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Cite as: [2007] EWCST 1056(PC)

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Peach v Secretary Of State for Education and Skills [2007] EWCST 1056(PC) (08 August 2008)

GARY PEACH

-and-

THE SECRETARY OF STATE FOR EDUCATION AND SKILLS

[2007] 1056.PC

[2007] 1055.PVA

On 29^th-30^th July 2008 at the Care Standards Tribunal, Pocock Street, London

BEFORE

Mr I Robertson (nominated Chair)

Mr D Cook

Ms J Wade

DECISION

REPRESENTATION

Ms R-M Hill(Counsel) Instructed by Burnley-Jones Bate and Co for the Appellant.

Ms Z Leventhal (Counsel) instructed by the Treasury Solicitor for the Secretary of State.

THE APPEAL

The Appellant 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 Football Association by letter dated 29 March 2007 following his suspension as a junior football referee. This followed his conviction on 8 January 2007 of 13 Counts of making indecent images (Downloading child pornography at levels 1 and 2). He was given a Community sentence for these offences. He was placed on both the Protection of Children Act list (POCA) and the Protection of Vulnerable Adults list (POVA) on 9 May 2007.

He lodged his appeal on 3 July 2007. The delay in hearing was due to a number of factors including an unsuccessful "Strike out" application made by the Secretary of State.

BACKGROUND

Mr Peach is 20 years old. At the time the offences were committed he was 18 years of age. The offences came to light on 8 June 2006 when inappropriate search terms were discovered on the search history of a computer at a local hospital radio station where the Appellant volunteered. Upon further investigation indecent images were found on the computer. Mr Peach was challenged about this and he admitted he was responsible. The police were notified but he was not arrested until 22 June 2006. His computer was seized and on it were 7 video clips of children performing sexual acts upon each other and 63 photographs. All fit into category 1 or 2 of the SAP sentencing code, category 1 being "Images depicting nudity or erotic posing, with no sexual activity" category 2 being "Sexual activity between children, or solo masturbation by a child". At least one of the videos shows anal intercourse between a 12 and 14 year old boy and whilst this may attract a lower tariff for criminal purposes we consider such material to be extremely serious. As we said during the hearing an adult may not have been in the picture but was very likely to have orchestrated, choreographed, shot and downloaded the image. It shows exploitation of the worst kind.

Mr Peach was arrested and interviewed on 22 June 2006. He admitted downloading the images. He said in interview that he did not have a girlfriend and felt inadequate about himself; he was anxious whether his penis was the right size. He was accessing websites via Google, and downloading images via a file sharing programme called "Limewire" He would download images onto his parents' computer, upload them onto a memory stick and then download them onto his computer in his bedroom. He had printed off 4 images. He said that the images got onto the computer at the radio station via his USB stick that he had taken in to download pictures of himself on "red nose" day. Mr Peach claimed that the indecent images must have downloaded accidentally. He denied any of the images were sexual. He did accept that he had searched for some child pornography using inappropriate search terms as illustrated by this extract from the transcript of his police interview;

"Q – This one shows 11-15 year old boys Gay Sex Google Search, last visited 5^th June 06, at 03.23, would that have been you accessing it at the time?

A – If I wasn't on air then yes probably."

Later in interview he discussed going to see a doctor as he felt disgusted and was trying to self- diagnose as to why he was looking at pictures to compare himself. He didn't think he had developed properly. He said he had been bullied at school because of the size of his feet and the teasing that resulted regarding the size of his penis.

Mr Peach's main hobby is in connection with both model and miniature railways. At the time of his conviction he was a member of 3 clubs. He also attended Sea Cadets and was an FA qualified junior football referee taking charge of children's and young people's matches. He was employed in the railway industry. Following conviction he was effectively dismissed from his employment but has subsequently been reemployed in the industry having disclosed his conviction. He has been expelled as a referee and suspended from the Sea Cadets. He remains a member of a model railway club to whom he has revealed his conviction and a miniature railway club to whom he has not revealed his conviction, his rationale being that all members are aged over 18. He was dismissed from the third club.

