England and Wales Care Standards Tribunal

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Cite as: [2005] EWCST 628(PC)

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PB v The Secretary of State for Education and Skills [2006] 628(PC) (24 November 2006)

DECISION

Appeal No [2006] 628.PC

BETWEEN:

THE SECRETARY OF STATE FOR EDUCATION AND SKILLS

On 6,7,8,9 and 10 November 2006 sitting in Yeovil County Court

BEFORE

Mr I Robertson Chairman

Ms S Derrick

Dr C Treves-Brown

REPRESENTATION

Mr J Crosfill (Counsel) Instructed by Fisher Jones Greenwood for the Appellant

Mr J Mofatt (Counsel) instructed by the Treasury Solicitor for the Secretary of State

THE APPEAL

The Appellant (PB) appeals against the inclusion of his name on the Protection of Children Act list. The Appellant's name was included on the list pursuant to a referral from the child protection committee of the Plymouth Diocese of the Roman Catholic Church ("the Diocese"). On 3 June 2005 he was provisionally included on both the Protection of Children Act (POCA) and Protection of Vulnerable Adults (POVA) lists. On 7 October 2005 he was confirmed on the POCA list but removed from the POVA list. He lodged his appeal on 7 November 2005 and his case was listed for hearing over 7 days commencing 6 November 2006. The delay in hearing was due to a number of factors, including the Appellant's health, for which no party is to blame. We would like to thank the representatives of both parties from the outset for the professional way in which the case was prepared and presented. We would like to thank counsel in particular, for their hard work and skilful advocacy that helped ensure that this case was completed in just 5 days.

PRELIMINARY ISSUE

One of the strands of this case is an allegation about PB's behaviour at a summer camp in August 2001. The evidential basis for this allegation caused the Tribunal considerable concern and we felt that we needed to deal with this as a preliminary issue. Following the camp a girl expressed concern to her mother about PB and how certain actions on his part had made her "feel uncomfortable". Without telling the girl, her mother reported this to the Diocese some months later. Some 6 months after the event (on 28 February 2002) the mother was interviewed. The typed note of that interview runs to just over one page and is not a contemporaneous note. The Diocese decided to investigate the "complaint" but retained confidentiality, never divulging the name of the girl or mother (who has subsequent declined to have any formal dealings with this hearing ) and at no point themselves speaking to the child, who as far as we are aware, still does not know that a complaint was made on her behalf. Nor, from the nature of the information available to us, could we know, as a fact, that whatever the girl said to her mother was intended to be regarded as a complaint; or, if it was a complaint, whether the discomfort was attributable to sexual anxieties rather than say any reprimand received. Nobody at the camp was interviewed at the time. We have seen from the witness statements that PB and one of his witnesses, the camp leader Mr T, went to great lengths trying to identify the girl in question only to be told that the girl they thought could have made the allegations was not in fact that person.

We were thus faced with an extremely tenuous evidential basis for serious allegations. We therefore invited submissions from counsel as to whether we should exercise our powers from the outset to exclude this evidence under Rule 14 (3) (b) Tribunal Rules;

"………the Tribunal may direct that a document or the evidence of any witness other than the applicant shall be excluded from consideration because –

a) It would be unfair in all the circumstances to consider it…….."

Mr Mofatt for the Secretary of State submitted that the evidence should be heard on two bases; firstly that it was admissible, albeit he accepted it was 2^nd hand hearsay and that, accordingly, the issue for the Tribunal was one of weight. Secondly, he submitted that to exclude the evidence caused administrative difficulties as the Tribunal had considered all the papers and were aware of the complaint and indeed PB's responses and partial admissions were evidentially valuable.

Mr Crosfill for the Appellant submitted that it was unfair to allow the evidence to be heard. It was anonymous, second hand hearsay and repetition orally would not improve its validity. He accepted that anything PB said that went against his interests remained admissible but submitted that the lack of evidential basis for the allegations inevitably tainted all that followed.

