England and Wales Care Standards Tribunal

Brazier v Secretary of State [2007] EWCST 1085(PT) (22 July 2008)

TREVOR BRAZIER
and
SECRETARY OF STATE
[2007] 1085.PT
-Before- Mr Simon Oliver (Deputy President) Ms Helen Hyland Ms Margaret Diamond
Decision

Heard on 24^th April 2008 at the Lord Haldon Hotel, Exeter

Representation

The Appellant appeared in person

For the Respondent: Ms K Olley of counsel

Appeal

1. 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 2003 Education Regulations") against the Respondent's decision of 9 May 2007 ("the Decision") to bar him from employment to which section 142 of the Act applies on grounds of his misconduct. The misconduct was constituted by the Appellant's inappropriate behaviour with a 17 year old female pupil at Ellesmere College, an independent residential school, where the Appellant was employed as a teacher.

The Law

2. Section 142(1) of the Act provides that the Secretary of State may direct that a person may not carry out work to which section 142 applies if one of the grounds set out in subsection (4) applies:

a. On the grounds that the person is included in the list under section 1 of the Protection of Children Act 1999;

b. On the grounds that the person is unsuitable to work with children;

c. On grounds relating to the person's misconduct;

d. On grounds relating to the person's health; or

e. On grounds relating to the person's professional incompetence.

3. Section 144 of the Act and Regulation 12 of the 2003 Education Regulations provide a right of appeal against the making of a direction to the Care Standards Tribunal. When considering whether the direction is appropriate or not, Regulation 13 of the Education Regulations provides that the Tribunal shall not consider any information relevant to the decision to give a direction which the Secretary of State did not have at the time the decision was made, or any evidence of a material change of circumstances of the person concerned occurring since the decision was given. Furthermore, subsection (1) of Regulation 12 of the Education Regulations sets out the right to appeal against a direction. Subsection (2) prohibits an Appellant from basing his appeal on evidence that has not previously been brought to the attention of the Secretary of State.
4. In other words, we need to look at the situation as it was on 9^th May 2007 and not as at 24^th April 2008.

