BR v Secretary of State for Education and Skills [2003] EWCST 205(PC) (31 January 2005)

BR

-v-

SECRETARY OF STATE FOR EDUCATION AND SKILLS

[2003] 205.PC

Before
Mr Mark Rowland
Mrs Geraldine Matthison
Mr Mike Donovan

The events leading to this appeal

1.	The Appellant was employed as a residential care worker in a children’s home, firstly for six months as a bank worker in 1997 and then for eighteen months from September 2000 until 4 February 2002, when he and two other employees were summoned to a meeting at which they admitted gross misconduct and were instantly dismissed.

2.	On 5 February 2002, a director and manager of the Appellant’s employers, sent to the Secretary of State (then the Secretary of State for Health) details of the three employees with a view to their names being included on the list maintained under the Protection of Children Act 1999.  The only particulars of the allegations against the Appellant were as follows:

“As alleged by whistleblower/s whose names shall remain protected in terms of the [employers’] Whistleblowing Policy.

“Reports received allege that [the Appellant] has been under the influence of drugs at work on numerous occasions.  [The Appellant] has allegedly been under the influence of drugs at work whilst the client/s have been on site and off site, particularly of an evening when the client has retired for the night.  This has allegedly been going on for some time.

“This would have impacted on [the Appellant’s] ability to care for the client/s and in an emergency situation he would have been unable to act appropriately.”

3.	It was also said:

“[The Appellant] admitted to the Gross Misconduct of cannabis being brought onto [the employers’] premises for personal use and unauthorised use of cannabis whist at work and on shift while client/s on site.”

4.	A record of the meeting of 4 February 2002, made by another director states that the employees were confronted with the allegation that “they had been smoking drugs whilst on shift”.  That was at first met with silence.  The director then added “that there was [sic] neighbours here and that also the children we were responsible for have been brought up in a drug culture most of their lives and knew what it smelt like and knew the effects of the drug on people”.  After a further silence, one of the other employees pointed out that, as no-one had denied the allegation, there were obviously “matters here to resolve”.  The director says that he then said that he did not want to have to ask the employees individually.  The record continues:

“After a very short time I think [the Appellant] admitted that he had ‘smoked a few times’ while on shift.  [The Appellant] did make a further comment that the ‘stress of the job sometimes got to him’ and that was his way of releasing the stress.”

5.	On 20 February 2002, the names of all three of the dismissed employees were provisionally placed on the statutory list and they were asked for their observations.  [The Appellant] did not respond.  On 18 June 2002, the Secretary of State asked the first director to provide him with further information, including witness statements from whistleblowers.  She was assured that any information supplied from a whistleblower “would be kept in strictest confidence and not passed on to a third party”, which might have raised some interesting issues for this tribunal had any such information been provided.  However, it was not.  On 26 June 2002, the director said that no statements had been obtained and that the matter was effectively closed with the employees’ dismissal.  She added that the other two directors present at the meeting on 4 February 2002 (herself and a brother of the director who had made the record) had confirmed the record of the meeting.  

6.	On 21 August 2002, the first director wrote to the Secretary of State saying:

“We are of the opinion that the [dismissed employees] would not place a young person at risk should they be reinstated in a field that involves work with young people.

“We do not believe that the reason for their dismissal, whilst against company policy, would necessarily dictate that they would place young people at risk.

“Therefore, we would request that any further proceedings regarding the listing of these people cease upon receipt of this letter.”

7.	On 29 August 2002, there was a telephone conversation between a civil servant at the Department of Health and the first director, following which the latter wrote to say that the employers were not sure whether the case merited listing and that they were leaving the Department to make the decision on the basis of the information already supplied.  She intimated that the Care Standards Inspectorate of Wales had informally advised “industry peers” that “this referral is no longer suitable”.

8.	On 3 October 2002, the Secretary of State again invited [the Appellant] to make observations.  He replied on 23 October, saying that he would make observations when he had discussed the case with his legal adviser, probably within fourteen days.  However, no observations were received.  On 14 February 2003, the Secretary of State made another attempt to secure more information from the first director.  However, on of the other directors replied to the effect that the employers had ceased trading in October 2002.  The Secretary of State also contacted the Care Standards Inspectorate of Wales who denied giving the opinion attributed to them by the first director, although the inspector replying did “understand that such advice may have been provided from another children’s services provider”.

