MG v Secretary of State  for Children, Schools and Families [2007] EWCST 1170(PT) (03 October 2008) 

MG
Appellant
-and-

THE SECRETARY OF STATE  FOR CHILDREN, SCHOOLS AND FAMILIES
Respondent

[2007] 1170.PT

-Before-

Mrs. Carolyn Singleton
(Chairman)
Ms. Michelle Tynan
Mr. Ron Radley

Heard at the Magistrates Court, Penrith on 30th September 2008

The Appeal

1. MG, (the Appellant), appeals against a direction by the Secretary of State, (the Respondent), made under section 142 of the Education Act 2002 that his name be included on the list of people prohibited from working with children because of his unsuitability. His appeal lies under section 144(1)(a) of that Act.

Representation

2. The Appellant appeared in person and the Respondent was represented by Ms. Olley of counsel.

Burden of Proof

3. The burden of proof lies with the Respondent; the standard of proof being on the balance of probabilities.

Preliminary Matters

4. At a directions hearing on the 16th June 2008, a restricted reporting order was made together with a direction that the hearing should take place in private.

5. Ms. Olley, on behalf of the Respondent, objected to the documents submitted by the Appellant shortly before the date of the hearing and which appeared at documents 26A - E of the bundle, her objection being that these documents were not before the Secretary of State when he made his decision to include the Appellant on the list. However, the Tribunal was satisfied that, whilst the Secretary of State had not had the actual letters before him at the relevant time, the content of those letters had been before him, albeit in a different form.

Facts of the Case

6. The Appellant was a voluntary canoe instructor in his spare time. On 7th June 2003, he instructed a canoeing group in Ennerdale, Cumbria. He had arranged for two teenage girls, whom he had previously taught canoeing, to assist him. After he had finished teaching the group, he drove the girls, EP and HO, back to the area where they both lived. This was in accordance with the arrangements he had made with the girls’ parents. In the course of that journey, the girls discussed a party they were both going to attend and talked about boyfriends.

7. The Appellant dropped HO off at a pre-arranged place to be collected by her mother and continued with EP, who was fourteen years old, to her home address. During this journey a further discussion about boys developed and the Appellant conducted a very intimate discussion with EP, warning her of indulging in under age sexual activity and pointing out that having sex for the first time could be painful. He explained to how her hymen could be torn. In interview with the police he admitted that he may have touched her hand and it may have been that, at that time, her hand was tucked away between her legs which were crossed.

8. The Appellant then stopped the minibus he was driving on the main road between two villages. He hugged EP and asked if she had started her periods. He explained to her, in detail, how to put a condom on. He explained the dangers of under age sex and said that if he were to have sex with her he would be committing a criminal offence. He told EP that she was a beautiful girl.

9. On the 1st October 2003 the Appellant was cautioned by Cumbria Police for indecent assault on a female under the age of 16 contrary to s. 14 of the Sexual Offences Act 1956 and was placed on the Sex Offenders Register for 5 years.

10. The Respondent was not notified of this information by Cumbria Police until March 2007. The Appellant was then contacted and told that it was proposed that he should be placed on the list held under S.142 of the Education Act 2002. He was invited to make representations and did so but by letter dated 25th September 2007 he was notified that he was barred from work to which that section applies on the grounds that he is unsuitable to work with children. That letter which appears at document 81 of the bundle states that, in making that decision, the Respondent considered the caution accepted by the Appellant for indecent assault on a female under the age of 16, his inclusion on the Sex Offenders Register, the background information provided by Cumbria Police and the Appellant’s own representations and testimonials.

11. On 6th November 2007, the Appellant appealed his inclusion on the list to this Tribunal

The Law

12. Appeal against the decision of the Secretary of State lies under s.144 of the 2002 Act. If, on appeal, the Tribunal considers that the direction is not appropriate, it may order the Respondent to revoke or vary the decision.

