England and Wales Care Standards Tribunal

 


JS v Secretary of State for Education and Skills [2005] EWCST 487(PC) (08 June 2006)

BETWEEN:

J S

-v-

The Secretary of State for Education and Skills

Case No: [2005] 487 PC

Before:

Mr Stewart Hunter (Chairman)

Ms S Gilhespie

Ms M Tynan

Sitting at the Care Standards Tribunal on 15^th and 16^th May 2006

Attendance

Mr J S did not appear.

Mr J Hyam (Counsel) for the Secretary of State.

Decision

Unanimous decision: Appeals dismissed.

Appeal

1. This is an appeal by Mr J.S under Section 4 (3) of the Protection of Children Act 1999 ("POCA") against a decision taken by the Secretary of State on 26^th January 2005 to include his name on the list maintained by the Secretary of State under Section 1 of POCA. There is a simultaneous appeal pursuant to Section 86 (1) of the Care Standards Act 2000 against Mr J. S's inclusion in the list kept by the Secretary of State under Section 81 of the Care Standards Act 2000 of individuals who are considered unsuitable to work with vulnerable adults ("the POVA") list.

Preliminary Issues

2. The Appellant did not attend the hearing, but sent an email to the Tribunal at 10:40am on 15^th May 2006 indicating that he had been told by his employers that if he failed to attend work on Monday, Tuesday or Wednesday of that week, disciplinary action would be taken, which could result in the stopping of a pay rise he was due to receive in July or possibly the loss of his employment. The Appellant asked for the start of the hearing to be delayed until Thursday 18^th May when he stated he would be able to attend or that if the Tribunal was unhappy with that course of action, then he asked the Tribunal to consider a written submission which was sent with his e-mail.

The Tribunal considered the Appellant's e-mail to be an application to adjourn the hearing until 18^th May. The application for the adjournment was opposed by the Respondent.

The Tribunal rejected the Appellant's application for the adjournment. The matter had been originally listed for a full hearing on 19^th December 2005. On that occasion the Tribunal had agreed to the Appellant's request for an adjournment to allow him to instruct lawyers and obtain statements for a number of witnesses that the Appellant had indicated that he wished to call. On that occasion a new date had been fixed for the hearing of the matter, namely 15^th May 2006 with 5 days allowed. The Tribunal therefore took the view that the Appellant had had a substantial amount of time to make arrangements with his employers to allow him to attend the hearing. Whilst it was noted that the Appellant had indicated that he could attend on Thursday 18^th May, the Tribunal were of the view that there was no guarantee that the Appellant would in fact attend on that date or that the remaining two days of the time allotted would be sufficient to complete the hearing.

The Tribunal then went on to consider Regulation 20 (4) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 ("The Regulations") and determined that in all the circumstances they would hear the case in the Appellant's absence.

3. On the request of both parties and the Tribunal deeming it appropriate a restricted reporting order was made under Regulation 18 to protect the Appellant's private life and the identity of children and young people with whom the Appellant has worked. An order was also made under Regulation 19 that the hearing should be conducted in private.

Facts

4. The Appellant was born on 17^th July 1965 and at the time of the hearing was 40 years of age. He has been involved in athletics for some considerable time. In 1981 he joined the Windsor, Slough and Eton Athletics club. In 1986 he competed for Great Britain in the triple jump event against Spain. In 1991 he won the British indoor championship in the triple jump. However, in 2002 his competing was curtailed as a result of an Achilles injury. The Appellant has indicated that he would still like to participate in athletics as a veteran.
5. Whilst still competing as an athlete the Appellant had decided to do some coaching as well. This started in or about 1984 and had involved coaching a number of well known athletes. In due course the Appellant decided to become a licensed coach and attended coaching courses run by the British Athletics Federation ("BAF").
6. The Tribunal heard from Mr Adam Walker a director and deputy chief executive of UK Athletics Limited ("UKA"). Mr Walker also made a number of written statements. In his statement dated 24^th June 2005 he set out the history of BAF and its successor body UKA. He stated that BAF had established a coach qualification scheme, which was administered by the National Federation. He went on, "a coach who attended a BAF qualification would have been provided, as a minimum, with a coaching manual relevant to the qualification being sat." Mr Walker went on in the same statement to talk about the Appellant's BAF passbook which he said indicated that the Appellant had obtained "club coach" and "club coach level 2" status for triple jump and strength and conditioning respectively.
7. The Tribunal was shown a copy of the BAF coaching theory manual "Club coach level 1 award". In terms of the coach/athlete relationship the manual stated as follows:-

"Whilst the coach may be many things to the athlete – teacher, mentor, father figure, friend etc – there must exist a certain space between the coach and his/her charge. Familiarity is seldom advantaged in the coach/athlete relationship. This is especially so when the coach/athletic is of opposite sexes or when the athlete is very young. It is essential that the coach must do all that is possible to avoid misunderstandings".

Mr Walker gave evidence that UKA was now the governing body for the sport of athletics, having become so on 4^th February 1999 following its predecessor BAF going into administration. Mr Walker went on to say that initially UKA had continued to administer the BAF qualification scheme. This continued until the summer of 2001 at which point a UKA system had been introduced and all existing BAF qualified coaches were invited to transfer to the UKA scheme. Mr Walker stated that the Appellant's transfer form from BAF to UKA was dated 15^th October 2002 and was received by UKA on 21^st October 2002. The Appellant was sent his UKA pass and licence on 24^th October 2002.

Mr Walker told the Tribunal that the BAF syllabus that the Appellant would have followed in obtaining his coaching qualification was similar to the core content of the UKA courses. Mr Walker believed that the Appellant would have been told about his moral obligations as a coach towards athletes, as part of his course. However, Mr Walker accepted that in terms of child protection the language used at that time was "a lot softer" than is the case now. It is the present policy of UKA that any sexual relationship between a coach and an athletic under the age of 18 is prohibited and that UKA is against sexual relationships between coaches and athletes where the athletes are over 18.

