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England and Wales Care Standards Tribunal
You are here: BAILII >> Databases >> England and Wales Care Standards Tribunal >> Reece v Secretary Of State For Health [2003] EWCST 129(PC) (18 October 2003)
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Cite as: [2003] EWCST 129(PC)
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Reece v Secretary Of State For Health [2003] EWCST 129(PC) (18 October 2003)
Keith Reece v Secretary Of State For Health
[2003]129.PC
BEFORE
Mr. Simon Oliver (Chairman)
Dr. Jill Low
Mr. Michael Flynn
26th September 2003
Application
The applicant appeals under Section 4(1)(a) of Protection of Children Act 1999 (`the Act`) against the decision of the Secretary of State for Health to include his name on the list kept under Section 1 of that Act.
Preliminary
The applicant requested on 20th June 2003 pursuant to Regulation 7(1) of The Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 that the appeal should be determined without an oral hearing. Accordingly the Tribunal has determined the application by consideration of the documents alone.
Legal Framework
1. By virtue of Section 4(3) of the Act, if the Tribunal is not satisfied of either
- that the individual is 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
- that the individual is unsuitable to work with children,
the Tribunal shall determine the issue in the individual’s favour.
2. In applications of this nature, the burden of proof is upon the Secretary of State for Health to prove that the applicant is guilty of misconduct. The standard of proof to be applied is the test set out in Re H and Re R (Child Sexual Abuse: Standard of Proof) [1996] 1FLR 80; that is on the balance of probabilities but on the basis that the more serious the allegations, the more compelling the evidence has to be.
3. It is then for the applicant to prove that he is not unsuitable to work with children.
Facts
4. Mr. Reece’s date of birth is variously recorded as 28th August 1946, 1948 and 1949 in the documents we have considered. Although this is not material to our decision, it may be of importance if it was ever necessary for police checks to be undertaken. As Mr. Reece has given his year of birth as 1946, we will assume that this is the correct year. On that basis, therefore, Mr. Reece is now aged 57 years.
5. From the papers we have established that Mr. Reece’s employment started in the 1970s when he was employed by NCH Action for Children (‘NCH’) between 1974 and 1978 at the Newton Hall children’s home in Cheshire. Although the allegations made against Mr. Reece concern only this period of employment, it is important to note the rest of his working life. Between January 1978 and August 1985, Mr. Reece was employed by NCH in Selly Oak.
6. He then spent between August 1985 and March 1987 working for the NCH in Jersey, transferring to the Duncroft Children’s Home in Staines run by Barnardos between March 1987 and July 1990. Mr. Reece spent about one year at Hilltop School in Ludlow between 1990 and 1991. On 15th April 1991, Mr. Reece was appointed the project manager of the NCH’s Bonner House in Birmingham. He remained there until his employment was terminated in 1999.
7. As a result of information received by NCH from the police that serious allegations of physical and sexual abuse had been made against him, Mr. Reece was suspended from his post on 17th February 1998. Little then appears to have happened in relation to NCH until Mr. Reece and his solicitor were called to a meeting on 7th January 1999. Although it was not made known to Mr. Reece at the time, it is now clear from the notes of the meeting and subsequent steps taken that the meeting was a dismissal meeting. The notes of the meeting suggested that Mr. Reece would receive a letter setting out details of what happened. This must have occurred as we note that on 10th January 1999 he exercised his right of appeal against the dismissal. In addition to appealing internally Mr. Reece applied to the Employment Tribunal on 5th March 1999.
8. Both applications were not considered until 2001 because criminal proceedings were then brought against Mr. Reece. On 26th March 1999, he was charged with a number of offences related to physical and sexual abuse of children during the 1970s and made his first appearance at Northwich Magistrates Court on 10th May 1999. This case concluded in a contested trial at Chester Crown Court in October 2000. Verdicts of not guilty were returned on 17th October 2000.
