England and Wales Care Standards Tribunal

 


CN v Secretary of State [2004] EWCST 398(PC) (24 August 2005)

CN -v- Secretary of State [2004] 398.PC [2004] 399.PVA
-Before-
His Honour Judge David Pearl (President) Mr Ken Coleman Ms Linda Redford
Heard on 15^th, 16^th and 17^th August 2005.
For the Appellant: Ms S Sleeman of Counsel instructed by Thompsons, Solicitors
For the Respondent: Mr J Moffatt of Counsel instructed by the Office of the Solicitor, Department for Works and Pensions and the Department of Health.
DECISION
1. The Appellant appeals against the two decisions of the Respondent dated 23^rd August 2004; namely to confirm him on the Protection of Children Act list (the PoCA list) and to confirm him on the Protection of Vulnerable Adults list (PoVA list).
2. A Restricted Reporting Order was made under Regulation 18(1) at a preliminary hearing on 30^th March 2005, and this Order was continued at the conclusion of the hearing. The decision is published under Regulation 27 in an anonymised form to protect the private lives of the Appellant and of his witnesses. The view taken by this Tribunal in Schedule 4 and Schedule 5 cases, as a general rule, is that the Appellants and their witnesses should be referred to by initials, if the Appellant makes such an application, in cases where there has been no criminal conviction. If there has been a criminal conviction, the Tribunal would not normally publish the decision in any edited form in order to protect the private life of the Appellant. We understand that both Counsel in this case support this approach both in this case and as a general principle.
3. At the hearing, we heard evidence on behalf of the Respondent given by Police Officer Sharon Girling of the National Crime Squad, London; Dr Daniel Wilcox BA, MA, PsychD, of Wilcox Psychological Associates; Ms HL, the Human Resource Manager of the relevant Primary Care Trust; and Mr David Jeffery, a Special Casework Lawyer of the Crown Prosecution Service. We also admitted in evidence the witness statements of Police Officer Joanne Butler, Police Sergeant Colin Gibbs, Ms Michelle Collins the Director of the Exploited Child Unit at the National Center for Missing and Exploited Children in the United States, together with the exhibits to these witness statements, and in particular the transcripts of police interviews with Mr CN conducted by Joanne Butler and Colin Gibbs on 2^nd October 2002. The interviews were recorded on three tapes, and we listened to the entirety of all three of these tapes.
4. We heard evidence given on behalf of the Appellant by the Appellant himself, and by witnesses who supported his appeal; namely Ms DB, Mr PP, Mr GF, and Mrs KM. We have also read the witness statements of Ms AC, Mr CS, Mr SW, Mr FB, Ms EF, Ms CW, Ms JA, Ms LR, Ms AB, Ms KW, Ms LD, and Ms SM.
5. The first appeal (the PoCA appeal) is brought under section 4(3) of the Protection of Children Act 1999. This states:

"If on an appeal or determination under this section the Tribunal is not satisfied of either of the following, namely –

(a) that the individual was guilty of misconduct (whether or not in the course of his duties) which harmed 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 or determine the issue in the individual's favour and (in either case) direct his removal from the list; otherwise it shall dismiss the appeal or direct the individual's inclusion in the list.

