Davies v Secretary Of State for Children, Schools and Families [2007] EWCST 1129(PC) (30 September 2008)

Leigh Stephen Davies
-v-
The Secretary of State for Children Schools and Families 

Application No.  [2007] 1129.PC

Leigh Stephen Davies
-v-
The Secretary of State for Health

Application No.  [2007] 1130.PVA

Before:
Mr John Reddish (Chairman)
Mrs Carol Caporn
Ms Jennifer Cross

Hearing dates: 6, 7, 8, 9, 12, 13, 14 May 2008; 10 June 2008 and 1 and 2 September 2008

Application
On 27 September 2007 the applicant appealed under section 4(1)(a) of the Protection of Children Act 1999 against the decision of the Secretary of State for Children Schools and Families to include him in the list kept under section 1 of the Protection of Children Act 1999 (the “POCA” list) and also appealed under section 86(1) of the Care Standards Act 2000 against the decision of the Secretary of State for Health to include him in the list kept under section 81 of the 2000 Act (the “POVA” list).

Representation
At the hearing Miss Rosina Cottage of Counsel, instructed by Miss Natalie Cohen of the Treasury Solicitors, represented the Secretaries of State.  Mr Jonathan Landau, a Barrister employed by Messrs Ridouts, Solicitors represented the applicant.

The evidence
The Tribunal heard oral evidence on behalf of the Secretaries of State from:
Mrs A., the mother of a judo player coached by the applicant from 1992 until 2003;
Mr Stephen Davidson, a Detective Constable in the joint Police and Social Services Child Protection Team;
Mrs B., a judo referee and judo refereeing examiner and the mother of Miss B;
Miss B., a former judo player who was coached by the applicant from 2002 until 2003;
Mr Graeme Randall, the High Performance Judo Coach at the Scottish Institute of Sport, formerly the British Judo Association World Class Start Coach;
Mr Paul Thawley, a Chartered Physiotherapist at the Olympic Medical Institute at Northwick Park Hospital in Harrow;
Miss C., a former judo player who was coached by the applicant from 1998 until 2003;
Mr C., a driving instructor and father of Miss C;
Mrs C., mother of Miss C;
Mr D., a housing manager and a judo coach who was coached, as a player, by the applicant from 1981 until 1990;
Ms Rowena Birch, the British Judo Association World Class Start Manager in charge of the English National Judo Squad programme for girls and boys aged between 12 and 18, formerly the National Coach of the Great Britain Girls’ Cadet Squad;
Mr Scott McCarthy, the Chief Executive of the British Judo Association;
Dr Craig White, the Chief Medical Officer to the British Judo Association; and
Mr Ben Ashworth, the Lead Physiotherapist for the English Institute of Sport who was formerly employed by the British Olympic Association, undertaking part-time duties as a physiotherapist at the Olympic Medical Institute at Northwick Park Hospital in Harrow.

The Tribunal also received written evidence on behalf of the Secretaries of State from:
Mr Garry Dickinson, a Police Constable with Humberside Police, East Yorkshire Roads Policing Team;
Ms E, the Primary Secretary at an independent school where the applicant undertook judo coaching;
Miss Natalie Cohen of the Treasury Solicitors;
Ms P., a former junior international judo player who was coached by the applicant from 1998 until 2002;
Ms Q., a former judo player who was coached by the applicant from 1994 until 1998;
Ms R., an accounts manager and a former judo player who was coached by the applicant from 1983 until 1989;
Ms S., a project manager and a former junior international judo player who was coached by the applicant from 1983 until 1998;
Mr S. (brother of Ms S), a personal trainer and a former junior international judo player who was coached by the applicant from 1981 until 2002;
Ms T., a child care worker and former judo player who was coached by the applicant from 1989 until 1995;
Ms U., a student and former judo player;
Ms Julia Moores, the Member Services Director of the British Judo Association; and
Mr David Sanders, the Programme Manager of the British Judo Association.

The Tribunal heard oral evidence on behalf of the applicant from:
the applicant himself;
Mr F., a former judo player who was coached by the applicant from 1982 until 1987;
Ms G., a gymnasium manager and former international judo player who was coached by the applicant from 1985 until 2001;
Dr H., a Senior Lecturer in Psychology and a judo player and coach;
Mrs J., a registered childminder and mother of Miss J., a junior judo player who was coached by the applicant from 2003 until 2005;
Mr K., an operations manager and a judo referee and coach;
Mr L., a student and an international judo player who was coached by the applicant from 1996 and who still regards the applicant as his coach;
Mr M., a university student and an international judo player who was coached by the applicant from 1991 and who still regards the applicant as his coach; and
Mrs L., a massage therapist and student of psychotherapy and mother of Mr L.

The Tribunal also received written evidence on behalf of the applicant from:
Miss J., a judo player who is 13 years old and who was coached by the applicant from 2003 until 2005;
Ms Lesley Ann Alexander, the Chief Executive of a national charity who is a former Chairman of the British Judo Association and the applicant’s sister;
Mr N., an Olympic medallist in judo and a judo instructor;
Mrs O., the mother of two judo players who were coached by the applicant from December 2004 and who still attend the Judo club;
Mr X., a judo player who was coached by the applicant from 1996;
Mrs X., mother of Mr X;
Mr Jan Nevill, a freelance photographer who took photographs of the applicant and members of his Judo club in May 2007;
Ms JJ., a judo player and current member of the Judo club who was coached by the applicant in 1998;
Mrs CC., the mother of a current member of the Judo club;
Mr DD., a current member of the Judo club;
Mrs EE., the mother of a current member of the Judo club and a Club Welfare Officer;
Ms FF., a judo tournament director; and
Ms GG., a judo coach and the mother of former members of the Judo club.

The Tribunal also read the documents submitted by the parties comprised in six binders, sub-divided into 19 sections and including correspondence; documents from the Social Services Departments of three local authorities; notes and transcripts of interviews with judo players and school pupils; responses to Social Services’ questionnaires by school pupils and their parents; minutes of Social Services’ strategy meetings; reports, correspondence and policy documents from the British Judo Association; various newspaper articles; a transcript of the applicant’s interview by police officers; various certificates awarded to the applicant and other, miscellaneous documents.  During the hearing the Tribunal received and read further documents produced by the parties including supplementary witness statements; the information in writing sent to the applicant by the Secretaries of State; responses to questionnaires sent out by the applicant to the officers and coaches of judo clubs throughout the country; printed copies of internet sites maintained by judo clubs, news organisations and others and copies of the records kept by the applicant of the results achieved by players from the Judo club in 1988, 1996 and 2003.

Preliminary matters
On 11 December 2007 the President made an order, pursuant to regulation 18(1) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, prohibiting 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 the identify any child, the applicant or any non-professional adult witness.  That order applied until the conclusion of the hearing.  The Tribunal decided to extend the order indefinitely in respect of any child or non-professional adult witness.  The Tribunal was satisfied that such an order would be appropriate to safeguard the welfare of the persons concerned and to protect their private lives.  The Tribunal further decided, in response to submissions by the representatives of both parties, not to extend the restricted reporting order in respect of the applicant himself.

Also on 11 December 2007 the President made an order, at the request of the applicant and pursuant to regulation 19 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, that members of the press and members of the public be excluded from all of the hearing.  The Tribunal amended that order to permit Ms V, the applicant’s partner and the mother of his three younger children, to attend the hearing.

At the hearing Mr Landau applied, on behalf of the applicant, to call Miss J to give oral evidence in person to the Tribunal.  Miss J is a child, aged 13.  In accordance with regulation 17 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, the Chairman gave the parties an opportunity to make representations.  Having heard those representations and having considered all of the available evidence, the Chairman concluded that Miss J’s welfare would probably be prejudiced by giving oral evidence in person.  Accordingly, the Chairman directed that Miss J should not give oral evidence and that her evidence should be confined to the written statement made by her and submitted to the Tribunal on behalf of the applicant.

Facts
The material facts found by the Tribunal were as follows:

1.	The applicant was born in 1958 and is now 50 years old. 

2.	In 1979 the applicant and his sister founded a Judo club in London.  They provided instruction and coaching for judo players at all levels.

3.	In 1981 Mr D began attending sessions at the Judo club.  He was coached by the applicant in a beginners’ class.  These classes were relaxed and “fun”.  Mr D was enthusiastic and showed an aptitude for the sport.  He then began attending classes run by the applicant for more advanced players.

4.	The applicant’s attitude in the more advanced classes was different.  He shouted more and exerted tighter control over his pupils, encouraging them to train hard and to compete vigorously and aggressively.  Most of the pupils accepted the applicant’s authority and showed respect and deference towards him.  However, some pupils, who occasionally challenged the applicant, were subjected to verbal abuse and, sometimes, humiliation.  Mr D perceived that the applicant deliberately humiliated a particular individual in order to ensure that the other members of the group would not challenge him for fear of being subjected to the same treatment.

5.	As players at the Judo club progressed, the applicant entered them into local, regional and national competitions.  Since few of the young players were directly supported by their parents, the applicant frequently transported all of them to the competition venues in his own car.  The applicant’s car was frequently overloaded.

6.	On an occasion in or about 1983 Mr D lost in the final of a local competition and became distressed.  Mr D recalls that the applicant reacted furiously.  He picked up Mr D and shouted at him.  As a result, Mr D became more distressed and dismayed and, for a time, resolved to give up judo.  The incident made a lasting impression on Mr D.  However, he was persuaded, by the applicant’s sister’s partner, to carry on with the sport and he subsequently achieved considerable success and satisfaction as a competitor, coached by the applicant and, later, as a coach at a club which he founded.

7.	During the 1980’s and at all times thereafter, the applicant emphasised to his players the importance of weight control.  In judo competitions, players are, in junior and senior competitions alike, classified according to their body weight.  A player whose weight is just under the prescribed limit has an obvious advantage.  The applicant was always keen to ensure that his players would have every available advantage in competitions and so required those whose weight was close to the limit to make sure that they did not add any extra weight.  This often provoked them to starve themselves of food and drink until after the “weigh-in” for the competition.

8.	Sometimes the applicant required his players to lose weight so as to retain their advantageous places in particular categories or because he had more than two players available to compete in one category.  The method adopted was dehydration.  This was commonly achieved by vigorous exercise while wearing an impermeable plastic material (usually a “bin bag”) next to the skin, covered with layers of clothing.  This process was, and is, known as “sweating off”.  It is effective in the short term.  A fully-grown adult can lose as much as three or four kilograms by perspiring heavily and abstaining from drinking for a protracted period.  The applicant shared the commonly held misconception that “sweating off” could also produce sustained weight loss over a longer term.  Weight loss by dehydration was not confined to the applicant’s Judo club.  It was a widespread practice in judo and other “weight-controlled” sports such as boxing and horse racing.  The applicant facilitated regular  “sweating off” by his players.  He made sure that there was a plentiful supply of “bin bags” on the club premises and he instructed those at risk of failing to “make the weight” to use them.  However, the applicant did not permit players to wear “bin bags” on the judo mat.  He required them to take the necessary exercise elsewhere.

9.	It is now widely recognised that “sweating off” can be very dangerous for young players.  A rapid loss of more than 2% of body weight results in loss of strength and coordination and a similar loss of more than 5% of body weight gives rise to a risk of serious injury and life-threatening illness.   However, before October 2004 these facts were not widely known; there were no published guidelines and rapid weight loss was not uncommon amongst elite judo players.

10.	In October 2004 the British Judo Association issued a document entitled “World Class Start Weight Policy” in which they referred to “an unacceptable pressure for children to lose weight”.  They said that “the forcing, coercing and pressurising of children to lose weight through dehydration [was considered to be] a form of child abuse” and that “making weight by dehydration (e.g ‘sweating off’ or not taking on necessary fluid)” would not be allowed at any event.  

