First-tier Tribunal (Health Education and Social Care Chamber)

Linton v Secretary of State for Children Schools and Families [2008] UKFTT 2 (HESC) (12 November 2008)
Brian Malcolm Linton -v- The Secretary of State for Children Schools and Families
Application No. [2008] 1287.PC
Brian Malcolm Linton -v- The Secretary of State for Health
Application No. [2008] 1288.PVA
Before: Mr John Reddish (Chairman) Mrs Susan Howell Mr Paul Thompson

Hearing dates: 20, 21, 22 and 23 October 2008

Application

On 9 April 2008 the Applicant appealed under section 4(1)(a) of the Protection of Children Act 1999 against the decision of the Secretary of State for Children, Schools and Families to include him in the list kept under section 1 of the Protection of Children Act 1999 (the "POCA" list) and also appealed under section 86(1) of the Care Standards Act 2000 against the decision of the Secretary of State for Health to include him in the list kept under section 81 of the 2000 Act (the "POVA" list).

Representation

At the hearing Miss Maya Lester of Counsel, instructed by Mr Andrew Jack of the Treasury Solicitors, represented the Respondent Secretaries of State. The Applicant represented himself.

The evidence

The Tribunal heard oral evidence on behalf of the Secretaries of State from:

Mr Stephen Reeves, the Head of Safeguarding for the Scout Association;

Miss Sana Bhopal, a history teacher at a special school in Middlesex;

Mr Nikolas Norman, a senior teacher at the same special school; and

Mr Greig Chandler, an instructor in music and drama who was employed at the same special school from January 2005 until May 2006.

The Tribunal also received written evidence on behalf of the Secretaries of State from:

Detective Constable Nicola Wood of the Thames Valley Police Force;

Ms Kate Thomas, the Notifiable Occupations & Family Court Disclosure Officer for the Thames Valley Police Force;

Mr Simon Aulton, an Officer of the Scout Association;

Ms Margaret Poland, formerly the Child Protection Co-ordinator for the Scout Association; and

Mr Stephen Barber, the Child Protection Adviser to the Diocese of Oxford.

The Tribunal heard oral evidence on behalf of the Applicant from:

the Applicant himself;

Mr Malcolm Hathaway, a Scout Leader;

the Applicant's grandson, J.;

Mrs Andrea Childs, the County Explorer Scout Administrator for Greater London Middlesex West, formerly the District Explorer Scout Commissioner for the Uxbridge District; and

the Applicant's wife, Mrs Margaret Linton.

The Tribunal also received written evidence on behalf of the Applicant from:

the Applicant's granddaughter, A.;

Mr J Carter, the Premises Manager of a College in Uxbridge;

Mr David Browning, the Chief Buyer for a building company and a Scout Commissioner;

Mr Frederick Webb M.B.E., the Chairman of the Hayes and Harlington District Scout Council; and

Mr John Childs, a Group Scout Leader in Uxbridge.

The Tribunal also read the documents submitted by the parties comprised in a binder, sub-divided into 76 sections and including the police log relating to the case maintained by the Thames Valley Police Force from 17 June 2005 to 14 November 2005; the record of the police interview of the Applicant conducted on 4 July 2005; correspondence between the Thames Valley Police Force and the Treasury Solicitors; minutes of two strategy meetings held by the London Borough of Hillingdon in June 2005; correspondence between the London Borough of Hillingdon and The Scout Association; correspondence between a solicitor acting on behalf of the Applicant and the London Borough of Hillingdon; various policy documents and forms issued by The Scout Association; the Applicant's application form for appointment as an Adult Member of The Scout Association; documents relating to the Child Protection Awareness Programme run by The Scout Association; correspondence between The Scout Association and the Applicant; correspondence between The Scout Association and the Secretaries of State and correspondence between the Secretaries of State and the Applicant. The Tribunal also viewed the videotape of an interview of S., conducted by a Detective Sergeant Cater of the Thames Valley Police Force in the presence of S's social worker on 17 June 2005.

Preliminary matters

On 28 July 2008 the Deputy President made an order, pursuant to regulation 18(1) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, prohibiting the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to the identify any child. That order applied until the conclusion of the hearing. The Tribunal decided to extend the order indefinitely.

Facts

The material facts found by the Tribunal are as follows:

1. The Applicant was born in 1947 and is now 61 years old. He has been married for 39 years. He lives in Berkshire with his wife and two of his four grandchildren. He is an electrician by trade and he has worked for the Ministry of Defence and for a variety of public and private companies, usually engaged in the maintenance of fire and intruder alarm systems. Throughout his working life the Applicant has also worked, usually as a volunteer but occasionally for reward, as a youth leader, particularly, but not exclusively, as a member of The Scout Association. He also undertakes other voluntary work. He is a churchwarden at his local parish church and he raises funds for a variety of charitable causes.
2. The Applicant first became an Assistant Scout Leader in south London in 1968. He continued in that role when he moved to Kent in 1971. Whilst living in Maidstone, the Applicant qualified as a youth leader and ran a youth club. From 1977 until 1979 he was a Group Scout Leader in Dover. Following a change in his employment and a move to Middlesex in 1979, the Applicant took a break from scouting activities but continued to work with young people as part of a team organised by the London Borough of Hillingdon. In 1988 the Applicant was again appointed as a Scout Leader and he continued to hold warrants, either as an Assistant Scout Leader, a Scout Leader, an Explorer Scout Leader or an Assistant Group Scout Leader until he was suspended and subsequently dismissed from The Scout Association in 2005.
3. On 17 July 2000 the Applicant signed an application form for appointment as the Leader of a Scout Group in Hillingdon and agreed "to work within the policies and rules of The Scout Association and its code of behaviour and advice on Child Protection".
4. The Applicant and his wife had three daughters. In 2002, their second daughter was unlawfully killed by her partner. The Applicant and his wife care for their deceased daughter's children, J and A. They have parental responsibility for them. J has moderate learning difficulties and now attends a College of Further Education. A attends a local mainstream secondary school.
5. From 2001, J (who had the benefit of a statement of his special educational needs) attended a special school in Middlesex for pupils aged 11 to 19 with a variety of learning difficulties. The Applicant and his wife took a keen interest in their grandson's education and supported his school whenever they could. Mrs Linton was appointed as a governor of the school and the Applicant assisted in the organisation of out-of-school activities for the pupils.
6. S was born in 1990. She lived with her family in Middlesex until about 2000 when her parents rejected her. She was then taken into the care of the London Borough of Hillingdon and was placed with experienced foster parents. Several unsuccessful attempts were made to rehabilitate her with her family. In 2002, it was agreed and arranged that S would remain with her foster parents on a long-term basis. As the result of her unsatisfactory and unhappy experiences in early life, S frequently indulged in attention-seeking behaviour. She often sought physical contact with adults and was liable to take hold of and hug anyone for whom she felt affection. Those who knew her and wished to convey to others that her actions might be thought to be inappropriately unrestrained, described her as a "tactile" or "touchy-feely" child.
7. In 2001 S's foster parents introduced her to the Scout Group run by Mrs Childs and she became a very keen member of that Group. When she attained the age of 14 in 2004, S became an Explorer Scout. In accordance with the usual arrangements in The Scout Association, she then took part in activities organised by her own and by other Explorer Scout Groups. S also became a "Junior Leader" and assisted the Leaders of groups of Beavers (aged 6 to 8) and Cubs (aged 8 to 10½).
8. The Applicant and his wife got to know S as an Explorer Scout and as a friend and contemporary of J. They had frequent contact with her and regularly welcomed her into their home. S took part in several activities organised and led by the Applicant, including a boating trip on the Norfolk Broads in May 2005. Mr and Mrs Linton were very friendly with S's foster parents.
9. On 24 November 2004 the Applicant successfully completed the "Keeping Children Safe" Child Protection Awareness Programme run by The Scout Association in connection with the St John's Ambulance Brigade and the NSPCC. As part of that Programme the Applicant was reminded not to allow or engage in inappropriate verbal or physical contact of any description with a child and to remember that "someone else, in particular a child" might misinterpret his actions. He was also told that "giving the child alcohol, poison or inappropriate drugs" would constitute physical abuse. Finally, the Applicant was enjoined to ensure that his own behaviour was "appropriate at all times and never believe that 'it won't happen to me'".
10. In 2005 the Applicant arranged to take some of the pupils and staff of J's school on a day trip to the 60-acre Scout Association camp site near Chalfont St Peter called "Chalfont Heights" to take part in some of the activities regularly undertaken there, including air rifle shooting and archery. The trip was successful. The Applicant then agreed with Mr Norman that he would organise a weekend camping trip to Chalfont Heights for some of the school's Year 10 pupils, including J. He did so partly because he knew that such a trip would be enjoyable and beneficial for J and the other pupils and partly because he hoped that it might lead to the establishment of an Explorer Scout Group in the school.
11. Mr Norman and the Applicant agreed that they would take 10 pupils aged 14 to 15 (8 boys and 2 girls), all of whom had special educational needs, to stay under canvas at Chalfont Heights from Friday 10 June to Sunday 12 June 2005. Mr Norman recruited two junior members of the school staff (Miss Bhopal and Mr Chandler) to attend with him as supervisors for the whole weekend. The Applicant secured the services of his Scouting friends, Mr Hathaway and Mr Webb to lead activities on the Saturday and Sunday.
12. The Applicant realised that he would require further assistance in setting up and breaking the camp from someone with experience of camping because none of the school staff had any. He also reasoned that his assistant should be female so that she would be able to help Miss Bhopal in supervising the female pupils. The Applicant asked his wife to help. Mrs Linton declined to attend for the whole weekend because she felt that, as she was a governor of the school, her presence might be intimidating for the teaching staff. However, she agreed to assist with the catering on the Saturday. The Applicant then approached two of the experienced female Explorer Scouts in his Group but they were both unable to make themselves available because of other commitments. With some reluctance, the Applicant asked S to provide the assistance he required. The Applicant and his wife had reservations about S going to the camp because, on a previous trip, she had been over friendly towards him and others. S had had to be warned about this behaviour by another Scout Leader. When the Applicant approached S, she readily agreed to assist and her foster parents gave their permission for her to attend.
13. When the date for the camping weekend was fixed, the Applicant was aware that the trial of the man accused of murdering his daughter was imminent but he had not been informed exactly when that trial would commence. The Applicant knew that he and his wife would be required to attend the trial as witnesses.
14. The plans for the camping weekend, formulated by the Applicant and Mr Norman, were that the male pupils would sleep in two tents, each with an informal "tent leader" (namely J and his friend and fellow pupil, M) and the female pupils would sleep in a tent with S as their "tent leader". The adult males would sleep in the Applicant's 8-man frame tent (designated as the "Leaders' Tent") which had two sleeping compartments and a seating area. Miss Bhopal would have a tent of her own. There would be a large "mess tent", in or near which food would be prepared and the party would take their meals. These plans were put into effect save that, on the Friday night, after one of the female pupils had been violently sick in the girls' tent, S declined to sleep there and she had to be accommodated in Miss Bhopal's tent.
15. In the week commencing 6 June 2005, the Applicant and his wife were informed that the trial in Birmingham, which they were required to attend would commence on Monday 13 June 2005.
16. On the morning of Friday 10 June 2005 Mr Norman drove the pupils to Chalfont Heights in the school mini-bus and Miss Bhopal and Mr Chandler travelled there in Miss Bhopal's car. They all arrived at about 10.30 a.m. The Applicant was already on the site. He had delivered various items of camping equipment. He made a start on the erection of tents and then went off to work. The Applicant returned at about 5.30 p.m. S was delivered to the site by her foster parents at about the same time. The Applicant completed the erection of the tents, assisted by S and J. Mr Norman, Mr Chandler and Miss Bhopal rendered such assistance as they could, having regard to their lack of experience and their duties as supervisors of the other pupils.
17. Mr Norman, Miss Bhopal and Mr Chandler had not met S before. Mr Chandler was not aware that she would be attending the camp. Miss Bhopal was aware that an unidentified girl from another school would be there. Mr Norman knew that a 15½-year old girl "from the Scouting fraternity" would be attending to "help organise the camp". The Applicant did not give the teachers any information about S's circumstances or background and did not warn them that she might behave in a manner which they might find surprising and/or inappropriately unrestrained.
18. During the Friday evening the party collected firewood; played a variety of games; had a meal prepared by Mr Norman, the Applicant and S and sat around a camp fire, drinking hot chocolate.
19. After midnight, when the pupils had been settled in their tents, the adults relaxed together. The Applicant, Mr Norman and Mr Chandler consumed alcoholic drinks, supplied by the Applicant. He had brought, from his home, some beer and a variety of spirits, including whisky and vodka. Miss Bhopal joined the group of adults only briefly because she had to attend to the female pupil who had been sick. Miss Bhopal did not drink any alcohol. She does not do so, in accordance with the principles of her religion.