The Secretary of State's case

5. The Appellant (who was aged 33 years at the time) came to the Respondent's attention by way of a letter dated 24 July 2006, from Ellesmere College, following the Appellant's resignation as a result of allegations that he had engaged in an inappropriate relationship with one of the college's 17 year old female weekly boarders (hereafter referred to as E). It is alleged that the relationship came to light when E handed in coursework to the college on a memory stick, and digital photographs were also discovered, depicting E and the Appellant together in London and Blackpool, whilst E was still a pupil at Ellesmere College. Among the photographs were: one showing the Appellant's naked upper body, taken in a hotel room; several which show the Appellant kissing E both on the lips and her cheek; E and the Appellant together with champagne glasses; and photographs of E naked in a hotel room.
6. Upon discovering the photographs, on 26 June 2006, Ellesmere College conducted interviews with the Appellant, E, and fellow students, whom it was claimed were also present in London and Blackpool. The Appellant allegedly told the college that he had been in London with a group of adult friends (unconnected to the college), during Easter 2006, and that he met up with E and three other students following a telephone call from W (one of the three other students). He admitted that he drank alcohol with the students, and that whilst under the influence of alcohol, and as a result of being encouraged by others, he kissed E. The Appellant admitted that a similar meeting had occurred in Blackpool in June 2006, where he was staying for a "stag-do". The Appellant resigned on 27 June 2006, and as a result of his resignation, no disciplinary action was taken by the school. A report was completed by social services on 30 June 2006, following a referral from the Deputy Head Teacher of Ellesmere College. The social services' section 47 report indicated that the police were unable to take any action because the College had conducted the initial interviews and had thereby prejudiced any legal process.
7. The Section 47 report also indicated that, during a visit by them, the Appellant informed social services that he had taken legal advice, and would not co-operate with their questioning of him. West Mercia Police confirmed that there was no police enquiry in relation to the allegations. Statements given to social services by E and other students claiming to have been present in both London and Blackpool sought to support the Appellant's version of events, yet there are inconsistencies in these accounts. No further photographs of anyone in London or Blackpool in addition to the Appellant and E have been located, and the Appellant has not submitted any statements from the people alleged to have been in Blackpool and London at the same time as the Appellant and E.
8. The Respondent wrote to the Appellant on 19^th November 2006. The letter set out the documents and information that were available to the Respondent and explained that, in view of the information received, the Secretary of State had to consider whether to take action under section 142 of the 2002 Act. The Appellant was invited to make representations and to supply the Secretary of State with any further information that he wished to be taken into account before a decision was made in his case.
9. When no response was received the Respondent wrote to the Appellant again on 19^th January 2007 stating that it was important that the Appellant have every opportunity to submit any representations he may wish to make and giving him a further chance to do so.
10. The Appellant responded by letter on 1^st February 2007. In his representations to the Respondent, the Appellant admitted that certain aspects of his behaviour had been inappropriate. However he denied being present when the nude photographs of E were taken and claimed that no sexual intimacy had occurred. He apologised for his actions and said that he would never do anything similar again.
11. The Appellant supplied the Respondent with 28 positive testimonials. Of these, 15 were from parents who, since 1998, had commended the Appellant on his rugby coaching and housemaster skills. The Appellant also provided 13 letters from either his former schools or rugby clubs where he had worked. However, of these, only Simon Robson (Head of Year at Newcastle-under-Lyme School) referred to the allegations that the Appellant faced at the College. Mr. Robson gave evidence to us and confirmed what he had said in his letter, namely, that the Appellant's actions were totally out of character and that he would have no hesitation in recommending him as a teacher and a coach. Mr. Robson also stated that he would trust the Appellant with his own children.
12. The Respondent considered all of this information, and by letter dated 9^th May 2007 decided to issue a direction barring the Appellant from working with children.
13. Sir Roger Singleton considered the information provided in this case in consultation with panel members and agreed with the recommendation that the Appellant should be placed on List 99.
14. Having regard to all the evidence, including all of the Appellant's representations as detailed above, the Secretary of State concluded that the Appellant should be barred. In reaching this view, the Secretary of State took into account a number of factors which are set out in the Decision Letter dated 9^th May 2007.
15. In considering the information available for the purposes of the decision with respect to the Appellant, Mr Shields who works in the Children's Safeguarding Operations Unit at the Department for Children, Schools and Families in Darlington recommend that the evidence in his case warranted a decision to bar him from performing work to which section 142 of the 2002 Act applies on the grounds of his misconduct. Mr Shields gave evidence to us and confirmed the recommendations he made.
16. In his evidence to us Mr. Shields noted various points as follows:

a. The photographs that the Respondent has been presented with show the Appellant and E together as a couple. They include a number of photographs of them kissing: some are of the Appellant kissing E's cheek, others show them kissing whilst holding wine glasses, and one shows a passionate kiss. The Appellant claims that there were always other people with them. If so, that still leaves his professional judgment open to question.

b. It is also surprising that if they were in London and Blackpool as part of a group celebrating an eighteenth birthday and a bachelor night that neither the other students nor the Appellant's friends have been able to produce alternative photographs. In addition, although the Appellant has produced a large number of testimonials which praise his ability as a teacher and rugby coach, there are no letters from his friends corroborating his version of events.

c. The photographs showing the Appellant and E together do not appear to support the Appellant's version of events. The photographs appear to show them alone together, across a period of time and in different destinations, and in a variety of intimate poses. The Appellant's claim in his representations that he knew that "…pictures were being taken but [he] never saw them until [he] was questioned at Ellesmere College" appears somewhat misleading, as some of the photographs appear to have been taken by the Appellant or E at arm's length.

d. It has not been explained why the Appellant did not return to his own hotel to change his clothes; if, as claimed, he had borrowed a shirt, it is unclear why one of the other sixth form students who claimed to be there (and was, at the time, E's boyfriend) did not return with him, nor why the Appellant did not ask E to remain outside of the room whilst he changed.

e. The Appellant showed little insight into the seriousness of his behaviour in light of the fact that E was a student and that as her teacher he was in a position of considerable trust and responsibility towards her. A member of the teaching profession by definition owes a position of trust and responsibility in relation to the young people in his care. The Appellant's actions constitute a breach of the standards of propriety expected of his profession and an abuse of his professional position.