8. Mr Walker explained that as the governing body of athletics in the UK, UKA have the responsibility to investigate all welfare complaints and to instigate disciplinary panels in situations where there was a case to answer. Informal complaints against the Appellant had been received by UKA in 2002. As a result of these complaints Mr Walker conducted interviews and obtained evidence from a number of young women including some athletes that the Appellant had coached: the complainants being JM, KP, JO and MP. The Appellant was interviewed by Mr Walker and other members of UKA on 31^st October 2002 and 11^th November 2002.
9. Mr Walker interviewed JM (date of birth 16^th October 1977) on 29^th May 2002. The Tribunal saw a copy of the notes of that meeting. It was recorded in those notes that JM had first met the Appellant as an athlete whilst at university. The Appellant had begun coaching JM when she was 22 and two months later they began a sexual relationship. The Appellant was recorded as having told Mr Walker that by the following April (16 months later) JM wanted to break off the relationship with the Appellant, but continue with the coach/athlete situation. The Appellant was said to have told JM that he was not (having any of it) and to have stated that he would not go on with the training if JM broke of the relationship.

The Appellant was due to take a group of athletes training in the USA, 10 athletes were involved. JM not wishing to disrupt the training of the other athletes agreed to go to the USA. Whilst in the USA, JM is recorded as saying that she again wished to break off her relationship with the Appellant. An incident was said to have occurred when JM was in the shower and the Appellant was alleged by her to have pulled her out, pushed her on to the bed and locked the bedroom door. JM said that he then told her to pack her bags and leave the apartment. If she did not do so the Appellant threatened to kill her by slitting her throat. JM then told Mr Walker that she got dressed and went to the kitchen where she was approached by the Appellant who picked up a large kitchen knife and placed it on the work surface next to her and repeated that if she did not leave the apartment he would kill her. The police were called and the Appellant was detained for 5 days. JM is recorded as saying in her interview with Mr Walker that she felt guilty that the Appellant was in that situation and therefore told the authorities that he did not scare her any longer and the Appellant was released. After his release JM resumed her relationship with the Appellant however on their return to England JM finished the relationship. JM said that the Appellant thereafter made several suicide threats. She said that her motive in coming forward to talk to UKA was "to stop this sort of thing happening to others".

10. The Appellant was asked about the complaint from JM at his meetings with UKA on 31^st October and 11^th November 2002. In the transcript of the interview of the meeting on 11^th November he is recorded as having accepted that he started coaching JM in September 1999 and that he started a relationship with her in January 2000. He went on to comment about the events that occurred on the training trip to the USA. This included the following statement:-

"Next morning we had a heated argument whilst hoping to go to an athletics meeting, I kept trying to talk to her, she kept on trying to leave, angrily she got up and I said if you get up again I am going to kill you. At this stage I am standing in the bedroom, partly dressed, she left the room, she was crying and being comforted by CT. I then said by the time I get back you had better have gone, I then cut myself a piece of cake and turned around to her, and said "I'm not joking you had better be gone by the time I get back".

In the same interview the Appellant was asked about his view of the appropriateness of the coach/athlete relationship and whether he should have entered into a relationship with an athlete. The Appellant's response was "in hindsight I'd say no because of what happened". When asked specifically about the appropriateness of his relationship with JM he is recorded as saying that based on JM's age and stage in life that it was not appropriate.

11. JM signed a written statement which was given to UKA dated 20^th February 2003, a copy of which was also included amongst the Tribunal papers. In that statement she said that:-

"I have since retired from athletics following the incidents with the (Appellant) although injured I felt that I could not physically and emotionally continue,"

and later in the same statement:

"I have always found myself to be a trusting person, but since (the Appellant) I have found it hard to trust people both in relationships and in general."

12. A complaint was also made by KP (date of birth 23^rd October 1980). She was interviewed by Mr Walker on 13^th June 2002. At that meeting KP indicated that she had been introduced to the Appellant when she was 12 years old, having broken the national junior record and that she had done some training with him, although not full time. When KP was around 15/16 years of age she had introduced her friend JO to the Appellant and that the Appellant and JO had begun a relationship, notwithstanding according to KP, that the Appellant was seeing someone else at the same time.
13. KP told Mr Walker the Appellant had been very supportive to her, cooking for her and her boyfriend and almost being a "dad". KP went on to tell Mr Walker that the Appellant had "tried it on" with her, he had called KP into the bathroom where he was naked in the bath and KP had got into the bath fully clothed. Although nothing more happened on that occasion, according to KP the Appellant kept trying it on with her until eventually she had a sexual relationship with him at the beginning of the winter 1996.
14. The Appellant was said to have wanted to coach KP full time, but KP was not prepared to leave her existing coach. KP related to Mr Walker that she struggled with the morality of the sexual relationship with the Appellant, as the Appellant's girlfriend was her best friend. In due course the Appellant's girlfriend JO found out about the Appellant's relationship with KP and the relationship between KP and the Appellant came to an end. When asked what had motivated her complaint KP said:-

"Never to see the (appellant) in athletics again, to prevent him from inflicting this pain on other girls".

15. The Appellant was asked about KP's complaint when he was interviewed by Mr Walker in October/November 2002. In relation to the incident in the bathroom the Appellant said that KP was confused. On the first occasion which was on Boxing Day 1996 KP and the Appellant had ended up kissing but nothing further had happened. In January 1997 KP had got into the bath partially dressed and sex had taken place. It had happened again according to the Appellant in May 1997 when he had gone to her house. When asked by Mr Walker why he had let the sexual relationship with KP happen the Appellant was said to have replied that, "I have made a mistake as people do". He also said during the course of the interview that "I had two intimate contacts with KP which should not have taken place". When asked why the contact should not have taken place the Appellant replied "because of the age of the complainant". The Appellant also stated during the course of the interview that in his view KP had been a willing participant.
16. In a written statement for UKA dated 20^th February 2003, KP included the following:-

"My experience with (the Appellant) caused myself and my family great distress and trauma, not only did he publicise the affair, but he told many lies to cover his back to justify the situation.

