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

 

 

KS

Appellant

 

-v-

SECRETARY OF STATE

Respondent

[2009] 1613.PT

-Before-

 

Ms Liz Goldthorpe, Tribunal Judge

Ms Sally Derrick (Specialist Member)

Ms Janice Funnell (Specialist Member)

Hearing 15 & 16 February 2010, and 19, 20, & 21 January 2011

Care Standards Tribunal, London

DECISION

The Appellant represented himself with the assistance of Ms Hadaway, his Litigation Friend.

The Respondent was represented on 15th and 16th February 2010 by Ms Carine Patry Hoskins, instructed by Miss Alice Clark-Platts of the Treasury Solicitors ('TSols'), and on 19th - 21st January 2011 by Ms Olley, instructed by Ms Geraldine Haack of TSols.

Appeal

This is an appeal against two decisions by the Respondent. The first was a decision to make a direction under s142 of the Education Act 2002, made on 16^th June 2009, preventing the appellant from working as a teacher on the grounds that he is unsuitable to work with children. The second is an appeal against a decision, made on 1st November 2010, not to revoke that direction, following a review.  The list of individuals prevented from working as a teacher because of a direction under the Act is known as List 99.

Restricted Reporting Order

On 30 November 2009 Simon Oliver, Deputy Principal Judge, made a Restricted Reporting Order under Rule 14 (1) (b) 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 identify any person in the case, such order to continue in force until the conclusion of the hearing and the Tribunal to consider its continuation at the hearing itself. He also made an order under Rule 26 (3) that the hearing be held in private.  At the hearing the Tribunal determined that the Restricted Reporting Order should remain in force until further order.

Preliminary Matters

1. On 11^th January 2010 the nominated Tribunal Judge granted the Appellant’s application for a Disclosure Order in respect of his contact with the Department from July 2007 onwards. In response, TSols disclosed telephone records of 4 contacts between the Appellant and unidentified members of administrative staff in the Respondent’s office.

2. For the reasons set out in the Stay of Proceedings Order dated 22 March 2010, the original Appeal was adjourned for a review to be carried out by the Secretary of State. Directions were issued with a view to the appeal being re-listed for 21 and 22 June 2010, subject to further case management directions.

3. On 16 September 2010 Judge Tudur granted an extension of the stay to 14th October 2010. 

4. On being notified that the Secretary of State had concluded the review but had not reached a decision yet, Judge Hillier held a telephone case management hearing on 11th November 2010 and issued further directions for a fresh hearing date in January 2011, with a time estimate of 3 days.

5. On 17th December 2010 the Appellant filed a further witness statement. On 6 December 2010 and 11^th January 2011 respectively the Respondent filed witness statements for Mr Shields.  At the hearing we accepted late evidence from the Appellant confirming a development in his current employment.

Evidence:

6. The Tribunal read one volume of evidence, which included the Appellant’s witness statements, and various records of his convictions. We have carefully read all this evidence, which we have taken into consideration even if we have not specifically referred to it, and bearing in mind the need to prevent identification of key people referred to in the proceedings. 

7. We heard evidence from the Appellant, who had no witnesses. He produced several character testimonials for the second hearing. The Respondent’s witnesses, Ms Carole Bell of the DCSF, gave evidence at the first hearing and Mr John Shields of the DCSF gave evidence at the second hearing.

 

The Law to be applied

Burden and Standard of Proof

8 The burden of proving on appeal that the direction was an appropriate or proportionate response to the evidence lies with the Secretary of State who must satisfy us that the Appellant was unsuitable to work with children and vulnerable adults at the time the Secretary of State took the decision. The standard of proof applied by the Secretary of State in reaching a decision is the balance of probability, i.e. the civil standard of proof.

Jurisdiction - Transitional Provisions

9. Since the original direction on 16 June 2009 barring the Appellant, a completely new regime has been set up under The Safeguarding Vulnerable Groups Act 2006 and is run by a new body, the Independent Safeguarding Authority (‘the ISA’). For the full reasons set out in the Stay of Proceedings Order dated 22^nd March 2010, the effect of the Safeguarding Vulnerable Groups Act 2006 (Commencement No 6, Transitional Provisions and Savings) Order 2009 (‘the Order’) was that this appeal was heard under the old system.

The relevant law

10. The law applied to the Secretary of State’s decision-making was sections 142 and 144 of the Education Act 2002 (“the Act”) and sections 35 and 36 of the Criminal Justice and Courts Services Act 2000 (‘the 2000 Act”). Section 144 (4) of the Act provides that the Secretary of State may by regulations prescribe the circumstances in which the Tribunal shall allow an appeal against the direction made under section 142.  The relevant regulations are The Education (Prohibition from Teaching or Working with Children) Regulations 2003. The relevant law was analysed in AJ (2) –v- Secretary of State [2009] 1527 PCA [2009] 1528 PVA and further analysed in JJ v Secretary of State [2009] 1524.PC [2009] 1525.PVA. 

11. Section 142 of the Education Act 2002 (“the Act”) provides that the Secretary of State may direct that a person may not carry out work to which section 142 applies, namely the provision of education, if one of the grounds contained in section 142(4) applies.  The direction may be made on grounds of misconduct or unsuitability to work with children. When an individual is barred on the grounds of unsuitability, s.35 of the 2000 Act extends that to prevent him or her as a disqualified person from working with children in a regulated position, i.e. making it an offence to work anywhere where, for example, their normal duties would include caring for, training or supervising or being in sole charge of children. The wording is clearly intended to cover both paid employment and voluntary work.

12. In the Appellant’s case, the direction was made on the grounds that he is unsuitable to work with children.  Such a direction does not require any finding of misconduct and is designed to be preventative. Where convictions are taken into account, the legislation does not require the offences to be against children.

13. Regulation 9(2) of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 (“the 2003 Regulations”) provides that such a direction may be revoked or varied if:

the Secretary of State is in possession of information relevant to the decision to give the earlier direction which he did not have at the time that the decision was made; and

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.

