Michael O’Hara
 -v-
The Secretary of State for Education and Skills
[2006] 858.PT
Before:
Miss Maureen Roberts
Mr Richard Beeden
Dr Christopher Treves-Brown

DECISION
Hearing dates: 6 and 7 August 2007 at Care Standards Tribunal Pocock Street London
Appeal
1. On 18 December 2006 the appellant appealed, under section 144 of the Education Act 2002 and regulation 12(1) of the Education (Prohibition from Teaching or Working with Children) Regulations 2003, against the direction of the Secretary of State, given on 14 November 2006 under section 142 of the 2002 Act, that he may not carry out work to which that section applies.
Hearing
2. At the hearing the Appellant appeared in person. He represented himself and gave evidence. Throughout the hearing he called himself and answered to the name Michael O’Hara and we use that name throughout this decision in respect of the person before us.
3. The Respondent was represented by Miss Kate Olley of Counsel instructed by Miss Naomi Kinsey of the Treasury Solicitor. Miss Elizabeth Brass a member of the Children’s safeguarding unit at the Department of Education gave evidence for the Respondent.

4. The Appellant raised, as a preliminary point, the fact that he had supplied additional information to the Respondent and that under regulation 9 of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 the Respondent should review his decision. He wanted the hearing adjourned and asked the Tribunal to require the Respondent to review the matter. We set out the relevant regulations in paragraphs 35, 36 and 38 below. The additional information and documents were not in the Bundle of evidence but had been listed in the Respondent’s reasons for opposing appeal.  After submissions we ruled that it was not a matter for us. It was for the Appellant to apply to the Respondent to request a review of his decision.
Reasons for the Respondent’s decision and the issues
5. The Respondent’s letter to the Appellant of the 14th November 2006 set out the matters taken into consideration for including him on List 99. They were:
‘your conviction for fraud in Australia; your dismissal from Lilydale High School (Australia) for not declaring the conviction; the fact that you failed to mention this when applying for a teaching post in England and that you claimed a false Teacher’s Reference Number.’
6. The letter went on to say: ‘Additionally, account has been taken of your extensive representations including your former wife’s affidavit, personal information detailed in your CD Rom entitled ‘Friends’ and the testimonials you have supplied.
7. The Tribunal saw all the documents submitted to the Respondent. The Respondent placed the Appellant on the ‘List 99’ on the grounds of misconduct. It was our understanding that  the Respondent’s view is that the behaviour set out in paragraph 5 above fell so far short of the professional standards required of teachers (see paragraph 42 and as promulgated by the General Teaching Council)  that they amounted to misconduct not-with-standing the factors set out in paragraph 6 above given in mitigation.
8. The Appellant’s case was that the truth of his birth and identity was not known to him. He had been brought to England as a baby or very young child and raised in that country. He was home educated and became a professional footballer in 1960. He went to live in Australia in late 1966 to further his professional football career. From 1966 to 1987 he had been an operative for MI6 and from the late 1980s to the present day had been employed by the Israeli secret services and was a member of the Jewish Defence League. All the allegations made against him arose out of incidents relating to his operational activities. 
9. The issues before the Respondent and the Tribunal were:
	a. Had the Appellant been convicted by the Melbourne Court of 18 charges of fraud in November 2002?
	b. Had the Appellant failed to declare that conviction to his employers at Lilydale High School, Victoria Australia where he was employed from 14 March 2003 until his dismissal on 3 April 2003?
	c. Did the Appellant fail to declare this same conviction and dismissal from Lilydale High School to Downlands School Wiltshire U.K. when he applied for and subsequently took up a post at that school via the agency Capita Education Resourcing (Capita)?
	d. Had the Appellant used a false Teacher’s training certificate number in his application for the job at Downlands School?

