Sadler v Secretary of State for Education and Skills [2005] EWCST 486 (PT) (19 December 2005)

In the Care Standards Tribunal

Andrew Sadler
v.
Secretary of State for Education and Skills

[2005] 486 PT

Before 
Rev Maureen Roberts (Chairman)
Mr. Michael Donovan
Mr. Richard Beeden

A hearing held on the 5th of December 2005 at the Care Standards Tribunal, Pocock Street London.

The Appellant in person. 
The Respondent was represented by Miss N Lieven of Counsel instructed by Ms Alison Todd of the Treasury Solicitors. 
The Appellant and Ms Susan Connors (for the Appellant) gave oral evidence. 

1. The Appellant appeals against the decision of the Secretary of State for Education and Skills made under section 142 of the Education Act 2002 in a decision letter dated 17th March 2005. This decision bars the Appellant from working in any capacity with children as provided by section 142 of the Education Act. The ground relied on by the Secretary of State was that the appellant was unsuitable to work with children. “In reaching her decision, the Secretary of State has taken into account your conviction on 13th September 2000 at the Court of District IV Bucharest, for an offence of ‘an adult having sexual relations with any minor of the same sex’ for which you were sentenced to four years' imprisonment”. 

2. An order was made at the commencement of the proceedings under regulation 18 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, restricting the reporting of the proceedings.  We were satisfied that this order were necessary in this case to safeguard the welfare of the children involved in this matter. The restricted reporting order prohibits the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to identify any child involved in the case.
Background 

3. On the 20th of January 2000 the Appellant went to stay for 12 days in Romania. Unknown to him the National Criminal Intelligence Service had contacted the UK Embassy in Bucharest and the Embassy faxed a letter to the Romanian police, in Romanian, indicating that they suspected the appellant of having pedophilic interests. They requested the Romanian police to keep the Appellant under observation as they believed that the Appellant’s reason for his visit to Romania was ‘to commit abuses against children’. 

4. The Romanian police kept the Appellant under surveillance and on the 24th January 2000 he was arrested at a rented apartment in Bucharest where he was found staying with man called Ilie Gabriel (nicknamed, and also called Ali) and two boys aged 14. We have referred to this man as Ilie Gabriel throughout this decision. However frequently, in evidence, he was referred to as Ali.

5. Following his arrest and after a number of court hearings the appellant was sentenced, on 13th September 2000, by a criminal court in Romania. He received two sentences; one for four years' imprisonment for an offence under article 200 of the Romanian criminal code  (sexual intercourse between a grown-up and a minor of the same sex)  and two years imprisonment, to run concurrently  for an offence under article 202 (sexual corruption - obscene activities undertaken with a minor or in a minor's presence). At the same hearing, we noted that Ilie Gabriel was sentenced to three years imprisonment for offences of aiding sexual relations between same sex persons and sexual corruption. The judge observed that Ilie Gabriel had previous convictions for similar offences and had been sentenced to three years imprisonment in 1998.
 
6. This matter came to the Respondent’s attention initially because her department saw a newspaper article (Daily Mail 28/10/00) which described the Appellant as being part of a pedophile ring in the UK. This article was written following the trial in Romania and the reporter had traveled to Bucharest to interview the Appellant following his conviction. The Appellant described the article as ‘unbelievable’ It should be made clear at this point that the Appellant has no convictions relating to pedophilia, or any other matter in the UK. 

7. The Respondent investigated further the Appellant’s conviction in Romania. The Respondent obtained translated and original transcripts of the final judgment and sentence imposed by the court in Romania.  The Respondent also obtained copies of subsequent orders made by the Romanian courts with respect to the release of the Appellant on 14th June 2001.
 
8. The Respondent having obtained the court papers from Romania then wrote to the Appellant, on 20th February 2004, to warn him that that she was considering making a direction under section 142 of the Education Act 2002. She invited the Appellant to attend a medical examination with a psychiatrist and following that to attend an interview in London. This the Appellant did. The Tribunal saw all the evidence that had been considered by the Respondent before she made her decision. 