14. The 2002 Act and Regulation 12(1)(a) of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 (“the 2003 Regulations”) gives the individual a right of appeal to the Tribunal against a direction made under section 142.

15. The maintenance of public confidence in the education system is a critical issue in considering unsuitability, and unsuitability is to be judged in its widest context (CN v Secretary of State [2004] 398.PC/399.PVA). In the case of Moseley v Secretary of State for Education and Skills [2002] 1 PC, the tribunal stated as follows:

“The role of a teacher in society is an important one and parents and the general public expect and are entitled to expect high standards from teachers. A teacher is placed by the parents of the children in a position of trust and responsibility and a teacher must be able to demonstrate those qualities not only in their professional spheres of work as a teacher but also in their personal conduct. Teachers are perceived as role models for children and trust and honesty are core values which underpin the status of teaching as a profession.”

The tribunal must decide whether the restriction is an appropriate measure in response to the overriding purpose of protecting children and maintaining public confidence.

Powers of the First-Tier Tribunal

16. Regulation 13(2) provides that the Tribunal shall not take into consideration any information relevant to the decision to give the direction which the Secretary of State did not have at the time the decision was made or any evidence of a material change of circumstances of the person concerned, occurring since the decision to give a direction or not to revoke or vary a direction was given.

17. This means that the tribunal is not entitled to re-hear the matter or to take account of any evidence that was not before the Secretary of State when he made his decisions. That does not mean the tribunal is confined merely to carrying out a review since it is entitled to draw a different conclusion on the evidence from that reached by the Secretary of State.  But that conclusion must be based on a consideration of whether the direction and the subsequent decision not to revoke the direction were appropriate, reasonable and proportionate in the light of the information available to the Secretary of State at the relevant times.

18. That does not mean the tribunal could never have regard to new evidence:  it is a matter of judgment for the tribunal whether more detailed evidence it received at a hearing amounts to new information for the purposes of regulation 13(2)(a).  In practice this means a careful consideration of whether such evidence raises a new issue. The rationale for this approach and its consequences was analysed in the recent decision of the Upper Tribunal in Re JN 2010 UKUT 248 AAC

Background

 

19. The Appellant, who was born in the UK, is now aged 48 and left school in 1977 at 15 years old. He had been expelled and had very few qualifications. Thereafter, he lost his job with a firm of solicitors when he was arrested for a second time by a police officer exercising his powers under the old ‘sus’ laws.

20. As the Appellant freely admits and records from the Police National Computer and the Criminal Records Bureau show, for some years after this he pursued a life of crime. Up to 1998 the Appellant was arrested for numerous offences involving serious physical assaults, theft, robbery, handling stolen goods, possession of offensive weapons and drugs, as well as threatening or disorderly behaviour. Some of these involved offences against the police, as well as breaches of bail and probation. He received a variety of punishments including varying lengths of imprisonment, suspended sentence and conditional discharge.

 

21. From 1998 onwards the record shows a picture of intermittent offending.  There were no offences until 2001 when he was cautioned for a further offence of disorderly behaviour.  The next offence occurred in 2004 when he received a caution for threatening behaviour. Thereafter there were no further offences for 3 years until a conviction in 2007 for driving without due care and attention, followed by the offence on 9th January 2009 for which he received the conditional discharge.

22. From 2000 onwards, the Appellant began to make efforts to obtain academic qualifications, obtaining the equivalent of 4 ‘A’ levels that year, followed by an honours degree in sociology and cultural studies in May 2004.

23. He applied and obtained a place on a PGCE course at university A, which he then deferred for a year in order to obtain further necessary GCSE qualifications. Having discovered university A had discontinued its course, he was obliged to apply to university B and, as a precondition of entry, sought, and eventually obtained, work experience in 3 schools (having applied to many more). His subsequent application to university C was unsuccessful, apparently because the admissions tutor took the view at interview that the Appellant’s ability to communicate in English displayed weaknesses in that he failed to articulate his opinions clearly and concisely. He was then offered an unconditional place on the PGCE course at university B.

24. In the summer of 2007 the Appellant contacted the then DCSF – the Department for Children Schools and Families - (‘the department’), apparently concerned about the effect of his convictions on his intended career. On 31st July 2007 Ms Hadaway wrote to Mr Hewitson of the DCSF enclosing a copy of the Appellant’s convictions, his CV and a recent letter applying for work experience.

25. In November 2007 university B withdrew the Appellant’s place on the PGCE course part way through his secondary school placement.  He says he received no written confirmation of this, but was told it would be difficult to find him a suitable school because of his past. 

26. On 6th January 2008 the Appellant wrote to the department to explain the circumstances of his convictions and enclosing supporting documentation.

27. In February 2008 he accepted an offer to transfer courses to the Masters degree in Human Rights at university B.

28. In June 2008 police obtained a warrant to search his home and car for drugs, but found nothing incriminating when they carried out a raid in August. However, he was arrested and charged with threatening behaviour and racially aggravated harassment. In January 2009 magistrates gave him a conditional discharge with no costs for the first offence and found him not guilty of the second. However, this was wrongly recorded as two convictions and the error was not corrected until 2009 in the course of this appeal.

29. On 13 May 2009 the new Independent Safeguarding Authority (‘ISA’) confirmed it had been notified of these offences and enclosed a copy of the National Identification Service (‘NIS’) report as confirmation.  The letter confirmed the ISA was acting in an advisory role to the Secretary of State, who would take the new information about the 2009 convictions into account when making the s.142 decision.

30. On 16th June 2009 the Secretary of State notified the Appellant of the decision to bar him. The decision letter signed by Mr Shields stated that account had been taken of his representations and supporting documents and the fact that none of his convictions involved children. Nevertheless, the Appellant had “25 convictions for 39 offences committed between 1979 and 2009 involving violence, drugs, dishonesty and weapons” and it was noted he had last received a prison sentence for threatening behaviour in February 2004.  The Secretary of State had concluded that the nature and number of the offences committed over a 30-year period and the limited passage of time since his last offences raised concern about his suitability to work with children and young people. He was not fully confident on the basis of that evidence that the Appellant had made long term changes to his behaviour and was not satisfied he would not present a risk of harm to children and young people or would be able to present a suitable role model for them at that stage. 