THE EVIDENCE

The Tribunal had before it nearly 350 pages of evidence. We heard oral evidence from the following witnesses;

PS Chapple

DS Welsh

Mr Peach

Professor Green

Ms Valerie Sheehan

PS Chapple confirmed the events surrounding Mr Peach's arrest and interview. DS Welsh is the supervisor of the Sutton Borough Public Protection Unit. As part of his duties he supervises sex offenders in the community. He talked of an occasion in March 2008 when he visited Mr Peach. He had been made aware by an off-duty police officer from another force that Mr Peach had been visiting another miniature railway club. He gave Mr Peach the opportunity to raise this with him. As Mr Peach did not do so, DS Welsh confronted him with it. Mr Peach did not see the need to raise this as an issue. DS Welsh accepted that apart from this occasion Mr Peach has been full and frank with him.

Mr Peach then gave evidence. He described the difference between miniature and model railway clubs. The former is where members build and run railways that are capable of pulling carriages and taking people. The latter involves model layouts. He is a member of a model club where he disclosed his conviction. He has not disclosed his conviction to his miniature club as it is for people aged over 18 only. He did accept though that this club held "open days" when members of the public including children may ride on the trains. He explained that he had a unique engine and as a result of this he had been invited to take it along to another club. He liked this club and went along a number of times. He applied to join but did not reveal his conviction as a) there was nowhere on the application form to disclose this and b) he did not know who the right person was to tell. In the event the club found out about him and refused his application for membership.

He described being bullied at school about his feet. He said that he felt inadequate and that he started looking on the internet for sites to compare penis sizes. He started with adult sites but realised the men in these were all abnormally large so he put in search terms for child sites. He said that he only looked at these to compare. They did not have a sexual content. He could not explain the videos other than to say he had just clicked on these at random on Limewire and had never viewed them. He had no sexual pleasure from child pornography. He masturbated to adult pornography although looked at a particular image of a child as it made him feel comfortable about himself. He denied in evidence looking at child porn sites in the radio station and told us that the images had been downloaded accidentally when downloading music. He had forgotten that he had downloaded these images onto his USB stick some 2 hours previously. He denied masturbating or taking out his penis at the radio station. He maintained that his sexual orientation was towards adult women. He did accept that even after he was caught but before arrest he looked at the images again to give himself comfort.

Professor Green is a distinguished academic in the field of human sexual behaviour. He has been involved in research on issues of sexuality for many years. He is an undoubted expert in his field. He is a trained lawyer, criminologist and Psychiatrist. He was asked to undertake a risk assessment by those acting for Mr Peach. He saw him for 1 ½ hours for this purpose. He concluded that the risk of Mr Peach progressing to being a contact offender was very low based upon his circumstances not fitting the norm of such offenders. He considered that it was inappropriate for him to remain on the POCA list as the conviction in itself provided protection to society if such protection were needed. Remaining on the list was a double protection that was unnecessary and unfairly restricted Mr Peach's legitimate activities. He raised one caveat and that was that he felt Mr Peach was unsuitable to work in a 1:1 counselling/training setting with young people, not because he posed a risk per se but because with his history of offending there was an increased risk. He accepted in cross examination that the area of offending was not his area of clinical practice.

Ms Sheehan was instructed by the Secretary of State to provide an expert second opinion. She has over twenty years experience working with offenders on a daily basis. She met with Mr Peach on 9^th and 10^th May 2008 at the offices of the Treasury Solicitors, completing three assessment interviews each of approximately 2 ½ hours duration. Her opinion was based upon her clinical evaluation of Mr Peach and her clear indepth knowledge of the peer reviewed scientific research backing this up. In her view Mr Peach posed a risk of re-offending based upon what she saw as his inconsistencies of account and motivation and his apparent escalation in the weeks before discovery. She was particularly sceptical about his explanation regarding his motivation for viewing the pornography.

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 Mr Peach was referred as set out above.

S4 of the Act gives a person so referred 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 two tests to apply. The first test is conjunctive and the second only comes into play if the first two limbs 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 of Balance of Probability, that the third test is reached. 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.

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.

In this case there has been a relevant conviction. Accordingly by S4(4) Protection of Children act 1999 we are not able to go behind the conviction.

Given the existence of the Conviction the first limb is patently satisfied. In normal circumstances the Secretary of State bears the burden of persuading the Tribunal that both limbs of PoCA, s 4(3) are met. When there is a conviction, however, the onus shifts to the Appellant to satisfy the Tribunal that he is a suitable person. (see Kalchev v Secretary of State [2005] 590 PC).

