England and Wales Care Standards Tribunal

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Cite as: [2002] EWCST 118(PC)

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D v Secretary of State for Health [2002] EWCST 118(PC) (6 November 2003)

D

-v-

The Secretary of State for Health

Application No. [2002] 118.PC

Before:
Mr John Reddish (Chairman)
Mrs Sallie Prewett
Mr Christopher Wakefield

Hearing dates: 30th September, 1st, 2nd, 3rd, 7th, 8th and 9th October 2003.

Application
On 21st November 2002 the applicant appealed under section 4(1)(a) of the Protection of Children Act 1999 against the decision of the Secretary of State for Health to include him in the list kept under section 1 of that Act.

Representation
At the hearing Mr Robert Palmer represented the Secretary of State and Mr James Tillyard QC represented the applicant.

The evidence
The Tribunal heard oral evidence on behalf of the Secretary of State from: (i) a man, now aged 38, who resided at Gwynfa Residential Clinic from 29th July 1975 until 19th December 1975 (when he was 10 years old); from 20th March 1978 until 26th May 1978 (when he was 13) and from 6th June 1979 until 22nd June 1979 (when he was 14), referred to in this decision as "A"; (ii) a woman, now aged 42, who resided at Gwynfa from 10th April 1975 until 2nd August 1975 (when she was 13-14 years old), referred to in this decision as "B"; and (iii) a woman, now aged 44, who resided at Gwynfa from 7th April 1976 until 7th December 1976 (when she was 16-17 years old), referred to in this decision as "C".

The Tribunal heard oral evidence on behalf of the applicant from the applicant himself and from Mrs Margaret Haydon, who worked as a care assistant at Gwynfa from 1979 until 1986.

The Tribunal also received written evidence on behalf of the applicant from Mrs Karen Davies and Ms Alison Love as to the events of 29th September 2003. This evidence was not challenged on behalf of the Secretary of State.

The Tribunal also read the documents submitted by the parties and comprised in 10 bundles lettered A to K, including witness statements made by many former residents of Gwynfa; contemporaneous staff, care and nursing records and extracts from the Report of the Tribunal of Inquiry into the abuse of children in the former County Council areas of Gwynedd and Clwyd (referred to in this decision as "The Waterhouse Inquiry"). Some of the former residents are referred to specifically in this decision (as "E", "F", "G", "J", "K", "L", "M", "N", "P", "Q", "R", "S", "T", "U" and "V"). Numerical references in this decision are to the numbered pages in the lettered bundles.

Preliminary matters
On 21st March 2003 the Chairman made an order, pursuant to regulation 18 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, 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 the identify the applicant or any child or vulnerable adult whether or not they appeared as witnesses. That order applied until the conclusion of the hearing. The Tribunal decided to extend the order indefinitely. The Tribunal was satisfied that such an order would be appropriate to safeguard the welfare of the vulnerable adults concerned and to protect their private lives and that of the applicant. On 21st March 2003 the Chairman also directed, pursuant to regulation 19 of the 2002 Regulations, that members of the press and members of the public be excluded from the hearing.

Facts
The material facts found by the Tribunal were as follows:

1. The applicant was born in 1946 and is now 56 years old. He was educated in Wrexham, latterly at a technical college, where he undertook a pre-nursing course. He worked as a theatre technician at the Maelor Hospital in Wrexham and then trained as a nurse at the North Wales Hospital for Nervous and Mental Disorders in Denbigh. He qualified and was registered as a nurse in April 1971. He worked as a Staff Nurse at the North Wales Hospital until 1974 when he was appointed as a Staff Nurse at Gwynfa Residential Clinic in Upper Colwyn Bay. The applicant had previously worked at Gwynfa on a 3 or 4-month placement in 1969 when he was a student nurse.

2. Gwynfa was a residential clinic or hospital for children and adolescents experiencing psychiatric difficulties. It opened in 1961 and closed in March 1997. It was administered first by the Clwyd and Deeside Hospital Management Committee, then successively by the Clwyd Area Health Authority, the Clwyd District Health Authority and the Clwydian Community Care NHS Trust. Children usually remained at Gwynfa for relatively short periods of time, commonly 2 or 3 months. There were usually up to 25 children resident at any one time.

3. Children at Gwynfa were normally allowed to leave on alternate weekends, to go either to their own homes, foster homes or children's homes. At the relevant time, punishments included loss of privileges (such as participation in trips into town, games and other pleasurable activities), the "pyjama regime" (or "pyjama therapy") and "bed therapy". Children who were thought likely to abscond or who had behaved particularly badly were required to wear pyjamas at all times for periods of up to several days. Those who had misbehaved were commonly sent to their bedrooms during the late afternoons and evenings and thus deprived of opportunities to take part in communal activities or watch television.

4. At the relevant time, the staff at Gwynfa operated in shifts. Working hours during the day were either from 8 a.m. to 2 p.m. or from 2 p.m. to 8 p.m. with some shifts being from 8 a.m. to 8 p.m. Night staff worked from 8 p.m. until 8 a.m. Some staff members who normally worked during the days, including the applicant, occasionally covered for the night staff. At nights there were 2 members of staff on duty. At least one of them would be female. Duty rosters for the period 1979 to 1983 show that the applicant worked at night on only one occasion during that period. Rosters for earlier periods were not available for inspection. The applicant recalls that he worked at nights on no more than "a handful of occasions" in the period 1974 to 1979.

5. Each of the bedroom doors at Gwynfa had a glass window to permit staff to observe the occupant or occupants without opening the door. During the hours of darkness the bedrooms could be illuminated by means of a dimmed "night light" which could be switched on from outside the room.

6. From 1974 to September 1993 the applicant worked as a full time member of the nursing staff at Gwynfa. In 1978 he was promoted from Staff Nurse to Charge Nurse and, for 4 months in 1990, he acted as Senior Nurse. However, the applicant preferred working directly with patients and so did not seek the permanent appointment as Senior Nurse that would have involved him in many more administrative duties.

7. On 10th April 1975 B was admitted to Gwynfa, aged 13. She remained there for 4½ months. The applicant, with others, was responsible for her care and treatment. The applicant devoted considerable amounts of his time to B, as he did with many of the children in his care, seeking to gain her confidence and to build "a relationship of trust" so as to be able to provide her with effective help and guidance in overcoming her difficulties. B had been in care from an early age, having been rejected by her mother. She was considered to be "a disturbed girl". She went to Gwynfa from her foster home when she was in danger of being excluded from her school. She had several violent outbursts at Gwynfa and assaulted members of staff. Mr Barlow, a Senior Clinical Psychologist, saw her 3 times per week, "to almost no avail". In July 1975, B was described as "sexually precocious … and becoming more attention seeking in male company". In July 1975 she expressed "a need to stay in Gwynfa" and in August 1975 it was noted that she was "most upset when told she was to return home" to her foster mother. From Gwynfa, B went to Little Acton Assessment Centre in Box Lane, Wrexham and then to Troy House, a children's home in Monmouth.

8. On 29th July 1975 A was admitted to Gwynfa, aged 10. On this occasion he remained until 19th December 1975. A was in care because he was, in his own words, "a problem child". Others described him as "a very rejected boy". In August 1975 A was given regular prescribed doses of Neulactil and Disipal to control his emotional outbursts. By November 1975 the dose had been reduced to once per day. On 20th November 1975 A was "involved … in sexual experiences" with another boy with whom he was found naked. He showed "no feeling" when spoken to about this episode [E287].

9. On 25th March 1976 E was admitted to Gwynfa, aged 12. She remained there until 12th July 1976. E had been made the subject of a care order because she was beyond parental control. She had stayed at Ty'r Felin (an assessment centre in Bangor) for several weeks before being admitted to Gwynfa. After leaving Gwynfa E spent a short period at home and then went back to Ty'r Felin [H113].

10. On 7th April 1976 C was admitted to Gwynfa, aged 16. She had a history of aggressive behaviour and rejection within her family. She had reached "a state of impasse" with her mother and her family felt "unable to continue tolerating the constant provocation and rows" [K38]. C is recorded as having been at Gwynfa until 7th December 1976 but from August 1976 she spent time at home with her mother and step father in Meliden (from Wednesday until Friday or Saturday each week) and on 4th November 1976 she began living and working in a home for the elderly. After a few weeks she moved to live and work in a residential school in Rydal, returning to Gwynfa only occasionally.

11. In June 1976 C "exploded" with a member of the nursing staff who recorded that she was experiencing tension with her room-mate, resulting in physical violence but that she was "relating well" to the applicant [K51].

12. Later in June 1976 C absconded from Gwynfa, with her room-mate, for several hours and upon her return she was sharply rebuked by a Woman Police Constable.

13. In August 1976 C wrote an affectionate letter from home to Martin Williams, a nursing auxiliary who worked at Gwynfa from the early 1970's until 1991, inviting him to write to her and saying that she would see him when she was "released" back to Gwynfa. On 20th October 1976 C wrote another letter to Mr Williams, again inviting him to write to her and also inviting him to receive "a very important message" which would be delivered orally by her friend.

14. On 18th January 1977, F was admitted to Gwynfa, aged 6. He had a history of epilepsy and hyperactivity and had been taken into care because of "family problems". He stayed at Gwynfa until 10th April 1977 when he moved to Talfryn Children's Home. He returned to the care of his mother and step father in 1983.

15. On 20th March 1978 A was admitted to Gwynfa for a second time, aged 13. He remained there until 26th May 1978. A recalls that, by the time of his second admission to Gwynfa, he had been sexually abused at Little Acton Assessment Centre and at Bersham Hall, then an observation and assessment centre in Wrexham. The applicant recalls that A was "quite uncontrollable at times". From 29th March 1978 regular doses of Largactyl were prescribed to calm A. The drug was administered 3 times per day. The applicant also recalls that he had several confrontations with A because of his bad behaviour but he is unable to recall any specific incident.