31. The letter stated that in addition to being barred from carrying out work to which s.142 applied, the Appellant was also disqualified from working with children in accordance with section 35 of the Criminal Justice and Court Services Act 2000 (‘the s.35 disqualification’). It clarified this by stating that he would be committing an offence if he knowingly applied for, offered to do, accepted or carried out any work barred by s.35, which “could include paid or unpaid activity in the public, private, voluntary and volunteering sectors.”

32. In July 2009 the Appellant started working as a volunteer for a charity working with the homeless adults and those with mental health needs. He worked 4 days a week visiting prisons and police stations to assess and assist clients.  The charity subsequently gave him two further roles as an Information Officer and Race Relations Officer.  On 20 September 2010 it appointed him as a full time salaried Community Development Worker to its subsidiary organization, which caters for over 1000 service users, predominantly from the black and minority ethnic (‘BME’) community. 

33. In his work for the charity the Appellant has undertaken a wide range of both practical and policy functions addressing the treatment of people with mental health needs involved in the criminal justice system.  This has included direct liaison with police and the delivery of training programmes for such police on mental health issues and stop and search procedures. He has also been responsible for devising and setting up a peer-mentoring scheme to address re-offending rates amongst ex prisoners as well as a volunteer training programme. He is now the mental health adviser to a national policy board on criminal justice.

34. In September 2009 the Appellant lodged his appeal to this tribunal.  At the original hearing the proceedings were stayed in order to allow the Appellant to make a formal request for the Secretary of State to carry out a review of his decision.  That request was duly made on 7th April 2010 and the Appellant sent further representations to the Secretary of State. These included documents detailing his work and university experiences and setting out his goal of working in the teaching profession.  He also submitted a number of positive testimonials about his character as well as further explanations for his history of offending.

35. The Secretary of State undertook a review and sought advice from the ISA, but decided not to lift the bar.  The decision letter from Mr Shields dated 1st November 2010 stated account had been taken of the further material submitted including the Appellant’s various awards and testimonials, information from the police providing additional details of his offences, and the correction to the magistrates court record showing he had not been convicted of racially aggravated harassment in January 2009.  But the Secretary of State considered the evidence provided failed to alleviate the doubt about the Appellant’s present suitability.  This was based on the view that an insufficient amount of time had elapsed to be able to say that disorderly or threatening behaviour was no longer part of the Appellant’s life.  Although credit was given for his volunteering and additional training and it was noted 19 months had passed since his last conviction, there had been previous substantial gaps in the pattern of “25 convictions for 39 offences over a 30 year period” from 1979 to 2009.  Furthermore, whilst his case was under consideration by the Secretary of State the Appellant had also been convicted for a further offence of disorderly behaviour in 2009 and had a pending charge of driving a motor vehicle with excess alcohol.

36. The letter set out in detail the consequences of the bar and the work the Appellant would not be entitled to carry out.  It made no reference to the s.35 disqualification contained in the original decision letter in 2009.

The Respondent’s evidence and submissions

37. Ms Bell’s involvement with this case started in late 2009 and her evidence only related to the original barring decision.  She did not doubt the statistics on discrimination or the compelling evidence the Appellant had been disadvantaged. But the evidence, including the scale and scope of his convictions, showed he had no remorse, had not reformed and blamed others for his past. He was still questioning authority and was temperamentally unsuited to teaching, which was a very stressful job.  Teachers were professionals who needed to rise above the pressures and remain calm, unflustered and businesslike.  They had to accept challenge and display resilience and integrity despite adverse or unfair experiences.  She believed the evidence showed the Appellant would fall short of this standard. The 2009 conviction had been considered within the overall history. 

38. Mr Shields is the Team Leader who supervised staff responsible for processing the Appellant’s case and signed both decision letters.  He filed two witness statements giving the context for both decisions. He said the Appellant's lengthy criminal record showed a habit of aggressive outbursts indicating he had problems with temper control that "would cast serious doubt on his suitability to respond appropriately to the frequent challenges of contemporary pupil behaviour and school life." This general conduct had not significantly abated in recent years and it was a matter of concern that the Appellant thought it had.

39. Credit had been given to the significant determination shown by the Appellant to overcome the hurdles he had faced and that his references stressed his suitability to work with children. Given the length of time since most of the offences, which related to verbal exchanges rather than physical harm, it could be argued he had been "trying, albeit with at times questionable success, to reform his behaviour."  But his long and substantial criminal record showed a habit of engaging in verbal or physical outbursts, and his last conviction in January 2009 simply added to that impression.  There was no confidence he had changed his behaviour sufficiently to be able to live without re-offending or to avoid committing violent offences that presented a risk to others or to address his anger management problems.  Specifically, had he chosen to undertake anger management counselling that would have been evidence that the Secretary of State could have taken into account in assessing the Appellant’s suitability he would be expected to have a lengthy period clear of aggravated outbursts before he could be considered suitable.

40. The Appellant had admitted to a hatred of the police and authority in the past and blamed them for his criminal behaviour.  He had presented himself as a victim rather than taking responsibility for what he had done. His priorities were also questionable: rather than focusing on demonstrating his suitability, the Appellant had expressed his wish to turn things round and get his life back. Trust and honesty were core values underpinning the status of teaching as a profession and the public was entitled to expect high standards of teachers. In a potentially high pressure area of work, the Appellant’s aggressive conduct, problems with temper control and lack of respect for authority presented a potential risk of harm, direct or indirect, to children.

41. Credit was given to the Appellant’s successful voluntary work and his testimonials, which showed his great proficiency with extremely vulnerable groups. But these activities were not sufficiently close to teaching to demonstrate suitability. Mr Shields paid tribute to the efforts the Appellant had made, but on balance he had not yet done quite enough to satisfy the requirements.

