England and Wales Care Standards Tribunal

 


Cowell v Secretary of State [2005] EWCST 521(PC) (19 October 2005)

John Cowell -v- Secretary of State [2005] 521.PC [2005] 522.PVA STRIKE OUT RULING
1. The Appellant was placed on the PoCA list and the PoVA list on 22^nd June 2005 and a letter was sent to him that same day notifying him of the confirmation of his listing on both lists.
2. He appealed against both listings on Form A dated 8^th July 2005 and received by the Tribunal on 11^th July 2005.
3. By letter dated 10^th August 2005, Treasury Solicitors on behalf of the Respondent applied under Regulation 4A(1)(b) and (c) for the appeals to be struck out on the grounds that they are misconceived, frivolous or vexatious.
4. The Appellant was found guilty at Preston Crown Court on three counts of gross indecency with a child contrary to s 1(1) of the Indecency with Children Act 1960 and one count of engaging in sexual activity in the presence of a child under 16 contrary to s 11(1)(a) of the Sexual Offence Act 2003. He was sentenced to a period of 30 months imprisonment.
5. Section 4(4) of the Protection of Children Act 1999 states: "where an individual has been convicted of an offence involving misconduct (whether or not in the course of his employment) which harmed a child or placed a child at risk of harm, no finding of fact on which the conviction must be taken to have been based shall be challenged on an appeal under this section."
6. Section 86(4) read with section 92(4) of the Care Standards Act 2000 is to the same effect in relation to the PoVA list.
7. Accordingly, the finding of fact on which the conviction must be taken to have been based cannot be challenged on an appeal to the Care Standards Tribunal against the confirmation of the listing on the PoCA list or the PoVA list.
8. In the Appeal Form A, the Appellant states that "I have written to solicitor to which they are looking at the case papers to which there could be grounds of appeal."
9. In these circumstances, a Ruling dated 22^nd August 2005 was made to stay the proceedings for a period of eight weeks until 17^th October 2005, in order to enable any Solicitor acting on behalf of the Appellant to lodge grounds of appeal against the conviction. It was stated that if no ground of appeal from the Crown Court conviction were lodged by that date, the application by the Respondent to strike out both appeals would be reconsidered.
10. By email dated 18^th October 2005, Solicitors acting on behalf of the Appellant informed the Tribunal that "we have yet to commence a review of his papers in order to establish if grounds of appeal exist."
11. Accordingly, it is appropriate for the application to strike out to be considered at this time. For the reasons set out in the Ruling dated 22^nd August 2005 and repeated in this Decision, the appeal is misconceived. In Knoote v CSCI [2003] 137 EA-JP, the Tribunal said: "The Tribunal cannot reopen an examination of the facts underlying the criminal convictions. In this situation, I have no doubt that if the case went to full hearing, there is only one result and that is to dismiss the appeals."
12. On considering the facts as presented in this case, there is likewise only one result that can be made by a Tribunal. The criminal convictions prove that the Applicant was guilty of misconduct which harmed a child or placed a child at risk of harm, and that he is unsuitable to work with children. The appeals in these cases are misconceived.

ACCORDINGLY, the Appeals are struck out under Regulation 4A(1)(b) .

In accordance with Regulation 4A(4), where the President has made a determination to strike out an appeal, the Appellant may apply to the President for the determination to be set aside. Such an application must be made not later than 10 working days after the date on which this determination is sent to the Appellant, and must be in writing stating the grounds in full. If an application is made under Regulation 4A(4), the application will be sent by me to another Chairman not involved in this case who will issue any further Directions.

His Honour Judge David Pearl

President

19^th October 2005.