11.	Mr D recalls that the applicant and his associates resorted to other measures to ensure weight loss, including the administration of laxatives and diuretics.  He says that, on one occasion in 1985, at the family home of Mr F, he and others were given tablespoons of lemon curd laced with a diuretic.  Mr D does not accuse the applicant of being directly responsible for this but says that he was complicit in this administration of a drug to achieve weight loss.  The applicant strenuously denies any involvement in the administration of drugs to his players and asserts, by reference to the dire consequences of such drug use being discovered, that he would never have taken such a risk.

12.	Many of the young players coached by the applicant had no difficulty with their weight but others, who were close to, or just over, the various prescribed limits, frequently had to “sweat off” weight.  They often found the process arduous and debilitating but they chose to undertake it so as to comply with the applicant’s requirements and to achieve success as part of his team.

13.	By the end of the 1980’s the applicant had achieved considerable success as a coach and his players had won many national medals and awards.  The applicant then adopted even more rigorous and aggressive training methods so as to achieve even greater success for his protégés.  He used every available means to motivate his players to become fitter, stronger, and more combative, though not necessarily more skilful, than their opponents.  He required them to train and practise regularly.  For several months before the National Championships, held each year in November, the applicant required his players to train or compete on every day.

14.	The applicant generally maintained a tough exterior and was dismissive of those who failed because of a perceived lack of effort.  However, the applicant could also be supportive and sympathetic.  In November 1985, Mr D lost in the semi-finals of the Junior National competition.  He was distraught and told the applicant that he had “let him down”.  The applicant comforted Mr D and reassured him that he had not let anyone down and later presented him with the Judo club’s coveted “Fighting Spirit Award”.  Mr D remains grateful to the applicant for his understanding at that time and for the applicant’s recognition and enhancement of his determination to succeed despite the reverses he experienced.

15.	In 1986 the applicant gave up his job with one of the clearing banks to become a full-time judo coach.  He worked hard to make his club one of the best in the country and to fulfil his missions to provide “comprehensive instruction of Judo for all”, “to produce an Olympic Champion for Great Britain” and to build a judo club for his borough, city and country to be proud of.

16.	As the years passed there was a perceptible change in the atmosphere at the Judo club.  By 1995 there were many more players attending the sessions.  The training regime had become even more intensive.  The players were more competitive and more successful than ever.  The applicant appeared to be obsessed with the idea of having his players in as many of the weight categories as possible when selections were made for the area and national “Cadet” (under 18) squads.

17.	During the 1990’s several young people coached by the applicant achieved recognition as formidable judo players.  The applicant insisted upon regular and frequent competition for his elite players.  He required them to press on even if tired or hurt.  He would not tolerate any show of weakness and was dismissive of complaints that his regime was too rigorous.  He pushed his players to the limits of their endurance and showed no sympathy for them if they sought respite.

18.	From 1992 Mrs A regularly attended the Judo club in support of her son who was being coached by the applicant.  Mrs A noticed that the applicant discouraged parental involvement and that his “star” players were children whose parents had little or no involvement.  She also saw deliberate humiliation of individual children by the applicant.  Mrs A tackled the applicant about this.  The applicant made it clear that this was a deliberate strategy to instil fear into the other players and to ensure that they would train harder to avoid being singled out for harsh treatment.

19.	The applicant persistently urged players to “carry on regardless” and told them that “only babies cry”.  He frequently cited Ms S as an example to be followed because she had suffered a broken bone in her wrist but had fought on and had displayed a commendable degree of determination.  On an occasion in 1993 Mrs A was present when her son, who was then 11 years old, fractured his collar bone during a training session.  She saw the applicant standing over her son telling him to get up even when it was obvious that he had suffered a serious injury.  Mrs A was appalled that the applicant had neither examined her son nor called for assistance but had ordered him to get up and continue.  Following this incident Mrs A introduced an accident book to the Judo club but it was rarely used.

20.	On one occasion in 1995 the applicant punished a young player, who had defied him by attending a party contrary to his instructions, by withdrawing him from the forthcoming National Championships.  This caused the child, who had been training hard in preparation for the competition, considerable distress.  Mrs A warned the applicant that the child’s father was planning to complain to the British Judo Association about his behaviour.  The applicant appeared unconcerned and told Mrs A that he had nothing to fear from the BJA because his sister was the Chairman and his own influence there was considerable.

21.	By 1995 the Judo club’s mini-bus, donated by the Variety Club of Great Britain some years earlier, had been used very heavily and had not been properly maintained following the departure from the club of a child whose father had voluntarily undertaken the necessary servicing and repairs.  Mrs A noticed that the tyres fitted to the vehicle were worn and bald.  She confronted the applicant and threatened to stand in front of the bus to prevent him driving it away until he replaced the tyres.  If Mrs A had not intervened, the applicant would have continued to drive the bus unlawfully.

22.	In October 1996 a group of parents of children who attended the Judo club approached Mr D and suggested that he might consider establishing another club using training methods which were not so intensive or relentless as those employed by the applicant.  They recognised that Mr D coached in a different way and focussed more on technique.  They felt that such an approach would be more suited to the needs of their children.  Mr D relayed these parents’ concerns to the applicant.  The applicant demanded to know the identities of the parents involved and, at the next club training session, he required their children to leave the Judo club.

23.	In the summer of 1998 Mr and Mrs C brought their daughter, then aged nine, to the Judo club to be coached by the applicant.  Miss C had been a judo player for nearly three years in less competitive clubs and her parents were keen for her become more successful.  Mr and Mrs C’s first impressions of the Judo club were favourable.  Miss C soon achieved success and became part of the applicant’s elite squad.  Mr and Mrs C were regular and vociferous supporters of their daughter.  They entertained some concerns about the applicant’s coaching methods and they were uneasy about the perception that the applicant was encouraging anger and aggression in his pupils.  Nevertheless, they fully supported their daughter in her determination to achieve success in judo.

24.	In June 2000 the applicant took a group of 14 young players, including Miss C, to a weekend tournament in Paris.  They travelled in the club mini-bus. Miss C had been invited to join a school trip to Normandy during the week following the Paris tournament.  The applicant agreed with Mr and Mrs C that he would return Miss C to England on Sunday 18 June 2000 so that she would be able join her school friends on the following day and travel back to France.  When travelling to Paris on Saturday 17 June 2000, the mini-bus caught fire in dramatic circumstances.  The applicant instructed the children to say that the mini-bus had simply broken down and not to reveal what had really happened, on pain of expulsion from the club.  The applicant’s wife had to hire a replacement vehicle in England and to travel to France to collect the applicant and his players.

25.	On Sunday 18 June 2000 Mrs C telephoned the applicant to check that all was well and that Miss C would be returning on that evening as planned.  The applicant told Mrs C that the mini-bus had broken down and he was waiting for his wife to arrive with a replacement vehicle.  Mrs C suggested that she and/or her husband should travel to France to collect Miss C.  The applicant said that this would not be necessary because he would take Miss C to join her school party in Normandy.  Mr and Mrs C then made arrangements for Miss C to join her school party in France on Monday 19 June 2000.

26.	At about 6 p.m. on Monday 19 June 2000 the applicant telephoned Mr C from France and informed him that he would not be able to take Miss C to Normandy to join her school party after all but would bring her back to England with the other children.  Mr C expressed his dismay; accused the applicant of gross irresponsibility and abruptly terminated their telephone conversation.  Mrs C then spoke to the applicant by telephone and arranged for him to deliver Miss C to her father in Dover.  The applicant later informed Mrs C by telephone that he was unable to find a place on a ferry and was effectively stuck in Calais.  Mrs C informed her husband by telephone of this development and Mr C made his way to Calais via the Channel Tunnel to collect his daughter.  While Mr C was in transit, the applicant telephoned Mrs C again to inform her that he had, after all, secured a place on a ferry and would shortly be making the crossing.  Mrs C protested that Mr C was already on his way to Calais.  After some discussion it was agreed between the applicant and Mrs C that the applicant would leave Miss C in some suitable place in the ferry terminal in Calais.  The applicant and his wife left Miss C in the ferry terminal having explained the position to the French customs officials who were there.  They then rushed away to catch the ferry.  When Mr C arrived in Calais he was unable to find his daughter.  Mrs C was unable to communicate with her husband by telephone in France to assist him.  Eventually, in the early hours of the morning, Mr C found his daughter sitting alone and unsupervised in the deserted ferry terminal.  Miss C, who only 11 years old at the time, was very frightened by her experience and was in a state of shock when her father found her.

27.	Following this incident the applicant behaved towards Mr and Mrs C as if nothing had happened.  Mr and Mrs C were minded to report the applicant to the British Judo Association but did not do so, partly because they knew that the applicant’s sister was the Chairman of the Association and partly because their daughter was extremely keen to continue judo, with the applicant as her coach, notwithstanding her recent frightening experience.

28.	For several years the applicant offered a financial incentive to his young players to train hard for the Junior National Championships in November.  He promised them that, if they trained or competed every day for 100 days, he would give them £100.  In 2001 Miss C complied with the applicant’s requirements and he gave her his cheque for £100.  When Mrs C presented the cheque it was not met.

29.	In January 2002 Miss B joined the Judo club and was coached by the applicant.   Miss B’s mother was an experienced judo player, coach and referee.  She knew the applicant as a coach who had a reputation for over-training his players and for being “very verbal” to referees.  Mrs B was therefore uneasy about her daughter joining the applicant’s club.  However, she put aside her reservations and resolved to support her daughter, who was very keen to join her friends at the Judo club and to improve her performance.

30.	Mrs B regularly attended training sessions run by the applicant in 2002.  She saw that the sessions were overcrowded, aggressive and vigorous.  Mrs B saw that the applicant tried to humiliate those who had not signed up for a particular competition by requiring them to explain to the assembled players, parents and visitors why they felt they could not do so.

31.	Miss B found the applicant to be “aggressive and mean”.  The applicant instilled fear into her and exploited the fact that she was young and desperate to succeed in her chosen sport and to gain the respect of her peers.

32.	During 2002, Mrs B tried to discuss with the applicant her concerns about the pressure under which the applicant placed his players but the applicant made it clear that he would not be persuaded to modify his approach or to change his methods.  He regarded them as being the only way to achieve results.  He said that the reluctant players “needed to learn not to let the club down”.

33.	Two incidents in 2002 caused Mrs B particular concern.  First, during a training bout between her daughter and Mr L, when her daughter was recovering from an injury to her ankle, she heard the applicant encouraging Mr L to attack Miss B’s “weakest point” and to kick her injured ankle.  Mrs B removed her daughter from the mat and told the applicant that he was “out of order”.  Secondly, the applicant allowed a training bout between Miss B and Miss K to become over-aggressive and uncontrolled to the point where both young players were in serious danger of physical injury.

34.	In September 2002 the applicant suggested to Miss B (who was then 14 years old) that she should compete in the forthcoming Junior National Championships in the under 52 kilograms category rather than in the under 57 kilograms category, in which she had been competing for some time.  The applicant “wanted a medal winner in every group”.  Mrs B was angered by the applicant’s suggestion and forbade her daughter to lose weight to comply with the applicant’s requirements.  Contrary to her mother’s wishes and instructions, during September, October and November 2002 Miss B persisted in trying to reduce her weight.  She starved herself, took diuretics (which she stole from her mother), trained while wearing a “bin bag” to sweat off weight and wore a “bin bag” in bed.  Mrs B was alarmed by the influence that the applicant was able to exert over her daughter and by the way in which the applicant appeared to be prepared to act contrary to the interests of an individual child in order to achieve success for himself and his club.

35.	In November 2002 the applicant’s marriage broke down and he separated from his wife, who was also a coach at the Judo club.  This caused difficulties at the Judo club as loyalties were divided.  On 30 January 2003 an anonymous correspondent posted a message on the Judo club web site asking the applicant how much longer he was going “to let this mess go on” and asserting that his “inability to be honest” would divide his club.