42. The Secretary of State’s original decision in June 2009 was based on sufficient evidence. The totality of the evidence supported the existence of a specified ground in section 142(4) and the decision to continue the direction on review.  The decision was an appropriate and proportionate response in all the circumstances to ensure the protection and proper education of children and/or to maintain public confidence in the education system.

43. Both Ms Bell and Mr Shields denied that staff had given advice in the way the Appellant had alleged and no record could be found of any such discussion.  At the time there was no set procedure for recording telephone calls consistently: some staff only recorded those seen as significant. Mr Shields had spoken to Mr Hewitson and was satisfied no assurances had been given to the Appellant, and would not have been during a telephone call. Staff were trained not to do so and to tell individuals to seek legal or other advice from appropriate independent organisations. He denied the Appellant had been given clearance to accept a place on the university course and said staff had no power to request a CRB check for anyone. The most Mr Hewitson would have said was to confirm the Appellant was not barred whilst his case was under consideration.

44. Ms Olley stressed that the central factor in the decisions reached by the Secretary of State was the Appellant’s long history of convictions and offences between May 1979 and December 2009.  None of the offences involved children, but they had persisted well into adulthood and showed evidence of a pattern of behaviour and a disregard for authority that could not be ignored. As Mr Shields had pointed out, the Appellant’s positive attributes might make him an excellent role model for children already in trouble or in danger of being so, but he had not entirely left behind the attitudes and conduct that made him generally unsuitable, and continued to make him unsuitable, to work with children.

 

45. Public confidence was critical.  The history included very serious convictions, with ongoing concern about the Appellant’s approach that was directly relevant to work in schools.  He was not a suitable role model, a conclusion reinforced by the level of irresponsibility shown by his pending conviction for drink driving.  This event could not be blamed on institutional racism.  He complained of being stopped by the police but had not shown any understanding that he could control his own reactions and behaviour. There was a strong element of failing to take full responsibility for his actions and a palpable ongoing anger with police. Despite his obvious progress and insight at work, he was unable to stay out of trouble in his personal life and he continued to be unpredictable in his reactions to police and departmental staff.

46. It was important for a teacher to behave in all contexts with propriety and there was concern that the Appellant had acquired further convictions between July 2007 and June 2009 whilst the Secretary of State was considering his case. Successful attendance at an anger management course and a longer period without re-offending would mean the Secretary of State could reconsider the direction before the 10-year period expired.

Appellant’s evidence and submissions

47. The Appellant said the direction had been based on flawed, unfair and unbalanced evidence.  The Secretary of State had failed to take into account that the serious convictions were committed at a much younger age or to have regard to the context of the offending. 

48. The Appellant freely admitted he had conceived a hatred of the police based on his early experience of being arrested, which had turned him into a career criminal for a long time.  He told us he accepted he had committed serious offences that had caused considerable distress..  However, he had made strenuous efforts to rehabilitate himself.  The later convictions were much less serious and did support the alleged pattern. They reflected the common experience of regular harassment by police of black men.  He had gradually learned strategies to deal being stopped, and these had informed his recent work with the police.

49. His honesty from the outset had not been recognised.  He had contacted the department himself only to experience excessive delays and a lack of professionalism and inefficiency that had severely impacted on his life.  He was devastated to find himself on List 99 with people who had committed very serious offences against children.  He continued to insist the department had repeatedly told him his CRB check was no problem and he could carry on studying and take up school placements. He had been very surprised when his university course had been terminated on the basis of his CRB check

50. His profound sense of shame about the implications of being on List 99 had prevented him seeking supportive testimonials or character references. He had been encouraged to provide these for the review and thought they would make a difference.  They were uniformly supportive and attested to the changes he had made in his life. They described him as an excellent parent and an excellent role model for children given the adversities he had overcome.  Two specifically stated he was suitable, with further referees attesting to his acceptable behaviour. Professional colleagues confirmed the value of his work, praising his commitment, consistency, seriousness and reliability, and said he had played a key role in the expansion of the charity’s service.

51. He stressed he had persisted in the face of considerable challenge, overcoming obstacles that included educational disadvantage, discrimination and very serious offending, to achieve academic and professional success, as well as a successful musical career. His strenuous efforts to put the past behind him and fulfill his potential was testament to the ability to achieve anything if an individual put their mind to it.

52. Taking proper responsibility for his actions and contacting the Respondent to seek help had resulted in an inordinately long delay followed by an appeal.  The appeal was protracted by a review, but this had simply confirmed his listing despite his efforts.  Rather than see himself as a victim of the unacceptable delay, he had chosen to work as a volunteer with the mentally ill and vulnerable for nearly 18 months.  This brought him into daily contact with a range of vulnerable, often unpredictable, aggressive and emotionally volatile clients of varying ages.  He had dealt with difficult issues and people, had unrestricted access to police stations and worked with public bodies and a range of people within the criminal justice system including senior police, prison and justice officers.  He was involved in strategic decision-making at a national and high level.  He believed the training initiatives for which he had been responsible had made a valuable contribution to police perceptions of the mentally ill and the BME community.

53. Prevented from working with children, there was no other way to demonstrate his suitability. He had gained a wealth of highly relevant experience and in one sense the delay had benefited him because he now had tools that would make him a better teacher than he would otherwise have been.  His subsequent work with the police had more than outweighed the evidence of his previous problems with them . 

54. The schools he had worked in had had the foresight to appreciate the value of his experiences and had used him in the challenging settings of learning support units.  A similar approach had been taken by the charity in the responsibilities it had given him. He was aware of the challenges pupils could present and would use the strategies he had learned in order to defuse situations in school, seeking assistance where appropriate. 

55. He was not a risk to children and the listing involved a 10-year ban that was a disproportionate response to his situation.  That would effectively prevent him ever working as a teacher or even coaching his child’s football team.  He had achieved rehabilitation through personal development and change, but the Secretary of State’s direction appeared to undermine the concept of this. He had chosen teaching as a vocation in a desire to make a difference to the lives of children like himself, whose lives had taken them into a downward spiral.  He was particularly suitable to be a role model as a black male with his history and he believed the public would want to be confident that there were teachers who could act in children’s best interests and offer relevant experiences to influence and shape their lives.  The Secretary of State’s ruling sent out entirely the wrong message because it effectively said attempts at rehabilitation were pointless since the individual was condemned forever to be seen as a criminal.