I have been constantly reminded and haunted by my mistake and vulnerability as a 16 year old. My athletic career has also suffered as a consequence and loss of confidence. I had to put up with remarks at major events from his athletes and friends. When returning to Eton track I am constantly made uncomfortable by staff in his group due to his manipulation of the truth".

17. In relation to MP the records of UKA show her date of birth to be 27^th October 1981. MP was not interviewed in person by Mr Walker as part of UKA's investigation into complaints against the Appellant, but he did speak with her on the telephone and MP did produce a written statement to UKA. In that statement MP indicated that she had joined the Appellant's training group in September 1998 and started training at Windsor. She went on to state: "it was towards the end of that summer 1999 that. (the Appellant) started to be really nice to me, going out of his way to be really helpful". She went on: "throughout September 1999 I spoke to, (the Appellant) a lot as things were not going well at home and I was no longer with Wayne and (the Appellant) was there to talk to me. He invited me down one evening to his flat and told me he would make dinner so I went down. We had a good evening and I ended up sleeping with him. The reason I think I slept with, (the Appellant) is because I enjoyed the attention he gave me which I was not getting at home which was no one's fault but my own."

Later in the same statement MP stated that-

"(the Appellant) definitely had a hold over me, the fact that we had this big secret together (us sleeping together) he used that to his advantage as he knew that I had not told anyone. Due to him having this big hold over me I ended up sleeping with him in Tenerife where we went for warm weather training in January 2000. Little did I know that I was making it more and more worse for myself. The hold he had was getting greater because I kept falling into his trap, I slept with him again and not told no one.

I also ended up sleeping with him in February 2000. I had fallen into the trap again like an idiot and let him have his way with me again".

After the incident in February 2000 MP stated that she had decided that enough was enough and she did her best to keep her distance from him. However, in June 2000 when talking to the Appellant on the telephone he had asked her to come down and see him. When she had refused he had told her to "come down or else!" When MP had asked the Appellant what he was talking about he had said "he would tell everyone that I had slept with him." MP had said that she did not believe that the Appellant would do this, but he had said that "he had taped me and him sleeping together and said it showed everything". MP alleged that the Appellant had then said that if she wanted the tape she would have to sleep with him to get it. The following day the Appellant had shown her a glimpse of the tape, but despite MP pleading for the return of the tape the Appellant had refused and MP said in her statement, "I just started to think that if I sleep with him he gets what he wants and I get the tape back". MP said that she had slept with him and it had made her feel "cheap and dirty". In August 2000 the Appellant had called MP and said she had to come and see him or the tape would get shown. MP said that she ended up going to see him and again ended up sleeping with the Appellant to try and get the tape back. MP stated that after that time he had given her the tape but when she had watched it at home a month or so later she found out it was not the correct tape. However, eventually she had obtained the correct tape and destroyed it.

18. The Appellant was asked about the allegations made by MP in his interview with Mr Walker on 31^st October and 11^th November 2002. When questioned by Mr Walker as to whether he had had a sexual relationship with MP, the Appellant replied, "yes I slept with MP on two occasions once in October 1999 and once in February 2000". The Appellant maintained that MP was 18 when he first had a sexual relationship with her. The Appellant was also asked questions by Mr Walker about the tape recording. Mr Walker asked him whether he had taped himself and MP having sex to which the Appellant is recorded as having replied "yes I made a tape" and then when asked whether that was with MP's consent, the Appellant states "no, she did not know about it". The Appellant stated that he had made the tape for his own protection, "I did it for my protection, anything that happened with MP I said I am not having someone tell me that I'm making allegations and accusations against me that I cant justify."

The Appellant was also asked as to whether or not he had retained a copy of the tape having given the original to MP. The Appellant stated that he had make a copy. He was then asked by Mr Walker whether he considered that was an ethical thing to do, to which the Appellant replied "…. It's not ethical at all, I made the tape, made a copy at the same time – totally unethical".

MP signed a witness statement in relation to these proceedings to which she exhibited a written statement that she had sent to UKA. The final paragraph of the exhibited statement read as follows:-

"(the Appellant) has scarred me for life mentally and physically and I will never forget what he has done to me. He made me give up the sport I had loved since I was 12 years old and that decision devastated my family. I just wish I would have told someone a lot quicker so a lot of what did happen would never had happened.

I just hope he is out of my life for good now and I can look forward to the future and never have to worry about him ever again.

I just hope that this never have to happen again to any other girls, because no girl deserves to go through what I went through."

19. Mr Walker met with JO on 10^th July 2002. JO was born on 6^th November 1980. She was not an athlete that the Appellant trained, but was a friend of one of the athletes namely KP. JO had had a relationship with the Appellant during the period from the summer of 1996 to October 1997 when she was 16 and again during the period from spring 1999 to Easter 2000. In her meeting with Mr Walker JO alleged that there had been an incident whilst she had been with the Appellant during warm weather training in Lanzarote at the end of 1999/beginning of January 2000. She alleged that there had been an argument between herself and the Appellant, during which the Appellant had got a knife from the kitchen and held it to various parts of her body. She also alleged that there was an incident on 15^th May 2000 when she had arranged to meet the Appellant in order to collect things that she had left at the flat and also to obtain repayment of a loan that she had made to the Appellant. JO told Mr Walker that there was an argument at the flat, with the Appellant threatening to tie her up if she tried to leave. JO went on to say to Mr Walker, that the Appellant punched her to the face and kicked her to the floor causing her nose to bleed. He had then put a pillow over her face, before taking her keys and mobile phone, put her into the bathroom and threatened that if she made a noise he would spray the de-icer that he was holding over her face so that nobody would want her. Later he threatened JO with putting a knife to her face.

Approximately 2 weeks after the incident JO went to the police, but decided not to take the matter any further. JO went on to allege that in June 2000 the Appellant had contacted her whilst she was at university in Nottingham threatening that he had a copy of her room key and that he was coming up for the weekend. JO contacted the police and said that a restraining order was served on the Appellant.