36.	In December 2002 Mr Somerville, the officer of the British Judo Association responsible for the registration of those who have attained the prestigious “Dan grade”, reported to the Chief Executive, Mr McCarthy that the applicant was representing himself as being the holder of a Dan grade when there was no evidence that he had ever actually attained that distinction.

37.	In January 2003 Mr Somerville wrote to the applicant to seek clarification but received no reply.  On 20 February 2003 Mr McCarthy wrote to the applicant inviting him to respond to Mr Somerville and to provide evidence of the date upon which he claimed to have achieved the Dan grade.  The applicant failed to respond.

38.	In February 2003 the applicant began his relationship with Ms V, who had been a member of the Judo club but was then coaching at another judo club in London.   

39.	In May 2003 the applicant told Miss C that he wanted her to fight as a representative of the London area in the under 40 kilograms category at the National Team Championships on 7 June 2003 because there was another player with an equal if not better claim to selection in the under 44 kilograms category.  Miss C weighed about 43 kilograms and had little capacity to lose weight.  Nevertheless, she agreed to attempt to reduce her weight to less than 40 kilograms.  For three weeks Miss C dieted and trained hard but failed to achieve any significant reduction in weight.

40.	On Wednesday 4 June 2003 the applicant instructed Miss C not to attend school on Friday 6 June 2003 but to attend the Judo club to “sweat off” the necessary weight before travelling to Crystal Palace to weigh in for the Championships in the evening.

41.	On 6 June 2003 Miss C attended the Judo club accompanied by her father.  The applicant made it clear to Mr C that his presence was not welcome.  However, Mr C remained for some time.  Miss C was determined to lose the necessary weight and rejected her father’s pleas that she should desist.  She went with the applicant and his former wife into the Sports Therapy Clinic adjacent to the club and began “sweating off” until the proprietor of the Clinic ordered them out, disapproving of the practice being undertaken on his premises.  The applicant’s former wife then prevailed upon Mr C to acquire a proper “sweat suit” for his daughter.  Mr C did so and Miss C wore it while running on a nearby track, urged on by the applicant.  Miss C achieved little weight loss during the morning but continued to exercise during the afternoon.  When she became exhausted she lay down under a hot radiator.  At about 4 p.m. Miss C travelled with the applicant and other team members to the National Recreation Centre at Crystal Palace.  She weighed in at 41 kilograms.  Miss W, a colleague of the applicant, told Miss C to “do some more running”.  At this point Miss C refused and protested that she was exhausted and could do no more.

42.	Mr and Mrs C declined to take their daughter to the Championships at Crystal Palace on 7 June 2003 despite her request that she should attend to watch her friends compete.  They were unhappy about the conduct of the applicant in failing to select their daughter for the appropriate weight category and endeavouring to force her into a lower category and they had no wish to attend an event at which she would not be competing.  The applicant collected Miss C from her home himself and took her to the Championships.  He arranged for Miss C to fight in the Senior under 52 kilograms category because there was a vacancy and he was confident that Miss C would do well despite the difference in the age and weight of her opponent.  Miss C won her bout.  Mr and Mrs C were greatly angered by the applicant’s conduct since they had not given the necessary permission for their 14-year old daughter to fight as a Senior in a higher weight category.

43.	The applicant later dismissed the accounts given by Miss C and her parents as “their way of getting revenge”.

44.	At a competition in Paris later in the summer of 2003 Mrs C approached Ms Birch, then the National Coach of the Great Britain Girls’ Cadet Squad, and told her that the applicant had made her daughter try to lose three kilograms so as to be able to compete in the under 40 kilograms category at the National Team Championships.  Ms Birch was very concerned about what she had been told and confronted the applicant about the matter.  He appeared unconcerned.  He said that Miss C was “fine” and suggested that she had not been adversely affected.  Ms Birch told the applicant that what had happened was unacceptable and that it must not happen again.

45.	The applicant’s conduct in relation to his grade was investigated by the Complaints and Conduct Panel of the British Judo Association during the summer of 2003.  On 24 June 2003 the applicant wrote to the investigator appointed by the Panel and asserted that he had attained the Dan grade in 1976, on the same day as his sister had attained her Dan grade.  The applicant said that he was surprised that the matter had arisen and explained that his standing had not been called into question before.

46.	The Complaints and Conduct Panel of the British Judo Association found the applicant guilty of gross misconduct by falsely portraying himself as having attained the Dan grade.  They recommended that the applicant be suspended from membership of the Association; demoted to his true grade and demoted from his status as a Senior Coach.  On 18 September 2003 the Board of the British Judo Association approved the recommendations of the Complaints and Conduct Panel.

47.	On 22 September 2003 Mr McCarthy wrote to the applicant to inform him that he had been suspended from membership of the British Judo Association for 12 months with immediate effect because it had been discovered that he had, for many years, been portraying himself as “a BJA 1st Dan” when he had, in fact, never earned that distinction.  Mr McCarthy also informed the applicant that it had been resolved to reduce him to his “true grade of 1st Kyu” when he regained his membership and to strip him of his Senior Club Coaching Award and any other awards gained by him based on the misconception that he was a Dan Grade.

48.	On 29 September 2003 solicitors acting on behalf of the applicant notified the Chairman of the British Judo Association that the applicant intended to appeal against his suspension and set out the grounds of appeal.

49.	The applicant did not publicise the fact that he had been suspended from membership of the British Judo Association.  However, Mr and Mrs C heard about the applicant’s suspension and began asking questions about his qualifications and insurance cover.

50.	On 7 October 2003 the applicant told Miss C to leave the Judo club.   Miss C was very upset by the prospect of being parted from her friends and of being unable to prepare for the forthcoming Junior National Championships.  Mr and Mrs C tried to enrol their daughter in a rival judo club but the applicant intervened with the proprietor of that club and suggested that players should not be allowed to “flit from club to club for frivolous reasons”.

51.	On 8 October 2003 Mr McCarthy wrote to the solicitor then acting for the applicant to point out that the applicant had been “coaching while under suspension” and that this was a serious matter.  The applicant’s solicitor replied immediately by email.  She said that the applicant had arranged for other people to carry out coaching and that she assumed that there was nothing to prevent the applicant being present when coaching was being carried out.  Mr McCarthy responded by email.  He said that there was nothing to prevent the applicant being present provided that he did not participate but that the “preliminary report” he had received indicated that the applicant had been “coaching on the mat” and participating fully.

52.	On 20 October 2003 Mrs C wrote to the applicant to ask him to return Miss C’s judo licence (a vital document for all judo players) to her.  The applicant failed to return the licence, claiming that he could not find it.

53.	On 22 October 2003 Mr McCarthy informed the applicant’s solicitor that his office had received a number of telephone complaints to the effect that the applicant was not abiding by the terms of his suspension.  Mr McCarthy suggested that it should be made clear to the applicant that he was “banned from all BJA membership activity”.

54.	On 28 October 2003 Mr McCarthy received an unsolicited telephone call from a person who reported that she had seen the applicant “mat side coaching” at a tournament in Holland.  Mr McCarthy sent an email to the applicant to advise him of this development and to repeat his advice that he was “putting young players at risk by potentially nullifying BJA insurance cover”.

55.	On 11 November 2003 Mr McCarthy received a written complaint from Mrs HH, who described herself as a “concerned parent”.  She said that she was “annoyed, disappointed and confused” because she understood that the applicant had been suspended but he still appeared to be undertaking coaching and “signing off official documentation”.

56.	On 12 November 2003 Mrs HH reported in writing to Mr McCarthy that the applicant had been coaching at the recent “Nationals” and “getting away with it”.  She described this a “strangely absurd” and productive of “very deep concerns”.

57.	On 10 December 2003, following an appeal by the applicant, the British Judo Association reduced his suspension and ordered that it should expire on 1 June 2004.  The Appeal Panel found that the applicant had falsely represented that he had attained the Dan grade in 1976 but they decided that, because of his “stellar track record of bringing young players into the sport and unquestioned commitment to furthering the development of these young players”, the penalty imposed upon the applicant should be reduced.

58.	On 29 December 2003 Mrs L and the applicant took Mr L to see Dr Richard Budgett, then Chief Medical Officer of the British Olympic Association and Sports Physician at the English Institute of Sport, for advice about long standing injuries to Mr L’s left knee and right ankle.  The applicant was introduced to Dr Budgett as Mr L’s coach.  No reference was made to the fact that the applicant was currently suspended from membership of the British Judo Association.

59.	Throughout his coaching career, the applicant kept meticulous records of the results achieved by his players.  This had several practical benefits.  For example, it enabled the applicant to keep track of the “ranking points” obtained and required by players who were seeking to move to higher levels of competition.  However, the principal reason for the record keeping was to enable the applicant to publicise the success of his club and thus to attract more members so as to have the potential for even greater success.  The applicant dedicated himself to achieving his ambition to make his club the most successful in the country, as the provider of the greatest number of national and international competitors.

60.	The applicant always derived considerable personal pleasure and satisfaction from the successes of the players he coached.  The applicant showed his satisfaction in a way that that made many of his successful players all the more determined to achieve even greater success for his benefit.  Their relationship with the applicant was such that, if they failed, they felt that they had let him down and, if they succeeded, that they had made him proud and happy.  Their devotion was unequivocal but was not always sustained. Some players realised, as they matured, that their subservience to the applicant was burdensome.  They then concluded that they had been misused by the applicant and they turned against him.  The applicant was, and remains, mystified by these adverse reactions.

61.	In March 2004 the British Judo Association received several complaints about the conduct of the applicant as a coach.  In April 2004 Ms Moores, in her capacity as Child Protection Officer, took statements from two complainants (Miss C and Mrs B) and otherwise investigated the allegations.  She wrote to all of those who might be able to supply information and interviewed four other women, two of whom (Ms P and Ms Q) made statements.  The others disclosed information but declined to make statements.  The applicant later described the actions of the BJA as “trawling for negative information” about him as part of an attempt to “neutralise the positive impact” of his club within the Association.

62.	In April 2004 Mr and Mrs C reported their “concerns” about the applicant to the British Judo Association.  Mr C made a written statement about the events of June 2000 and June 2003.

63.	Between March and November 2004 several others, including Mrs A; Mrs B and Ms S, also reported their complaints or further complaints to Ms Moores.

64.	On 17 December 2004 Ms R submitted a statement to the British Judo Association in which she alleged that she had trained, at the applicant’s insistence, whilst suffering from a serious injury to her back; that she had lost weight “using a combination of black bag training, laxatives and starvation” and that she had seen the applicant assault other pupils including Mr F and Ms Z.  Ms R also alleged that the applicant pushed his pupils so hard during training that some of them would vomit.

65.	On 17 January 2005 Ms S submitted a statement to the British Judo Association in which she alleged that the applicant had regularly recommended or required her and others to starve themselves; to “sweat off” weight and to use laxatives.  She also alleged that the applicant had assaulted her.  Ms S provided a detailed account of how the applicant required her to train and to compete with an injured wrist, taking pain killers which he sometimes supplied to her. The Association then decided that they should hand over the investigation to the police.

66.	On 28 January 2005 Ms T submitted a statement to the British Judo Association in which she alleged that the applicant had frequently used “emotional pressure” to persuade her to lose weight and had required her to fight with injuries, including broken bones.  The applicant was, she said, only interested in the pupils who were winning medals.  Those who not successful were given little attention.  Ms T said that she realised, after she left the Judo club, that the methods used there by the applicant were neither healthy nor normal.  She was, she said, “burnt out physically” by the time that she reached the age of 15.

67.	On 1 February 2005 the British Judo Association suspended the applicant from membership and informed him that he was no longer authorised to coach, pending the completion of the police investigation into the allegations of misconduct and abuse of trust that had been made against him.

68.	Officers of the Metropolitan Police conducted a lengthy inquiry into the applicant’s activities.  They took statements from numerous witnesses including Ms S; Ms T; Ms U; Mr S; Mr C; Miss C; Ms R; Mr McCarthy; Ms Moores and Ms Birch. 