9. We noted the information gained at the interview in London on 7th December 2004. The Appellant said that he was in Romania for legitimate reasons, namely to proof read translations and gave an explanation of how this had been organized. This is set out below as part of the evidence given to the Tribunal. He confirmed that there had been two searches of his property in Worcester by the police.  Nothing had been found. There had also been allegations made against him by a teacher colleague at a prep school where he worked. These had not been investigated in any substantial way at the time, and the Appellant said that they were vindictive and without substance. The headteacher from the school, in an e-mail to the Respondent, said that both the Appellant and the other teacher had left the school. This was five or six years ago and the Appellant had not worked as a teacher since then. He had continued to travel abroad and acted occasionally as a tour guide for travel companies. There was information that the Appellant had travelled extensively abroad and been to Romania on a number (at least six) occasions. 

10.  Having considered all the documents and information the Respondent then wrote with the decision to the Appellant on 17th March 2004. The Respondent said she took into account the conviction in Romania on 13 for September 2000. She also took into account the oral and written representations the Appellant made in particular that he denied committing any offences and that he had said his conviction was quashed. She had considered his supporting documentation. She had taken into account the psychiatrist's report and the views of her Senior Medical Adviser who both concluded that the Appellant was unsuitable to work with children or young people. Finally she said that the decision was based on the evidence that she currently held. 

11. The Appellant appealed to Tribunal on the 1st April 2005. The thrust of his appeal was that on an appeal made by him in Romania “in March 2001 … all the witnesses came forward and retracted their statements. On the strength of this I was completely exonerated as the sentence had been quashed and I was released allowing me to return to the United Kingdom. I do not have a criminal record in either Romania or any other country (including the United Kingdom). “

The Evidence

12.  The fact of the arrest, conviction, sentence, and eventual release of the Appellant on the 14th June 2001, are not in dispute. The Appellant described how on his departure from Romania he was taken at short notice from his cell, kept under surveillance overnight on the floor of the airport and escorted onto the plane the next morning.

13. The Tribunal had the record of the proceedings on 13th September 2000 when the Appellant was sentenced. The Tribunal also had various documents suggesting the reduction of the sentence under Article 200 to two years and the eventual order for conditional release and subsequent deportation of the Appellant. What the Tribunal did not have and never saw was any record of an appeal which quashed either or both of the convictions. 

14. We heard evidence from the Appellant and from his friend Ms Connors. The Appellant told us that he had gone to Romania in January 2000 and that he had been to Romania two or three times before. On this trip he intended to complete some proof reading, correcting documents that had been translated into English.

15. The Appellant confirmed that he had rented an inexpensive one-bedroom small flat. He had been met by a man called Ilie Gabriel at the airport and that Ilie Gabriel had been accompanied by two boys when he came to the airport. He had met Ilie Gabriel in Romania before. Originally he had had an introduction to him through a fellow teacher called Pete, an acquaintance with whom he said he had travelled to Romania on an earlier occasion and whose surname he could not remember.

16. The Appellant said Ilie Gabriel organised the proof reading work. He said that he expected to work three to four hours a day on the translations correcting the grammar and the English. He did not know where the work had come from and could not remember, except in the most general terms, what the translations were about. His contact Ilie Gabriel produced the material and he was paid through him. The work came from a variety of sources although the Appellant could not identify any of them or give any further details about Ilie. No examples of the work were found at the time of his arrest, because the work hade been taken away. We were provided with no documentary evidence of any payments being made. According to the Romanian police the Appellant had ROL 580000 (about £16-00 in 2000) in cash when arrested at midday.  He did not have a work permit as according to the Appellant these things were not issued in Romania.

17.  He went on to say that he had rented the flat because even if he paid for it for three months it was cheaper to rent for three months and occupy it for 12 days than to stay in a hotel for 12 days. He also felt obligated to Ilie Gabriel for getting the work and Ilie Gabriel could continue to live there. He could not remember her how much the flights had cost but considered that the work he would have done would have more than paid for his trip to Romania including the presents he bought for the boys. He said that he had no reason to suspect that there was anything untoward about the relationship between Ilie Gabriel and the two boys. Ilie had said that they were relatives. On a previous occasion Ilie had met him with two boys. This time one of the boys was the same but one was a different boy.

18. It was put to the Appellant that after what had happened in the UK regarding the searches and allegations made, it was foolhardy of him to have stayed in a flat with an adult man and two minors. The Appellant said that he had no reason to suspect that anything untoward was going on and he was horrified at the idea of sexual relations between persons of the same sex. 