56. Sadly, all his efforts counted for nothing as the Secretary of State continued to place further requirements on him to prove his suitability. The experience had left him utterly disillusioned and unable to see a future in teaching or a purpose in remaining in the UK. His overriding wish now was to have his name removed from List 99.

Findings:

57. This case turns solely on the issue of suitability and it is important to note from the outset the number of concessions made by the Respondent in the course of this appeal in relation to several key issues.  These were as follows:

 

a) The convictions

 

i)  At least two of the convictions recorded on the Police National Computer (‘PNC’) were incorrect and should be discounted.  One was in 1978 and the other was the second of the two convictions in January 2010.  Ms Bell recognised these errors could well cause considerable resentment as she knew someone who had experienced much the same difficulty.

 

ii)  The Appellant’s last act of dishonesty had taken place in 1990

iii) There were no offences against children and no evidence that the Appellant presented any direct risk to children.

 

b)  Rehabilitation and suitability

 

i) The Appellant’s enormous efforts to rehabilitate himself and his testimonials showing he had achieved great success in his work were greatly to his credit.

ii) He could not have produced any recent evidence of working with children having been specifically barred by the direction in 2009. His recent work meant he had to deal on a regular basis with clients who presented childlike behaviour and with those who were more vulnerable than the ordinary run of pupils in a school.

 

iii)  His recent appointment to a paid job was not information that was before the Secretary of State prior to the 2010 decision, but it was sufficiently connected to the original material provided about his work so that the tribunal should include this evidence in its considerations.

iv)  No previous mention had been made before the review of any suggestion that he could attend any form of anger management counselling in order to influence the Secretary of State’s decision. No-one had suggested this in 2009 and it was not mentioned at the first hearing:  the only issue for him to consider was the production of testimonials, which Ms Bell had raised.   

 

v)  Working with children and young people presenting with offending behaviour or at risk of offending was an area of work at which the Appellant could excel.

 

c)  The Respondent’s procedures

 

i) This was an unusual case in that the Appellant had referred himself to the department and there was no other person or body involved. But those circumstances made no difference, since once engaged with the department he could not withdraw from the process, or decide he did not wish to become a teacher, because the Secretary of State has a duty to investigate.

 

ii) The Appellant was told the Secretary of State had not barred him prior to the direction being made.  He was also advised to seek independent advice, since the department did not give advice. However, it was possible that, in discussions with staff the Appellant had interpreted this as meaning he could carry on working.

iii)  Until very recently the Respondent had no protocol for recording telephone calls to the department and staff would only record such calls as they deemed significant. That had worked to the Appellant’s disadvantage since the order for disclosure had only revealed calls the staff had recorded and there was no record to support his contention that he had repeatedly sought, and had been given, advice by staff.

iv)  The 2 year delay in reaching a decision had been unhelpful.

v)  The decision had been a finely balanced one

 

58. Ms Bell also accepted that testimonials from the Appellant could have been taken into account in the first place and would have made a difference to the outcome, but none had been supplied. Mr Shields accepted that the subsequent testimonials had not produced a change of decision on review.

Is the Appellant unsuitable to work with children?

59. There were a number of key factors to address in considering the issue of suitability and we have set out our findings in relation to each of these below

The Appellant’s attitude to his offending behaviour and his convictions

60. In considering the Appellant’s suitability to become a teacher, we have carefully examined the Respondent’s argument that he had not accepted full responsibility for his actions.

61. He put forward reasoned arguments for his failure to take responsibility for his earlier convictions and clearly genuinely felt he was pushed into a life of crime. Apart from the very few offences he denied committing, the Appellant did accept that his history of offending was serious. We acknowledge there were some reservations about the degree to which he could have chosen not to commit such offences. However, with hindsight he accepted he should not have committed them and gave convincing evidence about having taken responsibility for this. It is clear that this period of his life still causes him great distress and he retains the belief that the police were to blame for precipitating the chain of events.

62. The Appellant was clearly exercised by a small number of things he believed he had not done, some of which were errors on the record.   He was consistent in his evidence and he did not attempt to introduce any fresh justification for his past actions. He was very clear that the tipping point for him had come when he was picked up by police in 1978 for loitering with intent, or ‘sus’ and that police harassment was responsible for turning him into a criminal. 

63. In order to examine whether this explanation has any merit, it is important to explain the historical background to the ‘sus’ laws. This law, based upon sections of the 1824 Vagrancy Act, authorised police officers to stop, search and arrest anyone suspected of loitering, or otherwise intending to commit an offence. In order to stop someone, police needed only 'sus', or suspicion, that they might be intending to commit a crime. The statistics on arrests fuelled the belief that it was an arbitrary exercise  by police who were exempt from the Race Relations Act, and seemed to some to be operating on the basis of racial prejudice:  42% of 'sus' arrests were made on black people, as opposed to 12% of all arrests, with the Metropolitan Police featuring heavily in the figures. 

64. It is difficult perhaps for those who did not live through the period prior to 1981 to understand just how oppressive this law was perceived to be and the degree of community unrest that resulted Indeed, its abolition was brought about by a series of very serious race riots in London and other major cities as well as the recommendations of the public enquiry led by Lord Scarman into the Brixton riots.   He was heavily critical of the Metropolitan Police, emphasising that policing in a civil society could only succeed with the consent of the community.

65. That this abolition was not the end of the matter will be evident in particular from the riots following the death of Stephen Lawrence and the findings of the subsequent McPherson Inquiry that the police were “institutionally racist'.  Lord Bradley’s Report in April 2009 on a review of people with mental health problems or learning disabilities in the criminal justice system also raised a number of issues about the interface between the black community and the criminal justice system.  The abolition of the ‘sus’ laws does not appear to have decreased the disproportionate reflection in arrest statistics of members of the black community.  According to recent Home Office statistics, black and Caribbean people are six times more likely to be stopped and searched by the police, three times more likely to be arrested and seven times more likely to be imprisoned.

