Upper Tribunal (Administrative Appeals Chamber)

 

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

The DECISION of the Upper Tribunal is to dismiss the appeal by the appellant.

 

The decisions of the Independent Safeguarding Authority taken under file reference 10/43068W  on 3^rd February 2011 in respect of the Adults Barred List and on 6^th June 2012 in respect of the Children’s Barred List do not involve an error on a point of law or on any material finding of fact and are confirmed.

 

The Upper Tribunal further DIRECTS that there is to be no publication of any matter likely to lead members of the public directly or indirectly to identify any person who has been involved in the circumstances giving rise to this appeal until after the Crown Court matter has been completed whereupon an unredacted version of this decision shall be made available for the reasons set out at the end of our decision.

 

This decision and direction are given under section 4(5) of the Safeguarding Vulnerable Groups Act 2006 and rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698).

 

 

Before us Mr Jaffey of Counsel represented the Disclosure and Barring Service (DBS) and JS was in person.

 

At the start of the hearing we agreed to admit two late items of evidence: JS produced two pages (10 and 11) said to have been omitted from a fax message and Mr Jaffey produced a printout of ‘blog’ activity on 22^nd June 2014.

 

 

 

 

REASONS FOR DECISION

Introduction

1. We heard this matter on 23^rd, 24^th, 25 and 26^th June 2014. We heard from the following witnesses:  Mr Ken Ali (KA) (colleague), Mr Geoff Brown (GB) (HR manager), Ms Julie Rochelle (JR) (colleague), Mr Michael Octave (MO) (colleague), Ms Afolake Jaja (counsel) and Javed Shaikh (JS), the Appellant.

 

2. In reaching our decision, we have read and taken into consideration 4 bundles of evidence amounting to 1670 pages set out in chronological order from 2007 to 2014, a witness bundle comprising 7 statements and exhibits (being many of the documents in chronological order) of 645 pages and a ‘core’ bundle of the statements (without exhibits) and key documents.

 

3. The principal issues which we need to determine are whether the two decisions contain material errors of fact that affected the decision-making process, or errors of law such that the Decisions are disproportionate or perverse.

 

Appeal

 

4. JS appeals to the Upper Tribunal under section 4(1)(b) of  the Safeguarding Vulnerable Groups Act 2006 (“SVGA”) against two decisions of the Independent Safeguarding Authority, now the Disclosure and Barring Service (“DBS”)

 

a. the decision of 3^rd February 2011 to include the Appellant on the adults’ barred list (“Adults’ Barred Decision”); and

b. the decision of 6^th June 2012 to include the Appellant on the children’s barred list (“Children’s Barred Decision”).

 

5. The Grounds of Appeal for both matters are set out in an undated document which repeats the same grounds relied on in JS’ Grounds of Appeal dated 25^th August 2011, with minor changes, and includes challenges to the factual findings in the Children’s Barring Decision. These grounds of appeal have been re-ordered and summarised below so as to eliminate repetition and for clarity:

 

As regards the Adult’s Barring Decision:

a) Undue weight. The Adults’ Barring Decision is overly reliant on the results of the internal disciplinary procedures, and the decision of the Employment Tribunal.

b) Plagiarism. The DBS placed undue weight on “the mere existence of the [plagiarised] document as opposed to the fact that it was never submitted by [JS]”.

c) Falsified reference. JS does not deny falsifying the reference. He contends the DBS places insufficient weight on subsequent evidence from Mr Ali.

d) Qualifications. The DBS acted irrationally and unreasonably in concluding that JS intended to provide incorrect and misleading information as to his qualifications.

e) Medical procedures and test results: JS denies there were multiple instances of commencing tests without authorisation, and notes that he did not have proper support.

f) Unreasonableness. Even on the findings of fact made by the DBS, it was unreasonable and irrational to bar JS from working with vulnerable adults.

g) Disproportionality. It is disproportionate to bar JS from working with vulnerable adults.

 

As regards the Children’s Barring Decision, in addition to the 7 grounds above which are also relied on for this decision, there are two additional grounds

h) Forgery and Fabrication. JS denies that he created a Facebook page, internet blogs, a letter purportedly from a police officer and the falsified documents he provided to the Upper Tribunal.

i) Irrelevant factors. JS acknowledges that he was charged with two counts of harassment, and that he applied for jobs which were regulated activity from which he were barred. However, he contends he did not intend to apply for the positions and, in any event, he did not thereby put children at risk.

 

6. The DBS opposes the appeal on the basis that none of the grounds raised have merit. Permission to Appeal in the Adult Barred case given by UT Judge Howell on 21^st July 2011 and the appeal stayed pending the Children’s List decision. That stay was subsequently lifted. Permission to Appeal in the Children’s List was given by UT Judge Levenson on 27^th September 2013. The matter was allocated to HH Judge Oliver who gave directions on 10^th February 2014 and 19^th May 2014.

 

 

Legal framework

7. There are several elements to this. First, it is necessary to look at the powers to list a person.  The starting point is that The DBS was established by section 87(1) of the Protection of Freedoms Act 2012 (“2012 Act”). The DBS carries on the statutory functions previously carried out by the ISA: Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, paragraph 2. The relevant functions of the DBS are set out in SVGA.

 

8. Section 2 SVGA imposes a duty on the DBS to maintain two lists established by the ISA: first, the Children’s Barred List, which identifies those who are barred from certain regulated activities with children; and second, the Adults’ Barred List, which identifies those who are barred from certain regulated activities with vulnerable adults.

 

9. Schedule 3 SVGA governs the determination as to whether a person should be included in a barred list. Part 1 of Schedule 3 relates to the Children’s Barred List, and Part 2 relates to the Adults’ Barred List. The DBS may include a person on the Children’s Barred List by reason of the risk of harm he poses to children pursuant to Schedule 3, paragraph 5, SVGA. The DBS may include a person on the Adult’s Barred List by reason of his behaviour (“relevant conduct”) pursuant to Schedule 3, paragraph 9, SVGA. “Relevant conduct” is defined in Schedule 3, paragraph 10, SVGA.

 

10. Since the Decisions in the present case were made there have been amendments to SVGA. These include amendments to paragraphs 5, 9 and 10 of Schedule 3. At the time relevant to the Children’s Barring Decision of 6 June 2012, paragraph 5 of Schedule 3 provided as follows:

 

“Risk of harm

5 (1) This paragraph applies to a person if –

(a) it appears to ISA that the person falls within subparagraph (4), and

(b) ISA proposes to include him in the children’s barred list.

…

(3) ISA must include the person in the children’s barred list if –

(a) it is satisfied that the person falls within sub-paragraph (4),

and

(b) it appears to ISA that it is appropriate to include the person in the list.

(4) A person falls within this sub-paragraph if he may –

…

(c) put a child at risk of harm …”

 

 

11. Paragraphs 9 and 10 of Schedule 3, as they were at the time of the Adult’s Barring Decision of 3 February 2011, provide in relevant part:

“Behaviour

9(1) This paragraph applies to a person if –

(a) it appears to ISA that the person has (at any time) engaged in relevant conduct, and

(b) ISA proposes to include him in the adult’s barred list.

…

(3) ISA must include the person in the adults’ barred list if –

(a) it is satisfied that the person has engaged in relevant conduct, and

(b) it appears to ISA that it is appropriate to include the person in the list.

