England and Wales Care Standards Tribunal

 


Hadyn Henry Davies

v

Secretary of State for Health

[2003] 0188.PC

William Evans (chairman)

Helen Hyland

John Williams

Hearing date 20 February 2004

Application

1. The applicant appeals under s.4(1)(a) of the Protection of Children Act 1999 against a decision under s.1 of that Act to include him in the list of individuals who are considered unsuitable to work with children.

Preliminary

Representation

2. At the hearing the applicant appeared in person. The respondent was represented by Mr Auburn of counsel, instructed by the Solicitor to the Department of Health.

Procedure

3. In his application the applicant asked for certain orders. On 10 September 2003 the President made directions under regulation 6(2) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 (the 2002 Regulations). Those directions (a) required both parties to send all witness statements to the Tribunal within 20 days; (b) explicitly left for determination by this tribunal at the hearing whether there should be (i) an order excluding press and public from the hearing, and (ii) a restricted reporting order prohibiting the publication of any matter likely to lead members of the public to identify the applicant; and (b) left for further decision, which in the event was not made before the hearing, whether certain letters referred to in, but not enclosed with, the Secretary of State's response should be included in the Tribunal's bundle.
4. At the start of the hearing we invited representations from the parties on whether we should make such orders.
5. Under regulation 18 of the 2002 Regulations we may make a restricted reporting order "if it appears appropriate to do so." Given that the parties might refer during the hearing to individuals who were children at the time they were the subject of allegations against the applicant, we made an order under regulation 18(1) of the 2002 Regulations prohibiting the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to identify any individual referred to in these proceedings. At the conclusion of the hearing we decide to continue that order so as to prohibit identification of any individual who was a child referred to in the proceedings.
6. Under regulation 19 we may exclude the press, the public or both from all or part of the hearing if we are satisfied that such a direction is "necessary in order to (a) safeguard the welfare of any child or vulnerable adult, (b) protect a person's private life, or (c) avoid the risk of injustice in any legal proceedings." There was no information before us to suggest that grounds (a) or (c) might apply in this case. Because it seemed likely that the parties might refer during the hearing to matters to do with the applicant's private life, which might require to be protected, we decided that those considerations outweighed the public interest in being informed of the detail of the proceedings, so we made an order excluding the press and public from the hearing. In the event no members of the press or public attended any part of the hearing.
7. The respondent wished 2 of his officials to attend the hearing as observers, that is, not as witnesses. Counsel for the respondent suggested that as such they were entitled to be there, and should not be treated as part of the public. The applicant had no objection to them being present, so without deciding the issue we permitted them, by consent, to be present throughout the hearing.

Relevant law

8. Under s.1 of the 1999 Act the Secretary of State must "keep a list of individuals who are considered unsuitable to work with children." By s.4(1) an individual who is included in the list may appeal to this Tribunal against the decision to include him in the list.
9. By s.4(3) if "the Tribunal is not satisfied of either of the following, namely – (a) that the individual was guilty of misconduct (whether or not in the course of his duties) which harmed a child or placed a child at risk of harm; and (b) that the individual is unsuitable to work with children, the Tribunal shall allow the appeal … and direct his removal from the list; otherwise it shall dismiss the appeal. …"

Evidence - generally

10. The wording of s.4 is such that the burden of proof is on the respondent. Following the decision of our colleagues in D v Secretary of State [2002] 118.PC, we consider that the standard of proof is the balance of probability.
11. In his application the applicant objected to the respondent submitting in evidence statements by 2 children made for the purposes of the stayed proceedings following which the applicant was acquitted. In the event the respondent did not produce or refer to those documents, so we made no order in that regard.
12. At the hearing neither party called witnesses. We explained to the applicant that (a) he could give evidence if he wished or could make representations; (b) if he were to give evidence, we would require it to be on oath; (c) if he did give evidence, he might be questioned by us or by counsel for the respondent or both, and that the latter might include an element of cross-examination; (d) he was not obliged to give evidence, but if he did not do so we might, depending on all the circumstances and any view we might take of the evidence as a whole, draw conclusions from that which might be adverse to the applicant. The applicant said he understood, and later chose to give evidence.
13. At risk of over-simplification, the evidence before us consisted of (a) a certificate of the applicant's conviction in 1981 of an offence; (b) a letter from the police to the Department of Health explaining the circumstances of that offence; (c) newspaper reports of those proceedings; (d) a summary, supplied by the police to the respondent in reply to the latter's request for copies of statements made by witnesses for the purpose of further criminal proceedings against the applicant in 2001 relating to offences he was alleged to have committed between 1969 and 1980: the summary was a tabulation of information extracted by the police from some but apparently not all of those statements; and (e) a transcript of a ruling by the judge in the 2001 proceedings that it was not possible to have a fair trial, as a result of which the applicant was acquitted.