16. In April 1978 Mrs Tooby, the Matron at Gwynfa, described the applicant as "competent, confident and reliable" when recommending him, without reservations, for the post of Charge Nurse [G130].

17. In May 1978 Dr Scott, a Consultant Psychiatrist, described A as "emotionally unfit … for normal education". Another resident of Gwynfa (M), who knew A and associated with him regularly, subsequently described him as "an idiot and a very good liar" [J128]. A had a reputation for lying. The Head Teacher of his school referred to this at a case conference in May 1978. At Gwynfa, A shared a room with N, who was the son of a police officer. A recalls that, on one occasion, he absconded with N to N's home in Borras and they were returned Gwynfa by N's father.

18. Mrs Margaret Haydon worked as a care assistant at Gwynfa from 1979 until 1986. She remembers the applicant as "loud and extrovert" and as "a man who could command people's attention" and who was "great with children". Mrs Haydon was not aware of any abuse of children at Gwynfa. She undertook many activities and therapy sessions with children but none ever made any allegation of abuse to her. Mrs Haydon was aware that children were often unhappy with or wary of the applicant because he exercised authority over them but never had any cause to believe that the applicant was abusing, or had abused, any child at Gwynfa. Mrs Haydon also knew Martin Williams as a nursing auxiliary at Gwynfa. She recalls that he sometimes breached the rule against entering girls' bedrooms unaccompanied by a female member of staff and was reminded by the applicant that he was foolishly putting himself in a vulnerable position by doing so.

19. On 5th May 1979 G was admitted to Gwynfa, aged 12. She suffered from agoraphobia and had had a "breakdown" as a result of bullying at school. G stayed at Gwynfa for 4 months. While there she regularly associated with two other girls (U and P). G also had a friendly relationship with T, who is remembered by many as one of the very few black children ever admitted to Gwynfa.

20. On 6th June 1979 A was admitted to Gwynfa for a third time, aged 14. He stayed for only 16 days. A has no recollection of this admission.

21. On 15th October 1979 R was admitted to Gwynfa, aged 14. She was depressed, self-conscious and possibly anorexic. She stayed until 8th February 1980. Nursing records show that, during her stay, R was disciplined for attacking another patient and that she harmed herself on several occasions. The Senior Registrar, Dr Andrew, noted that, whilst at Gwynfa, R became sexually attractive to her peers but found it consistently difficult to form relationships with them while managing "some contact with the staff". For a time, R was the only female resident and formed a close but "stormy" relationship with an "aggressively disposed" boy (Q), who "paid court" to her [E132].

22. On 25th January 1982 K was admitted to Gwynfa, aged 14. He remained there until 14th May 1982, though he absconded on 2 occasions. Dr Cheshire, the Senior Clinical Psychologist who assessed K between February and April 1982, spoke of his "fluent inventiveness" when telling stories and of his "need to pursue inappropriate methods of attention". Other children picked on and assaulted K and he suffered several minor injuries during physical activities. He was disciplined and "counselled by staff" several times, following unacceptable "escapades" and disruptive behaviour. In March 1982 another boy complained that K had "involved him in sexual play" and, in the same month, K was involved in an incident during which another child was soaked with water.

23. On 19th January 1984 J was admitted to Gwynfa, aged 12. He was "quite a disturbed child" who had been abused at home. Mrs Haydon recalls that J was a "mummy's boy" who would probably have confided in her if he had suffered any abuse at Gwynfa because he revealed to her and others the abuse that he had suffered at home. J remained at Gwynfa until 1st May 1984. He was frequently disruptive and violent. Dr Kiehn, the Consultant Psychiatrist who took charge of Gwynfa in 1981, described J as "presenting with a long history of multiple conduct problems" and noted that, amongst other traits, he stole from other children and told lies convincingly.

24. In August 1985, and again in April 1986, the Senior Nurse at Gwynfa described the applicant as "particularly skilled in counselling both staff and children" and said that he would be "sadly missed" if he left [G97 and G87].

25. On 23rd July 1986 K made a statement to the police [H188-9] in which he alleged that he had been hit by and had fought with a member of the staff at Ty'r Felin but said nothing about Gwynfa.

26. In 1988 B visited Gwynfa with the father of a boy who was then resident there. She alleges that she saw the applicant at the door and, in response to his greeting, was verbally abusive to him. The applicant recalls that he did meet B at Gwynfa in 1988 and that she was not abusive to him: on the contrary they had a long conversation during which they reminisced about happy times B had experienced at Gwynfa.

27. In August 1991 the nursing auxiliary, Robert Martin Williams came under suspicion when an incriminating letter was found in the clothing of a 16-year old female resident at Gwynfa. A member of the domestic staff found the letter. She handed it to the applicant. He passed it on to his superiors. Despite considerable efforts, "the clinical staff were unable to obtain full details of what had occurred" from the girl. Williams denied committing any offence against the girl when interviewed under the Clwyd Health Authority's disciplinary procedure but then resigned before he could be dismissed. When interviewed by the police in September 1993 the girl again declined to disclose what had happened to her but, in January 1996, she was persuaded to disclose and made two allegations of rape. Williams was charged with the offences and, in March 1997, he was convicted and sentenced to 6 years imprisonment.

28. Following allegations made by another former resident of Gwynfa in a television programme broadcast in September 1991, the Divisional General Manager of Clwyd's Community and Mental Health Unit undertook a review of the records. In 1992 the police began an investigation.

29. On 7th January 1992 K (aged 23) made a statement [H190] in which he effectively withdrew any complaint and said he had been treated "correctly" at Ty'r Felin. On 9th January 1992 K told the police [H191] that he stood by the contents of the statement that he made in 1986 and wished to pursue his complaint of assault.

30. On 10th March 1992 E (by then aged 28) made a statement to the police [H113-5] in which she alleged that the applicant (whom she described as a large fat man in his late 30's) had approached her as she was walking past the cloakroom at Gwynfa and had taken hold of her arm and attempted to pull her inside. E also said that she had heard other girls (whose names she could not remember) saying that the applicant had made sexual advances to them.

31. On 10th April 1992 L, a 27-year old man who was at Gwynfa in 1979-80 (aged 15) at the same time as R, made a statement to the police [H244-51] in which he said that R had led him to believe that she had had sexual intercourse with the applicant and that on one occasion he had seen the applicant standing in R's bedroom.

32. On 14th May 1992 J (who was then aged 20 and in custody for offences of robbery, burglary, assault and deception) made a long statement to the police [H164-79] in which he alleged that he had been sexually abused at Gwynfa three times, once by a man with the same forename as the applicant and twice by someone known to him only as "Martin". J's allegation against the former member of staff was that he kissed him, fondled his penis and had anal intercourse with him.

33. On 10th June 1992 A (aged 27) made a statement to the police in which he said that he had been sent by a court to Bersham Hall in Wrexham and was not ill-treated there [H116]. A was asked if he had any other complaints about his time in care but he said nothing about any abuse at Gwynfa.

34. On 23rd July 1992 K made a further statement to the police [H193-6]. He said that the applicant would "invariably" assault him when he was on duty at Gwynfa; that the applicant's "favourite trick" was to wake him by throwing a bucket of water over him and that the applicant often hit him across the back of his head or legs with a stick that he often carried. K also alleged that the applicant had once wakened him by jabbing him in the buttocks with a pen and had made "a pass" at him in his bedroom.

35. On 30th November 1992 R (aged 27) made a statement to the police [H28-31]. She alleged that, when she was 14, the applicant (whom she correctly described as about 35 years old, slim build, about 5 feet 8 inches tall with black hair and a beard) was always trying to kiss and touch her and that he indecently assaulted her in her room at Gwynfa, when her room-mate (S) was present, by inserting his fingers into her vagina. R also alleged that the applicant had pressed against her in the sports room at Gwynfa and had placed her hand on his erect penis. This incident was, she said, witnessed by another member of the staff called John Cluckie.

36. On 17th December 1992 Q (then aged 25), who had "paid court" to R at Gwynfa in 1979-80 when he was 13, made a statement to the police [H32] in which he complained of "physical and mental" abuse at Gwynfa but not by the applicant, whom he described as "a good bloke" with whom he "got on really well". Q also said that he was "very close" to R.

37. On 9th March 1993 B (then aged 31) made a statement to the police [H1-10]. She described her accommodation at Gwynfa in a room with 2 single beds, which she occupied on her own. She referred to the applicant as a "night care officer" and described how he entered her room from the fire escape on 3 separate occasions. She said that he kissed her on the first occasion, pushed his fingers into her vagina on the second occasion and kissed her and had sexual intercourse with her against her will on the third occasion. B said that she had not told anyone about this abuse but had told her social worker, Sue Wildermouth, that she did not want to go back to Gwynfa after a weekend home visit because the applicant was "a horrible man" and she hated him. Ms Wildermouth had, she said, told her not to be so silly and that the applicant was a very kind and very understanding man. B also explained that, after her discharge from Gwynfa, she went to Little Acton Assessment Centre for 2 or 3 months and then to Cartrefle Children's Home, where she was happy and was not abused, either physically or sexually.

38. On 28th April 1993 Mrs Elsie Haybittle, a Night Care Officer at Gwynfa, made a statement to the police [F69-70] in which she said that she had worked at Gwynfa since 1970; that she recalled B; that B never complained to her of abuse and that she had worked with all of the male staff at Gwynfa and had never had any cause to suspect them of abusing any male or female patient.

39. Also on 28th April 1993 V (later identified by B as her room-mate at Gwynfa) made a statement to the police in which she said that she was treated correctly by all of the staff at Gwynfa and that she never witnessed any physical or sexual abuse of children who were there with her.

40. On 11th May 1993 Ms Suzanna Wildermouth, B's social worker from 1975 to 1978, made a statement to the police [F64-5] in which she said that she could not recall, or find in her notes, any complaint made by B against any member of staff at Gwynfa. She did, however, have a note about a complaint by B of an assault by a police officer when she was at Cartrefle, which B declined to pursue by way of formal complaint.

