England and Wales Care Standards Tribunal

Dunn v Secretary of State [2006] EWCST 679(PT) (27 October 2006)

Nicholas Dunn -v- Secretary of State [2006] 679.PT -Before- His Honour Judge David Pearl (President) Mrs Jenny Lowcock Mr Paul Thompson DECISION
1. By a Decision letter dated 5^th January 2006, the Respondent barred the Appellant from performing work to which section 142 of the Education Act 2002 applies, following the recommendation of Ms A Kleefstra (a casework officer in the Children's Safeguarding Operations Unit) to the Senior Casework Manager (Mrs Cartland). He was barred on the grounds that he is unsuitable to work with children. The effect of the decision to bar a person on the grounds that he is unsuitable to work with children is that, in addition to being barred from work to which s 142 applies, he is also disqualified from working with children in accordance with s 35(4)(b) of the Criminal Justice and Court Service Act 2000. In this context, work could include paid or unpaid activity in the public, private, voluntary and volunteering sectors. The bar therefore is a more extensive bar than one where the Direction is made, for example, on the grounds relating to the person's misconduct or his health.
2. The Appellant appealed on Form A dated 22^nd March 2006, by cover of a letter from Mr D J McQueen, Solicitor of CMHT Solicitors dated 23^rd March 2003 and received by the Tribunal on 27^th March 2006. The Response to this Appeal was submitted to the Tribunal by courier on 28^th April 2006. A copy of the Response was sent to CMHT Solicitors on 2^nd May 2006, and in accordance with the Regulations (Schedule 4 paragraph 4), further information was sought from both parties within twenty working days. The Respondent submitted its Further Information Form on 1^st June 2006, and this Form was sent by the Secretariat on 2^nd June 2006 to CMHT Solicitors. The Appellant did not comply with Schedule 4 paragraph 4 to submit a Further Information Form. Accordingly, by Order dated 5^th June 2006, the President issued a direction that there be a Preliminary Hearing in accordance with Regulation 6 to take place by telephone conference at a date and time that is convenient for both parties and the Tribunal. The Agenda for the telephone conference was set out in the Order, namely to consider the proposed directions as set out at page 5 of the Respondent's Further Information Form.
3. The Order of 5^th June 2006 contained an "unless provision" in accordance with Regulation 10(3), stating that if the Appellant does not respond to the request to participate in the telephone conference and does not return the Further Information Form prior to the date of the telephone conference, then consideration shall be given to making an Order under Regulation 10(3) determining the case in favour of the Respondent.
4. CMHT replied on 7^th June 2006 stating that arrangements had been made to see the Appellant "on Monday next and hope to be able to deal with matters accordingly". Treasury Solicitors, on behalf of the Respondent, also replied to the Order by letter dated 8^th June 2006. The letter states: "In essence, the effect of the Directions and Unless Order is to grant the Appellant an extension of time for submission of his Further Information Form until the date of the Directions hearing…In these circumstances, the Respondent respectfully requests the directions hearing to take place at the earliest opportunity."
5. In fact, the Further Information Form dated 12^th June 2006 was sent to the Tribunal under cover of a letter from CMHT Solicitors dated 14^th June 2006 and received by the Tribunal on 16^th June 2006. A letter from CMHT to Treasury Solicitors was also enclosed. This letter states: "As you will see we have no difficulty over the Directions that you seek although we believe that the timescale envisaged will not now be possible because of the delay."
6. CMHT and Treasury Solicitors exchanged letters and agreed a Directions Timetable that was placed before the President for approval. The Directions from the President, as agreed to by the parties, are dated 19^th June 2006. The date of hearing 26^th and 27^th October 2006 was agreed with the parties' legal representatives and confirmed by the Secretariat on 17^th August 2006.
7. The Witness Statements were to be filed according to the Directions by 23^rd August 2006. The Respondent complied with this deadline. By letter dated 29^th August 2006, Treasury Solicitors informed the Secretary to the Tribunal that, as of that date, no witness statement had been filed by the Appellant, and seeking amendments to the Directions in consequence. The matter was placed before Mr John Reddish, nominated Chairman, and Mr Reddish by Order dated 31^st August 2006 amended the Direction of 19^th June 2006 to enable the Appellant to submit witness statements on his behalf by 1^st September 2006 by 4.00pm and amended the other Directions accordingly.
