on the Consultancy Index. Mr Woodcock was dismissed from his teaching post in Birmingham.

  25. During the course of cross-examination, Mr Woodcock accepted that each of the matters alleged against him, if proven, would amount to misconduct and would have put pupils at risk. He accepted that if all or the majority of the allegations were proven against him, then it would be right for us to conclude that he would be unsuitable to work with children, although it was maintained on his behalf by Counsel that if we were to find only some of the earlier allegations proven, it might not be right for us to reach that conclusion.

  26. Insofar as the allegations by children A and B are concerned, we are satisfied, to a very high standard, that Mr Woodcock kissed these pupils and that such kissing was misconduct within the meaning of the Act. We are supported in our view by the limited admission made by Mr Woodcock in this respect when he was first interviewed by the police and by the evidence of the other young children who were interviewed in connection with this matter, the majority of whom gave clear evidence, in an entirely consistent way, of Mr Woodcock kissing them and other boys in the class. We take the view that this evidence produces an accumulation of similar facts or occurrences which is probative as to dispel any reasonable doubt that these two matters are proved.

  27. As to the allegations in respect of children C and D, we find also to a high level of probability that these acts also occurred. We reached this conclusion for the following reasons: first, that so far as child D was concerned, the incident of lying on top of the child by Mr Woodcock was entirely consistent with the allegations subsequently made by the young adult, J. We see no real prospect that there was any collaboration between that young adult and the child concerned, given their difference in age, school etc. Secondly, the way in which these allegations came to light was entirely consistent with them having occurred. Thirdly, the accounts given by child C to his parents, to the police and to Social Services were entirely consistent.

  28. So far as child D was concerned, we are again satisfied to a high degree of certainty that this act also occurred.

  29. So far as the other allegations involving the children in the class, in respect of children E to I are concerned, we cannot be satisfied, given the high level of proof which is required, that these allegations are made out by the Department. We are mindful of the fact that the nature of the allegations against Mr Woodcock were well known to children in the school prior to the interviews of these children by the police. Whilst we accept the fact on the evidence of DC Williams that there was no evidence of malicious collusion between these children, we cannot discount the fact that there might have been some collusion. Their evidence is, however, remarkably consistent with the main complaints in this matter.

  30. We are then left with the final allegation involving the young adult, J. Given the fact that J decided not to appear before the Tribunal and give evidence and again mindful of the high standard of proof which is required, we cannot decide that this allegation has been made out. Again, however, the allegation is remarkably consistent with those which we have no doubt took place.

  31. Given our findings of fact in this case, we have no doubt in concluding in summary that Mr Woodcock was guilty of misconduct which harmed the child or placed the child at risk of harm on the occasions set out above. We are not satisfied on the balance of probabilities as to any of the other allegations. Given the seriousness of the allegations which we have found proved, we have no doubt that Mr Woodcock is unsuitable to work with children. We reached this conclusion both because of the seriousness of the misconduct and the fact that Mr Woodcock has consistently denied that misconduct and has hence had no opportunity for treatment which might have led us to a different conclusion. We make all of these findings knowing that Mr Woodcock has laid both before the Departments and ourselves testimonials of over 107 people in his local community who vouch for him.

  32. At the end of this case, we were invited by Counsel for Mr Woodcock to continue the Restricted Reporting Order in place. We agreed that a further Restricted Reporting Order should be made, prohibiting the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to identify any child referred to in these proceedings. So far as the applicant is concerned, although we are mindful that the High Court have ordered that his name should not be published in respect of these matters, we concluded that it was right to extend the Restricted Reporting Order for a period of 28 days after the giving of this Judgment, but not further or otherwise. We are persuaded that the purpose of such orders are not meant to prevent the name of the appellant being reported once complaints against him or her have been upheld. In the circumstances, we are not prepared to make a further Restricted Reporting Order after the termination of the extended order made in this paragraph.

A J Askham
Chairman
29 April 2002

(Incorporating Residential Homes Tribunal and Protection of Children Act Tribunal)

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