BP v Secretary Of State for Health [2007] EWCST 1127(PC) (04 February 2008)

     Between

B.P. (Applicant)

-v-
The Secretary of State for Health
and Secretary for State for Children, Schools and Families (Respondents)
[2007] 1127.PC 
[2007] 1128.PVA 

Decision on an application to strike out
Before Maureen Roberts (Nominated Chairman)

A hearing held on the 1st February 2008 at the Social Security Tribunal Appeals Centre, Auchinleck House, Birmingham.

The Applicant appeared in person. 
The Respondent was represented by Mr P Ozin of Counsel instructed by Mr. T Jones of the Treasury Solicitors. 

1. The Applicant is appealing against the two decisions of the Respondent contained in a letter to the Applicant dated the 14th August 2007 (the decision letter); firstly (the first appeal) to confirm him on the Protection of Children Act List (the PoCA List), and secondly (the second appeal) to confirm him on the Protection of Vulnerable Adult's List (the PoVA List)
  
 2. The decision letter also notified the Applicant that the effect of inclusion on the PoCA list also meant that the Applicant would not be able to carry out work to which section 142 of the Education Act 2002 applies and that his name had been added to the Education Act List.

3. Having received the appeals the Respondent applied, by a letter dated the 24th October 2007 under Regulation 4A paragraphs 1 (b) (c) and (d) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal regulations 2002 (the Tribunal regulations) to have the appeals struck out on the grounds that they were misconceived, frivolous and had no reasonable prospect of success.
 
4.	The Applicant requested that a restricted reporting order was made and that the decision be published in an anonymised form. He said that he had been threatened on one occasion during the previous court proceedings. I therefore make a restricted reporting order under Regulation 18 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 (the Regulations), restricting the reporting of the name of the Applicant to his initials. Bearing in mind the Applicant’s request at the hearing and his written request for privacy made before the hearing I further order that the decision be published in an anonymised form, under Regulation 27 to protect the private life of the Applicant. 

Background

5.	The reason that the Applicant was placed on the lists was that in July 2006 he pleaded guilty to two counts of making indecent images or pseudo images of children contrary to s1(1) (a) Protection of Children Act 1978. On the 31st October 2006 he was sentenced at Birmingham Crown Court and was fined £300-00 and ordered to pay £100-00 costs. He was placed on the Sex Offenders register until July 2009. The Applicant is a man aged 42 with no previous convictions. The Applicant had been a scout leader until he resigned in October 2003, however he continued to be the musical director for the local Scout Gang show. The matter came to the attention of the Scout Association in July 2005 and they made a referral to the Respondent on 10th May 2007.

6.	The main ground for the application by the Respondent is that the appeal has no reasonable prospect of success. There are two elements that the Tribunal panel needs to consider.  Firstly whether the Applicant is guilty of misconduct which harmed a child or placed a child at risk of harm, and secondly whether the applicant is unsuitable to work with children or vulnerable adults.

7.	In relation to misconduct section 4(4) of the Protection of Children Act 1999 provides that, ‘where an individual has been convicted of an offence involving misconduct (whether or not in the course of his employment) which harmed a child or placed a child at risk of harm, no finding of fact on which the conviction must have been taken to have been based shall be challenged on an appeal or determination under this section. In other words, the Tribunal cannot go behind the facts of the conviction.

8.	The Applicant has to accept the conviction but he says that his conduct did not harm anyone nor place anyone at risk. He says that the description of the offence was not indicative of the nature of the offence, he was not subject to a ‘prevention order’, he was fined, and that he had been totally responsible during his twelve years of service to the Scouts.

9.	The Respondent says that the very fact of the conviction means that a Tribunal would find that he had been guilty of misconduct which harmed a child or placed a child at risk of harm and that the Applicant is unsuitable to work with children. Therefore the appeal has no reasonable prospects of success.
 
10.	Even if the Tribunal does not accept that argument the Respondent says that the facts in this case and the applicant’s attempts to minimise the significance of the convictions would lead to a finding of unsuitability. 

11.	I had a copy of the transcript of the sentencing hearing. The Applicant was sentenced for two offences, the images were of level 1, and the judge describes them as indecent but not grossly indecent. There was mention of 223 other images found on the Applicant’s computer; the applicant did not accept that he had downloaded these images. The judge declined to make an order disqualifying the Applicant from working with children under s28 CJCSA 2000; I appreciate that the test to be applied by a Tribunal is considerably wider when considering suitability.  As noted above the applicant was fined £300-00 and ordered to pay £100-00 costs. He was placed on the Sex Offenders Register until July 2009.

12.	The Respondent further submitted that the attitude of the Appellant as revealed in the transcript of the sentencing court and his grounds of appeal and other correspondence showed that he was in denial, not accepting what had happened, and disingenuous. I accept that the Appellant is trying to downplay the seriousness of what happened however this is a matter which would be assessed by a Tribunal panel.

13.	Finally I was directed to the other issues raised in previous strike out cases, namely, those of cost and closure.  

14.	The Appellant gave details of his work background and the circumstances of the offences. He said that he had never harmed children or vulnerable adults. At the time of the conviction he was working for a charity helping vulnerable adults as a result of the conviction he had lost that job. This was an area where wanted to return to work.

15.	 The Respondent’s provided copies of 19 precedents which included a number of decisions relating to strike-out applications. The applicant cannot avoid a finding of misconduct though he is arguing that no harm was caused. In light of the cases of CN v Secretary of State [2004] 398PC 399PVA and Q v Secretary of State for Education and Skills [2003] 206 PC he will struggle to succeed on that point.  I do not accept that the fact of a conviction such as the one in this case will inevitably lead to a finding of unsuitability. Further the suitability of working with vulnerable adults needs to be separately considered.

16.	The facts of this case are very similar to those of the recent case of Peach [2007] 1055.PVA 1056.PC.In that case the Deputy President said ‘Each of these cases must to large extent turn on their facts. There are going to be cases that are more serious than others. In many situations it is only when the evidence is heard that the position becomes clear one way or another. I do not see that the decision of the tribunal is a forgone conclusion. It is fair to say that I think Mr Peach (and in this case B.P.) may have an uphill struggle, I cannot say though, that I think that there is no reasonable prospect of success. It may depend, for example, on as yet unseen expert evidence of a Consultant Psychologist. ’ I consider that conclusion aptly fits this application.

17.	Therefore I find that there is not “no reasonable prospect of success” and I dismiss the application to strike out the appeal. The Respondent has 20 working days to file the Reply.

ACCORDINGLY THE APPLICATION TO STRIKE OUT IS DISMISSED  

Maureen Roberts
Nominated Chairman
4 February 2008