20. Recollections vary as to whether S drank alcohol on this night. She joined the adults around the fire or in the open seating area of the Applicant's tent and took some refreshment. This may have been one of the soft drinks that she had purchased and brought with her, along with some confectionery, for her own consumption and that of the pupils whom she expected to be leading. Mr Norman accepted that, since S was "a helper", it was not inappropriate for her to join the group of adults. Mr Chandler recalls that S drank alcohol on both the Friday and Saturday nights and that the alcohol was "Smirnoff Ice", which he easily recognised. In her statements to the school and to the police, Miss Bhopal supported Mr Chandler's account but she later retracted in part and said that she was only able to recall S drinking on the Friday night. Mr Norman recalls that S drank a coloured liquid from a bottle and that he assumed it was an "alcopop". He is well aware that "Smirnoff Ice" is a clear liquid. The Applicant is sure that S did not drink Smirnoff Ice on the Friday evening because he did not acquire a supply of that drink until the following day. He recalls that S consumed only soft drinks on that night.
21. Mr Chandler noticed that the Applicant and S were "very touchy feely together". He concluded that they "knew each other well". During the drinking session on the Friday night, Mr Chandler saw the Applicant touching S. He formed the impression that this touching was "sensual" and says that he "exchanged glances" with Miss Bhopal, implying that they silently agreed that the touching was surprising and inappropriate. Miss Bhopal does not share that recollection.
22. On one occasion during the Friday night gathering, S sat down on the ground between the Applicant's legs when the Applicant was sitting in a chair. Using a light-hearted tone of voice and gentle prodding, the Applicant told S that she must move from that position and persuaded her to do so. Mr Chandler saw this. He agreed in oral evidence that the Applicant quickly asked S to move when she placed herself in what was obviously an inappropriate position.
23. Mr Chandler also said in oral (though not in written) evidence that he saw S sit on the Applicant's lap. No one else recalls this but the Applicant admitted to the police that it happened. He said that he told S that he was "not having that" and "moved her over".
24. Miss Bhopal noticed that the Applicant and S seemed very comfortable with each other but, since she joined the group only briefly, she made no other, more specific observations, save that she saw the Applicant and S tickling each other, on this and several other occasions during the weekend.
25. Mr Norman felt that the relationship between the Applicant and S was "slightly odd" but he saw no physical contact, inappropriate or otherwise, between the Applicant and S.
26. After he had retired to one of the sleeping compartments of the Leaders' Tent, Mr Chandler heard the Applicant and S talking and laughing together. He thought that the Applicant and S were, or might have been, inside the other sleeping compartment of the Leaders' Tent. When he awoke and emerged on the following morning, Mr Chandler saw that both the Applicant and S had already risen. He recalls that he entertained the thought that the Applicant and S might have spent the night together in the other sleeping compartment of the Leaders' Tent. However, he said nothing and made no enquiries of Miss Bhopal. She would have been able to tell him that S had, in fact, spent the night in her tent.
27. On the morning of Saturday 11 June 2005 the Applicant, Mr Norman and S made breakfast for the whole party and washed up afterwards. Mr Chandler and Miss Bhopal attended to their own ablutions and those of the pupils.
28. Later on the morning of Saturday 11 June 2005 Mrs Linton arrived at the site with her granddaughter, A. Mr Hathaway arrived at the same time. Mrs Linton and A prepared lunch for the whole party, assisted by Mr Norman.
29. At about 11 a.m. on the Saturday the Applicant told Mr Norman that he would have to visit a local supermarket to acquire a supply of flour for use in the cooking activity that Mr Hathaway would later be leading. Mr Norman suggested that the Applicant might also acquire, at his expense, some more alcoholic drinks to replace those consumed the night before.
30. The Applicant visited a local supermarket and purchased the required items. He also purchased some cans of lager and some bottles of Smirnoff Ice. At this stage the Applicant was unaware that Miss Bhopal did not drink alcohol and thought that the vodka-based cocktails might be suitable for consumption by her.
31. At one point during the Saturday morning activities S, who had been wearing long trousers, asked the Applicant for permission to change into her shorts. The Applicant told S to "do whatever she had to do". Miss Bhopal recalls that the Applicant told S to "go and strut her stuff". The Applicant denies that he said this and says that he would never have used such a phrase.
32. After lunch on the Saturday Mr Chandler noticed that Mrs Linton was sitting apart from the Applicant and S (who were sitting together, making plans for a "wide game" to be played by the pupils that evening) and that she appeared to be unhappy. On an earlier occasion, Miss Bhopal had noticed that Mrs Linton appeared to be strangely detached from the Applicant and S. Both Mr Chandler and Miss Bhopal wrongly concluded that the source of Mrs Linton's unhappiness was the attention that the Applicant and S appeared to be paying to each other. In fact, Mrs Linton was reflecting upon the fact that, during the following week, she would be attending the trial of the man accused of the murder of her daughter and was therefore, as she put it, feeling "wistful". Mr Chandler and Miss Bhopal were unaware of the relevant personal circumstances of the Applicant and Mrs Linton.
33. During the Saturday afternoon several of the pupils went to the swimming pool on the site, supervised by Miss Bhopal, Mr Chandler and S. One of the female pupils unexpectedly jumped into the pool fully clothed. After she had been extracted from the water, it was discovered that she did not have other clothing into which she could change. S offered spare clothing of her own. Later, when S needed a sweat shirt, to give her a necessary additional layer of clothing as the temperature had dropped, she asked the Applicant to lend her one. The Applicant told her to take a shirt from the collection of spare clothing that he had brought with him, anticipating, as he always did when camping, that some might be needed. S, accompanied by A, went to the Leaders' Tent; collected a spare sweat shirt and put it on. When Miss Bhopal later commented to S that she appeared to be wearing one of the Applicant's shirts, S was dismissive of her concerns and said that she often wore the Applicant's clothes.
34. Also during the Saturday afternoon, J became upset. He told Miss Bhopal that S "was always interfering in everything". Miss Bhopal wrongly concluded that J was resentful of the attention given by the Applicant to S. In fact, J was upset because he felt that he been placed in a difficult position by S. J's friend M (who had similar learning difficulties) had told S that he wanted her to be his girlfriend. S had politely rejected M's naïf, amorous advances. This caused confusion for both J and M. J felt that he was in danger of losing the friendship of both M and S and briefly became over-emotional.
35. Later on the Saturday afternoon, the Deputy Head Teacher of the school, Mrs Jane Wingrove (who is Mr Chandler's mother and was then the school's Child Protection Officer) visited the site, bringing with her several bottles of wine for the adults to consume with their evening meal and some sweets and other confectionery for the pupils.
36. On the Saturday evening the pupils took part in and enjoyed the "wide game" organised by the Applicant and S. They were required to attempt to find S (who had hidden herself in the nearby woods) and at the same time to avoid the Applicant, who would try to intercept them. Thereafter, the group returned to the camp site and, after some time around the camp fire, the pupils other than J retired to their beds.
37. Again, the adults (including, for part of the time on this occasion, Mr Webb) relaxed and consumed the drinks brought by the Applicant, either from his home or from the local supermarket, and the wine supplied by Mrs Wingrove. J (who felt able to stay up later than the other pupils because he was in the company of his grandfather) and S (who felt that she was "classed as a leader") joined the adults. J asked the Applicant whether he could have a bottle of the Smirnoff Ice. The Applicant, after asking Mr Norman whether he had any objection and receiving a negative response, allowed J to take and consume one of the bottles. When S arrived at the camp fire (having been to visit the "maintenance crew" of the site of which she aspired to be a member) she took a bottle of the Smirnoff Ice and began drinking it. The Applicant saw this but raised no objection, feeling that he should extend the same indulgence to S as he had shown to his grandson.
38. After the gathering around the camp fire had broken up, Mr Chandler accompanied Miss Bhopal down the path to the toilet block. The Applicant and J were walking ahead of them. Mr Chandler and Miss Bhopal saw S run up behind the Applicant and his grandson and link arms with them. They also heard much laughter which they later described as "giggling". Shortly thereafter, they again saw the Applicant and S standing together outside the toilet block, waiting for J to emerge. Miss Bhopal and Mr Chandler later attached significance to these encounters. They reasoned that they involved inappropriate physical contact between the Applicant and S and also that they involved S and the Applicant being alone together.
39. During breakfast on the morning of Sunday 12 June the Applicant commented to Miss Bhopal on the presence of a blackbird in a nearby tree. S, in an attempt to appear sophisticated and "adult", made a tasteless comment to Miss Bhopal to the effect that the Applicant, far from making an innocent ornithological observation, had just made a "kinky" reference to her. Miss Bhopal thought that this was "really inappropriate". She later took S's remark to be evidence that her relationship with the Applicant was sexual.
40. During the Sunday morning the Applicant and S took the pupils to take part, with Mr Webb, in shooting and archery, which took place elsewhere on the site. Mr Norman, Mr Chandler and Miss Bhopal stayed behind to clear their site in preparation for departure. When the Applicant and S returned with the pupils at about noon, several tents were still standing. The Applicant was anxious to clear the site and to leave as early as possible because he knew that he had to deliver J and A to their aunt's home in Essex before travelling with his wife to Birmingham on that evening.