The background
10. The tribunal had read the bundle of documents and the Appellant’s autobiography entitled ‘Friends’ (this had been printed off the CD Rom supplied by the Appellant) before the hearing.
11. From all that we had read it was evident that the Appellant came from a troubled background. He did not know his identity and believed that he might be the son of Hitler from a liaison with Emmy Goering and have a birth date of 1939. In the documentation we saw several different birth dates used by the Appellant, for example, 22 May 1941given in Australia, 14 September 1951 given in the application to Downland School also 2 September 1946. He also had a number of aliases; Mark Layton Beasley, Charles Anthony Mathews (referred to in the Appellant’s autobiography, Friends) and Zev Gideon Korwan were all mentioned at various points in the documentation. 
12. It was evident from newspaper cuttings in his autobiography that as Michael O’Hara he had played football for Luton Town Football club from 1960 until 1962 and thereafter for other English football clubs until he moved to Australia in late 1966.It was at this time that he said that he was recruited by MI6.
13. He claimed to have done some teaching in the late 1960’s and from 1972 to 1985 he appears to have taught in Roman Catholic faith schools in Australia. After that he taught in his swimming academy run as a commercial enterprise with his wife and then in other secondary schools or colleges. His autobiography records him marrying in 1975 and there is reference to him having four children. He and his family moved from outside Melbourne (Victoria State) to outside Brisbane (Queensland State) in about 1999 or 2000.  At some point between then and 2002 he was separated or divorced from his wife.
14. On the 22 November 2002 the Appellant in the name of Michael O’Hara was convicted of 18 charges of fraud in the Melbourne court. He was given a six month suspended prison sentence. The charges arose after the Appellant had tried to sell two guns which he claimed had belonged to Hitler. These claims had been backed by forged documents. 
15.  From March 2003 until April 2003 the Appellant worked for Lilydale High School in Victoria Australia. He came to the UK in the summer of 2003 and worked at Wembley High School in Brent Local Authority for a short time through the agency “First Class Education”. This employment was terminated when the school discovered information about him on the internet which the headteacher considered made him unsuitable to continue to work for them. The headteacher stated that she had informed the agency and the Local education Authority of this information.
16. He was then recruited as a teacher for the Downland School in Wiltshire by the Capita agency. Downland is a community special school for secondary age boys with educational and behavioural disorders some of whom are boarders. The Appellant took up his duties for them on or about the 9 September 2003.  
17. On 20th October 2003, after he had been at the school for some weeks a member of staff found the Appellant’s name on a web site which revealed his conviction in Melbourne and gave information about his beliefs about his identity and links with the Jewish Defence League. This was brought to the attention of the school head teacher and in due course after an investigation and two internal appeal hearings the Appellant was dismissed from his post and his dismissal referred to the Respondent on the 5th January 2004. In due course he placed him on the List 99 and this appeal was made by the Appellant.
18. The Tribunal noted that the Appellant was arrested by the Wiltshire Police and charged with obtaining pecuniary advantage by deception by working at the school with false documentation. Subsequently the Crown Prosecution Service decided not to proceed with the charges.
The evidence
19. Miss Brass on behalf of the Respondent had given a witness statement outlining the information she had obtained before compiling her report to the Respondent and the procedure followed by the Respondent. She said very clearly that neither she nor her team are investigators, merely gatherers of information.  She had all the papers from Wiltshire County Council of their investigations and the documents from the appeal hearings, copies of internet searches, witness statements from the Police and the interview of the Appellant by the police.
20. She had received a report from the Wiltshire Police confirming the Appellant’s conviction in Australia. She had obtained a letter from the Victoria Department of Education and Training confirming that the Appellant had been dismissed from Lilydale School for failure to disclose his conviction. The Tribunal had both these documents.
21.  With respect to the qualifications submitted by the Appellant, the Teacher reference (61/ 01156) the Appellant was using belonged to a man named Mark Layton Beasley as did the Certificate in Education provided by Birmingham University.  Checks revealed there is a Mark Beasley who qualified as a teacher and worked in the UK for a time and then in Bermuda. Checks with the Australian education departments revealed that the Appellant was not registered as a teacher in Queensland but was registered in Victoria using the above certificate. Victoria state education authorities stated that the Appellant had informed them that he had changed his name from Mark Layton Beasley to Michael O’Hara in 1977.  
22. Miss Brass summarised the Appellant’s response to initial listing and we saw that response together with the additional references and testimonials provided by him and an affidavit by his ex-wife in his support. Miss Brass had read the Appellant’s book ‘Friends’.
23. Miss Brass said that she had concluded that the Appellant had been convicted in Melbourne in November 2002 and had failed to declare the conviction to Lilydale High School. 
24. She said that the failure to disclose to Downland School was more complex as the Appellant had been recruited by an agency and after a telephone interview. The school head who had carried out the telephone interview, with a colleague, stated that he had ticked the ‘police ‘question in his interview notes. In any event Miss Brass considered that whether he was asked or not, and she believed he had been asked, he was under a professional duty to declare his convictions and provide an accurate CV of his previous employment. He had done neither.
