England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		5th July 2002

Mr Justice Scott Baker:

1. By Section 1 of the Protection of Children Act 1999 (“the 1999 Act”) the Secretary of State for Health is required to keep a list of individuals who are considered unsuitable to work with children. On 2 October 2000 C’s name was transferred to that list under Section 3 of the 1999 Act having previously been on the consultancy service index. Section 4 allows the right of appeal to a tribunal against such a transfer. C exercised that right and his appeal succeeded on 5 February 2002. The tribunal directed his name be removed from the list.
2. The Secretary of State for Health (the Appellant) now appeals against that decision under Section 9(6). C is the Respondent to the appeal. In order to preserve the anonymity of the Respondent and others, initials have been used in a number of instances. They are as follows:

• S1 is a female born on 15 November 1966 who for a time was a resident at the Z home and also fostered by C and M2, who was his wife in 1982.

• J is a step child of C born on 6 October 1981.

• S2 is a step child of C born on 25 September 1982.

• M1 is a child of C born on 9 February 1985.

• OC is a child of C born on 15 February 1988.

• The Appellant’s appeal is on a point of law and is advanced under eight grounds.

The facts

3. C is an unqualified social worker who worked at a local authority community home, Z, from 1981. S1, who was 16 at the time, became a resident there. Between 4 February 1983 and 27 May 1983 she was fostered by C and his then wife, M2. She then went for a short time to another residential home before returning to Z. She returned to her parents on 6 February 1984 and in 1986 became ill and was admitted to hospital where she saw a social worker who made contemporaneous notes of what she was told. Eight years later in 1994 S1 saw a counsellor and as a result of what S1 told that person the local authority was contacted and an investigation took place. Two consultants were appointed. The first, Mr Marshall, was asked to look into the allegations and interview S1; the second, Mrs Ralphs, was asked to examine the social work files of S1 and report to the local authority on their contents. Neither consultant interviewed C or M2, any of the children or any of the staff at Z. Having received the reports of Mr Marshall and Mrs Ralphs C was placed on special leave. Meanwhile, further complaints about C reached the local authority. Some of these concerned allegations by former partners. There were also allegations of physical abuse by C of his stepchildren J and S2. A multi- agency child protection case conference took place on 19 January 1995 and a disciplinary hearing followed on 11 and 12 May 1995.
4. C gave evidence denying the allegations. The disciplinary tribunal found S1’s allegations were proved and concluded that the results of the child protection investigation were such that there could be no trust or confidence in C as an employee dealing with young people. It concluded he should be summarily dismissed. C exercised his right of appeal but the decision was upheld on 14 July 1995. C subsequently and unsuccessfully appealed to an industrial tribunal and then the employment appeal tribunal claiming unfair dismissal.
5. The evidence of S1 as contained in a witness statement dated 17 July 2001 that was put before the tribunal complains of three specific incidents and other abuse which she has blocked out of her memory over time with the help of counselling. Two of these specific incidents were rape, the third was assault.
6. The second limb of the case was that some of C’s children told the authorities he had ill treated them when they were young. The tribunal saw the videos of M1 and J. The allegations in summary were:

i) M1 said C used to pick up S2 by the legs and drop her and when she cried he used to put a cushion against her face to stop her. M1, who was nine at the time, did not think C was being rough but that C thought it was a joke. S2 laughed at first but then cried.

ii) J aged thirteen described four incidents, being locked in a bathroom for a long period of time, being forced to eat seaweed, being poked in the eye and being picked up by the scruff of the neck.

7. The tribunal was also referred to the minutes of a case protection conference held on 19 January 1995 where reference is made to an interview with S2 by a social worker in November 1994. There was an allegation that C hung S2 over the edge of a ferry when she was four, that he tried to smother her with a cushion after she and M1 had had an argument and that he used to poke her in the face with his finger.

The law

8. Section 4(1) of the 1999 Act provides that an individual who is included in the list kept by the Secretary of State may apply to the tribunal against the decision to include him on the list.

Section 4(3) provides:

“If on an appeal or determination under this section 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 determine the appeal or determine the issue in the individual’s favour and (in either case) direct his removal from the list; otherwise it shall dismiss the appeal or direct the individual’s inclusion in the list.”

By Section 4(4) a conviction involving misconduct which harmed a child or placed a child at risk of harm cannot be challenged as to any finding of fact on which it is based.