6. The burden of proof rests on the Secretary of State to satisfy us to the civil standard both that the Appellant was guilty of misconduct that harmed a child or placed a child at risk of harm, and that he is unsuitable to work with children. It is not alleged in this case that Mr CN actually harmed a child. The Secretary of State is relying on risk of harm.
7. The second appeal (the PoVA appeal) is brought under s 86(3) as read with section 92(4) of the Care Standards Act 2000. This section is in similar terms to section 4(3) except that unsuitability to work with children is replaced by virtue of section 92(4) with unsuitability to work with vulnerable adults.
8. Misconduct which harmed a child or placed a child at risk of harm. In his witness statement, Mr CN agrees that he viewed nude/partially nude images on his computer. He states: "My explanation…is that I am a photographer with an interest in nudes and naturism. The sites I viewed were part of that overall interest…[T]hey were all legitimate above board sites, often run in dedication to a particular photographer's work. The images I looked at were tasteful, artistic images or naturist images. On the few occasions the images were of young people, the sites clearly indicated that parental consent and cooperation had been obtained throughout…[S]imilar pictures can be seen in Sunday supplements, art galleries, photography exhibitions, the photography section of any library and in books sold by Amazon."
9. Although Ms Sleeman stated in her closing submissions that the appeals are based on the second limb (namely the challenge to Mr CN's unsuitability to work with children and vulnerable adults) and in effect conceded that the first limb was evidentially proved, we consider that it is necessary to make findings of fact in relation to what Mr CN actually did search for on his computer. These findings inevitably impact on our decision in relation to whether Mr CN is unsuitable to work with children and with vulnerable adults.
10. Mr Moffatt drew our attention to the different accounts of what Mr CN searched for and accessed, as given to the Police in October 2002 when compared with his witness statement and his evidence to us. He submitted that the account given to the Police was more likely to accurately reflect what actually happened.
11. We have had the advantage of listening to the police interviews. We accept Ms Sleeman's submission that the arrest early in the morning, the day spent in the cell, followed by a two hour police interview would have been stressful for Mr CN. But we do not feel that he was bullied or that the interview was conducted in any way other than in a civil and non-threatening atmosphere. Mr CN had the benefit of a lawyer present throughout. He was given an opportunity to present his evidence, by and large, without interruption.
12. It is our view that Mr CN knew why he had been arrested and why he was being interviewed, in that he was told by the police officer that "we have received information that during the period June to September 1999 you used your credit card to pay to access a website on the internet which contained indecent images of children."
13. In his interview he said: "I have obviously as you've got evidence that I am sure you are going to present to me. I am not going to deny that I've obviously accessed a Web Site that has had images like that on. That people might view to be indecent."
14. There is clear and conclusive proof that Landslide Productions of Fort Worth Texas debited his Bank Account on 22^nd July 1999 with the sum of £19.56 equivalent to $29.95. We have seen his Bank account statement for that date. Police Officer Girling exhibited the data on the registration form completed by the person identified as the Appellant, together with computer data generated by Landslide and stored on the Landslide computers at the time in the US at which the credit card transaction for Mr CN was processed. We were shown also data describing the successful "KeyZ" registered website purchase made in the name Mr CN.
15. Police Officer Girling states in her witness statement: "Landslide Productions Inc and Landslide Inc's company business was as an internet portal, hosting thousands of websites on behalf of hundreds of Webmasters worldwide. The webmaster registered these websites with Landslide as either AVS or KeyZ. The AVS predominantly contained images of adult pornography and the KeyZ websites predominantly contained images of children being subjected to various levels of sexual abuse."
16. She states that from her examination of the data, the person with an email address that has the name of the Appellant successfully purchased access to images from KeyZ registered sites on the website on one occasion. She states that the person selected and entered a website whose referer title on the database was "sba" (real Lolita site). The witness statement of Ms Collins of the Center for Missing and Exploited Children in the United States states that "sba" stands for "small beautiful angels". Police Officer Girling said in cross examination that she had verified her information from the original landslide computers.
17. What is not clear from the evidence of Police Officer Girling is the exact material that Mr CN looked at. However, as Police Officer Girling states, the purchasers would not be provided generally with material that was available for free elsewhere on the internet. The material was only available for a period of seven days, and we accept the evidence of Police Officer Girling that the KeyZ sites contained predominantly images of child abuse, with only a small proportion of the KeyZ containing images of exclusively adult sexual activity.
18. Mr CN denied in his evidence to us that he accessed any paid for sites involving child pornography, although he did state in his evidence that "on a few isolated occasions I specifically searched for girls under a certain age."
19. We have decided that it is more likely than not that he did access through KeyZ some images of children that must be categorised as indecent. First, it is clear to us that he admitted in the police interview that the age group he was looking for was children in the thirteen, fourteen and fifteen category. The exchanges in the police interview are important. We have of course listened to the tape, and we are satisfied that there was no pressure put on Mr CN:

9439(PO Butler): I am going to ask you to be as frank and honest as you can with me and I appreciate that it is quite an awkward environment for you to be. What age group would you be specifically searching for?