In her submissions Ms Leventhal referred us to a number of previous decisions which have offered guidance as to the meaning of suitability and the seriousness with which we should view cases involving child pornography;

In CN v Secretary of State, [2004] 398.PC in a case also concerning convictions for making indecent images of children, the Tribunal came to the following finding at paragraph 24:

"The children who appear on these sites are real children, and we are absolutely clear that their appearance on the sites constitutes an abuse of them by those who place them on the internet. Those who access such sites are furthering the abuse. In short, the children are at risk of harm as defined by the Children Act 1989 section 31 which states that harm means "ill-treatment or the impairment of the health or development" of the child. The first limb of the test is satisfied."

The question of unsuitability is to be considered generally by reference to the well-known Mairs factors, which can be summarised as follows (paragraph 111 of Mairs v Secretary of State [2004] 269.PC):

a. Unsuitability must be judged by the Tribunal at the date of the hearing.

b. The judgment will involve consideration of the character, disposition, capacity and ability of the individual concerned, including his or her ability to act properly in potentially difficult or frustrating circumstances.

c. The judgment will inevitably be, at least in part, by way of deduction from past performance, including (but not limited to) the nature and extent of the misconduct, admitted or proved in the course of the proceedings, which harmed a child or placed a child at risk of harm.

d. The Tribunal may have regard to: the number of the incidents constituting the misconduct; the gravity of that misconduct; the time that has elapsed since that misconduct; the timing and degree of recognition by the applicant that the conduct constituted misconduct and that it had the potential to harm a child; the steps taken by the applicant to minimise the possibility of there being a recurrence of that or like misconduct; and extenuating circumstances surrounding the misconduct.

At paragraph 109 of Mairs, the Tribunal emphasised that consideration of unsuitability involved an assessment of risk to children.

On the importance of public confidence in this context, the Respondent relied on the finding of the Tribunal in the CN case, where it said at paragraph 29:

"We cannot underestimate the importance we attach to public confidence. When the Tribunal considers the question of unsuitability, it must look at the factual situation in the widest possible context. It may well be, as the Tribunal has said before (eg BR v Secretary of State [2003] 205.PC) that it is unfortunate that the 1999 Act does not enable the Secretary of State or a Tribunal to prohibit a person from being employed by a child care organisation in some positions while allowing him or her to be employed in others, in the way that the Education Act 2002 does. It is our view that it is the clear intention of Parliament that the language of the Act requires us to take a broad view having regard to the degree of risk posed by the Appellant, but also to acknowledge that the public at large and those who entrust their children into the hands of professionals have a right to expect, indeed to demand, that such people who are placed in such important positions of trust working with children "in a child care position" are beyond reproach." (emphasis added.)

The purpose of the listing scheme and importance of public confidence therein was reiterated by the Tribunal in Ryde v Secretary of State [2006] 0856 PC at paragraph 33:

"The purpose of the listing scheme is to protect children from those who are employed to work with them and to maintain public confidence in the care provided to children. Listing under the scheme involves a difficult balancing exercise between the safety of children and the rights of individuals to have their livelihoods and reputations safeguarded (see Lady Justice Hale in R v The Secretary of State for Health ex parte C (2000) EWCA 49)."

FINDINGS OF FACT

Ms Leventhal in her closing address on behalf of the Secretary of State submitted that there were a number of inconsistencies in Mr Peach's evidence that she said showed that he was minimising the gravity of his actions or lying to us and that accordingly we should treat his evidence and therefore the question of his suitability with caution. She asked us to make specific Findings of Fact on six particular assertions by Mr Peach.

That he had not searched for images of children at the radio station.

The evidence for this seems clear and unequivocal. An interrogation of the computer at the Radio Station shows that child pornographic web sites were searched for whilst Mr Peach was on duty. In police interview he accepted that he did this, and eventually in evidence accepted he may have forgotten doing so. We are clear that he quite deliberately and calculatingly sought out child pornography whilst at the radio station.

That he had forgotten the images were stored on his USB pen.

We find it inconceivable that, firstly, he would have forgotten this material was present and, secondly, that he did not download it deliberately. We feel that it is significant that his account given in his police interview of how the "accidental" download occurred was so different from that given in evidence to us.

That he had not masturbated at the radio station.

The evidence for this is contained in Ms Sheehan's report at Para 88;

"I'd worked out no one could see me…I thought I could delete them and no one would know because it's a lot of older people at the radio and the computers were quite a new system there I thought no one would know how to use them that well to look into it,,,,,I sat under the desk….. and you know…..I made it look like I was trying to work on my demo tape and I sort of sat under the desk slightly more to look down to compare myself…. I touched myself again to get the erection to compare."