41. The Applicant asked Mr Norman whether he might be afforded some assistance in breaking camp. Mr Norman told him that he had to return the pupils (other than J) to the school to be collected by their parents and that Mr Chandler and Miss Bhopal were similarly unable to stay behind. The Applicant had earlier asked Mr Norman to take S with him in the mini-bus and to deliver her to her foster parents' home. It was apparent to the Applicant that he would need greater assistance than that which J would be able to provide. S offered to help. The Applicant then told Mr Norman that he proposed to keep S with him and to return her home himself, so that she would be available to assist him and J in dismantling the tents and loading his other equipment on to his van. Mr Norman agreed that this would be the appropriate course.
42. Mr Norman, Miss Bhopal and Mr Chandler took the pupils to the car park and began loading them and their luggage on to the mini-bus. J said goodbye to his fellow pupils and returned to the site to assist the Applicant and S. It then became apparent that some of the pupils' luggage might have been left behind on the site. Mr Chandler and three of the pupils, including B, returned to the site to search for and collect the missing items.
43. On the site, the Applicant, J and S were engaged in dismantling tents. The Applicant was on his knees in the entrance to the Leaders' Tent, folding one of the inner compartments, which he had detached from the main structure. S, in mischievous mood, jumped on to the Applicant's back and pulled at his clothing so that his trousers came down partially, revealing his underwear. The Applicant asked S to desist. When she failed to do so, he rolled her from his back on to the ground and stood up over her until she scrambled away. All of these activities were accompanied by S's laughter and the Applicant's increasingly irritated protests. The Applicant was more irritated than amused by S's behaviour because he was anxious to complete the packing of the tents expeditiously. In an attempt to dissuade S from further "mucking about", he took hold of the strap of her bra from outside her shirt and snapped it against her skin, so as to cause her momentary, sharp pain.
44. All of these activities were observed by Mr Chandler as he approached with the pupils he had recruited to assist him in retrieving the stray luggage. Mr Chandler quickly formed the view that something very unsavoury was going on. He thought that the physical contact he was witnessing was (as he later put it) "way inappropriate". He saw that the Applicant's trousers had come down. He interpreted the Applicant's "pinging" of S's bra as an attempt to remove that item of her clothing. He thought that he was witnessing a sexual encounter. Mr Chandler took steps to distract the pupils who were with him and, feeling awkward and embarrassed, he approached the Applicant, who was still on his hands and knees folding part of the tent. S was still in the vicinity and was still endeavouring to make physical contact with the Applicant. Mr Chandler shook hands with the Applicant, uttered a few words of uneasy valediction and retreated to the car park with his three pupils.
45. In the car park Mr Chandler told Miss Bhopal what he had seen and what he surmised had been happening. In the subsequent discussion, Miss Bhopal supported the notion that the relationship between the Applicant and S was "sexualised" by reference to her recollections of various incidents during the weekend. Mr Chandler contributed similar recollections of his own. In the course of the conversation, some of the recollections were embellished and distorted. Mr Chandler and Miss Bhopal came to the unjustified conclusion that they had witnessed "sexualised" behaviour indicating that the Applicant had a sexual interest in S that she encouraged and welcomed. All of the matters that they persuaded themselves were sinister were not. The Applicant was not "grooming" S. There was no significance in the fact that S had borrowed some of the Applicant's spare clothing. The touching was not "sensual" and the conversation was not laced with sexual innuendo. In the words of Detective Sergeant Cater (used when he was explaining to S why she had been interviewed), they "put two and two together and made five".
46. On 17 June 2005, at the request of Mrs Wingrove, Mr Chandler wrote a brief note of his "Concerns re Mr Linton and S". He recorded, amongst other things, that the Applicant was "lying over (on top) touching her and tickling her"; that S "reached behind her back to her bra fastening" and "at that point, Brian quickly put his hand up the back of her T shirt and appeared to grab at her bra". Mr Chandler also wrote down that: "As soon as I shook his [the Applicant's] hand, S grabbed hold of his waist and tried to pull him down. He then grabbed her and got her down on her back. He carried on touching her all over."
47. On 17 June 2005 Miss Bhopal, at the suggestion of Ms Gamble (another teacher with responsibilities for child protection) also wrote out an account of the "Camping Weekend". This was later transcribed to improve its legibility. Miss Bhopal said that the Applicant and S "were very 'touchy feely'" and that, initially, she "didn't think much of it" but she later changed her view. She recorded that S had told her that she always wore the Applicant's T-shirts and that S had made a remark which led her to conclude that "maybe S didn't see Brian as a father figure after all". Miss Bhopal also recorded that S "had a couple of bottles" of Smirnoff Ice provided by the Applicant.
48. On 17 June 2005 the London Borough of Hillingdon held a strategy meeting, chaired by the Principal Child Protection Reviewing Officer. The meeting was told that the Applicant "brought with him Smirnoff Ice and S had four bottles on the Friday night and two bottles on the Saturday night". The meeting was also told that Mr Chandler had seen S "lying prone on the floor, half in and half out of Mr Linton's tent" with "Mr Linton leaning over the top of her … undoing S's bra".
49. Later on 17 June 2005 Detective Sergeant Cater interviewed S in the presence of her social worker. The interview was recorded on videotape. S explained that she was "classed as a leader" and so "stayed up pretty late" during the weekend. In response to a question about her relationship with the Applicant, S said that they had "play fights" and that they "mucked around", pushed each other over and tickled each other. S added that the Applicant understood her and was supportive of her and that she felt comfortable with him. When asked about specific incidents during the weekend, S said that the Applicant had "pinged" her bra and explained that boys often do that to girls. She denied, unconvincingly, that she had consumed any alcohol. Finally, she said to the interviewing officer: "Nothing happened, I promise".
50. On 19 June 2005 a police officer recorded in the log relating to the case that "witness reports that suspect gave aggrieved 8/10 bottles of Vodka Smirnoff Ice over the weekend" and that a witness "saw aggrieved lying half way out of tent with suspect on top of her: he was trying to remove her bra".
51. On 20 June 2005 Miss Bhopal made a statement in writing to the police. She reported that, on the Saturday night, S "was drinking Smirnoff Ice again". She also repeated and amplified the account she had written down before and added some details of her conversations with S as well as her allegations relating to the Applicant's response to S's request for permission to change into shorts and S's response to the Applicant's comment about a blackbird.
52. On 20 June 2005 the London Borough of Hillingdon held another strategy meeting, again chaired by the Principal Child Protection Reviewing Officer. The meeting was informed that S had been interviewed and had "disclosed nothing" but that the interviewing officer and the social worker felt that she had been unconvincing in her denials. She had "remained very defensive and was protective of Mr Linton". The meeting was also informed that S's foster father was "aware that Mr Linton was over familiar with S … and that if he did not know any better, he would think something was going on".
53. On 21 June 2005 Mr Norman made a statement in writing to the police. He said that he "had felt uncomfortable about the situation at the camp" and that this was "more to do with S's age than anything else". He reported that Mrs Linton had taken photographs of the activities and that there had been "a funny atmosphere during the Saturday evening … due to S being present with the adults". However, he saw "no physical contact between Brian and S during the weekend."
54. A few weeks after the weekend of 11-12 June 2005, B's mother told Mr Chandler and Mrs Wingrove that B had been distressed upon his return from the camp. Mr Chandler deduced that B had been adversely affected by witnessing the activities of the Applicant and S immediately prior to the departure. At about the same time B's mother spoke to the Applicant, whom she knew well. She made no accusation or comment to the Applicant that he had, by his behaviour, caused distress to her son.
55. On 4 July 2005 the Applicant was arrested on suspicion of having engaged in sexual activity with a child contrary to section 9 of the Sexual Offences Act 2003. He was interviewed at length by Detective Constable Wood. The Applicant explained that S was "a touchy person" who would "come up behind you and … put her arm round you". On the Norfolk Broads she had "started wanting to muck about" and had sat on his lap. When asked about the events on the site on Sunday 12 June, the Applicant said that he had asked S to clear up the kitchen area but she had jumped on his back and pulled the back of his trousers down. He added: "I turned around and I admit this was wrong and I should never have done it but I did because I was angry … I flicked the back of her bra … and said stop it … you can't do this". The Applicant agreed that it was "a wrong decision" to allow S to stay with him on the Sunday after "they had all gone off" and repeated that he "turned around and as quick as a flash … pinged the back of her bra" when he was "probably under a bit of stress". He also agreed that that "wasn't appropriate and it should never have happened".
56. In response to questions about the consumption of alcohol, the Applicant said that there was no drinking until the children had gone to bed; that he "just had a whisky" and that S "might have had a vodka with a drop of Coke". He insisted that S "never had a Smirnoff Ice on Friday night" because had had not bought the Smirnoff Ice until the Saturday morning. The Applicant strenuously denied that he had purchased the Smirnoff Ice specifically for S.
57. Detective Constable Wood put to the Applicant that he had touched S's bottom over her clothing; stroked her back and touched and stroked her leg and knee. The Applicant described these allegations as "absolute rubbish". He agreed that he had tickled S once "at the bottom of the rib cage" when there were other people around. When DC Wood insisted that a witness had seen him "on top of S" with his hands "over her breasts … and her bottom" and with her "bra strap hanging down from under her top", the Applicant repeatedly said that these allegations were "absolute rubbish". He said: "I turned round and pinged the back of her bra and that was it".
