JC v Secretary of State [2004] EWCST 355(PC) (03 August 2005)

JC  
v 
SECRETARY OF STATE 

Case No: [2004] 0355.PC

- Before -

Ms Liz Goldthorpe, Chair
Mr James Black
Ms Gillian MacGregor

Hearing at The Employment Tribunal, Leeds
5th May, 11th and 12th July 2005

APPEAL 

On 2nd September 2004, the Appellant, a former Head Teacher at Z School, appealed under s.4(1) of the Protection of Children Act (POCA) 1999 (‘the Act’) against the Secretary of State’s decision to include him in the list of individuals considered unsuitable to work with children kept under s.1(1) of that Act

REPRESENTATION

The Appellant was represented by Mr Foster, Solicitor, and the Respondent by Mr Coppel of Counsel.   Present throughout was Ms Letizia, instructing solicitor from the Department for Education and Skills and, on 5th May only, Ms Hill from the same department and Ms Bicarregui, trainee barrister.  The Respondent called no witnesses.  At the adjourned hearing the Appellant’s witnesses were Mr T, the current Headmaster of another school, and a retired circuit and family judge, His Honour Judge P.

PRELIMINARY MATTERS

1.	On 25th October 2004 His Honour Judge Pearl granted an order for disclosure to X Police force regarding certain material relating to the conduct of ST and further granted an extension of time to both parties.   He directed the listing of a preliminary hearing to consider the Appellant’s application that his inclusion on the POCA list was a nullity.   At that preliminary hearing on 21st January 2005 he gave a number of directions for the service of evidence, directed that the full Panel should hear the Appellant’s application in relation to Article 6 and listed this matter for 3 days.   

2.	By 9th March 2005 Mr Foster concluded on the basis of the evidence received so far that it was wholly impracticable to mount a defence and the time estimate should therefore be reduced to one day for consideration of the Article 6 argument.  

3.	On 5th May we continued the Restricted Reporting and Exclusion Orders made by His Honour Judge Pearl at the preliminary hearing and found against the Appellant on the Article 6 point for the reasons set out below.  Mr Foster indicated JC wished to confine his case to the issue of his present suitability.  Mr Coppel pointed out this would still require some consideration of the allegations about past misconduct, for which the Respondent would rely upon the evidence already served.  It was agreed between the parties that 1 or 2 days would be sufficient.   There being insufficient time available for a substantive hearing, we adjourned this matter in accordance with Regulation 7(6) to 11th July with a time estimate of 1½ days, on the following directions:   

i)	The Appellant to file with the Tribunal Secretariat a witness statement 21 days before the adjourned hearing i.e. no later than 4:00 pm on 10th June 2005, and to serve a copy on the Respondent by the same time
ii)	Any further evidence from either party to be filed and served no later than 4:00 pm on 21st June 2005. 

4.	In response to these directions the Respondent filed several 1994 police charge sheets, further statements relating to police investigations in 1991 and 1994 and a letter written by JC in 1989.  The Appellant filed witness statements from His Honour P and Mr T and a further statement from JC, together with a Summary of Facts and Reasons in response to the Particulars of Misconduct.

THE LAW

5.	The appeal is brought under s.4(3) of the Protection of Children Act 1999. This states:

"If on an appeal or determination 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 or determine the issue in the individual's favour and (in either case) direct his removal from the list; otherwise it shall dismiss the appeal or direct the individual's inclusion in the list.”

6.	It must be made clear from the outset that the statutory provisions of the Protection of Children Act 1999 are a stark choice and confer no power on this Tribunal to allow an appeal subject to conditions that might restrict an appellant to particular areas of work.   This is in marked contrast to the position relating to, for example, appeals by a childminder against cancellation of registration.

Burden of Proof

7.	The burden of proof rests on the Secretary of State to satisfy us to the civil standard both that the Appellant was guilty of misconduct that harmed a child or placed a child at risk of harm, and that he is unsuitable to work with children. 

Misconduct

8.	Misconduct is not defined in the 1999 Act nor is the term qualified by any adjective such as "serious" or "gross".   In the Department of Health’s Guide to the 1999 Act, it is noted that, during the passage of the Act through Parliament, Members were anxious to ensure that incompetence (whether or not attributable to inadequate training and/or supervision) and "youthful indiscretion" would not result in automatic referral to the Secretary of State. The Guide further suggests that misconduct could range from serious sexual abuse through to physical abuse (including inappropriate physical restraint) and/or poor child care practices in contravention of organisational codes of conduct.

9.	The Act is wide enough to include misconduct by omission (see Angella Mairs v Secretary of State [2004] 269.PC upheld [2005] EWHC 996(Admin), Leveson J), and Mrs MD v Secretary of State [2004] 234.PC (failure by a mother to report that a family member had sexually abused her daughter).

10.	In the Mairs case the Tribunal pointed out that professional misconduct had been considered in analogous situations such as provisions on the exercise of a power to reprimand a registered pharmacist and for removing the name of a dentist from the Dentists Register, and that each had been the subject of judicial interpretation.   Furthermore, in the context of a profession, for there to be a finding of misconduct there must be a falling short, whether by omission or commission, of the standards of conduct expected from members of that profession (Doughty v. General Dental Council [1987] 3 All E.R. 843).

11.	The Tribunal’s decision in that case in relation to the factors that may amount to misconduct is worth citing at some length for its clarification of this issue: 

“in most cases the misconduct will be an incident forming part of a course of erroneous or incorrect behaviour undertaken by a person who knew or ought to have known that what he or she was doing was contrary either to the general law or to a written or unwritten code having particular application to his or her profession, trade or calling” and 

 “It is not helpful to attempt to further refine "misconduct" by reference to any adjective having moral overtones. The word "misconduct" does not necessarily connote moral censure. An individual can be "guilty of misconduct" without being, for example, dishonest or disgraceful.   An individual is not guilty of misconduct if he or she was unable to avoid the improper act or omission complained of or was in a position where it was impossible to avoid breaching the relevant code of conduct…[but]…misconduct is only extinguished when the extenuating circumstances rendered proper performance of a duty impossible as opposed to more difficult.

It is clear that inclusion on the list kept under s.1 of the 1999 Act is not intended to stigmatise, discipline or punish. The concern of the listing regime is to contain the risk of harm to children. The regime identifies an unacceptable risk of harm by reference to some past misconduct plus a present unsuitability to work with children. It is neither necessary nor appropriate to limit the scope of the regime by adopting a restricted definition of "misconduct". The misconduct triggers consideration of the second criterion for inclusion - unsuitability to work with children. Not all of those found guilty of misconduct will be held to be unsuitable to work with children. A finding of misconduct of a less serious nature will not generally lead to a finding of unsuitability without more. Conversely, an individual guilty of relatively trivial misconduct could be shown to be wholly unsuitable to work with children.

In deciding whether an individual is unsuitable the Secretary of State or, on an appeal, the Tribunal, must undertake an assessment of risk and there must be a direct causal connection between the misconduct admitted or proved and harm or potential harm to a child.   In most cases the individual charged with the misconduct will have directly inflicted the harm, or will have directly created the potential for it, although this is not always the case (see Miles v. Secretary of State for Health (2001) No. 0042, trading in child pornography in Germany was misconduct that did not directly affect any individual child but did indirectly place unspecified and/or unidentified children at risk of harm, and Davis v. Secretary of State for Health (2002) 13.PC - posing as a social worker when the individual had no relevant qualifications was misconduct placing any child with whom he had dealings at risk of harm because of the decision-making powers that go with the status of a qualified professional).

Thus there can be several links in the chain of causation between the misconduct and the harm or potential harm to a child but all of them must be intact before there can be a finding that an individual was "guilty of misconduct (whether or not in the course of his or her duties) which harmed a child or placed a child at risk of harm."