 

10(1) For the purposes of paragraph 9 relevant conduct is –

(a) conduct which endangers a vulnerable adult or is likely to endanger a vulnerable adult;

(b) conduct which, if repeated against or in relation to a vulnerable adult, would endanger that adult or would be likely to endanger him;

…

(2) A person’s conduct endangers a vulnerable adult if he –

(a) harms a vulnerable adult,

(b) causes a vulnerable adult to be harmed,

(c) puts a vulnerable adult at risk of harm …”

 

 

12. At the time of the Adults’ Barred Decision, a “vulnerable adult” was defined in the SVGA under section 59. It has different meanings in different contexts. In relation to this case, a vulnerable adult includes a person who had attained the age of 18 and who “receives any form of health care” (section 59(d) SVGA). Health care “includes treatment, therapy or palliative care of any description” (section 59(6) SVGA). A “vulnerable adult” is similarly defined in the version of SVGA presently in force (section 60 and Schedule 4, paragraph 7(1)(a), SVGA). In other words, a vulnerable adult is not limited to people with learning disabilities or Alzheimer’s (for example) and putting a child at risk of harm is not limited to committing (or being likely to commit) a sexual offence against a child.

 

13. Having established the framework, the next matter to consider is the scope of any appeal to the Upper Tribunal. An individual has a right to appeal to the Upper Tribunal against a decision to include him on the Adults’ and/or Children’s Barred List under section 4(1)(b) of the SVGA. Section 4 SVGA provides in relevant part:

 

“(1) An individual who is included in a barred list may appeal to the Upper Tribunal against –

(a) …

(b) a decision under paragraph 2, 3, 5, 8, 9 or 11 of Schedule 3 to include him in the list;

(c) …

(2) An appeal under subsection (1) may be made only on the grounds that the DBS has made a mistake –

(a) on any point of law;

(b) in any finding of fact which it has made on which the decision mentioned in that subsection was based.

(3) For the purposes of subsection (2), the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact…”

 

 

14. This means that the right to appeal is circumscribed by section 4(2) SVGA, which provides that an appeal may be made only on the grounds that the DBS has made a mistake either on any point of law or in any finding which it has made and on which the decision was based. An error of fact must be material and affect the decision-making process.

 

15. Further, section 4(3) SVGA states that the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law and fact. Therefore, the Upper Tribunal cannot carry out a full merits reconsideration or revisit the appropriateness of the decision to include a person on a barred list: B v Independent Safeguarding Authority [2013] 1 WLR 308, per Maurice Kay LJ at 315C. What this means is that we cannot decide whether a person should be removed from the List(s), just determine whether or not either of the 2 grounds identified in the preceding paragraph have been made out.

 

16. Section 4(3) SVGA does not preclude a challenge on the ground of an error of law by contending that the decision to include an individual on a barred list was (a) unreasonable or (b) disproportionate: R (Royal College of Nursing) v Home Secretary [2011] PTSR 1193, per Wyn Williams J at 1225G, approved by the Court of Appeal in B v Independent Safeguarding Authority [2013] 1 WLR 308, per Maurice Kay LJ at 315C.

 

17. When hearing a challenge on the basis of an error of law, the test we have to apply is a high one, as set out in two Court of Appeal decisions we are bound to follow. An allegation of unreasonableness requires demonstrating that the decision is perverse: Khakh v Independent Safeguarding Authority [2013] EWCA Civ  1341, per Elias LJ at [18], whereas, when determining an allegation of disproportionality, the Upper Tribunal must “give appropriate weight to the decision of a body charged by statute with a task of expert evaluation”: B v Independent Safeguarding Authority [2013] 1 WLR 308, per Maurice Kay LJ at 316E; affirmed in Disclosure Barring Service v Peter Harvey [2013] EWCA Civ 180 per Treacy LJ at [20].

 

18. The next matter to consider is the standard of proof.  In making findings of fact, the standard of proof to be applied both by the DBS/ISA and by the Upper Tribunal on appeal is the balance of probabilities – asking whether or not the relevant allegation or proposition is more likely than not to be true.

 

19. This test applies in the same way to all allegations, however serious the conduct alleged: see Re B [2009] 1 AC 11 at [13-14] (per Lord Hoffmann) and [68-72] (per Baroness Hale). Regard should be had to the inherent probabilities of an event occurring, but such probabilities must be judged in light of all the circumstances of the case and, as Baroness Hale observed in Re B, “there is no logical or necessary connection between seriousness and probability” [72].

 

20. The fourth and last matter to cover is evidential considerations. The DBS (and the Upper Tribunal on appeal) is not conducting a criminal trial. The DBS and Tribunal are not restricted by the rules of evidence applicable in criminal or even civil court proceedings.

 

21. Other than relevance, there is no restriction on the evidence the DBS can admit. Schedule 3, paragraph 13(1), SVGA provides that the DBS “must ensure that in respect of any information it receives in relation to an individual from whatever source and of whatever nature it considers whether the information is relevant to its consideration as to whether the individual should be included in each barred list.” The weight that the DBS will afford a piece of evidence depends on its reliability.

 

22. The DBS is required to both make its own independent findings of facts, and to decide whether in the light of those facts the person in question should appropriately be included in a barred list (R (G) v Governors of X School (Secretary of State for the Home Department and another intervening) [2012] 1 AC 167 per Lord Dyson JSC at 196F, per Lord Hope at 199E, and per Lord Brown at 201G).

 

23. As Lord Dyson JSC noted in R (G) v Governors of X School (Secretary of State for the Home Department and another intervening) [2012] 1 AC 167, the term “review” in paragraph 5.2.1 of the Guidance Notes does not show that the exercise that the ISA performs in relation to facts is akin to judicial review. Rather, the “ISA is expected to form its own assessment of the facts on the basis of all the available evidence: the word ‘review’ means no more than ‘assess’ or ‘reconsider’” (at 195H).

 

24. The only exceptions to this independent approach are where: (a) there has been a conviction for a specified offence; and (b) a “competent body” has made findings of fact. Neither exception was applicable to the Decisions in the present case.

 

25. The Upper Tribunal is not restricted as to the evidence it may consider. This includes evidence that was not available to the DBS. Rule 15(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) provides in relevant part:

“15. – Evidence and submissions

(2) The Upper Tribunal may –

(a) admit evidence whether or not –

(i) the evidence would be admissible in a civil trial in the United Kingdom; or

(ii) the evidence was available to a previous decision maker; or

(b) exclude evidence that would otherwise be admissible where –

(i) the evidence was not provided within the time allowed by a direction or a practice direction;

(ii) the evidence was otherwise provided in a manner that did not comply with a direction or a practice direction; or

(iii) it would otherwise be unfair to admit the evidence.

…”

 

26. Like the DBS, the Tribunal must consider all the available information and come to a judgment as to its probative force and reliability, and the weight that should be allocated to it, but there are no automatic barriers to giving weight to evidence simply because, for example, it is hearsay evidence, and/or the person making an allegation refuses to co-operate or has withdrawn the allegation at a later date. These factors must be considered by the decision-maker in assessing the weight to be afforded to such evidence as it has, but they do not prevent it being taken into consideration (see, for example, in the context of Parole Board hearings, R (Brooks) v Parole Board [2004] EWCA Civ 80 at [71-72] and [77-88] (per Wall LJ)).

 

27. Where the evidence against an individual consists of multiple allegations, a decision-maker can and should look at matters in the round to see whether the evidence relating to one allegation may be supported by evidence relating to others and, if so, assess the probative force of such supporting evidence: Secretary of State for Children, Schools and Families v J [2008] EWHC 524.

 

Factual Background

28. The DBS initially barred JS from working with vulnerable adults and then barred him from working with children. The DBS case is that they barred JS because he is a serial forger and fabricator of documents and evidence who has carried out a sustained and concerted campaign of online harassment against his former colleagues.