58. The Applicant protested to DC Wood that he "would never hurt S at all" because she looked to him "as a father figure" and that he had "never ever touched her in any inappropriate way whatsoever".
59. On 26 July 2005 Mrs Childs made a statement in writing to the police. She said she had faith in the Applicant and trusted him. She described S as "demonstrative and tactile … with both males and females".
60. On 28 July 2005 Detective Constable Wood spoke to S. S told Ms Wood that she had been given alcohol by the Applicant and that, during the camp, she had pushed the Applicant and that this had "led him to get on top of her astride her legs and tickling her". Ms Wood recorded: "no criminal offence disclosed although actions by suspect are inappropriate".
61. On 25 August 2005 Ms Wood informed the Applicant in writing that no further action would be taken against him by the police.
62. On 26 January 2006 Mr Richard Nash, a Team Manager with the Social Services Department of the London Borough of Hillingdon wrote to Mr Aulton of The Scout Association. He said that "two members of staff from the school … had observed Mr Linton continually seeking out physical contact that included cuddling, tickling and generally being with a female 'helper'" and that the staff "also observed Mr Linton giving this young person alcohol". The staff had described the behaviour they saw as "more in keeping with a couple … in a relationship than appropriate adult and child interaction". His Department had concluded that "the allegations" were "likely to have taken place" and they were therefore making "the clear recommendation" that the Applicant "should not have contact with children via the Scouting Movement and that to allow him to do so in the light of this information would place children at risk of significant harm".
63. Upon receipt of Mr Nash's letter, Mr Aulton spoke to S's social worker on the telephone. She said that "they didn't think Linton should be allowed to work with young people as they were concerned that he had an inappropriate sexual interest in teenage girls". Mr Aulton requested that this be put in writing.
64. On 2 February 2006 Mr Aulton produced a report in which he reviewed the Applicant's case for The Scout Association. He summarised the facts as he understood them and concluded that the Applicant did not have a deliberate plan to be alone with S but had adopted a "cavalier approach" to the child protection policy. There had been "horseplay" between the Applicant and S and the Applicant had "handled the situation badly". The Applicant's actions were not "intentionally abusive, however they were clearly inappropriate". "Without changes" it was not possible to feel sure that "a similar situation would not happen again".
65. On 21 February 2006 Mr Nash wrote to Mr Aulton again. He said that the Applicant had been discovered "positioned on top of this child, removing her bra from underneath her top whilst he attempted to undo his trousers". He also said that the Applicant "was described as being shocked and embarrassed by being seen with this child in this way" and had gone "into a tent to compose himself before speaking with the staff from the school". During his police interview the Applicant had agreed "that he had supplied alcohol to the child in question, although this was only after the Police had confronted him with the receipt from the shop where he purchased the alcohol". Accordingly, his Department had made "the clear recommendation" that the Applicant "should not have contact with children via the Scouting Movement and that to allow him to do so in the light of this information would place children at risk of significant harm".
66. On 10 March 2006 the Greater London Middlesex West Scout County Appointments Sub-Committee met. They considered the report by Mr Aulton, part of a letter from DC Wood (in which she said that, while the Applicant's actions were not criminal, they might be deemed inappropriate) and the letters from Mr Nash of Hillingdon Social Services. In the light of the fact that the Rules of The Scout Association provided that no adult could be appointed where there existed a current adverse reference from a statutory body, the Sub-Committee felt that they had no alternative but to cancel the Applicant's membership of the Association. The letters from Mr Nash constituted such an adverse reference. The Sub-Committee commented that this was "an unfortunate end" to the Applicant's membership of the Association and agreed to delay the issue of the letter of cancellation to enable the Applicant to approach the London Borough of Hillingdon to secure the withdrawal of the adverse reference if he could.
67. The Applicant approached Mr Nash and asked for a meeting with him. Mr Nash declined to speak to the Applicant.
68. On 24 March 2006 Mr Edward Peck, the Chairman of the Greater London Middlesex West Scout County Appointments Sub-Committee, formally notified the Applicant that his membership of The Scout Association had been withdrawn.
69. In July 2006 the Applicant was appointed as the Group Chairman of a Scout Group in Hillingdon. This was an administrative post which did not involve direct contact with children. The Applicant was nominated for the post by Mr Michael Enskatt who believed that The Scout Association had been wrong to dismiss the Applicant. The Applicant had widespread support from the members of the Group and their parents. He accepted the nomination on the basis that he was "in dispute" with the Association.
70. On 21 July 2006 the Secretary of The Scout Association wrote to the Applicant and required him to resign from the position of Group Chairman. The Applicant did so. Mr Enskatt subsequently resigned from The Scout Association.
71. On 25 September 2006 Mr Barber of the Diocese of Oxford contacted Ms Poland, then the Child Protection Co-ordinator for The Scout Association, to discover what the Association "had on file" about the Applicant. Mr Barber was interested because he knew that the Applicant had become the governor of a school and a churchwarden in Berkshire. On 27 September 2006 Ms Poland referred Mr Barber to Hillingdon Social Services and informed him that the Applicant was "being considered for referral to the PoCA list as it was regarded that the circumstances of his dismissal met the PoCA criteria".
72. In November 2006 the Applicant instructed a solicitor to write on his behalf to the London Borough of Hillingdon. The Applicant's solicitor wrote three letters, to which he received no replies.
73. In November 2006 The Scout Association issued a document entitled "Alcohol and Scouting". This contained a re-statement of the previously unwritten but widely accepted principle that "under no circumstances should young people under the age of 18 be allowed to consume alcohol during Scouting events". It was issued as a robust response to the suggestion made by some Scout Leaders that the Association's policy might be relaxed to allow the limited consumption of alcohol by Explorer Scouts, with parental consent and under close supervision, to discourage excessive, clandestine consumption by teenage Explorers during camping and other events. The document also re-iterated the "good practice" to be followed by "adults who do consume alcohol", pointing out that they should not so in the presence of under 18 year olds and should only do so when "off duty" and, whenever possible, in an area not accessible to under 18 year olds.
74. On 14 June 2007 Ms Poland referred the Applicant to the Secretary of State for inclusion on the POCA list.
75. On 1 August 2007 the Applicant's solicitor wrote to the Chief Executive of the London Borough of Hillingdon to request the forms on which to lodge a complaint about the Borough's failure to respond to his letters.
76. On 3 August 2007, Mr Nash sent the Applicant's solicitor a copy of his letter to Mr Aulton dated 26 January 2006 and said that he was not offering to re-investigate the allegations made against the Applicant but was "helping him understand why such significant concerns exist about his behaviour".
77. On 22 October 2007 the Respondents decided provisionally to list the Applicant on the POVA and POCA lists and invited him to make written observations. The Applicant made no observations.
78. On 14 January 2008 the Respondents confirmed the Applicant's listing on the POCA and POVA lists and notified him accordingly.
79. From time to time, The Scout Association produce copies of the approved Code of Behaviour in the form of conveniently portable "Yellow Cards". The Applicant was familiar with these. The second edition of the Code (which was in force in 2005) warned Scout Leaders to avoid, amongst other things, situations that compromised their relationship with young people and were "unacceptable within a relationship of trust" and enjoined them to remember that someone else might "misinterpret their actions, no matter how well intentioned". The Code forbade "physical contact games with young people"; "any inappropriate physical or verbal contact with others"; "allowing yourself to be drawn into inappropriate attention seeking behaviour such as tantrums or crushes" and "making suggestive remarks or gestures, even in fun".
80. Mr Reeves of The Scout Association takes the view that the Applicant breached the Association's Code of Behaviour by failing to respect the boundaries between an adult leader and a young person; engaging in inappropriate physical contact with a young person and planning to be alone with a child. The breaches were, he said, compounded by the supplying of alcohol to a young person in his care. The Applicant was "a person who knew the rules and chose not to follow them".
81. In his statement dated 4 September 2008 the Applicant asserted that he was not "carrying on with S over the weekend" and that he "never went and bought alcoholic drink specifically for S, only for the Leaders". He admitted that "in consultation with Mr Norman, we allowed S and J to have one Smirnoff Ice" but emphasised that he had spoken to S's foster father after the event and he had agreed that, if the Applicant had telephoned him, "he would have given permission for S to have one drink".
82. The Applicant has no criminal convictions, reprimands or cautions. His record of service to the communities in which he has lived is exemplary. Mr Carter (who has known the Applicant for 25 years) says that he has never given any cause for concern and his integrity has always been unquestionable. Mr Browning describes the Applicant as "friendly and approachable … honourable and trustworthy". Mr Webb refers to the Applicant's "outstanding integrity and generosity". Mr and Mrs Childs always found the Applicant to be "a caring, thoughtful leader … generous with his time and money". They had never had any reason to doubt his intentions towards the young people he was helping and were astounded by the "unbelievable turn of events … that had such a disastrous effect on so many peoples' lives".