12.	Finally, that Tribunal accepted that, in deciding whether misconduct by omission has harmed a child or placed a child at risk of harm, consideration must be given to the responsibilities assumed by the person listed and whether, if those responsibilities had been properly discharged, there is a real and substantive likelihood that the harm that was occasioned to the child would have been prevented or materially lessened, i.e. that an individual’s error of judgment resulted in a lost opportunity to prevent harm to a child.

Unsuitability to work with children

13.	Unsuitability must be judged by the Tribunal at the date of the hearing. The judgment will involve consideration of the character, disposition, capacity and ability of the individual concerned, including his or her ability to act properly in potentially difficult or frustrating circumstances. The judgment will inevitably be made, at least in part, by deducing from past performance, including (but not limited to) the nature and extent of the misconduct, admitted or proved in the course of the proceedings, which harmed a child or placed a child at risk of harm. 

14.	The Tribunal may have regard to:
(a)	the number of the incidents constituting the misconduct established for the purposes of section 4(3)(a) of the Act;
(b)	 the gravity of that misconduct;
(c)	 the time that has elapsed since that misconduct;
(d)	the timing and degree of recognition by the applicant that the conduct 	constituted misconduct and that it had the potential to harm a child;
(e)		the steps taken by the applicant to minimise the possibility of there being a recurrence of that or like misconduct; and
(f)	extenuating circumstances surrounding the misconduct.

However, this should not be regarded as an exclusive list. The Tribunal may also have regard to other admitted, undisputed or proved past conduct of the applicant, whether good or bad.

PARTICULARS OF MISCONDUCT

15.	The Respondent stated that the Appellant, being the Head Teacher at Z School, and having responsibility for the welfare of the boys at the school under his protection: 

1)	upon becoming aware of the allegations that DH had diary entries stored in his computer which contained descriptions of naked boys at the school and his desires in relation to them, failed to:
a.	report the allegations to the Police,
b.	report the allegations to the Governors,
c.	suspend DH from duty, 
d.	conduct a disciplinary hearing in relation to the allegations.

2)	upon becoming aware of an allegation that DH had a diary entry stored on his computer detailing him performing oral sex on a boy at the school, failed to:
a.	report the allegations to the Police,
b.	report the allegations to the Governors,
c.	suspend DH from duty, 
d.	conduct a disciplinary hearing in relation to the allegations.

3)	upon becoming aware that DH had admitted an attraction to boys and to indecently assaulting JN, an ex-pupil at the school, failed to:
a.	report the admissions to the Police,
b.	report the admissions to the Governors,
c.	suspend DH from duty, 
d.	conduct a disciplinary hearing in relation to the admissions.

4)	having been aware since 1989 of the allegations and admissions set out in paragraphs 1, 2 and 3 above, allowed DH to teach boys at the school until DH’s arrest by the Police in 1994.

5)	upon becoming aware that DH had been arrested and was being investigated by the Police, failed to hand over evidence which may have been vital to the police investigation.

6)	having become aware that DH had been arrested and was being investigated by the Police, actively destroyed or assisted in destroying evidence relating to DH.

7)	having become aware that S lost his temper quickly when teaching boys at the school, failed to take any action against S in relation to his short temper.

8)	upon becoming aware that S had assaulted boys at the school, failed to: 
a.	report the assaults to the Governors,
b.	suspend S from duty, 
c.	conduct a disciplinary hearing in relation to the assaults,
d.	take any action whatsoever.

9)	having become aware that S had smashed a plate over the head of a boy at school, failed to:
a.	report the incident to the Governors,
b.	suspend S from duty, 
c.	conduct a disciplinary hearing in relation to the incident,
d.	take any action whatsoever.

10)	gave S permission to invite 3 boys to a party at his flat, despite school rules forbidding teachers to entertain pupils in their private accommodation.

11)	having become aware that S made boys in his class play a game in which they were required to remove an item of clothing (in some instances all their clothing) if they did not answer Latin vocabulary questions correctly, failed to take any action whatsoever against S in relation to this matter.

12)	failed to advise parents of the real reason for S’s resignation in 1994 and instead stated that there was “no suggestion of any impropriety”.

13)	failed to carry out a Police check on S.	 

14)	upon becoming aware that HL whilst naked in his private quarters lifted up a boy from the school 3 times, failed to:
a.	provide adequate and complete information to the Secretary of State for Education when advising about HL’s resignation from the school
b.	report the matter to the Police.

15)	failed to advise parents of the reasons for the resignation of HL, referring instead to a “minor incident” which had “resolved itself” .

16)	decided to employ HL as a teacher at the school despite advice from HL’s former employer that he was a possible security risk.

17)	upon becoming aware that E, a teacher at the school, had jumped on the leg of a pupil, TO, at the school, and fractured the boy’s leg, failed to:
a.	report the incident to the Police,
b.	report the incident to the Governors,
c.	suspend E from duty, 
d.	conduct a disciplinary hearing in relation to the incident.

18)	caned the thighs of BG, a boy at the school, with such force that blood was drawn and the rear of the boy’s thighs was heavily bruised. 

19)	kicked HN, a boy at the school, on his bottom.

20)	failed to provide facilities to ensure that children could maintain contact with parents, relatives and friends in private, as recommended by the Registration and Inspection Unit in 1993.

21)	failed to maintain records of courses and training related to the care of children as recommended by the Registration and Inspection Unit in 1993.

22)	failed to provide a clearly laid down and recognised procedure for dealing with allegations of abuse as recommended by the Registration and Inspection Unit in 1993.

23)	failed to ensure that all WC doors could be locked from the inside and that showers and bathrooms afforded proper privacy as recommended by the Registration and Inspection Unit in 1993. 

16.	Furthermore, all of these failures by the Appellant, whilst a Head Teacher with responsibility for the health and welfare of boys, were in circumstances in which it should have been apparent to a person in this position that such failure would place the boys under his care at the school and sometimes also those elsewhere, at real risk of serious harm.  Further, the caning and kicking took place in circumstances in which it should have been apparent to the Appellant that these actions constituted the infliction of serious harm on a child.

GROUNDS OF APPEAL 

17.	The Appellant’s grounds of appeal dated 2nd September 2004 and prepared by Mr Foster on his behalf did not seek to challenge the particulars of misconduct relied upon by the Secretary of State, but to challenge the lawfulness of the original listing and the transfer.   It was argued that the inclusion of JC’s name on the POCA list was a nullity by virtue of the lack of notice:  he had not, and could not have, received the letter in 1994 because it was sent in the school holidays and to the wrong part of the school.   Furthermore, the first time he had learnt of his listing was when he received a letter dated 8th July 2004.   It was further stated that, in the event of a future determination on the merits, further information would be included by JC in support of his suitability, which he was, as yet, unable to provide.

18.	On 5th May Mr Foster told us JC had tried to avoid the need for a merits hearing because it represented a huge amount of time and expense in mounting a response to the allegations made in the Police statements.  In September 2004 it had not been clear what the case against him consisted of, and on receipt of the allegations the task did not appear easy after such a long period of time.  However, the Appellant wished, despite the difficulties, to pursue an appeal on the merits if he failed to persuade us on the Article 6 point.  

19.	In support of the contention there had been a breach of Article 6, Mr Foster cited two Scottish cases on delay in prosecution, Dyer v Watson 2001 SLT1261 and HM Advocate v K SLT2001 751 (the appeal from K (a juvenile) v HM Advocate in the Lower Court) as well as the case of Threlfall v. The General Optical Council (2004) QBD (Admin). 