9. Section 7 deals with the effect of inclusion on the list. Broadly, this restricts the person’s employment in a child care position and certain other involvement with children.
10. Section 9 establishes the tribunal and Section 9(6) provides for an appeal to the High Court on a point of law.
11. Section 12, which is the interpretation section, defines harm as having the same meaning as in Section 31 of the Children Act 1989, that is ill treatment or the impairment of health or development.
12. The procedure of the tribunal is governed by the Protection of Children Act Tribunal Regulations 2000. These regulations were replaced by the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 on 1 April 2002, but the 2000 regulations govern the present case. I shall refer to certain of those regulations in a moment. Of particular relevance are Regulation 18, disclosure of information and documents, Regulation 19, expert evidence and Regulation 20 evidence of witnesses.
13. 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. Many of the children concerned are often among the most vulnerable in society and are not necessarily readily able to discern that harm is being caused to them. 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 Hale L.J in R v The Secretary of State for Health ex parte C [2000] EWCA 49. Mr Coppel, for the Appellant, quarrels with the reference to reputation because, he submits, the list is not published. The relevant information is only furnished to those who need to know e.g a prospective employer. I do not, however, accept this view. It seems to me that an individual’s reputation will inevitably be tarnished by being on the list. It is very likely that, life being what it is, the word will get around when an individual’s name is on the list quite regardless of the fact that the list is not a public document.
14. The first striking feature of the case is that neither S1 nor the Respondent gave evidence before the tribunal. The tribunal said it was placed in the extremely difficult position of having to assess a volume of evidence without the benefit of live evidence from either of them. The only live evidence the tribunal heard was from Mrs Sarah Donlan, the Area Commissioner of Childrens’ Services for Kent County Council, who gave evidence of the inquiry that took place in 1995 about the Respondent and the subsequent disciplinary proceedings against him. She did not, however, see S1 or any of the other children.
15. At the heart of the case lie the allegations that C raped and indecently assaulted S1. If true, the test in Section 4(3) is plainly satisfied. C was guilty of misconduct which harmed a child and is unsuitable to work with children. The section makes it plain that the burden of proof before a tribunal lies on the Secretary of State. The standard of proof is the balance of probability. The more serious the allegation, the stronger should be the evidence before the court is satisfied that the event occurred. See Lord Nicholls in Re H and others [1996] 1ALL ER1 and Lord Hoffman in Secretary of State v Rehman [2002] 1AUER 122,141. The tribunal correctly directed itself on this.

Against this background I turn to deal with the various grounds of appeal.

Ground one

16. This concerned the second limb of the case and the allegation that C had ill-treated his children when they were young. The tribunal concluded that the ferry incident was not established. It was denied by C. This finding is not challenged.
17. C’s written evidence was that he may have picked up S2 by the ankles, but it would have been horseplay as with the other children. To classify anything that happened as misconduct is misinterpretation.
18. The four incidents described by J were dealt with by C in his statement. The statement is not entirely clear about the extent to which C specifically remembers the incidents, but broadly he says that S2 and J were unruly and disturbed children and were difficult to handle when they became his stepchildren. He had to use different forms of discipline to try and keep control. The Secretary of State relied on the incidents as evidence of a man wholly unsuitable to work with children. The tribunal said the evidence was “less than satisfactory.” It went on:

“On one reading these are examples here of excessive horseplay. Some evidence that perhaps begins to hint at over zealous discipline and some suggestion that he treated his stepchildren differently from his own children.”

But it then reminded itself that the statutory test of misconduct involves harm to a child or placing a child at risk from harm and concluded that the evidence C was guilty of misconduct simply was not there.

19. Mr Coppel submits that it is common ground that the incidents described by J occurred and that by their very nature all the incidents placed the child at risk of physical or mental harm. The difficulty with incidents of this kind is that the detail of what happened needs to be clear with some degree of precision before the nature of the incident can safely be interpreted. C’s recollection as described in his witness statement and untested by cross examination was at best vague. The tribunal made no specific findings about what actually occurred except that the ferry incident was not proved. I think it is probably fair to infer that the tribunal broadly accepted that incidents as described by the J did occur although the description of them as serious incidents (paragraph 41 of the decision) appears to be Mr Coppel’s description rather than that of the tribunal. Whether or not they were serious depends on how they are interpreted. Mr Coppel’s argument is premised on a finding that serious incidents had occurred and therefore the onus was on C to explain them to show he is not unsuitable to work with children, which he had not done. I reject this argument.
20. In my judgment the tribunal was fully entitled to say that the evidence of the children was less than satisfactory. First of all it was not entirely clear what had occurred, and in particular in what context, and secondly it was, in those circumstances, impossible to interpret it as crossing the threshold required by Section 4. Accordingly this ground of appeal is not established.