20. When asked by Mr Walker when a sexual relationship had first started between JO and the Appellant, JO is recorded as saying that, she was 15 at the first date with the Appellant: "we went to the cinema and did "coupley" things." , She went on, "I kissed him and stayed over night in the same bed whilst 15. He bought me underwear for my 16^th birthday. A sexual relationship did not start until I was 16".
21. Again these accusations were put to the Appellant by Mr Walker during the interviews in October and November 2002. The Appellant commented by saying, "the only thing I want to say about JO is that it is totally coerced by KP as she is not an athlete I do not think its relevant. What I would say to support that is that JO like MP has made factual accusations, the fact that she had an injunction out on me. An injunction has to be served against you and I have never had anything served against me…..".
22. In a written statement submitted by JO to UKA dated 20^th February 2003 JO stated as follows:-

"I was physically upset and emotionally hurt immediately afterwards. He has made me feel more jumpy and scared of being by myself particularly late at night. I feel vulnerable and nervous in situations where I would not normally have been. I had to retake my exams as a consequence of not being able to spend time at university due to emotional distress. I spend time back home with my parents trying to overcome this. I am in a relationship at the moment, which took time to develop as a result of the incident with (the Appellant). The long term effect is that I feel uneasy being at home by myself and I have panic attacks when I see violence even unrelated violence in the streets".

23. During the course of the interview between Mr Walker and the Appellant on the 11^th November 2002, Mr Walker asked the Appellant if he could explain the conduct of an appropriate coach, "how a coach should operate" to which the Appellant replied, "The coach is someone who provides people with a learning opportunity, very similar to a teacher, this is the best way I can describe it. Later Mr Walker asked, "in the duty of care, a teacher has a duty of care for the students or pupils they look after, does that similar duty of care exist in the coach/athlete relationship?", the Appellant replied "yes".
24. After the interviews in October/November 2002 UKA decided to bring a charge of misconduct against the Appellant under its grievance and disciplinary procedure for coaches, concerning the allegations related to the Appellant's conduct in relation to JM, KP, MP and JO. The charge was heard by a disciplinary panel comprising Adam Lewis, Pat Green and Keith Davis which took place on 5^th November 2003. The panel heard oral evidence from a number of witnesses including JM, KP and JO. MP was not called to give evidence. The Appellant did not attend the hearing.

In their written decision dated 24^th November 2003 the panel stated:-

"We have no hesitation in concluding on the cumulative basis of our findings set out above, that (the Appellant) has acted in a way which is not befitting his status as a licence coach and in a way that would bring athletics into disrepute".

Their findings included that (the Appellant) had threatened an athlete whom he was training and on a different occasion had so terrified another girl that she had gone to the police.

The panel went on to state that:-

"He has abused his position as a coach to engage in repeated sexual encounters with a 16 year old athlete and a 17 year old athlete under his charge whilst in each instance being involved in a long term relationship with another athlete under his charge and simultaneously sleeping with a third young girl".

Also, that he had "been prepared to video himself having sex with an athlete under his charge without her knowledge, to use it to affect her conduct, and to keep a copy after supposedly handing the video tape over to her".

The sanction imposed by the panel was that (the Appellant's) accredited coaching status and qualification should be removed and that he should not be eligible for a grant for accredited coaching and status and qualification for a period of 10 years.

25. The Appellant appealed against the disciplinary panel's decision. In a letter dated 23^rd February 2004 from his solicitor to the lawyers acting for UKA, notice was given on the Appellant's behalf that:-

"1. He would not dispute the finding of fact from the disciplinary committee hearing.

2. He did not require cross examination of the various witnesses who gave evidence before the committee.

3. He would appeal the sanction only which he alleges was overly harsh and disproportionate to the misconduct.

4. He gave details of five character witnesses who he intended to call and also that he wishes to give evidence himself. "

26. The panel consisted of Mr Colin Ross Munro QC (Chairman), Mr Chris Coen and Ms Novlette Rennie. In giving his oral evidence to the appeal panel the Appellant was asked by his solicitor if it was right to say "that you accept your behaviour over the course of time was not right and was not appropriate for the athlete/coach relationship" to which the Appellant replied "I do agree with that". He went on to say that "obviously with hindsight I would never have dreamt of doing a lot of those things".
27. The Appellant told the panel that whilst he was in a cell in Florida he had had time for self reflection and he had decided to try and conduct himself "in a totally different manner than what I did previously". He went on to say that he was now in a relationship with a 41 year old woman and that he accepted that it was inappropriate to have had relationships with athletes. He was asked whether if offered mentoring and education courses he would follow such courses to which the Appellant is recorded as having replied "most definitely, yes, totally 100%". He also gave evidence as to how much he loved the sport of athletics.
28. The appeal panel heard from a number of character witnesses who gave evidence as to the Appellant's coaching ability and his love of athletics.
29. The appeal panel having heard the evidence presented concluded that "on the undisputed findings of the disciplinary committee the charge of misconduct was clearly made out and the Appellant's conduct was extremely reprehensible, in particular, bearing in mind the coach/athlete relationships, the video tape obtained without consent and the comparative young ages of KP and MP. Although JO was not in an athletic/coach relationship, she too was comparatively young compared to the Appellant and his relationship with her affected his relationship with the other athletes when he was coaching."

They agreed with the finding of the disciplinary committee that the only appropriate sanction included the removal of UKA accredited coaching status and qualification from the Appellant. They then went on to consider the length of the period of time during which the Appellant would not be eligible for a grant of accredited coaching status and they decided to reduce the 10 year period imposed by the disciplinary committee to 7 years. Amongst their reasons for this decision the appeal panel cited the following:-

1. That the Appellant had frankly admitted the vast majority of the serious allegations made against him thus saving the various girls (mainly very young) from an embarrassing cross examination and also saving considerable time and costs.

2. That the Appellant had by not challenging the facts found by the disciplinary committee on its findings as to misconduct rendered it unnecessary to cross examine the various girls and save considerable time and costs".