20.	Mr Foster argued that:

i)	JC had not known about his listing in 1994 until receipt of The Secretary of State’s letter in July 2004 notifying him that his name had been placed on the POCA list. This meant he had had no opportunity to challenge the 1994 listing at a time when he would have had the benefit of his legal costs being paid by Z School.  He could not afford to pursue the judicial review route and, since he had resigned, he had no access to support for legal representation. 
ii)	Such failure in notification had effectively denied JC the right to a fair trial within a reasonable time in breach of Article 6.   The appeal to the Tribunal was a civil process:  whether the delay was from 1994 or from 2000 this did not constitute a reasonable time.  It was also 5 years since the behaviour complained of and 10 years since DH had been convicted
iii)	The Respondent failed to observe the principles of natural justice before putting his name on the list in September 2000 by not providing, for example, details of the allegations or his right of reply.   But JC had now effectively been denied a right of redress for this.  In addition, the passage of 16 years from the date of the events in question meant that it was wholly impracticable – indeed impossible – to mount an adequate defence.   This conduct had again deprived JC of access to legal advice and funded representation via the school and he could not now afford to mount a challenge in the courts. 
iv)	The Department for Education had done nothing for 10 years to establish JC’s address and it was now unreasonable and impossible to obtain relevant information from old school records to address the long list of allegations made by The Secretary of State.  The evidence was stale and JC prejudiced as a result
v)	Article 6 must apply because, effectively, JC’s liberty to teach was being removed.  Evidence showed JC had been an excellent Head.  His only failure, if such it was, consisted of a failure in 1989 to pass on to his school’s Governors and the Department of Education his very limited knowledge.   The behaviour that had caused the harm was that of DH not of the Appellant.
vi)	By s.4 if an appeal was unsuccessful or not made, an application could not be made to the Tribunal for leave to apply to be removed from the list until the expiry of 10 years from the date of inclusion.   Therefore any further appeal on the merits would have to wait for this period to elapse and JC wished to clear his name before 2010.  

21.	Mr Foster further relied on his description of JC’s reputation and the action JC had taken at the relevant time with regard to DH to support the argument that his name should be removed from the list.  He did not add any further argument to refute Mr Coppel’s assertions. 

22.	Mr Coppel argued that:

i)	The listing was lawful, but even if it were not, the Tribunal had no jurisdiction to declare on the lawfulness or otherwise of the Secretary of State’s decision to place JC’s name on either the consultancy index in 1994 or the POCA list in 2000.   Its functions were delimited by s.4 of the 1999 Act and the jurisdiction contained in s.9(1) and therefore its only remit was to hear an appeal on the merits in accordance with s.4 and the Regulations 2002.   
ii)	Whilst the Tribunal should clearly comply with its Convention obligations in relation to its own processes, JC’s application was misconceived.  He had alleged the whole process of decision-making by the relevant government departments was unlawful.   His complaint that the Secretary of State had no power to put him on the list in the first place or to retain him on it was a matter for judicial determination by way of an application for Judicial Review to the High Court (or the Court of Appeal). 
iii)	In any event, any unlawfulness was remedied by the existence of a right of appeal to the Tribunal, which provided a full review of the merits of the decision and therefore offered more redress than the Judicial Review process.   The Tribunal had no mandate to remedy the apparent denial of a right of appeal between 2000 and 2004: any wrong perpetrated during that period that would be righted by the Appellant’s appeal on the merits to the Tribunal.
iv)	The listing did not amount to a determination of JC’s civil rights nor was the Tribunal determining his civil rights or obligations:  listing was not a public matter and no one had a right to work with children.  Mr Coppel cited two licensing cases, Pudas vs Sweden Application No. 10426/83 European Court 1987 and Tre Traktőrer Aktiebolag v Sweden Application No. 10873/84 European Court 1989.  In both cases there had been a breach of Article 6 by virtue of a civil right or obligation having arisen in circumstances where a license was required.  Teaching did not require a license.
v)	If none of the above was applicable, there was still no breach of Article(6) because JC had been afforded the opportunity of a fair and public hearing within a reasonable time.  There had been no breach through unreasonable delay in the proceedings themselves:  the appeal was lodged in September 2004 with no delay thereafter.
vi)	JC had not been prejudiced by the apparent failure of the letter of 9th October 2000 to reach him:  he had not been affected by the disbenefit of being listed and had worked in positions involving access to children until his resignation in 2004.
vii)	The passage of time had also rendered the Respondent’s task more difficult, particularly with regard to satisfying the suitability criteria.   The Appellant had carried on working with or around children in education for some time before being told of the POCA listing.  The Respondent was obliged to rely solely on police statements from the relevant period, which constituted weaker evidence than the witnesses themselves.
viii)	If the Respondent satisfied an independent Tribunal that the individual was unsuitable and continued to be unsuitable to work with children the appeal must be dismissed.  The Tribunal could not interpose a further step in the statutory process and consider the Article 6 argument that the decision to list was itself disproportionate.  Proportionality was a matter for Parliament.   The Tribunal should therefore conclude JC’s appeal was fundamentally misconceived and should be dismissed:  

FACTS

23.	In July 1994 local authority X referred JC’s details to the Department of Health (DoH), which placed his name on its Consultancy Service Index.   In August 1994 a letter addressed to JC was sent to him at Z School advising him that his name had been referred by X authority on the grounds that JC ‘had resigned from Z School having failed to keep the governors and the DOH informed of matters which were properly their concern and which resulted in the welfare of children being put at serious risk’ and inviting his comments.   

24.	Thereafter, on 26th September 2000 JC’s name was then transferred to the POCA list under s.3 of the Act and supplied to the Teacher Misconduct Team at the Department for Education and Skills (DfES).   The letter dated 9th October 2000 informing JC of this had no address on it.   On 8th July 2004 JC received a letter from the DfES advising him that it had been unable to inform him in 2000 because it did not have access to his address, which it had now obtained from the Criminal Records Bureau.

25.	JC was originally a master with boarding responsibilities at Z school, an independent boys school in the North of England with effect from 1961.   In 1972 he became joint headmaster at another school, returning as Head Teacher of Z School in 1976, from which he took enforced early retirement on 15 July 1994.  From 1995 to 2004 he was involved with a variety of educational bodies including the Independent Schools Council (ISC), the Independent Schools’ Information Service (ISIS), as chairman of the Inspections Committee of IAPS and as a member of the National Association of Head Teachers.  From January 1990 until February 2005, when he resigned aged 65, JC was Chair of Governors at Y school.  He has been an adviser to, or governor of, 4 public and preparatory schools in total.  In oral evidence he also told us he had represented the private educational sector on an Area Child Protection Committee for a period between 1989 and 1994.

26.	In 1976 DH joined Z school as a Music master, thereafter becoming Head of Music.   He was also involved in external music activities including local choirs.  Staff at Z school also included ST, a Classics teacher from 1982 until his resignation in 1994, and HL, a Sports teacher who resigned in 1991.   In his evidence JC’s witness Mr T described ST and DH as ‘two of the finest teachers he had ever known.’

27.	In 1991, AD told police HL had behaved inappropriately towards him when AD was a pupil at Z school from 1980 to 1985.  On numerous occasions after a bath HL had invited AD to his flat and had gradually started asking him to do things which AD felt uncomfortable with, such as sitting on HL’s knee where he would be bounced up and down.  AD said HL had also encouraged him to increase his fitness by doing press-ups in HL’s room, which consisted of HL lying on his back on the floor fully clothed, with AD obliged to lie on top of him.  HL had also touched AD on his stomach or thigh having asked him to open his dressing gown.  AD was extremely uneasy and eventually asked another boy to accompany him on these visits, whereupon the majority of the inappropriate activity stopped.   However, HL would sit both boys on his knee at times to talk to them and on one occasion had chastised them with a slipper in his bedroom when they had made his dog sick.  AD recalled telling JC about the incidents and telling his parents at the time that he had done so.   He said JC had told him to write the events down, but nothing had appeared to result from this save for the fact that the invitations to visit HL in his room ceased.  In his police statement AD said these events had remained with him and he could remember the uncomfortable feelings he had had at the time.  

