Q v Secretary Of State for Education and Skills [2003] EWCST 206(PC) (10 March 2004)
Q
v.
SECRETARY OF STATE FOR EDUCATION AND SKILLS
(2003) 206.PC
Mrs. C.A.Singleton (Chairman)
Mr. David Braybrook
Ms. Bridget Graham
2nd March 2004 at Leeds Combined Court
1.	The appellant, Q appeals under section 4(1)(a) of the Protection of Children Act 1999 against the decision by the respondent Secretary of State for Education and Skills to include him in the list, kept by the respondent under section 1 of the Act, of individuals who are considered to be unsuitable to work with children.
2.	On 5th February 2003, the appellant appeared before Dewsbury Magistrates Court and pleaded guilty to one offence of possession of an indecent image of children with nineteen other offences taken into consideration. He was fined and placed on the Sex Offenders Register for 5 years.
3.	By letter dated the 15th July 2003, notification was given to the appellant that his name had been placed on the POCA register.
4.	The appeal was heard on the 2nd. March 2004. The appellant was represented by Mr. Mark Haigh of counsel and the respondent was represented by Mr. Jonathan Moffat of counsel. The only oral evidence heard by the tribunal was that of Mr. Paul Johnson, Assistant Director, Children and Families, for Kirklees Metropolitan Council Services. He appeared on behalf of the Respondent. No oral evidence was given either by the appellant or anyone on his behalf. Submissions were made by counsel for each party.
5.	The issue before the Tribunal can be simply stated. Under section 4(3) of the Act the Tribunal must decide, on the balance of probabilities, whether the appellant has been guilty of misconduct which harmed a child or placed a child at risk of harm and that the appellant is unsuitable to work with children. The burden of proof rests with the Secretary of State. If the Tribunal is not satisfied with both aspects of the test, the appeal must be allowed, otherwise it must be dismissed.
6.	The appellant commenced employment with Kirklees Metropolitan Council Social Services on 7th September 1998, working at the Family Assessment and Support Centre and the Kirklees Sex Offenders Programme. Although the Tribunal did not have the opportunity of hearing the appellant give oral evidence, it had a statement made by the appellant at Document C1 of the papers which gave his version of events. The Tribunal also had a report from Ms. Susan Beaumont, who is an independent consultant in sexual abuse, at document E1. In his statement, the appellant said that, after several months of sex offender work, he began to access images of children, culminating in him paying to access a child pornography website in March 1999. He states that his interest was not of a sexual nature but one of morbid curiosity. He came to the attention of the police during "Operation Ore" investigations in November 2002. 450 indecent images were found on his computer. He was convicted and sentenced as stated above. The appellant resigned from his job as soon as he was charged.
7.	Counsel for the Secretary of State submitted that, so far as misconduct is concerned, the very fact of the appellant’s conviction amounted to misconduct and that the act of posing children for indecent photographs inevitably involves harm to the child and leads to the exploitation of children. He argued that the act of viewing indecent images, particularly where payment is made, fuels this activity. He argued that the first limb of the test was, therefore, met. Counsel went on to submit that the second limb of the test, that is that the appellant is unsuitable to work with children is also satisfied. He argued that the mere act of viewing indecent images was enough to render the appellant unsuitable to work with children. He referred the Tribunal to the witness statements submitted on behalf of the appellant which seemed to support this. In particular, he referred to the statement of CQ, the appellant’s wife and that of H. He also referred the Tribunal to the evidence of Paul Johnson who had given oral evidence to the hearing. Mr. Johnson had made it clear that it would be unacceptable for someone who had indulged in viewing indecent images of children to work with them. It would undermine public confidence and without that public confidence it would damage any agency with which the appellant was associated. Furthermore, counsel for the respondent argued that there had been a worrying lack of insight by the appellant, pointing out that the appellant, in his statement, appears to belittle the consequences of his actions. Counsel for the respondent then addressed the statement of Ms. Beaumont referred to above. He referred to the fact that it is based on self-reporting by the appellant and that the report is flawed to some extent in that it does not deal with the fact that the appellant admits that he was aroused on a couple of occasions during his work with sex offenders, nor does it deal with the fact that the appellant admits that he "fancies" teenage girls, a matter confirmed to Ms. Beaumont by her discussions with the appellant’s wife. Also, the report does not deal with the fact that, despite the appellant’s wife stating that her husband poses no risk to a child, she is only prepared to allow the appellant to have supervised access to their own three children.