41. On 16th August 1993 F (then aged 23) made a statement to the police [H252-4]. He alleged that, when he was at Gwynfa, the applicant had taken hold of his left hand and squeezed it for 15 to 30 minutes in an attempt to persuade him to confess to stealing sweets from another child. F also alleged that he had been punched repeatedly in the stomach by a member of the staff at Talfryn and that this had added to the "paranoia" from which he continued to suffer.

42. In September 1993 the applicant was suspended from his employment at Gwynfa following allegations of abuse made by B, R and K.

43. In October 1993 Mr Eilian Williams, the North Wales Hospital Manager, undertook an investigation of the various allegations against the applicant made to the police. Mr Williams did not interview R or K, who did not respond to his request to see them.

44. On 7th October 1993 Mr Williams interviewed B [G183]. He noted that her account was "broadly consistent" with the account in her earlier police statement but there was "some difference in detail and some areas which required further examination". On 12th October 1993 Mr Williams interviewed B again [G184-6]. B explained that she had made contact with the police when her sister drew her attention "to media coverage of police investigations into alleged offences against children at Bryn Estyn". She recalled that she had been given Valium by the applicant on 4 occasions, the first of these being when the applicant had first sexually assaulted her. When Mr Williams pointed out that, in her statement to the police, B had said, when giving her account of the first incident, that she had been given Valium before that, B explained that, because of the lapse of time, she found it difficult to be precise about details, but she was "fairly certain" that the first time she had been given Valium was at the time of the first alleged assault. B went to assert that the first incident had occurred "in the late evening or early night" when the applicant was the only member of staff on duty. She said that the second incident had occurred during the day and that sexual intercourse took place during that incident. She described the third incident as similar to the second but that the intercourse took place at night. When Mr Williams pointed out that, in her statement to the police, B had not alleged that intercourse took place on the second occasion but only on the third, B said that "recollection of detail was difficult".

45. On 26th October 1993 Mr Williams interviewed Mr John Cluckie [G180]. He was "positive" that he had never witnessed anything improper involving the applicant and R and that he had not heard about "any issues of concern" at the relevant time.

46. On 28th October 1993 Mr Williams interviewed Ms Ceinwen Jones, who worked as a nursing assistant at Gwynfa from 1977 until the late 1980's [G181] and Mrs Haybittle [G182]. Ms Jones said that she was aware that allegations had been made against the applicant but that she had never seen anything untoward and that children had never reported anything to her. Mrs Haybittle was "specific" that a male member of staff would never have been left alone on night duty. She said that she had worked with the applicant on a number of occasions; that she was surprised that he had been investigated by the police and that she liked the applicant, whom she found to be "a warm and caring person".

47. On 29th October 1993 Mr Williams interviewed S [H36-9], who was at Gwynfa at the same time as R and was alleged, by R, to have been present on one occasion when the applicant indecently assaulted her. S said that male staff had never entered her bedroom and that she had no recollection of any incident like that described by R in her statement to the police. S also said that R was "really weird" and frequently woke up shouting that "lads were touching her up" at nights when there was nobody else in the room. Mr Williams concluded that S's account reduced considerably the credibility of R's allegations.

48. Mr Williams, with his colleague Mr Spencer, also interviewed L. L "carefully explained" to them that he had not seen anything improper happening between the applicant and R and that when, on the last day of R's stay at Gwynfa (8th February 1980) he had specifically asked her whether there had been "anything going on" between her and the applicant she was "non-committal" [G187 and H35].

49. On 3rd November 1993 Mr Williams reported [H34-39] that the evidence against the applicant was inconclusive. He referred to the "considerable variance" in the account given to him by B and the account that she gave to the police and to the fact that there was no record of B being prescribed or administered Valium on her drug administration sheet. Mr Williams endeavoured to summarise the points indicating the credibility of the witnesses and the "issues which would raise doubt". In the latter category he mentioned the evidence of S; the likelihood of sexual abuse on the premises being witnessed by other staff or patients and the possible "undeclared motives" of the witnesses for making false allegations such as "long standing grudge, financial gain (i.e. compensation) or fantasy".

50. No disciplinary action was taken against the applicant and his suspension was lifted with effect from 23rd November 1993. However, Mr Thompson, the Locality Manager of the Clwydian Community Care NHS Trust, concluded that "a return to Gwynfa would be unwise" [G193]. The applicant therefore remained off work on "special paid leave" until arrangements could be made for his re-deployment to another post in the Trust.

51. In January 1994 the applicant was re-deployed to work as a member of the Hafod Community Mental Health Team in Rhyl.

52. On 13th February 1997 B made a statement to an investigator acting on behalf of the Waterhouse Inquiry. She confirmed that her statement to the police dated 9th March 1993 was true and accurate and explained that she had not made any complaint before March 1993 because she was a child. She added that Sue Wildermouth had told her not to be "stupid"; that she was "doing it again wanting to seek attention" and that she was just "an attention seeker". B also alleged that "nobody ever listened or cared" when she was in residential care and that if there were "any slight problems they would put you in your pyjamas [and] never ask you what was wrong".

53. On 8th May 1997 F prepared an account of his life in care in which he alleged repeated assaults by the applicant [H257]. Shortly thereafter the allegation was put to the applicant. He denied it "with a certain degree of exasperation" [H256].

54. On 1st July 1997 B gave evidence to the Waterhouse Inquiry [H14-26]. She alleged that she had been drugged and sexually assaulted by the applicant, who had entered her room via the fire escape. When examined by junior counsel to the Inquiry she described her assailant as having "browney/black hair" and "a big gingery beard" and as being "very well built, chubby, well fat". She also confirmed that her assailant wore a brass coloured signet ring with the applicant's initials on it. When cross-examined by counsel for the applicant she rejected the suggestion that she had been assaulted not by the applicant but by another member of staff called Robert Martin Williams. When cross-examined by counsel for the Welsh Office she said that she had no recollection of being asked questions by Mr Eilian Williams in 1993. When re-examined by junior counsel to the Inquiry B said that she could not have mistaken the applicant for Robert Williams because they looked very different: the former "like a Sergeant-Major" and the latter "like a student hippy".

55. The Waterhouse Inquiry decided, after hearing evidence from B, that, because of the continuing police investigation into the allegations against the applicant, they should hear no further evidence about them and should not take evidence from the applicant.

56. On 3rd July 1997 A made a statement to an investigator acting on behalf of the Waterhouse Inquiry [H140-56] "to fully disclose the details" of his abuse. He said that he had no complaints about his first stay at Gwynfa in 1972-3 but that he was sexually abused at Little Acton and then at Bersham Hall (where he confided in his friend M, who was being similarly abused) before returning to Gwynfa in 1975. A then described how he had been indecently assaulted by the applicant, who was driving the bus into town and how, when he returned to Gwynfa he was, under protest, given a dose of Largactyl before he was again assaulted by the applicant, who came into his bedroom and "performed oral sex" on him. A went on to describe how, on the following day, Martin Williams (whom he then named as "Martin Taylor") assaulted him in the same way. A also alleged that he had been assaulted "two or three times a week" either by the applicant or "Taylor" in either the summer house, the greenhouse or the kitchen.

57. On 14th July 1997 the applicant was suspended from his employment following further allegations of abuse made by A and G.

58. On 29th July 1997 G made a statement to an investigator acting on behalf of the Waterhouse Inquiry [H67-71]. She alleged that the applicant had kissed her and had "grabbed my bum and once my boob". She also recalled that the applicant had hit "a black boy … over the head".

59. On 21st August 1997 A made a statement to police officers who visited him at home at his request [H118-123]. He explained that he had not made any allegations when interviewed in 1992 because he had "for years tried to put things out of mind and to forget them" but, since starting "counselling for depression", he had been able to tell about his time in care. A spoke of abuse at Little Acton, instigated by the then Head of the Assessment Centre.

60. On 1st September 1997 G made a further statement to the police at her home [H44-8 and J19-23]. She alleged that her friend P had told her that she had had a sexual relationship with the applicant. G also said that the applicant, as a senior member of staff, was "important and people would go to him to ask questions". She described him as "a loud man" who "shouted a lot". She said that, although the applicant frightened her, he was nice to her and treated her well. However, G alleged that, egged on by another resident, in the staff office she had once kissed the applicant and that he had then indecently assaulted her by touching her breasts and genitals over her clothes. Finally, she alleged that the applicant had frequently "pinched her bum" as she walked past and that she "didn't like it at all".

61. On 2nd September 1997 A made a further statement, continuing his account of his time in care and the abuse he allegedly suffered [H127-131]. He described, amongst other things, his time at Bersham Hall with his friend M. On 5th September 1997 A made a further statement, again continuing his account [H132-7]. He alleged that he had been sexually abused at Gwynfa by the applicant and by Martin Williams. He first described how he had been indecently assaulted by the applicant whilst a passenger in a minibus being driven by the applicant. He then described how the applicant had indecently assaulted him "two or three times a week" in his bedroom at Gwynfa by sucking his penis and masturbating him manually, having sent his room-mate (N) out of the room. A said that he had been given Largactyl by the matron at Gwynfa for the first time just before he was abused by the applicant and that he had questioned the need for this drug to be administered but had been told that he had to take it. A also alleged that he had been indecently assaulted by Martin Williams in much the same way as he had by the applicant.

62. In September 1997 solicitors acting for B sent a letter before action to the North Wales Health Authority indicating that they were pursuing a claim for damages for negligence on behalf of B. That claim is still being pursued.

63. On 16th October 1997 G made a further statement [H51-8 and J26-33] following a request by officers of the North Wales Police that she should "elaborate on, or clarify" matters mentioned in her earlier statement. She explained that, when P had told her that she had had a sex with the applicant, she appeared "quite happy with what she said had happened".