30. On 21^st June 2004 a referral was made by UKA of the Appellant to the Secretary of State under the POCA, following which the Respondent in these proceedings under Section 2 (4) of the POCA provisionally included the Appellant on the list maintained under section 1 (1) of POCA of those persons who are unsuitable to work with children. On 26^th July 2004 the Respondent provisionally included the Appellant on the list maintained of those who are unsuitable to work with vulnerable adults.
31. The Appellant wrote to the Secretary of State on 25^th November 2004 responding to his provisional inclusion on the POCA and POVA lists. Including in that letter was the Appellant's submission that only one of the young people involved was under 18 at the time when the alleged actions were said to have taken place. In respect of JM he said that she was "born 16^th October 1977" and was therefore 23 years of age when she travelled to Florida in 2001 as part of an extended holiday not as an athlete so she would not qualify either as a teenager, a child or on the trip to Florida as an athlete under my guidance. Her only link to me was one of a struggling relationship". In respect of JM he stated that she was "born 6^th November 1980 making her 19 years and 6 months when we had a domestic argument and she became upset and left my home on 15^th May 2000." In respect of JO she "would only just qualify as a teenager, she was an independent intelligent individual living away from home in Nottingham responsible for her well being". As far as MP was concerned she was "born on 26^th October 1981. I had sex with MP the night after my first training session when I resumed training following an Achilles operation. I was not given the all clear to start training again until November 1999 which also removes her from consideration as a child as she was also 18 years old at the time".

The Appellant in respect of the other allegation brought regarding MP he stated that they are proven to be totally false. He went on to specifically deny having filmed himself and MP having sex.

As far as KP was concerned he stated that "the issue here is not one of age it's a claim to be of a coach abusing his position to try to manipulate an athlete into doing something wrong. This argument is flawed on two fronts. Firstly KP states that she was a willing party and in her original statement said she had sex with me because she felt sorry for me! Does that sound like someone abusing their position as a coach or someone who should be placed on a list for cruelty to children?"

32. The Respondent in response to this appeal set out in some detail the matters that had been taken into account in determining whether or not the Appellant should be included on the POCA and POVA lists. Having taken those matters into account the Respondent considered that the Appellant was unsuitable to work with children and vulnerable adults and confirmed the Appellant on both lists on 26^th January 2005.
33. During the course of these proceedings the Respondent's Solicitors produced a "statement of agreed facts" which was sent to the Appellant for his consideration and to which he subsequently responded in writing. Amongst the facts admitted by the Appellant were the following:-

(i) Re: JO

•    That on the 15^th May 2000 JO came to his house when an argument took place JO got upset and the Appellant did not want her to leave because he was in love with her.

•    That Slough police had received a complaint from Nottingham Police and the Appellant was asked to stay away from JO or action would be taken against him.

(ii) Re: KP

•    That KP undertook some training sessions with him in the winter of 1996 when they grew closer.

•    That he had sexual intercourse with KP after the 1997 AAA indoor championship.

•    That the last time he had sexual intercourse with KP was on 20^th May 1997.

•    That he made a mistake in having an inappropriate relationship on two occasions and that they should not have taken place because of her age and if he had the choice again he would not do it.

(iii) Re: JM

That he lived with JM between August /September 2000 and January/February 2001.

That he told JM that she had "better be gone" from the villa they were staying at in the USA and that when he said this he was holding a knife.

That in relation to the incident above he was arrested and charged with aggravated domestic violence

That he visited JM following the break up on two occasions one of which he entered her parent's house.

(iv) Re: MP

That he met MP in 1998 when he started coaching sessions with her.

That he admitted that making the video tape was totally unethical.

That he did not have a relationship with MP but just engaged in sex with her.

34. The only oral evidence that the Tribunal heard was from Mr Adam Walker the deputy chief executive of UK athletics. He was able to confirm the contents of his interviews with the various young women in this case, together with his interviews with the Appellant in October/November 2002. He was also able to confirm the outcome of the UKA disciplinary panel and the appeal panel. He said that the 7 year sanction imposed by the appeal panel was more than double the largest ban on any coach that had previously been imposed.

Mr Walker said that the Appellant had shown a lack of remorse for his actions at the appeal hearing and had not really apologised. He had continually crossed the line of trust. In Mr Walker's view the Appellant knew what he was doing was wrong, but had not stopped. He had manipulated the group situation and kept his actions secret. He had created an environment that he could manipulate. The effect of the 7 year sanction was to remove the Appellant's status as a licensed coach, one of the consequences of which was to remove a coach's insurance and to prevent him accessing certain athletic facilities. It was not however an offence to coach without a licence.

Mr Walker said that the Appellant's activities had been monitored after the appeal and that UKA were aware that the Appellant had gone to Holland to coach during 2004, as UKA had been contacted by the athletics authorities in Holland. Mr Walker said that he was not aware that the Appellant was currently coaching anywhere and he had not seen him at any athletics competitions.

As far as Mr Walker was concerned the Appellant had used his position to recruit people into his training group and then manipulate both the individuals and the overall behaviour within the group. Mr Walker considered that the Appellant had known what he was doing and Mr Walker did not think that there was any indication that the Appellant was going to change his behaviour in the future. He would have concerns if the Appellant was in a position of trust with anyone whether in a coaching or teaching capacity.

35. The Appellant did not appear at the Tribunal hearing. As mentioned previously he had e-mailed the Tribunal on the morning of the hearing to say that he had difficulties at work and that if he were to attend on the first day of the hearing he could lose his employment. The Appellant did submit by e-mail a document entitled "errors in outline submissions". The Appellant in that document again mentioned the ages of the young people who had made complaints, stating as follows:-

"A child is defined as a person under 18". It is admitted that both JO and KP were under 18 at the time the Appellant had sex with them. However as JO was never an athlete she must be removed from this enquiry as this would then suggest that anyone who is over the age of 18 cannot have a lawful relationship with a girl under the age of 18 but over the age of consent. The issue is one of a coach and athletes under his guidance".

The Appellant contested that KP's athletic career had suffered as a result of his actions.