25. The Appellant declined to provide a witness statement. He said that his evidence was in the book, Friends and in the documents in the bundle. The Respondent and the Tribunal read these documents. When he came to give evidence therefore, we took the documents as his evidence in chief and the Respondent and the Tribunal asked questions to clarify certain matters.
26. In his evidence the Appellant told the Tribunal that he did not know his true identity and that he believed that he had been brought into this country as a child. He claims that only the British Government knows who he is. He said was recruited by MI6 in the late 1960s and that this terminated in 1987 after a disagreement with the service. He confirmed that he had 16 birth certificates and 19 passports which were all required for operational purposes. He now worked for Metsava a part of the Israeli secret service and was a member of the Jewish Defence League.
27.He accepted that he had been convicted in Melbourne but insisted that this was as part of an operation that had gone wrong. He repeatedly pointed out that a Victoria police conviction print out dating from March 2003 did not show his conviction in Melbourne in November 2002. However, it did show two minor convictions, one in 1967(using offensive language in a public place) and one 1975 (making a false declaration and making a false statement).
28. He said that he did not declare the conviction to the Lilydale High School because he ‘had no conviction…no conviction was recorded on any data base’. By this we took him to be referring to the Victoria state police print out. He accepted that he had been dismissed from that school.
29. With respect to his CV, the Respondent and the Tribunal saw three different CVs listing the Appellant’s previous employment. There were differences and discrepancies in the Appellant’s CVs and neither of those that should have disclosed his employment at Lilydale High school did so. The Appellant pointed out that he had frequently undertaken short term contract employments (supply teaching) and had not included any of them in his CV because to do so would have made the CV far too long. In his view his employment at both Lilydale and Wembley High School fell into that category. 
30. The Appellant was asked on a number of occasions as to whether he had attended a teacher’s training establishment in the Midlands from 1961 to 1964. Initially he refused to answer and then said that the ‘official line’ (i.e. the one that he was expected to offer by the 
security authorities who had arranged this 'cover') was that he was to say that he had attended the college.
31. He said that he had not told Downland School or the agency about the conviction in Melbourne or the previous dismissal because he was not asked about them and he maintained that the Victoria police record dated March 2003 did not show the conviction of 2002.
The law
32. Section 142(1)(a) of the Education Act 2002 provides that the Secretary of State, in relation to England, may direct that a person may not carry out work to which section 142 applies. This is the process widely referred to as "placing a teacher's name on List 99". Section 142 applies to the provision of education at a school and elsewhere. 
33. Section 142(4) of the 2002 Act provides that a direction may be given in respect of a person only on the specified grounds. These are:
a.	grounds that the person is unsuitable to work with children; 
b.	grounds relating to the person's misconduct; 
c.	grounds relating to the person's health; and 
d.	in the case of a person taking part in the management of an independent school, grounds relating to the person's professional incompetence. 
Thus, the Secretary of State must be satisfied that at least one of the specified grounds exists before he can exercise the statutory discretion provided for in section 142(1).
34. Section 144(1)(a) of the 2002 Act provides that a person in respect of whom a direction has been given under section 142 may appeal to the Tribunal against the decision to give the direction.
35. Regulation 12(1) of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 also provides that an appeal to the Tribunal may be brought by a person in respect of whom a direction has been given under section 142 of the 2002 Act against such a direction. By regulation 12(2), no appeal may be brought on the ground of information or evidence referred to in regulation 9(2) unless that information or evidence has first been brought to the attention of the Secretary of State under regulation 9.
36. Regulation 9(1) of the 2003 Regulations provides that a direction given under section 142 of the 2002 Act ("the earlier direction") may be revoked or varied by a subsequent direction on either or both of the grounds referred to in regulation 9(2). The grounds referred to in regulation 9(2) are that the Secretary of State is in possession of information relevant to the decision to give the earlier direction which he or she did not have at the time the decision was made and that the Secretary of State is in possession of evidence of a material change of circumstances of the person concerned occurring since the earlier direction was given.
37. Regulation 13(1) of the 2003 Regulations provides that, where on an appeal under regulation 12 the Tribunal considers that the direction is not appropriate, it may order the Secretary of State to revoke or vary the direction.
38. Regulation 13(2) provides that the Tribunal shall not, in exercising its powers under regulation 13, consider any information relevant to the decision to give a direction which the Secretary of State did not have at the time the decision was made, or evidence of a material change of circumstances of the person concerned, occurring since the decision to give a direction was made.
39. Thus the Tribunal is, in this instance, confined to conducting a review of the decision made by the Secretary of State. The Tribunal is not empowered to re-hear the case or to determine the primary facts. It is required, in effect, to decide whether the Secretary of State had sufficient evidence upon which to base a determination that the specified ground relied upon existed and, further, to decide whether the direction was an appropriate or proportionate response in all of the circumstances known to the Secretary of State.