9.	Eventually, on 9 May 2003, the Secretary of State confirmed the inclusion of the Appellant’s name on the list maintained under the 1999 Act.  We understand that he also confirmed the inclusion of the names of the other two dismissed employees on the list.  The Appellant and one of the other employees appealed.  The other appeal was subsequently withdrawn and so we are concerned only with this Appellant’s case.

The procedural history of this appeal

10.	In his grounds of appeal, dated 3 August 2003, the Appellant made a number of allegations about the management of the employers (including the misleading of registration inspectors) and enclosed a copy of a letter of resignation which he said he had faxed to the directors on 29 January 2002.  He claimed that the dismissals were engineered as a way of getting rid of troublemakers. He also complained about the interview in which he had been dismissed, saying that he was not advised of any right to be represented, that he had been given written particulars of the allegations only after the meeting had ended and that one of the directors had been aggressive and intimidating and that he had “genuinely feared for my physical safety”.  He said:

“I refute, and have always refuted, all of the allegations made against me and hereby state on the record that the admission I made over one allegation (that of unauthorised use of a controlled substance whilst at work) was under duress.  The allegation in particular is hypocritical in the extreme, given that at a staff party hosted by the directors and management only weeks before, I and several others witnessed them drinking alcohol &/or smoking cannabis when one or other of them were on duty & wholly responsible for the clients, their on-duty staff, their Centres and their reputations.

“Despite the above mentioned technicalities, legal and otherwise, the issue around which this whole case is centred is ‘would I ever put a child at risk?’  My answer to this is an emphatic and resounding ‘No’.  I have a ten-year track record as a Care Worker (Private Sector Residential), Youth Arts Worker (Local Authority Youth Service) and Music Workshop Facilitator & Leader (LEA & Private Sector), and have never encountered any problems from either Management or Clients with my methods, my work or my demeanour towards the young people for whom I was responsible until I found myself in this predicament.

“Although I would never wish to return to residential care work, I feel it would be unfair to deprive young people of my expertise in and enthusiasm for music and the arts; on a personal level I too would be denied activities that I find personally rewarding.”

11.	On 8 September 2003, the Secretary of State asked the President to appoint an expert to report on the harmful effects of cannabis.

12.	On 10 November 2003 (after the appeal had been dismissed by the President for non-compliance with an order and then reinstated on the ground that the Appellant had not received the order), the Appellant stated that he wished the appeal to be determined without a hearing.  He stated that this was because he had chronic physical problems, worsened by stress and that he had sought medical advice and “the conclusion was that [a hearing] would be deleterious to my mental and physical wellbeing, not to mention other difficulties that I would experience such as travelling to and in London”.  He also asked for a restricted reporting order and a direction that members of the press or public be excluded from any hearing.  He made a further written submission and enclosed his arts curriculum vitae and four character references.

13.	On 12 December 2003, the President appointed an expert “to enquire into and report on the harmful effects of cannabis relating to mental state and ability to function as a carer working with children”.  

14.	While that report was awaited, the Secretary of State provided a witness statement dated 20 January 2004 from the director who was the brother of the director who had made the record of the meeting on 4 February 2004.  It did not add much to the information already provided about the dismissal and reasons for it.  He said that, as far as he knew, none of the allegations against the employees had been made in writing and he was not prepared to disclose the names of those making the allegations.  He denied that there had been any intimidation or threatening behaviour at the meeting on 4 February 2002 or that, as far as he knew, any of the directors had known of any intended resignation.  He said that they “had been informed that on numerous occasions they had smoked cannabis at work” and that all three had admitted to “the misconduct”.  He said that the Appellant had apologised and had given as one reason for using cannabis that “he could not sleep and it helped”.  As to the allegation about the party, he said that he had been the only director on duty, that he had not used any illegal substance and that his responsibilities after 11 pm were very limited and not of a practical nature, so that his attendance at either of the centres run by the company would not have been required until the following morning.

15.	He also explained that, at the time of the dismissals, the directors had thought that the actions of the employees might have placed the clients at risk but that, having had time to think about it, they had considered that the employees had made a serious error of judgement but had paid the price for that mistake with the loss of their jobs.

“We felt that they would probably have learnt from this mistake and that a permanent inclusion on the PoCA List would not be appropriate as a repeat of their actions seemed unlikely.”

