DECISION

 

 

Case No: [2009] 1733.PT

 

THE FIRST TIER TRIBUNAL (CARE STANDARDS)

 

BETWEEN

 

ID

Appellant

 

-AND-

 

THE SECRETARY OF STATE FOR CHILDREN SCHOOLS AND FAMILIES.

Respondent

 

 

Before: Tony Askham (Tribunal Judge)

Susan Last

Raymond Winn

 

 Dates

 

18 and 19^th August 2010 and decision consideration 28^th March 2011.

 

Decision

 

Appeal

 

ID appeals under Section 144 of the Care Standards Act 2002 against the Respondents’ direction contained in a letter dated 30^th September 2009 to bar the appellant from employment to which Section 142 of the Act applies.

 

Attendance

 

For the Appellant

 

Mr Bentote (helper and witness)

The Appellant

 

For the Respondent

 

Paul Ozin (Barrister)

Instructed by Sarah Townsend (Solicitor)

 

Witnesses:

John Shields (18.08.10)

 

Preliminary matters

 

1.     After the hearing on the 18 and 19 August 2010 we adjourned our decision to seek further documentary evidence from both parties as to certain of the main allegations against the appellant.  As a result we have now produced to us by the appellant documents relating to the appellant’s divorce and custody and access hearing in the Bristol County Court in 1995 and 1996 and by the respondent the indictment of the appellant in the Portsmouth Crown Court on four charges of indecent assault dated the 14 September 2000.

 

2.     In addition the respondent has shown us that all the records relating to the Bristol prosecution are certain to have been destroyed and similarly all papers as to the Portsmouth prosecution have also been destroyed. It appears possible that there may still be papers in the Bristol County Court relating to the divorce proceedings but at this time these are not available to us. 

 

3.     In the circumstances we have decided we must now make a decision on the basis of the evidence now available to us.

 

4.     In addition we have received the further final written submissions of both parties.

 

The Issues

 

5.     The Appellant, who was employed as a math’s teacher at Bay House School and was referred by it on the 19^th October 2007 to the Independent Safeguarding Authority as a result of its investigations following it finding out that the appellant, had been arrested for alleged child abduction.

 

6.     The Respondent maintained that the Appellant had been the subject of a number of serious allegations involving serious misconduct with children and as a result is unsuitable to work with children.

 

7.     The Appellant maintained in his Notice of Appeal, that he had been found not guilty on two occasions of alleged indecent assault on children. That he had never committed any act of indecency with children and that the allegations against him were untrue or exaggerated. Although he no longer intended ever again to work with children he stated that his name should not be placed on list 99.

 

The evidence

 

The Respondent’s evidence

 

8.     Counsel for the Secretary of state took us carefully through the skeleton argument he had prepared and which set out each of the allegations made against ID and on which the Secretary of State relied in arriving at his decision to place ID on list 99.  These allegations relate to two separate types of misconduct the first and most serious allegations A1 – A4 which relate to separate allegations of indecent assault on children and A5-A7 which relate to school related issues.

 

9.     These matters and key dates were presented to us by the Respondent as follows:

 