Ground 2

21. The allegation here is that there was evidence C had abused former partners and the tribunal was wrong to ignore it. The Tribunal said at paragraph 19 that while the 1994 investigation was taking place further complaints about C reached the local authority. But they were not matters on which the tribunal heard any evidence and they were not relevant to its decision.
22. It is correct that the tribunal heard no oral evidence on this issue. There was, however, some evidence of violence to former partners in the papers. Mr Crosfill for C describes the evidence as scant. The notes of the tribunal hearing do not suggest that there was any submission that this evidence was material. Mr Crosfill makes the point that the Secretary of State did not draw attention to this evidence nor were submissions made upon it. Whilst such evidence might conceivably assist on the second limb of Section 4(3), it could be of no assistance on the first and factual issue of whether he was guilty of misconduct which had either harmed a child or placed a child at risk of harm. The tribunal found of course that this had not been established. The question of relevance is, in any event, a question of fact for the tribunal. This court will only interfere on Wednesbury grounds. For a number of reasons therefore there is nothing in this ground.

Ground Three

23. This in my judgment is the strongest ground of appeal. It is that the tribunal failed to take into account and draw inferences from the non attendance of the Respondent or any of his witnesses and the lack of explanation for non attendance. This was a most unusual case because neither of the main protagonists gave evidence. The tribunal said that it was placed in an extremely difficult position in having to assess a volume of evidence without the benefit of live evidence from either of them and that the evidence had not been tested by cross examination.
24. The tribunal made it clear (paragraph 14) that it had in mind when weighing the evidence on both sides including C’s character witnesses, the dangers of words being put into the mouths of witnesses by lawyers when settling draft evidence.
25. The critical issue was the sharp conflict between the evidence of S1 and C. C denied emphatically that he had raped S1 or indeed had any sexual relationship with her whatever. His position had not changed since the disciplinary hearing. Likewise S1’s account had been consistent. The tribunal was told why S1 did not attend to give evidence. This was because of risk of harm to her health. No explanation was offered for the absence of C or his witnesses Mrs Papadopoulos and Mr Detheridge.
26. The president of the tribunal has a power to summon witnesses (Rule 23) but did not exercise it in this case nor was there any request for him to do so.
27. Any applicant, such as C, has a right to give evidence in person and any other person may do so unless the president has directed otherwise (Rule 28(2)), and any witness may be required by the tribunal to give evidence on oath or affirmation (Rule 28(3)). The power to direct that a witness shall not give oral evidence is to be found in Rule 20(5).
28. It is to be noted that under Rule 22 it is a condition of a child giving evidence in person that the president believes the tribunal would be unable to determine the case fairly unless it did. Thus the regulations envisage some cases where “the complainant” will not give live evidence.
29. It is, at first sight, perhaps surprising in the light of the Secretary of State’s submissions that the tribunal neither sought any explanation nor drew any adverse inference about C’s failure to attend. It is accepted by Mr Crosfill that it was open to the tribunal to draw an adverse inference. See Zafar v The Glasgow City Council [1998] IRLR 36 (a racial discrimination case dealing with a rather different situation).
30. Mr Coppel complains that the tribunal appears to have treated the non attendance S1 and C and his witnesses as having an equal impact on their reliability, but the fact is that neither side’s evidence was tested in cross examination. Where there is, as in this case, such a stark dispute on the facts I regard it as extremely difficult, verging on the impossible, for a tribunal to resolve it on the papers. The Secretary of State’s difficulty was that the burden of proof was on him. It is true that what C and his witnesses said in their statements was likely to carry less weight than if it had been tested in cross examination. But the same was true of S1’s evidence and the Secretary of State had to persuade the tribunal on the balance of probability that what she was saying was true.
31. In my judgment an applicant in the shoes of C who without good reason fails to attend a tribunal for cross examination and who likewise fails to proffer his witnesses may be taking his life in his hands. Whether a tribunal should draw inferences against the applicant is a matter of fact for the tribunal in the circumstances of the case. This tribunal did not do so in this case and by not doing so cannot be said to have made an error of law.
32. I would add this, where the allegations are of such a serious nature as those made by S1 in the present case I can see that great difficulty may be encountered in establishing their truth to the satisfaction of the tribunal where the complainant does not attend to have her evidence tested. Whether of course the allegations can be established without attendance will depend on the particular circumstances of the case.
33. In the present case the tribunal did not, as was submitted in argument, prefer the evidence of C to S1. The basis of the decision was that the burden of proof was not discharged (see paragraph 35). It is apparent from a careful reading of the tribunal’s decision that there were question marks about the reliability of S1’ evidence in the mind of the tribunal and that these did not emanate wholly from the statement of Mr Detheridge.