 

29. To get a flavour of the campaign of racist and homophobic harassment carried out by JS, the Tribunal was invited to read the Facebook pages JS has published in addition to the witness statements. As will become clear, in addition to these proceedings, JS is facing a criminal trial and has a High Court application injunction against him. Mr Justice Green said in those injunction proceedings [Royal Brompton & Harefield Hospital NHS Trust & others v Javed Shaikh [2014] EWHC 1380 (QB)]:

“9. The Defendant’s application for leave to appeal was dismissed by the Employment Appeal Tribunal on 15 April 2011. The same day the

Defendant sent a text message to a former colleague at Harefield, which was in the following terms:

“You just watch. I do that to Julie [Rochelle] now though. I heard she knows about the Facebook and the directors are not happy. I will be persist and have her removed if need be. Man, it is seriously personal between me and Julie.”

…

11. All of this is context to the individual acts of alleged harassment perpetrated by the Defendant, the particulars of which are included in schedule A to the Claimant’s Particulars of Claim. This chronicles 133 different incidents of alleged harassment between July 2009 and February 2014. Examples include the making of multiple job applications in the name of [Michael Octave], submitted from e-mail accounts with offensive names such as “soniaugly@hotmail.com”, “soniadog@hotmail.com” and “mikeoctavesawhore@gmail.com”.

 

12. The acts complained of as amounting to harassment include alleged conduct in the following categories: The publication of malicious, offensive and abusive material about the Claimants on social media and blogging platforms, including Facebook, Word Press, blogspot.com, over-blog.com, Twitter and YouTube; the setting up of fake and offensive and defamatory profiles on LinkedIn and Facebook and the use of those profiles to send offensive and defamatory messages; the making of numerous and repeated fake job applications in the name of… Mr Octave, in circumstances where the applications contained offensive, defamatory and distressing material and allegations; the communication of fake e-mails containing offensive and abusive allegations; the making of nuisance and silent telephone calls and the making of malicious reports and referrals to regulatory and/or examining bodes in the healthcare sector.”

 

30. JS’s defence is that the victims of the harassment authored all of the harassment themselves. It is said that they did so to implicate JS as part of a massive conspiracy against him. The DBS say that this defence is fanciful and that it is absurd to suggest that a large number of professionals would conspire over years to publish vicious and false allegations about themselves and mount an ongoing public campaign of harassment (that has caused their own reputations real harm) against themselves.

 

31. To give a simple example says the DBS, why would the victims of the harassment publish their own home addresses online accompanied by unpleasant and defamatory attacks and an invitation to the “public and media” to “contact them freely and openly”? Equally, why would they set up fake public profiles about themselves containing crude racial and homophobic abuse?

 

32. JS was a trainee Cardiac Physiologist, having been employed by Harefield Hospital between March 2007 and 16^th June 2009. A Cardiac Physiologist is a specialist clinical role involving direct contact with patients and requiring degree-level education. Cardiac Physiologists carry out diagnostic and analytical procedures on patients with known or suspected heart disease. They have a high level of patient contact. Certain procedures carried out by Cardiac Physiologists are risky. Honesty, integrity and a reliable and professional approach are critical if serious harm to patients is to be avoided.

 

33. JS worked for the Royal Brompton and Harefield Hospital NHS Trust (“the Trust”). He was dismissed on 12 June 2009 for gross misconduct. In September 2009, JS’s internal appeal was heard and dismissed.

 

34. On 22 January 2010, the Trust referred JS to the DBS. The DBS carried out an investigation and sent a ‘minded to bar’ letter on 9 August 2010, together with the evidence and documentation it was intending to rely upon. JS made representations to the DBS received on 13 August, 27 September, 14 October, and 1 and 3 November 2010. The DBS also received a copy of the judgment of the Employment Tribunal.

 

35. In the meantime, JS challenged his dismissal by the Trust in the Employment Tribunal. The hearing took place in September 2010, and a written judgment was handed down in October 2010 which is in our bundle and we have read.

 

36. JS’s claim was unsuccessful. The Employment Tribunal (Employment Judge Andrew Hogarth QC sitting with Mrs F Low and Mr D Warburton) found that JS was a dishonest witness and that the allegations against him were well-founded:

a. JS forged numerous documents. These include letters purporting to come from a patient, a former colleague, the police, his former employer, as well as false postings on Facebook: “[t]he tribunal have no doubt that these are forgeries created by [JS] … these documents were created by [JS] notwithstanding his vehement denial”;

 

b. JS carried out tests on patients that (as a trainee Cardiac Physiologist) he was not qualified to undertake. He also informed patients of the results of tests. He should not have done so – good and bad medical news needs to be delivered by senior staff who are qualified to interpret tests and resolve patient questions. The Tribunal held: “[w]e are satisfied that [JS] was a man who was in a hurry to get what he wanted to get and was carrying out tests that he was not appropriately qualified to carry out and was informing patients of the results of those tests when he was not appropriately qualified to do so”; and

 

c. The Employment Tribunal ordered that JS pay costs, “[t]here is no doubt that [JS] has acted vexatiously and unreasonably in the bringing [and] in conduct of the litigation”.

 

37. JS’s applied for a review of the Employment Tribunal decision. His application was dismissed on 24 November 2010. Employment Judge Hogarth QC noted “[t]he tribunal after hearing the witnesses give evidence and after hearing argument concluded that [JS] was not a truthful witness”.

 

38. On 3 February 2011, the DBS issued its Adults’ Barring Decision. It made five findings of relevant conduct against JS:

“• You plagiarised other persons work to support the attainment of professional qualifications.

• You had undertaken work and carried out medical procedures that you were not trained, required, or authorised to do.

• You gave out results of tests and procedures to patients that you were not authorised to do.

• Provided a falsified … reference from your former employer to gain employment within a different health care setting.

• You claimed to have qualifications that did not exist or [you] were not entitled to.”

 

39. The DBS decided to include JS on the Adults’ Barred List because “despite [JS’s] consistent denials the facts of the case indicate that exploitative attitudes, a suspicious, angry, vengeful style of relating to others and irresponsible and reckless attitude were central to [JS’s] behaviour and that there is a significant risk that similar behaviours would lead to harmful actions in the future.”

 

40. On 17 February 2012, the DBS sent JS a children’s list ‘minded to bar’ letter, on the basis of new information that had come to light. JS submitted representations in response.

 

41. On 6 June 2012, the DBS issued the Children’s Barring Decision. It made six factual findings:

“• You created a page on ‘Facebook’ entitled ‘Gollywogs at Harefield  Hospital’ containing homophobic and racist abuse against your former colleagues.

• You created an internet blog with titles including ‘as Harefield Hospitals Cardiology Department Lied About you?’, ‘The Real Harefield Cardiology Department’, and ‘Harefield Hospitals Robert Bell – A Story of a Corrupt Chief Executive’.

• You have been charged on two counts of having pursued a course of conduct which amounted to harassment between 1 January 2011 and 28 July 2011 and one count of having sought to engage/offered in engage/engaged in regulated activity from which you were barred on 30 April 2011. We are satisfied, on the balance of probabilities, that … you committed the conduct alleged in the charges.

• Between 29 March 2011 and 14 April 2011 you applied for 14 jobs with Oxford Radcliffe Hospitals NHS Trust, 11 of which were regulated activity from which you were barred.

• You provided falsified documents to the Upper Tribunal as part of your appeal application:

Investigatory notes of a meeting with Mr A dated 7 September

2010.

Email from Mr O to Ms R dated 1 April 2008.

Email from Mr A to Mr O dated 1 January 2009.

Email to you from Mr A dated 1 July 2009.”

 

42. The DBS considered that JS’s behaviour gave rise to significant concerns about the risk he may pose to children in the future “given your exploitative attitudes, poor problem solving and coping skills; and suspicious, angry, vengeful and dishonest style of relating to others. Nothing you have said in your representations gives any reassurances that you have gained insight into your behaviour or addressed it in any way”.