28.	In 1988 ST is said to have smashed a plate over the head of boy G.  In a police statement in 1994 G said he had felt very stunned, it had hurt, but he did not cry because he was in the dining room witnessed by other boys and teachers.  He said ST had a very bad temper and he had seen him mistreating boys.  JC told us he had not witnessed the incident and had been informed it was a joke; the plate was already cracked and had not actually touched G’s head.  

29.	JC told us in oral evidence that, following the incident involving HL, he had instituted a rule forbidding pupils to visit masters in their rooms.  So in 1991 when HL, who was naked, lifted up boy B in his flat as B was on his way to the bathroom, JC had felt able to suspend HL and arrange for an independent solicitor to interview him in the presence of the Chair of Governors, himself and Deputy Head.  There was also a police investigation into the activities of HL and, although JC said HL was dismissed, in fact he resigned in November 1991.  In January 1992 JC notified the Secretary of State, stating that HL had resigned but that had he not done so, JC would have had to consider dismissing him.   JC told police, and repeated to us in oral evidence, that he had not liked HL from the start because he was a single-minded sports fanatic who was too preoccupied with sport and JC wanted the balance of culture as well.  He confirmed that B’s parents did not wish any further action to be taken.  He also confirmed that the Police had carried out an investigation, but, as his contemporaneous statement made to them makes clear, he did not contact the Police: their investigation was initiated following an anonymous phone call.   In 1994 he explained to police he had regarded the allegations to be very serious and potentially of the utmost damage to the reputation of the school but had not felt it was a police matter, so did not notify them.   

30.	The central issues that led to JC being listed in 1994 first came to light in 1989, when, as JC freely admitted, he was aware of something untoward.  In or around May 1989, boy AM, a boarding pupil at Z school from 1984 had been given permission with boy R, to use DH’s computer for the purposes of producing a newsletter.  R had given AM about 20 A4 sheets, which he said were from the computer.  AM described these as being what he thought were diary entries containing dates and descriptions of boys in the shower, changing rooms and dormitories with an evaluation of naked bodies setting out DH’s desires towards the boys concerned.  In his statement to police in 1994 he said the majority of entries had related to A, a boy who had left the school before him and whom he did not know.  He recalled one entry about A stating DH had gone into A’s bedroom and, with his consent, performed oral sex on him.

31.	AM’s statement records that after discussing with friends what to do, they had agreed to keep the papers secret and he had looked after them.   But, concerned about the contents, he had subsequently consulted his elder brother J and they agreed their father should be told once AM had left the school.  Prior to AM going to Summer Camp Mr AM was informed and told there had been a specific reference to oral sex.  A decision was then taken to tell JC.  At a meeting with JC in or around July 1989 AM said he told him about the diary entries and exactly what was written in them, but had confirmed he no longer had the documents.  His brother J’s 1994 police statement confirmed he had seen the documents and the graphic description of DH performing oral sex on A and the descriptions of naked bodies.  J, who was then in the Sixth Form at S School, said he had kept the document, passing it thereafter to a fellow pupil and asking him to give it to JC’s son who was also at S School: that was the last time he had seen it.  J also said that when he had been at Z School he recalled boys being invited to ST’s flat and both ST and a Mr L, a rugby coach, had got into the hipbath with boys after rugby matches.  This had made him feel very uncomfortable.  He had also recalled DH taking photographs of boys for example during cricket matches.

32.	J, AM and Mr AM confirmed in their 1994 police statements that they had all been to see JC together.   JC had appeared ‘shocked, horrified and very nervous’ about what he was told and confirmed he had never had any problems with DH who was ‘a good teacher’.  JC had said he was not aware that any material of this nature was in existence but that matters should be left with him.   He had stated he would try and find out what he could, including a suggestion that he would have to try somehow to get into DH’s room to see if there was any more.   

33.	JC could not remember this meeting in any detail, and denied that Mr AM had visited him with his sons, although he conceded that he may have spoken to him separately in the school car park.   He denied having had sight of the documents or being told there was any suggestion of oral sex, but said Mr AM was a trusted parent who had been trying to help.

34.	Mr AM’s statement says he followed up the matter with JC, who told him to expect a letter in the post that he should read and thereafter destroy.  Mr AM had then received an original hand-written letter from DH to JC.   This admitted to the existence of the diaries and documents, but only to casual brushes with boys and an attraction for them, and a brief sexual bodily contact with a boy in the past.  According to Mr AM he was told by JC that DH would be very difficult to replace, but that JC had informed the Board of Governors and they had left it to him to do what he thought was right.  He recalled JC had asked him what he thought, to which he specifically recalled telling JC to contact the Police, sack DH and ensure that he never worked in a boys’ school again.  He also recalled JC repeatedly saying ”well, yes, but he’s a fine teacher and would be very difficult to replace” and assuring him that DH would never be left alone with any boys again in a vulnerable situation and would be “watched all the time”.  When Mr AM reminded JC that DH was taking the school choir on a trip abroad and questioned whether DH should be going at all, JC repeated this assurance.

35.	On 25th July 1989 JC wrote a confidential letter to DH saying ‘a number of allegations have been made against you…associated with the circulation of a computer print-out from your Diary section.  Said to be 17 pages long, the contents are known to a combination of old boys, parents and boys who left in July.   A copy has been in circulation and apparently still is…write to me giving an explanation of all this… [as] a matter of some urgency … [which ] must be dealt with immediately.’

36.	DH’s reply to JC, dated 29th July 1989, was part of the evidence filed in response to the directions on 5th May.  This letter admitted to a single serious mistake in the early ‘80s amounting to ‘too strong [an] association … contact … a 5 minute indiscretion’.  He also alleges that in 1976/77 a boy had asked him to interfere with him sexually during a piano lesson but that he had ‘told him where to get off’.  He described his Diary as intensely private as it chronicled his relationship with, and the physical development of a pupil who had left several years before.  Stating he would resign if requested, he asked JC to take into account his contribution to the school and to accept his assurance that it would not happen again.

37.	JC’s reply on 11th August 1989 referred to the embarrassment caused when ‘all was revealed about your conduct in mid-July’. It stated DH’s admission of physical contact had attracted comment such as DH was ‘lucky not to be involved with the police’ and that DH’s job and the reputation of the school were in issue.  JC made it clear he had largely kept the matter quiet and the Governors did not yet know, and, referring to the threat of potential media coverage, requested DH’s resignation.    Making it clear he did not intend to consult anyone else and wished to avoid further embarrassment to DH or the school, he proposed this should take effect from 31st December: ‘There is obviously a danger in your returning at all, but I am prepared to risk that.   You have done too much for [Z School] for me to want you to suffer any more than you are already doing…’.

38.	On 2nd October JC confirmed to DH that he was ‘very much part of the plans’ for the forthcoming trip abroad.   He confirmed DH’s departure in July was inevitable due to what he had written which had been ‘read by too many people of all ages’ and had suggested ‘a problem of some magnitude’.  Referring to the Children’s Bill 1989 he stated ‘social workers will shortly be at liberty to ferret around in any boarding school.   We won’t be able to keep them out.’   He reiterated the promise that things had been kept utterly confidential and the focus should now be on events planned for the year.  

39.	The police interview with DH in 1994 makes it clear that in early 1990 his diary recorded that ‘after receiving good news’ from JC, DH had continued to touch pupils and record physical observations about them.