9. The employment issues were resolved in 2001 when Mr. Reece’s internal appeal against dismissal was dismissed on 9th March 2001 and the Employment Tribunal hearing took place on 6th September 2001. The Tribunal’s decision (dated 21st November 2001) was that Mr. Reece’s dismissal was unlawful and that he was entitled to have been given a minimum of seven weeks’ notice. At paragraph 11 of the Employment Tribunal’s decision they said "the principal reason for the applicant’s dismissal was not the fact or nature of the allegations made against him (a matter of conduct) but the delay in resolving them."
10. NCH first referred Mr. Reece’s name to the Department of Health for inclusion on the Consultancy Service Index on 16th July 1999. The civil servant dealing with the matter sought further information in August 1999. It is unclear from our papers as to why there was no decision about whether to "list" Mr. Reece during 2000 and it was not until 21st January 2002 that the Department of Health wrote to Mr. Reece informing him that his name was to be provisionally added to the list held by the Department. The provisional listing was confirmed on 17th October 2002 and Mr. Reece appealed that decision by solicitor’s letter to this Tribunal just within the three month time limit on 15th January 2003. The formal notice of appeal was only received on 1st March 2003.
11. The NCH originally referred Mr. Reece to the Department of Health pursuant to Regulation 19(2) (b) of the Children’s Home Regulations 1991. Because there was no decision about Mr. Reece’s status until 2002, the 1991 regulation had been superseded by the Protection of Children Act 1999 which came into force on 1st September 2000. The criteria we have to apply are set out on Section 2 of the Act.
12. To determine whether NCH is able to refer Mr. Reece to the Secretary of State we need to determine whether or not Mr. Reece was dismissed on grounds of misconduct. Section 2(2)(a) of the Act makes it clear that a dismissal on grounds of misconduct is a prerequisite for the listing process. In other words, if there is no dismissal on grounds of misconduct there can be no listing. This is a change from the previous procedures under Regulation 19 and places the burden much more clearly on the employing body to take action. There are other criteria contained in section 2(2) but from the papers in this case Mr. Reece does not fit into any of them.
Conclusions
13. We have come to the conclusion that Mr. Reece was dismissed on grounds of misconduct not withstanding the decision of the Employment Tribunal. We note that that Tribunal said in paragraph 11 that the primary reason for dismissal was the delay in resolving the matter. This clearly indicates that one of the reasons for the dismissal, as is the case of his original suspension, must be misconduct. In addition, whether or not the Employment Tribunal found the dismissal unlawful, it is the case that Mr. Reece was dismissed. We are aware that an Employment Tribunal could have ordered reinstatement or reengagement but chose to do neither.
14. We are informed by Mr. Reece’s solicitors that he has not worked with children since 1999 and that he is terminally ill. We have not been informed by Mr. Reece or his advisers and there is nothing in the papers we have read to enable us to ascertain whether Mr. Reece has worked in any capacity at all since 1999. We cannot assume that Mr. Reece is deemed to have resigned or retired as a result of the Employment Tribunal’s decision and there is nothing said in any document we have read to lead us to have any doubts that Mr. Reece was in fact dismissed. Indeed, had this not been the case, we would have anticipated that the point would have been made on his behalf that he was not dismissed on the grounds of misconduct and as a consequence he was not within section 2(2)(a) of the Act.
15. The history of this matter since 1998 shows that there has been a somewhat unsatisfactory process in dealing with Mr. Reece. It is more by chance than skill that NCH has found itself in a position that this Tribunal is able to consider the listing. Had the decision to dismiss not been taken we would have had no jurisdiction given the delay between the referral in 1999 and the listing in 2002. In hindsight, it is easy for us to say that the meeting on 7th January 1999 was badly handled, although we appreciate that NCH might have been under pressure from the police not to reveal their information at an early stage. NCH is not a small-scale charity, it is an high profile national organisation employing a large number of people. It did not need to get itself into the muddle it did. We feel that NCH should have been clear and robust in its employment procedures.