16.	More importantly, he explained the situation in which the Appellant had worked.

“[The employers] had 2 centres, each of which housed 1 client.  Generally, each centre had 4 staff who would work in pairs.  Each pair would work 3 days on and then 3 days off.  [The employers] employed 8 to 10 staff at the relevant time across both centres and staff were not restricted to one centre but could be asked to work at either.”

17.	He attached a job description, which stated that the employee would “work a 3-day on, 3-day off shift system, which includes sleeping in duties”.

18.	On 4 March 2004, the Appellant sent an e-mail, saying he was currently in South India studying yoga and making comments on the director’s statement.  He elaborated on his allegation about the conduct of the interview and reiterated the point that he had admitted to the misconduct so as to end the interview.  He also repeated that he did not use cannabis while on duty and said that his comment about using cannabis to help him sleep was not meant to refer to when he was working.  At work, he said, he used valerian, a natural and legal soporific, but he did admit to being “an occasional cannabis user in my private life”.

19.	On 9 August 2004 the President rescinded the appointment of the expert as the report had still not been produced.  As the law then stood, the effect of the Appellant not wishing there to be an oral hearing was that the appeal had to be determined on the papers.  The President accordingly directed that the tribunal convene to consider the appeal on 20 September 2004 on the basis of the papers already held by the tribunal and any further evidence submitted within fifteen working days of the direction being received.

20.	On 1 September 2004, the Secretary of State submitted a report by Dr Michael Farrell MB, BCh, BAO, MRCP, MRCPsych, a senior lecturer and consultant psychiatrist at both the National Addiction Centre of the Institute of Psychiatry at King’s College, London and the Maudsley Hospital.  The report is based on his knowledge of the literature and knowledge derived from his own research and practice.  He concluded:

“There is a substantial body of evidence that cannabis is not a harmless drug but the degree of harm resulting from it will depend on the level of exposure to the drug.

“In general there is a near universal consensus that cannabis is not acceptable or safe in the workplace.  Most workplaces conduct a zero tolerance policy towards the use of such drugs during work time.  Industries involved in transportation and use of instruments or machines that require good cognitive motor skills also generally have a policy that bans the use of such substances during time off because of possible hang over impairment on return to work.

“While the evidence for significant cognitive motor impairment from cannabis for a regular user is limited there is some recent evidence by Hall and Solowij [(1998) Lancet, 352, 1611-1616] to indicate that long term cannabis use is associated with mild cognitive impairments.

“Such impairments however are subtle and would not be apparent on general assessment and would be unlikely to impair ordinary day to day routine domestic tasks.  The more likely impact of parental or guardian use of cannabis is to indicate an endorsement of use and to further cement the association of the vulnerable individuals to other peer networks involved in drug use including cannabis use.

“The impact on the young person is that some of those in care are significantly more vulnerable to becoming involved in substance use and misuse.  The modelling behaviour of use of different substances may have some impact in promoting use of these substances and the use of one type of substance in a vulnerable individual increases the risk of involvement in other substances.

“The use of such substances is also likely to be associated with poorer school performance, earlier sexual involvement, other drug involvement, unemployment and possible poorer family functioning and increased risk of mental health problems in an already vulnerable population and overall reduced life opportunities.  Many of these negative outcomes are associated with broader life and social factors but they are particularly relevant to young people in care who already have an appropriate range of social and health burdens arising from their family and childhood experience.”

21.	On 2 September 2004, the Secretary of State made a written submission in opposition to the appeal. 

22.	When the tribunal met on 20 September 2004, we were in a different position from that of the President on 9 August 2004 because, on 31 August 2004, regulation 4 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal (Amendment) Regulations 2004 had inserted regulation 6(3A) of the Protection of Children and Vulnerable Adults and Care Standards Tribunals Regulations 2002 which provides –

“If, at any time, it appears to the President or the nominated chairman that the appeal is of such a nature that it should be determined at an oral hearing, he may (after considering any representations from the parties) direct that such a hearing shall be held, but otherwise the case shall be determined without an oral hearing if the applicant has so requested.”

We had serious doubts as to whether the Secretary of State’s case was made out on the papers and we felt the Secretary of State should have an opportunity of having an oral hearing to make good the defects in the written evidence and make submissions to us on the law.  Accordingly, we adjourned and, on 23 September 2004, issued directions.

