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Cite as: [2006] EWCST 854(PT)

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Males v The Secretary Of State For Education And Skills [2006] EWCST 854(PT) (16 February 2007)

D E C I S I O N ON STRIKE OUT

KENNETH WILLIAM MALES

-v –

SECRETARY OF STATE FOR EDUCATION AND SKILLS

[2006] 854 PT

Kenneth William Males (the Appellant) appeals under Section 144 (1)(a) of the Education Act 2002 (the Act) and Regulation 12 of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 (the Education Regulations) against the decision of the Secretary of State for Education and Skills (the Respondent) to include his name on the list kept under section 1 of the Act.

The Respondent applies to strike out the appeal under Regulation 4A (1) (b) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 as amended (the Tribunal Regulations) on the ground that it is misconceived.

Preliminary

The strike out application was considered by me as nominated chairman under Regulation 4A above with neither party being present, both having agreed to the matter being determined on the written representations.

Facts

On 7 November 1991, the Appellant was convicted of 'an offence of intercourse with a girl under 16'. The girl concerned was his 13 year old step-daughter and related to a single event in August 1990. He was sentenced to 12 months' imprisonment, suspended for 18 months.

The Respondent wrote to the Appellant on 19 September 2006 informing him that, following investigations, a direction had been made by the Respondent barring him from employment to which section 142 of the Education Act applied on the grounds of his unsuitability to work with children.

The Appellant lodged an appeal with the Tribunal on 18 December 2006, initially against the inclusion of his name on the POCA list. He was informed by the Secretariat on 24 January 2007 that the appeal should properly be brought in respect of the direction of the Respondent prohibiting him from working with children in schools or Further Education establishments and the application form was duly corrected.

The Appellant stated in his appeal that his conviction in 1991 was for a single act in 1990 that he deeply regretted. He had not served the custodial sentence and did not believe that he was a risk to children. He had not been in trouble with the police or the social services since that date and had been working as a coach driver for over 20 years. He feared that his future employment was at risk if his name continued to be included on List 99.

The Treasury Solicitor, representing the Respondent, wrote to the Tribunal on 19 January 2007, asking that the appeal be struck out under Regulation 4A (1)(b) on the ground that it was misconceived. He argued that there was no prospect of the appeal being successful given the nature and seriousness of the conviction at issue, stating that 'there can be do doubt that the Appellant is unsuitable to work with children'. The Treasury Solicitor pointed out that Regulation 12(3) of the Education Regulations provides that 'where a person has been convicted of any offence involving misconduct, no finding of fact on which the conviction must be taken to have been based shall be challenged on an appeal under these Regulations'.

Reference was made in the Treasury Solicitor's letter applying for a strike out to the case of Cowell v Secretary of State [2005] 521PC/ 522PVA. The Appellant in that instance had been convicted of three offences of gross indecency with a child and sentenced to 30 months' imprisonment. His appeal was struck out as being misconceived; the President of the Care Standards Tribunal was quoted as saying that 'the criminal convictions prove that the Appellant was guilty of misconduct which harmed a child or placed a child at risk of harm, and that he is unsuitable to work with children.'

Reference was also made to the cases of Woodbine Villa, Rushden, Northampton (Mr Shaid Akhter and Mr Tanveer Salam) v NCSC [2002] 116 NC , Knoote v CSCI [2003] 137 EA-JP and Graham Clive Hardy v Secretary of State [2006] 815 PC/816 PV.

The Treasury Solicitor further submitted that the Appellant's statement in his grounds of appeal that 'the offence did not feature any threats or violence and was consensual in nature' shows little appreciation or insight into the seriousness of the offence, given that he was in a position of trust. He claims that this lack of insight is, in addition to the existence and nature of the specific conviction, further evidence of the Appellant's unsuitability to work with children.

The Treasury Solicitor added that the Appellant's unsuitability should be viewed in the context of the importance attached to public confidence by the Tribunal. The Appellant would be in a position of trust if he were to be driving children to school on a daily basis.

Mr C. Cheng of Vickers Chisman & Wishlade, Solicitors, representing the Appellant, wrote to the Tribunal on 29 January 2007 in response to the application to strike out. He maintained that the Appellant had not sought to hide his previous conviction when briefly working for Metro Coaches. He was not seeking to challenge the facts of his conviction in 1991. He was challenging the Respondent's action in making the decision to include his name on List 99 given the age of the conviction and the lack of any similar convictions. The Appellant had not been required to undertake any offender related work and no risk assessment had been made by the Respondent before reaching his decision.

Conclusions with reasons

A. I have carefully read the letters and papers submitted in this application to strike out the appeal.

B. Without denying the seriousness of the offence in 1990 I would make the following observations:

(i) Unlawful sexual intercourse with a girl under 16 is an absolute criminal offence. It does not require the proof of mens rea; the mere fact is enough to establish guilt.

(ii) The sentence received by the Appellant does not, in my view, indicate that the offence was considered to be a particularly serious one. I would regard a sentence of 12 months imprisonment suspended for 18 months as unusually lenient and it must reflect the judge's opinion as to the circumstances of the offence.

(iii) The conviction was 16 years ago and the Appellant has been working as a coach driver without any further convictions of any kind.

C. I cannot accept that the existence of a conviction 16 years ago, albeit for what is classed as a serious sexual offence, will necessarily render this appeal futile or misconceived. The appeal needs to be considered in greater depth by a tribunal panel hearing evidence from both parties. They will then be able to assess credibility and enquire in more detail into the Appellant's present situation and the risk that he poses to the safety and welfare of children if he should continue to work with them. The Appellant is just 50 years old and has many years of his working life left to him; he has a young family and I take the view that he should be able to put his case to a tribunal panel who can properly assess all the evidence. There is always a conflict between the risk to the public and the right of an individual to work and in this case it needs to be explored fully.

D. I would distinguish this appeal from those quoted by the Respondent as follows:

(i) In the case of Cowell, there is no indication of the date of the convictions but they would appear to be of a very recent date before the appeal with a longer immediate sentence imposed for a series of offences rather than a single offence.

(ii) The Woodbine Villa case was struck out because there were no grounds of appeal pleaded. In this case the Appellant has put forward grounds that require proper consideration.

(iii) The Knoote case again involved very recent convictions with a custodial sentence that was still under appeal.

(iv) In Hardy's case, the appeal was struck out because the convictions were recent. The Tribunal accepted that the procedures that followed the convictions were an entirely proportionate response to the convictions.

E. The Appellant has accepted that he cannot challenge the facts of his conviction. Rather he is setting out to challenge the action of the Respondent in including his name on List 99. It may be that after a full hearing the Tribunal will decide that the direction issued by the Respondent was an appropriate and proportionate response to his conviction in 1991. At this stage, however, I am not prepared to rule out the Appellant's right fully to argue his case. I therefore dismiss the application to strike out.

Order

The application to strike out is dismissed.

Dated 27 February 2007

Rosemary Hughes (Chairman)