The law

83. Under section 4(3) of the Protection of Children Act 1999, if the Tribunal is not satisfied that the individual applicant (a) was guilty of misconduct (whether or not in the course of his or her duties) which harmed a child or placed a child at risk of harm and (b) is unsuitable to work with children, it must allow the appeal. If the Tribunal is so satisfied, it must dismiss the appeal.
84. The decision to place the Applicant on the POVA list was as a result of his inclusion on the POCA list. Section 92 of the 2000 Act provides that proof of misconduct relating to a child satisfies the requirement of misconduct relating to a vulnerable adult for the purposes of the POVA list. However, the issue of unsuitability to work with vulnerable adults falls to be considered separately.
85. Burden of proof

Section 4 of the 1999 Act and section 86 of the 2000 Act place the burden of proof on the Secretaries of State.

86. Standard of proof

The standard of proof required, in order to be satisfied as to the matters set out in section 4(3) of the 1999 Act and section 86(3) of the 2000 Act, is that described in the decision of the House of Lords in Re H and others (minors) (sexual abuse: standard of proof) [1996] AC 563; [1996] 1 All ER 1; [1996] 1 FLR 80, as later explained by the House of Lords in Re B (Children) [2008] UKHL 35; [2008] 2 FLR 141.

In Re H, Lord Nicholls of Birkenhead said:

"[T]he standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability….

The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability….

Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation."

In Re B, Baroness Hale emphasised that

"Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies".

87. Misconduct

Miss Lester submitted that the Tribunal should be guided in this area by the observations made by the Tribunal in the case of Mairs v Secretary of State [2004] 269.PC. The Tribunal accepted that submission.