8. By letter dated 31^st August 2006, the Appellant's Solicitors wrote to the Tribunal stating that it was impossible for them to comply with the Order and seeking more time. The letter contained no reason for the failure to comply and gave no indication of the length of time required for full compliance with the Directions. On 1^st September 2006, the Respondent's solicitors sent a faxed letter to the Tribunal. The Respondent's Solicitors sought an "Unless Order" requiring the Appellant to file his witness statements by 4.00pm on 4^th September 2006.
9. As of 4^th September 2006, at that time, the witness statements had not been received, and accordingly, Mr Simon Oliver, the nominated Chairman made an "Unless Order" that unless the Appellant by 4.00pm on 7^th September 2006 serves witness statements, the case may be determined in favour of the Respondent. The Appellant's witness statement was served subsequent to 7^th September 2006, and is dated 8^th September 2006. The statement at paragraph 3 refers specifically to a paragraph in the witness statement of Ms Kleefstra that had been served by the Respondent, and, therefore, it is clear that Mr Dunn had had sight of and was able to refer to the witness statement filed by the Respondent.
10. By email dated 24^th October 2006, the Appellant wrote to the Secretary to the Tribunal as follows: "the above case is due for a two day hearing on 26^th October 2006. I am formally informing you that this will not be able to go ahead as there is an issue concerning my legal representation. The solicitors concerned have been informed that 'legal aid' is not available and from my understanding they have not been able to do the preparation required to complete the work therefore will have to fight this case myself but we will have to start from the beginning. I will be in attendance on Thursday morning as I will explain the situation to the tribunal and formally state that an adjournment will be required…"
11. The Secretary to the Tribunal replied on instructions from the President as follows: "You will have to apply for an adjournment, however it is most unlikely that an adjournment will be granted. Adjournments are only granted if there would be an injustice otherwise, and refusing an adjournment would prevent the just disposal of the case."
12. Mr Dunn applied for an adjournment at the commencement of the hearing. The application was opposed by Mr C Sheldon of Counsel on behalf of the Respondent. The Appellant sought an adjournment for five reasons: (i) the defendant (he of course means the Appellant) in this case has no legal representation; (ii) no bundle from HM Treasury Solicitors; (iii) no opportunity for evidence to be tested via independent third parties; (iv) time must be given to prepare the arguments (especially a lay defence); (v) Treasury Solicitors have refused to hand over requested paperwork which would clearly refute evidence presented.
13. The Tribunal members retired briefly to consider the application. Regulation 7(6) of the Regulations states that the hearing shall not be adjourned unless satisfied that refusing the adjournment would prevent the just disposal of the case. The Tribunal was not so satisfied. The case has been listed since 17^th August 2006, and Solicitors have been advising the Appellant throughout. It was clear from the Appellant's witness statement that he had seen the Respondent's witness statement, and all documents had been sent to his legal representative.
14. The Tribunal has considerable experience in hearing appeals where the Appellant represents himself or herself and it was not persuaded that Mr Dunn would be at a disadvantage in representing himself. It refused the application for an adjournment, but retired at 11.00am for an hour to enable the Appellant to review the papers. He was told that the Tribunal would give him all the assistance he required by ensuring that the Respondent's witness' evidence was tested by questioning from the Tribunal members themselves. The Tribunal had no doubt whatsoever that it has been compliant with the provisions of Article 6 of the European Convention. The Tribunal has complied with the approach taken in Dombo Beheer BV v Netherlands (1993) 18 EHRR 213 where the European Court of Human Rights stated: "The Court agrees…that equality of arms implies that each party must be afforded a reasonable opportunity to present his case – including his evidence – under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent."
15. The Appellant said that he would be going to the High Court to seek an injunction.
16. At 12.15pm, the Appellant was not present in the building. Mr Sheldon urged the Tribunal to proceed to hear the evidence, and the Tribunal agreed with this approach.
17. Ms A Keefstra, the Casework Officer in the Children's Safeguarding Operations Unit spoke to her witness statement. The basis for the barring under s 142(4)(b) of the Education Act 2002 is that Mr Dunn