19. Ms. Connors gave evidence of learning of the arrest of the Appellant. Ms Connors had worked ceaselessly to ensure that the Appellant had a defence lawyer and had worked with the British Embassy in Bucharest to support the Appellant through the court proceedings. Both the Appellant and Ms Connors were very critical of the Romanian court procedure and suggested to the tribunal that the Appellant would not have been convicted in a UK or other Western European criminal court on the kind of evidence that was placed before the Romanian court. He was represented and all proceedings were translated. In addition the Appellant has a number of physical illnesses and his stay in the Romanian prison system was a harsh experience.

20. The Appellant and Ms Connors emphasised that there were inconsistencies in the court papers that had been seen by the Respondent. They were adamant that there had been an appeal hearing in March 2001 which had completely exonerated the Appellant and that the delay until the 14th June when he finally flew home was due to the slow process of the Romanian legal system. 

The Law.

21.  The Respondent invited the Tribunal under regulation 12 (3) of the Education (Prohibition from Teaching or Working with Children) regulations 2003 (the regulations) to dismiss the appeal on the grounds that the regulation provides that ‘where a person has been convicted of any offence involving misconduct, no finding of fact on which the conviction must be taken to have been based shall be challenged on an appeal under these Regulations.’ 

22.  The judgment of the Romanian Court on 13th September 2000 was a lengthy document summarizing the circumstances of the Appellant’s visit to Romania and considerable documentary and other evidence; search report of the flat, photographs, witness statements, forensic experts’ reports, technical and scientific fact finding reports, statements of defendants, statements of the injured parties, reports regarding the confrontations, and reports regarding the operative surveillance material. We also noted that the then head of the NCIS was present at the arrest.

23. Having summarized the events leading to the arrest the court then said, “It is true that in all statements given the defendant Sadler, Andrew John Robert denied all intimate contact with the minors (names), but these statements cannot be considered to express the truth, as, even though he denies ever having had homosexual relations the forensic expert report (page 78 of the file) proved the contrary (repeated anal sexual contact);  
- the tissues collected during the search of the flat as well as the tampons from which the anal secretions of the defendant and injured parties were lifted, containing traces of silicone oil identical to the silicone oil handed over by Dimian Mioara the owner of the flat; 
- in respect of the tissues with traces of his semen, found during the search he gave the explanation that he had masturbated, but not in the presence of the minors... (missing words) the scientific evidence presented above, that prove that the minors had had anal sexual relations and that there were traces of silicone oil in their anus; 
- the frequency of the visits made in Romania cannot be justified by the search for work; this explanation is not supported by the evidence; 
- all the acquaintances of the defendant, including co-defendants Ilie Gabriel, are proven homosexuals; 
- the statement that he lived with the minors and co-defendant Ilie Gabriel in order to help them with money and other things, practically for humanitarian reasons, is not proven as the defendant could have sent them money and packages in the mail, without having to live with them, in view of the age difference and the differences in their interests and culture.”
The judge noted that the co-defendant and two minors had retracted the statements they had given but said that this did not lead to the conclusion that the statements were not true. 

23. The Tribunal heard submissions on the interpretation of this regulation. We noted that the regulations provide, under paragraph 8, for the automatic prohibition of persons found guilty of certain offences in UK courts. By contrast paragraph 12 which relates to appeals to the tribunal makes the provision as outlined above but does not qualify or clarify the jurisdictions covered. It was put to us by Counsel for the Respondent that the regulation means a finding of fact made in any jurisdiction. We were directed to comparable provisions in the Sexual Offences Act 2003. Under section 97 of this Act ‘Notification orders: applications and grounds’, a chief officer of police may by complaint to the magistrates court apply for a notification order on the grounds inter alia, that the defendant has been convicted of a relevant offence in a country outside the United Kingdom. We note that that Act specifically states that it applies to jurisdictions outside the UK. 

24. When the Tribunal suggested hypothetically that convictions in certain jurisdictions might have been obtained by torture or in some other unsafe way, it was argued that the Respondent initially exercises discretion when she looks at the misconduct and would be mindful of the circumstances and background of the case. If there were such issues she would not necessarily then proceed to place a person on the list under section 142 of the Education Act 2002. 
25. Further it was argued that any injustice could be righted by way of a judicial review.  It was not for the Tribunal to pick and choose between jurisdictions or to try and make an adjudication about the status of the criminal proceedings in other countries. In such cases the tribunal would not be able to hear live evidence from 'victims' in other jurisdictions and therefore an Appellant who sought to challenge findings of fact on appeal could use it to his or her advantage. 