64. On 27th November 1997 G made a further statement [H59-66 and J35-42] dealing with, amongst other things, the alleged incident in the staff office. She said that it "was over very quickly" but the applicant had pressed himself against her and had touched her "bum" and felt her "boobs". G also explained that the applicant did not always pinch her but sometimes "put his hand on to" her "bum" and "had a quick feel" as she walked past. In the same statement G described, at some length, an incident of indecency involving a cook from Gwynfa. This, she said, took place in the cook's flat in Llandudno when she visited with U.

65. On 3rd December 1997 N made a statement to the police [H159-61] in which he said that his recollection of his time at Gwynfa was vague but that he did remember sharing a room with A. N said that A could not have absconded with him to his home in Borras because he did not live there at that time. He also said that he was treated well at Gwynfa; had no complaints to make and never witnessed or suspected any form of abuse by any member of staff.

66. On 18th December 1997 M made a statement to the police [J126-8]. When asked about A, he said that he remembered him as "an idiot and a very good liar" who was "always in trouble" and who "would attract attention frequently". M did not recall A saying anything to him about sexual abuse.

67. On 7th January 1998 solicitors acting for G wrote a letter before action to the Senior Administrator of the Clwydian Community Care NHS Trust [H81-2] in which they said that their client was alleging sexual abuse by the applicant on numerous occasions in the form of inappropriate kissing and fondling. The solicitors later issued proceedings in which they claimed damages against the Trust for the psychological damage caused by assaults upon G by the applicant and others. The claim was later discontinued.

68. On 11th February 1998 U made a statement to the police [H77-80] in which she said that she could not remember any incident involving G in the cook's flat in Llandudno and that G had never accompanied her to that flat.

69. On 12th February 1998 P made a statement to the police [J43-5] in which she said she was certain that she had never told G that she had had a sexual relationship with the applicant and that she had had no such relationship.

70. On 10th March 1998 B made an application to the Criminal Injuries Compensation Authority claiming compensation for psychological problems following sexual assault and rape by the applicant. She made a statement in support of her application [F32-6] in which she described three assaults upon her by the applicant and explained that she did not reveal what had happened to her in 1975 until 1993, when she was interviewed by a female police officer. She also explained that she had not made an earlier claim for compensation because she had been "building a kind of psychological brick wall" around herself and had not felt able to talk about the abuse until after she had received counselling, following giving evidence to the Waterhouse Inquiry in July 1997. B's application for compensation was rejected in June 1999 because the Authority was not satisfied on the evidence available that her injuries were a result of a crime of violence.

71. On 24th March 1998 S (aged 33) made a statement to the police [H40-3 and J90-3] dealing with her time at Gwynfa. She said that she was neither physically nor sexually abused in any way. She described incidents when R, with whom she was sharing a room, screamed out at nights that there was somebody in the room touching her. She said that this scared her because, although she had not seen anyone or "heard the door go", she thought there might have been someone in the room and that she might also be attacked. She concluded that, at first, she thought R was "making it up" but, "when it went on", she believed R.

72. On 31st March 1998 T, a police officer who was at Gwynfa as a child in 1979, made a statement [H73-6 and J68-71]. He recalled that he was "the only coloured child at Gwynfa" and said that he was "never abused in any way" when he was there. In response to the specific allegation (made by G) that he had been hit on the head by the applicant and subjected to racial abuse by him, he said that this did not happen.

73. On 25th June 1998 the applicant was interviewed at Llandudno Police Station [J1-18] in the presence of his solicitor. The interviewing officers put to him the allegations made by A and G. The applicant said that he remembered A but not G. He denied all of the allegations made by A. He also denied the allegations made by G, explaining that he would never have kissed a child, even in "a parenting way", though he would sometimes have "put an arm around them" by way of reassurance if they were upset.

74. On 18th February 1999 the applicant was informed that the Crown Prosecution Service had decided that no further action would be taken against him [G36].

75. On 1st April 1999 the applicant's employment was transferred to the Conwy and Denbighshire NHS Trust following re-organisation. At that time the applicant remained suspended. The Trust decided to investigate the applicant's position and to implement their disciplinary procedures.

76. On 5th June 1999 K told Dr Friedman, the Consultant Psychiatrist instructed by his solicitors to prepare a medical report for the purposes of his action for damages against the Clwyd Area Health Authority [H208-220], that all the staff at Gwynfa were violent; that the applicant had habitually stubbed a pen into his buttocks to wake him up; that, on other occasions, the applicant had thrown a bucket of water over him to wake him; that he was also hit on the feet with a stick to wake him and that the applicant had once made sexual advances towards him.

77. On 9th July 1999 B asked for a review of the rejection of her claim for compensation. When, in November 1999, this application was rejected, B appealed to the Criminal Injuries Compensation Appeals Panel. In December 1999 her solicitors invited the Panel to postpone adjudication until after the publication of the Report of the Waterhouse Inquiry.

78. At a meeting on 18th January 2000 the Trust's Director of Nursing Services, Mr Edwards and the Director of Human Resources, Mr Stead, presented the applicant with a chronological list of the allegations made against him and copies of the documents relied upon in support of those allegations, contained in 3 lever-arch files.

79. In February 2000 the Report of the Waterhouse Inquiry was published. In Chapters 20 and 55 (at pages 301 and 827) it was noted that allegations against the applicant were being investigated by the police during the course of the Tribunal's hearings so that no attempt could be made to reach detailed conclusions about the regime at Gwynfa. However, in Chapter 20 paragraph 20.20 (at page 298) the Tribunal of Inquiry noted that allegations of sexual abuse had been made against four members of the staff at Gwynfa, including the applicant and Robert Williams, but that they did "not suggest a pattern of abuse amongst the staff, bearing in mind the length of the period under review".

80. On 19th May 2000 C made a statement to the police in which she described the operation of the "pyjama regime" and accused the applicant of repeated indecent assaults upon her in her room at Gwynfa. She said that the incidents of abuse happened "a number of times" before her 16th birthday but got worse after her 16th birthday. At the hearing C accepted that the references to her 16th birthday were mistaken because she was 16 when she was admitted to Gwynfa and celebrated her 17th birthday while she was there. In her statement C said that the abuse occurred "once or twice a week over the period from June to Nov December 1976".

81. On 14th July 2000 the Trust's Director of Operations, Mr Bellingham and the Head of Mental Health Nursing, Mr Holden, held a disciplinary hearing in St. Asaph. The case against the applicant was present by the Director of Human Resources, Mr Stead. The applicant was represented by Mrs Karen Davies, a Professional Officer of the Royal College of Nursing. After reading the documents and hearing representations, the panel decided that the applicant should be dismissed. The panel did not have access to patients' case notes because the Trust had been advised that these could not be released without the authorisation of the individuals concerned and their doctors.

82. On 20th July 2000 Mr Bellingham wrote to the applicant informing him of the decision to dismiss him and giving the reasons for that decision. He said that the panel had accepted that parts of the evidence were uncorroborated and that in some instances witnesses were "confused with regards to points of detail" but had taken into consideration the fact that the Waterhouse Tribunal of Inquiry had concluded that sexual abuse did occur at Gwynfa; that the allegations against the applicant covered a period of 10 years and were made by witnesses who were independent of each other; that the allegations, though extremely serious, were not exaggerated and that, though many other staff were employed at Gwynfa, the allegations were repeatedly made against the same named individual.

83. On 30th August 2000 the applicant was interviewed by two Detective Constables [F1-18]. The applicant said that he remembered C and recalled that she was "one of the kids that usually acted out" and "an extrovert". He rejected the suggestion that he had cancelled C's home leave, saying that, as a Staff Nurse, he would not have had that power. The applicant denied all of the allegations made against him by C.

84. The applicant appealed against his dismissal. On 20th October 2000 the Trust held an appeal hearing before two Non-Executive Directors, Mrs Cox and Mrs Jones and the Director of Finance, Mr Morris. The applicant was again represented by Mrs Davies. The case against him was presented by Mr Bellingham. After reading the documents and hearing representations the panel decided to dismiss the applicant's appeal.

85. In a letter dated 23rd October 2000 Mrs Cox set out the panel's reasons for the dismissal of the applicant's appeal [E105-6]. The panel noted that there was no evidence of collaboration between those making the allegations and that it was "important not to denigrate childhood memories in adulthood". Flaws in such memories should not, they said, invalidate them. The panel concluded that the decision of the Disciplinary Panel was fair and reasonable because the "totality of the allegations over a ten year period" gave them the required corroboration reasonably to believe that sexual and physical abuse and unprofessional conduct did occur at Gwynfa and "the allegations were consistently aimed" at the applicant.

86. On 18th September 2001 the Preliminary Proceedings Committee of the UK Central Council for Nursing, Midwifery and Health Visiting decided that the allegations against the applicant could not be proved beyond a reasonable doubt and should not therefore be placed before the Professional Conduct Committee [E107].

87. On 2nd November 2001 the Department of Health informed the applicant that his name had been provisionally included on the Protection of Children Act List.

88. On 15th April 2002 the applicant's solicitors sent observations as to why the applicant's name should not be confirmed on the List to the Department [A44].

89. On 29th August 2002 the Department informed the applicant's solicitors that the Secretary of State had decided to confirm the applicant's name on the List [A15].

90. On 2nd April 2003 B was awarded compensation in the sum of £7,800 by the Criminal Injuries Compensation Appeals Panel [F72].

91. On 30th September 2003 the applicant, Ms Love and Mrs Davies, having been told that others were alleging that they had followed A and C into the public house opposite their hotel on the previous evening, made written statements about their movements. They each described how they had left their hotel shortly after 7 p.m. and had walked to a nearby restaurant where they had remained until about 9 p.m. when they returned together to their hotel. They all confirmed that they had not been into the public house opposite the hotel at any time.

