England and Wales Care Standards Tribunal

Lawrence v Secretary of State for Education and Skills [2003] 215(PC) (05 April 2004)

Phillip Lawrence

V

Secretary of State for Education and Skills

[2003] 215.PC

Before:

Mr Stewart Hunter (Chairman)

Mrs Linda Redford

Mrs Christa Wiggin

Sitting at 18 Pocock Street, London on 8^th and 9^th March 2004

DECISION

APPLICATION

1. Mr Lawrence ("the Applicant") appeals under Regulation 12 of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 against a direction by the Secretary of State pursuant to Section 142 of the Education Act 2004 that the Applicant should not be appointed or employed in relevant employment on the grounds that he is not a fit and proper person to be employed as a teacher or a worker with children or young persons.

PRELIMINARY

2. At the hearing the Applicant appeared in person. The Respondent was represented by Mr M Chamberlain of Counsel, instructed by the Treasury Solicitor.

FACTS

3. The Applicant was born on 27^th July 1944 as Phillip Lawrence Massil. He has been married for 33 years having married in 1970. He has 3 adult children and 2 grandchildren.
4. In an interview with Consultant Forensic psychiatrist Dr A Akinkunmi, the Applicant said that he left school at 15 having achieved poor results in his mock O'level exams. He subsequently attended evening classes and sat his O'levels at the age of 16 eventually acquiring 5 O'levels in total. On leaving school he obtained a job as an apprentice printer and had has several jobs in the printing industry since then. He has recently started a new job.
5. In or about 1972 the Applicant had been asked by some of his friends at the local synagogue if he could help teach their children in Hebrew studies. In an interview with representatives from the Department for Education and Skills held on 23^rd October 2002, the Applicant said that he had accepted the invitation to teach and as a result of the tutoring being a success, his private teaching work from individuals began to build up. He went on to say that the teaching would take place at the child's home, Synagogue halls or in his own home. He had taught children of both sexes from the age of 11 upwards and had not received any complaints throughout the 30 years that he had been carrying out the work.
6. The Applicant told Dr Akinkunmi that he had been in contact with the psychiatric services when he was aged 15. This followed him making a sexual approach to another boy of the same age in a youth club that they both attended. The Applicant said that he had asked this youth to masturbate him. The boy had made a complaint to the club managers who reported the Applicant to his parents. An appointment was then made for the Applicant to be seen at the Tavistock clinic where he attended for appointments. The Applicant told Dr Akinkunmi that he had been informed by the clinic that he was "not gay and that he probably did it out of loneliness and frustration". At the interview on the 23^rd October 2002, the Applicant is recorded as having said that he attended a doctor at the Tavistock Clinic for 18 months. The Applicant believed that his problems surrounding his sexuality were resolved at this time and he had been able to conclude that he was not attracted to boys.
7. On 1^st February 1964 the Applicant was convicted of importuning for an immoral purpose and fined £10. The schedule of convictions provided by the Metropolitan Police contained the note, "frequented railway platform and asked school boys to go into railway carriages with him". The Applicant told Dr Akinkunmi that he could not remember the circumstances of this offence. In the interview on 23^rd October 2002, the Applicant was referred to the note attached to the Schedule of conviction.
8. On 26^th August 1996 the Applicant was convicted of importuning other males for an immoral purpose and was given a 1 year probation order. The Schedule of Convictions contained no further information about this offence, but the Applicant is recorded as telling Dr Akinkunmi that at the time of this conviction he had been out on the town drinking and described himself as being "merry". He told Dr Akinkunmi that he did not remember what he had done. At the interview on 23^rd October 2002 the Applicant was noted as saying he got talking to a man in his late 20's at Victoria railway station and "one subject lead to another". The Applicant went on to say that with the benefit of hindsight he believes that the man might have been a policeman and recalled that the offence possibly occurred in the public toilets.
9. On 27^th September 1965 the Applicant changed his name from his birth name to Phillip David Lawrence. He told the Secretary of State's official at the interview on 23^rd October 2002 that people had made fun of him as a child due to his birth surname of Massil which lead him to being called names such as "cockles and mussles". He confirmed that his name changed occurred shortly after his first conviction but said that the two matters were not linked.
10. After his 1966 offence, the Applicant said that he had voluntarily sought help from the Portman Clinic and that he was told that he was "quite safe with the majority of people".
11. On 7^th May 1968 the Applicant was convicted of one offence of indecent assault on a 14 year old male and one offence of indecent assault on an 11 year old male. The note on the Schedule of Convictions stated "playing with boys exposed penis in park". The Applicant was fined £25 on each count. Dr Akinkunmi states in his report that the Applicant told him that he could remember waiting for his then fiancée and that he had started talking to these boys. The Applicant then said to Dr Akinkunmi "rather foolishly the talk turned to sex". The Applicant was said to have dismissed his behaviour as being "only playing about, nothing more". When asked by the Secretary of State's representatives at the meeting on 23^rd October 2002 whether the Applicant regarded the boys as being willing participants in what had happened, the Applicant is quoted as saying that "he doubted that as at the time, he had wanted to indulge in some exhibitionism.
12. On 15^th March 1990 the Applicant was convicted of importuning other males for the purposes of an immoral purpose for which he was given a 1 year conditional discharge. In terms of the facts an which the conviction was based, the Department for Education and Employment received a letter from the Metropolitan Police Service dated 3^rd October 2000. In that letter it was said that the Applicant was arrested at 8:45pm on 22^nd February 1990 at Piccadilly Circus, London W1 for the offence of importuning for an immoral purpose "he was seen to be paying attention to young single males. He was then seen to approach a single male and asked him to accompanying him to a hotel, give him "a blow job" and "play about with him" for a while. The Applicant told Dr Akinkunmi that he could not remember what had happened because he was very drunk. The Applicant had said that he pleaded not guilty and despite the fact he was subsequently convicted, still did not believe that he had committed any offence. He told the meeting in October 2002 that the incident would not have happened if he had been sober, he would not have been hanging around such a notorious area as Piccadilly Circus.
13. Between April 1965 and April 1993 the Applicant had a number of other convictions including obtaining services by deception, driving whilst disqualified, making a false phone call, wasting police time, forgery and using a copy of a false instrument. He had received a variety of punishments including a 6 month period of imprisonment suspended for two years.