69.	In January 2005 the applicant was teaching judo to children in an “After School Club” at an independent school.  In February 2005 the applicant did not inform the school that he had been suspended from membership of the British Judo Association or that he was no longer authorised to coach.  The Headmaster of the school obtained the relevant information from pupils’ parents and from the Association.  He immediately suspended the applicant from his school post.

70.	The applicant, in effect, ignored the suspension imposed upon him by the British Judo Association and carried on all of his activities, including coaching his players, accompanying them to tournaments both in this country and abroad and organising tournaments at his club.  Between 5 February 2005 and 17 July 2005 the applicant attended 26 events.  He filled out and submitted competition entry forms for his players; drove them to and from the competitions; watched the events from the public areas and wrote down the results.  The applicant maintains that his attendance at these events was not as a coach because he did not sit in an official coach’s chair and did not wear his “BJA Coach Accreditation Badge”.  In his response to his provisional POCA listing the applicant maintained that he “did adhere to the terms of [the] suspension wholly”.

71.	Following his suspension the applicant handed over some of his coaching responsibilities at the Judo club to Ms V but he remained in charge of his pupils.

72.	On 6 March 2005 the applicant transported eight young players from London to North Yorkshire for a competition.  He drove his Ford Galaxy “people carrier” (which has seats for seven) on the M18 in Humberside at over 86 miles per hour until he was stopped by police officers.  The officers saw that there were four people seated on the middle bench seat and three on the rear bench seat, none of whom was wearing, or was able to wear, a seat belt.  The applicant was reported for exceeding the speed limit and for exceeding the seating capacity of his vehicle.

73.	On 7 March 2005 solicitors then acting for the applicant wrote to Mr McCarthy as the Chief Executive of the British Judo Association to protest, inter alia, about the “outrageous and libellous” letter sent out by Ms Moores and Mr Beecher of the Association to “approximately 250 current and past club members” informing them of the applicant’s suspension.  They described the letter as “the culmination of a campaign engineered by the BJA designed to destroy [the applicant’s] career as a judo coach” and invited Mr McCarthy to set out the powers under which the BJA considered that it was able to suspend their client.

74.	On 1 April 2005 the applicant was shown, in a television broadcast concerning scholarship schemes for potential participants in the 2012 Olympic Games, watching and acting as coach to Mr L.  The programme had been recorded on 31 March 2005.  The applicant made observations to camera about Mr L’s prospects of winning a gold medal while being described, in a superimposed screen caption, as “Lee (sic) Davies, Judo Coach.”

75.	In early April 2005 the British Judo Association received two applications for licences to hold tournaments dated 30 March 2005, purporting to be signed by the applicant’s former wife and accompanied by a cheque signed by the applicant.  The applicant forged the signatures of his former wife on the application forms.  The tournaments for which licences were sought were organised by the applicant.

76.	On 12 April 2005 Mr McCarthy wrote to the solicitors then acting for the applicant.  He set out the allegations of breach of suspension by the applicant and emphasised that, in the Association’s view, the applicant should not be in contact with young judo players at all and should not organise trips, coach, officiate, instruct, administrate or manage club affairs until the completion of the police investigation.

77.	On 9 April 2005 Mr L, who was then aged 15, competed in, and won, an international youth competition in Holland.  However, he injured his right knee.  Despite the soreness he was experiencing, Mr L competed again in Belgium on 10 April 2005 and was again successful.  On 12 April 2005 Mr L was taken by his mother to see Mr Ashworth, a physiotherapist at the Olympic Medical Institute at Northwick Park Hospital in Harrow, for advice and treatment in relation to his injured knee.  Mr Ashworth saw that there was a mild effusion in the joint and was told about an “abnormal feeling” when the knee was flexed.  He advised the regular application of ice and the use of anti-inflammatory drugs to reduce the swelling and said that Mr L should only undertake non-weight-bearing exercise for the time being.  He also said that Mr L should be seen again on 15 April 2005.

78.	On 15 April 2005 Mr L attended his next appointment at the Olympic Medical Institute.  He was still suffering from pain in his right knee.  Mr Ashworth noted that the joint was still swollen but flexion had improved slightly.  He advised “non-impact for one week”.  By this, he meant that Mr L should not compete; should modify his training to avoid damaging the joint any further and should be seen again in one week.

79.	On 17 April 2005 Mr L competed, contrary to Mr Ashworth’s advice, in the London Age Banded Championships and won a gold medal.

80.	On 20 April 2005 the British Judo Association referred complaints by Mr McCarthy that the applicant had forged a tournament licence application and had been coaching in breach of the suspension imposed by the Association to its Complaints and Conduct Panel for investigation.

81.	On 22 April 2005 Mrs L took Mr L to see Mr Ashworth again.  The applicant attended the appointment, presenting himself as Mr L’s coach.  Mr Ashworth recorded that Mr L had “fought against advice” and that he felt “set back”.  He also noted that Mrs L and the applicant had “conflicting ideas” about whether Mr L’s knee was “right to fight”.  The applicant emphasised the importance for Mr L of a forthcoming event in the Czech Republic while Mrs L suggested that the competition was not so important that her son should risk further injury to his knee by taking part in it.  The applicant said that if Mr L wanted to be a world champion he would have to “push through pain”.  Mr Ashworth was concerned that the applicant’s “blanket opinion” took no account of the age of the competitor or the nature of the injury.  Mr L himself said that he felt that his knee was “not right”.  Mr Ashworth advised the continued use of ice and anti-inflammatory medication and said that he would see Mr L again on 27 April 2005.

82.	Because of the applicant’s comments and his reputation for forcing players to train and compete despite injury, Mr Ashworth discussed the matter with his manager, Mr Fellows and with his colleague, Mr Thawley, who had particular expertise and experience in the treatment of judo players.  Mr Thawley was concerned that the advice being given to Mr L by the Institute would not be heeded.  Accordingly, he contacted the British Judo Association World Class Start Coach, Mr Randall to warn him and to invite him to take steps to protect Mr L.

83.	On 22 April 2005 the solicitors then acting for the applicant suggested that the British Judo Association had “refused to set out the legal basis on which [the applicant’s] ‘suspension’ was imposed” and had also refused to set out “any proper information as to the basis of that suspension” and the basis upon which their letter of February 2005 was distributed.  They concluded that the Association’s “continuing refusal to respond” did “nothing to dispel the impression” that they recognised that their actions could not be justified.

84.	On 24 April 2005 the applicant attended a tournament in Hornchurch, Essex.  He approached Ms French, the Club Development Officer of the British Judo Association and enquired about the possibility of obtaining further funding for his club.  Ms French asked the applicant if he was still suspended and he assured her that he was not because his suspension “had been reduced to six months and was ‘spent’”.

85.	On 26 April 2005 the applicant was disqualified from driving for six months for having accumulated 12 penalty points on his driving licence.

86.	On 27 April 2005 Mr L was seen again at the Olympic Medical Institute by Mr Ashworth and, later, by Dr Beesley.  Mr L was still in pain.  His right knee remained swollen and there was some evidence of wasting of the quadriceps muscles.  It was not clear whether Mr L was suffering from some serious injury such as a torn cartilage, bruising of the bone or ligament damage.  He was again advised not to compete and was booked in for an MRI scan on 29 April 2005.

87.	On 3 May 2005 Mr Thawley and Dr Loosemore, the Sports Physician at the Olympic Medical Institute, saw Mr L again following the MRI scan of his knee.  They could see no damage to the cartilage but remained unsure as to the cause of the pain and swelling.  Accordingly, they decided to refer Mr L to Mr Williams, a specialist orthopaedic surgeon.  Mr Thawley advised Mr L that he should not compete until they had the specialist’s opinion.   He said that he was unable to assess the full nature and extent of Mr L’s injury and told him that he must rest the joint completely until the cause of the pain and swelling could be ascertained.  The applicant, who was present at this consultation, was unhappy with this advice and protested that if Mr L wanted to win medals he would “have to train through injury”.  Mr Thawley reiterated his advice and ensured that it was “clear and unambiguous”.  Following this consultation, the applicant and Ms V returned Mr L to his home.  The applicant did not give Mrs L a full account of the medical advice given.  She was therefore content to permit her son to compete on the following weekend believing that the medical advice was not to the contrary.

88.	On 7 and 8 May 2005, at the applicant’s instigation and with the support of his mother but contrary to medical advice, Mr L competed in an under-17 tournament in Germany and won a gold medal.

89.	On 10 May 2005 Mr Williams diagnosed an injury to the fat pad in Mr L’s knee and muscle wastage which needed addressing to avoid prolonging the problem.  Mr Williams advised Mr L to undertake a strengthening programme and to reduce the amount of his mat training and competition.

90.	On 16 May 2005 the solicitors then acting for the applicant suggested that there was nothing in the Rules of the British Judo Association to prevent the applicant “organising local, national or international trips, administering or managing club affairs”.  They said that their client had suffered “further financial loss” and reserved his right to seek recompense from the Association.

91.	On 18 May 2005 Mr Thawley saw Mr L again.  He discussed with Mr L the recommendations made by Mr Williams and Mr L confirmed that he understood that he should continue to train as normal but should reduce the volume of his competitions and undertake a strength and conditioning programme to be devised by a specialist.

92.	On 2 June 2005 Mr M approached Mr Randall after a training session with the British National Cadet Squad in Kendal and told him that three members of the Squad who were from the applicant’s club were due to attend an event in Venray, Holland but did not want to go.  Mr M asked Mr Randall to intervene with the applicant on behalf of the squad members.  Mr Randall spoke to the three boys and ascertained that they were fearful of telling the applicant about their reluctance to compete because they anticipated an adverse reaction.  They were all unusually subdued by the prospect of defying the applicant.  Mr Randall told the boys that they should ask their parents to inform the applicant that they would not be travelling with him to Holland.  He also reported the matter to Ms Moores at the British Judo Association since it appeared to him to be a “child protection issue”.

93.	On 18 June 2005 Mr L competed in and won the European Cadet Championships in Salzburg, Austria.  The applicant attended the event and was subsequently interviewed by a newspaper reporter.  He spoke in terms from which the only sensible inference that could be drawn was that he was Mr L’s coach.  The applicant was described as Mr L’s coach in the newspaper report.

94.	On 27 June 2005 the British Judo Association referred the applicant to the Children’s Safeguarding Operations Unit (PoCA) under section 2 of the Protection of Children Act 1999.  In his letter to Ms Hill of the Unit, Mr McCarthy noted that the applicant was “largely ignoring his suspension” and was “obviously not acting in a rational way”.  He also referred to the applicant’s “relentless training and competition regime” which produced many young champions “virtually none of whom remain in the sport to the senior level”.

95.	On 2 July 2005 the applicant was seen handing out licences to compete to his players at the National Area Team Championships in St Helens and otherwise acting as a coach.

96.	On 13 July 2005 the British Judo Association Complaints and Conduct Panel found the complaints against the applicant proved and recommended that the applicant be suspended from membership of the Association for a further two years for acting dishonestly and deceptively in relation to the tournament applications he had submitted and that the applicant be expelled from the Association for life for the breaches of the previously imposed suspension.  The Panel noted that the applicant “had shown a total disregard for his suspension”.

97.	On 29 July 2005 the solicitors then acting for the applicant suggested that the disciplinary process conducted by the British Judo Association was “unfair and unlawful” and “in breach of the rules of natural justice”.

98.	On 5 August 2005 the Board of the British Judo Association approved the recommendations of the Complaints and Conduct Panel and, on the same date, Mr McCarthy informed the applicant of these decisions in writing.

99.	On 9 August 2005 the Respondents decided provisionally to list the applicant on the POVA and POCA lists and invited the applicant to make written observations.  The applicant made no observations at this stage.

100.	On 12 August 2005 the solicitors then acting for the applicant responded to Mr McCarthy’s letter of 5 August 2005 and said that they would be appealing against both the findings and the penalty.  They purported to serve a notice of appeal on 15 August 2005.  This was outside the time permitted for an appeal.