Event	Comment
Indecent assault recorded in police notes from Avon & Somerset Police [10b].
[A1] Indecent assault on 11 year old female neighbour [JH] allegation (Bristol); prosecuted and acquitted. Applicant claimed at the Bay House School meeting 15/5/07 [10i] that this complainant colluded with the 2 complainants in [A2] and that the case was withdrawn when one of the girls made a statement saying the allegations were untrue. He said that the allegation was of looking at the child inappropriately which was classified as indecent assault. In the Applicant’s representations to the Respondent [15], he said that the evidence of the mother and brother discredited the prosecution case and that a letter from [LJ] (see [A2]) indicated that she had lied to cover for [JL]. Police CPT referral log [10m] records that following decision of mother of complainants in [A2] not to allow them to give evidence, case proceeded with evidence of JH alone and Applicant was acquitted. Enquiries of CPS [10b] indicate that proceedings for indecent assault would not have been brought merely for looking at a child inappropriately. The true facts are not known.	First young female complaining of sexual abuse (not counting 10/11/96 incident). Applicant’s assertion on 15/5/07 as to nature of allegation inaccurate.   Applicant’s assertion on 15/5/07 as to the circumstances of acquittal inaccurate.
[A2] Indecent assault on 13 year old girl [CJ] and 14 year old girl [LJ]; charged but withdrawn A substantial quantity of material from the Avon & Somerset Constabulary [10m] shows: ·       These are the children of Applicant’s then girlfriend. ·       Allegations by [CJ] of touching breasts; sister hinted same may have happened to her. ·       [CJ] first disclosed to her father allegation of touching her between her legs and said first incident happened when she was 5 or 6 and the second when she was 8. ·       In police interviews both [CJ] and [LJ] made disclosures of indecent assault. A handwritten transcript of a police interview with [CJ] is included in the papers. ·       [CJ] said to father that she had told her mother 2-3 years earlier. ·       Mother would not let daughters attend court.	Second and third young female complaining of sexual abuse. Applicant does allege collusion with [A1] complainant. Applicant’s assertion on 15/5/07 as to the circumstances of withdrawal of charge inaccurate.
[A3] Indecent assault on 4 year old daughter allegation; investigated but no action taken. Applicant claimed at the Bay House School meeting 15/5/07 [10i] that this was a malicious allegation by his ex partner following his refusal to give consent to her taking their son on holiday. In the Applicant’s representations to the Respondent [15], he says that his ex partner got news of the criminal proceedings and “for reasons beyond my understanding, she alleged I was abusing [daughter] too”.	Fourth young female complaining of sexual abuse. Applicant does not allege collusion but alleges ex partner aware of other allegations.
Applicant joins Mayfield School as a Maths teacher [11].
[A4] Indecent assault on 7 year old female (Portsmouth); prosecuted and acquitted. Applicant claimed at the Bay House School meeting 15/5/07 [10i] that this related to the daughter of an ex girlfriend.(JH) Hampshire Police summary [10j] sets out facts of allegation which amount to allegation, both via mother and directly by child in the course of a police interview, of multiple instances of digital penetration. Applicant in interview denied allegations. In the Applicant’s representations to the Respondent [15], he says that there was no supporting forensic evidence and the child admitted that her mother had reminded her where the alleged abuse took place.	Fifth young female complaining of sexual abuse. Applicant does not allege collusion or knowledge of other allegations. Allegation is similar to [A2]: touching of genitalia.
[A5] Inappropriate letters in school allegation Applicant claimed at the Bay House School meeting 15/5/07 [10i] that this related to a number of letters sent to him by pupils. Hampshire Police summary [10k] records that a named 15 year old girl [EB] made a complaint the Applicant handed her a series of notes including one in which he said he ‘fancied’ her; that she avoided school thereafter; and that she was willing to provide a statement. In the Applicant’s representations to the Respondent [15], he asserts that nobody produced the letter and that, in contrast, he took a letter sent to him to the school authorities.	Sixth instance of allegations of a sexual nature concerning young females. Applicant does not allege collusion or knowledge of other allegations. Allegation made to police by named 15 year old pupil. Applicant denies sending inappropriate letter to pupil but admits being sent inappropriate letter by pupil.
Applicant appointed to Bridgemary School, Portsmouth [10g], [15]
[A6] Giving lodging to care leavers known to him from Bridgemary School Portsmouth allegation Applicant claimed at the Bay House School meeting 15/5/07 [10i] that the persons were not known to him from school.
[A7] Unauthorised bowling trip in Bridgemary School allegation Allegation was that Applicant had organised an unauthorised bowling trip outside of school hours for pupils and had purchased alcohol for the children involved. Not pursued formally because of insufficient evidence [10g]. Applicant claimed at the Bay House School meeting 15/5/07 [10i] that he had not bought drinks although a pupil had drunk some of ID’s shandy/ lager top whilst he was bowling. He accepted that he had not gone through official channels in organising the trip.	Applicant accepts that he organised unauthorised trip for pupils (subsequent to previous allegations of serious misconduct with children).
[A8] Inappropriate behaviour in Bridgemary School, Portsmouth, allegation Applicant claimed at the Bay House School meeting 15/5/07 [10i] that only 3 of the 20 pupils interviewed in year 11 made allegations against him. He accepted that pupils referred to him as “Donkey Dof” and that he should have reported it. He said it arose from him making references to animals in his teaching. He gave a similar explanation in his representations to the Tribunal [8]. He said that he was called “Donkey Dof” or “lion Doff” because “I have told the children that I could teach animals in my country and can indeed teach them”. Substantial material from the Bay House School [10m] including statements of complainants, minutes of meetings and notes of interviews with the Applicant show: ·       Allegation was of (1) sexual innuendo and sexual conversations; (2) staring inappropriately down tops and at bottoms of female students and invading their personal space; (3) calling self and encouraging others to call him “Donkey Dof”. ·       Concerned year 10 female students in 2 different classes. 9 students interviewed. Allegations emerged as above. ·       Applicant’s account in meeting 30/4/04 was: he accepted a boy called him “Donkey Dof” or “Big Dof” but he did not respond; he never spoke about his sexual life. ·       It was reported that the Applicant wanted to be referred to by pet names and often said “Donkeys dicks are bigger than horse so they can call him Donkey Doff”. ·       A handwritten statement from a named girl [KC] records Applicant making sexual comments about her and her boyfriend. ·       At a meeting on 21/7/04 to consider the allegations, [JJ] (a teaching assistant?) said that Applicant’s conduct was appropriate in her presence but that others had reported to her that it was inappropriate. Applicant said that he did not refer to himself as “Donkey Dof”, that it came from French culture to use a combination of words and that he had explained that to [MW] a former male pupil who had come up with it. Otherwise, he denied the allegation. ·       Applicant was issued with a written warning on 6/7/04 for ‘misconduct’ with respect to all 3 major allegations. The Principal concluded: “… although there was clearly enough grounds to instigate the investigation, there was not enough firm, indisputable evidence to warrant a finding of ‘gross misconduct’. I believe that there were grounds for concern substantiated in relation to allegations 1 and 2 but not at a level to justify more serious sanction. This was a particularly difficult case as much stemmed from students’ perceptions, and the other adult who was often in the classroom could not fully substantiate these perceptions”	Seventh instance of allegations of a sexual nature concerning young females. Applicant does not allege collusion or knowledge of other allegations. Applicant accepts that pupils referred to him as “Donkey Dof” and that he should have reported it.  Multiple similar allegations made and substantiated as misconduct calling for oral warning. Applicant gives inconsistent explanations for the derivation of the “Donkey Dof” name.
Applicant given written warning by Bridgemary School, Portsmouth for misconduct relating to pupils (See above) [10m]
Applicant joins Bay House School [10a]
Child abduction allegation The police account of the allegation made by the Applicant’s wife is set out in the minutes of the multi-agency risk assessment meeting of 23/2/07 [10f]. She alleged: ·       Marriage deteriorated in 2006. ·       In Dec 2006, Applicant told her to go to Africa to collect money from a named person. She flew to Libya without their 9 month old baby because the baby was on Applicant’s passport. On the flight, she realised that the return ticket had been torn out. The named person denied all knowledge of the agreement. She concluded she had been duped. ·       She saw the Applicant arrive with the baby to be met by his family and when she challenged them she was assaulted by the Applicant and his family. ·       She returned to the UK to discover the Applicant there without the baby. He refused to say where the baby was.  Allegation was subsequently retracted by Applicant’s wife and the proceedings discontinued by the CPS in early 2007 [11]. In the Applicant’s representations to the Respondent [15], he claimed that they went to Benin to get divorced and that his wife then rejected the baby and that she subsequently made false allegations.
Bay House School informed that Applicant arrested on suspicion of child abduction offences and of previous history of concerns relating to his behaviour around children [10a]. Discussion with Applicant occurs during which he provides an account of the matters which give rise to concern. He is offered and accepts compassionate leave of absence [10a].
Hampshire County Council Risk Assessment report [10d] setting out current situation concerns and previous concerns. It notes (p.3) “CRB did disclose information to Bayhouse school regarding previous court appearances. This was overlooked during the recruitment process.”
Multi-agency risk assessment meeting, following which Applicant was formally suspended from Bay House School [10a]. Minutes [10f] Concludes that referral “probable but need to collate all information available first and reconsider”.
Multi-agency risk assessment meeting. Minutes of meeting [10h] describe the opinions voiced as to the concerns variously as “substantial level” and “high level” and that “on paper [Applicant] presents a significant risk”.
Meeting at Bay House School attended by Applicant at which he responds to the areas of concern [10i].
Applicant tenders his resignation to the Bay House School [10n]
Referral letter Bay House School to DCSF Safeguarding Unit [10a] setting out history  and concerns and giving reason for submission and evidence relied upon as: ·      number of allegations; ·      failure to be open in discussion Jan 2007 about all previous allegations; ·      failure to be open in May 2007 about serious nature of certain allegations whilst professing to be open and honest; ·      Ill advised school trip following earlier allegations. It attaches supporting documentation.