The Appellant maintained that he was suitable to work with children and that he had had letters inviting him to accept coaching positions in various parts of the world, but had so far declined them. Further that he had not attended an athletics meeting in this country since April 2004. The Appellant also stated that it was untrue to suggest that he did not try to seek professional help. He also submitted that his current employer had suspended him for a month in September 2004 whilst an internal investigation had taken place. It had been agreed that there had been no case to answer and the behaviour demonstrated in regards to all the people the Appellant managed and all of the people he interacted with that the Appellant had moved forward from these events and presented no threat.

36. The Appellant also submitted a number of statements from character witnesses none of whom attended the Tribunal to give oral evidence. These included statements from Mr John Heanley who had been coached by the Appellant between 1999 and 2003. He did not consider that the Appellant posed a threat to children or vulnerable adults. There was a statement from the Appellant's present partner Ms J. Tutin who said that she had been in a relationship with the Appellant since March 2002. She commented on the Appellant's love for athletics. J M who had previously had a relationship with the Appellant had also written a statement in which she disputed some of the evidence of JM and KP. Finally in a joint statement from J B and her father Dr D B, they stated that J B had been coached by the Appellant and that she had always felt safe around the Appellant, because he was a professional person.

CONCLUSIONS AND DECISIONS

37. Section 4 of the Protection of Children Act 1999 states as follows:

1. An individual who is included (otherwise than provisionally) in the list kept by the Secretary of State under Section 1 above may appeal to the Tribunal against:-

(a) a decision to include him in the list or

(b) with the need of the Tribunal, any decision of the Secretary of State not to remove him from the list under Section 1 (3) above.

Section 4 (3) reads as follows:-

"If on an appeal or determination under this section the Tribunal is not satisfy 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 suitable to work with children.

the Tribunal should allow the appeal or determine the issue in the individual's favour and (in either case), direct his removal from the list; otherwise it should dismiss the appeal or direct the individual's inclusion in the list."

38. It therefore follows that the Tribunal must consider its decision in three stages. Firstly we have to determine whether there has been misconduct. Secondly has such misconduct harmed or placed a child at risk of harm and thirdly that the Appellant is unsuitable to work with children. Only if all three elements are present can we dismiss the appeal.

There is also the question of the POVA list which is covered by Section 86 of the Care Standards Act 2000 where if we are satisfied that the Appellant is guilty of misconduct which has harmed or is likely to have harmed a child then we also need to consider whether he is a suitable person to work with vulnerable adults.

39. The burden of proof in relation to these matters is on the Respondent. The standard of proof is that described in the decision of the House of Lords In Re H and others (1996) AC563 and the Secretary of State v Rehman (2002) 1 All ER122. In essence, the standard of proof is on a balance of probabilities, whilst acknowledging that the less likely a proposition the more powerful the evidence needs to be in support of it.
40. In this case the Appellant did not give oral evidence. The Appellant's reasons for not attending the hearing are stated above, which were said by him to be related to difficulties with his employment. We found this explanation for his absence unconvincing, particularly in the context of the length of time that he had known of the hearing date. Whilst the Appellant did attend the investigatory meeting with UKA in October and November 2002, we note that he did not attend the disciplinary hearing organised by UKA in November 2003 to be questioned about the allegations of misconduct in this case. We therefore consider that there are adverse inferences to be drawn against the Appellant for his failure to attend the Tribunal hearing, particularly when it comes to disputed facts and evidence regarding his suitability to work with children and young adults.

It is also true to say that the only witness called for the Respondent was Mr Adam Walker with none of the individual complainants being called. We consider this to be a different situation to that of the Appellant's non attendance given that a substantial amount of their evidence has been previously agreed by the Appellant. We refer in particular to the letter dated 23^rd February 2004 from the Appellant's then solicitor Mr Michael Townley to the solicitors acting for UKA, sent in the context of the Appellant's appeal against the decision of the UKA disciplinary panel. The letter was sent with reference to the Appellant's appeal to UKA's appeal committee panel, it stated that the letter contained notice that the Appellant would not dispute the findings of fact from the disciplinary panel hearing and further that the Appellant did not require cross examination of the various witnesses who gave evidence before that panel.

We also took into consideration that during the course of these proceedings the Appellant had also agreed a substantial number of facts put to him by the Respondent. In those circumstances we consider it would be entirely wrong to draw any adverse inferences from the non attendance of certain of the Respondent's witnesses.

41. In looking at the evidence in this case we took into account the fact that there had been findings by a disciplinary panel set up by UKA. As well as the documentary evidence regarding the disciplinary hearing we also heard evidence from Mr Walker about the procedure. We are satisfied that there was an appropriate and fair procedure and we take into account the facts found by that panel (noting that the findings of fact were not challenged by the Appellant before the UKA appeal panel) although clearly the Tribunal, where appropriate, has made its own judgement on the evidence presented in this case.
42. In looking at the first issue namely was the Appellant guilty of misconduct we have construed misconduct in line with the way in which it was expressed by the Tribunal in the case of Angella Mairs v Secretary of State [2004] 269.P.C where it was stated that:-

"In principle, a single act of negligence could constitute misconduct but in most cases the misconduct will be an incident forming part of a course of erroneous or incorrect behaviour undertaken by a person who knew or ought to have known that what he or she was doing was contrary either to the general law or to a written or unwritten code having particular application to his or her profession, trade or calling" In the context of a profession, for there to be a finding of misconduct there must be a falling short, whether by omission or commission, of the standards of conduct expected from members of that profession.

43. It was accepted that the UKA's agreements and disciplinary procedures for coaches and the code of ethics for coaches and athletes' welfare policy were not in force at the time of the relevant events in this case. We accept however Mr Walker's evidence that the Appellant was subject to the BAF rules in existence at that time, including their coaching theory manual, in particular rule 22 (3) of those rules which said in effect, that coaches should not engage in conduct which would bring discredit to the sport of athletics. The coaching manual contains a paragraph on the "coach-athlete relationship". Whilst in terms of child protection the language is not as explicit as might be expected now, nevertheless we consider that it is clear that a coach is in a position of trust in relation to the athlete that he or she is coaching and that such a position of trust must not be abused.