88. Misconduct is not defined in the 1999 Act nor is the term qualified by any adjective such as "serious" or "gross".
89. In most cases the misconduct will be an incident forming part of a course of erroneous or incorrect behaviour undertaken by a person who knew or ought to have known that what he or she was doing was contrary either to the general law or to a written or unwritten code having particular application to his or her profession, trade or calling.
90. Inclusion in the lists kept under section 1 of the 1999 Act and section 81 of the 2000 Act is not intended to stigmatise, discipline or punish. The concern of the listing regime is to contain the risk of harm to children and vulnerable adults. The regime identifies an unacceptable risk of harm by reference to some past misconduct plus a present unsuitability to work with children and/or vulnerable adults. It is neither necessary nor appropriate to limit the scope of the regime by adopting a restricted definition of "misconduct". The misconduct triggers consideration of the second criterion for inclusion – unsuitability to work with children or with vulnerable adults. Not all of those found guilty of misconduct will be held to be unsuitable to work with children or with vulnerable adults. A finding of misconduct of a less serious nature will not generally lead to a finding of unsuitability without more. Conversely, an individual guilty of relatively trivial misconduct could be shown to be wholly unsuitable to work with children and/or with vulnerable adults.
91. For the purposes of the 1999 Act, there must be a direct causal connection between the misconduct admitted or proved and harm or potential harm to a child. In most cases the harm will have been directly inflicted, or the potential for harm will have been directly created, by the individual charged with the misconduct. However, this is not always so. There can be several links in the chain of causation between the misconduct and the harm or potential harm to a child but all of them must be intact before there can be a finding that an individual was "guilty of misconduct (whether or not in the course of his or her duties) which harmed or placed at risk of harm a child".
92. Harm

Section 12 of the 1999 Act provides that "harm", in relation to a child, has the same meaning as in section 31 of the Children Act 1989. Section 31(9) of that Act defines "harm" as "ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another".

93. Unsuitability to work with children and vulnerable adults

Unsuitability must be judged by the Tribunal at the date of the hearing. 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. 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. The Tribunal may have regard to:

(a) the number of the incidents constituting the misconduct established for the purposes of section 4(3)(a) of the 1999 Act;

(b) the gravity of that misconduct;

(c) the time that has elapsed since that misconduct;

(d) the timing and degree of recognition by the applicant that the conduct constituted misconduct and that it had the potential to harm a child;

(e) the steps taken by the applicant to minimise the possibility of there being a recurrence of that or like misconduct;

(f) extenuating circumstances surrounding the misconduct; and

(g) other admitted, undisputed or proved past conduct of the applicant, whether good or bad.

This should not be regarded as an exclusive list. The Tribunal may also have regard to any other relevant matter.

Issues

94. It was argued by Miss Lester on behalf of the Secretaries of State that:

(a) there was ample evidence that the Applicant's conduct fell short of the standards expected of a Scout Leader in relation to a 15 year old child under his control and supervision;

(b) the Applicant was well aware of the code of conduct and training applying to Scout Leaders and he accepted that, even before the written policy on alcohol was published in 2006, it was expected that Scout Leaders should not permit anyone under 18 to drink alcohol during Scouting activities;

(c) it was crucial that the Applicant adhered strictly to the rules and principles (which were designed to establish clear boundaries between adults and children and to foster relationships of trust) where S was concerned because she was "extremely vulnerable", "needy" and "clingy";

(d) the Applicant fell short of the standards expected of him and was therefore guilty of misconduct in that he:

(i) created a situation in which there was insufficient adult supervision of S;

(ii) permitted S to drink alcohol;

(iii) engaged in or permitted inappropriate physical contact with S; and

(iv) engaged in inappropriate non-physical forms of behaviour with S.

(e) the Applicant's conduct either caused S actual emotional damage or risked doing so;

(f) the Applicant similarly caused emotional damage to other children at the camp (including B) or placed them at risk of emotional harm when they observed his conduct with S;

(g) the Applicant is unsuitable to work with children because:

(i) his misconduct was serious and showed a total inability on his part to recognise and to establish clear boundaries between conduct appropriate to a supervising adult and conduct appropriate to a child;

(ii) his explanations of his conduct amounted to a series of justifications based upon responding to childlike behaviour with inappropriate childlike behaviour, responding when angry or annoyed with inappropriate childlike behaviour and blaming S and other adults;

(iii) after he had been forced to recognise his inappropriate behaviour, he sought to minimise it and did not recognise its potential to harm a child;

(iv) he has taken no steps to avoid this kind of conduct occurring again;

(v) although the misconduct related to the events surrounding one weekend, he took "short cuts" in relation to the code of conduct before;

(vi) he sought to continue working in precisely the kind of work from which he had been dismissed;

(vii) although he might have relied upon the stress caused by the impending murder trial as a mitigating factor, he did not, in fact, rely upon this stress to justify his conduct;

(viii) the opinion of professional teachers is that the Applicant would be unsuitable as a teacher; and

(ix) the assessment of The Scout Association is that his misconduct renders the Applicant wholly unsuitable for any form of scouting activities;

(h) the assessment by the police that the Applicant "had abused a position of trust and it was therefore appropriate to disclose this to potential employers where the position involved contact with children" was justified;

(i) the clear recommendation from Social Services that the Applicant "should not have contact with children via the Scouting Movement" because "to allow him to do so would place children at risk of significant harm" was justified; and

(j) the conclusions reached by The Scout Association that the Applicant's actions were not "intentionally abusive, however they were clearly inappropriate"; that "without changes" it was not possible to feel sure that "a similar situation would not happen again" and that the Applicant was guilty of misconduct which harmed or placed a child at risk of harm and is unsuitable to work with children and young people, were justified.

95. It was argued by the Applicant that:

(a) he had been accused of sexual assault, which was something he had not done and would never do;

(b) the evidence (particularly that of Mr Chandler) amounted to unsubstantiated "feelings" which did not "add up";

(c) Mr Norman, who was present throughout, had no concerns about his behaviour;

(d) if he had been doing what was alleged, the teachers should and would have challenged him at the time;

(e) while he was wrong to treat S as though she were his own granddaughter and while he was over-familiar with her during the camping activity, this did not amount to sexual or other misconduct;

(f) he genuinely, and with justification, believed that there were sufficient adults involved in the camping activity so that there would be no breach of the Scout Association rules;

(g) his reactions when under stress (which included "pinging" S's bra) were wrong but out of character;

(h) he was wrong to allow S to have alcohol but he was merely making the same concession to her as he had made (and was entitled to make) to his grandson and the teachers present did not object;

(i) he would never allow such a situation to arise again; and

(j) he had never, in 40 years of youth work, had any difficulties of this kind before.

Conclusions and reasons

Having carefully considered all of the evidence given and the arguments presented at the hearing and the witness statements and other papers submitted in advance, the Tribunal came to the following conclusions:

96. The misconduct alleged against the Applicant was that he:

(a) failed to arrange for sufficient numbers of adults to be present during the camping activity in breach of The Scout Association rules;

(b) caused or permitted a female child aged 15 to consume alcoholic drink during the camping activity in breach of the accepted principles of The Scout Association;

(c) engaged in physical contact with a female child which was not sexual but could have been misconstrued as such and was reasonably thought by others who saw it to be evidence of an inappropriate sexual relationship;

(d) engaged in other non-physical activities with a female child (such as laughing and giggling when alone with her) which could have been misconstrued and were reasonably thought by others to be further evidence of an inappropriate sexual relationship.