Ground Four

34. Here it is said that the tribunal failed to have regard to the circumstances in which S1’s allegations were first made and her current evidence and current condition. Mr Coppel’s submission is that there is no basis for her to have invented her account, which is effectively C’s response. She has given a consistent account over eight years and, submits Mr Coppel, it is inherently likely to be true. C’s witness Mr Detheridge, described her as a particularly plausible, intelligent, articulate but extremely manipulative young lady and yet she only ever complained of the events in confidential therapy sessions. She never sought to make the events public which only happened eleven years later when the confidentiality of her disclosure was broken against her will. The tribunal failed to weigh in the scales the unlikelihood of S1 having given a consistently false account in confidence over a period of years. Also, she was upset that confidential information was being passed on. However, the tribunal points out at paragraph 35 there is other evidence to support the description of S1 given by C and Mr Detheridge.
35. It is plain that the tribunal read and reread all the documents. No document in the bundle set out S1’s current condition and the point is fairly made that the tribunal could hardly take it into account if it was not told about it.
36. There was material in the documents that went both ways about the reliability of S1. The tribunal was not obliged to set out every last detail. In the end, the Secretary of State failed to prove his case because he did not discharge the burden of proof to the standard required. This ground is, in truth, a dispute of fact rather than an error of law.

Ground Five

37. This allegation is that the tribunal took into account irrelevant material because in assessing the reliability of S1 it concentrated on character descriptions of her before and at the time of the alleged rapes rather than at the time she made the complaint and gave evidence.
38. The submission is that the critical question for the tribunal was whether her account of the events was reliable. What she was like aged sixteen has no bearing on whether she is telling the truth twenty years later. The references cited by the tribunal from the case notes have, it is said, no probative value.
39. I am unable to detect any error of law. In my judgment it is of relevance to know what kind of person S1 was at the time the events are said to have occurred. It would only amount to an error of law if the tribunal took into account something wholly irrelevant. Mr Crossfill rightly makes the point that the best way to assess her creditability at the present time is to see her give evidence. The tribunal was not afforded this opportunity.

Ground Six

40. The Secretary of State submits that the tribunal in assessing whether the burden of proof had been discharged wrongly took into account facts of neutral probative value. The tribunal at paragraph 35 looked at entries in documents relating to the critical time. It said:

“The description of the breakdown of the placement provides no hint whatsoever of any suspicion that there is a sexual relationship of any kind between S1 and C.”

41. Mr Coppel submits that the fact she failed to disclose the allegations at the time to colleagues of C is neither inconsistent with her later behaviour nor implausible. He also complains of the tribunal’s treatment of diary entries. In May/June 1986 S1 kept a dairy during the period she was treated in hospital. Mrs Ralphs’ report describes the entries as “a tragic record of her unhappiness.” In them she refers to sexual experiences with the members of her family but nowhere do the entries refer to sexual experiences with C. The tribunal said:

“Although not actually corroborative of C’s position, the absence of allegations about C is certainly not supportive of (the Secretary of State’s) position.”

42. The tribunal did not place great weight on these points but their significance is that along with others they raised questions about the reliability of S1’s evidence, questions that in the absence of live evidence from her were not answered. Again, the Secretary of State’s case amounts to no more than a quarrel with the factual approach of the tribunal. There is no error of law.