(1) Formed an inappropriate relationship with a 14 year old female pupil (LL) at St M CofE school, and carried out acts inconsistent with a proper teacher/pupil relationship (otherwise to be described as failing to respect the proper boundaries between teacher/pupil) by:

(i) taking LL on unaccompanied trips, including an overnight trip to Barcelona (there being no parental consent for an overnight trip)

(ii) giving LL unaccompanied lifts in a car

(iii) allowing LL to visit his home on a number of occasions, and remaining alone with LL at home and at school;

(iv) purposefully and dishonestly keeping LL from attending school and other lessons

(2) Formed an inappropriate relationship with a 15 year old female pupil (SK) at St M CofE (which continued after SK left the school but whilst she remained under the age of 16) and carried out acts inconsistent with a proper teacher/pupil relationship, by:

(i) writing a number of letters and cards to SK of a personal and intimate nature, stating that he loved SK and wanted to marry her. The letters also suggest a physical relationship

(ii) being in telephone communication with SK

(iii) seeing SK outside school hours

(iv) asking SK to marry him, whilst she was still a pupil at the school (or was under the age of 16)

(v) remaining in contact with SK by way of letters and telephone calls whilst she was in Pakistan, and continuing to contact SK despite an injunction from the High Court that prohibited any such contact.

And acted deceitfully in relation to the nature of his relationship with SK.

(3) Failed to include on his CV for the Supply Agency, employment at St M Cof E or the reasons for dismissal from the school

(4) Failed to include in a further CV for another Supply Agency, his teaching position at St M CofE.

18. We set out the appropriate standard of proof. We have had the advantage of reading the recent analysis by Richards LJ in R (on the application of N) v Mental Health Review Tribunal (Northern Region) [2006] 4 All ER 194. He considered all the recent cases that have discussed exactly what was meant by "the standard of proof is the ordinary civil standard, ie balance of probabilities" in contexts outside the civil courts. He looked in particular at the House of Lords decisions in Re H(minors) (sexual abuse: standards of proof) [1996] AC 563; Secretary of State for the Home Dept v Rehman [2003] 1 AC 153; and R (on the application of MCann) v Crown Court at Manchester [2003] 1 AC 787. He said at [60]:

"Whatever differences in expression there have been over time, it was laid down clearly by the House of Lords in Re H and Secretary of State for the Home Dept v Rehman that in English law the civil standard is one single standard, namely proof on the balance of probabilities (or preponderance of probability). The other standard is the criminal standard of proof beyond reasonable doubt. There is no intermediate standard, nor is the civil standard to be broken down into sub-categories designed to produce one or more intermediate standards."

He then went on to say at [62]:

"Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities."

And at [71]:

"…the seriousness of the consequences if a matter is proved is nonetheless a factor to be taken into account when deciding in practice whether the evidence is sufficiently strong to prove that matter on the balance of probabilities."

It is this test that we apply.