 

43. The DBS further noted its concerns with the documents that JS had submitted with his representations:

 

“We are additionally concerned that amongst your representations you have submitted further fabricated documents, for example a letter purported to have been sent by Ms R, Principal Chief Cardiac Physiologist on 11 September 2011 and a HSBC bank statement dated June 2009. Rather than addressing the concerns outlined in our letter of 17 February 2012, the escalation of your dishonesty serves to reinforce the view that your indiscriminate behaviour knows no boundaries, and you will stop at nothing to achieve your aims whatever the impact on others.”

 

44. On 19 June 2012, JS was tried at Ealing Magistrates Court on two charges of harassment against his former colleagues Mrs Rochelle and Mr Octave contrary to sections 2(1) and (2) of the Protection from Harassment Act 1997. The Court ruled that the course of conduct in relation to both Mrs Rochelle and Mr Octave amounted to harassment. However, it ruled that there was insufficient evidence to prove that the course of conduct was perpetrated by JS. The insufficiency of evidence was due to:

a. the Court refusing the Prosecution leave to make a Bad Character Application outside the statutory time limit;

b. a gap in continuity of possession in relation to Exhibit JR/3, a 37-page printout which evidenced the derogatory material that was posted on Facebook by JS; and

c. a failure by reason of oversight to obtain a witness statement from PC Collins to attest to the continuity of possession of the memory sticks seized from JS.

 

45. On 8 April 2014, the High Court granted interim injunctive relief against JS to restrain him from harassing 29 current and/or former employees of the Trust. The High Court was provided with detailed evidence and a schedule chronicling 133 individual acts of harassment carried out by JS between July 2009 and February 2014. Mr Justice Green considered these allegations to be “supported in the very detailed exhibits attached”, and concluded that there was “a strong and cogent case of breach” of the Protection from Harassment Act 1997 by JS. On 9 May 2014 Sir David Eady (sitting as a Judge of the High Court) granted judgment in default against JS, made a permanent injunction and gave directions for the assessment of damages. Although JS was properly served, he chose not to defend the proceedings. The DBS infers that he did not do so because he had no defence.

 

Consideration of the Grounds of Appeal

1. Undue weight given to disciplinary and Employment Tribunal decisions

46. We now turn to consider each of the Grounds of Appeal set out in paragraph 5 above. JS alleges that the DBS accorded undue weight to the findings of the internal disciplinary hearing, subsequent appeal, the decision of the Employment Tribunal. He insinuates collusion between the DBS and the Trust: “I believe the deal the DBS and my former employer have is that I be barred under any terms which is evidence from the documents and reasons in question”.

 

47. In response the DBS says that it is entitled to take into account, and accord appropriate weight, to internal disciplinary proceedings and judgments of the Employment Tribunal in its ascertainment of the relevant facts. However, the DBS makes its own independent findings of facts, and decides whether in the light of those facts the person in question should appropriately be included in a barred list.

 

48. JS further alleges that undue weight was given to the disciplinary and Employment Tribunal decisions because a key witness, Mr Ali, subsequently “admitted to lying about the Appellant and states that staff members had also done so; these lies being to the Appellant’s detriment”. The DBS say that this is false. In support of this point, JS relies upon a purported transcript of the meeting, titled “Investigatory Notes of the meeting with Ken Ali on the 7^th September 2010 at 13:00”. Mr Ali allegedly signed this document on 9^th September 2010, one week after the Employment Tribunal hearing and over a year after JS had been dismissed. In the document, Mr Ali is recorded as admitting that his evidence to the Tribunal against JS was false.

 

49. The DBS say that this document is a forgery, prepared by JS in an attempt to support his case. It was not provided to the DBS when representations were invited. The DBS say that it has been created by JS in a misguided attempt to bolster his appeal to the Upper Tribunal. It indicates why it was entirely appropriate to place JS on both the Adults’ and Children’s Barred Lists.

 

50. Our conclusion on this point is that the transcript of the meeting on 7^th September 2010 is a forgery. We heard from KA about that document and he confirmed that he had never been at such a meeting and had never said what he is purporting to have said. Because this is a forgery, we cannot accept JS’s argument that undue weight was given to the disciplinary and Tribunal decisions since KA had not lied. The fault here lies entirely with JS who fabricated a document to support his case.

 

51. As the DBS argue, it is open to them, as it is to us, to consider all the evidence that is available and that has to include disciplinary and Employment Tribunal hearings. We are satisfied that DBS did not give undue weight to these hearings. As the Employment Tribunal made findings about false documents, plagiarism and fake qualifications (the PGGrad) it was appropriate for them to be considered by DBS. As there is such a volume of false documents and attacks on those at Harefield Hospital, the reality is that the earlier hearings form only part of the case against JS. This criticism is dismissed.

 

2. Plagiarism

52. JS was accused of plagiarism: he used work done by others to complete his training log book. When initially interviewed, he admitted his conduct and confirmed this in a meeting on 13^th May 2009 (“[Lynda Turnball] stated that when she met with [JS] during the suspension meeting JS told her that he blagged his logbook. JS confirmed that he had said that to LT). At the same meeting JS admitted both to forging 6-7 assessments which did not take place but also to using others work as his own. JS also falsified and made up results for his BSc dissertation. He would pass off the work of other Cardiac Physiologists as his own, in order to get his training signed off. His assessor (MO) refused to continue to work with him, because of this troubling conduct.

 

53. DBS say that Middlesex University (the degree awarding institution for the City of Westminster College) initially found JS guilty of plagiarism in academic disciplinary proceedings. However, his appeal was allowed on 24^th August 2010 solely because the falsified logbook had not been submitted for assessment. This does not alter the fact that JS was prepared to plagiarise entries in his training log, recording that he had gained experience that he had not. DBS say that although JS did not in fact submit the logbook to Middlesex University, the fact he was prepared to fabricate entries in it is very troubling. When viewed together with JS’s repeated practice of forging other documents, it indicates that he cannot be trusted with a responsible clinical role, whether caring for vulnerable adults or for children. It comes as no surprise to discover that JS made a complaint against Middlesex University to the Office of the Independent Adjudicator for Higher Education.

 

54. JS says that the DBS placed undue weight on “the mere existence of the [plagiarised] document as opposed to the fact that it was never submitted by [JS]”.

 

55. Having considered the evidence we find that there is evidence of plagiarism. JS’s point that they were never submitted is not the point. The point, as made by the DBS, is that JS was prepared to fabricate entries in logbooks. We accept the evidence of MO and KA that JS would regularly change the name of the operator who had taken a test to his own during the time that the test was still open and unconfirmed. Once checked and signed off by a doctor the records could not be changed.  

 

56. There is further evidence of plagiarism. First KA told us that when JS showed him his dissertation on T Wave Alternans, KA said that it was copied (and pasted) from the work of Dr Tony Choir and could not proceed. JS said that it was only the abstract which was shown. We accept KA’s evidence in preference to JS’s and that he was shown the dissertation not the abstract. KA said that he knew that JS’s work was plagiarised because he had recently read the academic paper which JS was using and that he also knew the author personally.

 

57. On 15^th April 2009 KA wrote an email to JR confirming his concerns about JS’s work for his dissertation. We know that this email is valid because KA has countersigned it.  JS told us that he based his dissertation on 12 tests. We were told by KA and JR that there were never that number of tests undertaken and this is confirmed by KA both in his evidence to us and in the 15^th April email.  This can only mean that JS fabricated some test results.

 

58. The DBS were right to rely on this as part of their case as it has serious implications. We reject JS’s suggestion that undue weight was placed on it. The weight given to this by DBS was entirely proportionate.

