Kenneth William Males
-v-
Secretary of State for Education and Skills
[2006] 854.PC

-Before-

Mrs. Carolyn Singleton
(Chairman)
Ms. Denise Rabbetts
Mr. David Braybrook

Heard at the Middlesbrough County Court on 9th August 2007

The Appeal

1. Kenneth William Males, (the Appellant), appeals under s.144(1)(a) of the Education Act 2002 (the Act) and Regulation 12 of the Education (Prohibition from Teaching or Working with Children) Regulations 2003, (the Education Regulations), against the decision of the Secretary of State for Education and Skills (the Respondent) to include his name on the list kept under section 1 of the Act.

Representation

2. The Respondent was represented by Ms. Olley of counsel and the Appellant was represented by Mr. Cheng, solicitor.

Burden of Proof

3. It was accepted that the burden of proof lay with the Respondent.

Facts of the Case

4. The facts of the case were not disputed.

5. On 7/11/1991 the Appellant was convicted of an offence of sexual intercourse with a girl under the age of 16. The girl in question was his 13 year old step-daughter. The offence related to a single incident. The Appellant was sentenced to 12 months imprisonment suspended for 18 months.

6. On 4th May 2006 an email was sent to the Respondent from Mr. Lewis Palmer of Metro Coaches stating that he had received an anonymous telephone call informing him that the Appellant was a convicted paedophile. The Appellant had been employed by Metro Coaches as a coach driver for Teesside High School.

7. On 2/5/2006 Teesside High School was advised that the Appellant was a convicted sex offender by the proprietor of Compass Royston Coaches. Notification was given to the Respondent by the High School on 5/5/2006.

8. Enquiries were made through the National Identification Service and confirmation was received of the conviction as set out above.. The particular circumstances of the offence were obtained from Cleveland Police and are contained in a copy of the letter dated 12/6/2006 which appears at document 77 of the Tribunal bundle.

9. On 20th June 2006 the Respondent wrote to the Appellant setting out the information that the Respondent had, explaining that the Respondent had to consider whether to take action under s.142 of the 2002 Act and inviting the Appellant to make representations.

10. No response was received from the Appellant. Therefore, on 7/8/2006 the Respondent wrote again to the Appellant inviting written representations and stressing the importance of doing so.

11. The Appellant responded by letter date 10/8/2006. In that letter he stated that, as far as the offence was concerned, he had been “foolish and drunk enough to submit to temptation” and that he had regretted it immediately.

12. By letter dated 19/9/2006 the Respondent issued a direction barring the Appellant from working with children. His name was placed on List 99 (the List). The direction was made on the grounds that the Appellant was unsuitable to work with children.

The Law

13. Appeal against this direction lies under s.144  of the 2002 Act and regulation 12 of the Education Regulations. If, on appeal, the Tribunal considers that the direction is not appropriate it may order the Respondent to revoke or vary the direction.

Evidence for the Respondent

14. Evidence was heard from Ms. Andrea Kleefstra who is a Senior Casework Officer in the Children’s Safeguarding Operations Unit at the Department for Children, Schools and Families, Darlington. Her statement appears at document 91 of the bundle. She told the Tribunal that the Respondent had carefully considered the question of risk before making the direction. It had considered that, although the conviction occurred some time ago, the circumstances of the offence were so serious in nature that the direction to place the Appellant on the List was appropriate. Due regard had been given to the passage of time but the facts pointed to the extremely serious nature of the offence that had been committed not only against a child but against a member of the Appellant’s own family. Also, consideration had been given to the impact of the direction on the Appellant’s employment prospects, but it was concluded that the effect would not be unduly limiting. In cross-examination Ms. Kleefstra was asked about the rules relating to reviews of directions and the fact that prospective employers can carry out CRB checks, indeed in some cases they have a duty to do so. Ms. Kleefstra confirmed that this was the case but pointed out that checks are not always made appropriately and that the Respondent had taken into account the wider reaching consequences of the Appellant’s conviction.  She confirmed that once a decision had been made to bar someone on the basis that they are unsuitable to work with children, it is irrelevant how much or how little time they spend with children. She was asked by the Tribunal as to what regard had been given to the fact that the Appellant had an unblemished record since the date of the conviction. Her response was that it had been considered but that it was ultimately decided that the nature of the offence had been so serious as to outweigh that fact.