 

10. As to incidents A1-3 it became apparent that there was no direct evidence whatsoever of the 1996/7 incidents which led to the acquittal of the Appellant in the Bristol Crown Court some time in 1997. The only record is in a police note of an investigation in December 1998 when the police reinvestigated the allegation A2 following a complaint by the two children’s father, who was unaware of what had happened previously.

 

11. That note read “ID's file collected from the registry at new Bridewell 30.12. 98 both CJ and LJ were interviewed on video about ID.  Both made disclosures of indecent assault.  Their mother wrote saying that she would not let her daughters attend court and give evidence. The case then proceeded with only JH as a victim. ID was found not guilty.”

 

 

12. This note supported the explanation of the events given by ID in his evidence in that he said the first two allegations A1 and A2 were all the subject of one trial in the Bristol Crown court and were not separate incidents.

 

13. It was apparent that there was in respect of these two allegations no direct evidence at all as to the nature of the alleged assault on JH or when it occurred. Neither was there before the Secretary of State or ourselves the video evidence of the two girls the subject of allegation A2 or any transcript of their evidence or any evidence relating to the case at that time. There was no record of the outcome of the Crown Court trial (other than the note referred to in paragraph 11)  or whether the charges relating to CJ and LJ were withdrawn or whether the appellant was found not guilty on them.  It was unclear when the alleged assaults occurred and how old the children where at the time.

 

14. The documentary evidence  and that of Respondent about these two allegations A1 and A2 showed that these arose because on the 28.12 1998 the children’s father, who apparently knew nothing about the matters set out above and the fact that ID had been charged with assaulting his daughters, was told by CJ that ID (described as her mum’s new partner) had touched her breasts on a few occasions and that the same might have happened to LJ.

 

15. As a result the police looked again at the allegations but by the 30.12.98 had informed the father that they knew of the allegations previously and that the children had been videoed. He was also told that the mother would not let the children give evidence. In the course of this short investigation though the documents showed that CJ alleged that the first incident had happened when she was about 5 or 6 and the second incident when she was about 8. On that occasion she said that he touched her between her legs. On another page of the note she says first assault was in 1991 when ID was first the mum’s boyfriend and second time when ID became her mum’s boyfriend again. LJ said it had never happened to her and she only knew about the matter because her mother had told her. The note suggested that CJ had told her mother about the matter before the incident with JH who it was said was a friend of CJ.

 

16. A separate police note suggested that both girls had only been videoed as witnesses for JH. The note suggested the matter had arisen because ID had been back on the scene for some 6 months.

 

17. The police record at the time showed that CJ was then aged 13 (25.10.85) and LJ 14. (07.03.84). A note also said that ID was residing at the mother’s address at the time. 

 

18. Allegation A3 related to an alleged indecent assault on ID’s own daughter who was born 21.1.1994.  The assault was said to have taken place on the in 1997 when M was said to be 4. A Hampshire constabulary report relating to allegation A 4 reports that “an allegation was also made by ID’s 4 year old daughter that he had put his finger in her fanny, however she was too young to interview and examine.” There were no other papers relating to the matter with the papers before us or the Respondent other than the appellant’s answers to questions put to him by the school and his case to the Tribunal.

 

19. In a police note referred to in the next paragraph mention is made of 1997 assaults and ID’s acquittal. It also records that in the same year 1997 it was reported that ID was the subject of a “complaint by his own daughter then aged 4 that he had put his finger in her fanny”, however we noted that again there was no original material from the Avon and Somerset police concerning this. Other than ID’s accounts we have no information as to the allegation or how the police were aware of them. We note that ID says that his daughter’s date of birth was 19.1.94. So that she would have been 3 in 1997.

 

20. From the papers it is apparent that despite these matters being known to the police and ID’s previous employers, when in 1998 he transferred to Mayfield School no disclosure of the allegations or the acquittal was made of them to his new employer or to the school from his previous school or Local Authority.

 

21. The papers showed that in 1999 a member of the public had made known to Mayfield School the details of ID’s previous court appearance and a multi agency meeting was held to discuss ID’s continued employment.  Following that meeting on the basis of the acquittal and a clear police check the school decided to take no action.