23.	On 30 September 2004, the Secretary of State made further written representations, expressing the view that an oral hearing of the appeal was neither desirable nor necessary and addressing the point of law we had raised.  The Appellant did not respond.  (We are not entirely sure that he has received all the recent documents but if he has not that is because he has not provided the tribunal with an effective address for correspondence, whether by post or by e-mail.)  In view of the Secretary of State’s lack of desire for an oral hearing, we decided to determine the case on the existing material. Ultimately it is always possible to determine issues of fact one way or the other, however poor the evidence, and a written procedure is perfectly acceptable for determining points of law if neither party wishes to rely on oral advocacy.  Had the subject matter been more serious, we might have taken a different view and have either directed an oral hearing despite the views of the parties and issued witness summonses or at least considered asking further specific questions of the parties or giving explicit warnings that adverse inferences would be drawn if they or their witnesses maintained their unwillingness to attend a hearing.  As it is, we are not satisfied that it is necessary, in order to avoid injustice or the placing of children at risk, for us to take any further steps before determining this appeal.

The law and the four principal issues

24.	The appeal before us is brought under section 4(3) of the Protection of Children Act 1999, which provides:

“If on an appeal … under this section the Tribunal is not satisfied of either of the following, namely –
(a)	that the individual was guilty of misconduct (whether or not in the course of his duties) which harmed a child or placed a child at risk of harm; and
(b)	that the individual is unsuitable to work with children,
the Tribunal shall allow the appeal … and … direct his removal from the list; otherwise it shall dismiss the appeal ….”

25.	The Secretary of State concedes that the burden of proof rests upon him and submits that the standard of proof is the balance of probabilities.  We agree and reject an assertion made by the Appellant that the standard of proof is “beyond reasonable doubt”.  These are civil proceedings designed for the protection of children; they are not criminal proceedings.

26.	Section 12(1) of the 1999 Act provides that “harm” has the same meaning as in the Children Act 1989 and section 31(9) of the latter Act provides:

“‘harm’ means ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another;
‘development’ means physical, intellectual, emotional, social or behavioural development;
‘health’ means physical or mental health; and
‘ill-treatment includes sexual abuse and forms of ill-treatment which are not physical.”

27.	The Secretary of State rightly describes the definition of “harm” as broad, particularly as it includes any impairment of social or behavioural development. Nonetheless, the Secretary of State concedes that there is no evidence of any harm actually having been caused to any child by any misconduct of the Appellant.

28.	Instead, he submits that we should find that the Appellant smoked cannabis while on duty, that that amounts to misconduct, that that misconduct “placed a child at risk of harm” and that the use of cannabis while on duty indicates such a gross lack of judgment that we should find the Appellant to be unsuitable to work with children.  Thus, there are four issues for us to determine.

Did the appellant smoke cannabis and, if so, in what circumstances ?

29.	The first question is whether the Appellant did smoke cannabis as alleged.  If the answer is “yes”, it is necessary for us also to make some findings as to the circumstances in which he did so, for the purpose of determining whether a child was placed at risk of harm and whether the Appellant is unsuitable to work with children.

30.	In answering this question, we are hampered by a lack of good quality evidence.  The Secretary of State submits that we should ignore the Appellant’s correspondence with the tribunal on the ground that he has not complied with the President’s direction to file a proper witness statement containing the averment of its truth that is required by regulation 14(2) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002.  We do not consider that refusing to accept what the Appellant has said in correspondence as evidence in the case would be a proportionate response to the breach of the direction.

31.	The Secretary of State relies entirely on the Appellant’s admission when interviewed by the directors of the employers.  The Appellant does not deny making the admission but submits that it was not true.  We are not satisfied that he was intimidated to the extent that he claims.  The allegation is denied and the burden of persuading us of the truth of that allegation rests on him.  He has chosen not to give oral evidence and his written evidence on that point is vague.  We are sceptical about his claim that he could not attend a hearing of the tribunal.  However, he was not asked to provide evidence in support of that claim – doubtless because, at the time, he had an absolute right to have the case heard on the papers – and he was not warned that an adverse inference might be drawn if he did not either attend a hearing or provide adequate evidence of his inability to do so.  He was acting in person and we do not consider it to be right to draw an adverse inference.  Nonetheless, the effect of his not giving oral evidence is that we are not persuaded that he was intimidated, simply because his other evidence is too weak.

32.	What, however, is rather more plausible is that he was disillusioned with his employers, had no wish to continue in his employment and may have wished to bring the disagreeable interview to an end.  The reluctance of his employers to give evidence suggests that there may be some truth in his criticism of them.