101.	In August 2005 the Children and Families Department of the relevant local authority commenced their investigations of the applicant’s activities as the statutory agency responsible for the safety and welfare of children in their area, having had the matter referred to them by the police in February 2005.  Social workers from the local authority (and from another local authority) interviewed numerous judo players and their parents.  Some parents expressed misgivings about the applicant but most were “very positive” about him and had “no concerns”.  Some players and their parents expressed the wish that the applicant should be reinstated as soon as possible so that they might achieve further success under his guidance.

102.	Some of the pupils at the independent school where the applicant taught in the “After School Club” said that they found the applicant intimidating and abusive but most were content with his teaching and had no complaints.

103.	Miss C gave a social worker a detailed account of her bad experiences with the applicant in 2000 and 2003 and Miss B told a social worker how the applicant had made her “wear a black bag” and starve herself for two days.

104.	A social worker also interviewed Mr D.  Mr D said that many parents “harboured deep concerns and resentments” towards the applicant and that training at the Judo club “continued to be highly pressurised”.

105.	Mr S told a social worker that the applicant had been physically abusive to children and provided some examples.  He also described “the use of black bin liners to make us sweat”.

106.	Ms S made several serious allegations against the applicant when she was interviewed by a social worker and supported her brother’s account of physical assaults on children by the applicant.  She presented the same “picture of an over-controlling trainer/coach who used bullying tactics on young children to make them perform to his high standards, even when they carried serious injuries” as she had presented to Ms Moores of the British Judo Association and to the police.  She also described the injury to her wrist which eventually ended her judo career.  She said that the applicant had persuaded her to train and compete, and had given her painkillers to enable her to do so, for over one year.  Eventually, in July 1995, she had to have an operation on her wrist.  Ms S alleged that she had returned to competition, at the applicant’s insistence, too early and had mystified her physiotherapist, who could not understand why she was not improving until she confessed that she had been training and competing contrary to his advice.  Ms S also gave examples of occasions when the applicant had berated players, including Ms U., who were injured and obviously in pain, accusing them of acting like babies or “wimps”.

107.	Ms R told a social worker that the applicant had required her to carry on fighting despite injury; that he had assaulted other children; that he had required her to “train in a black plastic bag” and that failed to summon assistance for her when she had injured herself seriously. 

108.	Ms T told a social worker that she had stopped eating and used “black bin bags” so as to comply with an instruction from the applicant to lose weight and that she had fought with injuries so as not to experience humiliation by the applicant.

109.	Ms U told a social worker that the applicant had instructed her to “sweat off” weight when she was 13 or 14 and that she had trained and competed at the applicant’s suggestion too soon after recovering from a broken wrist.

110.	As part of the local authority’s investigation, the applicant was interviewed, at length, in the presence of his solicitor, by the Investigation Manager and by the Head of the Children’s Social Care Service.  The applicant explained that Ms T “had an issue with his current partner” and that she had “organised statements” from her friends (Ms U, Ms R, Ms S and Mr S).  This was, he said, apparent from the factual errors common to all of the statements.  The applicant strenuously denied any use of foul language and any encouragement to use diuretics or laxatives.  He said that Ms B’s allegations were “a pack of lies” and that she was “off the wall”.  The applicant rejected the allegations made by Ms S about training and competing whilst injured and said that he had told her not to do this but she had insisted.  He also rejected the similar allegations made in relation to Ms U and Mr L.  The applicant agreed that that arrangements made for Miss C in 2000 were “inappropriate” and accepted that he had overloaded his car in March 2005 but said that this “situation was resolved” when, having “pulled them over”, the police agreed to transport his additional passengers themselves.

111.	On 14 September 2005 the applicant was interviewed at a police station in London.  He drove his Ford Galaxy into a nearby railway station car park before attending at the police station.  The applicant was disqualified from driving at this time.  His disqualification expired on 25 October 2005.  The applicant was subsequently (on 20 October 2005) convicted of driving without insurance and whilst disqualified.

112.	In his interview by police officers (which extended over the whole day on 14 September 2005) the applicant described his activities at the Judo club and the detailed records kept by him; defended the intensity of the training at the Judo club and denied all of the allegations of abuse and mistreatment of children made against him.  The applicant specifically denied encouraging the use of drugs to achieve weight loss.  He said that if he “knew anything like that was happening” he “would condone it (sic) immediately”.

113.	The applicant also described his practice in relation to injuries and denied that he ever excluded parents or encouraged pupils to compete when injured and/or against medical advice.  He declined to accept that young judo players should not be placed under pressure because of potential damage to immature joints and rejected the suggestion that he was taking undue risks when he took groups of children abroad.

114.	The interviewing police officers took the applicant through the statements made by Miss C and her father.  The applicant said that Miss C was lying at the instigation of her parents.  He maintained that Miss C’s attempts to lose weight in 2003 were suggested and pursued by her father who “put her in the sweat suit … and watched her run up and down the concourse at Crystal Palace for about half and hour”.  The account given by Miss C and Mr C was, he said “rubbish”.  He asked, rhetorically, why, if Miss C had experienced the alleged problems in June 2003, she had stayed at the Judo club until September 2003.

115.	In response to the statements made by Ms S, the applicant told the police officers that he would never “tell anybody not to eat”; that he never screamed at anybody; that he never suggested taking laxatives or diuretics and that he had never given painkillers to children other than his own.  He said that he knew of nothing that might have caused Ms S to make false allegations against him.

116.	When the allegations made by Mr S were put to him, the applicant repeatedly said that the allegations were “not true” and suggested that they may have been steered by the British Judo Association.

117.	The applicant also denied the allegations made by Miss B and her mother.  They derived, he said, from a “fishing expedition” conducted by the British Judo Association and stemmed from “the political ambitions of the person in charge”.

118.	In response to the allegations made by Ms R the applicant said that he had no recollection of any vomiting during training sessions and that all of her allegations were “incorrect”.  Ms R was, he said, motivated by anger because she had been “madly in love” with his partner, Ms V and she resented his involvement with Ms V.

119.	The applicant “totally denied” the allegations made by Ms U and said that, if she had fought with a broken wrist, that would not have been his responsibility but the responsibility of the competition organisers.  The applicant also pointed out that Ms U had, in her statement, made the same inaccurate observations as others and invited the interviewing officers to conclude that all of those who hade statements had been “led” and that “ideas” had been put to them.  He suggested that they had “all sat down and had a chat with each other” at some time before they gave their statements.

120.	Finally, the interviewing police officers took the applicant through the allegations made by Ms T.  The applicant said that he could prove that he did not “try to enter a player in every weight category” and pointed out that Ms T’s allegation that she “jogged in the shower room wearing black bags or sweat gear” could not be true because there were no showers at the Judo club.  He also said that Ms T’s allegations were the same as those made by other witnesses and that she had obviously colluded with them.

121.	On 6 October 2005 Ms Moores received a telephone call from the newly appointed Headmaster of the independent school from which the applicant had been suspended, by the previous Headmaster, in February 2005.  The Headmaster said that the applicant had been coaching pupils at his school for the previous two weeks and asked for confirmation that the applicant was a member of the British Judo Association in good standing.  Ms Moores explained that the applicant had been expelled from the Association, was under investigation by the police and Social Services and had been provisionally listed on the POCA and POVA lists.  The applicant denies that he ever taught judo at the school after February 2005.

122.	On 6 October 2005 Mr McCarthy wrote a memorandum as follows: “He [the applicant] continues as if nothing has changed”.

123.	On 7 October 2005 the Headmaster of the independent school wrote to all of the parents of pupils attending the After School Judo Club to inform them that lessons had been stopped because the school had just learned that the coach, whose “certification was temporarily suspended last year” had not had his suspension lifted.  The applicant maintains that he was not the coach identified by the Headmaster and that that coach must have been some other person with a similar name.

124.	In October 2005 the applicant, in complete defiance of the decisions of the British Judo Association, entered the registration area at the National Age Band competition held under the jurisdiction of the Association in Sheffield.  He was holding the licences of the players from his Club and intending to register those players to participate in the competition. At this and other events young people were surprised and shocked to see that the applicant was present, notwithstanding that he had been suspended by and subsequently expelled from the British Judo Association.

125.	On 2 November 2005 the Board of the British Judo Association resolved to ban the applicant from attending all events held under the jurisdiction of the Association in any capacity.  On the same date, Mr McCarthy wrote to the applicant’s solicitors to inform them of the Board’s decision.  Mr McCarthy noted that the applicant had failed to comply with the terms of his expulsion and had continued to travel with young players throughout Britain and Europe; continued to have close contact with his former players and continued to be involved in many aspects of the running of his Judo club.  Finally, Mr McCarthy expressed the hope that the “complete ban from all BJA events” would “eliminate some of these issues”.

126.	On 11 November 2005 the solicitors acting for the applicant invited Mr McCarthy to “specify precisely” what the terms of the applicant’s suspension were and to let them have “full details, with supporting evidence” of how it was alleged that the applicant was failing to comply with those terms.  They warned that it was the applicant intention “to bring, inter alia, a claim for damages for breach of contract against the British Judo Association””.

127.	On 12 November 2005 the applicant attended the Senior Trials held under the jurisdiction of the British Judo Association in Walsall and was seen assisting players from his club and shouting instructions to them from the spectators’ balcony.

128.	On 15 November 2005 Mr McCarthy wrote again to the applicant’s solicitors, setting out the alleged further breaches of the suspension and of the ban on attendance at events and inviting them to confirm that their client would refrain from further attendance at British Judo Association events.

129.	On 5 December 2005 Mr McCarthy sent an email to the partner in the firm of solicitors acting for the applicant to inform him that the applicant had been seen at the British Open Championships on the day before.  He said that the Association now had “no choice but to get an injunction” against his client.  Mr McCarthy suggested that the applicant’s “flagrant and frequent violations” made “little sense” and were “unacceptable”.

130.	On 14 February 2006 the Crown Prosecution Service notified the applicant that they would not be proceeding with any criminal prosecution of him because there was insufficient evidence to support charges of assault or “anything arising under section 1 of the Children and Young Persons Act 1933”.

131.	On 27 February 2006 the Respondents wrote to the applicant inviting him to make representations as to his listing.  The applicant eventually made detailed representations through his solicitors in October 2006.

132.	In May 2006 a local newspaper published an article about the Judo club and its members which was subsequently given wider circulation on the internet.  The applicant did not disabuse the author of the article of the notion that he was coaching two successful teenagers who would be representing Great Britain in the European under-17 Championships and three others who would be training in Cuba with the National under-20 Squad.  The applicant also gave his name as the contact for anyone seeking further information about the Judo club or judo in general.

133.	In May 2006 the local authority published their report of the investigation into the allegations against the applicant.  They concluded that, whilst it was acknowledged that the applicant was “held in high esteem by a range of people” and that he had “run a highly successful judo club”, there were “strong concerns to suggest that children and young people had suffered, and had been placed at risk of suffering, significant harm owing to his behaviour and coaching practices”.  They acknowledged that “the majority of the allegations” were “historical” but said that those that were “more current” demonstrated “a repeating pattern of similar concerns”.  

134.	On 2 August 2006 Mrs L submitted an application to the British Judo Association for “lottery funding” for her son.  This application included a detailed report of all of Mr L’s successes from January 2000 to July 2006.  The report shows that Mr L competed in London on 17 April 2005 and in Germany on 1 May 2005.  The former entry was accurate but the latter was not.  Other documents show that Mr L competed in Germany on 7 and 8 May 2005.

135.	In her subsequent dealings with the British Judo Association, as the channel for the funding of the activities of judo players, Mrs L was obliged to present the applicant’s former wife as her son’s coach because the applicant (who was probably undertaking most, if not all, of the relevant work) was not in good standing with the Association.