40.	In 1990 ST had his 40th birthday party.  He told police in a statement given in his 1994 statement that he had been given special permission by JC to hold the party in his flat.  ST said the special permission was not just for a party but also for a Roman feast with 3 prefects.  One of the boys invited to the party wore a cardboard fig leaf as a joke based on a story ST had told in class.  When they arrived thigh-length togas were provided to wear, there was alcohol and inappropriate party games fantasising about activities with girlfriends.  In JC’s 1994 police statement he confirmed he had authorised the venue for the party.  JC told us he could not recall giving such permission personally but was aware that it had been given.  He did not recall the specific nature of the party but did recall one of the parents making a cake with a nude figure on it.  

41.	A boy CO also described to police in 1994 how ST would test their Latin prep via a game of ‘strip vocabulary’ in which when a boy got a word wrong he had to remove an item of clothing.  He recalled one occasion when a boy was completely naked except for an apron and how boys would ‘frantically replace [their] clothing’ at the end of the test. 

42.	In August 1993 Social Services Department Y received a complaint from a Mr M that when on holiday in Egypt an Egyptian man had shown him a letter written on Z school headed notepaper.  It was from ST and contained graphic descriptions of sexual acts ST wanted to perform with the Egyptian.  According to a contemporaneous Social Services file note JC was informed of this, and had replied he had no doubts about ST’s abilities as a teacher or his safety to work with children, considered him likely to be homosexual but that his affairs would be conducted in private with consenting adults.  The Social Services officers accepted JC’s judgment but raised the issue of vetting, given that ST had worked at the school for a number of years.  JC’s response stated that all his staff had been checked since implementation of the Children Act 1989 and full details supplied to the Department of Education but that he would carry out any further checks deemed necessary.  JC confirmed that ST had co-operated fully and he was content that ST’s private life was entirely separate from his professional life. 

43.	Some time in 1993 staff at a local Boots the Chemist were alerted to some indecent photographs of a man identified as ST in various poses.  These included him dressed in a boy’s school uniform.  There were other photographs of a naked man in various positions, one of which appeared to be in a dormitory.  The Boots manager contacted the police, who, having investigated the matter, concluded no offence had been committed and the photographs were returned to ST.  

44.	In 1994 DH was stopped in a random search by Customs & Excise at Manchester airport on his return from a trip to Amsterdam.  Customs discovered a quantity of pornographic material in his luggage.  On searching DH’s flat at school evidence was found of a diary recording thoughts and feelings of a sexual nature towards boys in his care, and descriptions of sexual acts and inappropriate physical contact. These discoveries triggered a very extensive police investigation at the school, and a number of statements were taken from boys who were current and former pupils.   These included boy A who related what amounted to a gradual grooming of him by DH, who had then sexually assaulted him in the music room by putting boy A’s penis in his mouth.   He had been either 12 or 13 at the time and had felt shocked and unable to turn to anyone.   At the age of 22 in 1994 in recalling the events A described his feeling of disgust and his difficulty in speaking about it for the first time then.   He stated he had had cause to recall it on occasions since and that it would stay with him for the rest of his life.

45.	The investigation also revealed evidence of inappropriate and unprofessional behaviour by ST.   JC said that ‘following DH’s antics’ this had in turn led him to demanding ST’s resignation because of ST’s sexuality and the statements made by boys.   He told us he had known nothing about the earlier indecent photographs, but had demanded ST’s resignation because of his admission that he was not heterosexual, the statements made by boys about him and following the events surrounding DH.  His letter to ST in June 1994 confirmed that ‘in the prevailing climate’ and with the pressure on Z School as the result of DH’s ‘disgraceful antics’ a ‘self-confessed homosexual’ was in an ‘untenable position’ obliging JC to suspend him.  

46.	In his oral evidence JC sought to imply that he had demanded ST’s resignation because of the incident with the plate in 1988.   In his letter to parents in June 1994 he confirmed ST had resigned, but there had been no suggestion of any impropriety and ST was not subject to any criminal charges, nor were any other members of staff and that ‘any malicious rumours which have emanated from these investigations are entirely without foundation.’

47.	In a report to police in April 1994 Mr Ray Wyre, an acknowledged expert on sexual offending, analysed DH’s behaviour 	and his diaries.  He advised police that DH was a fixated Non-Predatory Paedophile, by which he said he meant someone who believed he had done nothing wrong and any relationship he had with children was based on his care and concern for them and their consent to the acts in question.

48.	According to his 1994 police statement Teacher L found some computer pages and a computer disk down the back of a drawer in the staff room containing references to pupils.  He said JC was with him and took charge of this material.  Asked by police in 1994 what had happened to the papers and disk, JC stated that anything left after the police had removed evidence from the school had been ‘got rid of’ or ‘burnt’ or, in the case of the disk, wiped and re-used.  He said this was on the basis that the police had had ‘so much stuff’ and had all that was necessary: ‘all of us thought you had quite enough’ and ‘I wasn’t giving you any more because we’d finished all that, you’d got everything’.  This was apparently one week after DH’s arrest and the disk contained body files.  In a letter to police immediately afterwards JC said the sordid job of clearing out DH’s ‘awful mess’ had been done by volunteers.  They had had no intention of impeding upon the investigation, nor had anyone any idea that ‘every part of [DH’s] diaries was going to be checked out’ and it was thought that ‘everything was fantasy’.       

49.	On 15th June 1994 the Director of Social Services for X local authority wrote to the Chair of Governors setting out what action was required of the Governors in order to satisfy the authority that the school was able to protect and safeguard the welfare of its pupils.  This included reviewing JC’s position as Head.   On 14th July 1994 JC resigned from Z School.

50.	In July 1994 DH was charged with a number of offences of indecent assault involving past and present pupils at Z School going back over a number of years.  These included sexual offences committed in 1989 and 1993.   On 19th January 1996 DH was convicted of three counts of indecent assault on males under 14, one count of attempted indecent assault and three counts of theft of underwear from pupils.   He received a prison term of 16 months for the index offence, with a consecutive total sentence of 20 months imprisonment.

Respondent’s Submissions on Appeal

51.	For the Secretary of State Mr Coppel submitted that the Respondent had satisfied both grounds in s.4 and the appeal should therefore be dismissed:

a)	The Appellant had conceded there had been misconduct on his part.
b)	The extent, nature and gravity of the misconduct, whatever the extent to which it was, or was not, admitted by the Appellant, all informed the issue of his present unsuitability.   Some of the Particulars of Misconduct involved very serious offences, which on any view represented a catalogue of serious misconduct that exposed a number of different children over the course of some years to serious harm and risk of harm.   There was a substantial issue of suitability that had to be assessed against that backdrop.
c)	Given the seriousness of the misconduct, it was insufficient for JC to rely on his genuine regret about the events.   There was no suggestion that his heart was not in the right place, or that he had not been devastated by what had taken place, but what was missing over the ensuing period of years, and was still lacking, was any real insight into the misconduct and its consequences.  JC showed no perception of the depths of hurt to which the boys had been exposed and no insight into what was required of him in any post involving children.   This explained his failure to take any remedial steps after 1994, to address the fundamental issues involved.  He showed will but not the means to do so.  He had failed to equip himself with anything that might ensure he could identify and approach any similar problem in a rigorous and thorough matter: he had not, for example, attended any child protection courses.  This crucial blind spot and his inability to get the measure of its seriousness was a unifying theme that demonstrated, above all else, his present unsuitability.
d)	JC’s actions at the time showed a deep anxiety to protect his school for whatever reason, but he had failed entirely to see the real dangers to the children in his care.   Even now when confronted with the Particulars of Misconduct, JC was still reluctant to acknowledge the true measure of them.   He admitted he had not wanted to read the evidence.  This in itself was redolent of the original misconduct regarding DH’s dismissal when he had simply not wanted to see what lay underneath or to open the can of worms.
e)	JC’s original and continuing failure to address himself properly to these matters was fatal.   His own witness statements and his response to the Particulars of Misconduct had trivialised the gravity of the misconduct.  The Particulars had been carefully set out and fully cross-referenced to an indexed bundle of evidence, and the extent to which he had read these himself was material to his suitability.  This was critical given that his misconduct had turned largely on his own failure to address the misconduct of others.  The history and his current approach towards the very thing that had caused the problems in the 1980s and the first half of the 1990s showed he had not addressed the issues and that he was currently unsuitable to work with children.  