33.	Ultimately, however, we are not persuaded that the Appellant’s admission was wholly untrue.  It seems to us to be significant that he did not deny the allegation that he had smoked cannabis on duty when the Secretary of State gave him the opportunity to do so; nor did he clearly deny it in his original grounds of appeal.  Moreover, he admits now that he did use cannabis in his private life and we are not persuaded that the directors did not genuinely receive reports that he had been smoking when on duty and a child was in the home and that those reports did not have some substance.  We therefore find that the Appellant did smoke cannabis in or around the children’s home.

34.	However, we are not prepared to find that he did so on “numerous occasions” when on duty or that he ever did so before the child in the unit had retired for the night.  According to the director’s witness statement, the allegation was made to the three employees collectively.  He does not record the terms of the Appellant’s admission but the file note made by his brother records that the Appellant admitted that he had “smoked a few times”.  There is no reliable evidence before us to suggest that “numerous” is a more appropriate term to use than “a few”.

35.	Although the particulars of the allegation as communicated to the Department of Health referred to the Appellant having smoked “particularly of an evening when the client has retired for the night” (our emphasis), there is no evidence that it was ever put to him that he had smoked other than after the child had retired.  Whatever may have been the position as regards the other employees, the evidence suggests to us that the Appellant only smoked cannabis after the household had closed down for the night.  Furthermore, there is no evidence that he smoked in circumstances where the child did, or was likely to, find out.  We know nothing of the layout of the building or whether he went outside to smoke.  There is a suggestion that a child would have recognised the smell but we do not know whether that suggestion was made because a child had recognised the smell and, if so, whether that related to the Appellant’s smoking or that of one of the other employees

36.	There is also a lack of evidence on other matters that might be regarded as important.  We know nothing as to the extent to which the Appellant became intoxicated, although it might have been quite limited if he merely wished to relax sufficiently to be able to sleep.  We know another member of staff would have been on the same shift but it is not entirely clear whether both would have been regarded as being on duty “sleeping in” all night.  If there would always have been two people on duty, we do not know whether the Appellant ever smoked cannabis knowing that the other member of staff was smoking cannabis at the same time.  We do not know what the employers’ official attitude was to the staff drinking a small amount of alcohol or taking valerian late at night, because the “job description”, which contains some terms of employment, makes no mention of it.  The director’s drinking at the party may indicate a relaxed attitude if the risk was perceived to be low.  We do not know what the real risk was.  The Appellant himself has referred to one child who had assaulted him, tried to abscond and “was obviously unsettled in his environment” and the nature of the care provided suggests that the children were probably all challenging.  However, we do not know precisely which child was being cared for when the Appellant smoked cannabis or how likely he or she was to cause trouble during a night.

37.	We therefore are able to find only that the Appellant on a few occasions smoked cannabis when on “sleeping in” duty and the child being cared for had retired for the night.  The Secretary of State has not satisfied us as to any other details.

Did the smoking of cannabis amount to misconduct ?

38.	We have no doubt that smoking cannabis amounts to misconduct whether the person smoking it is on duty or not.  As the Secretary of State submits, possession of cannabis is a criminal act.  The significance of it being smoked when on duty in a children’s home is that there is more likelihood of a child being placed at risk of harm by the smoking.

Did the misconduct harm a child or place a child at risk of harm ?

39.	There being no evidence of actual harm in this case, the third question before us is whether a child was placed at risk of harm.  We entirely accept Dr Farrell’s evidence as to the effects of cannabis.  Indeed, we would add one point that he does not mention.  Where a young person in a children’s home knows that staff are abusing drugs, it can give that young person the impression that the adults do not care about their work or about him or her.  That may damage the young person’s self-esteem, which may already be low, and so impair his or her emotional development.  We accept Dr Farrell’s evidence that young people may follow the example of adults, although that raises some interesting questions as to whether any harm that might result from the young person’s own use of drugs is too remote to be taken into account where the staff have not more directly encouraged that use and as to whether the development of a willingness to take part in criminal activity necessarily amounts to harm within the statutory definition.  Happily, we need not consider those questions in the light of our overall view of this case.  The Appellant’s misconduct cannot have led to any damage to a child’s self-esteem and cannot have amounted to encouragement to abuse drugs if the child did not know of his smoking.  We are not satisfied that any child did know of the Appellant’s misconduct.  The Secretary of State does not invite us to find that there was a risk of harm on these grounds.  We take the view that there probably was a risk of a child recognising the smell of cannabis but we are not satisfied that the risk was more than slight.