On 21^st November 1999 the Applicant started as a teacher at the Kisharon which provides education and care for children and adults with learning difficulties. On 3^rd February 2000, the Applicant completed a background check form. The guidance notes in respect of Part B of the form stated that previous or other surnames must be given. The Applicant did not provide details of his birth surname of Massil. The same form also asked the Applicant to state full convictions, former police cautions or bindovers set by any court. The form stated that the Applicant might not regard any conviction as spent for the purposes of this check. The Applicant stated that I have no convictions or cautions. The Applicant later said that he had not read the form properly, and with hindsight accepted that he was wrong not to have filled in the correct information. He later said that he had thought that if any of his convictions were more than 10 years old he did not have to disclose them. He thought they were all spent. In a letter to the Teacher's Misconduct Team at the Department of Education and Employment, Mr David Goodman an Executive Director of Kisharon said he would telephone the Applicant to advice him that he had received a copy of the Applicant's Schedule of Convictions. Mr Goodman said that in the telephone conversation between the Applicant and himself, the Applicant had denied having any convictions. The Applicant explained that he did not want to talk to Mr Goodman about his past as he was situated in an open office when he received the telephone call. He was unsure whether he had denied having any convictions to Mr Goodman.

14. On 23^rd February 2001 Mr T Hewitson from the Teacher's Misconduct Team at the DFEE, wrote to the Applicant indicating that the Applicant's criminal convictions had been brought to the attention of the Secretary of State, and was considering what action to take. It was arranged for the Applicant to be seen by consultant forensic psychiatrist Dr Akinkunmi. The Tribunal were told that a letter of instruction had been sent to Dr Akinkunmi although a copy was not produced to the Tribunal. Dr Akinkinmi in his report of the 22^nd June 2001 concluded that the Applicant did not appear to have a history of suffering from psychiatric disorder and there was not evidence of a current abnormal mental state. The Applicant had four convictions for sexual offences, in all cases the victims having been young boys. The first three offences occurred in a cluster between 1964 and 1968 and the Applicant appeared to have then refrained from offending sexually for a further 22 years until 1990. Dr Akinkunmi considered that the significantly large gap between the Applicant's third and fourth offences probably should be viewed as counting in favour of the Applicant as should the fact that the Applicant appeared not to have offended in the last 11 years or so. As Dr Akinkunmi was not aware of any complaint by any of the children that the Applicant said that he had been taught. Dr Akinkunmi again felt that this should be viewed as counting in the Applicant's favour. However, Dr Akinkunmi was a little concerned about the Applicant's "tendency to minimise his offences" and thought overall that there might be some merit in the Secretary of State considering restricting the Applicant's employment on the grounds of his misconduct. The restriction suggested by Dr Akinkunmi was a requirement that the Applicant disclose his previous convictions for sexually offending against male children,to any prospective employer (or the parents of the children he was proposing to teach).
15. More than a year after the interview with Dr Akinkunmi, the Applicant attended for an interview with officials of the Department for Education and Employment. The interview was conducted by Mrs I Cartland, a case worker in the Teacher's Misconduct Team. Also Dr Hall-Smith, who included amongst his various responsibilities (at that time) acting as senior medical advisor to the Department for Education and Skills, this included advising on fitness to practice and misconduct issues. Notes of the meeting were taken by Mr Hewitson, a copy of which was supplied to the Applicant after the interview. The note was not verbatim and no tape recording took place.