 

22. Allegation A4.  The Respondent relies next on an alleged indecent assault on a 7 year old girl in Portsmouth in 2000. ID was charged with an indecent assault involving a daughter of his then partner.  Again ID was prosecuted and acquitted following a trial at the Crown Court.  Despite the Hampshire constabulary being involved in the final meetings leading up to the reporting of ID to the ISA we again have no documents relating to the police investigation or the trial and acquittal of ID save for a 3 page case summary.

 

23. That case summary suggests that on Saturday 15^th July 2000 ID and his partner and her 2 children were at home and ID was reading to the daughter whilst lying on her bed.  After a few minutes the child came into the bathroom and told her mother that ID had “touched her Poutaki (the Greek for female genitalia) and pointed to her pubic area”.  Her mother took her to hospital and ID was arrested for indecent assault and charged with two counts of indecent assault.  When interviewed the next day by the police the girl said that ID sometimes touched her pubic area and he had done it lots of times. 

 

24. We now have the indictment in respect of this matter. This indictment does help to clarify the situation because it shows that the appellant was indicted on 4 separate counts all concerning the child HJ.  The first three counts alleged that the appellant had indecently assaulted her between 1January. 2000 and the14 July 2000 and the fourth count alleged an offence on the 15 July 2000. All offences were under section 14(1) of the Sexual Offences Act 1956.

 

25. In the papers before us was an undated note of the Hampshire Constabulary made at the time ID was arrested for driving with excess alcohol. That note dealt with DNA material taken from ID to be used in the trial for the alleged sexual assaults referred to in this allegation. The note also records the fact that a video of HJ’s joint interview had been copied and sent to the CPS for transcription. The note records the fact that ID had been suspended by Mayfield School.  The note recorded concerns that the police had as to letters passed by ID to EB, a pupil at Mayfield School. The case papers showed also that the issue of the correspondence with EB was investigated internally by the school and that that allegation was also relied on by the prosecution in the prosecution.

 

26. Following his acquittal ID resigned from Mayfield School and obtained a post at Bridgemary School a school maintained by Hampshire County council.  A full disclosure of ID’s acquittals in both cases and the internal and external investigations was made to the new employer.  No reference was made to the Respondent by the school on his resignation.

 

27. The Respondent then relies on 3 matters (A 6-9) alleged against ID whilst he was teaching at Bridgemary School.  The first suggested that ID had given lodgings to ex pupils of Bridgemary School. Again we have no records of these allegations in the papers before us but the papers contains a risk assessment in February 1997 by a child protection coordinator of the Hampshire County Council which noted that Social Services had taken no action on the matter and the issue had been reported to the school but there was no evidence that the School had taken any action in respect thereof.

 

28. The second matter related to a school trip that ID undertook with some pupils to a bowling alley. At the time the papers suggest the concern had arisen because it was suggested that ID had purchased alcohol for the pupils. The risk assessment stated that this was a “low level concern”.

 

29. Finally in 2004 some female pupils in year 10 reported that ID made them feel uncomfortable by looking down their blouses and using sexual innuendo including calling himself “donkey D”.  This situation was dealt with by an internal disciplinary hearing in July 2004 at which ID was given a verbal warning to last for 20 weeks.  The head teacher noted “there was not enough clear, indisputable evidence to warrant a finding of gross misconduct." She believed that there were grounds of concern in respect of two allegations (sex related conversations and inappropriate looking at girls) but not at a level to justify more serious sanction. She noted it was a difficult case because it stemmed from student’s perceptions and “the other adult in the classroom could not fully substantiate the perceptions.”

 

30. ID left Bridgemary School in July 2006 without any further concerns being noted and moved to Bay House School. The risk assessment of February 2007 shows that Bridgemary School did not share any concerns with Bay House School and the school did receive a CRB check which disclosed the previous court cases. There is no allegation of any wrongdoing or unacceptable behaviour by ID at Bay House School.

 

31. The above sets out the documentary evidence relied on by the Respondent except the allegation which set in train the investigation which led to the referral to the ISA. This allegation was made by ID’s wife that ID had in January 2007 abducted their son and taken him to Benin from where ID and his wife originate.  This allegation was withdrawn and was discontinued by the CPS in early 2007.

 

32.  This accusation led to the matter being revealed to Bay House School and to the Local authority which in turn led to the risk assessment of February 2007 and a decision to suspend ID from his employment on 23 March.2007.  The Respondent also relies on the formal interview at Bay House School on the 15.May 2007 at which ID responded to each of the matters now relied on.  The Respondent maintains ID was not open about some or all of the allegations at that meeting. ID resigned from the school on the 2.August 2007 and the school referred him to the Respondent on 19^thOctober 2007.

 

Oral evidence of the Respondent

 

33. The only oral evidence from the Respondent was that of John Shields of the Children’s safeguarding operations team, who summarised the reasons for the Respondent’s decision.  These were:

 

a.     The number and severity of child abuse allegations made by different children, at different times in different places.(1997-2000)

b.     The lack of motivation or explanation as to why daughter of someone with whom ID was in a relationship would make an allegation of serious sexual assault (2000)

c.     That ID continued to put himself at risk of allegations being made against him (the unauthorised school trip)

d.     The allegations of inappropriate behaviour at Bridgemary School.

 

34. Mr Shields explained that the Respondent had no investigatory powers but said that if it was apparent that there was information which was missing and should be available then the Respondent would seek to obtain it.  In this case Mr Shields said one of his team had done the enquiry work and Mr Shields had reviewed the file and concluded there was sufficient evidence for the case to go to the Respondent for a decision to be made.

 The Appellant’s evidence

 

35. The appellant gave evidence at length. His oral evidence to us was considerably more extensive than either his statement in support of his appeal or his representation to the Respondent although it only dealt with the matters before the Respondent.