 

3. Falsified reference

59. DBS say that JS dishonestly falsified a reference from Mr Ali. According to Mr Ali:

“I state firmly that Exhibit KA9 dated 7 July 2009 is a forgery. The manuscript writing is not my own. The signature is not my own. The comments and boxes ticked suggesting that JS was an excellent employee are not my own. I did not write this reference.”

 

60. In addition, the DBS rely on the fact that before the Employment Tribunal, JS conceded that the reference was a forgery:

“On 7 July 2009 a reference purporting to be from Mr Ken Ali Senior Cardiac Physiologist was sent to an employment agency with whom [JS] had registered. The reference can only be described as extremely favourable and [JS] is described as being in the top category in all the criteria set out in the pro-forma reference supplied. Mr Ali told the tribunal that this reference was not written by him and this does not appear to be challenged. On 20 July Mr Ali did send a reference to the same agency but this reference was qualified and the person receiving [the] reference was referred to the HR Department. This was not such a favourable reference…” … We then have a reference from Mr Ali which was accepted as being a fake reference.

 

61. The DBS say that JS falsified the reference in an attempt to conceal his misconduct whilst working at Harefield Hospital. This allegation does not appear to be denied in the Grounds of Appeal, save that “insufficient weight” is given to Mr Ali’s alleged recantation in the form of an email. The DBS assert that even that document is false.

 

62. JS does not deny falsifying the reference. He contends the DBS places insufficient weight on subsequent evidence from Mr Ali.

 

63. We find that the reference is false. JS asserted that at KA’s request he paid him £100 for this false reference. JS produced a bank statement for June 2009 from HSBC which, he claimed, showed the payment going from his account. He was asked a number of times if the bank statement was genuine and had been produced by his bank. Each time he answered yes. Sadly for JS, the statement showed that it covered between 1^st and 31^st June 2009. JS appeared not to be aware that there are only 30 days in June – indeed he suggested that in 2009 June may have had 31 days in it!

 

64. We have both the reference that JS forged and the genuine one prepared by KA. The latter one asks the reader to contact Human Resources and gives a number (so that the fact that JS was dismissed could be explained) unlike the apparently glowing reference produced by JS. We also note that the genuine reference has the hospital stamp on it whereas the forged one has no stamp.

 

65. We are satisfied that JS falsified his own bank account to support his contention that the glowing reference was real. We accept the evidence we heard from KA that he had prepared the ‘refer to HR’ reference and not the glowing reference.

 

66. Although JS does not deny he falsified the reference, in case at a later time he tries to suggest that he did not falsify it, it is clear to us that he did create the glowing reference and tried to justify it by saying that KA demanded payment for it.

 

67. Clearly the DBS were entirely right to rely on this as part of their barring decision. Indeed, in our opinion, this false reference is enough on its own to debar JS. It goes to the very core of his credibility. If he lied and forged a reference and a bank statement, what else did he forge?

 

4. Qualifications

68. JS used the acronym ASCST (Associate of the Society for Cardiological Science and Technology), the professional body for Cardiac Physiologists. We find that JS was not qualified or authorised to do so, because he had not passed Part 2 of his exams. He was well aware of this fact. JS’s explanation that he thought it was acceptable to use this qualification because he was part-qualified is obviously wrong. He said in evidence that “everyone else was using it so I thought I would”.

 

69. Despite his lack of qualifications and trainee status, he was unwilling to comply with the limitations placed on his practice for reasons of patient safety. JS also claimed to have the qualification ‘PGGrad’. This qualification does not exist. We find that this is a deliberate attempt to appear more qualified than he was and, as a consequence, in so doing he could have put patients at risk. In addition, at a meeting on 17^th April 2009, JR commented that JS “thinks he knows more than his capabilities, he failed his basic ECG exam”.

 

70. JS says that the DBS acted irrationally and unreasonably in concluding that JS intended to provide incorrect and misleading information as to his qualifications. We reject this contention out of hand. Having found that JS DID try to mislead and provide incorrect information about his qualifications, we cannot see how the DBS can be said to have acted either irrationally or unreasonably.

 

71. Indeed, we find that their concerns were well founded as it has become apparent that since DBS placed JS on the Barred Lists he has on at least 2 occasions held himself out to be a fully qualified Cardiac Physiologist: for a month at The Royal Free Hospital in London and then a longer period at Northwick Park Hospital.

 

72. We have seen a number of applications by JS for jobs (including a Senior Cardiac Physiologist at Chelsea and Westminster) in May 2012 and it is clear that he positively asserted that he was working “as a Cardiac Physiologist doing pacing, ECGs, Exercise stress tests (the very test he admitted doing when not qualified to do), analysing 24 hour tapes…..” Studying the application form for the Chelsea and Westminster job, for example, shows that JS lied in answer to the question about whether he had been referred to ISA Adult Barred list (he said no but knew he was barred from 2011). He may not have been on the Children Barred list at that time but he knew that there was a ‘Minded to Bar’ letter so should have answered that further question Yes rather than No.

 

73. His previous employment history set out in the application form shows exaggerated previous work, for example at Heathrow Airport. He says that he was employed by Heathrow Airport but was an immigration and drugs official enforcing warrants. Given that this work is undertaken by a Home Office Department (formerly UKBA) and is highly specialist and requires considerable training it is highly unlikely that he was actually a part-time customs official from the age of 18 years and 2 weeks as he is claiming. Needless to say that is just another further example of JS’s ability to see himself as more qualified than he really is.

 

74. Another concern we had was that it was clear that JS did not use the normal channels for booking training courses. He would do the booking himself and this meant that he put himself on courses above his qualification and training levels, thereby passing himself off as more qualified than he was. For example, as JR said in evidence, he did an ICD course which was beyond his capability, particularly when he could not notice a change of rhythm on an ECG.

 

75. For the avoidance of any doubt, we make it clear that since JS did not complete his course at Harefield and Westminster he is NOT a qualified Cardiac Physiologist. There is no such thing as a partly qualified cardiac physiologist. You are either qualified or not. And he is NOT.

 

5. Medical procedures and test results

76. JS admits that he commenced one cardiac stress test without authorisation or supervision and he also gave out test results to patients. Both activities are strictly prohibited. In particular, a cardiac stress test is potentially dangerous because there is a risk of cardiac arrest during the procedure. Such assessments need to be supervised and monitored by a more senior member of staff. JS’s response is that he was not being properly supervised or trained, so errors were not his fault. The evidence collated by the DBS, and put before the Employment Tribunal indicates otherwise. DBS say that the real difficulty is that JS was unwilling to accept limitations on his practice, and that he did not recognise that he was a trainee with limited experience, or the seriousness of a mistake on the life and health of his patients. He had been informed of his mistakes, but continued to make them. When viewed together with his repeated dishonest conduct, this is a matter of considerable concern.

 

77. JS denies there were multiple instances of commencing tests without authorisation, and notes that he did not have proper support.

 

78. We note that JS admitted that he had undertaken a test when he was not qualified to do so. There may have been other occasions when he did other tests without supervision. We will never know. Given that JS went on courses that were at levels higher than his training there is the fear that if he had not been stopped when he was he could have performed procedures far above his ability levels. This is particularly so given that we know from JR that JS was not that competent a trainee. As JR told us, JS made a number of mistakes when performing an ECG on transplant patients in that he either copied the previous reading onto the trend sheet or failed to see and then report changes in rates. The changes in rhythm and voltage are important as they are early indicators of rejection. JS was permitted to do this work as he was well into his training by then and they should have been easy for him. However, he failed to do them properly.

 

79. We agree with the DBS submissions that JS was unwilling to accept limitations on his practice and that he did not recognise that he was a trainee with limited experience. We agree that when viewed together with his repeated dishonest conduct, this is a matter of considerable concern and would merit being barred on this ground alone.