Indeed the Appellant acknowledged in his interviews with UKA that in a coach/athlete relationship the coach has the same duty of care for the athlete as a teacher has towards the students or pupils that they are looking after.

44. The allegations of misconduct in this case relate to the Appellant's relationships with a number of athletes that he was coaching namely JM, KP and MP. In addition the Appellant's relationship with JO, who although was not someone he was coaching was a friend of athletes that the Appellant was coaching and she accompanied the Appellant on some training trips. We propose to consider the allegations against each of these complainants individually in order to determine what facts the Respondent has established. In respect of much of the evidence the Appellant has made important admissions. We also take account in this regard that the UKA disciplinary panel made findings of facts against the Appellant which he did not challenge on appeal.
45. In respect of JM the allegation is that the Appellant had an intimate personal relationship with her while she was an athlete under his care and supervision, that relationship commencing when JM was 22 years of age, at a time when the Appellant was in his 30's. The Appellant at his meeting with UKA on 11^th November 2002 accepted that this relationship had taken place.

It was also said by JM that during a warm weather training trip to Florida in April 2001 JM had tried to break off her relationship with the Appellant and that during the course of arguments between them the Appellant had threatened to kill her and also threatened her with a knife. The Appellant in his interview on 11^th November 2002 did not deny the threatening behaviour in relation to JM nor did he deny picking up the knife and waving it. The Applicant subsequent spent 5 days in jail charged with aggravated assault with a deadly weapon, albeit that JM had subsequently arranged for the charge to be dropped. The admission by the Appellant that he threatened to kill one of his athletes is sufficient in our view to amount to misconduct by the Appellant in his role as that athlete's coach.

46. The allegations in relation to KP were that she was an athlete who had at times been coached by the Appellant. KP gave evidence to the disciplinary panel that the Appellant had kept "trying it on with her and they had sex on a number of occasions between 1996 and the middle of 1997." This at a time when the Appellant was having a relationship with KP's best friend JO and also another woman. We accept the disciplinary panel's findings that although KP may have been a willing partner in the relationship, the Appellant had pampered her and encouraged the relationship. Again the Appellant in his interviews with UKA did not dispute the relationship and agreed that it should not have taken place, due to KP's age. The Appellant stated "I had two intimate contacts with KP which should not have taken place", later in the same interview he stated "I made a mistake as people do". The Appellant made similar admissions in relation to the agreed facts in this appeal. We take the same view as the UKA disciplinary panel namely that the Appellant was in a position of trust as a coach and that it was inappropriate behaviour for him to engage in a sexual relationship with a 16 year old athlete, thereby abusing that position of trust as a coach and that this also constitutes misconduct.
47. In relation to MP this was the one witness that the disciplinary panel did not hear from directly although she had given a written statement and she also gave a written statement in these proceedings. As the Appellant disputes MP's age when he commenced a sexual relationship with her, it is important that we make a finding as to MP's date of birth. Whilst we have not seen her birth certificate Mr Walker did produce a print out from UKA records which the Tribunal were told would have been compiled as a result of information supplied by MP, that her date of birth is 27^th October 1981 and we accept that evidence. At the investigatory meeting on 11^th November 2002 the Appellant admitted to sleeping with MP on two occasions in October 1999 and February 2000. He later stated the first occasion was in fact November 1999 and that he could recall this date because it coincided with when he was given the all clear to return to training having settled a particular injury. Insofar as there is a conflict between the two versions given by the Appellant we prefer his initial evidence that the first occasion when he had a sexual relationship with MP was in October 1999 which substantially confirms MP's own evidence. On the basis of MP's date of birth being 27^th October 1981 we consider that on a balance of probabilities the first occasion that the Appellant had sexual intercourse with her was prior to the 26^th October 1981 at a time when MP was 17 years of age. Again we conclude that it was inappropriate behaviour for the Appellant at age 34 to encourage a series of sexual encounters with another young athlete in his charge thereby again abusing his position of trust as a coach.

There is a second allegation in respect of MP namely that the Appellant secretly videoed himself having sex with MP and then used the existence of the tape to persuade MP to have sex with him on later occasions, failing which he would reveal it to other athletes. Again the Appellant in his interview on 11^th November 2002 confirms that he did make such a tape without MP's consent and he goes on to say that it was "totally unethical and if I was in that position again I would have taken a different action". Again we endorse the findings of the disciplinary panel that it was completely unethical to behave in this way, the Appellant using the existence of the tape to maintain a hold over MP such video taping was wholly inappropriate behaviour for a coach and amounts to misconduct.

48. The position in relation to JO is slightly different in that she was not an athlete, but a friend of KP. She has not disputed that the Appellant had a relationship with her firstly during the period from summer 1996 to October 1997 when she was 16 and the Appellant was 31 and secondly during Spring 1999 to Easter 2000. Whilst noting the age difference between JO and the Appellant we have looked at this relationship in a different light to those already mentioned given that those were where the Appellant was in a position of trust as a person coaching a particular athlete. This was not the case here and therefore we do not consider that the relationship itself amounts to misconduct in the terms in which we have defined that expression.

JO did however make allegations about the way in which she had been treated by the Appellant in particular in December 1999/January 2000 when she had accompanied the Appellant when he had taken a group of athletics for warm weather training in Lanzarote, it being alleged the Appellant had held a knife to various parts of her body. It was also alleged by JO that there was an incident in May 2000 when the Appellant had assaulted her and she had gone to the police. We did not hear directly on this matter from either JO or the Appellant and therefore find some difficulty in reaching any conclusion on the facts over and above what the Appellant admitted in answering to the questioning by UKA, in particular that there had been arguments but no physical violence. Therefore whilst this may be reprehensible, it appears to have taken place in the context of a relationship not directly connected to athletics and not in the circumstances of a coach/athlete relationship and accordingly we do not find that there has been misconduct.