Evidence for the Appellant

15. The Appellant gave evidence on his own behalf, giving details of his family circumstances and confirming that for 26 years he has, for the most part, been employed as coach driver. His current job is taking holiday tours to Spain. He told the Tribunal that to remain on the List would end his career. Since 1991 he stated that he had regularly transported children but not over the last 3 years because his present employer does not do school transport or similar work. It is purely concerned with transporting people to Spain. They are mostly adults but sometimes there are children. He confirmed that he had always consented to CRB checks but that if his name is maintained on the List he would not be able to get a job and, at aged 50 feels unable to learn new skills.

16. So far as the conviction is concerned, he says he feels disgust at having committed the offence and feels strongly that children should not be abused. He has had no contact with the girl involved after the offence. He was asked about his insight to the damage he may have done and responded that he appreciates that what he did was wrong and that he may have caused his step-daughter damage but does not know because he has had no subsequent contact with her. He accepted responsibility for the offence.

17. In cross-examination, the Appellant stated that he did accept that there will have been some impact on the child. He confirmed that he had never sought to hide the conviction and had always consented to CRB checks. He continues to work despite being on the List. He does, however, need to be removed from the List because, occasionally, the company for which he works at present is hired to take school trips abroad. He accepted that he mainly takes tours involving adults but said he could not speak as to what the future would require.

18. The Appellant was asked by the Tribunal as to his work history. In the period from 1991 to 2006 he has worked for 2 or 3 companies, only one of which has asked for a CRB check. The Appellant left that company 4 days after consenting to the check but that was because of false promises as to the nature of the work made to him by his employer, not the necessity to have a CRB check. He has never sought to hide his conviction. He has never received a copy of his CRB check. He told the Tribunal that to drive other large vehicles which do not transport people would require him to train for another licence. He confirmed that he had previously worked for a company that catered solely for adults but that he terminated his employment because he was away from home too much.

Tribunal’s Decision

20. The Tribunal cannot go behind the conviction in 1991. The offence of intercourse with a girl under the age of 16 is extremely serious per se. When it is committed by a person who is both an adult and a close member of the girl’s family it is also a gross breach of trust. The Tribunal accepted that the Respondent was remorseful and had had an unblemished record since 1991 but was not satisfied that that in itself could outweigh the seriousness of the original conviction.
Due regard was given to the Appellant’s undoubted regret but the Tribunal found that his insight into the potential impact on the girl concerned was questionable. Whilst regretting his actions he seemed to state that he was not aware of any impact his actions may or may not have had because he has had no contact with the girl since the offence took place. The Tribunal considered that to demonstrate a lack of insight into the potential harm caused to the girl.

21. The Tribunal considered the effect of the Appellant being placed on the List on his employment prospects. It did not accept that at age 50 he could not learn new skills. He already has the skill to drive large vehicles and it did not seem to the Tribunal to be overly onerous for him to extend that skill to driving other large vehicles which would not require him to come into contact with children. Furthermore, on his own evidence, he has previously worked for a company which catered exclusively for adults and, presumably, could do so again. The fact that he terminated that employment was a lifestyle choice made by him.

22. The Tribunal considered the question of risk to children. It is correct that after a gap of 16 years there may be a reduction in risk. It does not mean that there must be a reduction. The question of maintaining public confidence must be taken into account. The Tribunal agreed with their colleagues in CN v. Secretary of State - “We cannot underestimate the importance we attach to public confidence. When the Tribunal considers the question of unsuitability, it must look at the factual situation in the widest possible context.”

23. Taking all these matters into account, the Tribunal considered that the direction to place the Appellant on the List was reasonable and proportionate.

24. Accordingly, the appeal is dismissed. This is a unanimous decision.

Mrs. Carolyn Singleton
Ms. Denise Rabbetts
Mr. David Braybrook

24th August 2007.