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

In the Care Standards Tribunal

Barrie George White

v

Secretary of State for Children, Schools and Families

[2009] 1654 PT

Before Ms Maureen Roberts

Ms Linda Redford

Mr. David Braybrook

A hearing held on the 26^th March 2010 at the Care Standards Tribunal, Pocock Street London

The Appellant represented himself.

The Respondent was represented by Miss G Ward of Counsel instructed by Ms Geraldine Haack of the Treasury Solicitors. Mrs Carol Bell who works in the Children’s Safeguarding Operations Unit at the Department for Children, Schools and Families gave evidence for the Respondent.

The Appellant gave oral evidence.

1. The Appellant appeals against the decision of the Secretary of State for Education and Skills made under section 142 of the Education Act 2002 in a decision letter dated 24^th September 2009. This decision bars the Appellant from working in any capacity with children as provided by section 142 of the Education Act. The ground relied on by the Secretary of State was the appellant’s unsuitability to work with children.

 2. The Tribunal makes an order under Rule 14 (1) (b) and (2) of The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 restricting the reporting of the proceedings. We direct that the young people in this matter are not identified. We are satisfied that this order is necessary to prevent serious harm to the young people involved in this matte,r and that it is proportionate to give such a direction.

Background and chronology leading to the decision

3. The Appellant, who was born in 1980, qualified as a teacher in 2004. He was appointed as a history teacher in the Shorefield's Technology College (the school) which is a secondary school for pupils aged 11 to 18. The Appellant was head of the history department.

4. While the Appellant was teaching at the school he had contact with a female pupil PP, born in 1990. He did not teach PP but there had been contact between them at school and it was accepted that she had a crush on the Appellant. PP left the school in June 2006 to go to Sixth form College at a different establishment. The Appellant gave her his personal mobile telephone number (he entered it on to her phone) so that she could contact him for any professional advice. It was evident that the Appellant and PP had contacted each other from September 2006 and that there had been an exchange of texts of a sexual nature.

5. On 13 September 2006 LG, another former pupil at the school, who was a friend of PP’s informed the school’s deputy head teacher that the Appellant was having an inappropriate relationship with PP; she said he had sent her inappropriate text messages of a sexual nature; and had shown himself masturbating via a ‘webcam’ the night before. The school contacted the local authority who in turn contacted the police.

6. The school had a disciplinary interview with the Appellant on 13 September 2006 who admitted being in touch with a student via text message, internet and video link. He said he had been ‘silly’ but did not think his behaviour had been inappropriate. He was suspended.

7. The police interviewed LG, PP and the Appellant in September 2006. LG is a friend of PP and she had been present when the incident of masturbation over the webcam took place. This had taken place at her home and the computer involved was in her bedroom.

8. PP told police in interview that she had developed something of a relationship with the Appellant during Years 10 and 11. She said the Appellant had made a point of mentioning when she had turned 16. He had given her a lift in his car, had helped her at the end of a revision class and put his arms around her at a college prom. She said they had exchanged text messages of a sexual nature during which he had discussed masturbation, oral sex and asked if she had had any lesbian experiences. On 12th of September 2006 the Appellant had made contact with her on MSN, an Internet chat facility. She had said that she was at a friend's house. He had then asked her whether she was alone and when she confirmed this, he had sent live images, over the Internet, of him masturbating.

9. The Appellant was interviewed in September 2006. He said he didn't feel that he had developed a friendship with PP until September 2006. He said that she chose to visit him with excuses when they were both in school and that he had given her a lift once in his car. He said he had called her a ‘dirty common tramp’ once and put this in her leaver’s book; he said it was a joke. He also admitted hugging her at the college prom but he said this was in a teacher/student sense and that he had told her she looked very good. He had said to her that he could have an adult conversation with her when she was 20. He admitted that P had told him that she fancied him before he gave her his telephone number. He also admitted the sexually explicit text messages and the incident of masturbation over the Internet. The Appellant said that he knew it was morally and professionally wrong to do what he had done. But he did not think it was legally wrong because by then PP was over 16 years old and had left the school he taught at.

