England and Wales Care Standards Tribunal

 


Sladdin v Secretary of State [2007] EWCST 1180(PC) (09 February 2008)

David Sladdin

-v-

Secretary of State

[2007] 1180.PC

[2007] 1181.PVA

STRIKE OUT RULING

Decision

1. The Appellant appeals against decisions to include his name on the Protection of Children Act (PoCA) list and the Protection of Vulnerable Adults (PoVA) list. These decisions were confirmed on 22/08/07. The Appellant appealed on Appeal Application Form A, received by the Tribunal on 20/11/2007.

Factual Background

2. On 24/10/2006, at Calderdale Magistrates Court, the Appellant pleaded guilty to two offences contrary to s11 of the Sexual Offences Act 2003, namely:

(1) for the purpose of obtaining sexual gratification, intentionally engaging in sexual activity in a place where he could be observed by a child under the age of 13, knowing or believing that the child was, or intending that the child should be, aware that he was engaging in that activity; and

(2) for the purpose of obtaining sexual gratification, intentionally engaging in a sexual activity in a place where he could be observed by a child aged 13, knowing or believing that the child was, or intending that the child should be, aware that he was engaging in that activity.

3. On 24/11/2006, at Bradford Crown Court, the Appellant was sentenced to:

(a) community service of 3 years

(b) disqualification from working with children until further order pursuant to the Criminal Justice and Court Services Act 2000

(c) registration with the police for 5 years pursuant to the Sexual Offences Act 2003

(d) curfew electronically monitored for 6 months

4. By letter dated 6/07/2007 the Appellant was referred to the POCA team by the Scout Association and this led to the decision referred to above whereby the Appellant's name was included on both the PoCA and PoVA lests.

The Appeal

5. Pursuant to s.4 of the Protection of Children Act 1999, the Appellant has a right to appeal to this tribunal against his inclusion on the PoCA list. Under s.86(1) of the Care Standards Act 2000, he has a similar right of appeal against his inclusion on the PoVA list.
6. S.4(3) of the Protection of Children Act 1999 provides that "If on an appeal…….the Tribunal is not satisfied of either of the following, namely-

(a) that the individual 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) that the individual is unsuitable to work with children,……..the Tribunal shall allow the appeal.

7. S. 86(3) of the Care Standards Act 2000 makes similar provisions in respect of vulnerable adults. In addition, s.92(4) of that Act provides that misconduct in respect of a child is sufficient to justify inclusion on the PoVA list if the Tribunal goes on to find the Appellant to be unsuitable to work with vulnerable adults.
8. The grounds put forward by the Appellant in his application for appeal against inclusion on the PoCA list are:

He has worked as a member of the Scout Association for 27 years. No claims of illegal behaviour by him have been made by any member, past or present.

? The children that were the victims of the offences for which he was convicted were not known to him and, therefore, his inclusion on a list would have been ineffective.

? It is not his intention to work with children, either professionally or voluntarily.

? He would like to be involved in the community again and feels it would be unfair to deny him access to a social group because children were members.

? He is passionate about helping others and building a better community.

9. His grounds for appealing in respect of the PoVA list are:

? He has never committed any illegal or inappropriate act against any vulnerable adult

? The inclusion on this list was not part of the sentence for his convictions

? The Probation Service states that it has no objection to the Appellant not being included on the list

? There is no evidence to support the inclusion.

Application to strike out

10. On 19^th December 2007 the Respondent applied under Regulation 4A1(b) and Regulation 4A1(d) that the Appellant's appeal be struck out on the grounds that it is misconceived and /or it has no reasonable prospect of success.
11. In accordance with Regulation 4(2)(b) the Appellant elected to make oral representations on this matter. The application to strike out the appeal was, therefore, heard on 7^th February 2008 at The Law Courts, Bradford. The Appellant represented himself and the Respondent was represented by Ms. Davies of counsel.
12. A Restricted Reporting Order was made under Regulation 18 in respect of the strike out hearing only.

The Respondent's Case

13. The case for the Respondent is as set out in the skeleton argument served in this matter and dated 4^th February 2008.

The Appellant's Case

14. The Appellant gave further information as to the content of the tapes referred to in Paragraph 4(a) of the skeleton argument. Ms. Davies for the Respondent made it clear that the tapes had only been mentioned because of his letter of appeal which stated that there had never been any complaint about him in 27 years of working with the Scouts Association. She stated that the strike out application is based solely on his convictions.
15. The Appellant accepted the main thrust of the argument surrounding his convictions but said that some of the facts are inaccurate. For the purpose of this strike out application Ms. Davies, on behalf of the Respondent was happy to assume that the Appellant had not touched either of the boys involved in the offences, which was the element of the case objected to by the Appellant.
16. The Appellant said that he wished to have the opportunity of laying before the Tribunal a full explanation as to why the offences had been committed. He felt that if a Tribunal had the opportunity to hear the circumstances behind the offences, it may well conclude that he is not a risk to anyone. He is community minded. Helping the community is what gives him personal satisfaction and he wants the opportunity of working within the community. Inclusion on the PoCA list could cause him problems. He was very surprised by the response of the Scouts Association to his convictions. He states he would have accepted any condemnation by them but was exceptionally disappointed by their reaction, given the fact that he has been very involved in the Association for 27 years, has written scouting manuals and been offered positions of considerable responsibility.
17. So far as his inclusion on the PoVA list is concerned he objects strongly. There is no reported issue or complaint relating to vulnerable adults and to strike out his appeal would be exceptionally draconian.

Decision

18. If this case were to go forward to a full Tribunal hearing the Tribunal could not challenge the findings of fact implicit in the convictions for the offences set out above. Any Tribunal hearing this appeal would have to find that the Appellant had been guilty of misconduct which harmed a child. The first limb, therefore, of the test as set out above is already satisfied. The appeals stand no chance of success in relation to misconduct.
19. The offences of which the Appellant stands convicted are serious and were committed in the recent past. Whether or not the Appellant has a previously unblemished record is irrelevant, given the nature of these offences. No Tribunal, properly directed, could conclude anything other than the Appellant is unsuitable to work with children and vulnerable adults. People who work with either group hold a position of considerable trust. The Tribunal agrees with the comments made in CN v Secretary of State [2004]398.PC and [2004] 399.PVA "We cannot under estimate the importance we attach to public confidence………..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……are beyond reproach." That argument extends also to working with vulnerable adults. In the same case it was stated that "Society has a legitimate interest in ensuring that those who are considered unsuitable to work with children are not given positions of trust in relation to vulnerable adults." Having considered all the evidence the Tribunal does not say that a vulnerable adult would be at risk of harm from the Appellant. However that is not what is required by the Act. It is sufficient that he is unsuitable to work with vulnerable adults by virtue of the fact that he harmed or placed a child at risk of harm by the offences of which he stands convicted.
20. So far as any problems which the Appellant might encounter as a result of his inclusion on either list are concerned, they are far outweighed by the importance of the need to protect children and vulnerable adults.
21. The Tribunal, therefore, finds that these appeals have no reasonable prospect of success and that they are misconceived.

ACCORDINGLY, the appeals are struck out under Regulation 4A(1)(b) and Regulation 4A(1)(d)

22. In accordance with Regulation 4(A)(4), where the nominated chairman has made a determination to strike out an appeal the Appellant may apply to the nominated chairman for that determination to be set aside. Such an application must be made no later than 10 working days after the date on which this determination is sent to the Appellant and must be in writing stating the grounds in full. If an application is made under Regulation 4A(4) the application will be sent to another chairman not involved in this case who will issue any further directions.

Carolyn Singleton

Nominated Chairman

9^th February 2008