Appellant’s Submissions
52.	In his evidence filed after 5th May the Appellant said in relation to the Particulars of Misconduct:
(i)	he had never read DH’s diary entries
(ii)	the allegation of oral sex had never been substantiated let alone proved
(iii)	he had confronted DH as soon as practicable and had been given his assurance no physical contact with a boy would take place subsequently and it had to be presumed, to be the case based on the evidence from DH’s admissions and convictions, that between 1989 and 1994 when DH was dismissed that no other incident had taken place.  DH had admitted one assault, there had been another incident when he had been sexually stimulated by removing a wasp sting from a boy’s leg and he had been convicted of theft of the boy’s underpants.
(iv)	JC admitted it was an error of judgment not to report matters to the Governors or to the Police, but there were 3 powerful mitigating factors.  These were that :
a.	DH did not reoffend after 1989 so no boy suffered and DH had honoured his assurance to JC
b.	1989 had been a critical year in the school’s music faculty, particularly in view of the tour abroad
c.	the reputation of the school and the boy’s well-being would have been adversely affected if details had reached the press and public.
(v)	ST was a brilliant but eccentric teacher who, despite his leanings towards adults, had never assaulted any boys sexually.  JC had permitted the party but there was no evidence the 3 boys were at risk of serious harm.  He had been unaware of the plate-smashing incident until 1994, so could not have been considered as one requiring disciplinary action, and in any event the plate was already cracked and the incident not repeated.
(vi)	HL had not put any boy at risk of serious harm and had been appropriately suspended and dismissed within 24 hours for the incident with boy B.  
(vii)	A master had broken a boy’s leg in a tackle and was demoted.  
(viii)	JC had caned a boy for drinking alcohol, a permitted punishment then, but he did not accept he had drawn blood.
(ix)	X Social Services department had given the school a glowing report in April 1993 including favourable comments about pastoral care.  

53.	At the conclusion of the full merits appeal, Mr Foster argued that:
		
i)	The evidence about what JC first knew of DH’s activities relied upon police statements made by a 17 year old ‘J’ recalling events from 5 years previously.  This was therefore double hearsay, dealt with matters he had only heard about and he had not produced any documentary material in support.   JC did not know it had involved oral sex: had he known this, his reaction would have been very different.   Matters had been much more serious than he had previously thought.   He had confronted DH at the time with what he thought had been a single minor indiscretion which was borne out by the correspondence between them in 1989.
ii)	At the time JC had had to balance the welfare of the boys against the view that DH was highly thought of as a master and central to the forthcoming choir tour some 4 months later and to the reputation of the school.   JC now accepted he had given wholly the wrong level of priority to these factors in allowing DH to go on the choir tour.  The reputation of the school had been given little attention during the appeal but was important not only to the school and more importantly to its staff, but also most importantly to the pupils.   It was relevant to consider the likely impact of them seeing newspaper headlines about ‘oral sex on a boy’ that had, according to JC’s impression, only been one indiscretion lasting only minutes and to bear in mind that JC had not seen the diaries.
iii)	JC had conceded throughout that he had committed a serious error of judgment, but that his reaction now would be very different, having learned a great deal from the episode.   In this he had been supported by His Honour P who had been clear JC had learnt his lesson.
iv)	The degree and amount of offences for which DH had been convicted was at issue.   JC had been under the impression that there were only two offences in relation to DH, both of which had taken place prior to 1989.   DH had admitted the first, which amounted to an indecent assault according to the only information available to JC, who had no knowledge it involved oral sex.  The second had occurred when DH had touched a boy whilst removing a wasp sting, which he had later recorded in his diary embellishing it with the sexual feelings he had experienced.  JC had believed the two subsequent offences in 1993 had possibly involved touching, but not necessarily of boys’ genitals and it was not clear that these had been linked to the diary entries.  Again, there had been no record of any details known to JC, beyond the possibility that they constituted indecent assaults.
v)	JC had been very contrite during the course of the substantive hearing having learned of the seriousness of the events.  His Honour P had confirmed in spontaneous evidence that JC was capable of early, pro-active responses and was very concerned about children.  He had also confirmed the common knowledge that all evidence in the police statements was untested:  this supported JC’s comments on the way in which the police had gathered the evidence at the time.  This probably pointed to a blacker picture of events than was actually the case.  However, JC had been extremely sorry about what had happened and if any boy had indeed been harmed, although there was no direct evidence of this other than the initial assaults in 1984.
vi)	Mr T’s evidence supported the view of Z School as the best preparatory school in the North of England at the time.  It also supported the fact that JC had been a very successful Chair of Governors for many years, and had been highly regarded in the field of education, resigning only recently on account of these proceedings.   
vii)	JC having conceded the misconduct, the appropriate conclusion in all the circumstances was that he was not unsuitable to be involved in the education of children, if indeed that situation were ever to arise.   JC’s age indicated it was highly unlikely that he would have any future role in education, he only wanted the opportunity to umpire village cricket matches and did not wish to go to his grave with these matters hanging over him.

CONCLUSIONS

Hearing 5th May and alleged breach of Article 6

54.	We accepted Mr Coppel’s argument that we had no jurisdiction to determine procedural matters, namely decisions taken by The Secretary of State to list an individual and to notify them of that decision.  We had no power therefore to declare on the lawfulness of the Secretary of State’s acts or omissions leading to the prejudice complained of by the Appellant.    We agreed that our remit is confined to the statutory framework set down in Section 4(3) of The Protection of Children Act 1999 and Schedule 4 of the 2002 Regulations.  This meant that we can only consider an appeal on the merits and Article 6 of The European Convention applies only to our procedures in conducting a review of the merits of the case.  Article 6 could not be a precondition to our processes.

55.	We agreed we had no jurisdiction to determine this in the light of Article 6(1).  JC’s only recourse was to challenge those processes by other proceedings, and we made no further observations on whether proper processes had been followed since our opportunity at that stage to consider this was purely confined to a preliminary issue.

56.	Nevertheless, we observed that even if we had decided we could rule on the Article 6 issues there would have been on the face of it, little useful outcome in so doing.  As a Tribunal set up by statute in 1999 we could only look at the period 2000-2004 and the listing of JC in 2000.  This listing itself depended on the listing in 1994, the circumstances of which were not within our remit.  

57.	In September 2004 JC’s initial grounds of appeal had, in effect, reserved his position with regard to an appeal on the merits.  That merits hearing had originally been listed for a hearing of 3 days by His Honour Judge Pearl and the Appellant had been clear he wished to return to the merits argument if he failed on the Article 6 point.  His inability to challenge The Secretary of State by way of Judicial Review was of course a matter for him but we observed that even if he did so a failure would mean he would still need a merits review to establish the outcome he sought, namely to clear his name and remove his name from the list.  Whether or not he chose to challenge all the grounds put forward by The Secretary of State and pursue a full merits review or simply to pursue a “partial” case based on the contention that he was no longer an unsuitable person, was a question only he could decide upon with the benefit of legal advice.