10. The police interviewed members of staff from college. Two women spoke of feeling uncomfortable in the Appellant's presence. The police also searched the Appellant's computer and found an indecent image (described as level 3 by the Police) on the computer. The Appellant acknowledged that he had seen it but said that it had been sent to him without his consent or permission and returned by him.

11. At the end of May 2007 the police charged the Appellant with sexual assault contrary to section 3 of the Sexual Offences Act 2003 (the Act), sexual activity with a child by a person in possession of trust contrary to section 16 of the Act and sexual activity in the presence of a child by a person in a position of trust contrary to section 18 of the Act. When the matter came to court it proceeded to trial on the section 3 offence alone. The proceedings were discontinued after PP gave evidence to the effect that she had not objected to be touched by the Appellant. There was a police note expressing their concern at the outcome as they felt that the grooming/abuse of trust and power imbalance issues had not been brought before the court.

12. Following the court case the papers including representations from the Appellant were sent to the Respondent. The Respondent considered the evidence and representations and decided to make a direction that the Appellant could not carry out work to which section 14 of the Education Act 2002 applies on the grounds that he was unsuitable to work with children.

13. The letter to the Appellant dated 24 September 2009 stated:

“In reaching a decision the following has been taken into account:

your admittance that you sent a former pupil inappropriate messages of a sexual nature;

that, having checked that the girl was alone, you sent a visual image of you masturbating over the Internet;

your admittance that, when the girl was a pupil, you put the palms of your hands on the sides of her arms and, on another occasion you squeezed her arm;

that you gave her a lift in your car on two occasions and, on one of these occasions, you discussed your ex-girlfriend with her;

the comments you made to the girl about being aged 16 years and ‘when she was twenty you could have an adult conversation with her’;

that fact that you accepted that your behaviour was professionally and morally wrong but that your behaviour had not been intentional and was a massive error;

the fact that the police found a level 3 image on your computer (although it is accepted that you told the police that you had returned this as it sickened you);

that a number of female colleagues had concerns about your behaviour towards them;

your failure to recognise that your behaviour with a 16-year-old girl was inappropriate, regardless that she had left the college;

the fact that you were not convicted of any offence.

Your representations have also been taken into account.

14. The Appellant lodged his appeal on 26 October 2005 and the response of the Respondent was dated 27 November 2009.

The Law.

15. Section 142(1)(a) of the Education Act 2002 provides that the Secretary of State, in relation to England, may direct that a person may not carry out work to which section 142 applies. This is the process widely referred to as "placing a name on List 99". Section 142 applies to the provision of education at a school and elsewhere.

16. Section 142(4) of the 2002 Act provides that a direction may be given in respect of a person only on the specified grounds. These are:

1. grounds that the person is included in the list kept under section 1 of the Protection of Children Act 1999;
2. grounds that the person is unsuitable to work with children;
3. grounds relating to the person's misconduct;
4. grounds relating to the person's health; and
5. in the case of a person taking part in the management of an independent school, grounds relating to the person's professional incompetence.

Thus, the Secretary of State must be satisfied that at least one of the specified grounds exists before he or she can exercise the statutory discretion provided for in section 142(1).

The effects of a barring on the grounds of unsuitability under section 142 (1) (b) and section 35 of the Criminal Justice Act 2000 is that the barring order made on the grounds of unsuitability carries with it greater restrictions than an order made on the other grounds. It also means that an application for review may only be brought 10 years after the original order was made.

17. Section 144(1) (a) of the 2002 Act provides that a person in respect of whom a direction has been given under section 142 may appeal to the Tribunal against the decision to give the direction.

18. Regulation 12(1) of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 also provides that an appeal to the Tribunal may be brought by a person in respect of whom a direction has been given under section 142 of the 2002 Act against such a direction. By regulation 12(2), no appeal may be brought on the ground of information or evidence referred to in regulation 9(2) unless that information or evidence has first been brought to the attention of the Secretary of State under regulation 9.