Dr Hall-Smith was then asked to prepare a report on the Applicant which he did dated 28^th October 2002. Dr Hall-Smith also signed a witness statement in these proceedings and gave evidence at the Tribunal Hearing. He indicated that he had general medical experience including some experience in psychiatry. However, he conceded that he did not have any psychiatric qualifications or qualifications in working with sex offenders. In his original report Dr Hall-Smith had said that the Applicant had been unable to recall the detail of any of his sex offences, had not shown any remorse about the effect of his actions on his victims nor appeared to have any insight into the effect that his behaviour might have had on them. At the Tribunal hearing he accepted that there had been some evidence of these factors, but that it had taken considerable questioning to elicit such information from the Applicant at the interview.

The Applicant was said that have told Dr Hall-Smith that the Applicant's own children were not aware of his convictions and that the Applicant had not informed the parents of any of the children that he had taught, about his convictions. As far as Dr Hall-Smith was concerned, the Applicant had consistently minimised his actions. The recommendation from Dr Hall-Smith, was based on the interview with the Applicant and was that the Applicant was a significant danger to children and young persons, with his past behaviour being the best predictor of future behaviour and that the Applicant should be barred from teaching practice.

16. The Tribunal heard from Mrs Cartland and also the case work manager in the Teacher's Misconduct Team, Mrs Elizabeth Ann Hunter. It was Mrs Hunter's role to consider all the evidence in the case including the information supplied by Mrs Cartland (from the interview with the Applicant), the report of Dr Hall-Smith and also the report of Dr Akinkunmi. The necessary papers would then be prepared for the minister who would make the final decision. Mrs Hunter had been doing the job since 1999 and had received her training from the previous person who had carried out the role. In addition Mrs Hunter had been on a three day training course on the behaviour of sexual offenders run by the Sexual Behaviour Unit at Newcastle University.

The Tribunal were told that the evidence considered by Mrs Hunter normally include an assessment from an appropriate psychiatrist but that was not always possible. In some cases part of Mrs Hunter's consideration involved using the Rapid Risk Assessment of Sex Offence Recidivism ("RRASAO"). That was only one of the factors that would be considered. In this case Mrs Hunter said that she had not formally used RRASAO but it had been in her mind on an informal basis. The Tribunal were given details as to how the RRASAO tables were used. Mrs Hunter told the Tribunal about the factors that were taken into account in this case. The offences committed by the Applicant in the 1960s were regarded as serious regardless of the punishment which the Applicant had received at that time. If those offences had occurred since 1995 then there would have been an automatic barring of the Applicant. The Applicant's convictions for dishonesty also gave serious cause for concern as did the Applicant in not giving his previous name and failing to disclose his criminal convictions in relation to his job at Kisharon. A suggestion by Dr Akinkunmi of a restriction of the Applicant's employment had been considered, but the Department did not consider that this would be an adequate way of reducing the danger, which they had perceived that the Applicant posed, particularly given his previous denials.