 

36. In respect of the matters which arose in Bristol in 1997 he told us they were all connected and were not separate matters as suggested by the Respondent. He said he could remember the date the allegation was made which was the 2^nd June 2006 as it was the date he qualified as a teacher. JH had made the allegation that day and CJ and LJ had made allegations to the police when interviewed in the course of that enquiry. He told us as he had told the Bay House enquiry that one of the children LJ had written to the court to withdraw the allegations and stating they were untrue. 

 

37. He pointed out that the written evidence before us was contradictory as to when the alleged assaults took place as the complainant was suggesting they took place before he even knew the family.  He said that the police had investigated the case twice as the father had no idea that ID had been prosecuted and acquitted.  He said the court had heard evidence from the first complainant and from the mother and elder son of the other two complainants and the jury had acquitted him.  He was unclear as to whether he was found not guilty of all charges or whether some had been withdrawn.  He could give no explanation as to why the children had made the allegations.  He said that the allegation made by JH was that he had touched her breast and pinched her bottom.

 

38. As to the alleged assault on his daughter he said that this had arisen when his relationship with his first wife had broken down and they were in dispute because she wanted to send his son to Brazil to which he objected. He said that the allegation arose at a time when he was not having access to his daughter and only to his son. There was a dispute as to whether he was the daughter’s biological father. He said that there had been lengthy family proceedings arising from the allegation and after a two day hearing the Judge had dismissed the allegation against him and awarded him access.  He told us he continued to see his ex wife and his daughter and son. He has staying access and took his son to Benin this year and will be taking his daughter next year.  He says that is inconsistent with the allegation being true.  He points out to us as he did to the Respondent that the Family Court reached its decision on the balance of probabilities.

 

39. The documents produced by the appellant show that his marriage entered into on the 19th September 1988 ended by a decree absolute of divorce on the 4th April 1996. The proceedings for divorce clearly were commenced in 1993. In those proceedings there was a hearing on the 24th April 1995 when the appellant was granted contact with both his son and daughter. A final hearing set for one day was listed on that date for trial on the 23 October 1995. We have no further documents relating to the mater and none which post date the criminal trial. We do note however that the results of the paternity tests referred to by the appellant in his evidence are dated 15^th August 1997.

 

 

40. On the matter of the alleged assault on the 7 year old daughter of his then partner in Portsmouth he agrees with the fact that it appeared that the girl did make the allegation to her mother as suggested in the police summary.  He denies however that he was on the child’s bed as suggested or that he was responsible for the washing of his and the daughter’s clothes as he left the house as soon as the complaint was made as had been suggested in the police papers. He denied he had assaulted the girl as alleged. He maintained that his partner’s mother was living with them and had poisoned the granddaughter against him. He said at court the letter from the pupil EB was never produced and that the jury acquitted him. He was unclear as to whether details of the previous allegations in Bristol were before the jury.

 

41. As to the school based matters he said he had followed all the requirements for the bowling alley visit except the final form to go to the LEA.  He had written permission from each parent and the head of the maths department knew and authorised the trip. He had not bought alcohol for any pupil and if he had he would have been dismissed.  He had purchased a shandy for himself and one pupil might have taken a sip from it whilst ID was bowling.

 

42. As to the allegations of inappropriate behaviour with female pupils.  He told us the allegations arose from one class only.  This was a class of pupils with educational difficulties and whose behaviour was challenging.  ID always had a teaching assistant with him in that class.  He was not in any way inappropriate to any female students and the matter had arisen solely because he had excluded a female student from the class who had then been permanently excluded from school. He pointed out there had been no complaints from any other class or his own student group.  As to the expression Donkey D this arose from a discussion he had had with a male student about being able to teach donkeys. The student had then christened him Donkey D.

 

43. Finally he told us he had no intention of teaching or working with children again but if he was maintained on the list he would be prevented from working in the NHS where he was working as an IT trainer.  There was also a danger that his Visa to stay in the UK would not be renewed.

 

44. Finally we heard evidence from Mr Bentote who had assisted ID in presenting his case.  His evidence was that ID had been a good teacher and colleague when at Mayfield School.  He said because of the publicity of the trial it was not suitable for ID to remain at Mayfield but the head teacher had assisted in finding him a place at Bridgemary. He was firmly of the view that ID was totally innocent of all the complaints against him.

 

Submissions

 

Respondent’s written submissions

 

45. The approach adopted by the Respondent is set out in the statement of John Shields of the Department of Education [9]. In broad terms, the reasoning adopted was as follows:

a.     The similarity in the large number of allegations coupled with the ability to exclude collusion and/or any plausible basis for a malicious motive in most if not all of them points strongly towards the allegations being true.

b.     The Applicant’s various responses provide no explanation which undermines the inference of truthfulness derived from the inherent improbability of the coincidence of so many similar allegations. He does not provide any explanation as to why the children of his sexual partners or his sexual partners themselves or pupils at schools at which he has taught should make like allegations save generalities about probable resentment or cultural differences or racist attitudes. In all the circumstances, those generalities are patently inadequate to explain the inherent improbability of the coincidences.

c.     The bowling trip (allegation [A7]) provides supportive evidence of a different kind: given the Applicant’s knowledge of the previous history of serious allegations made against him, it is inherently unlikely that he would take the risk of an unauthorised trip with pupils unless he had some ulterior motive in doing so.

46. There is a substantial body of documentary material illuminating the relevant factual background. Further, notwithstanding any paucity in the primary evidence, evidential sufficiency is provided by the cumulative effect of the content of the allegations made against the Applicant and the Applicant’s own responses to those allegations: Swallow v Secretary of State for Children, Schools and Families (supra). As set out in the table above, the Applicant has admitted matters of significance and has provided explanations which are inconsistent and implausible.

 

47. The absence of any realistic possibility of collusion as between the majority of the complainants substantially enhances the probative force of the allegations as a whole: Secretary of State for Children Schools and Families v J, supra.