f. The Appellant did not demonstrate that he acknowledged the possible impact of his actions upon E.

g. Having spent time with the students in London, two months later the Appellant took the initiative and invited the other student who claimed to be present when the photos were taken to a 'stag do' that he was attending in Blackpool. In the intervening period the Appellant had not reflected on the inappropriateness of his behaviour. He places responsibility with E saying that she was "friendly with all the guys around".

h. The Appellant has stated that at the time of the incidents he felt isolated from his colleagues due to his success in the College. Although this may have led to him having some of his emotional needs met through mixing with senior pupils at the school, it does not excuse his behaviour with E.

i. Only one of the testimonials submitted by the Appellant refers to knowledge of the allegations faced by the Appellant and many were at least five years old.

17. The totality of the evidence presented the Secretary of State with sufficient evidence to support a view that a specified ground in section 142(4) existed, and Mr. Shields considered that the Respondent was justified in issuing a direction. In all the circumstances, the arrival at that view was a reasonable response to the evidence.
18. Mr Shields told us that the Secretary of State gave the Appellant full opportunity to provide relevant representations and, as set out in his Decision letter, he took account of the following matters when making his decision:

1. Seven photographs depicting the Appellant and E kissing (including two photographs with both the Appellant and E holding wine glasses and one showing what could be described as a passionate kiss), as well as photographs of E naked in a hotel room, and photographs of E and the Appellant together in various destinations in London and Blackpool whilst E was still a pupil and the Appellant was still a teacher at Ellesmere College;

2. The Appellant's admission that he agreed to meet up with four students from Ellesmere College in London on an evening in April 2006, including E, and his admission that he consumed alcohol with the students, including E, during that same evening;

3. The Appellant's admission that he kissed E, a 17 year old female pupil from Ellesmere College, during the same evening in London;

4. The Appellant's admission that he returned to E's hotel room alone with E the following day to change his shirt;

5. The Appellant's admission that two months later, in June 2006, he invited a male student from Ellesmere College to a "stag do" in Blackpool, and did not object to the same male student attending the stag do with other students from Ellesmere College, including E;

6. The Appellant's admission that he also kissed E in Blackpool; and

7. The Appellant's written representations and testimonials submitted in support of his representations.

19. On the 7 August 2007 the Appellant appealed against the Secretary of State's Decision. The Appellant states in his Appeal Form A that he "made an error of judgement: one which I deeply regretted and one which has had ramifications for me professionally, economically, socially and physically". The Appellant also states that: "I am not a bad person, I made a mistake, I put my hand up to it, and I apologised and did the right thing in resigning my post". The Appellant concludes his Appeal Form A by stating that: "I kissed somebody, I shouldn't have done, but that was all it was- I just now pray that sense can prevail, and my candid honesty will be taken into account along with my track record both before this event and since".
20. The reasons for the Secretary of State's decision are set out fully in the decision letter of 9 May 2007. The Respondent says that Appellant's misconduct was constituted by him engaging in inappropriate behaviour with E. The Secretary of State considered that there was evidence of the existence of inappropriate behaviour of an intimate nature between the Appellant and E, on more than one occasion. Firstly, there is photographic evidence of the Appellant and E kissing, as well as pictures of E. The Secretary of State considered that there was evidence of the existence of inappropriate behaviour of an intimate nature between the Appellant and E, on more than one occasion. Firstly, there is photographic evidence of the Appellant and E kissing, as well as pictures of E and the Appellant in affectionate and intimate poses, sometimes with their arms around each other, in destinations across London and Blackpool, both during daytime and evenings, and photographs of the Appellant and E drinking alcohol together. There are also photographs of E naked, lying on a bed, and a photo apparently taken whilst E was asleep in bed. It is unclear who took the photographs of E naked, but the Respondent submits that their inclusion with the above-mentioned photographs is clearly of grave concern. In addition to this photographic evidence, the Appellant has admitted kissing E on two occasions, and has admitted that this and certain other aspects of his behaviour involving students from Ellesmere College was inappropriate.
21. The Respondent submits to the Tribunal that the statement in the Appellant's Grounds of Appeal that, "I kissed somebody, I shouldn't have done, but that was all it was", displays a concerning lack of insight into the serious implications of the Appellant's relationship with E, both in terms of the implications for the pupil herself, and also the consequences in the broader context of public confidence in the teaching profession. The Appellant also shows little insight into the seriousness of his behaviour in light of the fact that E was a 17 year old pupil, and as her teacher he was in a position of considerable trust and responsibility towards her. This is of particular concern to the Respondent in light of the profound breach of trust involved in such an offence by a member of the teaching profession who, by definition, occupies a position of trust and responsibility in relation to the young people in his care.
22. The Respondent in submissions referred us to the finding of the Tribunal in the case of Moseley v Secretary of State [2002] 1PC which describes the unique position of trust and responsibility occupied by teachers:

"The role of a teacher in society is an important one and parents and the general public expect and are entitled to expect high standards from teachers. A teacher is placed by the parents of the children in a position of trust and responsibility and a teacher must be able to demonstrate those qualities not only in their professional spheres of work as a teacher but also in their personal conduct. Teachers are perceived as role models for children and trust and honesty are core values which underpin the status of teaching as a profession".

23. Whilst the Appellant does refer to regretting his actions, referring in his Appeal Form A to "a moments madness", and, in his representations dated 1 February 2007, to acting "inappropriately", at no stage in either his representations or Appeal Form does the Appellant acknowledge the potential impact of his behaviour upon E. Further on this point, the Appellant's representations refer to the fact that E "kept hugging him" during their visit to London in April 2006, and when they were in Blackpool, the Appellant alleges that E was, "friendly with all the guys around". These statements suggest that the Appellant is attributing blame to E for instigating the intimate physical contact, and for behaving in a similar way with others allegedly present at the time. The Respondent submits that the Appellant was in a position of trust and responsibility in relation to E, and therefore should have declined any advances made by her towards him.
24. Furthermore, the Respondent submits that the photographs depicting the Appellant and E together do not appear to support the Appellant's version of events. Firstly, the photographs submitted to the Respondent, instead appear to show the Appellant and E alone together, across a period of time and in different destinations, and in a variety of intimate poses. The Appellant's claim in his representations that he knew that "pictures were being taken but (he) never saw them until (he) was questioned at Ellesmere College" seems to be misleading, as some of the photographs appear to have been taken by the Appellant himself, at arms length. Secondly, the Respondent submits that the Appellant's argument that other people were present on these occasions, but not depicted in this selection of photos has yet to be corroborated as the Appellant has been unable to produce additional photographic evidence of this. The Respondent submits that the Appellant's failure to take responsibility for his own actions, or to acknowledge the possible impact of these actions upon E, further demonstrates the appropriateness of the decision to issue the direction.
25. The Respondent further submits that this lack of insight is, in addition to the existence and nature of his inappropriate behaviour with E, further evidence of the Appellant's unsuitability to work with children. The Respondent submits that this failure of the Appellant to appreciate the gravity of his actions (and therefore by implication his lack of understanding of the appropriate boundaries to be maintained) means that the Respondent's direction was an appropriate response to the Appellant's conduct. Of particular concern to the Respondent was the fact that during the intervening period between his visits to London and Blackpool with E, the Appellant does not appear to have reflected on the inappropriateness of his behaviour, and indeed proceeded to instigate a further social situation (in Blackpool) during which he repeated this inappropriate behaviour. The Respondent submits that this point is an important one, and refers to the distinction drawn by the Tribunal in the similar case of FH v Secretary of State [2005] 552.PT, 19 January 2006 at [78] between "deliberate dishonesty" and "reckless rejection of appropriate inhibitions in circumstances of emotional turmoil".
26. The Respondent submits that the Appellant's misconduct must also be viewed against the broader context of the importance attached to public confidence by the Tribunal when considering the question of misconduct. This is particularly the case in light of the position of trust the Appellant occupied in relation to the number of young people in his care in a residential school setting. As the Tribunal have stated in FH v Secretary of State [2005] 552.PT, 19 January 2006 at [60], the Tribunal has accepted that it should decide whether:

"the restriction is an appropriate measure to ensure, so far as possible, that children will be properly protected and that reasonable parents and other interested parties will not have their confidence in the education system diminished in the future".