40. We accepted that the Secretary of State had the burden of showing that his decision was appropriate.
41. The question whether the decision was appropriate has to be viewed in the context of the purpose of restricting a person's employment. In Mason v Secretary of State (2001) 0078 it was submitted that that purpose is twofold - first, the protection of children and, secondly, the maintenance of public confidence in the education system. The Tribunal accepted that this was "the correct approach".
42. It follows that, when considering whether a direction is or is not appropriate, the Tribunal should not proceed on the basis that the restriction was imposed as a penalty for past misconduct but should decide whether the restriction is an appropriate measure to ensure, so far as possible, that children will be properly protected and that reasonable parents and other interested parties will not have their confidence in the education system diminished in the future.
43. "List 99" is a confidential, not a public document and information as to whether an individual has been made the subject of a direction under section 142 of the 2002 Act is supplied only to those who have a proper interest in receiving it.
Conclusions with reasons
44. While there continued to be doubt about the Appellant’s identity, the Tribunal find that the man who appeared before them called Michael O’Hara was the man convicted in the Melbourne court. He is the man who taught in Lilydale High School until he was dismissed from that post. He is the man who taught at Downland School Wiltshire until he was dismissed from that post.
45. The Tribunal was satisfied that the Respondent had ample evidence upon which to base his conclusion that the Appellant had been convicted in the Melbourne court and failed to declare that conviction to Lilydale High school. Further that he was dismissed from that school because of the failure to disclose the Melbourne conviction.
46. It was equally clear that the Appellant had not told the agency Capita or Downland School about the conviction or previous dismissal. The Respondent acknowledged that there was some doubt whether he was asked the question. We accept that the Respondent had sufficient evidence to conclude that the Appellant had been told that he would need to provide police checks and that his criminal record would be checked. We further accept that with that warning the Respondent is right to expect someone purporting to be a professional teacher to declare previous offences and to give a correct CV with his employment record. 
47. Whilst as an expert tribunal we agree it would be unusual for all the schools worked at during periods of supply teaching to be named or detailed in a CV we would expect the fact that supply work or short period contracts had been undertaken at various times to be clear and not to do so is at best misleading. However he did not explain why he had indicated continuous full time employment which included these short contract periods and as a consequence his CV was misleading and unprofessional. There is no doubt in the Tribunal’s mind that any school from which an applicant has been dismissed should be detailed and an explanation given to allow the prospective employer to make up their own mind about its relevance. His CV fell well short of an appropriate professional standard.
48. We noted the Respondent’s views about the validity of the teaching qualification that lies behind the teacher reference number being used. Having heard the Appellant on his issue and read his evidence in chief we conclude that he had not attended any teachers training college in the Midlands or Birmingham or Stafford between 1961 and 1964 or indeed any other institution in the UK where a course of study might lead to qualified teacher status. The Respondent did have sufficient evidence to conclude that he was using a false Teacher’s reference number in that it did not belong to him. 
49. We note in passing that the agency Capita failed to follow through on the police checks or references which included Wembley High School. Downlands School were told that the checks were being done. In fact Capita were having great difficulty getting the necessary information from the Appellant. No member of Capita staff interviewed him in accordance with their policy: we accept that the Appellant avoided attempts to meet him. It appeared to us that no reference was obtained from the referee given by the Appellant, namely Wembley High School. 
50. The Respondent therefore had a proper basis for his decision that one of the specified statutory grounds existed for the exercise of the statutory discretion provided for in section 142(1) of the 2002 Act (i.e. grounds relating to the appellant's misconduct).
51. In Moseley v. Secretary of State [2002] 1 PC the Tribunal observed that
"The role of a teacher in society is an important one and parents and the general public expect and are entitled to expect high standards from teachers. A teacher is placed by the parents of the children in a position of trust and responsibility and a teacher must be able to demonstrate those qualities not only in their professional spheres of work as a teacher but also in their personal conduct. Teachers are perceived as role models for children and trust and honesty are core values which underpin the status of teaching as a profession."
The Tribunal adopted these observations as appropriate in the different circumstances of the present case.

52. The Tribunal was satisfied that the Respondent properly considered the factors regarded as relevant in Mason v. Secretary of State in so far as they related to the particular facts before him in this case; conducted a proper assessment of the conduct and rightly concluded that the direction was an appropriate and proportional response and should be made. 
53. We make it clear that there is no evidence that the Appellant is a physical risk to children but that the listing arises from professional misconduct.
54. The Tribunal therefore decided to dismiss the appeal.

55. The decision of the Tribunal was unanimous.  

Order  
Appeal dismissed. 

Miss Maureen Roberts
Mr Richard Beeden
Dr Christopher Treves Brown
21 August 2007