We made the following ruling;

"We are conscious that the evidential test to be applied in a case such as this is that laid down by the House of Lords in Re H [1996] 1 FCR 590 and that evidence must be cogent. It is clear that in this case the allegations relating to the summer camp are based upon the second hand hearsay evidence of an unnamed child who is not aware that what she said was reported by her mother and is being used. This evidence cannot be improved orally and its prejudicial effect far outweighs its probative value. Furthermore PB faces an inherent unfairness. He cannot answer the allegations even if such allegations reached anything near a level of cogency. We as a Tribunal are mindful of, and indeed bound by, the Human Rights `Act 1998 and Article 6 of the European Convention. We have power under Rule 14(3)(a) of the Tribunal Regulations to exclude evidence on the basis that in all the circumstances it is unfair to consider it. We have decided to exclude all evidence that goes to the veracity of the allegations. As far as the practical consequences of this decision are concerned we do not consider that in reality they cause any difficulties. We are aware that the allegations were made and are cognisant of the processes that followed from them. Any admissions made by PB against his interests are admissible and can and will be used in cross examination of him. The advantage of taking this approach is that it provides a clear base line for cross examination of, in particular, the expert witnesses".

Having heard all the evidence set out below we are clear that our decision at the outset of the case was correct and has not in any way hindered our full and proper consideration of this matter.

BACKGROUND

PB is 46 years old. When he was aged 18, he suffered from a brain tumour and had an operation to remove this in January 1983. From 1983 to 1987, he studied Religious Studies and Geography at London University and gained a B.Ed (Hons) degree. In 1987, he began employment as a teacher at a Primary School in West London. In 1990, he moved to a different Primary School, also in West London, and in 1999 he moved to a Primary School in the West of England.

In December 1999, PB applied to the Diocese for admission to priestly formation in the Roman Catholic Church. The Diocese considered that it would be appropriate for the Appellant to spend time working on various issues, including relationships and anger and frustration before commencing formation. A psychological evaluation of the Appellant concluded that he should have counselling on his previous illness, relationships with women and his emotionality. As a result, the Appellant began a series of sessions with two counsellors.

While these sessions were ongoing, on 11 November 2000, PB disclosed to Father Paul Cummins of the Diocese that in October 2000 he had had a wet dream involving children. In this conversation he also mentioned being troubled by a Panorama television programme involving a Paedophile catholic priest who had dealings with the Diocese.

In consequence, Father Cummins contacted members of the Diocesan Child Protection team. In a brief report dated 20 February 2001, PB's spiritual counsellor concluded that he did not meet the profile of a paedophile.

In the light of advice received, Father Cummins took the view that PB would not be a danger to children and he was allowed to proceed to formation.

In the summer of 2001, PB attended a catechetical summer camp run by the Diocese, which was attended by boys and girls aged between 10 and 13. As set out above allegations were made by the mother of a child who attended the camp that PB had made her feel uncomfortable. In the autumn of 2001, PB commenced his priestly formation at a seminary in the south of England.

Towards the end of 2001 and at the beginning of 2002, PB's health deteriorated. He was diagnosed as suffering from a recurrence of the brain tumour. As a result he was admitted to Hospital and had an operation on 10 March 2002. The operation to remove the majority of the tumour was successful, but as a consequence of the operation he began to suffer from hydrocephalus, resulting in headaches, vomiting and episodes of psychotic behaviour. A further operation on 29 March 2002 to place a "shunt" (an alternative path for cerebro-spinal fluid circulation) was successful, and PB was discharged on 13 April 2002.

The concerns surrounding the summer camp were not immediately raised with PB because of his state of health. However, in June 2002 upon receipt of medical advice the Diocese felt it was able to speak to PB about the issues raised.

On 16 July 2002, PB was interviewed by Paul Latham (the Diocese's child protection officer) about the allegations in relation to the summer camp. Subsequent to this interview, PB informed Paul Latham that he had, after the summer camp, written to two of the girls who had attended it. As part of this child protection investigation, it was agreed that PB would undergo a risk assessment by David Herron.

On 29 July 2002, PB's mother and brother met with Val Reeve who like Mr Latham, was a member of the Diocesan Child Protection Commission. Ms Reeve recorded that the mother and brother disclosed that PB had in the past told his mother that he finds girls aged 10 to 11 sexually attractive and that he had, occasionally, had an erection when he put his arm around a child in the playground to comfort him or her. None of these matters had previously been disclosed by him. PB was not, at this time, informed that his mother and brother had raised these matters with the Diocese, as they did not want him to be so informed. The notes of the meeting were not shared with Mrs B for some 8 months and were disputed.