Ground Seven

43. Here the allegation is of groundlessly doubting the conclusions of Mr Ralphs. The tribunal said at paragraph 35:

“In her report to Mrs Donlan in October 1994 Mr Ralphs expresses the opinion that the writer of the notes in 1986 expressed no doubt about S1’s truthfulness and that she Mrs Ralphs “having considered the context……..am led to believe these statements are true.” Mrs Ralphs provides no reason for her view that “these statements are true”. Indeed, her references to her interviews to other people involved raise serious doubts as to the appropriateness of her conclusion. ”

44. It will be recalled that Mrs Ralphs came into the case in 1994 and that it was her job to examine S1’s social work files. She saw neither S1 nor C. Her view on the veracity of S1 was neither here nor there. In fact the tribunal had good reason to doubt the reliability of Mrs Ralphs conclusion because, as is pointed out at paragraph 35, she interviewed a Mr Colin Sykes, principal social worker. He remembered S1 quite well and visited her when she was in the Z home. He remembered nothing that would suggest sexual abuse. The tribunal was entitled to conclude that the evidence summarised by Mrs Ralphs suggested a likelihood of abuse but that this seemed to have been present to prior to the placement with C. Again I can detect no error of law.

Ground Eight

45. The final allegation is that the tribunal wrongly treated the evidence of Mr Detheridge as unchallenged. What the tribunal said at paragraph 32 was:

“In any event, Mr Detheridge was the superintendent (of the Z home) at that time and his description of the procedures in force, which have not been challenged, give some credence to the view expressed by him that (C’s) allegation of the incident in Z as entirely unlikely and improbable.”

46. In his statement Mr Detheridge had made reference to procedures for out of hours admissions to Z. That evidence (not Mr Detheridge’s evidence) was properly described as unchallenged. The statement was disclosed before the hearing. The Secretary of State did not seek to put forward any contradictory evidence and no submission was made to suggest that his evidence about the procedures was in any way factually inaccurate. The point of this evidence was that it supported C’s case that the procedures at Z would not have allowed S1 to have gone to the emergency unit with C and stay there with her, let alone for him to force himself upon her. In my judgment the tribunal was fully entitled to make the observation that it did. In any event, this was not one of the several reasons relied on by the tribunal for concluding that the Secretary of State had not discharged the burden of proof that it was more likely than not that C had sexually abused S1. Once again I detect no error of law.

Respondent’s notice

47. C has lodged a Respondent’s notice alleging that the tribunal’s decision should be upheld on further or different grounds. These are:

i) That the tribunal erred in law in holding that it was possible to have a fair hearing in circumstances where C was accused of rape and the Secretary of State relied on a written statement from the victim without calling her or tendering her for cross examination; and

ii) That the tribunal should have concluded that consideration of S1’s evidence in this way amounted to a breach of Article 6 of the European Convention on Human Rights and Fundamental Freedoms.

48. Because I have concluded there was no error of law in the tribunal’s decision neither of these points arises. Suffice it to say that issues about listing under the 1999 Act are matters of considerable gravity and importance to the individual involved and to children generally. The tribunal does not operate with the formality of a criminal court. For example, any evidence may be considered, whether or not admissible in a court of law (Regulation 28(1)). Whether misconduct can be established under Section 4(3) on written evidence alone is something that will depend on all the circumstances of the individual case. Where, as here, the allegations are very serious and are challenged root and branch, the tribunal may be placed in serious difficulty in finding misconduct established without hearing oral evidence from the complainant.

Conclusion

49. I am unable to find any error of law on the part of the tribunal. Had C been convicted of an offence involving misconduct he would not have been able to challenge underlying facts before the tribunal. But that is not this case. In this case C was summarily dismissed because his employers were satisfied that S1’s allegations were made out. He took his case to an industrial tribunal. That tribunal held that:

“We unanimously conclude that on the facts we have found Mrs Askew had a genuine belief that both matters raised against C had been made out: that, on each of those matters, there was evidence to justify her belief and that that evidence had been gathered after as much investigation as was reasonable.”

But the tribunal in this case had to consider matters afresh and conclude whether or not the test in Section 4 of the 1999 Act was met. It concluded that it was not.