92. At the hearing, A confirmed that the contents of his witness statement dated 16th August 2003 were true. He acknowledged that his recollections of the dates when he had been at Gwynfa were contradicted by records kept by the NHS Trust but insisted that he had a clear recollection of being at Gwynfa, Little Acton and Bersham Hall at the times he had identified in his statements. He also acknowledged that, in conversations with M (which he had had shortly before M's sudden death in July 2002) M had contradicted him and had pointed out to him that his recollection of them being together at Bersham Hall must have been false. M had insisted (as records confirmed) that he had never been at Bersham Hall. Nevertheless, A said that he still had a clear recollection of being with M at Bersham Hall.

93. A confirmed when giving evidence that he remembered being abused at Little Acton and at Bersham Hall at the instigation of the man in charge of each establishment even though it had been pointed out to him that the man he named was not, in fact, in charge of those establishments when he was there but was employed elsewhere.

94. A confirmed his allegation that he had been given Largactyl by the matron at Gwynfa for the first time just before he was abused by the applicant in his room and that he had questioned the need for this drug to be administered but had been told that he had to take it. When confronted with records that showed that he had been taking regular doses of Largactyl long before the time he was allegedly abused by the applicant, A sought to distinguish between the tablets that he had been taking for some time and the syrup administered on the day in question. A also said that he had had no sexual experiences before he was sexually abused at Little Acton Assessment Centre and at Bersham Hall, before being admitted to Gwynfa for the second time.

95. A also described the events which he alleged had happened on 29th September 2003, when he encountered the applicant in the lobby of the hotel in which he, B, C, the applicant, the applicant's solicitor Ms Love and Mrs Davies were all staying (until different arrangements were made). He claimed that the applicant had "stalked" him by following him and C into the public house opposite the hotel and then following him back to the hotel when he and C left the public house to avoid him.

96. At the hearing, B confirmed that the contents of her witness statement dated 3rd June 2003 were true. She said that she had been given Valium for the first time just before she had been first assaulted by the applicant and that the drug had the effect of leaving her "aware but unable to do anything". She recalled that the applicant worked nights at Gwynfa and was "always there". She also recalled that the applicant had administered Valium in the presence of her room-mate (V), a person not mentioned in any of her previous statements.

97. When cross-examined by Mr Tillyard QC, B conceded that references in her earlier statements to descriptions of the applicant which were subsequently disputed by him had been left out of the witness statement prepared for her by her solicitors in June 2003. When asked to describe what happened when the applicant first entered her room from the fire escape, B became distressed and was unable to continue with her evidence.

98. At the hearing C confirmed that the contents of her witness statement dated 21st June 2003 and of the statement she made to the police on 19th May 2000 were true. Referring, in her evidence in chief, to the contemporaneous nursing notes [K52], C alleged that she returned to Gwynfa on Fridays when she knew that Martin Williams would be on duty but delayed her return until Saturdays when she knew that the applicant was on duty.

99. C also gave evidence that she had met A in the hotel on 29th September 2003 when she heard him talking about the case on his mobile telephone. She said that she had gone with A to the public house opposite the hotel and had left shortly afterwards with A because the applicant (with Ms Love and Mrs Davies) had followed them there and that the applicant and Ms Love and Mrs Davies had then followed them back to the hotel.

100. When cross-examined, C said that she had not made any allegations against the applicant at the time of the Waterhouse Inquiry and had delayed disclosing anything until 2000 because she had pushed the recollections to the back of her mind and because her mother was alive until 1999 and she wished to avoid causing her unnecessary anguish. When asked about a person whose name appeared in her file, C wrongly identified that person as the woman police officer who had admonished her in June 1976 after she had absconded from Gwynfa. C conceded that the repeated references in her statements to her 16th birthday were mistaken, since she had attained the age of 17 while resident at Gwynfa. She said that the applicant had abused her 4 or 5 times per week after her 17th birthday and would not accept that this could not have happened at the time she alleged because, although she was still registered as being a resident of Gwynfa, she was in fact living elsewhere.

101. At the hearing, the applicant confirmed that the contents of his witness statement were true save that he was wrong when he said that he could not recall C as a child at Gwynfa. He accepted that his different recollection when interviewed by police officers on 30th August 2000 was accurate. The applicant denied all of the allegations made against him. He could offer no explanations as to why his former patients should have accused him. He did say that there were times when he was obliged to confront children whose behaviour was unacceptable and that he did not "court popularity". His aim throughout was, he said, to prevent those admitted to Gwynfa being admitted, later in their lives, into the adult mental health system, if at all possible. The applicant said he would "hold his hand up" to accusations that he had sometimes used harsh words and imposed strict boundaries but not to accusations of physical or sexual abuse. He accepted that there were some children with whom he had not be able to establish any rapport and who had disliked him but he strenuously denied that he had ever made sexual approaches to any of his patients or used physical violence towards them.

102. Mrs Haydon confirmed that the contents of her witness statement dated 15th September 2003 were true. She explained that the children at Gwynfa were sometimes "unhappier" with the applicant because he was a symbol of authority but said that he was "very good with children" and that she had never seen any inappropriate behaviour by him.

103. Mrs Haydon also said that she was like a "big sister" to the children and they would have told her if anything untoward had happened, as they often did when one of the other residents behaved badly. She said that some of the staff occasionally "flouted the rules" (one being Martin Williams) but none of them treated the children harshly since they did not go to work at Gwynfa to be cruel. She was, she said, stunned and shocked by the allegations that emerged during the Waterhouse Inquiry and, in common with many others at Gwynfa, felt an enormous sense of guilt when she realised that she had unknowingly been party to sending children from disturbed backgrounds to homes where they became the victims of further abuse. However, she had agreed to give evidence because she could see how traumatic it was for those who were being falsely accused.

The law

104. Under section 4(3) of the 1999 Act, if the Tribunal is not satisfied that the individual applicant (a) 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) is unsuitable to work with children, it must allow the appeal. If the Tribunal is so satisfied it must dismiss the appeal.

105. Section 4 of the 1999 Act places the burden of proof on the Secretary of State.

106. The Tribunal has consistently held that the standard of proof required, in order to be satisfied as to the matters set out in section 4(3) of the 1999 Act, is that described in the decisions of the House of Lords in Re H and others (minors) (sexual abuse: standard of proof) [1996] AC 563; [1996] 1 All ER 1 [1996] 1 FLR 80 and Secretary of State v. Rehman [2002] 1 All ER 141.

107. In the former case, Lord Nicholls of Birkenhead said:
"Where the matters in issue are facts 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….
Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. Ungoed-Thomas J expressed this neatly in Re Dellow's Will Trust, Lloyds Bank Ltd v. Institute of Cancer Research [1964] 1 All ER 771 at 773: "the more serious the allegation, the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it""

In the latter case Lord Hoffman said:
"It would need more cogent evidence to satisfy one that the creature seen walking in Regent's Park was more likely than not to have been a lioness than to be satisfied to the same standard of probability that he was an Alsatian. On this basis, cogent evidence is generally required to satisfy a civil tribunal that a person has…behaved in some…reprehensible manner. But the question is always whether the tribunal thinks it more probable than not".

108. Mr Tillyard QC submitted that the law has moved on since the decision of the House of Lords in Re H and others and that the Tribunal should accept the guidance subsequently given by the House of Lords in R (on the application of McCann and others) v. Crown Court at Manchester otherwise reported sub nom. Clingham v. Royal Borough of Kensington and Chelsea [2002] 3 WLR 1313. In these cases the House of Lords considered the test to be applied by magistrates in cases involving anti-social behaviour orders under section 1 of the Crime and Disorder Act 1998. Mr Tillyard QC suggested that the Tribunal should acknowledge that, in cases where the allegation of misconduct against the applicant is an allegation of a serious criminal offence, there is no material difference between the "heightened" civil burden of proof and the criminal burden of proof and only find an allegation of such misconduct proved if it is satisfied by the evidence so that it is sure of the applicant's guilt.

109. In B v. Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340 (a case involving the imposition of prohibitions on a sex offender under section 2 of the Crime and Disorder Act 1998) Lord Bingham CJ, having held that the relevant proceedings were civil and not criminal, said:
"It should be clearly recognised … that the civil standard of proof does not invariably mean a bare balance of probability. The civil standard is a flexible standard to be applied with greater or lesser strictness according to the seriousness of what has to be proved and the implications of proving those matters…
In a serious case such as the present the difference between the two standards is, in truth, largely illusory. I have no doubt that, in deciding whether the condition in section 2(1)(a) is fulfilled, a magistrates' court should apply a civil standard of proof which will for all practical purposes be indistinguishable from the criminal standard."

110. In Clingham v. Royal Borough of Kensington and Chelsea; R (on the application of McCann and others) v. Crown Court at Manchester Lord Steyn said:
"Having concluded that the relevant proceedings are civil, in principle it follows that the standard of proof ordinarily applicable in civil proceedings, namely the balance of probabilities, should apply. However, I agree that, given the seriousness of matters involved, at least some reference to the heightened civil standard would usually be necessary: Re H (minors) (sexual abuse: standard of proof) [1996] AC 563 per Lord Nicholls of Birkenhead. For essentially practical reasons, the Recorder of Manchester decided to apply the criminal standard. The Court of Appeal said that would usually be the right course to adopt. Lord Bingham of Cornhill has observed that the heightened civil standard and the criminal standard are virtually indistinguishable. I do not disagree with any of these views. But in my view pragmatism dictates that the task of magistrates should be made more straightforward by ruling that they must in all cases under section 1 apply the criminal standard"

Lord Hope of Craighead said:
"It is not an invariable rule that the lower standard of proof must be applied in civil proceedings. I think that there are good reasons, in the interests of fairness, for applying the higher standard when allegations are made of criminal or quasi-criminal conduct which, if proved, would have serious consequences for the person against whom they are made.
There is now a substantial body of opinion that, if the case for an order such as a banning order or a sex offender order is to be made out, account should be taken of the seriousness of the matters to be proved and the implications of proving them. It has also been recognised that if this is done the civil standard of proof will for all practical purposes be indistinguishable from the criminal standard: see B v. Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340 per Lord Bingham of Cornhill CJ.
I would hold that the standard of proof that ought to be applied in these cases to allegations about the defendant's conduct is the criminal standard."