PB was interviewed by David Herron on 12 and 13 August 2002 and Mr Herron produced his report on 29 August 2002.He was told what was said by PB's mother but PB was not aware of this. Mr Herron concluded that:

"The combination of tenuous boundary keeping around children, and problems of adult functioning in the emotional and sexual sphere, is concerning. PB would need to attend to his unresolved difficulties of adult functioning, as well as to boundary issues around children, and to re-think some of his more concerning perspectives and thinking patterns, if he is to allay concerns that have arisen as a result of this child's comments about him, and reduce the risk of attracting similar complaints in the future."

In consequence, in September 2002, the Bishop of Plymouth decided that PB should not be permitted to continue with his priestly formation. PB was deeply aggrieved at this decision, particularly because he considered that David Herron's report failed to take sufficient account of his state of health. Accordingly, there was a prolonged period of discussion between him and the Diocese, culminating in an agreement that he would undergo a second risk assessment.

This was conducted by Derek Green of Ray Wyre Associates in the summer of 2004. In his report, Mr Green concluded:

"I am not concerned that PB has a desire to abuse children, my concern is that he will continue to fail to address that reality of his sexual thoughts and feelings and it is therefore highly probable that there will be further examples of 'leakage'. This will take the form of him becoming sexually aroused, in the form of experiencing erections in response to his feelings and behaving in ways that express his sexuality, in the way that he did with the child at the camp. This will inevitably lead to children feeling uncomfortable (even fearful) and becoming distressed enough, in some cases, to make further complaints against him."

As a result of this the referral was made to the Secretary of State by the Diocese.

THE EVIDENCE

The Tribunal had before it nearly 1400 pages of material (including extensive medical notes). We received 18 witness statements and heard oral evidence from the following witnesses;

Father Cummins

Ms V Reeve

Mr P Latham

Mr Jarvis

PB

PB's brother

Mr T

Mr H

Mrs Roxburgh

Dr Toone

Father Cummins confirmed that PB had contacted him having seen a television documentary about a Paedophile priest "Joe Jordan". He described his feeling at seeing that programme as tainting all priests saying "there but for the grace of god go I (or we – as PB insists)" Whatever the semantics Father Cummins was clear that PB was talking generically. He also disclosed his concern that he had had a wet dream involving children. Father Cummins was clear that he was describing an involuntary nocturnal emission, which he was disturbed by and was open and honest about it. He accepted a description of PB as being naive. He confirmed a subsequent discussion with PB after the first meeting regarding the camp where he talked about things that occurred there. They caused him no concern. He further confirmed that a psychological assessment raised no concerns about propensity towards paedophilia (not specifically considered but on the agenda following adverse publicity). He also confirmed that all references obtained over many years for PB were all very positive.

Ms Reeve interviewed PB's mother and brother on 29 July 2002. The interview lasted 2 and a half hours and she took contemporaneous notes. The eventual typed notes ran to only two and a half pages and were not shared with Mrs B until 10 months later, she amended these significantly. The contemporaneous notes have been destroyed. The typed notes contain objective mistakes (ie: that Mr PB's brother has a 14 year old daughter). She said she felt the amendments, which she accepted, did not change the actual concerns raised. It was clear from careful examination of these that this was not the case since the amendments significantly altered facts, and most importantly, showed a linkage of issues not logically justified. She did not establish a time line for the conversations reported by Mrs B. She offered. Mrs B confidentiality, so PB was not aware she had made allegations against him. She told Mr Herron undertaking the risk assessment what Mrs B said but PB was not aware of this. She accepted that the report was discredited as a result. All in all she did not present as a good witness being very defensive and unable to accept the mistakes that she had made in her recording of the vital interview. We felt unable to accept that her notes represented a true reflection of what was said and were concerned that although she accepted all the amendments made by Mrs B she failed to understand or acknowledge how these amendments subtly altered the tone and context of what was said.