8.	Counsel for the appellant only took issue with the first limb of the test which the respondent has to prove. He based his submission on his contention that the respondent had failed to show, on the balance of probabilities, that the appellant had been guilty of misconduct which harmed a child or placed a child at risk of harm. He argued that the Secretary of State was bound to only deal with the offence of which the appellant had been convicted. The images involved in that offence were graded as Level 1 in terms of their severity. Counsel submitted that they did not involve actions by the children which led directly to harm. He argued that no evidence had been produced as to any harm suffered by the children. He pointed out that nudity or semi-nudity can be entirely innocent. He admitted that the children in the images found on the appellant’s computer were being exploited, but questioned as to whether the children themselves would be aware of that. Counsel’s submission was that the Secretary of State needed to show, not that the child was a victim, but that it had suffered harm. He stated that, if the child is unaware of what is happening, it is hard to see how the Secretary of State can establish it has been harmed. Counsel for the appellant, therefore, submitted that no harm or risk of harm had been established and that the appeal should be dismissed. He did not proceed to take issue with whether or not the appellant is unsuitable to work with children because he contended that the Secretary of State had failed to discharge the burden of proof on the first limb of the requisite test. 
Reasons for the Decision
9.	The Tribunal was satisfied that the fact of the appellant’s conviction amounted to misconduct. It then went on to consider whether that misconduct had harmed a child or placed a child at risk of harm. The Act does not say that the harm has to be direct and the tribunal accepted entirely that the act of posing children and photographing them for public viewing inevitably exploits them and puts them at risk of harm. The Tribunal did not accept counsel for the appellant’s argument that if children were not aware of what was taking place it would be hard to see how harm can be established. On the basis of that argument, many things could be done to a baby without harm being established. That argument was totally rejected by the Tribunal. The Tribunal did not accept that only the pictures which formed the basis of the appellant’s conviction could be considered. A total of 450 images had been found on the appellant’s computer. The contents of some of those images are described in the police interview in the Tribunal bundle. Some of them unequivocally involve harm to the child . In any event, even if the only pictures considered by the tribunal are those which the appellant was convicted of possessing, the Tribunal was satisfied, on balance, that harm or risk of harm had taken place. Pages F55 to F61 of the Tribunal bundle relate to those photographs. They are described in the statement of D.C.Neil Greenwood. A number of those photographs involve the posing of children and some involve children who are obviously of an age when they would be all too aware of what was happening. By accessing these sites, whether access is paid for or not, children are subject to exploitation. The Tribunal was satisfied that harm or risk of harm to a child was established and that the first part of the test, therefore, was satisfied.
10.	The Tribunal then considered whether the appellant was unsuitable to work with children. There appears to be a general acceptance that the appellant should not work with children as referred to above in the statements of CQ and H. The appellant himself states that he does not want to work with children. The Tribunal took on board the concerns expressed by Mr. Johnson in his evidence. The mere act of viewing indecent images of children renders the appellant unsuitable to work with children, Public confidence would clearly be undermined. The appellant states that he wishes to teach English as a foreign language and that, by being on the POCA register he would be precluded from teaching 16 or 17 year olds who applied. This sat uncomfortably with the Tribunal since the appellant readily admits that he has an interest in accessing teenage naturist sites on the internet and CQ admits that the appellant "fancies" teenage girls. It confirmed to the Tribunal the appellant’s lack of insight into the problems he has had and what he has done.
11.	The Tribunal wishes to make it quite clear that it is not branding the appellant a paedophile, nor is it saying that the appellant represents a risk, per se, to children. However for the reasons set out above, it is satisfied, on the balance of probabilities that he is unsuitable to work with children.
12.	Both limbs of the test set out in section 4(3) of the Act are satisfied. The appeal is disallowed.
13.	This decision is unanimous. 
 
Carolyn Singleton
David Braybrook
Bridget Graham
Date: 10th March 2004