111. In City and County of Swansea v. K & S [2003] 1st August, unreported, Hedley J cited "the classic statement of the proper approach by the court in family proceedings" to be found in the speech of Lord Nicholls of Birkenhead in Re H and R and said:
"However, the House of Lords have more recently returned to this subject of the standard of proof in Re Clingham v. Royal Borough of Kensington and Chelsea.
[Lord Steyn and Lord Hope] acknowledge (and do not criticise) Re H & R but do seem "for pragmatic reasons" to propound the criminal standard. It may well be that the reconciliation is to be found in Lord Bingham's words referred to by Lord Steyn that in serious cases the Re H & R approach and the criminal standard are in fact indistinguishable, although the admissible evidence may be very different."

112. Mr Palmer on behalf of the Secretary of State submitted that it does not follow that, merely because a greater weight of evidence has to be placed in the balance to tip the scales in favour of a finding of serious misconduct, the fulcrum therefore has to be moved to change the point at which the scales are tipped. He submitted further that the purpose of the statutory scheme is child protection and the interests of children would not be served if only those convicted, or capable of being convicted, of criminal offences could be placed on the statutory list.

113. The Tribunal was not persuaded that it is now constrained by authority to apply the criminal standard of proof in cases involving misconduct that would also be a serious criminal offence. Cases arising under sections 1 and 2 of the Crime and Disorder Act 1998 are distinguishable from those brought before the Tribunal under section 4(1)(a) of the Protection of Children Act 1999. The "pragmatism" referred to by Lord Steyn does not have the same dictatorial effect in relation to an expert tribunal as it does in relation to lay magistrates. There are some similarities between, on the one hand, anti-social behaviour and sex offender orders and, on the other hand, the placing of a name on the statutory list. A person subjected to an order under the 1998 Act and a person whose name appears on the statutory list under the 1999 Act would both commit offences if they acted in breach of the prohibitions. The criminal penalties imposed (by sections 1 and 2 of the Crime and Disorder Act 1998 and by section 35 of the Criminal Justice and Court Services Act 2000) are the same. However, there are significant differences. The statutory list is not a public document and there is no public announcement of the inclusion of a name on it. A person whose name appears on the list is specifically prohibited from working with children. "Banning orders" under the 1998 Act are announced publicly and can, and often do, have a much wider effect.

114. Further, in C v. Secretary of State for Health [2003] EWCA Civ.10, the Court of Appeal had in mind the later decision of the House of Lords in Clingham v. Royal Borough of Kensington and Chelsea; R (on the application of McCann and others) v. Crown Court at Manchester when upholding the established approaches of the Tribunal to the burden and standard of proof (though Latham LJ cited the decision in support of a different proposition). The Court of Appeal rejected as misconceived the argument that proceedings before the Tribunal are effectively criminal proceedings in which the applicant is to be presumed innocent until proved guilty. Latham LJ said:
"The consequence of listing is not a criminal conviction. The proceedings before the tribunal are, accordingly, civil in nature and not criminal: see in particular the decision of the House of Lords in R (on the application of McCann and others) v. Crown Court at Manchester [2002] 4 All E R 593".

115. It is not the seriousness of the offence per se that results in the requirement for stronger or more cogent evidence but the greater implausibility, in most circumstances, of the allegation of a serious offence. In Re H and R Lord Nicholls recognised that the result might be "much the same" if the heightened civil standard of proof were applied but emphasised that "this does not mean that where a serious allegation is in issue the standard of proof required is higher". Similarly, Lord Hoffman, in Secretary of State v. Rehman, while recognising that cogent evidence is required to satisfy a civil tribunal that a person has behaved in a reprehensible manner, said that "the question is always whether the tribunal thinks it more probable than not". In R (on the application of McCann and others) v. Crown Court at Manchester Lord Steyn said that he did not disagree with the views of Lord Nicholls.

116. However, when considering the appropriate standard of proof and the cogency of the evidence the Tribunal should, as Hedley J observed in City and County of Swansea v. K & S, keep the words of Lord Steyn and Lord Hope "well in mind" and be aware that when, for example, the misconduct alleged amounts to a highly implausible charge of rape, the practical difference between the application of the civil and criminal standards of proof may be so slight as to be indiscernible.

Issues

117. It was submitted on behalf of the applicant that:
(i) if his name were retained on the list the consequences for his future employment would be very grave and the Tribunal should therefore allow the appeal unless it was sure that the applicant misconducted himself as alleged;
(ii) the evidence of those whose made statements but did not give oral evidence, though admissible, should be regarded as having little or no weight;
(iii) all of those who did give evidence orally (A, B and C) revealed themselves to be hopelessly unreliable;
(iv) the inconsistencies in the evidence of all of the witnesses render their evidence less than cogent;
(v) the more contemporaneous documentary evidence that emerged, the weaker the case against the applicant became;
(vi) the suggested similarities between the accounts given by different witnesses at different times do not add weight because there could easily have been communication between those witnesses;
(vii) the similarities in the allegations are not striking and are outweighed by the differences in them;
(viii) the report of the Waterhouse Inquiry is of no assistance to the Tribunal;
(ix) the applicant is not the only member of staff at Gwynfa against whom allegations have been made;
(x) it is possible that some of the allegations arose because of confusion of the identity of the applicant and of the convicted rapist, Martin Williams;
(xi) the accounts given by all of the witnesses (A, B, C, E, F, G, J, K and R) lack credibility and are not corroborated;
(xii) other witnesses who might have supported the accounts given by the applicant's accusers (L, M, N, P, Q, S, T, U, V and Mr Cluckie) in fact contradicted them;
(xiii) some of the witnesses truly but mistakenly believe that they were abused by the applicant and are not, therefore, properly to be accused of lying but their accounts are so unreliable that they cannot form a proper basis for a case against the applicant;
(xiv) the publicity surrounding the Waterhouse Inquiry and the "talk of compensation" lead to the possibility that some of the evidence against the applicant might be concocted;
(xv) the passage of time and the consequent staleness of the allegations make it intolerably difficult for the applicant to defend himself; and
(xvi) the applicant's unblemished record of service and good character must be placed in the balance.

118. It was submitted on behalf of the Secretary of State that:
(i) it would be enough for the Tribunal to be satisfied that the applicant's misconduct is more likely to have occurred than not;
(ii) the allegations made by B, J and K could not be upheld on the balance of probabilities;
(iii) there may be cases (as Latham LJ noted in C v. Secretary of State for Health) in which the written evidence is "sufficient to enable the Tribunal to come to a just conclusion";
(iv) it should be recognised (as Thorpe LJ noted in C v. Secretary of State for Health) that there are likely to be cases where the Secretary of State is unable to call oral evidence from the adults who in childhood suffered the harm;
(v) the possibility of an appeal being dismissed when the case against the applicant consists only of written statements is therefore explicitly recognised;
(vi) the inherent unlikelihood of the child abuse alleged is met by the sheer volume of evidence against the applicant;
(vii) there is no evidence of collusion between witnesses who gave evidence of strikingly similar activity by the applicant at different times;
(viii) C was a witness of truth who made limited and specific allegations against the applicant and who gave a convincing explanation as to why she had delayed her disclosures;
(ix) A was an honest witness who, despite his admitted difficulties with memory, gave a plausible account of abuse by the applicant;
(x) E made a credible allegation and her written evidence is particularly telling;
(xi) F's written evidence reads as a genuine and heartfelt complaint and any inconsistencies in it are minor;
(xii) G made clear and specific allegations against the applicant in several statements and her evidence is not wholly discredited and is, in part, corroborated, by the evidence of others;
(xiii) R's evidence is worthy of belief and her complaints against the applicant could properly be upheld;
(xiv) the applicant did not reveal himself to be a witness of truth when he gave evidence; and
(xv) Mrs Haydon was an equally unreliable witness.

Conclusions and reasons
Having carefully considered all of the evidence given and the arguments presented at the hearing and the witness statements and other papers submitted in advance, the Tribunal came to the following conclusions.

119. The charges against the applicant of misconduct which harmed a child or placed a child at risk of harm may be summarised as follows:
(i) that, on an unspecified date between 10th April 1975 and 2nd August 1975 he entered B's bedroom and indecently assaulted her by kissing her and placing her hand on his penis;
(ii) that, on another unspecified date between 10th April 1975 and 2nd August 1975, he entered B's bedroom and indecently assaulted her by kissing her and inserting his fingers into her vagina;
(iii) that, on another unspecified date between 10th April 1975 and 2nd August 1975, he entered B's bedroom and raped her;
(iv) that on an unspecified date in 1975 he took hold of E and attempted to pull her into a cloakroom;
(v) that, on several unspecified dates between 7th April 1976 and 7th December 1976 he entered C's bedroom and indecently assaulted her by touching her breasts, inserting his fingers into her vagina and requiring her to touch his penis;
(vi) that, on an unspecified date between 1976 and 10th April 1977 he assaulted F by applying heavy pressure to his hand for between 15 and 30 minutes;
(vii) that, on an unspecified date between 20th March 1978 until 26th May 1978 he indecently assaulted A whilst driving in a minibus;
(viii) that, on several unspecified dates between 20th March 1978 until 26th May 1978 he entered A's bedroom and indecently assaulted him by sucking his penis and masturbating him manually;
(ix) that, on an unspecified date in 1978 he indecently assaulted G in the staff office;
(x) that, on an unspecified date between 15th October 1979 and 8th February 1980 he entered R's bedroom and indecently assaulted her by inserting his fingers into her vagina;
(xi) that, on another unspecified date between 15th October 1979 and 8th February 1980 he indecently assaulted R in the sports room by pressing her against a wall and placing her hand on his penis;
(xii) that, on an unspecified date between 1981 and 1983 he indecently assaulted J in a bathroom by kissing him, fondling his penis and having anal intercourse with him;
(xiii) that, on several unspecified dates between January 1982 and May 1982 he assaulted K by throwing buckets of cold water over him, hitting him on the head and legs with a stick and jabbing him in the buttock with a pen;
(xiv) that, on an unspecified date between January 1982 and May 1982 he indecently assaulted K by indicating that he wished to have sexual contact with him.