Mr Latham interviewed PB on 16 July 2002. He reported PB as saying of the child who had made the "complaint" "There may be an element of truth in what she had said about his behaviour". This comment came in a telephone conversation held after the meeting. He accepted that PB did not know who the girl was so the value of his "admission" is limited. He reported PB admitting going into the girl's dormitory twice. The second was at the end of the camp. He neglected to enquire about the circumstances of the other entry. He made assumptions based upon the reported complaint.. Intuitively and in the light of his experience of abusers he felt PB was at risk of abusing children. When pressed upon this he could offer no rational basis for this beyond this intuition based upon experience

Mr Jarvis came into the case after many decisions were made. He fairly accepted many shortcomings; the fact that the child was never seen, the promise of confidentiality to the child's mother, the failure to interview other helpers at the summer camp until much later and the promise of confidentiality to Mrs B. PB has consistently denied to him that there were problems. PB telephoned him to clarify the issue of erections after a discussion with him at which his mother had been presented "out of the blue". He said "I can recall having an erection when working with children but cannot recall any occasion". He described PB as not telling him any lies or attempting to lead him up the garden path

PB presented as a quietly spoken man self evidently affected by his neurological problems. He explains much of what he said and did in 2001 /2002 as being the consequence of his neurological difficulties. He said he was more garrulous, more emotional and more volatile. His memory was seriously affected and inconsistencies in what he said are affected by that. Aspects of his evidence were unsatisfactory particularly his downplaying of the reasons why he contacted Father Cummins about his wet dream, his reflections upon his behaviour at the camp in entering a girl's dormitory and his ongoing correspondence with two girls from camp. He accepted that he had been into a girl's room with a water pistol probably in the morning but could remember little of it. He said that he was caught up in the mood of the camp and upon reflection it was unprofessional and stupid. We are satisfied that he was not being deliberately evasive but rather is now so defended because of all that he has gone through he feels that if he says anything reflective it will be used against him. He no longer suffers from "compulsive telling syndrome" as he described it. It is, of course, inherently difficult, with people with acknowledged difficulties with their memory, to know which of their statements are true and which are not. Nevertheless with this and the above reservations, we found him, calm, measured, generally honest and frank. His descriptions of sexual matters revealed a deep seated issue for him that reflects both his attitude and life experience but also his deeply held view about the virtues of chastity in his desire to become a catholic priest.

PB's brother presented as very honest and straight forward. It was obviously extremely difficult for him to attend the hearing. He had attended the meeting with Mrs Reeves to support his mother and he says he contributed little to it. He was clear about two things firstly that Mrs Reeve's original note of the meeting was inaccurate and misleading because of the linkages made by her; and secondly that the discussion between PB and his mother where he talked of erections had occurred a short time before their meeting with Mrs Reeves.

Mr T was camp leader. He described the nature of the camp how it attempted to help the underprivileged and how the day was generally spent. He had no concerns about PB and had received no complaints. He described PB going into the girl's room at the end of the camp to clear off the Graffiti at his request. He was not aware that PB had previously been in the girl's room and would have been concerned at this. Having already gathered that the Tribunal knew little of the aims of the camp, how it operated and in what type of building, he gave us photographs taken at the camp which show a relaxed and happy set of children and helpers.

Mr H was called by PB as a character witness. He had known him many years. He attested to his strength of character and also importantly in the contexts of the risk assessments describing him as a loner, described a wide and close friendship group which had lasted many years.

Mrs Roxburgh – She was the expert identified by the parties to undertake a risk assessment. Her report to a certain extent was predicated upon the veracity of the "summer camp complaints". Prior to giving evidence therefore both parties wrote to her detailing the ruling we had made at the beginning of the case on this issue. Her conclusions about PB were that he had a sexual interest in children but that in the light of our ruling he could not be said to have acted in any way upon those interests. She placed considerable emphasis upon the "wet dream", "the erections" and the "sexual attractiveness of 10/11 year old girls" as all self reported by PB. In a very careful cross examination by Mr Crosfill it became clear that she had not herself conducted a forensic analysis of the evidence but had rather taken at face value the evidence as presented in the witness statements. We have some sympathy with this. She was presented with 1400 pages of papers. In retrospect both parties should have analysed the case in greater detail in their letter of instruction and produced a reading list for her. She is a social worker with many years experience of working with child abusers. She has no other qualifications, has conducted no research, published no papers that have been subject to peer review and when pressed by Mr Crosfill could produce no empirical basis for her views, relying solely and exclusively upon her experience in the field. Whilst there is clearly a role for such expertise, we do wonder whether a Tribunal is actually helped by this evidence, and in future we would have thought that such risk assessments should be undertaken by persons approaching the subject with some degree of scientific rigour, such as a forensic psychologist or psychiatrist.