136.	On 29 October 2006 the applicant submitted his detailed observations in response to his provisional listing by the Respondents.  In his wide-ranging collection of documents the applicant said that Miss C’s complaints were “written out of spite”, although he agreed that his decision to leave Miss C in Calais was a poor one, “done at the request of her father”.  

137.	The applicant submitted a statement by Ms V dated 16 October 2006 in support of his observations to the Respondents.  In that statement Ms V described her relationship with her “close friend”, Ms R and suggested that Ms R’s complaints against the applicant were made in “a jealous rage”.

138.	In his written observations the applicant “categorically denied” that he had suggested or urged Ms R to use black bin liners and said she that she never did.  He rejected Mr S’s allegations of assault and said that his “emotive language” (used in relation to making weight) was “misleading”.  He could not understand why Mr S had decided “to write such a negative statement” about him.

139.	The applicant also said that Ms S’s allegation that he had suggested that she should lose weight when she was 10 years old was “an absolute lie”.  He drew attention to alleged inconsistencies in Ms S’s statement and pointed out that she did not actually allege that he had told her to take laxatives.  He explained that Ms S did not compete for the Judo club after she suffered her broken wrist but only for the national team, over which he had no control.  The applicant then said that he behaved correctly in relation to the wrist injury suffered by Ms U and that her allegations about losing weight were untrue.  He declared that “no one has ever done Judo wearing a black bin bag at [the Judo club]” and that the “whole sauna thing” was “just not true”.  Ms U’s statement contained, he said, “many provable untruths and mis-remembrances” which brought the whole statement into doubt.  In response to Ms T’s statement, the applicant asserted that it “opens with a lie” and that her allegations about unfavourable comparisons between her and Ms S were “absolutely untrue”.

140.	The applicant made further written observations in response to the allegations made by Miss C and her parents.  He said that there was “never an issue with [Miss C] and weight” except when her father “tried to make her go down a whole weight group so that she could take up an empty place in the team”.

141.	In his written observations in response to Mr C’s statement the applicant said that the “transport had broken down on the way back and was not fit to be driven long distances.  All we could do was limp it back to Calais”.  The applicant concedes that this statement was false.

142.	The applicant asserted in his written observations that Mr C’s account of the events of 2003 was “entirely fabricated”; that Mr C was “obsessed” with his daughter’s success and that “he went to extreme lengths to ensure she won”.

143.	The applicant further observed in writing to the Respondents that Miss B was “a difficult child who ran away from home and was disqualified from various judo tournaments due to her aggressive behaviour”.  She was, he said, “out of control”, “openly hostile”; “disturbed” and guilty of unacceptable behaviour and was therefore not unfairly described by him as “off the wall”.  The applicant repeated that Miss B’s allegations against him were not true.

144.	The applicant further noted that Ms Birch could only “come up with one incident” which might be held against him, despite his long association with her as a national coach.

145.	The applicant described the report of the local authority into his activities as “biased towards a very small number of negative members”.  He contended that it “completely ignored” the good things he had done and was “not balanced”.  There was no “physical or material evidence to support the claims made”. He had, he said, demonstrated “collusion between the witnesses”.  There was “simply no evidence” that he had done anything wrong.

146.	The applicant reiterated his denials of the allegations by Ms S, Mr S, Ms U, Miss C and Miss B that he had forced them to train whilst seriously injured.  He said that he had always sought to “draw the line correctly“ between those injuries “that can be trained with” and those that must be treated and rested.  He firmly rejected the evidence of Mr Thawley, whom he “judged to be unfit to advise young, vulnerable adults or children”.  The applicant based this judgment on an alleged breach by Mr Thawley of the British Judo Association policy on the consumption of alcohol on foreign trips.

147.	On 21 February 2007 another local newspaper published an article about the selection of Mr L to represent Great Britain at the European Judo Championships.  The writer quoted the applicant extensively and described him as the Judo club chief coach.  The applicant again failed to tell the journalist that he was no longer authorised to coach the players at the Judo club; referred to the younger members of the Judo club as  “our juniors” and suggested that the selection of Mr L reflected well upon the organisation at his club.  The applicant also said that he would be attending the Championships in Belgrade and the subsequent Youth Olympics in the same city.

148.	On or about 29 May 2007 the applicant posed for a photograph at the Judo club with a number of the players, several of whom were under 18.  The photograph was subsequently used to illustrate an article in a local newspaper, published on 26 March 2008.

149.	On 28 June 2007 the Respondents confirmed the applicant’s listing on the POCA and POVA lists.  They said that they had concluded that the British Judo Association reasonably considered that the applicant was guilty of misconduct which harmed or placed at risk of harm a child and that he was unsuitable to work with children and vulnerable adults.

150.	On 30 June 2007 the applicant drove his car whilst uninsured.  He failed to insure himself to drive because of “lack of funds” and claims that he was unaware of the fact that his bank had failed to pay a direct debit to his insurance company.  The applicant was subsequently (on 15 May 2008) convicted of driving without insurance and fined £200 but not disqualified from driving despite having accumulated a further 12 points on his licence.

151.	In October 2007 the applicant finally stopped attending the Judo club.  Having been confirmed on the POCA list he was unable lawfully to work with the children at the club.  The applicant and his colleagues at the Judo club were aware that, as the club operated from premises owned by the local authority, his activities would be observed and might be reported by employees of the authority.

152.	In a newspaper article published on 26 March 2008 (illustrated by a photograph taken in May 2007), the applicant (still described as “coach Leigh Davies”) expressed his delight that funding was going to made available for the training of “ten Olympic hopefuls” at his club and was quoted as saying that he was realistically aiming at “seven out of 14 in the 2012 squad”.

153.	On 16 August 2008 the applicant travelled to Germany by air with several judo players, including Miss K and a friend of hers from another judo club who was under the age of 18.  The applicant stayed in the same hotel as the players with whom he had travelled, though not in the same hotel as the other members of the Judo club, including Mr L, who were accommodated elsewhere as members of the British team.  The applicant attended the competition in Berlin and a subsequent training camp to observe the members of the Judo club and their opponents and to “act as the eyes and ears” of Ms V, who was unable to attend the event because of commitments elsewhere.  The applicant maintains that, although there were no other coaches with him, he was a mere spectator and was not acting as a coach and therefore could not properly be accused of working with a child on this occasion.  The applicant was fully aware that he might be accused of working as a coach in breach of his British Judo Association ban and his POCA listing but he chose to undertake the trip because he perceived that it would be an important contribution to the continued success of Mr L and the other members of the Judo club who aspire to become members of “Team GB” at the 2012 Olympic Games.

The law 

154.	Under section 4(3) of the Protection of Children Act 1999, if the Tribunal is not satisfied that the individual applicant (a) 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 and (b) is unsuitable to work with children, it must allow the appeal.  If the Tribunal is so satisfied, it must dismiss the appeal.

155.	The decision to place the applicant on the POVA list was as a result of his inclusion on the POCA list.  Section 92 of the 2000 Act provides that proof of misconduct relating to a child satisfies the requirement of misconduct relating to a vulnerable adult for the purposes of the POVA list.  However, the issue of unsuitability to work with vulnerable adults falls to be considered separately.

156.	Burden of proof
Section 4 of the 1999 Act and section 86 of the 2000 Act place the burden of proof on the Secretaries of State.

157.	Standard of proof
The standard of proof required, in order to be satisfied as to the matters set out in section 4(3) of the 1999 Act and section 86(3) of the 2000 Act, is that described in the decision of the House of Lords in Re H and others (minors) (sexual abuse: standard of proof) [1996] AC 563; [1996] 1 All ER 1 [1996] 1 FLR 80. In that case, Lord Nicholls of Birkenhead said:
“[T]he standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability….
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not.  When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability….
Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.”

158.	Misconduct
Miss Cottage and Mr Landau submitted that the Tribunal should be guided in this area by the observations made by the Tribunal in the case of Mairs v Secretary of State [2004] 269.PC.  The Tribunal accepted those submissions.

159.	Misconduct is not defined in the 1999 Act nor is the term qualified by any adjective such as “serious” or “gross”.

160.	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.

161.	Inclusion in the lists kept under section 1 of the 1999 Act and section 81 of the 2000 Act is not intended to stigmatise, discipline or punish. The concern of the listing regime is to contain the risk of harm to children and vulnerable adults.  The regime identifies an unacceptable risk of harm by reference to some past misconduct plus a present unsuitability to work with children and/or vulnerable adults.  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 or with vulnerable adults.  Not all of those found guilty of misconduct will be held to be unsuitable to work with children or with vulnerable adults.  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 and/or with vulnerable adults.

162.	For the purposes of the 1999 Act, 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 harm will have been directly inflicted, or the potential for harm will have been directly created, by the individual charged with the misconduct.  However, this is not always so.  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 or placed at risk of harm a child”.

163.	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.

164.	Harm
Section 12 of the 1999 Act provides that “harm”, in relation to a child, has the same meaning as in section 31 of the Children Act 1989.  Section 31(9) of that Act defines “harm” as “ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another”.

165.	Unsuitability to work with children and vulnerable adults
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, at least in part, by way of deduction 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.  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 1999 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.
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.

166.	The weight to be given to the evidence of witnesses who do not appear and do not give oral evidence subject to cross-examination
Mr Landau submitted that no weight, or alternatively very little weight, should be given to the evidence of an “absent complainant” when there is no good reason advanced for not calling him or her.  Hearsay evidence from complainants who decline to make themselves available for cross examination should, he submitted, be rejected. 
Miss Cottage submitted that appropriate weight can be attached to the evidence of “absent complainants”.  The Tribunal could, she submitted, quite properly make a finding of misconduct on the basis of the recorded evidence of a witness if, for example, it had been formally declared to be true (as in a witness statement made to the police), it had the merit of consistency and there was no reason to conclude that it was either fabricated or exaggerated.

Under regulation 22 of the 2002 Regulations, the Tribunal may consider any evidence, whether or not such evidence would be admissible in a court of law.  The Tribunal has an obligation to provide a fair hearing under Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.  The Tribunal is, nevertheless, entitled to evaluate the written or tape recorded evidence of a witness and to give to it such weight as it merits.  An applicant does not have an absolute right, guaranteed by Article 6, to cross-examine a complainant.

In Secretary of State for Health v. C [2003] EWCA Civ. 10, Latham LJ said:
“It is not possible to provide any prescriptive guidance as to the proper approach in any given case.  Clearly in many cases there could be a plethora of written evidence, for example following an Inquiry, when it would be wholly inappropriate for the Tribunal to be expected to re-examine witnesses.  Indeed, in very many cases the written material would be sufficient for the Tribunal to carry out its task satisfactorily.  However, when there are discrete issues as to which oral evidence could be expected, the fact that the witness has not been called will be a matter which the Tribunal must take into account when it seeks to evaluate the evidence of that witness”.

At first instance in the same case Scott Baker J said:
“Where the allegations are of … a serious nature … I can see that great difficulty may be encountered in establishing the truth to the satisfaction of the Tribunal where the complainant does not attend to have her evidence tested.  Whether the allegations can be established without attendance will depend on the particular circumstances of the case.
Where … the allegations are very serious and are challenged root and branch, the Tribunal may be placed in serious difficulty in finding this conduct established without hearing oral evidence from the complainant”.

In the Court of Appeal, Latham LJ said:
“We are told that these passages have been cited before Tribunals in other cases.  It is submitted that they create difficulties and impose too high a burden upon [the Secretary of State] in the presentation of cases to the Tribunal.  It seems to me, however, that these passages state the obvious.  The Tribunal is undoubtedly put in a difficult position if the only evidence put forward is contained in written reports and witness statements.  As I have already said, much will depend upon the particular nature of the evidence upon which the [Secretary of State] intends to rely. There may well be cases in which the written material is all that can be reasonably required and is sufficient to enable the Tribunal to come to a just conclusion. There may well be, on the other hand, circumstances in which the nature of the dispute is such that oral evidence will be necessary before the Tribunal could be satisfied that the [Secretary of State] has established his case under section 4(3) of the 1999 Act.  As I have already said, it is not possible to be prescriptive.  The nature of the Tribunal is such that it should have the appropriate expertise to be able to evaluate the quality of the evidence put before it.”