49. Therefore given the findings set out above in relation to JM, KP and MP we consider that the Respondent is guilty of misconduct. However, in the context of the POCA it is necessary to consider whether an Appellant has been guilty of misconduct "which harmed a child or placed a child at risk of harm. The definition of harm is that set out in Section 31(9) of the Children Act 1989 which states that:-

"harm" means ill treatment or the impairment of health or development (including, for example, impairment suffered from seeing or hearing the ill-treatment of another".

"development" means physical, intellectual, emotional, social or behavioural development;

"health" means physical or mental health; and

"Il-treatment, includes sexual abuse and forms of ill-treatment which are not physical."

The definition of "a child" found in Section 12 (1) of the Protection of Children Act 1999 is "a person aged under 18".

It therefore follows that the two persons that we need to consider in respect of Section 4 (3) of the POCA in this regard are KP and MP. We have considered the evidence contained in the statement of both KP and MP to this Tribunal and the original statements that they gave to UKA which were attached as exhibits to their witness statements in these proceedings, the contents of which they both confirmed were true. In the case of MP she stated that she had been "scarred for life mentally and physically" and that she had had to "give up the sport that I have loved since I was 12 years old". Mr Walker described MP as a vulnerable person and confirmed that her involvement with the Appellant had affected her athletics career. She had been very upset. He went on to describe her as a "damaged young lady". We therefore conclude that in relation to MP the Appellant's misconduct did cause her harm.

50. The second child in respect of which we have found misconduct is KP. Again she exhibited to her witness statement in these proceedings a copy of the statement that she had submitted to UKA dated 20^th February 2003 and in addition the notes of the meeting between herself and Mr Walker on 13^th June 2002. She confirmed in her witness statement that the contents of the statement were true. In her submission to UKA she stated that her experience with the Appellant had "caused myself and my family great distress and trauma…so that I had been constantly been reminded and haunted of my mistake and vulnerability as a 16 year old. My athletic career has also suffered as a consequence and loss of confidence".

The Appellant in his submission e-mailed to the Tribunal on the first day of the hearing did contest that KP's athletic career had suffered as a result of his conduct. However, Mr Walker told the Tribunal that in his view KP's athletic career had taken a backward step and that she had subsequently dropped out of the sport. Although she had been the most confident of the complainants in coming forward nevertheless he considered that she had been very scared and intimidated by the Appellant. On balance we preferred the evidence of KP herself which is supported by Mr Walker as against the evidence of the Appellant on this matter and conclude that KP did suffer harm as a result of the Appellant's misconduct.

51. Having determined that the Appellant has been guilty of misconduct which harmed a child we then went on to consider firstly whether the Appellant is suitable to work with children. In this context we have considered all our findings of misconduct not only in respect of MP and KP but also JM. We regard the Appellant's misconduct towards KP and MP as being very serious, these were both young girls who the Appellant did on occasions coach and was therefore in a position of trust towards them, they being children in his care. The fact KP and/or MP may have been willing participants is not in our view a relevant factor given their ages and the position of power that the Appellant held at the relevant times. Notwithstanding that in his interviews with UKA he accepted that the relationship of coach/athlete was a similar one to that of teacher/pupil, in practice he does not appear to understand the responsibility that this placed on him. In the case of MP his abuse of trust went even further when he video taped himself having sexual intercourse with her without her knowledge and then sought to use the video tape as a hold over her. The effect of these actions has been to cause harm and distress to two vulnerable children and to have impacted significantly on their promising athletic careers. The Appellant's conduct demonstrated a complete lack of judgement.

In the case of JM the Appellant acknowledged that he had made threats to kill and that JM was someone who was part of his athletics group, which again is totally unacceptable and demonstrates a further lack of judgement on the Appellant's behalf.

52. We take into account the character witness evidence which was presented to the UKA appeal panel and also by way of witness statements in these proceedings. Although we note the findings of the appeal panel that in relation to the character witnesses who gave evidence before them that "the Appellant had not told them the very serious nature of the allegations…."

However, the appeal panel went on to say that despite this, the witnesses had corroborated that the Appellant's whole life "has been involved in athletics and that he had given a lot to the sport and was an excellent "technical coach". We also note that he has been in a relationship with Ms J T for some time, but she is not an athlete. However, despite all that has happened, we still have concerns regarding the Appellant's understanding of his misconduct and the affect that this has had on the young athletes in his charge. The evidence that he submitted to the Tribunal on the day of the hearing was indicative of this in that he appeared to show no remorse for his actions for example he states:-

"I was not knowingly guilty of misconduct as UKA stated that one issue of a sexual relationship with an athlete under the Appellant's care would be frowned on but would not be classed as misconduct".

The Appellant had previously told the UKA appeal panel that he would attend appropriate courses regarding his role as a coach and indeed the Appellant said in his submission to this Tribunal that he had sought professional help, but no independent evidence of such help was provided. The Appellant also stated that he had had invitations to accept coaching positions in various parts of the world but had so far declined. This conflicts with the evidence of Mr Walker that in 2004 after the appeal panel hearing, UKA had been contacted by the athletics authorities in Holland where the Appellant had presented himself as a licensed coach.

53. In conclusion, we consider that the Appellant's misconduct was of a serious nature, it was not an isolated incident, and he had sought to manipulate children in his care for his own advantage. He has shown no understanding of his action or any real insight into an appropriate coach/athlete relationship and as such we consider that he remains unsuitable to work with children.
54. In looking at the suitability of the Appellant to work with vulnerable adults we take into account that our findings of misconduct have not related to people who might fall within the definition of a vulnerable adult. Nevertheless, we have found that the Appellant has had difficulty in setting boundaries in relation to situations where he is in a position of trust, has abused his position of trust and has also shown a distinct lack of judgement. In addition there was evidence particularly in relation to JM where the Appellant at the very least threatened violence. We do not therefore consider that he would be a suitable person to work with vulnerable adults.

ORDER

Both appeals are dismissed.

Our decisions are unanimous.

Mr Stewart Hunter (Chairman)

Ms S Gilhespie

Ms M Tynan

8^th June 2006.