Dr Toone – He is Consultant Neuro psychiatrist from Kings College Hospital. He was jointly instructed by both parties. His report is a model of objective professionalism and we found his opinions to be measured and extremely helpful. He considered that the neurological problems that PB suffered from would have had a serious impact upon his behaviour and upon the weight that could be attached to what he said during the window of 3 to 4 months either side of his operation in March 2002. Shortly after the operation he was frankly psychotic. He considered that it was significant that there were a cluster of incidents and conversations around this window. He felt that they either were untrue or reflections of thoughts that would not in other circumstances ever be voiced. He also pointed out that the incidents that gave rise to concern had all occurred during a period of some two years preceding the second operation; and that this period followed a much longer period, of some 14 years, during which he had worked as a Primary School teacher without, apparently, any question being raised as to his suitability to do so. That suggested to Dr Toone that there was a link between the incidents and the gradual recurrence of the brain tumour.

He agreed with the Tribunal that the interpretation of the subject matter of dreams, sexual or otherwise, was too uncertain a field for the Tribunal to rely on and that, therefore, it should look at the response to the dream to consider the implications of this. He did not think that PB's detailed memory of the dream first related to him at interview had only just been remembered by him but rather he had consciously or unconsciously suppressed the memory as it was so disturbing to him. He confirmed that he felt PB to be a very genuine witness to his own feelings and behaviour. He said that he felt if PB were attracted to children there would be more than two reported incidents (both being self reported occasions of erections). All incidents came in a cluster so it is likely that they reflected some brain mechanism related to the tumour. He said if the tumour were no longer there it was unlikely that there would be a repeat of those behaviours. The view of PB's neurosurgeon was that it was unlikely to recur but in any event he was now very closely monitored.

THE LAW

By S1(1) Protection of Children Act 1999 the Secretary of State has a duty to keep a list of individuals who are considered unsuitable to work with children. By Section 2 any organisation may refer an individual if certain conditions are satisfied. It was under this Section that PB was referred as set out above.

S4 of the Act gives a person so referred who is confirmed on the list the right to appeal to this Tribunal. By S 4(3), the Tribunal may only dismiss the Appellant's appeal if:

(a) it is satisfied that he 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) it is satisfied that he is unsuitable to work with children.

There are in our view three tests to apply. The first two tests are conjunctive and the third only comes into play if the first two are both satisfied. The Tribunal has firstly to show an act or acts of misconduct AND secondly that that act (or those acts) have harmed a child or placed a child at risk of harm. It is only if those two tests are satisfied evidentially, applying the civil test as set out in Re H (above), that the third test is reached. We accept that the test of suitability is not an evidential test per se, but an exercise of discretion by the Tribunal applying its experience to the evidential matters it has considered previously. We do not accept the submissions of Mr Moffat that the tests are not sequential. In our view the statute has to be read as applying a sequential test.

Harm is defined by S12(1) of the Act as having the definition as set out by S31(9) of the Children Act 1989, which provides:

"'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;

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

The Tribunal must consider unsuitability as at the date of the hearing before it. The Secretary of State bears the burden of persuading the Tribunal that both limbs of PoCA, s 4(3) are met.

THE SECRETARY OF STATE'S CASE

In his careful opening submission Mr Moffat identified six incidents that he said showed misconduct. As a result of our initial ruling and having considered the evidence called, he modified his position to effectively rely upon three matters which amounted to misconduct. He put it in this way in his closing submissions.

38. "In order for the Secretary of State to succeed on the first limb of the s 4(3) test, he need only prove that the Appellant did one relevant act of misconduct. There is no requirement on the Secretary of State to prove a series of acts of misconduct or a consistent pattern of misconduct on the part of the Appellant".

Actions on summer camp in 2001

39. It is plain that the Appellant's unwarranted intrusion into the girls' bedroom during the summer camp in 2001 was an act of misconduct. It was in breach of a clear rule (or, at its lowest, an understanding), that male helpers should not go up to the girl's floor, much less enter their bedrooms. The Appellant accepted that he breached this rule or understanding, that to do so amounted to a breach of the trust that had been placed him and that he acted unprofessionally. In short, the Appellant accepted that it was wrong.