Evidence for the Respondent

13. Evidence was heard from John Shields. He works in the Children’s Safeguarding Operations Unit at the Department for Children, Schools and Families in Darlington. His statement appears at document 56 of the bundle. In that statement he sets out the background to the case and the reasons for the barring direction. He set out the facts as outlined above. He states in his statement that, in his representations to the Respondent prior to being placed on the list, the Appellant said that he was offering “fatherly advice” in his role as a youth leader. He had learnt from his mistakes and would not be placing himself in a similar situation again. He provided the Respondent with numerous testimonials. However, the respondent considered that the caution was significant. Furthermore, whilst the Appellant admitted in his police interview that his behaviour had been inappropriate, information received from Social Services indicated that there was an element of inconsistency in the Appellant’s attitude towards his behaviour. Also, the Appellant had filed a complaint into the way Cumbria Police conducted its investigation and the content of that complaint indicates that he does not think he is wholly to blame for the situation. This caused the Respondent some concern and this was reiterated in the oral evidence given by Mr. Shields at the hearing. He pointed out that, in the police interview, the Appellant had been inconsistent in what he had said. Initially, he had admitted engaging in an inappropriate conversation with EP, then denied it, saying he could not remember, and then, when challenged again, admitted it. The Appellant had stated that he could not really remember what had been said some two weeks after the conversation took place, but appeared to remember with absolutely clarity four years later. Mr. Shields told the Tribunal that, in the Appellant’s representations, an attempt had been made to shift some of the blame onto EP herself and her mother and that this showed a lack of insight and empathy for EP. In all the circumstances, the action taken by the Respondent had been appropriate, given the caution accepted by the Appellant, his apparent failure to recognise appropriate boundaries of behaviour and the inappropriate nature of the conversation he had with EP. The Appellant has never explained why he stopped the minibus whilst he was alone with EP and why he hugged her to him and touched her.

14. In cross-examination, Mr. Shields pointed out that he could not comment as to why it had taken Cumbria Police such a long time to refer the Appellant to the Respondent. The Secretary of State has no investigatory powers and is totally reliant on information being passed to him by other agencies. Mr. Shields is aware that the working practices of the Appellant have been changed and, since the date of the caution in 2003, there have been no further problems. He stressed that the totality of the evidence had been considered and the scenario was of an experienced youth worker having an inappropriate conversation with a 14 year old girl and indulging in inappropriate touching. In the context of the case, whether the Respondent had touched EP’s hand whilst it was between her knees was not hugely relevant; the hugging of EP, which the Appellant admits, was, in itself inappropriate in these circumstances.

Evidence for the Appellant

15. MG read his statement to the Tribunal which appears at document 46 of the bundle. In that statement he provides details of his experience of working with children and points out that, despite being placed on the list in September 2007, he has been able to continue to take out groups of children to teach them canoeing with the approval of the local police. In the 5 years since he was cautioned he estimates he has run in the region of 50 trips for children on a voluntary basis with no reported problems. He then explained the circumstances surrounding him being cautioned. Whilst alone with EP in the minibus she had told him that she was frightened of attracting the wrong kind of boyfriend. The Appellant knew that she was attracted to a boy who he considered to be totally unsuitable. He also considered EP to be very flirtatious. He suspected her friends were engaging in under age sexual activity and, therefore, felt he had to have a talk with her. At that point he stopped the bus. He had had some experience in teaching sex education in schools and stated that he told EP “things which a father would tell his daughter when faced with this situation”. He points out in his statement that he accepted the caution because he did not feel he would get a fair trial. At the police station he could remember very little of the conversation with EP and his natural reaction had been to try and protect her. The Police misinterpreted this. He accepted the caution because he had 3 children and they needed to be protected. Had he taken the matter to court he would have risked losing his job, his house and his family. Also, it was in no-one’s interests to make EP give evidence to a court. He stated that EP had been inconsistent in the story she had given to the Police. He explains in his statement that he changed his working practices following the caution and details what they now are. He also refers to extracts from the testimonials filed in support of him.