 

6. Unreasonableness

80. JS contends that even on the findings of fact made by the DBS, it was unreasonable and irrational to bar JS from working with vulnerable adults. The DBS disagrees. Where a medical professional, who carries out important and potentially dangerous procedures on vulnerable adults:

a. passes off assessments of others as his own;

b. does not recognise his own lack of professional skills; and

c. forges multiple documents in an attempt to pass the blame onto others and secures new employment with vulnerable adults

it is reasonable for the DBS to conclude that it is not appropriate for him to continue working with vulnerable adults in a health care setting. JS has shown that he cannot be trusted on issues of honesty, integrity and patient safety. Even after being dismissed, he forged a reference to try and get him back into similar work. Nothing short of placing JS on the barred lists to prevent him working with vulnerable adults and children will be sufficient to protect the public. The DBS’s Decisions to this effect were rational, and contain no error of law.

 

81. We agree and have nothing to add to the last paragraph. It is a clear and fair summary of the case against JS and the reasons it was both rational and reasonable (and we would say necessary) to bar JS. We also emphasise (as we say in paragraph 116 below) that people are vulnerable because they are in the health system.

 

7. Disproportionality

82. Although phrased as a further challenge to the Adults’ Barring Decision on the basis of the unreasonableness of the Decision, JS also contends that the Decision is disproportionate. He states that “the decision to deem it appropriate to bar a junior, yet to be qualified cardiac physiologist from working with vulnerable adults in any setting is both unreasonable and irrational”. JS is effectively contending that an absolute bar against working with vulnerable adults is disproportionate.

 

83. The DBS submits that it has no power to include a person only partially on a barred list. Rather, it must decide between either including, or not including a person. In making this determination, the DBS says that it must engage in a careful decision-making exercise as to whether it is “appropriate” to include the person. This determination is only open to review or reconsideration by us in the Upper Tribunal on the grounds it is so irrational or disproportionate as to amount to an error of law: B v Independent Safeguarding Authority [2013] 1 WLR 308, per Maurice Kay LJ at 315C.

 

84. The DBS say that the Adults’ Barring Decision evinces careful thought and reasoning. The DBS considered representations made by JS, accepting that plagiarised work was not submitted to the college for assessment. Ultimately, on the basis of its factual findings, the DBS concluded that it was appropriate to include JS on the Adults’ Barred List because of JS’s “exploitative attitudes, a suspicious angry vengeful style of relating to others and irresponsible and reckless attitude were central to [his] behaviour and that there is a significant risk that similar behaviour would lead to harmful actions in the future.” This is an entirely proportionate Decision.

 

85. We agree. The Decision was entirely proportionate and could have been taken on only one of the above grounds, let alone the combination of all 5.

 

8. Forgery and fabrication

86. Although the Employment Tribunal found that JS created a Facebook page, internet blogs, a letter purportedly from a police officer (see paragraph 36a above) he denies that it was him or that he submitted falsified documents to the Upper Tribunal. However, the Facebook page, internet blogs and the letter purportedly from a police officer were matters that the Employment Tribunal considered, and ruled upon. It held that these were forgeries created by JS. In its Judgment on JS’s Application to Review, the Employment Tribunal stated:

“It is correct that the tribunal did conclude that the documents listed in their decision were created by [JS]. It is correct that the tribunal rejected his case that these documents were created as a part of an extensive and subtle conspiracy by the [Trust]. The tribunal did so not only on the basis of these documents individually but of all the questioned documents collectively.”

 

87. The falsified documents that JS provided to the Upper Tribunal comprise investigatory notes of meeting dated 7^th September 2010, and three emails. The meeting note is a forgery. The DBS says that the emails are likewise forgeries.

 

88. We agree. The forged meeting notes were submitted to us on the basis that they had been omitted from a fax dated 14^th March 2011 from Beachcroft LLP (solicitors acting for the hospital trust in the Employment Tribunal case) to the Employment Tribunal. We were told that the notes of the meeting were the missing pages 11 and 12 of that fax but we do not accept that is true. It means that there has been a very deliberate effort by JS to create the impression that the 2 pages of the forged meeting notes were faxed as they have details (such as the date, the fax number and the page number) along the top of the document which, to all intents and purposes, gives the impression that they were part of that fax. It is a methodical and sophisticated forgery.

 

89. We add that these forged documents are only a fraction of those created by JS. Indeed, such is the extent of the forging that we are satisfied that unless someone can vouch for their authenticity, most of the documents put forward to support JS and his case were forgeries created by him. One of his ‘signatures’ was that in writing a letter he would sign off not “Yours sincerely” but “Yours Sincerely”, for example in his letter of 29^th October 2010 addressed to ISA. This happened on the forgeries he created which purported to be written by others. By writing ‘Sincerely’ this way on the forgeries he gave himself away as their author. Another ‘signature’ was JS’s inability to spell Principal. Throughout the papers (including in forged documents and applications) he spelt it Principle.

 

90. Perhaps the most surprising lie was told in respect of his own HSBC bank statement of June 2009, as mentioned above. It was produced to support JS’s claim that he had paid KA £100 for a reference (which in fact JS had forged). If JS is capable of forging his own bank statement so that it looks like a real one (save for the date) JS is capable of forging any other document.

 

91. There are so many forged and fabricated documents that it is difficult to know were to draw the line. For ease we have identified in the schedule attached a list of known forgeries. We are sure that these are not all, however. An example of how a forgery by JS caused distress concerns Mr Findlayson, a young person from Leicester. A letter was forged by JS and sent to the family concerning possible treatment at Harefield, even though the person was not on Harefield’s system. The family and the GP knew nothing about it and contacted the hospital. The family were reported to be both upset and distressed by the matter. JS accused GB of forging it. It caused considerable difficulties for JR – no doubt exactly what JS intended and why he sent it.

 

92. Another example of how JS would use a document to cause problems to others can be seen in the letter he forged dated 15^th February 2008 and purporting to come from Mary Etheridge. It was designed to cause problems for Jackie Deamer because she had been critical of JS. Her statement of April sets out a number of small but very annoying incidents (missing cardigan, clogs and lunch). As that letter seemed to provoke no response he resent it to JR in October 2008. JR replied but JS was clearly not satisfied with the outcome because he sent a letter seemingly from Mary Etheridge’s daughter, Carol in February 2009. The fact that it was all a forgery came to light because it transpired that Mary Etheridge (although a real patient) did not have a daughter.

 

93. JS appears to have forged a letter from Jacqui Howard, Honorary Registrar of the Registration Council of Clinical Physiologists (RCCP) as it is critical of MO. He also forged a statement from Heather Stanborough, a former colleague who moved to Australia. The forgery only came to light after JR checked directly with Ms Stanborough as to whether she had written it.

 

94. One line of forgeries which was not known about by DBS and so postdates the two barring decisions was the false email addresses and names used to obtain Freedom of Information requests in respect of MO’s employment with Christchurch Canterbury and several health trusts. JS made these requests in the name of Andrew Morley. This line of enquiry was to try to imply that the contracts were given preferentially (including an allegation that JR’s sister-in-law had given MO a contract because of the link). Sadly for JS the fact that the emails “came into my hands” and seemed only to redact his name and details showed us not that they were genuine documents but that, yet again, he was the author of forged requests. We assume, but cannot be sure, that the replies were genuine.

 

95. “Andrew Morley” was, apparently, the Assistant Director of HR at Hillingdon Hospital. It was a surprise, therefore, to find Mr Morley using a hotmail rather than NHS email account for his work – another ‘signature’ of JS. In fact “Andrew Morley” is a composite name. Andrew is Mr Howlett’s first name and Morley is the surname of his PA.