120. The applicant has consistently denied each and every allegation of misconduct.

121. There are many reasons why a disturbed or depressed adult might make false allegations of abuse against someone responsible for their care whilst a child. Many of these were canvassed during the hearing: (i) "false memory syndrome" (induced by over-zealous therapists or counsellors); (ii) "the bandwagon effect" (the inclination to join with other disadvantaged people in publicly accusing figures in authority); (iii) a desire to obtain financial compensation; (iv) a desire to exact revenge for perceived injustices; (v) simple attention seeking; (vi) "scapegoating" of a hated authority figure for a failure to achieve success in life; (vii) transposition of responsibility for abuse suffered at the hands of others on to a particularly despised individual; (viii) a desire to cleanse feelings of degradation; (ix) translation of sexual fantasies into realities and (x) the distortion of perception by many years of consumption of psychotropic drugs. All of these were plausible explanations as to why former patients of Gwynfa might have made false allegations against the applicant and others.

122. In the light of the facts: (a) that all of those who accused the applicant had been sufficiently disturbed as children to be admitted to a specialist psychiatric unit; (b) that all of the witnesses who gave oral evidence are still being treated for psychiatric disorders; (c) that all of the witnesses could have been prompted into making or amplifying their allegations by police officers and others anxious to expose wrongdoing; and (d) that many of the witnesses could have been inadvertently encouraged to make allegations by counsellors concerned to enable them to unburden themselves, the Tribunal felt it appropriate to view the allegations with circumspection and to look carefully for corroboration of them before accepting their validity.

123. The case against the applicant depends entirely upon the evidence of each of his alleged victims. The Tribunal examined each of the allegations in turn.

124. The Tribunal rejected the allegations made by B (summarised in sub-paragraphs 119 (i) to (iii) above) as untrue.

125. It was accepted on behalf of the Secretary of State that B's evidence could not be relied upon. The Tribunal was satisfied that this concession was correctly made. B's witness statement (apparently prepared on her behalf by her own solicitors) was unsatisfactory. The editing out of her earlier descriptions of her alleged abuser (which it was known could be shown to be inaccurate descriptions of the applicant) served only to confirm the suspicion that B could well have been mistaken as to the identity of her assailant. B's description of the applicant as a member of the night staff was obviously wrong and her attempts to justify that description were unconvincing.

126. B suggested that she had complained to her social worker, Sue Wildermouth that she hated the applicant. This evidence was directly contradicted by Ms Wildermouth in her statement to the police.

127. B's surprising references in her oral evidence to her room-mate (not previously made in her written statements) indicated that her allegations could have been corroborated by her. In fact, they were contradicted by V's statement made to the police in April 1993.

128. There are many inconsistencies in the accounts given by B on different occasions, some of which were noted by Mr Williams when he conducted his investigation in October 1993. Allegations concerning the administration of drugs could have been corroborated by contemporaneous records but were, in fact, contradicted by those records.

129. It is impossible to reconcile B's complaint that no one listened to her when she was in care with the evidence that a Clinical Psychologist saw her 3 times per week when she was at Gwynfa.

130. B's reluctance to give an account of the abuse that she allegedly suffered at Gwynfa at the hearing was surprising and was not adequately explained. Transcripts of the evidence that she gave to the Waterhouse Inquiry show that she had no apparent difficulty in describing precisely what had allegedly happened to her at Gwynfa and was not overcome by her emotions on that, more public, occasion. The Tribunal was driven to the conclusion that B rightly feared that her account would be shown to be inconsistent and false if she allowed herself to be subjected to effective cross-examination.

131. The allegation by E (summarised in sub-paragraph 119(iv) above) does not amount to an allegation of misconduct. The applicant could have had many legitimate reasons for taking E to one side and her alleged belief that he attempted to pull her into a cloakroom for sexual purposes was, at best, purely subjective. Furthermore, E was taken into care order because she was beyond parental control and she had stayed at Ty'r Felin for some time. Her alleged perception that she was likely to be subjected to sexual abuse could well have been the result of experiences in places other than Gwynfa. E's description, in her statement to the police on 10th March 1992, of her alleged assailant as "a large fat man" suggests that she may, in any event, have been mistaken as to the identity of the applicant.

132. The Tribunal was not satisfied that that the applicant assaulted C in the manner summarised in sub-paragraph 119(v) above or at all.

133. C was an unsatisfactory witness. Her insistence that, on 29th September 2003, she had gone with A to the public house opposite her hotel and had left shortly afterwards with him because the applicant (with Ms Love and Mrs Davies) had followed them there and that the applicant and Ms Love and Mrs Davies had then followed them back to the hotel seriously undermined her credibility.

134. C's explanation as to why she had made no complaint about events that allegedly occurred in 1976 until 19th May 2000 was, to some extent, credible. It was apparent that C's relationship with her mother gave rise to emotional responses with which she still cannot cope. However, her mother died in 1999 and she did not make her revelations about the applicant until pressed to do so by her counsellor in 2000. In her witness statement, C explained that the abuse that she had suffered "just wouldn't go away anymore" and that she felt unable to hide it when Gwynfa was frequently mentioned in the news media at the time of the publication of the Report of the Waterhouse Inquiry (in February 2000). C was unable to say why she had given this different explanation of her extended silence when interviewed in May 2000 or why she had not mentioned her mother at that time.

135. The late acquisition of the contemporaneous records relating to C's stay at Gwynfa was fortunate in that they demonstrated that much of her account was unsustainable. In her statement made on 19th May 2000 C said that the abuse by the applicant occurred "once or twice a week over the period from June to Nov December 1976". At the hearing, C said that the applicant had abused her 4 or 5 times per week after her 17th birthday (which was in June 1976). This could not have happened at the time C alleged because, although she was still registered as being a resident of Gwynfa until December 1976, she was, as the contemporaneous records revealed, living elsewhere. From August 1976 C spent half of her time at her mother's home and, on 4th November 1976, she began living and working in a home for the elderly. A few weeks thereafter she moved to live and work in a residential school in Rydal.

136. C maintained, both in her written statement and in her oral evidence, that her behaviour at Gwynfa became progressively worse as a result of the frequent sexual assaults upon her by the applicant. The contemporaneous records do not support this contention. It was said in terms that C's behaviour did not change during her stay at Gwynfa.

137. C alleged that the applicant cancelled her home leave as a punishment and so that she would be available as his "plaything". The contemporaneous records show that the reason why C did not go home was that she did not want to and that the medical staff were anxious to promote better relations between C and her mother. In those circumstances it was impossible to believe that the applicant would have deprived, or would have been permitted to deprive, C of her home leave and the Tribunal rejected that allegation accordingly.

138. The contemporaneous records also show that C was seen to be keen to stay at Gwynfa and to secure employment there. It is in the highest degree unlikely that she would have demonstrated such a desire to remain in the care of, and to become a junior colleague of, the applicant if she were, at the same time, being sexually abused by him. That would not, of course, have been unlikely if C had been happy with her alleged sexual relationship with the applicant. However, C was adamant, when giving her oral evidence, that, although she had not realised that what was happening to her was wrong, she did not enjoy, and was greatly distressed by, her experiences.

139. When giving oral evidence C demonstrated a tendency to "latch on" to references in the contemporaneous records which appeared to assist her and to make apparently plausible but false points by reference to them. Of particular significance was her reference, in her evidence in chief, to the passage in the contemporaneous nursing notes (which she had taken the opportunity to peruse before giving evidence) in which a comment was made about her return to Gwynfa on a Friday or Saturday after she had gone home on a Wednesday. C alleged that she returned to Gwynfa on Fridays when she knew that Martin Williams would be on duty but delayed her return until Saturdays when she knew that the applicant was on duty. She explained that Martin Williams was kind to her whereas the applicant abused her. C had apparently misread the note. It does not say (as it might at first sight appear) that her return was dependent on whether the applicant or Martyn (sic) was on duty but that her return was dependent on whether the applicant and Martyn were on duty. The true implication of the note is that C returned early either because she enjoyed the company and/or attention of both of these staff members or that she delayed her return because she disliked both of them. The contemporaneous notes reveal that C was "relating well" to the applicant in June 1976 and therefore support the former implication. Accordingly, it was apparent that, in her determination to convince her listeners of the applicant's guilt, C was prepared to falsify her evidence. In June 1976 she was not fearful or resentful of the applicant as she alleged.

140. Having made allegations to the authorities, at the instigation of her counsellor, C may have felt unable to extricate herself from the process and obliged to persist with false allegations.

141. C's erroneous identification of the name of one of the other children resident in Gwynfa as the name of the woman police officer who had admonished her in June 1976 confirmed her tendency towards self-deception.

142. The Tribunal was not satisfied that that the applicant assaulted F in the manner summarised in sub-paragraph 119(vi) above or at all.

143. F did not give oral evidence to the Tribunal because the investigator acting on behalf of the Secretary of State was unable to find him. There were therefore no explanations of the several inconsistencies in the various accounts given by F. The alleged assault occurred when F was only 6 years old. He asserted in August 1993 that he continued to suffer from "paranoia". In 1993 he alleged one assault by the applicant, not witnessed by anyone else, which persuaded him to admit to a theft of sweets but in 1997 he alleged repeated assaults by the applicant, witnessed by others, which did not provoke any confession by him but resulted in further humiliation. The Tribunal was completely unable to discover whether F was telling the truth or whether he was deluded and/or induced to make false allegations against the applicant and others.