66. The historical and cultural evidence from a very wide range of sources about the relationship between police and the BME community supports the Appellant’s description of this being a "work in progress". This is not to condone his period of very serious convictions, but serves to provide some context for the prolonged attitude he maintained towards the police, the obstacles he had to overcome to deal with his offending behaviour and his current approach.

67. We are clear that the legislation does not allow us to go behind the fact of convictions. However, given the errors on the face of the police records, we have some reservations about the February 2004 conviction for threatening behaviour.  The Appellant categorically denied receiving a 21-day prison sentence for this. He received a caution in April 2004, which would seem an inherently unlikely outcome if he had only recently been to prison. It may be that this caution was actually for the same offence, but there is no way of resolving the issue.  But his denial does appear somewhat at odds with his acceptance of all other convictions accurately recorded against him.  There seems to be little reason, and certainly no advantage, to forget or to deny going to prison shortly before graduation.  Set in this context we have not attached undue weight to this record of conviction nor is it significant enough to undermine the Appellant’s overall credibility.

68. The Appellant gave plausible explanations for his past failure to accept responsibility for his actions. Although he still believes he was pushed into being what he described as a professional criminal, apart from the very few convictions he did not accept (at least two of which were conceded as inaccurate by the Respondent) he accepted the rest largely without reservation.

69. We have considered whether he has examined realistically the issue of choice in the circumstances he faced as a young man. He did not say it was open to him to have made a different choice in 1978, is clearly still distressed about what those events represented for him and blames the police for what happened. Nevertheless, there is convincing evidence he accepts a great deal of guilt for the ensuing convictions over a long period that extended beyond his adolescence. He has also shown with admirable commitment that he has confronted his demons by working with the police. He gave a convincing account of how he has faced up to his past hatred and resentment and has come to understand the police are doing a job and that he can help them in that job. This change of attitude goes beyond what this tribunal often sees in other cases.

The analysis of convictions

70. On careful analysis, the Secretary of State’s allegations about a consistent and continuing pattern of behaviour could not be sustained.  The string of offences up to 1992 does show a pattern of very serious criminal behaviour, including issues of confrontation and aggression. The most serious behavioural offence was a conviction for grievous bodily harm in 1982.

71. But the last offence involving dishonesty was the conviction in 1990 for handling stolen goods and the last serious offence involving behaviour was a conviction for actual bodily harm in 1992.  From this point on the history of convictions bears out the Appellant's assertions that he was making attempts to break away from his past and to reform himself.  One further offence involving behaviour in 1998 was a conviction for the lesser offence of common assault.

72. This change is reinforced by the evidence that from about 2000 the Appellant demonstrated increasing commitment to a path of educational improvement. It is noticeable that he only received cautions between 2000 and 2004, which indicates a much less serious level of offending.   From 2004 to 2007 there were no further offences at all.  The 2007 conviction for driving without due care and attention merited only a fine, indicating the court did not treat this as a particularly serious matter.

73. The Respondent’s attempt to highlight a distinction in the Appellant's attitude between his professional and personal life was not borne out by the facts.  The only matter of any real consequence that occurred from 2007 to 2009 occurred during the police search of his home and car in August 2008. But it is significant that this undoubtedly distressing incident in front of his family resulted in the Appellant being given one conditional discharge. Set against the background of his previous offending history this outcome is probably testament to the way in which the court perceived the matter. In any event, the result was to his advantage:  the police found absolutely nothing and the conditional discharge seems to indicate his reaction did not lead to a serious fracas and a repetition of the behaviour he had shown in the past.

74. The only remaining offences were a driving conviction in January 2007 and the pending conviction for drink driving. Although personal life is relevant, it is important to be proportionate about such matters. This level of offence is no more than a cross section of the general community might be expected to have and it would be simply be unsustainable to take every such offence into account in judging the behaviour required of a teacher or any other professional role model from whatever section of the community.  Indeed, there are teachers who do possess such convictions without attracting recrimination to the point of depriving them of a career.  The statistics on members of the BME community being stopped may indicate an increased likelihood of minor convictions and should be a reason to be cautious.

Rehabilitation

75. If rehabilitation is to have any meaning, it must be undertaken with commitment and with insight.

76. The above analysis of the Appellant’s record of offending shows increasing efforts to reform his life from 1992 onwards.  All the behaviour offences between 2000 and 2004 only resulted in police cautions, bearing out the account of attempts at breaking away from the past and to reform.  The lack of any offences at all from 2004 and 2007 reinforces this, as does the admirably direct way in which the Appellant has chosen to confront his past and work through his attitude towards the police in particular.

77. His willingness to work with the very officials he professed to hate for their discriminatory views and behaviour, and his impressive supporting testimonials are clear evidence of the major changes he has made in his life. He was particularly compelling in his oral evidence about the changes in his attitude.  He described not only a different reaction to being stopped by police, but also the strategies he used to reduce the potential for confrontation and escalation, which he had taught to others. He trains professionals and police on ways to defuse the very situations he has experienced in the past and has been promoted within his workplace as a result of his direct involvement with the police.

The Appellant’s relationship with the Respondent

78. The Appellant had suspicions about the coincidence of events in 2007 that culminated in his loss of his PGCE course.  His submission of documentation in July 2007, together with his consent for a CRB check to be obtained was followed in November by the withdrawal ‘out of the blue’ of his university place and the Secretary of State’s letter inviting him to make representations. This sequence may have looked like a conspiracy, reinforced by the Appellant’s belief that the department must have had contact with the university in order to satisfy its duty to explore both sides of the story. Nevertheless we accept it was an unfortunate coincidence.  Mr Shields was a very fair and credible witness:  he was clear no such contact had occurred and there was no record on file to indicate otherwise.  There was no need for staff to consult an outside body that had not made a complaint. 