19. The burden of proof rests on the person, in this case the Secretary of State, who makes the allegation.
20. Mr Sheldon submitted on behalf of the Secretary of State that the evidence is overwhelming in this case. He submitted that the Appellant had engaged in inappropriate relationships with two pupils under the age of 16 when he had been told that he had to respect boundaries between the teacher and the pupil. He had ignored this advice, and he seemed to think that it was appropriate to conduct close relationships with underage girls who were his pupils. Mr Sheldon submitted that Mr Dunn had illustrated by his action that either he did not understand or he simply refused to acknowledge the role of a teacher and the position of trust that the teacher held. Mr Sheldon said that it could not be suggested for certain that there was a physical relationship with either of the two girls, but that in any event the Secretary of State did not rely on having to prove that such a relationship existed. The Secretary of State relied on inappropriate behaviour in relation to his conduct with both girls, and that it was clear that it was likely to happen again.
21. Indeed, Mr Sheldon said that the evidence illustrated that even whilst he was undergoing the disciplinary procedures at St M CofE in relation to the allegations relating to LL, he was in contact with SK and that he communicated with her immediately after he had been dismissed.
22. This submission was illustrated by reference to the notes of the Staff Disciplinary Committee meeting held on 24^th February 2004 in connection with the allegations relating to LL. He was represented by a Solicitor on this occasion. The note of his Solicitor's submissions to this meeting states: "Boils down to blurring of relationship between teacher/family friend. Didn't see writing on the wall. Has been flagged up to him. He felt platonic doesn't seem other party felt the same. Once aware made decision this was end of involvement…Once bitten twice shy. Recommend final written warning …should he transgress again he will have no further chance."
23. At 8.17pm that evening, the Chairman announced that the Committee had come to the conclusion that his actions show a level of professional discretion, inappropriate professional judgement and an utter disregard for advice from the Head Teacher and others. It decided that he should be dismissed, and he was told of his right to appeal to the Appeals Committee.
24. That same evening at 22.39 hours, the Appellant texted SK as follows: "It really P*** is me off, you tell them truth and you get S***, you lie and you get away with it. I should have F****** kept quiet and said nothing. They say I am a loose cannon who does what he wants and has no regard for the school. F*** them now…I'm sorry. do you hate me now? I'm really looking forward to your phone call tomorrow. Kicked in between the legs but at the same time is this a new start. I love you so much I really do. I live only for you. I love you.xxxxxxxxxxxxxxxxxxxxxxx" [the ***are spelt out in full].
25. We agree with Mr Sheldon's submission that this text to SK, just three hours after being informed that he had been dismissed, illustrates that he has not learnt his lesson. He simply continues to behave in a manner that makes him totally unsuitable to work with children.
26. The Tribunal carefully considered all of the documents contained in the Hearing Bundle. We are satisfied that these documents prove to the appropriate standard, that in relation to LL, he paid for an overnight visit with her to Barcelona, and that neither parent had given consent for such a visit. The invoices for the flights and the hotel were made to him on his credit card and to his address. So far as SK is concerned, the letters and texts are totally inappropriate, and a vulnerable young girl is sent letters, texts and cards of a very intimate nature. We do not accept that stating that he wanted to marry her was in any way "a matter of support for her" as suggested in his witness statement. Mr Dunn concedes that marriage was spoken of. That by itself amounts to evidence of unsuitability. Given that this concession is made as recently as September of this year, there is very clear evidence that Mr Dunn's understanding of what it means to be employed as a teacher is nil. The CV's sent to the two supply agencies are economical with the truth so far as St M CofE is concerned, and we totally reject the suggestion in Mr Dunn's witness statement that "if there was any neglect in dealing with this part of the matter, then I would submit that this is down to the agency and not myself."
27. We are satisfied from the evidence of the forensic expert in the field of handwriting and document examination that Mr Dunn wrote the letters and cards and envelopes that appear in the documents, and we have no doubts whatsoever but that he sent the text messages that appear in the documents.
28. We conclude that the decision of the Secretary of State to bar him on the grounds of unsuitability was a proportionate one, based on the evidence before her. We have carefully reviewed all of this evidence and have arrived at the same conclusion.

The Unanimous Decision of the Tribunal is that the Appeal be DISMISSED

His Honour Judge David Pearl

(President)

Mrs J Lowcock

Mr P Thompson

27^th October 2006.