40. For the avoidance of doubt, this was not simply a "youthful indiscretion" (cf. Mairs [2004] 269.PC, para 109). The Appellant had a long history of working with children in a professional capacity and claims to have been aware of the proprieties that should be observed in a residential setting. The rule or understanding that was in place on the summer camp was there for very good reasons: to protect both the children and the staff. The Appellant was well aware of this. The Appellant not only broke the rule or understanding, he did so at a time when the need for it to be respected was most acute: at a time when the girls were likely to be at their most vulnerable and (potentially literally) exposed. In these circumstances, even if the Tribunal accepts that the Appellant's motives in entering the girls' bedroom were no more than to perpetrate a so-called "jape", that cannot convert a potentially serious act of misconduct into something which is no more than de minimis so as to fall outside the broad meaning that is to be accorded to misconduct in the context of s 4(3)(a).

41. There was a clear risk of harm to a child arising out of the Appellant's misconduct in this respect. It was accepted by the Appellant that the some of the girls would have been at a stage of their lives where their bodies are developing and where they may have been acutely embarrassed, upset and distressed by the invasion of their personal space. Further, it was accepted that there was a risk that the Appellant's actions might have undermined their trust in an authority figure. In such circumstances, the broad definition of harm in s 31(7) of the Children Act 1989 is met. At the very least, there was a risk of the impairment of a girl's emotional or social development.

Failure to disclose sexual thoughts and responses

42. The Appellant has had sexual thoughts and responses which led him to have concerns about his own sexual proclivities in that respect. In particular, the Appellant was concerned about a sexual attraction to girls aged 10 and 11 and having erections in the proximity of children. Having had such concerns, it was incumbent upon the Appellant to disclose them to the appropriate authorities in order to enable them to determine whether or not any steps needed to be taken to address them (see, by way of analogy, AW [2004] 0411.PC, para 10 of the minority decision).

43. At no time prior to the Appellant becoming aware of the fact that his mother had reported her concerns to the Diocese did the Appellant ever disclose these matters. He never disclosed them to the Diocese and, more pertinently, he never disclosed them during the course of eight hours of interview with David Herron, an interview which specifically touched upon the Appellant's sexual history. This was despite the fact that he fully accepted the importance of being frank with the Diocese and with Mr Herron. This omission amounts to misconduct.

44. The risk of harm to children arose out of the fact that the Appellant's non-disclosure deprived David Herron of the opportunity fully to explore this issue with the Appellant. As a result, there was a risk that Mr Herron would reach his conclusions based on incomplete evidence, leading to a flawed assessment of the risk posed by the Appellant. As the whole purpose of the assessment was to address the risk that the Appellant might pose to children, the consequences of a flawed assessment could easily have been a risk that the Appellant was allowed to interact with children in a way that he should not have been.

45. In this context, the Appellant cannot rely upon the fact that David Herron had learned of the relevant matters by a different route to counter the argument that the risk identified above arose. Because of the confidentiality that Mrs B imbued her disclosures with, it was not possible to raise them directly with the Appellant. Paul Latham was clear that David Herron was asked to seek to draw out the relevant matters in his interview with the Appellant so that they could be considered in the course of the risk assessment. The Appellant's failure to give full and frank disclosure prevented this from occurring.

46. A further risk of harm may have arisen, depending upon the period during which the Appellant experienced his sexual thoughts and responses. As noted above, Mrs B's concerns about the Appellant arose over a period of years and, at least in relation to the erections, the Appellant experienced these while he was still working as a primary school teacher. A failure to disclose to the appropriate authorities at this time resulted in his employers being prevented from taking a view as to whether or not steps needed to be taken in relation to the Appellant working with children.

Failure to give full and frank disclosure during course of child protection process

47. A similar argument to that set out above applies to the Appellant's failure to give full and frank disclosure throughout the course of the child protection process that he participated in. In this context, the Secretary of State relies upon the facts and matters referred to in paragraphs above.

He then set out what he considered to be the issues that we needed to consider in applying the unsuitability test. For reasons that will become apparent we do not propose to canvass these here.

FINDINGS OF FACT

Before considering the appropriateness or otherwise of the decision to include PB on the POCA list it is necessary to examine each of the assertions made against him. It is through the prism of those findings that we have to consider the statutory tests above and apply them to the case as put by the Secretary of State.