19. Regulation 9(1) of the 2003 Regulations provides that a direction given under section 142 of the 2002 Act ("the earlier direction") may be revoked or varied by a subsequent direction on either or both of the grounds referred to in regulation 9(2). The grounds referred to in regulation 9(2) are that the Secretary of State is in possession of information relevant to the decision to give the earlier direction which he or she did not have at the time the decision was made and that the Secretary of State is in possession of evidence of a material change of circumstances of the person concerned occurring since the earlier direction was given.

20. Regulation 13(1) of the 2003 Regulations provides that, where on an appeal under regulation 12 the Tribunal considers that the direction is not appropriate, it may order the Secretary of State to revoke or vary the direction.

21. Regulation 13(2) provides that the Tribunal shall not, in exercising its powers under regulation 13, consider any information relevant to the decision to give a direction which the Secretary of State did not have at the time the decision was made, or evidence of a material change of circumstances of the person concerned, occurring since the decision to give a direction was made.

22. Thus the Tribunal is, in this instance, confined to conducting a review of the decision made by the Secretary of State. The Tribunal is not empowered to re-hear the case or to determine the primary facts. It is required, in effect, to decide whether the Secretary of State had sufficient evidence upon which to base a determination that the specified ground relied upon existed and, further, to decide whether the direction was an appropriate or proportionate response in all of the circumstances known to the Secretary of State.

The Evidence

23. The Tribunal had a full witness statement from Mrs Bell, and the papers submitted to the Respondent which included full transcripts of all the Police interviews. We also had the appeal papers and statements of the Appellant.

24. Mrs Bell confirmed her statement and the investigations by the Respondent. She reiterated the view of the Respondent as outlined in the decision letter of the 24^th September 2009. The Appellant had objected to the fact that the Respondent had taken into account evidence from LG and from the teachers at school when this evidence had not been used at the crown court trial. Mrs Bell said that the Respondent was entitled to look at all the evidence that was submitted to him.

25. In reply to questions from the Appellant Mrs Bell explained that the Respondent has a different duty to that of the court. He is looking at the issue of whether the Appellant is suitable to be a teacher and therefore looks at the appropriateness of his behaviour; whether he provides a role model for children, and how he has acted in a position of trust when he is with children and young people who will often be emotionally vulnerable because of their age.

26. Mrs Bell said that there was a strong suggestion on the Appellant's part that PP had encouraged him. For example the appellant had said, in a police interview, that he considered PP had ’tricked’ him on the occasion of the web cam incident. She said that it was as though he considered PP was partly responsible. In her view the Appellant was the adult in the situation and responsible for his actions. She also took the view that the web cam incident was the culmination of a relationship which had gone on for some time before the web cam incident happened.

27. The Appellant had laid great emphasis on the fact that PP was over 16 when he considered the friendship had developed and that she had left his school. Mrs Bell was asked about this situation and said that every case had to be viewed on its own facts. In this case the interactions between the Appellant and PP had gone on over a considerable amount of time and the relationship had been more than a normal pupil/teacher relationship. She considered that the Appellant showed an inability to recognise proper boundaries between teacher and pupil. She further said that the Appellant had remained in a position of authority and trust in respect of PP even after she had left school (Shorefields College) particularly as it was such a short time after she had gone. She remained a pupil although not at the Appellant's school. The Appellant gave her his mobile phone number. He knew that she had a crush on him and that she was a young person with the pressures of changing school.

28. Mrs Bell confirmed that all the reports and references had been taken into account. She acknowledged that the Appellant had been remorseful.

 29. The Appellant confirmed his statement. He had helpfully prepared an additional document for the Tribunal. He emphasised to us the positive aspects of the statements that have been given by his teaching colleagues. All of them had spoken well about his professional qualities and described him as an enthusiastic teacher. One mentioned that he was a bit loud and brash. He reiterated his view that statements not considered at the criminal trial should not now be given weight by the Respondent.