144. The Tribunal was not satisfied that that the applicant assaulted A in the manner summarised in sub-paragraphs 119(vii) and (viii) above or at all.

145. A was a wholly unreliable witness. He admitted that many of his recollections of his childhood were false. His claim that the applicant had "stalked" him by following him and C into the public house opposite his hotel on 29th September 2003 and then following him back to the hotel when he and C left the public house to avoid him seriously undermined his credibility.

146. A's many, long and detailed statements were demonstrably false. He was completely wrong about the dates upon which he was admitted to Gwynfa and to other establishments and about the staff who were in charge of those establishments. The Tribunal was satisfied that A was probably sexually abused whilst in care but was not persuaded that the applicant was in any way responsible for that abuse.

147. Not only were A's allegations uncorroborated but most of his account was contradicted by other witnesses and by contemporaneous records. For example, A said that he had had no sexual experiences before he was sexually abused at Little Acton Assessment Centre and at Bersham Hall, before being admitted to Gwynfa for the second time (in March 1978) but notes made at the time show that, on 20th November 1975, A was involved in sexual experiences with another boy with whom he was found naked and that he showed "no feeling" when spoken to about this episode. Further, A described, both in his written statements and in his oral evidence, how he was, under protest, given a dose of Largactyl by the matron for the first time before he was assaulted by the applicant (which would have been in April or May 1978). He insisted that he had questioned the need for this drug to be administered but had been told that he had to take it. Records show that from 29th March 1978 regular doses of Largactyl were prescribed for A and that the drug was administered to him 3 times per day. The Tribunal was driven to the conclusion that, while some of A's unreliable evidence might have been the result of "false memory syndrome" or genuine mistake, on this occasion he was simply lying in an attempt to add credence to his allegation.

148. Several witnesses referred to A's unreliability and mendacity. M described him as "an idiot and a very good liar" and as an attention seeker. A's Head Teacher referred to his ability to make up stories. N impliedly characterised him as a false witness when he said that he could not have absconded with him from Gwynfa to his home in Borras because he did not live there at that time. N also said that he was treated well at Gwynfa and never witnessed or suspected any form of abuse by any member of staff.

149. A was not only wrong about dates. His recollection of the sequence of events was equally erroneous.

150. A made the remarkable admission that he retained a clear recollection of being abused at Bersham Hall, and of discussing that abuse with M at Bersham Hall, despite his acknowledgement that M had convincingly contradicted him and had pointed out to him that his recollection of them being together at Bersham Hall must have been false. It follows that the apparent clarity of A's recollections of abuse by the applicant indicates nothing about whether those recollections are true or false.

151. Unsurprisingly, A was not called to give evidence to the Waterhouse Inquiry. This was probably because it was clear, from his various statements, that A's allegations, particularly those that he made against the Officer in Charge of Bersham Hall and Little Acton, could not possibly have been true.

152. The Tribunal was not satisfied that that the applicant assaulted G in the manner alleged in sub-paragraph 119(ix) above or at all.

153. G declined to make a witness statement in 2003 and chose not to attend the hearing to give oral evidence. All of G's allegations were uncorroborated and many of them were contradicted by others. For example, in her statement dated 29th July 1997, G alleged that the applicant had hit "a black boy over the head". That boy must have been T. T said that no such assault ever happened. Further, in her statement made in November 1997, G described an incident of indecency involving a cook from Gwynfa and U which allegedly took place in the cook's flat in Llandudno. U denied that she had ever been to that flat with G. On 1st September 1997 G alleged that her friend P had told her that she had had a sexual relationship with the applicant. G also later explained that, when P had told her that she had had a sex with the applicant, she appeared "quite happy with what she said had happened". In February 1998 P said she was certain that she had never told G that she had had a sexual relationship with the applicant and that she had had no such relationship.

154. The Tribunal was satisfied that R's allegations that the applicant assaulted her (summarised in sub-paragraphs 119(x) and (xi) above) were untrue.

155. R's allegations were uncorroborated and were contradicted by those who could have confirmed them. For example, in November 1992 R alleged that the applicant indecently assaulted her in her room at Gwynfa when S was present. In October 1993 S said that male staff had never entered her bedroom and that she had no recollection of any incident like that described by R. S also said that R was "really weird" and frequently woke up shouting that "lads were touching her up" at nights when there was nobody else in the room. Even when, on 24th March 1998, possibly under some gentle pressure from her interlocutors, S made a rather different statement (which she concluded with observations to the effect that, at first, she thought R was making it up but later believed her) she still said that she had not seen or heard anyone else in the room that she shared with R during the nights at Gwynfa.

156. Further, L said that he had not seen anything improper happening between the applicant and R and that when he had specifically asked R whether there had been "anything going on" between her and the applicant she was "non-committal". Q, who was "very close" to R, did not support any of her allegations.

157. In relation to R's second allegation (of an assault in the sports room witnessed by Mr Cluckie), Mr Cluckie was "positive" that he had never witnessed anything improper involving the applicant and R and that he had not heard about "any issues of concern" at the relevant time.

158. At the conclusion of the hearing Mr Palmer said on behalf of the Secretary of State that he no longer intended to rely upon the allegations of abuse by J and K (summarised in sub-paragraphs 119(xii) to (xiv) above) since the evidence in support of them could not reasonably be regarded as reliable. The Tribunal took the view that this concession was wise.

159. J's identification of the applicant and his description of the place in which he claimed to have been abused were less than satisfactory and he declined to assist when asked to give oral evidence to the Tribunal. There is clear evidence that J was abused by others but no reliable evidence that the applicant was ever involved.

160. K's evidence was similarly unconvincing. He was known for his "fluent inventiveness" and for his ability to lie convincingly. He had previously made and retracted serious allegations against staff at Ty'r Felin. He said nothing about abuse at Gwynfa when he first made allegations in 1986. His obviously exaggerated allegations of mistreatment were as inconsistent as they were implausible.

161. The Tribunal was troubled by the number of complaints of improper, harsh and violent behaviour made by former residents of Gwynfa, apparently independently, and by the suggestions, made by a number of female former residents, that the applicant had a reputation for lewd behaviour with girls. Having seen and heard the applicant give evidence, the Tribunal suspected that, during his 19 years of service at Gwynfa, he had probably behaved less than impeccably on a number of occasions and might well, when distressed or angered by some of the extreme behaviour of patients, have raised his voice and otherwise behaved in an intimidating manner. The Tribunal also suspected that the applicant, in the course of legitimate attempts to counsel and befriend patients, may have inadvertently approached them in ways that, because of their particular sensitivities, they found worrying and/or disconcerting. However, in entertaining these suspicions the Tribunal was far from concluding that the applicant was guilty of any improper conduct and even farther from concluding that he was guilty of the specific misconduct alleged against him. For 15 years and more the applicant was in a position of authority. He was regularly required to confront the bad behaviour of the juvenile patients; to remind them of the boundaries within which they should confine themselves and to calm them at times when they were experiencing extreme distress and anxiety. Accordingly, the Tribunal was not surprised that some of the former patients were prepared to make vengeful accusations against the applicant, particularly when allegations against other care workers in Clwyd were receiving very considerable attention from the news media. In the light of the applicant's sustained denials and the complete absence of satisfactory corroboration of the allegations made against him, the Tribunal was quite unable to find that those allegations were true.

162. The Tribunal looked carefully for corroboration of the allegations against the applicant in the evidence of other members of the staff of Gwynfa and of other responsible adults but found none. There is no evidence that the staff of Gwynfa were prepared to cover up for each other. On the contrary, there is evidence that, on several occasions, members of staff reported incidents of misconduct by their colleagues. All of those members of staff asked to comment upon, or give evidence about, the applicant were supportive of him and, either expressly or impliedly, rejected the allegations made against him. Ms Jones, who worked as a nursing assistant with the applicant at Gwynfa for several years, was somewhat equivocal but said that she had never seen anything untoward and that children had never reported anything to her. The Matron (Mrs Tooby) described the applicant as "competent, confident and reliable". The Senior Nurse (Mr Berry) described the applicant as "particularly skilled in counselling both staff and children". Mrs Haybittle, who worked as a member of the night staff at Gwynfa for many years and worked closely with the applicant on a number of occasions, said that she was surprised that he had been investigated by the police and that she liked him. She found him to be "a warm and caring person". Mr Cluckie had not heard about "any issues of concern". Ms Wildermouth said that the applicant was a very kind and very understanding man. Mrs Haydon was fully and wholeheartedly supportive of the applicant. The applicant's reputation is to be contrasted with that of Martin Williams, who was suspected and distrusted long before he was found to have raped one of his patients. The applicant was never thought or suspected to be untrustworthy.

163. Both the applicant and Mrs Haydon were understandably defensive about the disciplinary regimes ("pyjama therapy" and "bed therapy") that they were permitted, if not required, to operate at Gwynfa in the 1970's and early 1980's. Psychologists would now advise against such treatment of children but, at the time that they were used at Gwynfa, it was regarded as an acceptable alternative to physical restraint or incarceration. It was not suggested that the applicant was, or could have been, guilty of misconduct by implementing these "therapies" but he remained anxious to justify their use and to emphasise that they were only employed on limited occasions. His attempts (and those of Mrs Haydon) at justification and minimisation were unconvincing but they did not lead the Tribunal to doubt the applicant's honesty in general or to reject his denials of the misconduct alleged.

164. Accordingly, the Tribunal was not satisfied that the applicant 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 was therefore not satisfied that the applicant is unsuitable to work with children. The Tribunal therefore decided to allow the applicant's appeal.

165. The decision of the Tribunal was unanimous.

Order

The applicant's name shall be removed from the list kept under section 1 of the Protection of Children Act 1999.

Signed

John Reddish
Chairman
Sallie Prewett
Christopher Wakefield

6th November 2003