Evidence - the 2001 proceedings

14. On 8 October 2001 at the Central Criminal Court the applicant was acquitted on 5 counts of indecent assault on a male, 6 counts of indecent assault on a female and 3 counts of buggery, and was acquitted and discharged.
15. Those proceedings had been stayed by the judge on the ground that it was not possible to have a fair trial of any of the allegations against him. The judge authorised release to this Tribunal of a transcript of his ruling, with the exception of any matters heard in chambers.
16. The offences alleged in those proceedings were said to have taken place between 32 and 21 years previously; were alleged to have constituted sexual abuse of one kind or another of children who at the material time were in the care of Tower Hamlets London Borough Council and living in the St Leonard's home; and were alleged to have been committed by the applicant when, between October 1969 and August 1981, he was employed at St Leonard's in various capacities but ultimately as a house parent in charge of one of the cottages in which children resident at the home lived.
17. The allegations were that the applicant buggered and indecently assaulted 5 boys; that he indecently assaulted another 4; and that he had consensual sexual intercourse with a girl. The indecent assaults alleged ranged in seriousness from relatively minor instances of touching up to gross indecency, oral sex, masturbation and the like.
18. The applicant consistently denied the charges against him.
19. At risk of over-simplification, the main grounds on which the judge concluded that it was not possible to have a fair trial of the allegations against the applicant included (1) that the home had closed in 1984 and its buildings had been converted to other uses; (2) contemporaneous records of the council's social services department had not survived; (3) the methods used by the police to obtain statements were not in accordance with recommended practice; (4) video recordings of interviews made in an investigation in 1995 had not been preserved, nor (5) had they been transcribed when it was decided not to proceed with prosecution; (6) when the investigation was reactivated in 1996, the same happened when it was again decided that there was no realistic prospect of a conviction; (7) when a third investigation was undertaken in 1998, and the applicant had been arrested and charged in 2000, the loss of evidence relating to contested issues could not, in the circumstances, be remedied by a suitably-worded direction to a jury. Some of the contested issues related to whether there had been collusion between complainants. Some witnesses had died without statements having been taken from them.
20. When the respondent asked the Metropolitan Police for copies of the statements made for the purposes of the 2001 proceedings, which ran to several hundred pages, the police, after taking legal advice, supplied the respondent with a 56-page table summarising, in a standardised format, the facts alleged in each count.
21. The applicant denied, and continues to deny, all the allegations made against him, and in particular, or in addition as the case may be, he

o denies the allegations in respect of 9 children, and points to the stay of proceedings and his acquittal on those counts;

o says that he was not charged with offences against 7 children;

o points out that an allegation in respect of 1 child was withdrawn even before the application to stay the proceedings was made;

o claims that one of the girls with whom he was alleged to have had intercourse was later found to be virgo intacta.

22. We note the summary of the statements supplied to the respondent by the police, but we attach minimal probative value to it. Whilst we have no reason to suspect, let alone believe, that it may not be a fair and accurate summary of the statements, the summary is on its face a highly edited version of those statements, and it is impossible for us to assess whether and to what extent it repeats the words used by the makers of the statements in the statements themselves, or whether it omits anything that might be relevant to the issues we have to decide. We acknowledge that the decisions to stay the criminal proceedings and to acquit the applicant were made under a jurisdiction where a higher standard of proof is required than is the case before this Tribunal, but it seems to us that the difficulties explained by the judge in those proceedings apply also to our assessment of what weight we should give that information: it is disputed by the applicant; some of it was collected in ways considered inappropriate; other material that might have thrown light on the reliability of the evidence has been destroyed; there is an allegation of collusion on the part of witnesses; charges in respect of some of the allegations were dropped or at any rate not proceeded with; for reasons given by the judge, the dating of some of the acts alleged cannot have been correct; and the applicant asserts that one allegation was inconsistent with medical evidence. Taking all that into account, and given our discretion under regulation 22, we think the proper approach for us to adopt is to note that the allegations were made; that the applicant denied them and continues to do so; that, for the reasons stated, prosecutions against him based on those allegations were stayed and he was acquitted; and that is all. We assign no other weight to that evidence.