16. The lack of an oral hearing has made it somewhat difficult to ascertain with absolute clarity what has happened at certain times. There are points where clarification by way of oral evidence would have been helpful, for example, it would have been helpful to have fully understood the processes leading to the meeting on 7th January 1999 and to why the internal investigation was stopped, although we wonder whether it was as a result of concurrent police investigations. Likewise, we had no information as to the results of the enquiries to be made of other agencies as a result of the NCH strategy meeting held on 18th June 1999.
17. In reviewing the evidence presented in the papers we have come to the conclusion that the decision by the Secretary of State for Health to put Mr. Reece’s name on the list of those people regarded as unsuitable to work with children was right and we will therefore dismiss this appeal.
Reasons
18. There are a number of reasons for our decision. First we had the written statements of six children. These were statements taken by the police in connection with the criminal investigations. We note that most of the circumstantial evidence agrees and although it may be difficult to be precise about a specific date, the fact that, for example, Christopher and Marina identify incidents by linking them to events in their lives (such as a new Everton shirt or the penalty shoot-out competition) adds weight to their evidence.
19. We note that all the witnesses refer to incidents happening in secluded outdoor or infrequently visited indoor places. This again adds credence to their recollections. Other features of their evidence show a number of them developing survival strategies – whether it be putting lavatory paper up their bottoms or only having a 2 inch deep bath. One of the witnesses, Marina, actually identifies Mr. Reece in a photograph as the person who abused her.
20. Not least of all, the six witness statements show a fairly familiar modus operandi: finger penetration, masturbation, attempted penile penetration and oral sexual gratification by trying to get their heads on his penis. It is clear from the statements that if Mr. Reece could not get an orgasm himself, he got the children to do it for him.
21. It is our conclusion on the evidence of those children that Mr. Reece enjoyed humiliating these children in a sadistic way, that his behaviour was calculated and that, as is so often the case, he threatened his victims to ensure that they kept quiet. Although it is possible that the two brothers might have colluded in their evidence, the graphic nature of all the evidence from all the witnesses leads us to come to the conclusion on the balance of probabilities and applying the Re H test that Mr. Reece did abuse these children.
22. Another reason for coming to this conclusion is that we have no evidence whatsoever from Mr. Reece to contradict these witnesses’ statements. For whatever reason, Mr. Reece has chosen not to submit any statement to this Tribunal to contradict the evidence we have. The President of this Tribunal (His Honour Judge Pearl) gave directions on 27th June 2003 enabling Mr. Reece to file a statement in reply to the children’s evidence if he wished. He did not. Whilst silence is not of itself evidence of guilt, since we have nothing to counter the witnesses’ statements we are entitled to take them as at least not disputed.
23. Notwithstanding the evidence of what has happened, it is still open to us to come to the conclusion that Mr. Reece’s name should still be removed from the list if we are satisfied that he is not unsuitable to work with children (the second part of section 4(3) of the Act). The fact that we have been told by his solicitors that Mr. Reece has not worked with children since 1999 and may never do so again because of his terminal illness is irrelevant. Mr. Reece, again for whatever reason, did not submit any evidence that he has change his behaviour. Of course this could be because he believes that he is totally innocent. If that is the case then we would have expected him to submit evidence that his behaviour has never been such as to pose a risk to children.
24. Evidence of a change or of innocent conduct usually takes the form of a report from a psychiatrist. There is no such report in our papers. Further, we would have expected to see some evidence of Mr. Reece having undertaken treatment or therapy since 1999 if any earlier psychiatric report had identified him as a risk to children. It is as if Mr. Reece does not accept that he has anything to answer for. However, we think that this lack of evidence coupled with the lack of a statement refuting the children’s testimony is misplaced arrogance – almost challenging the Department to prove that abuse had occurred because of the delay and the not guilty verdicts at the Crown Court.
25. We are entirely clear that the evidence available leads us to the inevitable conclusion that Mr. Reece committed physical, sexual and emotional abuse of children over a number of years and that he has not changed. We regard him as still being unsuitable to work with children. In those circumstances and for these reasons we dismiss his appeal.
Order
We dismiss this appeal.
Dated: 18th October 2003
Chairman: Simon Oliver