79. Since the Appellant had given consent for the department to obtain his CRB check in July 2007, the most likely explanation seems to be that the university’s receipt of this was a separate process.  Having not obtained it until much later on in the course as part of the usual check on potential trainee teachers, the university unilaterally withdrew the place on the grounds that his convictions were likely to make him unsuitable.  In this scenario, the university would not have been aware of the List 99 process and the tutor who had caused the Appellant difficulties earlier on in his academic career would merely have seen the CRB check as a further opportunity to cause trouble.

80.   However, since the Appellant had contacted the Respondent in search of clear advice on his situation and had been unable to obtain any satisfactory outcome, for this process to be followed by the loss of his professional qualifying course must have seemed akin to a double blow.  In circumstances the sequence of events does add weight to the view there may have been credible reasons for him to make or assume a connection that amounted to collusion.  His view must have become increasingly jaundiced over the two years it took for the Respondent to issue a direction officially barring the Appellant.

81. The length of that delay is a telling factor in this case.  It was not just unhelpful but a wholly unacceptable length of time in which to leave the Appellant in limbo in order to take a decision that involved far  fewer complicated factors and far fewer  individuals than the usual run of cases.  In addition, the duration itself might well serve to emphasise to an appellant that matters were not regarded as serious and he could continue to work.  It is not unreasonable to suppose that, in the absence of a direct negative, the Appellant also interpreted the Respondent’s oral and written explanations as meaning he could carry as before. This is not unlike being allowed to continue driving in most instances until conviction. He was never given any clear simple explanation (or at least not one that carried any meaning for an intelligent man) about the system of barring and the implications for not being barred initially. That in itself explains his misunderstanding about paedophiles continuing to be allowed to work pending a decision.  In the final analysis, what is extremely important is that the delay undoubtedly caused the Appellant a great deal of understandable resentment and confusion.

82. We also note that there is some confusion between the respective decision letters. In June 2009 the Appellant was told he was barred from voluntary work, reinforcing the point that he could not have demonstrated his suitability by undertaking anything in connection with children.  But this specificity is missing from the letter in November 2010, although by this time effectively he would have been unable either to clarify the point or to take advantage of it. 

83. We are particularly concerned about the failure to include in the bundle of evidence prepared by TSols the letter of 8 November 2007 that was ultimately given to us at the first hearing.  This letter was important because it confirmed the Appellant had contacted the department because he was finding it difficult to get school placements, and it showed what the expectations of him were at that stage.  It does not assist either party or the tribunal to omit such correspondence not once but twice and it is doubly unfortunate in a case such as this where the Appellant believes he is also fighting organisational prejudice.  In such circumstances, and given the focus on institutional racism, it is important to guard against giving the wrong impression by such actions or omissions, however unintentionally or inadvertently.

Diversity, discrimination and attitudes to authority

84. There are a number of factors to take into account in judging whether it is accurate to describe the aggressive outbursts as a continuing pattern of behaviour, or to what extent any of these incidents could be described as a legitimate response to frustration.  There is a large quantity of cultural, historical, statistical and public policy evidence to support the inherent likelihood of black men being brought into more regular contact with the law than the white population.  We have dealt with the Appellant’s assertions about his reactions and his current views of the police above, which we found to be a clear and distinct account of his past and present views.

85. Frustration may cause an individual to react adversely, particularly at a younger age, which may in turn lead to a spiral of escalating responses and inevitable convictions. However, for the purposes of public confidence it is crucial to judge an individual's history by reference to the changes they have made to deal with adversity and with challenges perceived to be unfair.

86. We have carefully examined the evidence for the Respondent’s contention that the Appellant had made a distinction between his professional and his personal life that showed a failure to generalise what he had learned into his own behaviour outside work.  In particular we have examined events between July 2007 and June 2009, and between the date of the first hearing in February 2010 and the second decision taken by the Secretary of State in November 2010.

87. The Appellant has one driving conviction in January 2007 followed by the search warrant in 2008 that led to the abortive police raid and the single conditional discharge.  There was nothing subsequently, save for a pending drink driving offence.

88. Using these latter convictions as justification for alleging a continuing pattern of behaviour is, in our view, somewhat excessive. Whilst conduct in personal life is relevant, this level of offending is no less or more than a cross section of the community might be expected to show, particularly within the BME community, given the greater likelihood of this section of the community being stopped. In particular, they are offences that working teachers of whatever ethnic background may also possess without any recrimination. 

89. Whilst we cannot go behind the fact of the convictions, nevertheless we are entitled to consider whether it was proportionate to take these latter convictions into account in such a way that they influenced the decision to bar the Appellant. Bearing in mind our observations about minor offences above, in these circumstances we find that a reliance upon one conditional discharge for a relatively minor behavioural offence would be disproportionate.

The Secretary of State’s requirements

90. We have taken into account the testimonials supplied by the Appellant. We accept the Appellant's explanation that he was too ashamed to seek these out in the first instance and the fact that he did so for the second hearing is greatly to his credit. In that sense, the delay was to his advantage since he was able to gain sufficient recognition and therefore self-confidence in what he was doing to enable him to seek this supporting evidence.  The praise and confidence expressed are unusually and uniformly consistent and speak of a man who is highly regarded and valued.  The total absence of any reservation entirely supports the extent of the rehabilitation he has achieved:  if there had been problems with his management of his attitude and behaviour these would have been clear by now.

91. We have also considered whether the Secretary of State is justified in imposing further conditions on suitability.  Firstly, the statistical probability of the Appellant achieving a longer period without any offending places him at a disadvantage by comparison with a white Appellant for the reasons already discussed above.  It is inherently unlikely that he would escape being stopped, but we are satisfied it is very likely any offences would be minor. The issue of anger management was raised very late in the day and the evidence of the Appellant’s work with the mentally ill and offenders should have been sufficient to satisfy the Secretary of State’s concerns about the Appellant’s volatility and ability to exercise his own internal controls.