 

48. Further, the Tribunal’s function is to exercise its own judgment on the material which was before the Respondent (Secretary of State v Philliskirk, supra; R (G) v X School Governors, supra) and, for the reasons, given by the Respondent and set out herein, the decision was appropriate and proportionate.

49. The Law

The Applicable Law

Legislative and regulatory framework

Statutory framework

 

50. A direction was made by the Secretary of State under s.142(1)(a) of the Education Act 2002 (“the 2002 Act”) prohibiting the Applicant from carrying out work to which the section applies which is, broadly speaking, teaching work or work with children. The direction was made on the grounds specified in s.142(4)(a), namely, that the Applicant “is unsuitable to work with children”.

 

51. The Applicant appeals to the First Tier Tribunal (“the Tribunal”) under s.144 of the 2002 Act.

 

52. The relevant sections of the 2002 Act have been repealed but continue to have effect for the purposes of this case by virtue of transitional and savings provisions[1].

The regulatory test on appeal: rehearing without new evidence

53. The Education (Prohibition from Teaching or Working with Children) Regulations 2003 (2003/1184), made under the 2002 Act, govern the appeal.

54. Regulation 10 thereof, as amended, provides:

Review by the [First-tier Tribunal]

10.—  

(1)  Subject to [regulation 10A or 11], a person subject to a direction given under section 142 of the 2002 Act on the grounds that he is unsuitable to work with children may make an application to the [First-tier Tribunal]  under this regulation.

(2)   On an application under this regulation the [First-tier Tribunal] shall determine whether or not the individual should continue to be subject to the direction.

(3)   If the [First-tier Tribunal] is satisfied that the person is no longer unsuitable to work with children it shall revoke the direction; otherwise it shall dismiss the application.

55. Regulation 13 thereof, as amended, provides:

The [First-tier Tribunal]'s powers

13.—  

(1) Where on an appeal under regulation 12 the [First-tier Tribunal] considers that the direction is not appropriate it may order the Secretary of State to revoke or vary the direction.

(2)  The [First-tier Tribunal] shall not, in exercising its powers under this regulation, consider–

(a)   any information relevant to the decision to give a direction or not to revoke or vary a direction which the Secretary of State did not have at the time the decision was made; or

(b)  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.

56. The approach required by regulation 13 was described by Collins J in Secretary of State v Philliskirk [2008] EWHC Admin 2838. He emphasised, at paragraph 19, that the Tribunal’s function was properly analysed as one of re-determination rather than review:

“Of course, it is right that the Tribunal is reviewing the Secretary of State’s decision, and clearly if it was not a reasonable decision, then the Tribunal will interfere. But, as it seems to me, the Tribunal has its own independent judgment to exercise. It looks at the material that was before the Secretary of State and it decides, on that material, whether in its judgment the relevant prohibition or the relevant sanction was or was not one which ought to have been, in its view, imposed. It may be that one can say, if one is talking in strict judicial review terms, that the decision of the Secretary of State was reasonable in the sense that it is one which was open to him. But that would mean, if that is the narrow basis upon which the Tribunal approaches the matter, that it is disabled from exercising its own judgment. It is the exercise of its own judgment that is important. But, as the regulation makes clear, that judgment must be exercised upon and only upon the material that was before the Secretary of State.”

57. This approach was approved by the Court of Appeal (Civil Division) in R (G) v X School Governors [2010] EWCA Civ 1[2] by Laws LJ (giving a judgment with which Wilson LJ and Goldring LJ agreed) at para 13. The court doubted (ibid) the restrictive interpretation expressed in FH v Secretary of State [2005] PT 552 and approved by Dyson LJ in Secretary of State v JN [2008] EWHC Admin 1199 at paras 22-23 to the effect that the Tribunal was not to determine or re-determine matters of primary fact.

 

58. In Secretary of State v Norford [2010] UKUT 248 (AAC), Upper Tribunal Judge H. Levenson analysed the relevant authorities (although he did not consider R (G) v X School Governors, supra) and concluded (at para 28) that:

“the First-Tier Tribunal is under a duty to make its own findings of fact insofar as the relevant and necessary facts are disputed, and on the basis of those findings and the agreed facts, to make its own judgment in respect of the statutory question.”

59. That the law requires the undiluted application of regulation 13(2)(b) is beyond doubt: Secretary of State v JN (supra, at para 9 and 18); Secretary of State v Philliskirk (supra, at para 19); R (G) v X School Governors (supra, at para 13);

 

60. In a ruling on a preliminary issue in Carter v Secretary of State 2008.1333.PT (30 March 2009) HHJ David Pearl, then Principal Judge Care Standards, made observations on the purpose, scope and effect of regulation 13 and the approach of the Tribunal in its application.

a.     The limitation contained in regulation 13 restricting the material which the Tribunal may consider to that which was before the Secretary of State at the time of his decision was not modified by rule 15(2)(a) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008. (See para 16 and 17.)

b.     The object of the legislation is to permit the Secretary of State to consider new information or a change of circumstances before the tribunal does (under regulation 9); and, to that end, the approach taken by the Tribunal has been to stay its proceedings pending the Secretary of State’s consideration of new information. (See paras 11 and 12.)

c.     The Tribunal is entitled to receive more detailed evidence as to information before the Secretary of State but it is not entitled to receive new information; and it is a matter of judgement whether more detailed evidence as to matters before the Secretary of State amounts to new information for the purposes of regulation 13(2)(a). (See paras 12 and 13.)

61. The approach in Carter v Secretary of State was approved by Upper Tribunal Judge H. Levenson in Secretary of State v Norford, supra, at para 32.

62. The question of whether the Respondent’s decision was appropriate has to be viewed in the context of the purpose of restricting a person’s employment, which was two fold, protecting children and maintaining public confidence: CN v Secretary of State [2004] 398.PC/399.PVA; FH v Secretary of State [2005] 0552 PT; Mason v Secretary of State (2001) 00788; Secretary of State for Children, Schools and Families v BP [2009] EWHC 866 (Admin); Secretary of State v Norford, supra.