30. The Appellant said that as soon as he was told of the allegations and suspended he had been honest about the incident. The Appellant was aware that the tribunal had seen a full transcript of all the police interviews. He said that his conduct had been unprofessional but he had not considered the morality of sexualised conversation and activity with a former pupil at the time. At the time of these actions she had left school and because of her agreement with what was happening he did not think it was inappropriate at the time.

31. He considered there had been a change once she had left school. He did not have an intention to have a sexual relationship with her. In September he considered he no longer had a duty of care towards her and had not acted inappropriately with her prior to September 2006. He acknowledged she was one of only two students to whom he gave his personal mobile phone number and other student was a young man who was interested in playing football with the Appellant's team. He said, ‘she told me she fancied me’. He acknowledged that he was in a low state in the summer of 2006 and that it was nice to be complimented.

32. He acknowledged that there was a difference between the criminal law and moral and professional standards. He said that he had felt nothing but regret and remorse since he was suspended.

33. The Appellant said that the order was having a devastating effect on his life and his desire was to work in teaching and to go back to teaching. To his credit he has endeavoured to find other work. He has completed a Masters degree and has worked in adult education.

Conclusions

34. The tribunal having read a considerable amount of background documentation, witness statements and listened to the evidence and submissions by both parties finds as follows.

35. Mrs Bell’s evidence was a coherent expression of the Respondent’s view towards inappropriate behaviour such as this. She helpfully explained the procedure and the information taken into account.

36. The central issue in this case was of the behaviour of this teacher over a fairly considerable period of time. Whilst there was some dispute about the Appellant’s behaviour prior to September 2006 we accept on the evidence that we have read and heard that the Appellant had a closer relationship with PP, a pupil at the school, than was professional or acceptable.

37. The Appellant knew that she had the crush on him and he was flattered by this and took advantage of it. He gave his own mobile phone number to her to speak to him for professional help. In fact it was used to exchange sexual text messages. She used a nickname for him which was the name used by her to identify him when he joined with her in an MSN chat room. His replies to the issue of boundaries were unsatisfactory. He implied that PP had egged him on in the matter and failed to grasp that PP was a child and that he had a duty of care for her even when she turned 16 and had ‘just’ left his school.

38. In weighing all the evidence before us we accept that there are concerns about the Appellant’s lack of judgement and understanding regarding boundaries and the teacher/pupil relationship. The relationship with PP arose directly out of a teacher/pupil situation. The webcam incident, which finally brought the relationship to light, took place on LG’s computer in her bedroom at her home. The potential impact of the webcam masturbation incident on the two girls was serious and upsetting. His behaviour was not just ‘silly’ but unprofessional and a breach of trust.

39. The Appellant certainly showed remorse and regret for what he had done but we were not convinced that he grasped the impact of his actions on PP a young person who trusted him and over whom he had authority and power.

40.  We noted the remarks of the tribunal in the case of FH v Secretary of State for Education and Skills [2005] 0552 PT. This was a misconduct case, but the same considerations apply here. The Tribunal said ‘It follows that, when considering whether a direction is or is not appropriate, the Tribunal should not proceed on the basis that the restriction was imposed as a penalty for past misconduct but should decide whether the restriction is an appropriate measure to ensure, so far as possible, that children will be properly protected and that reasonable parents and other interested parties will not have their confidence in the education system diminished in the future’. In that case  there was reference to the observation of the Tribunal in Moseley v Secretary of State [2002] 1 PC, ‘Teachers are perceived as role models for children and trust and honesty are core values which underpin the status of teaching as a profession’.

41.  We are therefore satisfied that it is appropriate and proportionate, that the Appellant should be placed on the List 99 under section 142 of the 2002 Act.

 42. Our decision is unanimous.

Accordingly we dismiss the appeal.

Ms Maureen Roberts

Ms Linda Redford

Mr David Braybrook

 6^th April 2010