27. Ms Olley says that the Secretary of State had regard to the evidence submitted by the Appellant in mitigation. This consisted primarily of: evidence of the Appellant's good teaching record; 28 positive testimonials submitted with his representations (although only one of these testimonials refers to knowledge of the allegations faced by the Appellant, and many were at least five years old); the assurance from the Appellant that he would not repeat his behaviour; the Appellant's assertion that he felt isolated amongst his peers at Ellesmere College; and his recent health concerns. As demonstrated in the Decision Letter of 9^th May 2007, the Respondent says that he gave these factors very careful consideration, but concluded that these factors were outweighed by the serious implications of the Appellant's inappropriate behaviour with E.
28. The Respondent concluded that the Appellant's behaviour towards E involved a breach of trust, a breach of the standards of propriety expected of his profession and an abuse of his professional position. The Respondent submits that the foregoing matters amount to misconduct. The Appellant's apparent lack of insight into the serious implications of his behaviour, and the profound breach of trust involved in respect of the Appellant's position in relation to a pupil at his school show, it is submitted, that the Applicant is not suitable to work with children and confirm that the Secretary of State's decision was an appropriate response in the circumstances of the case, within the reasonable range of responses available to the Secretary of State. Therefore, it is argued, the Appellant's appeal should be dismissed.

The Appellant's case

29. Mr Brazier wanted us to know that the effect of his being placed on the list had effectively destroyed not only his life but also that of his family. He did not dispute the original information from Ellesmere College and said that he knew what he had done was wrong and that he acted with incredible stupidity. He told us that he knew that he had overstepped the bounds of a professional with his amount of experience and should have known better.
30. Mr Brazier told us that he had not been able to work since he resigned due to reactive depression. He has been having counselling, has been assessed at two mental health clinics and has had to take antidepressant and sleeping tablets daily just to function. Mr Brazier has found it hard to explain to his son that he can no longer coach rugby and to his daughter that he cannot work at her school. Mr Brazier asked us to accept that losing his job, "rerouting" his family, having to explain his reasons for leaving Ellesmere in interviews, almost certainly having to take a job on a much lower salary and in a much more junior position is punishment enough.
31. Mr Brazier explained that he had been banned by the RFU from attending any playing surface where rugby was being played. He said that he believed that he was being treated no differently than a serious sex offender and registered paedophile would be when, in reality, he had committed no offence although he accepted that his actions were stupid.
32. Mr Brazier said that as a teacher who has made a mistake, been honest about it, faced up to it and been put through nearly two years of hell he thought he had been punished enough. He wants to rebuild his life, be able to support his family once more and to be able once again to take an active role in his own children's development. Mr Brazier said that being put on the lists meant that any job which required a CRB form to be filled in was now out of bounds to him and that when he had been able to explain what he did to a potential employer that person had commented on the severity of the punishment.
33. Mr Brazier described himself as a very good teacher in the classroom and pastorally and that he just wanted the opportunity to go back and prove that he had made a huge mistake and that he had learnt from that and that he would behave exemplarily in any future employment.
34. In answer to Ms Olley, Mr Brazier said that he did not deny that the photographs showed them kissing or that they were inappropriate but he did deny that they were intimate. He also accepted that there were two separate occasions.
35. In his closing statement Mr Brazier said that he had always admitted what he had done was wrong and that he fully appreciated the effect that it had had on E and the two male students present. He recognised implicitly that he broke the bounds of trust there should be between a teacher and a pupil. He was concerned that placing his name on the lists punished not only him but his whole family. He asked us to enable him to coach rugby again and take on an active role as a father in the sporting environment.

The findings of the Tribunal on the evidence

36. Since Mr Brazier has not denied any of the matters we do not have to determine any factual disputes. We are satisfied that there were photographs taken when the two of them were alone and that this can be shown because there are some that are at "arms length". We accept Mr. Shields' evidence as to the photographs.