 

Burden and standard of proof

63. It has been held, albeit without substantial analysis, that the burden of proof is on the Secretary of State to prove the case on the balance of probabilities: Dunn v Secretary of State [2006] 679.PT at paras 18 and 19. In re B (Children) FC [2008] UKHL 35, Baroness Hale, at paras 70 and 72, stated that the civil standard of proof,

“ …is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies … As to the seriousness of the allegation, there is no logical or necessary connection between seriousness and probability".

64. It is arguable that the assessment made by the Respondent and on a redetermination by the Tribunal is properly analysed as one of judgement and that, therefore, the language of burden and standard of proof is not apposite. Alternatively, if the burden falls on the Respondent to the civil standard, that can only be in relation to the proof of facts upon which the assessment of unsuitability is made as opposed to the assessment of unsuitability itself.

65. In Secretary of State for the Home Department v Rehman (Consolidated Appeals) [2001] UKHL 47; [2003] 1 AC 153, a case concerned with the making of deportation orders, it was held that, while any specific facts on which the Secretary of State relied should be proved on the ordinary civil balance of probability, no particular standard of proof was appropriate to the formation of his executive judgment or assessment as to whether it was conducive to the public good that a person should be deported, which was simply a matter of a reasonable and proportionate judgment on the material before him.

66. In proceedings before the General Medical Council, the Panel will apply the civil standard of proof to any disputed facts but the issue of whether the practitioner’s fitness to practice is impaired, and whether a sanction should be imposed, are matters of professional judgement for the Panel: CRHP v GMC & Biswas [2006] EWHC 464 (Admin) at paras 39-51; R (Campbell) v GMC [2005] EWCA Civ 250 (para 5).

67. There is a line of cases in the Tribunal’s case law which hold that, in relation to PoCA and PoVA listings, the duty to satisfy the Tribunal as to suitability transfers to the Appellant if the Tribunal is satisfied that the person has been guilty of misconduct[3].

Evaluation of evidential sufficiency

68. The Care Standards Tribunal decision in Swallow v Secretary of State for Children, Schools and Families [2009] 1697.PT provides a helpful example of the approach required in a case of this kind.

a.     The CST noted the evidence before it that (para 48) the Secretary of State does not have an investigatory role and must rely on the agency making the referral. In that case, the full police file had not been made available (para 59 and 60).

b.     The Secretary of State’s decision to bar the Appellant was nonetheless appropriate because there was sufficient evidence supporting the conclusion that the allegations were probably true on the balance of probabilities and that the Appellant was a risk to children: see paras 47 and 69. In that case, the CST concluded that, despite the comparative paucity of primary evidence, evidential sufficiency was provided by the “cumulative effect of the content of the allegations made against the Appellant and the Appellant’s own responses to those allegations” (para 68).

c.     In particular, the fact that the Crown Prosecution Service had not brought charges did not stand in the way of such a finding given the different standards of proof: paras 21 and 61.

 

69. In Secretary of State for Children Schools and Families v J [2009] EWHC 524 (Admin) described the proper approach to the evaluation of the probative value of similar allegations from multiple complainants:

Ground 1, Cross Admissibility and Similar Fact: it is common ground that the evidence of each complainant was capable, subject to the judgment of the tribunal, of supporting the others. In ordinary language, the Secretary of State was entitled to ask the tribunal what was the likelihood of three separate teenagers making similar but untrue allegations of sexual misconduct on separate and unconnected occasions

Finally, both parties recognised the distinction between the admissibility of the similar fact evidence and the process of assessment of its probative value. In assessing the probative force of the evidence, the tribunal of fact will need to consider at least three things. Firstly, the risk of collaboration or contamination between the witnesses. If there was such a risk, then the probative force of the observation that they make similar complaints may be lost. Secondly, the degree of similarity between the allegations and the period of time over which those allegations were made. The more similar the allegations made by individuals who had not collaborated, the more improbable it is that those allegations are untrue. Thirdly, any other factors which may affect the credibility and reliability of the complainant. It may be that a witness is so unreliable that nothing said by that witness should be treated as probative of anything.

 

70. Further, with appropriate caution, cognisant of the different but analogous underlying legislative provisions, some assistance as to the nature of the evidence required in order to satisfy the statutory criteria for a listing may be derived from the guidance issued by the Independent Safeguarding Authority (“ISA”) in relation to its role under the new procedure under the Safeguarding Vulnerable Groups Act 2006. Guidance issued by the ISA Board in February 2009 (“Guidance Notes for Barring Decision Making Process”) provides as follows[4]:

71. 3.8 The decision at the end of the Case Assessment relates to the level of potential future risk of harm to children and/or vulnerable adults taking into consideration, where applicable, any representations that have been made and all pertinent facts and any specialist opinions.

 

Tribunal’s conclusions with reasons

 

72. We carefully considered the written evidence submitted to the Tribunal in advance and the evidence given to us during the hearing of this appeal.

 

General issues

 

73. First we find on the evidence that we have heard and seen that there are only three relevant allegations which we need to consider for the purposes of disposing with this appeal.  These are the indecent assault (A1) which resulted in the appellant’s acquittal in Bristol Crown court in 1997.  On the evidence before us we have concluded that that the allegations at A2 are in fact the same allegations as at paragraph A1 and in this decision we treat it as such. By this we mean that the allegations appear to be of indecent assault of three girls by Appellant, JH, and two sisters CJ and LJ. These resulted in a prosecution which resulted ultimately in the acquittal of the Appellant.  We reach that conclusion because of the evidence we have recorded and conclude is correct and which is set out at paragraphs 3-10 above.