CN: Probably under 16's but not children kind of, you know. Thirteen, fourteen, fifteen.

9439: Right. Would it be fair to say then post pubescent?

CN: Yeah, Yeah

9439: I don't want to be putting words into your mouth

CN: No. No, I think that's accurate yeah.

20. A little later, there is the following exchange:

9439: Would you be getting sexual gratification out of searching for these images?

CN: Titillation maybe. I mean they were nice girls and things, yeah. I mean I probably started off as curiosity you know looking just noticing these things on, on searches I did. But you know, it was more than that. I wouldn't say sexual gratification, but I was looking and enjoying looking.

21. And further:

6469 (PO Gibbs): Which is your titillation. What is it about females of that age which excites you?

CN: I suppose it's because they look very young, you know, they look fresh and small breasts.

6469: Yeah OK

CN: You know, I do, I do sort of fancy younger women.

22. He told the police officers in interview that he used search key words such as "Teenage Girls" and "Under age". He was asked whether he used "Lolita" and he replied "Lolita, possibly Yeah."
23. He told us in evidence that he cannot recall subscribing to the Landslide site, although he accepts that the evidence suggests that he did so subscribe, and he cannot deny it. We felt that his evidence was less than convincing. We have no doubt but that he did subscribe to the site, and that within that site he was looking at images of girls under the age of sixteen.
24. The children who appear on these sites are real children, and we are absolutely clear that their appearance on the sites constitutes an abuse of them by those who place them on the internet. Those who access such sites are furthering the abuse. In short, the children are at risk of harm as defined by the Children Act 1989 section 31 which states that harm means "ill-treatment or the impairment of the health or development" of the child. The first limb of the test is satisfied.
25. Unsuitability to work with children (the PoCA list). The misconduct triggers consideration of the second criterion for inclusion; unsuitability to work with children (PoCa) and unsuitability to work with vulnerable adults (PoVa). It is clear from the jurisprudence of the Tribunal that not all of those found guilty of misconduct will be held unsuitable to work with children and/or vulnerable adults. As the Tribunal said in AM v Secretary of State [2004] 310.PC: "A finding of misconduct of a less serious nature will not generally lead to a finding of unsuitability without more. Conversely, an individual guilty of relatively trivial misconduct could be shown to be wholly unsuitable to work with children."
26. The prosecution against Mr CN has not been proceeded with. Mr Jeffery, in his witness statement explains the reasons. "I was concerned over the question of delay in relation to the offence against Mr CN. The allegation related to the summer of 1999 and involved one only occasion when he had downloaded images from the Landslide site. The particular site visited…was what was described as a category two site called "sba"…not specifically visited by the investigators in America…but which have a complaint from the Center for Missing and Exploited Children which confirmed the site offered indecent images of children on that particular date." Although there has been no criminal prosecution, our findings of fact as set out above make clear what activity on the internet Mr CN was involved in, namely that he subscribed to the Landslide site and that within the site he searched for images of children under the age of 16.
27. It is in that context that we go on to consider the question of whether he is unsuitable to work with children. We have listened very carefully to the evidence given on his behalf both in oral evidence and in written statements. We have to say that much of what these witnesses have said in Mr CN's support is predicated on a factual situation that we have found not to be the full picture. They would appear to have based their opinions on the proposition that Mr CN had viewed occasionally non-pornographic website images of girls in portrait type poses, albeit semi-clothed or nude. Ms KM said for instance "it is not unusual for men to look at pictures on the internet". She became uncomfortable however when the hypothesis was posed of a person with a sexual interest or attraction to 13-15 year old girls.
28. We have found as a fact that Mr CN searched for imagery of 13-15 year old girls, and that the "sba" website which he subscribed to contains child pornography. We agree with the observations made by our colleagues in McQuaid v Secretary of State [2003] 206.PC decided on 2^nd March 2004: "The mere act of viewing indecent images of children renders the appellant unsuitable to work with children. Public confidence would clearly be undermined."