50. The Protection of Children Act Tribunal is set up with the specific expertise to resolve the present kind of case. Most of the Secretary of State’s grounds of appeal are in my judgment quarrels about the way in which the tribunal dealt with the facts, albeit dressed up as errors of law. In my judgment, the Administrative Court should be slow to interfere with the decision of a tribunal where, as here, its members are selected because of their particular expertise and in reality the issue is how it dealt with matters of fact. Accordingly this appeal fails.
51. There is one further matter. It relates to staying the tribunal decision. Having allowed C’s appeal, the tribunal directed the removal of C’s name from the list kept by the Secretary of State of those considered unsuitable to work with children. The Secretary of State did not comply with that order. C’s name must now be removed forthwith. The proper procedure for other cases in the future is for the Secretary of State to make an urgent application to the Administrative Court if, pending the outcome of an appeal by him, he seeks an order for the individual’s name to remain on the list. In the absence of such an order he has no option other than to remove it.
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MR JUSTICE SCOTT BAKER: For the reasons given in the judgment that has been handed down, this appeals fails.

MR COPPEL: My Lord, I am grateful. My learned friend, I know, will be making an application for costs, which I shall not be resisting. I do make an application, my Lord, for a stay of your Lordship's decision.

The appeal before your Lordship constitutes, I understand, my Lord, a second appeal, so permission is not sought from you but is, in fact, sought from the Court of Appeal direct on different criteria. But I do ask for a stay in the following terms, my Lord----

MR JUSTICE SCOTT BAKER: That is right, is it, that you do not have to get leave from me?

MR COPPEL: My Lord, that is my understanding on the basis of this being an appeal from a tribunal.

MR JUSTICE SCOTT BAKER: Right.

MR COPPEL: Therefore, accordingly, it is treated as a second appeal. It is never, I have to say, to me, entirely clear where the defining line is. Of course, I do not want to make a mistake but that is my reading of the various provisions. In those circumstances, my Lord, I do ask for a stay to be worded in the following terms: the decision of your Lordship's judgment, insofar as it has the effect of the removing the listing, be stayed for the later of 14 days, being of course the period within which any application for appeal has to be made, or the determination by the Court of Appeal on any application made by us and, if granted, the determination of that appeal itself. So that if we do not appeal then it expires at the end of 14 days and, if we do, or if permission is granted, then that appeal itself.

MR JUSTICE SCOTT BAKER: I do not imagine that is going to cause any problems, is it?

MR CROSFILL: My Lord, it is opposed, yes.

MR JUSTICE SCOTT BAKER: It is?

MR CROSFILL: Yes.

MR COPPEL: My Lord, the basis on which we make the application is this. If there is no listing pending an appeal, then there is a risk that the respondent will seek and obtain employment and of course there is absolutely nothing that the appellant can do to stop that from occurring, presumably, my Lord, if the respondent, as he is perfectly entitled to do, had been making an application to the Tribunal itself, which can only be presumably because that is what he purposed to do. So that is the first point.

The second point is this, my Lord, and even if no employment is secured in the period, if the appeal is upheld in the Court of Appeal, and the listing is upheld, then there is an issue about the integrity of the listing system because what will have happened, even if employment has not been secured, is that a person who ought to have been listed all the time will have been off the list. It is important from the Secretary of State's point of view to maintain public confidence in the integrity of the listing system.

MR JUSTICE SCOTT BAKER: Yes.

MR COPPEL: Then, on the other hand, one looks at what might be the detriments so far as the respondent to this appeal is concerned and your Lordship will remember from the hearing that the respondent has alternative employment, presumably continuing to this day. So he is not being deprived of his means of existence, and apart from that, and obviously I take on board your Lordship's point about the stigma attached to listing, but that stigma, in a sense, is already there, and for it to be continued a little further on, we say does not weigh terribly heavily.

MR JUSTICE SCOTT BAKER: So you are just asking for 14 days in order to decide whether to appeal?

MR COPPEL: Well it is 14 days -- it is the later of 14 days or the determination of the permission hearing and, if granted, the appeal itself, because otherwise, my Lord, if it is just 14 days and we put in an appeal, we have to reapply, I would prefer to have, as it were, an auto-executing stay, so that it lasts.

MR JUSTICE SCOTT BAKER: How long have you got to lodge an appeal?

MR COPPEL: Fourteen days, which is why I have taken 14 days exactly.

MR JUSTICE SCOTT BAKER: Yes. So you are simply saying that this is a matter of convenience which would run, if you do appeal, or seek permission to appeal, until the decision is adjudicated upon?

