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Cite as: [2009] UKFTT 170 (HESC)

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Steven Duffield v The Secretary of State for Children, Schools and Families [2009] UKFTT 170 (HESC) (27 July 2009)
Schedule 4 cases: Protection of Children Act List and Prohibition from teaching and working in schools
Prohibition from teaching or working in schools

Steven Duffield

-v-

The Secretary of State for Children, Schools and Families

Application No. [2008] 1383.PC

Before:

Mr John Reddish (Tribunal Judge)

Mrs Susan Howell

Mr Mike Flynn

Hearing date: 15 July 2009

Application

On 30 September 2008 the applicant appealed under section 4(1)(a) of the Protection of Children Act 1999 against the decision of the Secretary of State to include him in the list kept under section 1 of the Protection of Children Act 1999 (the "PoCA list").

Representation

At the hearing Miss Kate Olley of Counsel, instructed by Miss Helen McConnell of the Treasury Solicitors, represented the Secretary of State. The applicant appeared in person and represented himself.

The evidence

The Tribunal heard oral evidence on behalf of the Secretary of State from Mr Anthony Hockley, the Director of the Friends Therapeutic Community Trust.

The Tribunal read the undated letter written by the applicant to the Tribunal in September 2008; the further undated letter written by the applicant to the Treasury Solicitors and received by them on 27 February 2009 and the letter written by the applicant to Miss McConnell on 11 May 2009 and heard the oral evidence of the applicant.

The Tribunal also read the documents submitted by the parties and comprised in a bundle consisting of 187 pages.

Preliminary matters

On 14 May 2009 Deputy Principal Judge Simon Oliver made an order, pursuant to Rule 14(1)(b) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, 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 or vulnerable adult. That order applied until the conclusion of the hearing. On 5 June 2009 the President repeated the order without limit of time. The Tribunal decided, for the avoidance of doubt, to extend the order indefinitely in respect of any child or vulnerable adult. The Tribunal was satisfied that such persons should not be identified.

Facts

The material facts found by the Tribunal were as follows:

The applicant was born on 21 September 1963 and is now 45 years old.

After leaving school, the applicant was employed in a variety of unskilled jobs and as a part-time Youth Worker in a programme funded by the local Social Services. The applicant took an interest in the plight of disadvantaged children because he had been subjected to physical and emotional abuse by his own parents and had spent some time in foster care as a child.

In July 1992 (when he was 28 years old) the applicant applied for a job at Glebe House in Cambridge, then a home and therapeutic community for boys and young men aged between 15 and 19 who had been the victims and/or perpetrators of sexual abuse. The applicant was appointed as a "waking night" staff member. He worked night shifts in the home. During those shifts he was expected to stay awake and vigilant and to take appropriate action in the event of any emergency. The applicant also took part in some of the daytime activities in the home.

Between October 1992 and September 1993 two of the boys resident in Glebe House (hereinafter referred to as "A" and "B") made several allegations that the applicant had been involved in sexual activities with them in the home.

Mr Hockley and others were sceptical about the allegations made by A and B. A was a very disturbed 17-year old boy who was known to be manipulative and to have made false and mischievous allegations in the past. He had been engaged in a wide range of illegal activities, including male prostitution and could be sexually provocative. He habitually dressed as a girl and was seeking gender reassignment. B was "captivated" by A and was under his influence. Mr Hockley felt that B could easily have been persuaded to make false allegations against the applicant by A. Both A and B were regarded as thoroughly unreliable reporters. However, they persisted in making allegations against the applicant.

On 11 October 1992 B alleged that he had been "sexually involved" with the applicant. Following this allegation, the applicant was formally suspended from his post for several days but was reinstated on 16 October 1992 when B withdrew the allegation against him.

On 2 March 1993 A alleged that he was "emotionally drawn" to the applicant and had twice had sexual contact with him. When confronted by Mr Hockley with the inconsistencies in his accounts and the fact that, on one of the nights when this sexual contact was supposed to have happened, a senior member of staff had been in the home with the applicant, A withdrew the allegation, accepting that he had lied in an attempt to get the applicant into trouble. Mr Hockley spoke to A's social worker who confirmed that A had a history of making unsubstantiated allegations. At the request of the Police Child Protection Team, the applicant was not, at this stage, informed that allegations had been made against him.

On 24 April 1993 A and B together telephoned the local Social Services and alleged that the applicant had been involved in sexual activities with them. Police officers investigated and took statements. The evidence obtained was not considered to be sufficiently reliable to justify a prosecution.

In April 1993 Mr Hockley spoke to the applicant and told him that serious allegations had been made against him, in particular by A. The applicant denied any wrongdoing. Mr Hockley warned the applicant that he should be very careful in his dealings with A and asked him whether he felt able to "handle the situation". The applicant assured Mr Hockley that he did not need any further assistance and was content to continue in his job.