 

96. Not content with all of these forgeries, JS also made a false complaint against KA – accusing him of cheating in his exams for membership of the International Board of Heart Rhythm Examiners. The letter from IBHRE is dated 30^th September 2013. It is a body based in Washington DC in the USA and is highly regarded. Fortunately the Board found no wrong-doing but the fact that JS was prepared to go to the lengths of making complaints to such a body shows us the extent and lengths to which he is prepared to go to pursue his vendetta.

 

9. Harassment and job applications whilst barred

97. JS admits that he was charged with two counts of harassment, and that he applied for regulated jobs whilst he was barred. He questions the relevance of these matters. He contends he did not intend to apply for the positions and, in any event, he did not thereby put children at risk.

 

98. With respect to the two counts of harassment, the DBS say that JS suggests these are irrelevant because they do not amount to a conviction or caution. This demonstrates a misunderstanding of the framework of the SVGA. A relevant conviction or caution would require the DBS to include JS automatically on a barred list by reason of  Schedule 3, paragraphs 3 and 7, SVGA. A charge, like all other information, may be taken into account by the DBS insofar as it is relevant in the exercise of its discretionary powers to include a person on a barred list. It is entirely proper for it to do so.

 

99. JS also applied for regulated jobs whilst barred, particularly at the John Radcliffe Hospital in Oxford. He claims that he had not intended to apply for the positions and, in any event, he did not thereby put children at risk of harm. However, JS was aware at the time the applications were made between 29 March 2011 and 14 April 2011 that he was unable to apply for these positions having received in February 2011 a refusal for a position of a Cardiac Physiologist on the basis of being barred from working with vulnerable adults. We understand that he is to stand trial for these matters at Isleworth Crown Court on 3^rd August 2014.

 

100. He raises a series of excuses for applying for the jobs: that this was done “… by accident”; “the jobs did not state ‘regulated’ or ‘unregulated’”; and that his “NHS jobs account …was automatically applying for the roles in question”. The DBS invited us to conclude that each of these explanations are implausible, and we do. The 2011 applications were followed by those in the bundles from 2012, relying on the 2011 jobs! To apply by accident once is improbable (at least) but to continue to apply in 2012 (as mentioned above) and rely on these jobs is not only implausible, it is both impossible and unbelievable.

 

101. As to harassment, we note that JS claimed during the hearing before us that he did not know about the High Court injunction granted by Mr Justice Green and that he had not attended the hearing. Of course, not attending is not the same as not knowing. We are satisfied that JS was and is fully aware of the terms and existence of the injunction because it was referred to at a directions hearing before HH Judge Oliver in June. The DBS told Judge Oliver in JS’s hearing of their intention to include all the paperwork relating to the injunction in the trial bundle. JS did not say at that point that he was unaware of the injunction.

 

102. The harassment is not confined to the magistrates’ court case. JR said that there were peaks and troughs in the harassment, with it tending to increase as one got towards a hearing. We are fully satisfied that JS created the Facebook page and the internet blog. We rely not only on the comprehensive findings we have made against JS about his forgery and deceit about everything but also because both paint him in a ‘noble’ light – the hero fighting against the evil forces at work in the hospital. In addition, the details contained in the blog and Facebook pages are known to only a few (of whom JS is one) and some detail is known only to him (such as the letter from ISA). It is a surprise if these accounts were created by KA, MO, GB and JR that they should so kindly and generously remove his name and details whilst pouring vitriol on themselves. JS asserts that he was the victim of a conspiracy. That is utterly unbelievable.

 

103. One might have thought that all of this was enough, but not for JS. The day before the hearing he posted 17 tweets supposedly from GB which had links to the blog pages and Facebook pages. To do that and think that it would not be referred to suggests that JS is either supremely arrogant or very stupid.

 

10. Other matters

104.  Whilst we have considered all the evidence relating to the nine grounds of appeal, we believe that there are other matters which need to be considered and upon which we need to make findings.

 

105. The first matter is the evidence of Andrei Tinine. Although not relied upon by the DBS for its decision making and as part of their case, it is evidence we can consider. We note that Mr Tinine was able to look at the internet use of some of the sites that the emails purporting to be from people like MO and others came from. This evidence is in the form of a statement of 12^th March 2014 and was not available to ISA/DBS when the two barring decisions were made. We are satisfied that despite JS trying to persuade us that no email use could be traced back to him as many appeared to come from Eastern European countries, the evidence in Mr Tinine’s statement and report shows that he was the author of these messages.

 

106. We are aware of a programme called TOR which enables the user to hide the place from which an email was sent by sending the message via several internet service providers (ISPs) before sending it. It is almost certain that JS used this programme to cover his tracks and was able to claim that it was not him sending them messages as several came from ISPs located abroad.

 

107. We noted during the hearing that JS twisted everything to his own ends and transferred allegations made against him onto others. Every time he was accused of doing something wrong it would just so happen that one of his victims was later accused of doing the same thing. Two examples amongst many are first that JS referred some of his victims to ISA after he had been referred to ISA/DBS. ISA had to investigate the referrals, of course, and it took them (ISA) some time to realise that these were all vindictive. A second example is the offensive and completely untrue Internet postings about GB that appeared once JS's dismissal from the Trust had been confirmed. Likewise, any criticism was reflected back. It is partly for this reason that we are entirely satisfied that JS was the creator of the blogs as it contained much of what he was accused of.

 

108. Perhaps the worst example of JS reflecting his own behaviour on others was when he accused 2 outstanding students, James and Rebecca, of cheating by making false entries in their log books. They were entirely innocent, had done nothing to harm JS and were not in the department when JS was there. Although they survived it well, the consequence for them had JS’s false accusations that they had been cheating not have come to light would have been the end of their careers.

 

109. Although JS denies his involvement in any of the blogs and Facebook pages, we are satisfied that he was the author of them all. Indeed, we note that the contents of at least one blog were found on a memory stick in JS’s possession when he was arrested for the magistrates’ offence. Every document had far too much detail and knowledge of JS’s situation and the campaign he was waging for it to be anyone other than him. His allegation that he was the victim of a campaign by everyone else is simply preposterous and unbelievable. Those involved have suffered up to 7 years of appalling harassment by JS – why on earth would they do that to themselves simply to get JS barred? If he thinks that everyone is doing all this just to get at him he has a very big ego.

 

110. Another feature of JS which we found surprising was that, for some reason, everyone seemed to confide in him or complain about colleagues to him. If that is true (which we do not accept) their confidence was badly misplaced as JS would then use any information he had been told to his own advantage.

 

111. It was of considerable concern to us that, on a number of occasions, JS would effectively put words into the mouths of witnesses we heard. In questioning the witnesses and in talking to us JS would assert that X had made a statement when we had heard different evidence. For example, he told us that JR had accepted that he had done one stress test unsupervised when in fact she said, in reply to JS’s assertion that there had been only one unsupervised test, that if there had been one unsupervised stress test, it was one too many. JS also misquoted KA and MO on at least 2 occasions. We came to the conclusion, therefore, that when JS stated that someone had said something, particularly when it put him in a favourable light, we could not accept it at face value. This misrepresentation carried on throughout the hearing, even after the Chairman had drawn it to JS’s attention on at least 2 occasions.

 

112. We were very concerned to note that JS has had a racist attitude, particularly in respect of KA. He refused to accept that Mr Ali’s given name is Ken. Both in emails and letters and at the hearing, JS called KA Mohammed and referred to him on a number of occasions as ‘coconut’, a deeply offensive term meaning that someone is black on the outside and white on the inside. JS accused KA him of sucking up to the hierarchy of the hospital to gain promotion whereas JS felt that KA should have been fighting the establishment because he was an ethnic minority employee.  There was no need for this abuse which JS continued during his questions to KA. We find that this says much about JS’s attitude in general and how he sees himself.