29. We cannot underestimate the importance we attach to public confidence. When the Tribunal considers the question of unsuitability, it must look at the factual situation in the widest possible context. It may well be, as the Tribunal has said before (eg BR v Secretary of State [2003] 205.PC) that it is unfortunate that the 1999 Act does not enable the Secretary of State or a Tribunal to prohibit a person from being employed by a child care organisation in some positions while allowing him or her to be employed in others, in the way that the Education Act 2002 does. It is our view that it is the clear intention of Parliament that the language of the Act requires us to take a broad view having regard to the degree of risk posed by the Appellant, but also to acknowledge that the public at large and those who entrust their children into the hands of professionals have a right to expect, indeed to demand, that such people who are placed in such important positions of trust working with children "in a child care position" are beyond reproach.
30. We have read carefully the report prepared by Dr Wilcox and considered his evidence in some detail. We found his evidence to be of limited value, given that for whatever reason he had not interviewed Mr CN or carried out any tests on him as part of his assessment. We were also persuaded by Ms Sleeman that much of his own research and the research conducted by others that he quoted to us was similarly of limited value. It was to a large extent based on samples that were exclusively offenders, although this is perhaps understandable (as Dr Wilcox himself said) because there is no research on non-convicted offenders as they would be unlikely to put themselves forward for study. Dr Wilcox concluded that Mr CN has sexualised interests in teenage girls. We have reached a similar conclusion, but independent of Dr Wilcox's opinion.
31. We found Mr CN's evidence to us wholly unsatisfactory, and we do not believe that he has been able to grasp the seriousness of what he did and why a decision has been taken to place him on the PoCA list. He accepted in answer to a question from the Tribunal that his fitness to practice is impaired, that what he did was stupid, ill advised and a misjudgement. We would go further than that and say that what he did, and why he did it, makes him at the present time, unsuitable to work with children.
32. Unsuitability to work with adults (the PoVa list). Mr Moffatt submitted that there were two reasons why Mr CN was unsuitable to work with adults. He relied first of all on the report prepared by Dr Wilcox. We have already stated that we found Dr Wilcox's Report and evidence of limited value. The second reason given by Mr Moffatt is the effect that allowing the appeal would have on any service to which Mr CN might seek to apply; it would undermine confidence in any such service. Ms Sleeman submits that there is no evidence of any misconduct in relation to vulnerable adults (which of course is not relevant because of s 92(4) Care Standards Act 2000), that there is no evidence of any risk to vulnerable adults, and that the Appellant in any event has learnt his lesson, and that public confidence need not be achieved only by preventing him from pursuing his profession. It is suggested that a regulation of his work, such as the caution that has been annotated to the register for a period of one year by the Health Professions Council on 3^rd February 2005, is an appropriate way in which the community can be protected.
33. Mr CN is a speech and language therapist. It is not only children who require treatment, and those adults requiring treatment are necessarily vulnerable. We do not think that a person who remains on the PoCA list for the reasons we have set out above should be removed from the PoVA list. Society has a legitimate interest in ensuring that those who are considered unsuitable to work with children are not given positions of trust in relation to vulnerable adults. This is not to say that we consider that a vulnerable adult would be at risk of harm by Mr CN. But the Act does not require such evidence, and it is sufficient to satisfy the test in section 86(3)(b) read with section 92(4) of the Care Standards Act 2000 that he is unsuitable to work with vulnerable adults by virtue of the misconduct which placed a child at risk of harm. We agree with Mr Moffatt that the public confidence in the speech and language therapy service would be undermined if it became known that Mr CN was employed to work with vulnerable adults, given the fact that he was barred from working with children as his name was on the PoCA list. We do not wish to say that it will always inevitably follow that an appeal under section 86 will be bound to fail in the event of the appeal under s 4 of the Protection of Children Act being dismissed. Each case will be decided on its own facts, and context will be all important. In this case, however, in the sensitive area of speech and language therapy, we have formed the view that the continuation of his name on the PoCA list makes him unsuitable to work with vulnerable adults.
34. Accordingly, it is our unanimous decision that both appeals be dismissed.

His Honour Judge David Pearl

(President)

Mr Ken Coleman

Ms Linda Redford.

24^th August 2005.