17. The Secretary of State considered the information placed before him and made a Direction that the Applicant was not to be appointed to or employed in relevant employment. A letter was sent to the Applicant by Mrs Hunter on 13^th May 2003 setting out in detail the factors that the Secretary of State had taken into account in reaching his decision. Those included the Applicant's convictions, his failure to declare his convictions when applying for a teaching post with Kisharon and the representations made by the Applicant himself to the department regarding these matters. The Secretary of State also took into account the dates when the various offences took place, particularly those of a sexual nature and the gap between the third and fourth sexual offence. Whilst taking into account there was no evidence that any child had complained about the Applicant's behaviour during the Applicant's period of teaching, the Secretary of State also noted that the Applicant had deceived his employers, parents and other members of the community during this period by deliberately withholding his past convictions from them. The Secretary of State could find nothing in what was said at interview which indicated that the Applicant had learnt from his pervious convictions and would not behave in a similar fashion in the future. The evidence from Dr Akinkunmi and Dr Hall-Smith was also considered but did not provide the Secretary of State with evidence of the Applicant's motives or his sexuality. The Secretary of State was also of the view that the Applicant had minimised the offences to himself and had shown no insight as to how others might be affected.
18. The Applicant did not file a witness statement but in his Notice of Appeal emphasised that the offences against children had taken place 35 years ago. As far as the offence in 1990 was concerned he had pleaded not guilty and in his view had been found guilty as he was not able to provide any witnesses, and he was also inebriated at the relevant time and had little recollection of the evening. The matter concerned a male adult and not a child.

The Applicant stated that he was a family man with his own children and grandchildren. He had been teaching since the early 1970s and there had never been any complaints in regard to the other children that he had taught. In his evidence to the Tribunal the Applicant indicated that he wanted to place on record that he did have regret for all the wrong things that he had done over many years. Some things had seemed "the right thing to do at the time" but of course they were not. He wanted to be able to continue to teach. He believed that he was a good teacher. The offences in the 1960's had happened when he was an adolescent a long time ago. He now understood the impact his action had had on children because he now himself had children and grandchildren.

The Applicant disagreed strongly with the evidence of Dr Hall-Smith and asked the Tribunal to disregard the same. In questioning Dr Hall-Smith at the Tribunal hearing the Applicant sought and obtained confirmation from Dr Hall-Smith that there was no suggestion that the Applicant was going to "ravage" young children in the future.

19. The Applicant admitted that since the letter from the Department for Education dated 30^th May 2003, he had continued to teach some children on a private basis. He indicated that he had not read the letter of 30^th May 2003 closely enough and would cease working with these children immediately.

TRIBUNAL CONCLUSIONS

20. There is no dispute that the Applicant was convicted of three sexual offences between 1964 and 1968 involving boys. We regard those offences as serious. In our view the severity should not be judged on the penalty that the Applicant received at the time. We are now operating in a different climate where there is a better understanding of the effect that these type of offences have on children and the need for children to be protected. If those offences had been committed by the Applicant after 1995 he would automatically be barred from working with children or young persons.
21. The Applicant indicated that as a father and grandfather he would be horrified if such offences were to be carried out against his children or grandchildren. However in his interview on the 23^rd October 2002, the Applicant when talking about the 1964 offence, said that at the time he was lonely and wanted to chat with the boys concerned and that "one thing lead to another". He used a similar phrase when talking about the offences in 1968. Dr Akinkunmi in his opinion considered that in June 2001, the Applicant still had a tendency to "minimise his offences", the Applicant's Notice of Appeal gave little if any indication that the Applicant fully understood the effect of his actions on the children concerned. The evidence given by the Applicant at the Tribunal hearing, did not show any greater level of understanding on the part of the Applicant.
22. We accept Dr Akinkunmi's view that it should be treated in the Applicant's favour that there was as significantly large gap between the Applicant's third and fourth sexual offence. Indeed it was accepted by Mrs Hunter that had there been no conviction in 1990, then the Secretary of State might have taken a different view. The Applicant states that he pleaded not guilty to the 1990 charge, but nevertheless the position remains that he was found guilty on the basis of the facts relayed to the Department for Education and Employment by the Metropolitan Police in their letter of 3^rd October 2000. We accept the Applicant's evidence that he had consumed a considerable amount of alcohol, but in our view that may well have resulted in the Applicant being able to exercise less self control. We note that there have been no offences of a sexual nature since 1990.
23. Whilst the Tribunal is hearing evidence in this case afresh, rather than reviewing the Secretary of State's decision, we do have a number of concerns about the way in which this case was dealt with in the period before the papers were sent to the Secretary of State. In particular we were told that whilst it was usual for there to be a psychiatric assessment, that was not always possible, due to the difficulties in finding a suitable expert who was prepared to work for the rates which the department were able to pay.