MR COPPEL: Exactly, my Lord.

MR JUSTICE SCOTT BAKER: Yes.

MR CROSFILL: My Lord, a stay should not automatically follow just because a party makes an appeal. It is a matter for the court's discretion. In the ordinary course of events a stay would only be granted where the harm would be irremediable were it not to be granted. In the present case, were C to get employment and the Court of Appeal to reverse your Lordship's decision, then the Secretary of State could of course direct any employer to dismiss C; that is something that is set out within the Protection of Children Act itself.

My Lord, I suppose the other side to the fear of what would happen were C to be freed to work with children, is the possibility of the appellant saying that he might harm a child, which is, of course, the essence of their case.

MR JUSTICE SCOTT BAKER: Is he likely to be doing anything in the way of applying for employment in the next few weeks?

MR CROSFILL: My Lord, he is not likely to be applying for employment directly with children. His circumstances are that he is now in a physical education structure. He is employed on a session basis. He has been asked in the past whether he takes sessions with children. He has made polite excuses and declined to do so because, although he would not be committing an offence, his employer would have been. So he is forced to continue to make those polite excuses all the time that he is on the register.

My Lord, his fears are that even if it comes to his employer's attention, and if he does not work with children, but he was on this register, his employer may decline to offer him further sessions with adults or with children, it is this harm to his reputation that he is afraid of. For him, the quicker he is off the list----

MR JUSTICE SCOTT BAKER: Well, I cannot see that the position would be any worse now than it has been in the past and I would have thought it better because he has succeeded in holding the decision.

MR CROSFILL: My Lord, yes, save that of course you would have to say, if the stay were granted, that he was not allowed to accept employment with children and, of course, that adds a little bit more stigma than saying

'I am allowed to but choose not to'.

MR JUSTICE SCOTT BAKER: What I am inclined to do is to grant the stay but give you liberty to apply to lift the stay if circumstances arise where that appears to be desirable.

MR CROSFILL: My Lord, if you are against us on the stay, which you clearly are, then perhaps the stay should be readdressed at the time of any permission hearing, the Court of Appeal could be seised with the merits of that appeal.

MR JUSTICE SCOTT BAKER: Well, I think that is right, is it not, the terms are 14 days or until determination of the permission?

MR COPPEL: The way I sought it, my Lord, was 14 days, failing that until the termination of the permission, and if permission is granted, then the determination of the appeal itself. So if permission is not granted then the stay falls away; if permission is granted it automatically extends. So that, in a sense, my learned friend is right, I am taking away from the Court of Appeal. But if the Court of Appeal has itself found that there are grounds for granting permission then I said that there are good grounds for extending the stay itself.

MR JUSTICE SCOTT BAKER: I think what I would be inclined to do is to grant the stay until the first determination of the Court of Appeal of the permission application. Thereafter, it is a matter for the Court of Appeal.

MR COPPEL: Well, my Lord, the reason I would prefer my wording is this. Your Lordship I think will be in a better position to adjudge the risk and the issues that are involved for the Secretary of State than a Lord Justice, even having considered the permission papers and that is the real question, I say, who is in the better position.

MR JUSTICE SCOTT BAKER: Then if the Lord Justice decides to refuse permission, your clients will then renew again. Well, there comes a point where it is a little hard for the stay to continue running.

MR COPPEL: My Lord, I do not mind it being done, it is simply the first permission, so that if we flop on the first permission application, then it behoves us to make application to extend the stay.

MR JUSTICE SCOTT BAKER: Yes, that is what I had in mind.

MR COPPEL: But if permission be granted----

MR JUSTICE SCOTT BAKER: If permission is granted then the judge who grants permission will be in quite a good position to decide whether or not there ought to be a stay.

MR COPPEL: My Lord, I do not press the matter because----

MR JUSTICE SCOTT BAKER: I mean I would have thought that if you get permission you are likely to have the stay extended.

MR COPPEL: One would like to think so, my Lord.

MR CROSFILL: My Lord, then I seek an order that the appellant pay the respondent's costs. The respondent is publicly funded and I ask for an order for his costs subject to detailed assessment.

MR COPPEL: No opposition to that, my Lord.

MR JUSTICE SCOTT BAKER: Very well, thank you.

MR COPPEL: I am grateful, my Lord.

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