16. In cross-examination he agreed that the conversation had been inappropriate. He was taken by Ms. Olley through sections of his interview with the police which starts at document 101 of the bundle. Whilst accepting the inappropriate nature of the conversation he had had with EP he pointed out that the police had taken matters out of context and he had felt under considerable pressure to agree with their version of events. He confirmed that he had initiated the talk with EP and that he had been embarrassed recounting the details during his interview with the police. He confirmed that he may have touched her hand whilst it was on her leg and that in answer to the question “Let’s say you’re having a conversation of a sexual nature and you touch her, how would you think that would look?”, he replied “Very bad………because it’s inappropriate.” He confirmed that he had said to EP that if he wanted to have sex with her it would be an offence. He confirmed that he had discussed sex in detail with EP, telling her about the possibility of her hymen being torn. He admitted hugging her and describing in detail how to put a condom on, a subject initiated by him. He told the Tribunal that the conversation was “over the top” but that it had been his way of telling EP not to engage in under age sex. He was asked what relevance there had been in asking EP if her periods had started and he agreed that things had got out of hand. However, he stated that EP talked quite openly about it. He stressed that he had told EP she was “a beautiful lass” because he was trying to “buck her up”. Her friend had an older boyfriend and he was trying to sympathise with her. Ms. Olley pointed out that EP, in her interview with the Police, had said that, in the past, the Appellant has told them not to bother with boyfriends but be interested in “dirty old men” like him. The Appellant responded that this had been a joke. It was suggested to the Appellant that his attitude to the caution varies, noting that in his complaint to the Police which is at page 138 of the bundle he wrote “this was a supportive conversation in a minibus and not an indecent assault”. Firstly he answered that he fully admitted the inappropriateness of the conversation but then said that when the full circumstances were understood, it was a supportive conversation. He told the Tribunal that EP’s mother complains about anything and everything and that she should have spoken to him. When asked if he placed any blame on EP and her mother for what has happened, he replied “no comment”. He did however say that in EP’s interview with the Police she told 11 lies, all of which he has highlighted in the bundle. He was pressed on this point by Ms. Olley and said that EP had all the facts there but none of the context or order.

17. In answer to questions from the Tribunal, the Appellant said that, in the past, he had been a science teacher with some responsibility for sex-education for 10 years, normally dealing with groups of 30 children and had also had pastoral responsibility for a class. He had received no formal training and had never been warned not to conduct conversations of this nature whilst alone with a pupil. There had been nothing in his previous experience to warn him about the situation that developed with EP, but with the benefit of hindsight there should have been. He agreed that he should have spoken, firstly, to EP’s mother. In his final submission, the Appellant asked the Tribunal to consider why he took the caution offered to him. It had been a damage limitation exercise and should not be taken as an admission of guilt in a case which is nowhere near an indecent assault. He appreciated that the conversation had been inappropriate but asked the Tribunal to consider how much damage could have been done by a man who tells EP not to follow her friends into under age sex and how to protect herself. He pointed out the depth of public support he says he has and referred to the testimonials filed with the bundle of evidence. His caution has now expired and the Tribunal should maintain a sense or proportion.

18. The tribunal heard from RE, who gave evidence as to the Appellant’s character. His statement appears at document 54 of the bundle. He confirmed that he had never heard of any allegations of inappropriate behaviour on the part of the Appellant and that he had sent his own grandchildren to be trained by the Appellant without any qualms whatsoever. He considered that the precautions now taken by the Appellant are adequate to protect both the Appellant himself and any child.