97. The Tribunal was not satisfied that the Applicant failed to arrange for sufficient numbers of adults to be present during the camping activity. On a strict construction of The Scout Association rules, there should have been another Scout Leader present. Those rules provide, for obvious reasons, that Scout Leaders must not take individual Explorer Scouts on camping trips. However, the relevant trip was not simply a Scout camp. It was a hybrid of a Scout camp and a school camp. In those circumstances it was not unreasonable or wrong of the Applicant to count the three members of the school staff as "responsible adults" for the purpose of the activity. Similarly, it was neither unreasonable nor wrong for the Applicant to treat J has having the "dual role" of Explorer Scout and school pupil.
98. The fact that there was no other Scout Leader available to assist the Applicant did lead to a situation where he was unaccompanied on a Scout camp site with two Explorer Scouts, only one of whom was related to him. However, adopting a similarly strict construction of the Scout Association rules to the reverse effect, this did not amount to a breach. When the school party left the site, the camping trip was over. The Applicant was no longer acting as a Scout Leader and was, in his capacity as a private individual, simply in charge of his grandson and his grandson's friend. Since he had parental responsibility for his grandson and the express permission of the friend's foster parents to look after her during that weekend, he was not in breach of any law, rule or principle. In any event, because Mr Norman, Mr Chandler and Miss Bhopal had failed to complete their tasks and had declined to proffer any further assistance to the Applicant, he was left with no alternative but to clear up on his own with the assistance of two familiar children. To hold that the Applicant was guilty of misconduct in those circumstances would be as harsh as it would be pedantic.
99. The Tribunal was satisfied that the Applicant did cause or permit S to consume alcoholic drink during the camping activity.
100. The evidence relating to the consumption of alcohol was confused and in many respects unconvincing. The witnesses were unable to agree as to when S consumed Smirnoff Ice or as to how many bottles she consumed. It was suggested to the strategy meeting held on 17 June 2005 that S had consumed four bottles on the Friday night and two bottles on the Saturday night. It remains an unexplained mystery as to how such detail emerged and whether that detail bore any relation to the truth. The best evidence available at that time was Miss Bhopal's handwritten statement that S "on both Friday and Saturday night … had a couple of bottles of 'Smirnofice'" (sic).
101. Nevertheless, it was clear that, on the Saturday night, with the permission of the Applicant and the tacit approval of Mr Norman, S did consume at least one alcoholic drink while she was sitting with the adult leaders of the group and was being treated by them as one of their number. This constituted misconduct on the part of the Applicant. By permitting S to drink some of the alcohol he had brought to the site, the Applicant acted in clear breach of the accepted principles of The Scout Association. Whatever the merits of the contention that this caused actual harm to S, it was clear that the Applicant's misconduct placed S "at risk of harm".
102. The Tribunal accepted that, to a limited extent, the Applicant did engage in physical contact with S which was not sexual but could have been misconstrued as such. The physical contact between the Applicant and S on the Sunday afternoon was not unreasonably thought by Mr Chandler to be evidence of an inappropriate sexual relationship.
103. The Tribunal was not satisfied that the Applicant touched and stroked S in the "sensual" manner described by Mr Chandler when the party was seated around the camp fire on the Friday night. The perception of other teachers who were present at the same time was not the same as that of Mr Chandler. Mr Chandler's attempt to suggest that Miss Bhopal had formed a similar impression was not well founded. She did not support his suggestion that they exchanged meaningful glances.
104. Some of Mr Chandler's recollections of the events and arrangements during the weekend were surprisingly indistinct. He said, for example, that he could not remember whether the female pupils and Miss Bhopal slept in the same tent or whether Miss Bhopal had a separate tent. This is a matter about which he could reasonably be expected to have a clear recollection.
105. In other respects Mr Chandler's evidence was highly implausible. His account of his conversation with Miss Bhopal on Sunday 12 June, immediately after he had witnessed the incident involving the Applicant and S, was quite different from that given by Miss Bhopal. Miss Bhopal said that, during their return journey, "Greig … said he had just seen something disturbing"" and that he had seen "Brian with his trousers down … running around after S". Mr Chandler, on the other hand, said that he opened this conversation with Miss Bhopal with some general observations to the effect that the weekend had gone well and only mentioned what he had just seen when Miss Bhopal expressed her concerns about the inappropriate behaviour she had witnessed during the weekend.
106. However, the Respondents did not rely upon Mr Chandler's conclusions. The Respondents, in effect, invited the Tribunal to reject those conclusions as implausible and wrong. Nevertheless, the Respondents did invite the Tribunal to accept the accuracy of Mr Chandler's descriptions of the physical contact between the Applicant and S and to conclude that this contact, while not sexual, was reasonably thought by Mr Chandler to be evidence of an inappropriate sexual relationship. The Applicant found it difficult to confront this sophisticated approach. He thought that he had to answer a charge of sexual involvement with S but found himself having to meet something rather different. The Tribunal had sympathy with his difficulties.
107. The accounts given by Mr Chandler lacked consistency. For example, the manuscript note made by him at his mother's suggestion on 17 June 2005 contains a markedly different account of the events of 12 June 2005 from that given, both in writing and orally, to the Tribunal. In the account written down on 17 June 2005 Mr Chandler said that, as he was shaking hands with the Applicant, S "grabbed hold of his [the Applicant's] waist and tried to pull him down. He then grabbed her and got her down on her back". This description of physical activity between the Applicant and S when Mr Chandler was in the immediate vicinity was omitted from his later written account. In his oral evidence, Mr Chandler described similar activity as having occurred before he shook hands with the Applicant and, by implication, when he was still some distance away.
108. The Tribunal was not impressed by Mr Chandler's predisposition to describe selected events and to invite others to draw their own conclusions from his descriptions. Evidence given in this way is cryptic and unpersuasive.
109. Miss Bhopal's account was, in many respects, vague and unsatisfactory. Her recollections of when Mrs Linton arrived and left the camp site were simply wrong. The accounts which she gave to the school, to the police and to the Tribunal were, in many detailed respects, inconsistent. Miss Bhopal accepted that she might well have confused events and conversations which took place on the Friday and Saturday nights and that her memory was "higgledy piggledy". She also accepted that she might well have misconstrued and/or attached significance to comments, of which, at the time they were made, she thought little.
110. As in the case of Mr Chandler, the Tribunal was invited to reject Miss Bhopal's conclusions as implausible and wrong but, at the same time, to accept that the observations upon which she based those conclusions were accurate. The Tribunal found this to be a difficult and unattractive invitation.
111. In relation to the evidence of Mr Chandler and Miss Bhopal, the Tribunal came to the conclusions set out in paragraph 45 above. Following his observation and misconstruction of the activities of the Applicant and S after the pupils had left the site on Sunday 12 June, Mr Chandler told Miss Bhopal what he had seen and how he had interpreted it. Miss Bhopal had been a little uneasy about S's behaviour towards the Applicant but was not, until then, unduly concerned. Mr Chandler and Miss Bhopal then pooled their recollections and came to the misconceived and unjustified conclusion that they had witnessed "sexualised" behaviour throughout the weekend. In these circumstances, the Tribunal was unable to place reliance upon Mr Chandler's and Miss Bhopal's reports of specific observations made by them, save where they were clearly corroborated by others or admitted by the Applicant. Some of them may have been accurate and valid but others were probably embellished and distorted.
112. The Tribunal was satisfied that the Applicant had physical contact with S on several occasions during the weekend of 11-12 June 2005. However, almost all of this contact did not amount to misconduct. The Applicant did not encourage S to clamber on to him or take hold of him and he sought to disengage whenever she did so. It would clearly have been inappropriate for the Applicant to react harshly so as to cause distress and humiliation to S. The "tickling" or "stroking" of S amounted to no more than a way of gently directing her away from contact and proximity which might be misinterpreted. Even Mr Chandler agreed that the Applicant had reacted to S's inappropriate positioning of herself with reasonable expedition. The Applicant should have used less ambiguous methods and should have informed his fellow Leaders of the difficulties which he, and they, might have to face. As teachers in a special school Mr Norman, Miss Bhopal and Mr Chandler would have been familiar with "tactile" behaviour by children with learning difficulties. The Applicant could have gained the advantage of hearing their views as to how this should be confronted and would have avoided the misunderstandings that occurred in relation to S.
113. The "horseplay" initiated by S during the clearing of the site did not amount to misconduct by the Applicant, save in one important respect. The "pinging" of S's bra strap was, as Miss Lester submitted, "deeply inappropriate". The Applicant consistently admitted that this was wrong and that he should never have done it, whether in the presence of witnesses or otherwise. The Applicant's action was not "sexualised" but it could readily have been interpreted as such and was so interpreted by Mr Chandler.
114. The Applicant could not sensibly be criticised for failing to avoid being jumped upon by an over-familiar, mischievous girl. He knew that S was liable to take such action but he did not know that she would do so on this particular occasion. Further, the Applicant was distracted by the urgent task in hand and the prospect of having insufficient time to complete all of the tasks required of him in the time available to him. The Applicant was, as always, keen to avoid being perceived as unreasonable and he therefore unwisely adopted a childish response, which he thought S would understand and accept as an indication of his anxiety and disinclination to become involved in any further "mucking around". However, the Applicant was guilty of a serious error of judgment in seeking to dissuade S from further activity by interfering with her underwear.
115. In relation to this misconduct, the Tribunal resisted the temptation to pursue the argument as to whether it caused actual harm to S. The suggestion that it was foreseeable that Mr Chandler would report what he had seen; that the police would become involved and S would be caused distress and anguish by being "whisked out of school"; interviewed; made to feel guilty and deprived of her mobile telephone and computer for several months, might have been met by the argument (not in fact deployed by the Applicant) that the chain of causation was broken by the unreasonable actions of the authorities, particularly the Social Services. However, it was, as before, clear that the Applicant's misconduct placed S "at risk of harm" and it was therefore unnecessary to enter into a debate as to whether the consequent harm that she probably suffered was caused by the Applicant or by those who subjected her to "institutional abuse" in the following weeks and months.
116. The Tribunal was not satisfied that the other non-physical activities involving the Applicant and S (such as laughing when alone together) amounted to misconduct on the part of the Applicant. In so far as these activities were misconstrued by Mr Chandler, that was not a proper basis for a finding of misconduct. Nobody other than Mr Chandler thought these activities to be evidence of an inappropriate sexual relationship and they were not. No reasonable person in possession of the relevant facts would have so construed them. The rules relating to being alone with young people on camp sites should not be construed as preventing all conversation between individuals.
117. Having found that the Applicant was guilty of misconduct in two respects, the Tribunal had to give careful consideration to the question whether the Applicant is unsuitable to work with children.
118. The Tribunal found the Applicant to be a genial and sincere man who likes to help others and enjoys the approbation that his generosity provokes. He strives to avoid being thought of as stern or intolerant. He is generally honest and reliable, though not always wholly precise. He does not lack understanding but he sometimes fails to appreciate the sensibilities of others. He can become angry when unfairly challenged or frustrated but he is generally calm and measured. He has a wealth of practical experience and is organised and methodical. He is neither devious nor predatory.
119. The Applicant's misconduct in June 2005 was not sufficiently serious to justify the conclusion that he is, ipso facto, unsuitable to work with children. That misconduct was neither extensive nor grave.
120. The Applicant did fail to recognise and to establish clear boundaries between conduct appropriate to a supervising adult and conduct appropriate to a child. However, in the particular circumstances of the relevant weekend, this was not an entirely straightforward matter. Although S was the same age as those who were clearly to be treated as "the children", she was an experienced and capable "Junior Leader" and she had none of the intellectual deficits of the other children present. S was anxious to be treated as older than her chronological age. The Applicant is not, and would not claim to be, a sophisticated analyst. His failure to establish appropriate boundaries for S in these circumstances was understandable. Further, his actions were condoned by Mr Norman and Mr Chandler. While Mr Chandler might, with justification, have stayed silent for fear of being thought presumptuous, Mr Norman could, and should, have pointed out, on the Friday night, that S was being unwisely accorded adult status. If Mr Norman had done this, the Applicant would have readily deferred to his judgment. Since he did not, the Applicant followed a course for the rest of the weekend which seemed to him to be acceptable and was apparently supported, or at least not opposed, by those better able to judge than he. Failure to appreciate where the boundaries should be drawn in relatively complex situations involving "grey areas" does not automatically lead to the conclusion that the defaulter is unsuitable to work with children.
121. The Applicant did, from time to time, respond to the childish behaviour of S with childlike behaviour of his own. Many adults would do the same, wishing, rightly or wrongly, to avoid an adverse reaction from a child who might feel threatened, or be confused, by a more adult response. The Applicant also responded to S in a childish, spiteful manner when he was annoyed by her mischief. However, this was not evidence of generally flawed instincts. The Applicant's normal instinct would have been to respond jovially, calmly and undemonstratively to provocative behaviour by S but on this occasion he was unusually distracted and under stress.
122. The Applicant did not seek to blame S. He did, in his Notice of Appeal, say that that the problem was caused by a prank on her side. The Applicant was simply seeking to explain his case and to rebut the suggestion that he was a predatory adult with an unhealthy interest in teenage girls.
123. The Applicant did not seek to "blame other adults" as alleged on behalf of the Respondents. He recognised why Mr Chandler and Miss Bhopal had felt constrained to bring his conduct to the attention of the authorities and tried to tell Mr Chandler that when they had a chance meeting. During the hearing, the Applicant did suggest to Mr Chandler that, in so far as the children were distressed by their experiences, he and Miss Bhopal should accept responsibility because they were rarely available and were more interested in each other than in the children. This was an unsubstantiated, unwise and unattractive attack by the Applicant. However, it was not a central feature of his case and he did not persist with it.
124. The Applicant did not he seek to minimise his misconduct. He simply sought to reject the ill-founded accusations of "sexualised" behaviour made against him. His blanket denials were not surprising when he was faced by serious allegations which he knew to be false and unfounded. He made appropriate admissions and sought to deflect the over-suspicious approach with which he was faced.
125. The Applicant did not fail to recognise the potential for harm to a child inherent in his misconduct. This criticism relates to an alleged failure to appreciate that "horseplay" could be distressing to children with learning difficulties or fragile mental health and that it did distress B. The evidence that B was distressed by what he saw on the Sunday afternoon, as opposed to what he may have seen at some other time during the weekend, was less than compelling. The Applicant is well aware of the difficulties experienced by children with learning difficulties in making sense of their experiences. He has cared for J since before his mother was killed. He needs no lessons in protecting vulnerable children from distress.
126. The Applicant has not taken any practical steps to avoid the same kind of conduct occurring again but he has recognised where he went wrong in June 2005 and the extent to which, in the modern world, he must avoid all appearances of impropriety. The Applicant fully recognises that the relaxed attitudes and practices that prevailed when he started as a Scout Leader in 1968 are no longer regarded as sensible or acceptable.
127. The Applicant did say that he had, in the past, taken some "short cuts" in relation to the code of conduct when organising successful camping and other activities. He did not mean to suggest that he had a "cavalier attitude" to rules and regulations. He was endeavouring to make the entirely valid point that, sometimes, strict rules need to be tempered by common sense. Mrs Childs, who was an impressive witness, insisted that the Applicant was very aware of safety guidelines and was always concerned for the well being of the children for whom he took responsibility.
128. The Applicant did, in 2006, seek to continue working in a similar kind of work to that from which he had been dismissed. This was a source of some concern. It might have betrayed a serious lack of judgment on the part of the Applicant. However, having investigated the circumstances in which the Applicant was appointed to a Scouting position and was seen to be organising a working party of young people after being dismissed by The Scout Association, the Tribunal was satisfied that the Applicant was being carried forwards on a wave of sympathy and support from those who were convinced that he had been very badly treated and that he is not a truculent man with a determination to resist those in authority when they seek to restrain him.
129. The Applicant did not seek to rely upon the stress, which must have been created by the impending trial of the man accused of killing his daughter, to excuse his behaviour on 12 June 2005. Nevertheless, the Tribunal was entitled to conclude that the fact that the Applicant was about to be required to recall, and to give evidence about, the deeply distressing events of 2002 must been preying upon his mind. These were mitigating circumstances which the Tribunal was entitled to, and did, take in account in assessing the risk that the Applicant would behave in a similarly inappropriate manner in the future.
130. The Tribunal took into account the opinions of "the professional teachers" as to the Applicant's suitability and the view expressed by Mr Reeves that the Applicant is wholly unsuitable for any form of Scouting activities. They also took into account the view of Mrs Childs, who has an excellent knowledge and understanding of the Applicant and of S. She strongly disagrees with the view that the Applicant is unsuitable and is dismayed by the way in which the matter was handled by the police and Social Services.
131. The assessment by the police that the Applicant "had abused a position of trust and it was therefore appropriate to disclose this to potential employers" was not fully justified. The extent to which the Applicant "abused a position of trust" was limited and forgivable.
132. The clear recommendation from Hillingdon Social Services that the Applicant "should not have contact with children via the Scouting Movement" because "to allow him to do so would place children at risk of significant harm" was not at all justified. That recommendation appeared to be based upon the ill-informed assumption that the Applicant "had an inappropriate sexual interest in teenage girls". The embellishment and distortion by Mr Nash of the evidence of Mr Chandler (reflected in the difference between his letters written in January and February 2006) was remarkable and unsupportable.
133. The first conclusion reached by the Scout Association that the Applicant's actions were not "intentionally abusive, however they were clearly inappropriate" was justified. It did not follow that it was impossible to feel sure that "a similar situation would not happen again". The Applicant has learned from his experience in relation to this matter that now realises that he must follow child protection advice more closely and must not seek to enhance his reputation for generosity of spirit by becoming too relaxed about important principles.
134. The Applicant was entitled to rely upon his long and exemplary record of service as showing that he is suitable to work with children. His error of judgment on 10 June 2005 and his uncharacteristic aberration on 12 June 2005 do not outweigh that admirable record.
135. The Tribunal therefore concluded that the Applicant is not unsuitable to work with children nor is he unsuitable to work with vulnerable adults.
136. The decision of the Tribunal was unanimous.

Order

The Applicant's name shall be removed from the lists kept under section 1 of the Protection of Children Act 1999 and section 81 of the Care Standards Act 2000.

Signed

John Reddish

(Chairman)

Susan Howell

Paul Thompson

12 November 2008