Accordingly, the Tribunal accepted that it would be difficult but not impossible to find that the untested allegations of misconduct on the part of the applicant made by Ms Q; Ms R; Ms S; Mr S; Ms T and Ms U (most of which were vigorously denied by the applicant) were proved to the requisite standard.

Issues

167.	 It was argued by Miss Cottage on behalf of the Secretaries of State that:

(a)	the applicant’s drive for success with his elite students was such that bullying, abuse, intimidation and an absence of concern as to their physical or emotional well-being became the norm;

(b)	teenage girls were most at risk of the applicant’s controlling and abusive behaviour;

(c)	the undoubted success of the applicant’s club meant that he was effectively unchallenged until complaint was made to the British Judo Association in 2004;

(d)	the applicant was clearly guilty of misconduct in that he:
(1)	physically abused Mr D in 1983 following his defeat in the final of a local competition;
(2)	physically abused Mr Y, Mr F and Ms Z by assaulting them;
(3)	physically abused Mr AA and Mr BB by assaulting them;
(4)	regularly chose verbally to abuse a target child to make the other children stronger and work harder;
(5)	generally shouted at and ridiculed children in front of the class;
(6)	bullied and manipulated children on numerous occasions;
(7)	neglected Miss C, who was 11 years old, by leaving her at the port of Calais in the Customs Hall in the early hours of the morning to wait for her father when he had responsibility for her care at that time;
(8)	adopted unsafe practices in relation to weight control;
(9)	encouraged training and competition with injuries and contrary to medical advice;
(10)	over-loaded his vehicle and transported children in a wholly unsafe manner.

(e)	the applicant is unsuitable to work with children because
(1)	he has shown no insight into the complaints made against him and no real remorse;
(2)	his limited admissions do not address the serious issues raised;
(3)	he has taken no steps to minimise the possibility of a recurrence of the abuse;
(4)	his behaviour and attitude demonstrate that he clearly does not hold court orders or suspensions in high regard;
(5)	he continued to coach through his suspension and expulsion from the BJA;
(6)	he continued to transport children in his vehicle while disqualified from driving;
(7)	he breached the confirmed listing of June 2007 by continuing his coaching activities, as is evidenced by his speaking as the coach of his Judo club to a local newspaper in March 2008;

(f)	there is cogent proof of a repeated pattern of similar misconduct over 20 years in a number of areas and there is still a real risk of harm to children and vulnerable adults.

168.	It was argued by Mr Landau on behalf of the applicant that:

(a)	the applicant did leave Miss C alone in a Calais ferry terminal and this was admittedly ill-judged, improper and dangerous and Miss C was put at risk of harm but this was an isolated incident over a long career of coaching which involved hundreds of trips abroad and it is inconceivable that the applicant would make a similar error of judgment in the future;

(b)	on a few, exceptional occasions, when he was forced to do so by unforeseen circumstances, the applicant overloaded his car with passengers and this was admittedly misconduct that placed children at risk of harm;

(c)	the evidence to the effect that the applicant habitually overloaded his car was gross exaggeration;

(d)	with hindsight, the applicant’s acceptance of the practice of losing weight by “sweating off” amounted to misconduct but at the time it was not so regarded;

(e)	there was overwhelming evidence, including evidence submitted by the Respondents, that weight control, including weight loss through sweating, used to be common practice in judo clubs;

(f)	the practice is now specifically forbidden and would not be tolerated by the applicant;

(g)	the evidence as to the applicant’s specific knowledge of, and involvement in, Miss C’s attempted weight loss was doubtful;

(h)	the applicant denied participation in Miss C’s attempted weight loss and said that this was done at the insistence of Miss C’s father;

(i)	the applicant’s allegation against Mr C gained credibility from two significant concessions made by Mr C:  the first being that he bought a sweat suit to assist Miss C to lose weight and the second that he was present during Miss C’s attempt to lose weight;

(j)	the applicant never encouraged the use or diuretics or laxatives to achieve weight loss and would never have done so because he was fully aware of the consequences of drug taking;

(k)	the acts of alleged misconduct on the part of the applicant in relation to training were in respect of his programme for elite judo players whose training and preparation for competition was, of necessity, physically demanding;

(l)	the applicant never physically or verbally abused anyone for whom he had responsibility and any shouting or severity of tone must be seen in the context of a dangerous, full contact sport where discipline is required as a matter of safety;

(m)	the applicant was never guilty of misconduct in relation to injuries suffered by players whom he coached;

(n)	at worst, Ms S competed while recovering from a broken wrist;

(o)	the decision to compete contrary to medical advice relating to Mr L was taken by Mr L and his mother, not by the applicant;

(p)	the statements made by Ms S and Ms R contained factual errors which undermined their veracity;

(q)	the applicant’s conviction for driving whist disqualified was a technical offence committed only in a car park for which he received no separate penalty;

(r)	the applicant never drove any child whilst he was disqualified from driving;

(s)	the test is whether the applicant is suitable to work with children, not whether he is suitable to be a judo coach;

(t)	the applicant is not unsuitable to work with children because he has become aware of the importance of child protection; he recognises that practices which were at one time acceptable are no longer so regarded; he has successfully completed courses in the protection of children in sport and elsewhere; he has reflected on the appropriateness of his past training methods; he accepts that some of his conduct was ill-advised and he has encountered a “harsh reality check” during his period of suspension and listing;

(u)	such “historic misconduct” of which the applicant may be found to have been guilty will clearly not be repeated;

(v)	the responses by those interviewed in the course of the local authority investigation of the applicant’s conduct were overwhelmingly positive and supportive of the applicant;

(w)	the applicant is not a man obsessed only with success, as is demonstrated by the fact that in July 2002, he led a walk out from a competition in protest of a decision by officials to refuse to allow a player from his club to compete wearing a hijab;

(x)	the applicant has not acted in breach of his provisional listing and there was overwhelming evidence to the effect that the applicant stopped coaching in February 2005.

Conclusions and reasons

Having carefully considered all of the evidence given and the arguments presented at the hearing and the witness statements and other papers submitted in advance, the Tribunal came to the following conclusions:

169.	The misconduct alleged against the applicant in the Respondents’ response to the applicant’s appeal was:
(a)	physical and verbal abuse of children;
(b)	neglect of Miss C in June 2000 by leaving her unattended in a Calais ferry terminal;
(c)	encouragement of “sweating off” as a method of reducing weight;
(d)	encouragement of training and competing with injuries and against medical advice;
(e)	overloading his vehicles and thus transporting children in an unsafe manner.

170.	The Tribunal was not satisfied that the applicant ever physically abused children.  There was some evidence of isolated physical assaults upon children by the applicant but all of these were strenuously denied by him.  The Tribunal was not persuaded that the relevant allegations of assault (most of which were contained in the untested written statements) were proved to the requisite standard.  Further, it was part of the applicant’s duties and privileges as a judo coach to take hold of players from time to time and some witnesses could have misinterpreted legitimate physical contact as physical abuse.

171.	For many years the applicant relentlessly pushed his players to achieve success, demanding from them unswerving loyalty and strict adherence to his instructions and sometimes driving them to the limit of their endurance.  In doing so the applicant placed children at risk of harm.  Some of the children suffered actual harm and their health was impaired as a result of excessive training and competition.  The applicant’s methods of preparation and motivation left him open to criticism but usually fell short of being improper or unjustifiable and did not generally constitute misconduct within the meaning of the Act.

172.	However, the applicant sometimes crossed the line into impropriety when he used particular strategies.  The Tribunal was satisfied by the evidence of Mr D, Mrs A and Mrs B, which they found to be both credible and compelling, that the applicant deliberately undertook the humiliation of individuals so as to instil fear into the other members of the group.  This was wrongful, unjustifiable and in breach of the applicant’s duty to exercise proper care and judgment in relation to all of those for whom he assumed responsibility.

173.	The applicant concedes that he neglected Miss C in June 2000 by leaving her unattended in a Calais ferry terminal.  The Tribunal was satisfied that the applicant was guilty of misconduct in relation to this incident.  That misconduct lay not so much in leaving Miss C unattended as in misrepresenting the position to Mr and Mrs C and in contributing, by making false or reckless assertions, to the development of a situation which resulted in Miss C being placed at risk of harm.  It is difficult to understand why the applicant felt it necessary to misrepresent (and to call upon the young people in his care to support him in misrepresenting) the nature of the difficulty in which he found himself in France and why he felt it appropriate to take on the task of delivering Miss C to another part of France when it was obviously going to be beyond his ability to do so but that is what he did.  His actions were both foolish and unprincipled.

174.	The applicant did encourage and facilitate “sweating off” as a method of reducing weight.  He regularly emphasised to his players the importance of weight control and required those whose weight was close to the limit to make sure that they did not add any extra weight.  He thus sometimes provoked them to starve themselves of food and drink until after the “weigh-in” for the competition.  In circumstances where a player needed to lose weight quickly, the applicant was fully prepared to order “sweating off” and he regularly did so.  The Tribunal accepted the evidence of Miss C and her parents as to the ordeal through which she went in June 2003.  Other witnesses (Mrs A; Mrs B; Miss B; and Mr D) who gave oral evidence said that the applicant regularly encouraged and facilitated “sweating off”.  Their evidence was corroborated by the interview responses and/or written statements of Ms Q, Ms R, Mr S, Ms S; Ms T and Ms U.  Some of the witnesses who gave oral evidence to the Tribunal on behalf of the applicant admitted that they did sweat off weight before the weigh-in for a tournament and that they had heard of others doing so (Mr L and Ms G).  Others who said in evidence that they had never seen or heard the applicant encouraging people to sweat off weight (Mrs J and Mr M) were plainly giving priority to their desire to support the applicant.

175.	“Sweating off” was strongly discouraged from about 2002 but not outlawed by the British Judo Association until 2004.  However, the applicant must have known that the activities undertaken by Miss C in June 2003 were wholly inappropriate and were likely to have adverse effects upon her health.  Ms Birch quickly came to the conclusion that what had been reported to her was “unacceptable” and “dangerous”.  Miss C was obviously a child of relatively small stature with little potential for weight loss.  The applicant instigated and supervised her increasingly desperate attempts to lose weight.  The Tribunal rejected the applicant’s assertion that Mr C was responsible for the procedure and preferred the evidence of Mr C.

176.	Further, the applicant continued to promote the use of bin liners during training by judo players seeking to lose weight after the publication of the document entitled “World Class Start Weight Policy” in which the British Judo Association said that “the forcing, coercing and pressurising of children to lose weight through dehydration [was considered to be] a form of child abuse”.

177.	The applicant did encourage those for whom he had responsibility to compete with injuries and against medical advice.  In 1994-5 Ms S trained and competed with an injury to her wrist which eventually became chronic and disabling.  When cross-examined, the applicant admitted that he had never shared the medical advice he had received in relation to Ms S with her parents; that he had exercised too much control over Ms S and that he had devised a training and competition programme for her without consulting her mother.  The applicant agreed that he had “over stepped the mark” in this regard.

178.	In 2003 the applicant encouraged Mr L (then aged 13) to compete with unresolved injuries to his left knee and right ankle.  This caused Mr L to suffer persistent pain when standing and after sitting for prolonged periods.  However, Mr L’s continued involvement in competition at this time, though potentially harmful, was not apparently contrary to medical advice.  In April and May 2005 the applicant twice persuaded Mr L to compete when he was suffering from pain in and injury to his right knee, the cause of which had not been ascertained.  In doing this, the applicant was guilty of misconduct that placed Mr L at risk of suffering serious, permanent physical harm.   Mr L was, in fact, suffering from a relatively minor injury to his knee but the applicant did not know that at the time and encouraged Mr L to compete against clear medical advice that he should not do so.