92. We do not believe that these further obstacles are, in the final analysis, proportionate. A longer period without any offending is both unrealistic and unreasonable in all the circumstances given the statistical probabilities outlined above.  The anger management proposal was made in circumstances that rightly caused the Appellant some frustration:  that he did not react more strongly than this is to his credit. The evidence of his work in very difficult circumstances and with a very challenging client base and the progress he has made in a very short space of time to inspire confidence in his approach is testament to his ability to deal with anger and confrontation in real life on a day-to-day basis.

Public confidence

93. To the critical issue of parental confidence in those responsible for the education and care of children and young people must be added the important point made by the Appellant about parental confidence in the institutions, not just the people. 

94. We have taken into account the unusual circumstances of this case:  judged against the general category of appeals to this tribunal, this one is most unusual.  The Appellant has found himself in the system as a direct result of wanting to do the right thing by foreseeing difficulties and addressing them by asking questions.  He has also sought advice from NACRO. The vast majority of cases involve misconduct or health issues but he has never been referred to the department by any organisation or individual and there have been no expressions of concern by anyone other than the Secretary of State.  His sole intention was to resolve the problems he faced and to do the right thing by them. In so doing and in managing to overcome considerable obstacles to rehabilitate himself, he is at some considerable distance from the usual run of appellants considered by this tribunal.

95. The Appellant was right to say that most parents are concerned about offences against children. The Appellant has no directly relevant convictions and it is clear children are not at risk from a man who has managed to rehabilitate himself in the way we have already described.

96. His ability to be a role model for young people facing similar challenges he has experienced is not in doubt.  Indeed, we believe he has particular strengths to offer children and young people at risk given the way in which he has turned his life around.  It seems very likely that a school would want to use his skills in a learning support environment and we have no doubt he could make a very real contribution to these sections of the school population. 

97. But to judge his suitability in this way would be to ignore the nature of the task.  We are not here to judge the quality or type of teaching of which he might be capable, but to decide whether he is suitable to be a teacher of children and young people in general, no more, no less. Within any school there are pupils who present problems but equally there are others who simply need to be taught and suitability must be judged not simply on an ability to address the needs of those offending or at risk of offending.  For the very reasons the Appellant finds himself in the barring system, he was unable to produce testimonials about direct classroom experience.  But he gave good answers about the management of a classroom, including asking for help if he were faced with difficulties and involving parents and police where appropriate and helpful. We have no doubt he would manage with the environment of a normal classroom with the support systems that are in place for newly qualified teachers. The fact that his skills are likely to be deployed most effectively in a unit is not a reason to bar him from teaching generally.

 

98. It is vitally important that the public is protected from those who would seek to harm children.  That is the overriding purpose of the legislation.  However, care must be exercised to ensure that the pendulum does not swing too far in the direction of over-caution.  That may prevent the employment of people who do not always fit the conventional model, but whose life experiences have much to contribute to children's motivation and understanding of the world around them and how best to deal with adversity in whatever form.  We do children a great disfavour if we aim always to provide them with role models that are entirely safe and predictable in the interests of protecting them from those who would really seek to harm them either by default or by design. Mr Shields undoubtedly partially recognised this in his very fair characterisation of the Secretary of State's second decision as “finely balanced”.

Our conclusions

99. Our findings show that the decision in 2010 following review was not a proportionate or appropriate response in the light of the information available to the Secretary of State.  The most recent evidence of the Appellant’s paid employment merely reinforces the information on which the decision was based.

100. We would make the following observations:

i) The fact that an analysis of the convictions does not show quite the pattern of behaviour alleged, and on which the Secretary of State relied in the first place, indicates the decision at that stage was not proportionate.  However, we do understand the context for the decision, given that the Secretary of State was without the benefit of the later information supplied by the Appellant and his oral evidence.

 

ii) But we are extremely concerned about the 2-year delay, which effectively resulted in the Appellant’s life being put on hold to the point where, understandably, he is completely demoralised and does not wish to become a teacher any longer.  He merely wishes to remove his name from a list he regards as a source of extreme shame, especially within his own community

iii) Given the circumstances in which he had approached the Secretary of State, this delay was even more unacceptable. If the Appellant had not taken the advice of NACRO and sought help and guidance from the DCSF about his previous criminal record because he was on a PGCE course, the matter would not have come to the department’s attention. As a result he found himself locked into a system in which he could not have taken a decision to cease teacher training in order to avoid the listing.

iv) There was also something of a “tick box” approach used in the protocols for gathering the evidence.  Whilst we accept there is a duty to investigate, in this case the Respondent demonstrated a singular lack of appropriate prioritisation or a proactive approach. Its handling was characterised by the sort of closed logic that turned what should have been a straightforward matter into a prolonged, distressing and confusing situation for the Appellant.  In effect, he found himself trapped, unable to pursue his chosen career and, if he wished to escape the effect of the bar by proving his suitability, (regardless of whether he wished to continue teaching or not), without paid employment for a very long period of time.

v) We welcome the recent change to the previous unfortunate practice of failing to make a proper record of contact, with staff only recording those calls that supported the department’s view. 

101. In summary, we have concluded that neither the convictions nor the history demonstrate sufficient evidence to show a pattern of continuing aggressive outbursts or inappropriate responses or frustrated reactions. We have also concluded that the Appellant’s considerable efforts to show his suitability are well beyond the level of engagement of many appellants to this tribunal.  For the reasons set out above, we believe he is suitable to be a teacher and has much to offer the profession and the pupils for whose education he will be responsible.

102. For all the above reasons and in these circumstances we have concluded that  the decision in 2010 was not appropriate or proportionate in the light of information then available to the Secretary of State and therefore the direction should be set aside.

ACCORDINGLY, THE APPEAL IS ALLOWED

We direct the Secretary of State to remove the Appellant’s name from the list maintained under Section 142 of the Education Act 2002 (“List 99”).

Date: 3^rd March 2011

Signed

Liz Goldthorpe, Tribunal Judge

Sally Derrick, Specialist Member

Janice Funnell, Specialist Member