 

74. The second issue is that referred to as A3 the indecent assault on his 4 year old daughter.

 

75. The third issue is that referred to as A4, the alleged indecent assault on a seven year old girl, a daughter of his ex partner in 2000 which led to his indictment before the Portsmouth Crown Court and his subsequent acquittal.

 

76. As to the remaining matters relied on by the respondent we have concluded on the balance of probabilities that there is either little or no truth in them or that they are so lacking in seriousness as to raise no issues of misconduct against the Appellant.  We reach this conclusion because we have looked at the matters raised against ID at Bridgemary School.  In our judgement the issue of the school trip is irrelevant and we do accept the assertions made as to the matter by the Respondent. Indeed the school itself and the risk assessment of the 21.2.07 describe it as a “low level concern”.

 

77.  The second issue of girls feeling uncomfortable and the use of sexual innuendo seem to us to be greatly exaggerated.  It clearly related only to one class who clearly had a range of severe behavioural issues.  The documents show that ID had no difficulties with his tutor group or any other class.  There is a clear note on the risks assessments to that effect. Indeed none of the schools in which ID has worked have any expressed similar concerns about ID. Whilst the Head teacher thought it necessary to impose an oral warning she clearly explained the evidence did not suggest any serious offence.

 

78. That being the case we have considered this appeal in the light of all the evidence available to us as to these three very serious allegations against the appellant. 

 

Our approach

 

79. In reaching our decision, we have in accordance with decision of the Secretary of State for Children, Schools and Families –v- J [2009] EWHC524 (admin) in assessing the probative value of the evidence given to us, considered;

 

§            The risk of collaboration and contamination between witnesses.

 

§            Recalling the degree of similarity between the allegations and the period of time over which they were made.

 

§            Considering any other factors which reflected on the credibility or reliability of the complaints.

 

Collaboration/contamination

 

80. In this case, all of the evidence presented to us showed no prospect of there being any risk of collaboration of contamination between the witnesses to the three separate events A1-3.  As to A1 it is the Respondent’s case that the three girls did collude together to bring a false accusation against him.  There is no evidence other than the Appellant’s word to support that.

 

81. What is clear however is that there is no evidence that the complainants in the three separate incidents knew each other, conspired with each other or in any way collaborated to bring three separate allegations against the Respondent over a 5 year period.

 

The degree of similarity between the allegations and the period of time over which they were made.

 

82. It is difficult to be fully confident of the nature of the allegation involving the child JH, who it is said was 11 at the time, because of the lack of documentary evidence on which to base any finding. The appellant told us that the allegation of LJ was that he had touched her breast and pinched her bottom but he told an internal enquiry at Bay House School that the charge related to "inappropriately looking at the girl".  We consider that it is most likely that the version given to us is a truer account than that given to that enquiry.  JH was a neighbour of the family and LJ and CJ were daughters of the appellant's then partner.

 

83. We have some evidence of the allegations made by CJ and LJ. We know on the 30.12.98 they both made allegations of indecent assault to the police. CJ alleged that the appellant "touched her between the legs". LJ later denied that the appellant had ever assaulted her. The evidence as to the age of CJ and LJ is difficult to accurately identify but it would appear to have occurred some two or three years before December 1998 at which time CJ would have been 10-11 years old.

 

 

84. As to A3 the written evidence from the police is that the assault took place in 1997 when the daughter was 4 years old. The allegation was that he had "put his finger in her fanny".  The court papers now received show that the daughter was born on 19.1.94 so that she was aged 3 at the time of the alleged offence.

 

85. The final allegation is that of the assaults on a 7 year old daughter of his then partner. The police notes suggest that there were “multiple acts of digital penetration". 

 

86. From this we conclude there are many apparent and clear similarities between the three incidents.

a.      Each involves sexual assaults against females who were daughters of the appellant's three different partners except for JH a neighbour.

b.     Secondly each involves assaults against young girls of 11 or younger.

c.     Third in three cases those of JC, his daughter and HJ involve the touching of or penetration of the girls' genitals. 

d.     Fourthly each resulted in a police prosecution except the case of the appellant's daughter which only did not because of her very young age. In each case the Appellant accepts that the allegations were made by each of the children.

Other factors affecting the credibility of the witnesses.

87. We have carefully looked at each of the three incidents and listened and considered the Appellant’s evidence carefully about each case.  On the first matter he can give no explanation as to why JH complained and none as to why the other two then supported her. We can see that there is some issue as to the reliability of the complaint of LJ given her recorded retraction of her complaint.  We realize also that at trial the Appellant was found not guilty. We note the untrue account of the nature of the assault he gave in the Bay House interview.

88. As to the second matter the only explanation the appellant gave was that this was a false accusation made by his wife during divorce proceedings. The documents we have seen of the divorce show that in 1995 the appellant had been granted contact to both children. We know that the results of a paternity test of the child were not dated until 1997, which was the time of the alleged assault. We find the explanation unconvincing.  We see no evidence which suggests that the evidence of the complainant despite her age and of her mother should be treated as unreliable.

89. As to the final incident the Appellant’s explanation is that the child had made the allegation under the influence of her grandmother.  Given the allegation was made immediately by the child with the appellant in the next room we find this an unconvincing explanation.  The supporting evidence of the destruction of evidence in the washing of clothes although denied by the appellant adds considerable force to the evidence against the Appellant.  Again we see no evidence which would suggest that the reliability of the girl or her mother might lack credibility.

90. All in all given the similarities of the allegations made by 4 separate girls who had clearly not collaborated it seems highly improbable that the allegations are untrue.  This being the case we are satisfied that on the balance of probabilities the Appellant did commit each of the sexual assaults alleged against him in A1-3.  That being the case given the seriousness of each matter he is unsuitable to work with children.

Order

 

The appeal is dismissed.

 

Signed:

 

 

Tony Askham

Tribunal Judge