179.	The evidence relating to the events of April and May 2005 was difficult to evaluate and in many respects contradictory.  The Tribunal spent much time in its attempts to establish the true chronology.  It was not assisted by the absence of clear, accessible written records and was positively hampered by the attempts of the applicant and his witnesses to tailor their evidence to fit what they perceived to be the known facts.  When an earlier understanding had to be abandoned in the light of new information, the applicant and Mrs L simply changed their evidence.  The Tribunal concluded that there was no doubt that Mr L competed contrary to medical advice but encountered difficulty in establishing the extent to which the applicant encouraged that.  In this regard, the evidence of Mrs L proved to be most problematic.  However, the Tribunal rejected her account of the matter.  Mrs L was not a reliable witness.  Stripped of its embellishment, Mrs L’s account was that she was advised by a doctor at an early stage that the relevant injury to her son’s knee was not serious and that she therefore felt able to authorise him to compete on 17 April 2005 and on 7 and 8 May 2005, notwithstanding that physiotherapists had advised that he should not do so.  The Tribunal was satisfied that, at the Olympic Medical Institute, there did not have to be (as Mrs L asserted) a prior referral to a physiotherapist by a doctor and that there was no consultation with a doctor on or just before 12 April 2005.  The elaborate account of a medical examination of her son, given by Mrs L in both her written and oral evidence, was not supported by any contemporaneous record and may well have been based upon her earlier experience with Dr Budgett.  The rest of Mrs L’s account was not credible in the light of that finding.  Further, Mrs L’s purported recollection of events did not coincide with the contemporaneous documents.  For example, her account of the advice given by Mr Williams did not accord in any meaningful way with the written report which he made at the time.  Her suggestion that Dr Beesley and Dr Loosemore respectively ordered an MRI scan and referred Mr L to a specialist surgeon merely to satisfy their “professional curiosity” was wholly at odds with the contemporaneous notes.  Mrs L’s attempt to justify her rejection of the advice given by Mr Thawley by reference to an alleged breach of confidentiality by him was inappropriate.  At the time when she received the advice she was unaware of any report which he might have made in breach of any relevant duty.

180.	The Tribunal also rejected the applicant’s firm assertion that he only attended one of the relevant appointments.  That assertion was contradicted by Mr Thawley and by the second written statement of Ms V.  Ms V’s account, though confused, was strongly corroborative of Mr Thawley and revealed that the applicant was, contrary to his assertion, present on 3 May 2005 when Mr Thawley gave and repeated his advice.  The suggestion, made by the applicant and on his behalf, that Mr Ashworth and Mr Thawley had in some way conflated their accounts of one consultation was completely undermined by the record made in October 2005 by DC Davidson.  The investigating police officer’s understanding then was that two physiotherapists had heard the applicant questioning medical advice and urging a child and/or his parent to ignore it and he identified Mr Ashworth and Mr Thawley as those potential witnesses.

181.	Accordingly, the Tribunal was satisfied that the applicant did encourage Mr L to compete contrary to medical advice.

182.	On 6 March 2005 the applicant drove his vehicle on a motorway at speeds well in excess of the permitted maximum when it was grossly overloaded with passengers and luggage.  Some of the passengers were children.  The applicant’s conduct was a breach of the criminal law in at least two respects and was plainly misconduct on his part which placed children at risk of harm.

183.	The Tribunal rejected the applicant’s assertion that, on this and other occasions, he was forced, by circumstances beyond his control, to carry more than the permitted number of passengers in his car.  There was ample, credible evidence that the applicant habitually transported excessive numbers of children to distant locations with complete disregard for the law and reckless abandonment of good sense.  The applicant admitted that he overloaded his vehicle during the 1980s and 1990s and that this placed children at risk of harm but said that he stopped doing so in 2005.

184.	In September 2005 the applicant drove his vehicle whilst disqualified and was subsequently convicted of that offence.  There was some evidence from which the inference that the applicant drove children to judo events whilst disqualified from driving might have been drawn.  However, the Tribunal was not persuaded that driving a child whilst disqualified places a child at any greater risk of harm than driving a child whilst qualified to drive.  Further, there were other, conflicting accounts from which the inference that the applicant specifically refrained from driving children to judo events whilst disqualified from driving might have been drawn.  The applicant denied driving with children in his car whilst disqualified.  On the available evidence the Tribunal was not prepared to reject that denial and so accepted it.

185.	The Tribunal identified a number of features of the applicant’s character and of his capacity and abilities which would render him wholly unsuitable to work with children or vulnerable adults.

186.	The applicant’s desire to achieve success for his protégés and approbation for himself and his club went beyond dedication and into obsession.  The applicant was thus driven to act in an unbalanced and dangerous manner and to lose sight of the duty of care which he owed to those for whom he took responsibility.  He took serious risks with little or no regard to his own welfare or that of others around him.  Save in respect of a few demonstrable errors of judgment made by him in the past, the applicant remains unrepentant and determined to resume the activities which led to success for some but to pain, anguish and disillusionment for others.

187.	The applicant is a man who demands loyalty from his pupils and who seeks to control completely those young people for whom he takes responsibility.  Further, the applicant appears to be unaware of these traits and persistently seeks to justify the means he employs by reference to the favourable end results for some of those he has influenced.  The applicant ignores, or rejects with incredulity, the unfavourable outcomes experienced by many others.

188.	In his capacity as a coach of young people, the applicant gained very considerable influence over them.  Many of the teenage players at the Judo club became devoted to the sport, to their fellow club members and to their coach.  The power which the applicant was thus granted over children carried with it the responsibility to take particular care not to exercise it to their detriment.  The applicant frequently failed to recognise his responsibility and exploited his power to his own advantage.  He so intimidated his pupils that they were not prepared to resist even when his demands were excessive and unreasonable.  Illustrations of this included several children taking steps to lose weight either contrary to their parents’ wishes or without consulting them; Mr L competing against medical advice in May 2005 and three boys being so fearful of telling the applicant about their reluctance to compete when they were exhausted that they had to ask Mr Randall to intervene on their behalf in June 2005. 

189.	The applicant’s written account of the incident involving Miss C in June 2000 and his general behaviour following his suspensions are illustrations of his predisposition and preparedness to lie and to distort the truth whenever he feels it necessary or appropriate to do so.

190.	The applicant consistently failed to disclose information about his true position as a coach to those to whom he had a duty of disclosure.  Very few were made aware of the applicant’s suspension in 2003-4.  Parents of children to whom he was acting as coach at the time (including Mrs L and Mr K, both of whom gave evidence on his behalf) should have been informed but were not.  The applicant’s failure to inform his employers when he was suspended in February 2005 was as indefensible as it was inexplicable.

191.	The applicant’s reactions to his suspension in February 2005 were unimpressive and indefensible.  It appears that he was determined to continue with the very activities that the suspension was designed to prevent.  He failed to disclose the true position to his employer when he obviously should have done so.  He resorted to deceptive, criminal behaviour when he forged the signatures of his former wife on tournament application forms.  He continued to act as a coach to children and young people in almost every way but endeavoured to create the pretence that he was not doing so by using others as his nominee or proxy.  He thus placed both his former wife and his new partner in jeopardy and exposed them to disapprobation and humiliation.  The applicant’s former wife was actually penalised for her part in enabling the applicant to evade the restrictions imposed upon him and his new partner, Miss V has, for several years, had to suffer the indignity of being seen as the applicant’s proxy rather than as a valid coach in her own right.

192.	 The applicant has been vindictive towards those who challenged his authority and would probably act similarly in the future.  He expelled Miss C from his club following conflict with her parents in October 2003 without regard to the distress which he must have known she would suffer and then tried to prevent her from progressing any further as a judo player.  The applicant also displayed his capacity for vindictiveness when he punished a young player who had defied him by withdrawing him from the National Championships in 1995 and when, in 1996, he demanded to know the identities of the parents who had approached Mr D and had been critical of him and then required their children to leave the Judo club.  

193.	The applicant displayed arrogance towards others to a degree that the Tribunal found to be extraordinary.  The applicant was, and remains, convinced of his own rectitude in all matters relating to the coaching of young judo players.  He regularly dismissed the criticisms of others whatever their status, qualification or experience.  When others endeavoured to restrain him, either by way of advice, persuasion or interdiction, he either rejected or resisted them and, when unable to ignore the restraints placed upon him, he devised ways of circumventing them.  He continues to involve himself in every activity which he believes he can justify by reference to a strict construction of the inhibitions imposed upon him by the British Judo Association and by the Secretaries of State. 

194.	 Throughout the investigation of his case the applicant showed an astonishing lack of insight into the potential consequences of his actions.  After his suspension in February 2005, he persistently presented himself at events attended by children who were, or might become, witnesses against him, seemingly oblivious to the risk that he might readily be accused of intimidation and attempts to pervert the course of justice.  He engaged lawyers to plead a case for him with the British Judo Association which was obviously untenable.  He continued to drive his car with reckless disregard for the law and for the safety of others.  He insulted all those who attacked or failed to support him by treating them dismissively and/or with contempt.

195.	The applicant’s sustained defiance of the authority of the British Judo Association and his combative, pedantic and truculent attempts to circumvent the suspensions and bans imposed upon him further indicate a profound lack of judgment in relation to matters of importance.

196.	Despite recent events and the experience of the hearing of his appeal by the Tribunal, the applicant remains determined to circumvent the restrictions imposed upon him.  His recent trip to Germany exposed him to the risk of prosecution but he is so obsessed with the task of achieving international success for his club members and so convinced of his own rectitude that he is prepared to act in a manner which most would consider reckless and few would regard as sensible.

197.	As the Tribunal observed in Mairs v Secretary of State, self-protective actions taken in times of panic are not necessarily a reliable indicator of a propensity to harm children or to act in a manner that would be harmful to them.  However, the applicant’s self-protective actions were not taken precipitously at a time of panic.  He is guilty of calculated, sustained obfuscation and manipulation.  He not only lied to the Tribunal and others about his coaching activities after his suspension and about his insistence upon Mr L continuing to compete contrary to medical advice but also prevailed upon young people over whom he has maintained his influence to lie on his behalf.  The discomfort experienced by Mr F, Mr L and Mr M when giving evidence to the Tribunal about the applicant’s abstinence from coaching, which they clearly knew to be false, was almost palpable.

198.	 The applicant’s predisposition to hide the truth and to pretend publicly that he was still in a position to coach and support aspiring, young judo players as recently as March 2008 indicates that he is prepared to go to almost any lengths to preserve and enhance his own reputation and to retain his position as a leading judo coach.  In doing this he has attempted to draw his young and inexperienced protégés into a conspiracy to deceive and to promote the pretence that he has not actually been involved in coaching children and young people since February 2005.

199.	The Tribunal took full account of the extensive evidence to the effect that the applicant has made a very substantial contribution not only to his sport but also to his local community by promoting beneficial activities in his club and guiding potentially vulnerable young people away from criminality.  The applicant has many supporters but also has many detractors.  Many of his achievements are admirable but his methods have been questionable and sometimes indefensible.  The example which he sets is sometimes good but is often very poor.  He can be restrained and supportive and he has always been industrious, thorough and dedicated.  However, his preparedness to control and exploit the young and otherwise vulnerable and his predisposition to distort the truth constitutes a model which should certainly not be admired or followed.

200.	The Tribunal heard and read nothing to persuade them that the applicant would not undertake the same unjustifiable actions as he did in the past if he encountered similar circumstances in the future.  Children and vulnerable adults do need to be protected from his obsessive, unprincipled and	often dangerous approach to the achievement of sporting success for others and consequent approbation for himself.

201.	The Tribunal therefore concluded that the applicant is unsuitable to work with children and vulnerable adults.

202.	The decision of the Tribunal was unanimous.

Order

Appeals dismissed.

Signed

John Reddish
(Chairman)
Carol Caporn
Jennifer Cross
30 September 2008