Substantive hearing 11th and 12th July 

58.	The Appellant does not deny that he made a series of errors of judgment.   However, he either did not fully accept his role in the events between 1989 and 1994, or sought to minimise what had actually happened.  He did so in his original grounds of appeal and continued to do so despite the Particulars of Misconduct and bundle of evidence served on him by the Respondent, and the subsequent evidence filed in response to the Directions we gave on 5th May.  It is important to state this since the evidence in relation to the index offence for which DH received a sentence of 16 months imprisonment was a very serious sexual assault consisting of oral sex with boy A in 1983 when he was under 13 years old.   This was without his consent and clearly had an adverse effect on him.   These matters were set out in some detail in that evidence.

59.	The evidence shows that the first time JC knew of DH’s activities was in 1989.  Although we had no opportunity to test the evidence of Mr AM and his sons, their statements are mutually corroborative as to the details of the meeting with JC in a number of important respects and we see no reason why they would wish to state that they had seen JC together and a full disclosure of the allegations had been made when they had not.  JC himself acknowledges he cannot recall the events with any clarity and that Mr AM was a parent who was supportive of the school.   

60.	But JC specifically denied any knowledge of the oral sex, making much of the fact that such a phrase was never used to him.  We note that there were a number of allegations in circulation, together with a printout of DH’s diary, the contents of which were known to a wide range of people, as JC himself pointed out to DH at the time.   The correspondence between DH and JC shows that DH conceded he had made a grave mistake and indicates a level of knowledge and awareness on JC’s part that what DH had done was serious.   It seems likely that DH’s letter of 29th July 1989 was the letter JC sent to Mr AM.   This referred to an earlier incident in the 1980s (which we assume involved boy A) claiming there had been ‘very little physical contact’.  The reference by DH to being asked by boy O to touch him sexually and his refusal was a much more serious incident:  in his Police statement DH admitted to putting his hand down the boy’s trousers.  JC’s letter to DH on 11th August 1989 makes it clear he was aware there had been physical touching and his letter in October 1989 makes reference to a ‘problem of some magnitude’.

61.	If we were to accept the Appellant’s assertions that he did not formally see Mr AM that still begs the question as to why he did not do so in circumstances where Mr AM’s sons were making very serious allegations against a member of staff.   He appears to have regarded him as a supporter of the school and we find it difficult to understand why Mr AM should choose to fabricate his assertion or his clear advice to JC about what he should do with regard to DH.   If he gave that advice JC certainly did not follow it and, it would appear did not, for example go into DH’s room.   In any event, regardless of this, it was incumbent upon JC to follow the matter up with a detailed investigation and to have realised for himself this constituted sensible advice from a caring parent.

62.	The letter from DH itself ought to have raised alarm bells, even at a time when arguably less was known about sexual offences against children.   Its reference to details of a boy who had left being kept on his computer and his protestation that his privacy was being invaded were indications in themselves of inappropriate behaviour that should have prompted further questions.

63.	We are satisfied there is sufficient evidence to show that JC was aware there had been inappropriate physical contact with a vulnerable young boy which constituted a problem of some magnitude by anyone’s account of it and that, in consequence, he had asked for DH’s resignation without further investigation.   His request for this to take effect ‘by 31st December at the earliest’ was grossly inappropriate in all the circumstances.   This was conveniently after the choir tour to America, and was accompanied with wholly misplaced views about the potential for further embarrassment to the school and to DH (including an inappropriate wish on JC’s part to spare DH any further ‘suffering’) were any other arrangements to be made.

64.	We are also satisfied that DH had targeted boys as early as 1977 and continued to do so after his promise and assurances to JC in 1989, as evidenced by his recording of his continuing fantasies about boy R, the stealing of boys underpants from January 1990, and the taking of photographs.   Although the Respondent could not ultimately provide further information to confirm it, by a process of relatively straightforward deduction we have concluded that DH committed a further 2 acts of indecent assault against boys after 1989 for which he was convicted and sentenced.

65.	There is no reason to suppose that JC knew about the photographs taken by ST and equally no evidence to suggest that he knew about, or had any cause for suspicion, about the complaint regarding ST’s letter to the Egyptian.   But in condoning ST’s party in 1990 he breached his own rule regarding relations between pupils and staff.   We also note that he was happy to accept ST’s sexual orientation in 1993, until a year later when the incident with HL came to light:  it is clear he then thought it was obviously too risky to do anything other than ask ST for his resignation.   We believe his oral evidence on his reasons for demanding ST’s resignation in 1994 reflected not only the intense pressure of the police investigation at the time, but also his current state of confusion about those events.

66.	Whilst we can understand the effect on his state of mind both then and now, there were a number of great contradictions in his written and oral evidence and in the statements he made to police in 1994 about the alleged destruction of evidence relating to the investigation of DH.   Whether he was present in the staff room when the documents and disk were found and whether he took possession of them inadvertently under extreme stress, or removed them deliberately, is impossible to establish.   However, it does point to some involvement in the situation and to the consequential loss of material for the police investigation.  JC offered the explanation that he thought everything DH had written was a fantasy and he regarded him as a ’cancer’ in their midst was a theme he returned to a number of times in oral evidence.

67.	The fact is, JC was never charged with perverting the course of justice.   At the very least his response demonstrates a state of panic and confusion on his part in what must have been challenging circumstances.   But this was a situation in which we would have expected a Head to display the requisite leadership qualities and remain calm and cooperative with the police.   The fact that he clearly did not do so and sought to suggest to us that the police approach to the investigation had been unacceptable and unjustified does not commend itself as the behaviour of a responsible professional.

68.	We are persuaded that JC knew about the body files even if he did not know exactly what had happened at that stage.   He admitted as such to police at the time, seeking to explain he had destroyed them on the basis he thought the police had enough material already.   His attempt to explain to us he had conceded this at the time because the ‘buck stopped with me’ and he had to take responsibility for his staff in a sordid situation was laudable.   But it was somewhat undermined by him seeking to suggest that teacher L’s statement about the discovery had been inaccurate (a point he conceded in cross examination)

69.	There were other incidents of misconduct alleged by the Respondent about which we could not reach any firm conclusions:
a)	JC totally denied kicking HU and asserted that he would not have treated a pupil in this way.   We have no way of testing this assertion and we do not regard it as a significant issue set against JC’s admission that he was guilty of grave omissions in regard to the other matters.   
b)	The same applies to the episode with the plate incident, but in this instance JC was not present to witness it either.   His omission, if there was one, was not to do anything to find out more about it once he was told.   This supports the view that this school and its Head had a culture of not asking questions and accepting events or accounts at face value.
c)	As far as the caning episode is concerned, we note the damage the boy says was inflicted upon him at the time, but again we have no way of testing this.   After this length of time we have no way of reaching any conclusion save that, sadly, such events were not abnormal in preparatory school culture at the time.  We do note however that JC himself did not condone such acts and regarded this as a one off justified by the seriousness of the circumstances.

70.	We have not considered the remaining Particulars of Misconduct relating to other matters since these were not ultimately relied upon by the Respondent to any significant extent and were not dealt with either to any great extent, or at all, in oral evidence.
 
71.	We are satisfied that JC made a series of grave, serious errors of judgment amounting to misconduct sufficient to satisfy the requisite test.   This was a conclusion largely conceded by JC himself.

Suitability 

72.	We are in a position to consider matters afresh as of the date of the appeal hearing.   We accept that the fact of the Appellant’s name being on the POCA list only emerged in 2004 to his knowledge, having already resigned from Z school in 1994.  The fact that he resigned all his positions in 2004 upon learning of his listing is sufficient to convince us of this:  we regard his response as entirely honourable in the circumstances and one that lends credence to the view that he cannot have known.