40.	The Secretary of State relies entirely on the fact that, having smoked cannabis, the Appellant would inevitably have become intoxicated and that would inevitably have placed a child at risk of harm.  We accept this submission.  The Appellant would have been less able to respond to an emergency or an unexpected event and therefore there was a risk of harm on that ground, although the total lack of evidence as to the circumstances in which the Appellant smoked cannabis has the effect that we again are not satisfied that the risk was substantial.

The test of unsuitability to work with children 

41.	There are two aspects of the legislation that require serious consideration before we determine whether the Appellant is unsuitable to work with children.

42.	We note, first of all, that mere unsuitability is not a ground upon which a person’s name may be placed on the statutory list.  There must also be misconduct that harmed a child or placed a child at risk of harm and it seems to us that the unsuitability must therefore be related to that misconduct.  It cannot have been contemplated that, if a person does place a child at risk of harm in circumstances that do not suggest he is unsuitable to work with children, the Secretary of State can place that person’s name on the statutory list on the basis of some totally unrelated ground of unsuitability.  The significance of that in the present case is that the mere fact that possession of cannabis is a criminal offence cannot prove unsuitability; it is the fact that the Appellant smoked it in circumstances that placed a child at risk of harm that is important.  The criminality is relevant but it cannot be enough by itself.  The fact that a person has broken the law in a way that has not harmed a child, or placed a child at risk of harm, is a matter that an employer can properly take into account when deciding whether or not to employ that person but it is not a ground upon which the employer is to be prohibited by the Protection of Children Act 1999 from even considering employing that person.

43.	Secondly, we note that “work with children” is not itself defined in the legislation but, by section 7, the effect of including a person on the statutory list is that that person cannot be employed in a “child care position” by a “child care organisation”.  By section 12, a “child care position” is a position which is a regulated position for the purposes of Part II of the Criminal Justice and Court Services Act 2000, unless it involves work to which section 142 of the Education Act 2002 applies otherwise than in a school which is a children’s home for the purposes of the Care Standards Act 2000.  Section 36 of the Criminal Justice and Court Services Act 2000 lists a very large number of regulated positions.  It includes all positions where the normal duties include work in children’s homes or schools or on day care premises but also includes a position where normal duties involve unsupervised contact with children under arrangements made by a responsible person and supervisory positions and such positions as directors of social services and charity trustees of children’s charities. 

44.	The exclusion of work to which section 142 of the Education Act 2002 relates is because that section makes separate provision in relation to employment in educational contexts.  It is concerned with the prohibition of teaching and other work for a local education authority or school that brings a person regularly into contact with children.  By section 142(1), the Secretary of State may make a direction prohibiting a person from carrying out any work to which the section applies but he may also direct that a person may carry out work only in specified circumstances or only if specified conditions are satisfied.  A direction under section 142 may be made on the ground that the person is included in the list kept under the Protection of Children Act 1999.

45.	It seems to us to be unfortunate that the Protection of Children Act 1999 does not enable the Secretary of State or a tribunal to prohibit a person from being employed by a child care organisation in some positions while allowing him or her to be employed in others, in the way that the Education Act 2002 does.  Its failure to do so raises the question whether a person who ought not to be employed in some positions but who could perfectly well be employed in other positions should be found to be unsuitable to work with children and so effectively barred from seeking employment by a child care organisation in any child care position.

46.	The Secretary of State rightly points out that the overall objective of the 1999 Act is to protect children from the risk of abuse and that, if a provision of the Act is ambiguous, it should be given the interpretation most likely to achieve that overall objective.  It is then submitted that, if section 4(3)(b) can be construed either as meaning that “the individual is unsuitable to work with children in all capacities” or “the individual is unsuitable to work with children in one or more, but not all, capacities”, it should be construed in the second sense so as best to achieve the overall objective of the Act.

47.	We are not satisfied that the Act is ambiguous in the way suggested by the Secretary of State.  The language of the Act requires us to take a broad view of the case, having regard to the degree of risk posed by the Appellant.  Where there is a risk to children if a person is employed in some child care positions and not others, assessing the degree of risk may involve, among other matters, assessing the likelihood of the Appellant seeking employment in particular types of child care positions.  It also involves considering both the risk of any harm occurring and the seriousness of any harm that is likely to occur.  A fairly small degree of risk to children overall may be sufficient to establish unsuitability.  A propensity to behave in a way that creates risks will be particularly relevant.  However, the fact that there is some small risk to children in employing a person in some particular circumstances does not necessarily mean that the person is, overall, unsuitable to work with children.