Mr Hockley and his colleagues considered using covert surveillance of A and the applicant but decided against that course. The police advised as to the sort of evidence that would be regarded as convincing if further allegations were made. They suggested, in particular, that any semen ejaculated during the alleged sexual activities should not be washed away but should be preserved for analysis.

On the night of 3 May 1993 A and B again telephoned the Social Services and again alleged that they had been sexually assaulted by the applicant.

On 11 May 1993 A told other residents of Glebe House that the applicant had approached him and had suggested the formation of "a threesome" with B for sexual activity. A also alleged that the applicant had recently attempted to have anal intercourse with him. A refused to be medically examined. He insisted that, although he had lied before, he was now telling the truth about the applicant. In an overheard telephone conversation with his mother, A said that he was probably at fault because he had "flirted" with the applicant and had encouraged him because he "wanted his own fun" but he now "wanted it stopped" because "it was getting out of hand". When B was asked about the matter, he said that A and the applicant were regularly "up to things" at nights in the home.

On 14 May 1993 B alleged that the applicant had, at about 1.00 a.m. during the previous night, entered his room and had made sexual advances towards him which he had rejected. However, on the night of 13-14 May 1993 the Trust's Director of Therapy had undertaken an unannounced visit to Glebe House. He had seen that, between the hours of 12.15 a.m. and 1.45 a.m., B was asleep in his bedroom and the applicant was asleep in the television room. When confronted with this information, B withdrew his allegation against the applicant. The police took the view that, although there had been a number of allegations against the applicant, they had no proper basis for an arrest.

On 25 May 1993 A absconded from Glebe House, went to a public house and returned to Glebe House in an inebriated and distressed state. A shouted at the applicant, accused him of buggery, attempted to kick and hit him and bit his arm. The applicant made a written report of this incident but he now claims that he has no recollection of doing so and questions the authenticity of the relevant document.

On 17 June 1993 Detective Superintendent Chamberlain of the Cambridgeshire Constabulary examined the files that had been compiled in relation to the allegations against the applicant. He described the evidence as "confusing and unreliable" and recommended no further action. However, he suggested that the applicant should be interviewed and left in no doubt about the allegations that had been made against him.

On 1 July 1993 two police officers spoke to the applicant at Glebe House. They outlined the allegations that had been made. The applicant said that he could think of no reason why allegations had been made against him, save that he had earlier been known as a lenient, "soft touch" but had latterly become more strict in his application of the house rules. He denied any sexual abuse. The officers advised the applicant "to protect himself from future allegations by taking appropriate action".

On the night of 15-16 September 1993 the applicant was on duty in the home. He approached A in his bedroom and went with him from there to an office on the ground floor. A, who was wearing female night attire, cooperated and did not in any way resist. The applicant and A had a sexual encounter involving mutual masturbation. The applicant ejaculated on to A and A wiped the semen on to an item of his clothing. A then took this item of clothing to the other member of the staff on duty in the home that night and alleged that the applicant had indecently assaulted him. The police officers who attended (having been called by the Assistant Director) took the item of A's clothing and sent it to the Forensic Science Service for examination and analysis.

On 16 September 1993 police officers took a statement from A. A said that he had been having sexual relations with the applicant for some time but that he was not willing to support a prosecution. He just wanted the applicant to be dismissed from his employment so that he would not be at Glebe House any more.

On 17 September 1993 the applicant was arrested and interviewed by police officers. He denied any wrongdoing.

On 5 October 1993 the applicant wrote a letter of resignation to Mr Hockley. The applicant said that "under the circumstances" he would not be able to continue working at Glebe House and he left.

In December 1993 Mr Hockley wrote to the applicant accepting his resignation and informing him that that his debts to the Trust would be written off.

In January 1994 the Forensic Science Service reported that the sample of semen obtained from the item of clothing sent to them had been subjected to DNA analysis and that this showed that the semen originated from the applicant.

On 7 January 1994 the applicant was charged with having committed gross indecency with a male under the age of 21 years, contrary to section 13 the Sexual Offences Act 1956 and was also charged with having indecently assaulted A, contrary to section 15 of the same Act. After being charged, the applicant said: "This is the only time I done it". The applicant also said that he did not know why A was called "a kid" because he was a young adult.

In January 1994 the applicant's wife told the applicant to leave the home where he had lived with her, her two children (aged 11 and 9) and their own young child. She said that she wanted a divorce. The applicant left the home and moved into alternative accommodation.

In February 1994 the applicant tried to gain admittance to his former matrimonial home and was arrested after he had broken a window. The applicant's wife then obtained protective orders restricting the applicant's right to see the children of the family and refused to allow the applicant to have any contact with them.