Conclusions
 
26. The tribunal having read a considerable amount of background documentation, witness statements and listened to the evidence and submissions by both parties finds as follows.

27. We were provided with no written evidence that supported the alleged legitimate reason for the Appellant’s presence in Romania, namely to proof read translations. We heard evidence from the Appellant on this issue as outlined in paragraphs 15, 16 and 17 above. We found his explanations unconvincing and on the balance of probability unlikely to be true. Whatever the flaws may or may not be of the Romanian judicial system and in particular the evidence leading to the Appellant’s conviction, he failed to convince us that he was in Romania for any legitimate reason. 

28. Further his answers to our questions about the appropriate behaviour as an adult among children as illustrated in paragraph 18 above seemed to us to provide clear evidence that the Appellant has no appropriate understanding of child protection or appropriate adult behaviour when in the company of children despite his service as a teacher, mainly in boarding schools, over many years.

29. The original conviction and sentence of the Appellant took place on the 13 September 2000. There was an appeal pursued through the Romanian legal system. This appeal may well have been against both the conviction and sentence. However on the balance of probabilities and on the information supplied to us we find that the conviction was not quashed and that the result of the appeal appears to be that the sentence was reduced. We further find that the nature of the removal of the Appellant from Romania, as described by him and summarized in paragraph 12 above, was by way of deportation which was ordered by the original sentencing court. It was not a case of him simply being released which would have been the case had his conviction been quashed.

30. We accept that the system in Romania is not the same as the UK criminal system and we appreciate the difficulties that the Appellant and his supporting witness had had in dealing with the Romanian legal system. Clearly it was difficult for them to follow proceedings when everything had to be translated. Having said that, there is clearly an established criminal legal system in Romania with a penal code, courts and procedures compatible with other criminal jurisdictions, for example, written statements were taken and court hearings held. In addition the Appellant was legally represented.

31. Whilst the Tribunal has seen some of the statements that were before the Romanian courts there appears to have been considerable further evidence, as listed in paragraph 22 above, not all of which we have seen, but which was considered by the court, for example, photographic evidence is mentioned in the papers but has not been seen by the Respondent or the Tribunal.

32.  We therefore find that there was a conviction of an offence involving misconduct.  If counsel's argument that Regulation 12(3) applies to jurisdictions outside the UK is correct, then the Tribunal is not permitted to allow a challenge to the findings of fact made by any court. It follows that if this argument is correct then the appeal would necessarily be dismissed because of the nature of the offences of which the Appellant was convicted and the findings of fact recorded by the court.

33. As noted above we have some concerns about Counsel’s arguments. So, in the event that her submissions on that point are challenged, we record that we would dismiss the appeal in any event on the basis of the evidence before us.

34.  For this purpose we draw three further conclusions on the evidence before us. 
a. First, as noted above in paragraphs 27 and 28, we were unconvinced by the Appellant’s explanations as to his purpose for visiting Romania and his awareness of child protection issues. 
b. Secondly, we cannot ignore the clear concerns the UK police had about the Appellant. They were evidently watching his movements to know of his travel plans and the flight he was to take to Romania. The fact that the head of NCIS travelled to a foreign country to be present at the arrest of the Appellant indicates that there were very serious concerns about his behaviour whether or not he had previous convictions in the UK.
c. Thirdly, we accept that the Respondent exercised her discretion in the investigations that she made. She made considerable effort to locate evidence of any appeal hearings and obtained copies of the decisions which we have seen, from the Romanian courts via the embassy in Bucharest. She made further investigations of her own including obtaining a psychiatric report and interviewing the Appellant at length. Only at the conclusion of these procedures did she exercise her discretion.

35.  On the evidence we are satisfied that the Respondent has discharged the burden on her, on a balance of probability, that the Appellant is unsuitable to be employed as a teacher or worker with children or young people.

36. Our decision is unanimous. 

Accordingly we dismiss the appeal.

Rev Maureen Roberts
Mr. Michael Donovan
Mr. Richard Beeden				
Dated: 19 December 2005