Conclusions

37. We accept and adopt the legal test we have to follow as set out in paragraphs 22, 25 and 26 above.
38. We have come to the conclusion that we accept all the evidence of Mr Shields. We are also satisfied that in his evidence to the Secretary of State and to us Mr. Brazier has shown absolutely no sign of recognising or understanding the seriousness of these matters. In his written statement Mr. Brazier blamed everyone else for his present situation: the College for reporting the matter and both his union and lawyer for giving him advice which led to him being placed on the list and subject to the direction.
39. From what we heard and read we have come to the conclusion that Mr. Brazier lost and crossed the boundaries between staff and pupils with the pupils becoming his colleagues. Given that Mr. Brazier does not appear to understand this, we cannot be satisfied that he will not cross this boundary again. We are particularly concerned that this took place in the enclosed residential environment of a boarding school where, we believe, there is even more reason for there to be clear boundaries.
40. We have also come to the conclusion that Mr Brazier did not have a sudden flash of insight into his actions. To the contrary he was found out by the discovery of the photographs. He would have got away with it if they had not been discovered and could well have done the same thing again with another pupil.
41. In his evidence Mr Brazier said that he was ostracized by the staff for being successful. Even if that is true (and we have no evidence other than Mr Brazier's word to enable us to reach a conclusion) it cannot be used as a justification for having a relationship with a pupil. Further, it appears to us that Mr Brazier seems to be blaming E for what happened in that he said that it was she who instigated the first approach. Again, even if that is correct, that cannot be used to justify his actions. It is incumbent on a person in a position of trust NOT to breach that trust and take advantage of his position of power. His comments in his closing statement came only after some very intensive questioning from the panel about his understanding of the breach of the duty of trust and the effect his actions had on E.
42. Mr Brazier told us that he has learnt his lesson and will be exemplary in the future. That may be true, we cannot tell. Unfortunately Mr Brazier gave no indication of having understood the breach of trust and the consequences for others involved. All we heard about was the effect on him and that he had been "punished enough". He suggested that it had been "misinterpreted" and that it "was not what it looks". We cannot accept that. This was a relationship where they were together alone on two separate occasions – in April and in June. The photographs show an intimate couple with no one else around. This was not just a coincidental meeting. We believe that they were almost certainly prearranged. One reason we come to that conclusion is that if the photographs are studied closely it seems that Mr Brazier is wearing a number of different shirts or tops – not something that would have occurred if it was a coincidence.
43. If we are wrong about there just being Mr Brazier and E in London and Blackpool and there were others present, the relationship was still inappropriate. The presence of others does not in someway make it acceptable.
44. Another matter that causes us to not accept that Mr Brazier has understood how serious his breach of trust was is that this happened on two separate occasions with over two months separating them. Had this been a single inappropriate kiss or cuddle it might have been less serious but this was two occasions. If Mr. Brazier had had ANY understanding of the serious nature of his behaviour in April he would not have met E again in Blackpool in June. That he did shows, to our mind, a total lack of insight.
45. This lack of insight is evidenced further by the fact that his statement and evidence to the tribunal was all about him rather than an understanding of how his behaviour had displaced the adult/child relationship or the fact that in a residential environment parents place even greater reliance on the pastoral and teaching staff. This means that people in positions of trust such as Mr Brazier need to ensure that their behaviour is entirely proper and that boundaries are rigorously observed rather than making "a pupil" a friend on a equal footing to a teaching colleague.
46. For all we know E may well have been worldly-wise and willing but we have no evidence to make that judgment. Again it is also irrelevant since the real harm here is the long-term effect on E of having her relationship boundaries affected.
47. We cannot accept that Mr Brazier will never do it again if the opportunity arose. He is only in this position now, as we said above, because the photographs were discovered, not because had a sudden flash of insight. We cannot say whether this relationship would have continued if the photographs had not been discovered. There is nothing to suggest to the contrary, however.
48. So, in reaching our conclusions we pay considerable attention to the lack of reflection, the lack of remorse, the lack of insight, the lack of understanding and the effective attempt to paint himself as a victim who has been punished enough. Mr Brazier was sorry – because he was caught, not because he realises what he did was wrong. He has no sense of having done something seriously wrong and was attempting to place some of the blame on E.
49. Having reached those conclusions we are satisfied that not only was there misconduct but also that Mr Brazier has not satisfied us that he is suitable to work with children. It follows, therefore, that the appeal must be dismissed.

Accordingly, our Unanimous decision is:

APPEAL DISMISSED

Mr Simon Oliver

(Deputy President)

Ms Helen Hyland

Ms Margaret Diamond

Date: 22^nd July 2008