WET DREAM – There is no doubt PB had a wet dream. He reported it to Father Cummins. What is to be made of this? Father Cummins was not greatly perturbed. PB described one wet dream in which children were involved. It seems generally accepted that this was unconscious and not a conscious masturbatory fantasy. The Secretary of State has made much of the fact that the core detail "a girl he taught grabbing his penis" was only disclosed when he talked to Dr Toone. PB says he only remembered it then. Dr Toone thought this unlikely and that he had repressed this particularly frightening aspect of the dream. We feel that the reality was that he had simply not chosen to recall this until then. Given his general attitude to sex and his general confusion, we do not find this surprising or sinister. Short of indulging in Freudian psycho analytical dream interpretation, in our view nothing should be made of this dream other than a reflection of this man's somewhat troubled sense of self and a reflection of his somewhat naïve frankness. We do feel that the experts in the case did place rather too much weight upon the content of the dream, as being an indicator of sexual preference. By doing so they may have unwittingly skewed their subsequent assessment. We are concerned however, how in documents we have seen, and indeed in the rather loose oral evidence of at least one witness, this solitary involuntary act has become a multiplicity of more sinister acts.

ERECTIONS – PB admits to having had erections twice in the company of children. He denies any sexual linkage to these physical manifestations. His mother apparently told Val Reeve "He also told his mother that, when he was a teacher, he sometimes put his hands on a girls shoulder in the playground and got an erection". When Mrs B eventually saw the minutes she changed this to "He also told his mother that, when he was a teacher, he sometimes [very occasionally] put his hands on a girls shoulder [ arm around a CHILD to comfort him or her] in the playground and got an erection".(amendments in italics). In her witness statement Mrs B says "There is also mention that Mrs B talked about how on a walk one day in the woods PB had told me when in the playground on occasions he had put his hand on a girls shoulder and had an erection(s). Once again this is an outrageous fabrication. PB never told me that he had an erection when he put a hand on a girls shoulder. Not at any time did PB tell me that he found the girl at the camp sexually attractive".

The difficulty we have is that the meeting on 29 July 2002 was woefully recorded by Ms Reeve. Her typed note is self evidently an impressionistic interpretation of what was said, is patently inaccurate and not fit for purpose. Why she did not check these notes until 7 May 2003 and why she destroyed her contemporaneous notes is a mystery. It is poor practice and fatally infects this case. We cannot rely upon her evidence of what was said by Mrs B. We do not have the advantage of hearing from Mrs B who was not called to give evidence. Given her poor health and the nature of her relationship, this is not surprising, but is regrettable from our perspective. Ms Reeves did not ascertain when the conversations took place and made no effort to clarify whether the conversations took place at a time when PB may have been adversely affected by his brain tumour. Fortunately we do have the evidence of PB's brother who does date these to July 2002. We accept this timeline as otherwise there is no link into the conversation. We know that the conversation was highly emotionally charged. It clearly took place during the window Dr Toone said made anything said by PB very unreliable being within the 3-4 months post operative.

Given the unreliable nature of Mrs Reeve's evidence and the unreliability of anything said by PB at this time, where does this leave us? We have PB's own acceptance of twice in his life having erections in the presence of children. He telephoned Mr Jarvis after his meeting with him on 20 December 2002 and said "I can recall having an erection when working with a child, but cannot recall any occasion." He was frank and candid about this and categorical that they were physiological responses unaccompanied by any sexual feelings. Whilst we may have some concerns about this, and whether they are truly simply physiological, as they were self reported and do fit with a clear general fear of all physical manifestations of sexuality, we do not accept that these are a clear indication of paedophilic tendencies.

SEXUAL FEELINGS TOWARDS 10/11 YEAR OLD GIRLS – This was reported by Mrs B to Mrs Reeve. We have already outlined details of this conversation above. For the reasons already given we cannot accept that anything said by PB in this conversation was either accurate or true. The Secretary of State tries to rely upon PB's subsequent amendment of the note of the meeting and apparent attempts to justify the remarks, as showing that he did say these things and mean them. We do not accept this. At the time he made the amendments he was deeply defended and confused; they are merely indications of an understandably distrustful mindset and not capable of greater interpretation.