Secondly whilst Mrs Hunter was a most helpful witness, we had concerns about the training that she had received in collating and analysing relevant evidence. It appeared that her training in respect of how sexual offenders behave comprised of a three day training session at Newcastle University. Mrs Hunter then understood that one of the factors used to determine the recommendation to the Secretary of State was a Rapid Risk Assessment of Sex Offence Recidivism matrix which give points to various aspects of a person's sexual offences then used points to calculate recidivism rates. Although the matrix was not formally used in this case, we have concerns about the way in which this tool is being used.

An extensive interview was carried out by Mrs Cartland and Dr Hall-Smith with the Applicant on 23^rd October 2003. Although notes of the interview were taken they were not verbatim and the interview was not tape recorded. Dr Hall-Smith subsequently produced a report based on the interview in which he stated that the Applicant had been unable to recall the details of any of his sexual offences and showed no remorse or understanding the affect of his actions on his victims. However, when questioned at the hearing, Dr Hall-Smith conceded that the notes of the interview did show that the Applicant had in fact recalled some details of his sexual offences and had shown some remorse. Dr Hall-Smith said that this had only happened after extensive questioning which was not fully revealed by the notes of the interview. The interview is clearly an important aspect of the evidence considered by the Secretary of State and as such should give a complete picture.

24. We were concerned that Dr Hall-Smith did not appear to have relevant qualifications in the areas in which he was being asked to advise, which were of a psychiatric and sexual nature. We found his evidence unconvincing with his assertions that the Applicant was a significant danger to children and young persons being based, largely on the Applicant's past behaviour rather than clinical analysis. We preferred the written evidence of Dr Akinkunmi who had carried out a full assessment of the Applicant. He felt that there were potential risk of the Applicant re-offending and suggested that these could be minimised by the use of restrictions such as a requirement that the Applicant disclose his previous convictions as having sexually offending against male children to any prospective employer or the parents of any children he was proposing to teach.
25. We believe that there is a need to consider the Applicant's sexual offences alongside his convictions for dishonesty. This in our view is particularly relevant when looking to the future, in the context of the Applicant being able to control his behaviour and also being honest about his past. It would appear that there have been a number of occasions when the Applicant has resorted to acts of dishonesty when he has found himself in personal difficulty. There is also the issue of the Applicant seeking to disguise his past convictions when completing the background information form for Kisharon, and then denying his convictions in a subsequent telephone conversation with Mr David Goodman. Those matters took place as recently as 2000.
26. Whilst acknowledging the Applicant's evidence that he has been teaching for 30 years without complaint, this is in the context of the Applicant not having told employers or parents of children that he had taught about his background. The Applicant did not appear to appreciate that parents might have a right to know this information so that they could then take a considered view as to whether or not they wished the Applicant to work with their children. We considered the possibility of putting a restriction to the Applicant's employment, as suggested by Dr Akinkunmi but in all the circumstances we were not convinced that the Applicant would be proactive in telling people of his past. Indeed at the Tribunal hearing the Applicant admitted, that notwithstanding the Secretary of State's letter of 30^th Mary 2003, which made it abundantly clear that he was disqualified from working with children, he has in fact continued to take private tutoring. This can happen in circumstances where children visit the Applicant in his own home.
27. Therefore given the serious nature of the Applicant's convictions for sexual offences, and our view that he still does not fully understand the affect that his conduct has had on the children concerned and given also the convictions for dishonesty and his attempts to cover up his past, we conclude that we should not make the order he seeks. Accordingly the appeal is dismissed.

ORDER

The appeal is dismissed.

The decision was unanimous.

Dated day of 2004

Signed ……………………………………………

Stewart Hunter, Chair

Linda Redford

Christa Wiggins