Tribunal’s Decision

19. Regulation 12(3) Education (Prohibition from Teaching or Working with Children) Regulations 2003 states “Where a person has been convicted of any offence involving misconduct. No finding of fact on which the conviction must be taken to have been based shall be challenged on an appeal under these Regulations.” Quite simply, this means that the Tribunal cannot go behind a conviction. In this case, the Appellant was cautioned for an offence of indecent assault on a female under the age of 16. The Appellant raises two points with regard to this:
(a) It was a caution, not a conviction; and
(b) It should not be taken as an admission of guilt and was taken for the various reasons set out in detail earlier in this decision.
In Rumen Kalchev v Secretary of State for Education and Skills our colleagues stated, “In this case, Mr. Kalchev was cautioned for an offence…………This amounts to the equivalent of a conviction”  We agree with that comment. The acceptance of a caution requires an admission of guilt. That is a fundamental of English Criminal Law. Indeed the caution report issued by Cumbria Police on 1st October 2003 and which is at document 97 of the bundle specifically states “I admit the offence shown below”. It is signed by the Appellant. He cannot now say that it should not be taken as an admission of guilt. The fact is that he has been cautioned for an offence of indecent assault and, as a matter of law, the Tribunal is not allowed to go behind it.

20. Regulation 13(2) states, inter alia, 
“The Tribunal shall not, in exercising its powers under this regulation, consider
(a) any information relevant to the decision to give a direction……which the Secretary of State did not have at the time the direction was made; or
(b) any evidence of a material change of circumstances of the person concerned occurring since the decision to give a direction.”
Effectively, therefore, the Tribunal is confined to conducting a review of the decision made by the Secretary of State. In other words, it is required to decide whether the Secretary of State had sufficient evidence upon which to decide that a specified ground existed and whether or not it is an appropriate or proportionate response.

21. The Tribunal carefully considered all the evidence in the bundle and the oral evidence given at the hearing. The Appellant impressed as a man who has a genuine concern for people and an interest in serving the local community as much as he can. The Tribunal would wish to commend him for that. However, whilst he claims to accept that the conversation he had with EP and the physical contact, such as it was, that he had with her, was inappropriate, at the conclusion of the hearing the Tribunal was not satisfied, on balance, that he fully understood the implications of what he had done, nor did they accept that he fully accepted his responsibility. He does not accept that this amounted to an indecent assault but for the reasons set out above he can do nothing about that now, having accepted a caution for it. Furthermore, he places some of the blame for the predicament in which he finds himself squarely on the shoulders of EP and her mother.

22. The Tribunal accepts that he has now put in place precautions to prevent a similar problem occurring and that for the last 5 years he has had an unblemished record. It also accepts the many testimonials to his skill and dedication included in the bundle of evidence. However, it is still faced with the situation where a youth worker with many years experience conducts a wholly inappropriate conversation with a fourteen year old girl in a motor vehicle over which he has sole control and with no-one else around. Whether or not EP was comfortable with the situation, which the Appellant alleges but she denies, is irrelevant. The fact remains that it should not have taken place. Whether or not the Appellant’s intentions were simply to give her fatherly advice is not the point. It is far more fundamental than that. It raises a serious query over the Appellant’s ability to assess risk. It puts his judgement in question. In his evidence, both written and oral, the tribunal was not satisfied that he fully understood the implications of what had happened. The Tribunal has a duty to ensure that children are properly protected and a duty to maintain public confidence. The Tribunal is mindful of the comments made by our colleagues in CN v Secretary of State - “When the Tribunal considers the question of unsuitability, it must look at the factual situation in the widest possible context”.

23. The Tribunal accepts that the Appellant is most dissatisfied with the fact that it took four years for Cumbria Police to refer this matter to the Respondent. He is justifiably aggrieved. However the Respondent is entirely dependent on matters being referred to him. He cannot conduct his own investigation. The Appellant’s criticism is understandable but that is the fault of the Police, not the Respondent.

23. On balance, the Tribunal is satisfied that the Appellant demonstrated a serious lack of judgement when this incident occurred and is satisfied that the Respondent had sufficient evidence to make the direction that the Appellant should be barred on the ground of his unsuitability. Furthermore that was a proportionate response.

24. Accordingly, the appeal is dismissed.

25. This is a unanimous decision

Signed Mrs. Carolyn Singleton
Ms. Michelle Tynan
Mr. Ron Radley

10th October 2008