INAPPROPRIATE BEHAVIOUR AT THE SUMMER CAMP– We have already ruled upon the inadequacy of the investigations into this and the concomitant impact upon the lack of evidential value to the investigations. During the investigation PB made admissions that he had been into the girl's dormitory twice. The second time was to deal with Graffiti at the end of the camp. This was, so far as we could establish, during the afternoon of the last day, when all the campers were fully dressed and staff accompanied. It is accepted that there is nothing sinister or inappropriate about this. The first occasion is more unclear. He appears to have gone into the dormitory with a water pistol. We do not know why or when. We do not know this because the Diocese failed to interview anyone who had been at the camp and Mr Latham when interviewing PB did not ask him. PB says he can't remember because of his tumour. This may be real or expedient; we cannot say. The Secretary of State no longer puts a sinister interpretation onto his actions. PB does however accept that it was unprofessional and stupid. He knew it was inappropriate and placed both himself and the girls at risk of embarrassment at the least.

THE EFFECT OF THE TUMOUR

We have already set out in detail Dr Toone's evidence. We do not consider that the Diocese or the Secretary of State took sufficient notice of the potential impact the tumour had upon PB. They seem to have taken the view that the only issue this presented was upon his physical fitness to play a part in the investigative process. It seems clear to us from Dr Toone's evidence that the tumour itself had a clear and manifest impact upon PB's behaviour. If the Diocese had taken this into account, rather than simply accepting that what he was saying was true and therefore a manifestation of paedophilic tendencies, he may have received a more sympathetic approach.

THE RISK ASSESSMENT

We have already expressed our concerns about the risk assessment. We would add that we were very concerned that at no stage did the Diocese seek an assessment from a Roman Catholic professional, or at least someone who understood and was sympathetic to the struggles that PB's faith brought, about the issues of chastity and sex generally. We considered that Mrs Roxburgh's evidence that she understood the issues as she had worked with paedophilic priests, rather missed the point. Religious cultural matters are every bit as important in this context as those related to more obvious issues of race and gender. It appears that all concerned failed to recognise this.

FAILURE TO BE FRANK

We accept the evidence of Mr Jarvis and Dr Toone that PB has been frank throughout. Father Cummins described him as naive and this is probably a good description. This was the first time that the Diocesan authorities had to put their procedures into practice and no doubt because of their inexperience the investigation that was conducted was chaotic, unfocused, lacking forensic rigour and generally unfair. The fact that PB continued to engage in it is testament to his desire to be frank and open. The fact that at times he has been defensive is not surprising in this context. The fact that on occasions he has shown some inconsistency again is unsurprising given the effect of the tumour, his terrible memory caused by the tumour and his own struggles with his personal demons. We cannot accept that he can be criticised for this. We only heard this case because he sought help in the first place.

FINDINGS

60. Having made the findings of fact that we have, it follows that the only issue where misconduct/harm arise relate to the incident in the summer camp where PB entered the girl's room with a water pistol. We accept that the Act does not apply any limitation to the word misconduct and that given the nature and purpose of the Act a strict interpretation should be applied. Accordingly we find that PB was guilty of misconduct on this occasion. This misconduct falls at the least serious end of the scale.

61. The question that we have to ask ourselves is whether this misconduct caused harm to a child or placed a child at risk of harm. There is no evidence that any child actually suffered harm. We have to therefore ask ourselves whether the action put any child at risk of harm. The Secretary of State having conceded that there was no evidence of a sinister motivation for going into the room, has to show that nonetheless, his entry into the room risked harm to a child. We cannot be sure what time of day the entry occurred but, assuming for the sake of this decision, that it was early morning at a time when the girls were getting up and dressed, there was clearly a danger that PB would have entered when a child was in a state of undress. We accept his evidence and the concession of the Secretary of State that if this had been the case he would have immediately left the room. The effect of this could have caused a girl sensitive about her body embarrassment. It could have given her a sense of humiliation; it may have caused her real distress. It could have changed her relationship with PB and caused her to treat him with caution. Does any of this really amount to an impairment of emotional development? It appears to us that there comes a point where one has to accept that every person suffers incidents in their life that cause all these responses; indeed it is part of the protections one builds up in life to suffer knocks. We consider that for a test of harm to have meaning the impairment (or damage as it is defined by the shorter Oxford English Dictionary) must be of a greater level than distress, embarrassment or minor humiliation and by minor we mean in the context of life generally not as a diminution of the experience of an individual. Accordingly we do not find that the misconduct placed a child at risk of harm.

DECISION

62. Accordingly we allow the Appeal and direct that the Appellant's name be removed from the list.

This is the unanimous decision of the Tribunal

Mr I Robertson Chairman

Ms S Derrick

Dr C Treves-Brown

24 November 2006