Facts

The 1981 proceedings

23. On 3 December 1981 at the Central Criminal Court the applicant was convicted upon his own confession of buggery and was sentenced to 18 months imprisonment.
24. The circumstances of that offence were that the applicant was employed by Tower Hamlets London Borough Council as a residential worker in a children's home (St Leonard's) maintained by that council. Between 18 September 1979 and 3 October 1980 the applicant committed the offence on a 14-year-old boy who was in the care of the council and was resident at that home. The offence took place in the applicant's cottage within the curtilage of the home after life-saving classes the applicant ran. The applicant pleaded Guilty. Although the conviction was for only one offence, newspapers at the time reported that the court was told that the applicant had committed a number of offences over time against the boy.
25. At the hearing the applicant acknowledged that he had committed the offence of which he was convicted, but contended that (a) only 1 such incident occurred; (b) that incident occurred when he the applicant was drunk, and (c) it had not occurred in a children's home but after 2 men in central London had offered him the boy, who was posing as a woman. The applicant said he did not see what harm his act could have done to the boy, because the 2 men had been committing similar offences on the boy for the previous 3 years.
26. The papers relating to those criminal proceedings have been destroyed.

Subsequent events

27. The applicant told us that he saw psychiatrists at the 3 prisons in which he served his sentence, but was not offered and did not undergo any treatment or therapy. He says he worked in the prison officers' mess, and had a good prison conduct record. After leaving prison he says he was under the supervision of a probation officer for 3 years, meeting the probation officer regularly, and was discharged from supervision. Since he left prison in 1983, the applicant has worked for a contractor supplying catering services to the Ministry of Defence. He retired in 1991. He has not worked with, or had contact with children, except his own nieces and nephews.
28. The applicant is now aged 62. He is in poor health. He has undergone surgery and is currently receiving hospital treatment for a number of physical disorders. He told us he has been receiving disability benefits since 1999 and receives income support. He said he does not intend or wish to work with children; and that his medical condition means that he cannot work at all, so that he cannot work with children even if he wished to do so. He considers that he would not have been put on the list had not Tower Hamlets London Borough Council told the Department of Health about the stayed 2001 proceedings, and that there is no need for him to be listed. He points out that for the purposes of the Rehabilitation of Offenders Act 1974, his conviction is spent.

Submissions

29. The applicant contends that (a) he has committed no offences since 1981; (b) his medical condition means that he cannot work at all, let alone with children; (c) he has no intention of working with children; (d) there is no prospect of him working with children, so (e) he is not a risk to children, so (f) there is no need for him to be on the list.
30. The Secretary of State contends that (a) the conviction in 1981 cannot be challenged; (b)of itself, that conviction shows the applicant is unsuitable to work with children; (c) there is no evidence of anything that has happened since to alter that; (d) whilst the information from the stayed proceedings is of little value it would have been remiss of the respondent not to draw it to the Tribunal's attention; (e) the applicant appears to have no insight into the effects of his conduct; and (f) taken together, all that makes him unsuitable to work with children.

Conclusions and reasoning

Misconduct

31. On the evidence, we are satisfied that the applicant was guilty of misconduct: he was convicted on his own admission of a serious offence, and he acknowledges it. By s.4(4) of the 1999 Act, that is not open to challenge. Similarly, we also satisfied that the offence, by its very nature, involved harm to a child. We prefer the police version of the circumstances, corroborated by the newspaper reports, to that now given by the applicant. We do not accept the applicant's view that what he did was not of significant effect because of what others had already done to the boy.

Suitability

32. Taking into account all the evidence, written and oral, and the parties' representations, we are satisfied that the applicant is unsuitable to work with children. Whilst in a position of trust he committed serious sexual offences against children towards whom he had professional responsibilities. At that time, in 1979 and 1980, he thereby rendered himself unsuitable to work with children. Nothing has happened since then to alter that position. Lapse of time, of itself, would not render him suitable. There was no evidence of the applicant having done anything, such as having successfully undertaken work with children under supervision, or having successfully undertaken therapy, to alter that position.
33. We do not accept the applicant's account of events leading to his conviction. From his evidence and from his responses and his demeanour at the hearing we believe he denies the truth of what he was convicted of, and possibly may not understand its implications. That apparent lack of understanding and his continued denial render him in our view unsuitable to work with children.
34. In his application the applicant said, "I am unable to work and I cannot reasonably be considered either as a current or future threat to any child." Even if that is so, a person does not cease to be unsuitable to work with children just because there is no likelihood of him doing so. We can understand the applicant's wish, given his age and his medical condition and with the prospect of shortened expectation of life, no longer to have his name on the list. We acknowledge that the length of his sentence was such that his conviction is now, for the purposes of the Rehabilitation of Offenders Act, spent, though under the Exceptions Orders made under that Act he could be asked about it and would be obliged to disclose it were he to apply for any of a range of jobs involving working with children. His state of health is a matter for sympathy. But those considerations do not override our responsibility to address the issue whether, given his misconduct and on the evidence as a whole, he is suitable. That led us to conclude we should not make the order requested.
35. Our decision is unanimous.

Order

36. The application is dismissed.
37. We prohibit the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to identify any child at any time concerned in any proceedings involving the applicant.

Dated 26 February 2004

Signed

William Evans, Chairman

Helen Hyland

John Williams