On 14 March 1994, at the Cambridge Magistrates' Court, the applicant pleaded not guilty to the charge of indecent assault. His plea to that charge was accepted. The applicant pleaded guilty to one charge of gross indecency. On 6 June 1994, at the Cambridge Crown Court, the applicant was sentenced to 6 months imprisonment for the offence to which he had pleaded guilty but his sentence was suspended for a period of 12 months and he was released.

At a Child Protection Conference held in March 1994, the applicant said that the incident in September 1993 was "the only time he had done it and that the boy was aged 17 and was "not a kid". He emphasised that he would "never do anything to a kid. He had not done it in the past and did not intend to do it again in the future".

In October 1994 Mr Hockley referred the applicant's name to the Department of Health for inclusion on the Consultancy Service Index. By a letter dated 10 November 1994, the Department informed the applicant that his name had been included on the Index on a temporary basis and invited his comments. The applicant made no representations and his name was retained permanently on the Index.

On 20 June 2000 the Department of Health wrote to the applicant inviting him to make representations as to why his name should not be transferred from the Consultancy Service Index to the PoCA list. The letter was sent to an address at which the applicant was no longer living and he probably never received it. Having received no reply from the applicant, the Department did not then transfer his name to the PoCA list.

In or about August 2008 the Applicant applied for an enhanced CRB check in connection with his proposed employment in a care home for the elderly. This brought his address to the attention of the Respondent. On 2 September 2008 Mr Bateman of the Safeguarding Children Operations Unit (PoCA) informed the applicant that the Respondent had decided to include his name on the PoCA list and that he had a right of appeal to the Tribunal.

At the hearing the applicant said that he had "blanked out" most of his memories of his time at Glebe House. He was not, he said, aware of sexual activity between the boys in the home. A had never, he said, acted provocatively towards him and he did not think that there was a risk involved in taking a pornographic videotape into the home and watching it there. He had encountered many difficulties during his life and had become depressed and suicidal but he now wanted to start afresh and to make a contribution by working either in a hospital or in a home for the elderly. It was, he suggested, ridiculous that he should be prevented from doing so by being retained on the PoCA list.

The law

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 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.

Burden of proof

Section 4 of the 1999 Act places the burden of proof on the Secretary of State. However, section 4(4) provides that, where an individual has been convicted of an offence involving misconduct (whether or not in the course of his employment) which harmed a child or placed a child at risk of harm, no finding of fact on which the conviction must be taken to have been based shall be challenged on an appeal.

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 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 i.e. the preponderance of probability.

Misconduct

Miss Olley 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.

Misconduct is not defined in the 1999 Act nor is the term qualified by any adjective such as "serious" or "gross".

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.

Inclusion in the list kept under section 1 of the 1999 Act is not intended to stigmatise, discipline or punish. The concern of the listing regime is to contain the risk of harm to children. The regime identifies an unacceptable risk of harm by reference to some past misconduct plus a present unsuitability to work with children.

Unsuitability to work with children

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 ability to act properly in potentially difficult 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; and

(f) extenuating circumstances surrounding the misconduct.

This should not be regarded as an exclusive list. The Tribunal may also have regard to other admitted, undisputed or proved past conduct of the applicant, whether good or bad.

Issues

It was argued by Miss Olley on behalf of the Secretary of State that:

(a) the applicant was clearly guilty of misconduct in that he was convicted of gross indecency with a male under the age of 21, the offence having taken place in Glebe House on 15 September 1993.

(b) the applicant is unsuitable to work with children because

(1) the offence was a grave breach of the applicant's duty to protect the boys in his care and represented a gross failure to maintain professional boundaries;

(2) the applicant has shown no insight into the implications of his conviction and no remorse;

(3) his limited admissions do not address the serious issues raised;

(4) although the misconduct took place many years ago, the applicant has taken no steps to minimise the possibility of there being a recurrence of that or like misconduct;

(5) the applicant does not rely upon any extenuating circumstances but continues to deny the offence.

It was argued by the applicant that:

(a) he did not touch his alleged victim and only pleaded guilty to the offence of gross indecency because his solicitor advised him to do so;

(b) the child in question was 17 at the time and knew what he was doing;

(c) his only offence was to take a pornographic video into the home and to watch it in a downstairs room when all of the boys were asleep upstairs, to relieve the boredom;

(d) this activity caused him to ejaculate and he used an item of clothing discarded by A to wipe himself;

(e) A did not take part in the masturbation and only arrived on the scene in time to gather up the item of clothing and use it to incriminate him;

(f) he is not and has never been a danger to children;

(g) although he had had problems with relationships and jobs over the years since 1994, he is now older and wiser;

(h) he has always tried to be a good person and has never been violent or abusive towards children; and

(i) he should be allowed to put the past behind him and make a fresh start.

Conclusions and reasons

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