Is the Appellant unsuitable to work with children ?

48.	In the present case, the Appellant has admitted using cannabis outside the workplace and has not shown any desire to cease doing so.  That might cause an employer not to employ him but, as we have said, it is not, by itself, enough to warrant his inclusion on the statutory list so that a child care organisation is not allowed even to consider employing him.

49.	The Appellant says that he is a responsible person and would not place a child at risk.  He has provided character references and his curriculum vitae.  The latter shows that he is a talented musician.  He studied at Trinity College of Music.  Of particular relevance to the present case is the fact that he has devised, co-ordinated and run a music development project in schools and youth clubs and he has worked with schools and youth services running workshops, as well as giving private music tuition.  The character references include one from a former peripatetic team senior employed by the same company as the Appellant, a former local authority youth worker, a former teacher and a poet who has also worked in the education sector.  All have written of the Appellant’s reliability, trustworthiness, talent and power to inspire.  None of the references addresses the allegation made in this case that the Appellant smoked cannabis while on duty in a children’s home.  They are weakened to that extent.  On the other hand, such behaviour would appear not to be something expected by the referees.  The former youth worker says that the Appellant “operates by a strict moral code, drawing a clear line between appropriate behaviour” and also says that he “is in many ways a conservative man”.

50.	Our firm view is that the Appellant is basically a responsible person, notwithstanding his use of cannabis on a few occasions when on “sleeping in” duty.  Not only is it not proved that he placed any child at serious risk but we consider that it is unlikely that he did so, although, as we have found, we consider it to be likely that there was some not wholly insignificant risk.  In particular, we are satisfied that he ordinarily draws a clear distinction between what is appropriate in his private life and what is appropriate when working with children.  In our view, what happened in this case arose because he was unable to get away from his workplace during his three continuous days on shift, where he was under some considerable stress.

51.	The Appellant has indicated that he does not wish to work in residential care again.  He does appear to have become very disillusioned with such work but we cannot rule out a change of mind.  While it may be that, if the Appellant were again to have to sleep on the premises of a children's home, he would not again smoke cannabis while on shift, his lack of inclination to give up cannabis altogether is a matter of concern.  We have not been able to question him directly about this and, on balance, we consider that he must be regarded as unsuitable to work with children in residential care in circumstances where he is obliged to sleep on the premises.  He has not persuaded us that there might not be avoidable risks to children in those particular circumstances.

52.	However, we are not satisfied that he poses any risk whatsoever to children in other circumstances.  In particular, we are not satisfied that he would, even accidentally, give a child any hint that he himself used cannabis, far less that he would deliberately do anything to encourage a child to use it.  There is also no evidence that he smokes cannabis other than in the evening and therefore there is no more reason to suppose that smoking cannabis while off duty would impair his ability to perform his duties the next day than there would be in the case of a person who drinks wine when off duty.

53.	The Secretary of State submits that the Appellant’s denial of his use of cannabis when on duty is itself a ground for finding the Appellant to be unsuitable to work with children because it shows a failure to accept that he has demonstrated a lack of judgment and because he is prepared to be dishonest in order to continue to work with children.  However, the Appellant has been frank with us about his use of cannabis when not on duty and it seems to us that his denial of using it when on duty demonstrates that he knows very well that he should not have done so.  Nor is this a case where his desire to be able to work with children is attributable to a desire to be in a position to abuse them.  There are many cases where a failure to be completely frank with a tribunal will be fatal to an appellant’s case but this is not one of them.

54.	In our view, the risk to children in allowing this appeal is all but negligible.  We are not satisfied that the Appellant is unsuitable to work with children.  On the contrary, should he return to the United Kingdom, we hope that he will again use his talents for the benefit of children.

Conclusion

55.	We allow this appeal and we direct the Secretary of State to remove the Appellant’s name from the list kept under section 1 of the Protection of Children Act 1999.

56.	We refuse the Appellant’s application for a restricted reporting order.  However, the version of this decision that is placed on the tribunal’s website will be anonymised.  We consider that that will adequately protect the Appellant and the other persons mentioned in this decision.

Mark Rowland
Geraldine Matthison
Mike Donovan

Signed by the chairman on this 31st day of January 2005