 

113. We could not fail to notice that JS's cross examination of all the witnesses was hostile. When questioned about this JS finally admitted that he blamed each one of them for all his woes, even though it is clear that he is the author of his own misfortunes. It was remarkable how they all retained their composure and dignity even though we believe that it was almost abusive in the way he made them re-live their experiences.

 

 

Damages

114. JS has submitted a claim for damages. This submission is misconceived. The Upper Tribunal has no power to make an award of damages in the present case.

 

115. Section 57 SVGA provides:

“57 Damages

(1) No claim for damages lies in respect of any loss or damage suffered by any person in consequence of –

(a) the fact that an individual is included in a barred list;

…

(3) Nothing in this Act affects section 8 of the Human Rights Act 1998 (c. 42) as it relates to the power of a court to award damages in respect of an unlawful act of a public authority (within the meaning of that Act).”

 

Conclusion

116. At the end of the day, we are satisfied that, given the evidence above, JS cannot be trusted on any matter. If he is not barred we are of the opinion that everyone who is vulnerable is at risk – if he is prepared to start procedures without supervision, issues results he was not permitted to, falsify his records by taking the work of others as his own and apply for jobs after he had been barred not only knowing he was not permitted to but holding himself out as being qualified when he was not, the risk to individuals’ wellbeing is immense.

 

117. People are vulnerable because they are in the health system. JS has exploited that vulnerability by letting them believe that he was qualified and in a position he was not.

 

118. Further, if JS has been prepared to lie and to fabricate as much as he has, how can we ever be certain that he will not lie about or fabricate results/diagnosis in the future and thereby put people at risk?

 

119. JS pursued a course of vilification and destruction of people’s characters and lives simply because they dared to stand up to him or he perceived that they crossed him or challenged him and refused to allow him to get away with his behaviour. Whilst we have been dealing with the most serious matters in this hearing, in her evidence JR said that there were a number of smaller incidents (such as hiding shoes and cardigans and taking cakes from other departments) early on and although they may be thought of as trivial by comparison to what subsequently happened, they add together to form a picture of a dangerous man.

 

120. JS stopped at nothing to pursue his vendetta. He set up false email accounts, made spurious applications using vile email addresses (particularly against MO) and even pursued Freedom of Information requests (using false email accounts and names, of course) to find out what external contracts people had and how much they were being paid. JS even obtained returns sent to Companies House in relation to businesses owned by MO.

 

121. Throughout the case JS has failed to understand that putting a child at risk is NOT always about sexual offending. We hope that paragraph 12 above now make that clear.

 

122. Whilst this is not a finding against JS, we cannot leave this case without commenting on the harassment case in the magistrates’ court. Given that it took over 6 months to complete (with 7 hearings between 19^th June 2012 and 22^nd January 2013) we fail to understand why the CPS did not sort out the two statements of continuity of documents and why the District Judge (Magistrates Court) refused to allow a bad character application to be made, even if it was made outside the statutory time limit. Whilst it is pure speculation now, had JS been found guilty at that time it is just possible that a lot of what subsequently happened would have been avoided.

 

123. We have had the benefit of an overview of the last 7 years and have seen the whole picture unlike others who have seen only parts because some things had not occurred at the time of their involvement. For example, whilst the Employment Tribunal was able to determine that some forgery had gone on, we are now clear as to the extent of it. Likewise we have been able to see the growing intensity of the campaign against KA, GB, MO and JR. It was an outstanding piece of bravura or cheek or stupidity, for example, to send 17 tweets purporting to come from GB with links to the abusive blogs the day before our hearing started.

 

124. After the hearing but before the written decision was issued we had a written application from Kemp Little (solicitors) dated 4^th July 2014 on behalf of the applicants in the injunction proceedings in the High Court. On 18^th July 2014 we made an order that there be permission for a transcript of the proceedings before the Administrative Appeals Chamber of the Upper Tribunal between 23^rd and 26^th June 2014 to be obtained by Messrs Kemp Little (solicitors) at their cost and on behalf of their clients in the High Court injunction proceedings.

 

125. We also ordered that any part of the transcript so obtained shall be disclosable as evidence into the High Court injunction proceedings and may be used as the applicants in those proceedings see fit. In addition, of our own motion we ordered that the solicitors for the applicant in the injunction proceedings shall be sent a redacted and (when published) unredacted copy of the Upper Tribunal’s decision and that too shall be disclosable into the High Court proceedings and may be used as thought fit.

 

126. Having found the facts we have, for the reasons set out above, we are satisfied that the barring decisions were appropriate. We dismiss these appeals and confirm that JS is not suitable to work with children or vulnerable adults.

 

127. The consequences of JS’s behaviour have had national ramifications. It has brought the Heart Unit at Harefield Hospital international reputation into disrepute. JR told us that she and others stopped attending conferences (or turned their badges around) as all anyone wanted to talk about was what was going on at the hospital. JS’s behaviour has caused skilled and innocent professionals to waste untold hours dealing with his complaints, false applications and malicious references to professional bodies. Every complaint he has made has been unfounded.

 

128. Given JS’s sustained, unfounded and vitriolic campaign against KA, MO, GB and JS (and others) we recommend that the unredacted version of this decision is distributed as widely as possible throughout the NHS to ensure not only that KA, MO, GB and JS are exonerated and cleared of any lingering doubts that anyone may have about their integrity but also so that everyone who is aware of what has been happening can be left in no doubt that JS was the sole architect and mind behind the campaign. Finally, it will ensure that JS is not employed in a position where he can put any one at risk.

 

 

Simon Oliver

Janice Funnell

Michael Flynn

 

31^st July 2014

 

 

ANNEXE

 

We find that JS has forged at least the following documents:

-       A letter addressed to Dr Ilsley dated 9^th November 2007 from Emma Walker singing the praises of JS.

-       JS took a 2008 payslip belonging to a member of staff which, at a later date, he posted on the blog/website he had created

-       a letter apparently from Mary Etheridge to JR dated 15^th February 2008 together with a further letter from her and her non-existent daughter, Carol

-       a letter from “DS Blackburn” of the Metropolitan Police dated 26^th February 2010 The police officer does not exist.

-       record of a meeting attended by KA on 7^th September 2010

-       a letter dated 14^th September 2011 from City of Westminster College

-       a reference for JS by KA and a HSBC bank statement ‘showing’ payment of £100 to KA for that reference

-       A letter from Jacqui Howard, the Honorary Registrar RCCP

-       A statement purporting to be from Heather Stanborough

 

 

We find that JS has created the websites and/or blogs critical of Harefield Hospital as set out in Schedule A of the High Court Injunction Order and also mentioned in paragraph 41 above

 

We find that JS has created false Linkedin pages in the names of JR and GB

We find that JS has created false Facebook pages containing racist and homophobic comments and critical of Harefield Hospital

 

We find that JS has made at least 578 false job applications between 30^th November 2012 and 14^th October 2013 in respect of MO using at least 17 abusive email addresses, 3 of which are referred to in paragraph 9 of Mr Justice Green’s judgment and set out in paragraph 29 above.

 

We find that JS has created and operated the following false email addresses

-       Andrew Morley

-       About 17 purporting to be from MO

 

We find that JS made several false complaints against people, including to IBHRE in respect of KA.

 

We find that JS has made a false referrals to DBS/ISA in respect of

-       KA on 2^nd January 2011 using the names Frank Marriot and Mark Tuffey and in which he described himself as a Cardiac Physiologist and former line manager of KA.

-       JR at about the same time