73.	This had the most unfortunate consequences for him that were outside our remit.   These included the fact that he was deprived of the ability to access professional legal advice in an environment that might well have provided this without charge or for a reduced rate.   This in turn deprived him of the funding and support to enable him to challenge the administrative decision-making regarding the listing and the reasonableness and proportionality of the actions of the Secretary of State.   We regard the actions taken by the Secretary of State as wholly inadequate:  whilst the circumstances arose prior to the 2000 Guidance on the Protection of Children Act (which states notification letters should be sent by Recorded Delivery), nevertheless it should have been obvious to those operating the list that proper steps should have been taken to inform JC.   

74.	JC told us that he had resigned as Head in 1994 because he had had ‘to accept responsibility’ in response to the major crisis at his school.   He went to Scotland to start a business and only thereafter unwittingly took up various positions.   These included three posts on Governing Bodies of preparatory schools, including one in Scotland and of Chair of Governors at X School, the girls school of which Mr T is currently Headmaster.  It might be argued that, given the circumstances of his resignation in 1994, this showed a lack of serious appreciation of what had happened and we certainly regard it as evidence of a failure to grasp the gravity of the issues.   The important issue is whether JC’s contention can be upheld that, subsequent to the events at Z School, which then so disastrously revisited him in 2004, his awareness and understanding of child protection issues had greatly increased.

75.	It must be said with some emphasis that JC was seen as a very good Headmaster, who had contributed a great deal to his school.   Furthermore, there is no evidence that he did anything other than carry out the educational jobs for which he had been recruited, both as governor and otherwise, to the best of his ability.   Indeed, Mr T and His Honour P made it clear they regarded him as extremely competent, with an open, proactive approach and an anxiety to ensure that everything was done properly.   We have no reason to doubt this assessment of him and it is to his credit.

76.	However, we have considerable reservations about the attitudes and approach of the Appellant and his witnesses to this appeal.   They gave us the strong impression that they still adhere to a culture and mindset that is characterised firstly by an inability to suspend disbelief in the face of grave allegations such as those that led to DH’s conviction and secondly by a reluctance to act on information.   This was amply demonstrated by both JC and Mr T whose written and oral evidence displayed a reluctance to involve outsiders in the affairs of a school, together with a firmly expressed belief that they would ‘know what went on there’.  

77.	This is not untypical of the classic ‘closed institution’ approach sadly highlighted in a number of public Inquiries across a range of care and educational settings.    We stress that it is not wholly confined to the private sector, but has been, and can still be, found as a prevailing attitude in the state education sector as exemplified by the recent Clywych Inquiry Report by the Children’s Commissioner for Wales in 2004.   It is a culture that crucially fails to demonstrate the ability to observe and listen to children or to raise concerns on their behalf, amounting to a fundamental lack of attention to their needs or understanding of the consequences for them.   Judge P was at pains to emphasise the need to look very critically at the evidence in criminal cases for such abuse, which carry a heavy burden of proof, stating that in his experience many of them did not stand up to scrutiny.   But, somewhat surprisingly for a retired judge of the family courts, he failed to balance that view by reference to the findings of fact that can be, and are, made in concurrent care proceedings on the same facts on the civil standard of proof.   Mr T, despite his evident good sense in dealing with one case involving a 16 year old at his school, was nevertheless also convinced he would know about anything untoward happening in his school.   Sadly, there is ample evidence to suggest that even in well-run institutions staffed by professionals with knowledge and skill, abuse can and does take place that goes undetected in the absence of complaint or allegation.

78.	We accept that JC may well have found it extremely painful to revisit the past following these events.   We also accept that for a man whose lifeblood was education, his subsequent posts as a governor may have represented a less stressful way of returning to the world to which he had contributed so much.   But the fact of his return to the field of education does raise questions, in particular about whether he had shown himself able to provide the necessary reassurance that he would not react in a similar way again.

79.	We are not satisfied that in the intervening period the Appellant has examined his past errors in judgment.   He persuaded us that he had looked at his subsequent responsibilities and concluded he ought to be more informed about child protection issues.   Also, that he was motivated not to fall into the same errors again through the realisation that he should, and would, do things differently.   However, despite a much greater awareness of the existence and extent of abuse and of perpetrators, he showed a limited understanding of the way in which they operate in terms of their presentation and their capacity for, and methods of, grooming potential victims.   He did show some potential for understanding the devastating effects of abuse on children, but in his oral evidence he had a tendency to undermine the persuasiveness of this by repeating his original minimisation of the seriousness of what had happened.

80.	The Appellant gave the impression of being in a state of great confusion.   This merely served to undermine the picture he wished to present of someone with the necessary general knowledge, skills and experience to safeguard children or the ability to take steps to do so.   He did not convince us that he had developed the knowledge of the key issues of safeguarding during the last 10 years, nor that he had learnt during the course of the appeal process either.   He admitted he could not bear to read the bundle of evidence and it was clear he had allowed himself to be entirely influenced in his preparation and presentation of his case by his solicitor.   Mr Foster’s claim that neither he nor his client had known about the gravity and detail of the offences against the boys until the substantive hearing was wholly unsustainable.   The volume and content of the written evidence submitted by the Respondent in compliance with the case management directions given by the President was more than sufficient to make the case against him clear.

81.	JC was undoubtedly assisted in this by his own witnesses.   They also had not apparently read and absorbed the totality and gravity of the evidence filed by the Respondent.   They were not in possession of the full facts of the case and sought to minimise them.   Throughout the course of the appeal the Appellant also sought to do so and to bolster his evidence through character references from these professionals who merely demonstrated to us a familiarity with a culture that has a history tending to suppress informed discussion of safeguarding issues, rather than promoting them.

82.	Under cross examination the Appellant showed some basic awareness of developments in safeguarding.  He said he was aware of recent guidelines, although he did not appear to know the details of such well publicised and widely disseminated documents as ‘What to Do If You Are Worried A Child Is Being Abused’ (DfES 2003) or to understand their significance.   He did not convince us that, even after experiences that he described as having traumatised him and his family, he had developed the internal instincts or conviction characteristic of professionals capable of reacting appropriately to safeguard children and young people.   Nor did he demonstrate to our satisfaction that he had acquired the knowledge, skills and experience necessary to understand truly what it means to do so.

83.	In order to judge suitability we are entitled to consider the individual character, disposition, capacity and abilities of this Appellant within the context of the overriding purpose of the legislation.   We have concerns about his capacity adequately to recognise another situation of potential abuse, to respond appropriately to it or to any allegations made to him or to exercise appropriate judgment in so doing.   We accept he was personally traumatised by the events that took place at his school and it could be argued that this memory in itself might cause him to be sufficiently apprehensive as to immediately pass on any relevant information, but there was no evidence from him to support such a conclusion. 

84.	It is important to state that, apart from the events in 1994, JC has had an extremely successful career in education and there is absolutely no reason to dispute that he has been highly regarded by parents and by many who have worked with him over the years.   Nothing can, or should, detract from that.   The evidence suggests that the events at Z school amounted to sexualised behaviour by 3 senior masters out of a total staff of 70 and we cannot draw any conclusion to suggest that it extended beyond that.    

85.	We are mindful that JC’s desire to ‘clear his name’ and to fulfil his dearest wish to umpire children’s cricket matches has impelled him to appeal.  We also accept that, at the age of 65, he could not be expected to take up any substantive educational post carrying such responsibility.   It is indeed extremely unfortunate for him that the law does not allow us to impose the sort of conditions that might enable him to do just that, but in this instance the law is a blunt instrument.   We have no alternative but to decide in accordance with the overriding purpose of the legislation, namely the protection of children and young people and in these circumstances the balance must tip in their favour.

Accordingly this appeal is dismissed. This decision is unanimous.

Signed

Ms L Goldthorpe
Chair

James Black

Gillian MacGregor

3rd August 2005