Soper v Secretary of State [2007] EWCST 1194 (PC) (1 April 2008)

Robert Anthony Soper
-v-
Secretary of State
[2007] 1194 PC
[2005] 1195 PVA

-Before-

His Honour Judge David Pearl
(President)

DECISION ON APPLICATION FOR LEAVE TO APPEAL UNDER s 4(1)(b) PROTECTION OF CHILDREN ACT 1999.

Background

1.	This is an application for leave to appeal the decision of the Secretary of State not to remove the Applicant from the two lists of individuals who are considered unsuitable to work with children (the PoCA list) and unsuitable to work with vulnerable adults (the PoVA list). The primary listing in this case is the PoCA list, and section 1(3) states that the Secretary of State may at any time remove an individual from the list if he is satisfied that the individual should not have been included in it. Section 4(1)(b) provides a right to appeal to the Care Standards Tribunal against a decision of the Secretary of State not to remove him from the list; but this right can be exercised only with the leave of the Tribunal. There are identical provisions in relation to the PoVA listing in section 81(3) and section 86(1)(b) of the Care Standards Act 2000.
2.	By Schedule 4 paragraph 6 and Schedule 5 paragraph 6, of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, the President or the nominated chairman shall grant or refuse leave without a hearing as he sees fit. In fact, in this case, there was a hearing to consider the Applicant’s application on 6th February 2008, when Mr P Coppel of Counsel appeared on behalf of the Secretary of State, and the Applicant represented himself.
3.	Mr Soper raised a discrete point at the hearing relating to the issue of his employer, and in those circumstances, the Respondent, by consent, was given a period of four weeks in which to submit further written arguments, and the Applicant was then provided with further time up until 28th March 2008 in which to submit a written response.  The Respondent’s submission on this issue was filed on 6th March 2008, and the Applicant’s Response was filed by letter dated 25th March 2008 received by the Tribunal on 27th March 2008.
4.	The Applicant is an organist. I have seen a letter dated 15th June 2001 from the Bishop of Southwark addressed to the Vicar of St Andrews’s Church Coulsdon that provides information relating to the background to this matter. The second paragraph to this letter states: “Following complaints of Mr Soper’s behaviour, the Revd Michael Hart and the Standing Committee of St Mary’s Church Caterham, acting in accordance with the Child Protection Guidelines of the Diocese of Southwark, arranged for a properly convened Disciplinary Hearing to take place on 16th March 1999…As a result of this hearing, Mr Soper was dismissed from his position as organist of St Mary’s.”
5.	A referral was made to the Respondent by the Diocese of Southwark, and by letter dated 2nd November 2004, the Respondent wrote to Mr Soper advising him that the provisional listings on the PoCa list (17th September 2003) and the PoVA list (2nd August 2004)  had been confirmed.
6.	By Appeal Form dated 28th January 2005, Mr Soper appealed against the two listings, and the appeal was set down for a four day hearing due to commence on 8th August 2005. However, Mr Soper wrote to the Tribunal by letter dated 14th June 2005 stating that he was withdrawing his appeals, and accordingly, by a Decision dated 23rd June 2005, I dismissed Mr Soper’s appeals.
7.	Mr Soper made an application to the Secretary of State on 31st July 2007 under section 1(3) for his name to be removed from the lists on the grounds that he should not have been included on them. By letter dated 6th September 2007, Mr Soper was advised by the Secretary of State that he had decided that he would not remove Mr Soper’s name from the lists. An application for leave to appeal was lodged with this Tribunal by Form dated 4th December 2007.

The test to be applied in s 4(1)(b) PCA 1999 and section 86(1)(b) CSA 2000 applications for leave.

8.	The appropriate test has been considered by me in the case of PD v Secretary of State [2006] 651.PC; [2006] 652 PVA in a decision promulgated on 2nd May 2006. Mr Coppel was Counsel in that case and he advanced a similar argument then to the one he advanced on this occasion. He submits that the task for the Tribunal at leave stage upon a section 1(3) application is to consider whether the Appellant has demonstrated that the Secretary of State should not have included the Appellant on the list. In other words, in the case of a referral after a dismissal, that the Secretary of State should not have reached the opinion that (a) the organisation reasonably considered the individual to be guilty of misconduct (whether or not in the course of his employment) which harmed a child or placed a child at risk of harm; and (b) that the individual is unsuitable to work with children.
9.	He posits five reasons for this test:
•	Given that the basis for an application under section 1(3) is that the individual should not have been included in the List and given that this is not a question that will be addressed once leave has been given, it should enter into consideration at the leave stage;
•	Unless this is the issue to be considered, an appeal against refusal under section 1(3) will be identical to an appeal against the original listing;
•	It would follow that the Applicant would be able to circumvent the time limits by simply making a request under section 1(3) at any time;
•	Further, it would negate the efficacy of the removal provisions in sections 4A-4B by allowing multiple applications to be made within ten years of listing (eg on the basis of the Secretary of State not being able to prove present unsuitability). The whole thrust of sections 4A-4B is that once on the List, a person is to remain there for 10 years and that in making an application for removal under section 4A care has to be taken as failure means a further 10 year wait.
•	There is a policy sense that supports the suggested construction. It gives a person who can demonstrate that the Secretary of State should not have listed him (i.e. based on the material that the Secretary of State had) a right of appeal separate from the right of appeal against the listing itself.
10.	I agree with Mr Coppel, and I reiterate here what I said in PD v Secretary of State [2006] 651 PC:
“ 16. The legislative framework is clear. There is a right to appeal as of right in the case of s 4(1)(a) (the decision to include the applicant's name on the list). This right must be exercised within three months, although there is a power under Regulation 35 to allow an appeal out of time (Regulation 35 has been considered in the following cases: Alan Hawkes v Secretary of State [2004] 243.PC; Brian Hine v Secretary of State [2004] 349.PC; Keith Marlow v Secretary of State [2004] 423.PC; Bromfield-Rabley v Secretary of State [2004] 324.PC). If the right of appeal is not exercised, the Appellant must wait for ten years (or five years if a child at the time of the listing) to apply to the Tribunal for a determination by the Tribunal as to whether or not his name should continue to be included on the list. (ss 4A, 4B). However, he can apply at any time to the Secretary of State for his name to be removed on the basis that "he should not have been included in it" (s 1(3)). On such an application, If the Secretary of State does not remove his name, he can appeal to the Tribunal under s 4(1)(b). Leave is required, before the matter can go any further. 
17.The only sensible interpretation I can give to this legislative framework is that when considering leave in an application under s 4(1)(b), the President or nominated Chairman must consider more than simply whether "there is an arguable case" or "whether there would be a realistic chance of success under s 4(3)". If Ms Sleeman [ Counsel for the Applicant] is right in her approach, there would be nothing to stop an Appellant making numerous applications under s 1(3) followed by s 4(1)(b) appeals as and when circumstances changed on "suitability". Such an approach would make nonsense of the "three-month in which to appeal" time limitation from confirmation on the list, followed by a ten year period (or a five year period in the case of a child) on the list before the Tribunal could consider suitability as at that future date. 
18. Having decided therefore that leave applications engage ss 2(6)-(7), it is necessary to look at the material that was before the Secretary of State. I cannot accept Ms Sleeman's approach that material that was not considered by the Secretary of State is relevant”. 
11.	Mr Coppel in this case submits that the material before the Respondent gave him ample grounds for reaching the view that the Diocese of Southwark reasonably considered Mr Soper to be guilty of misconduct which harmed a child or placed a child at risk of harm. He submits that the Diocese had provided the Respondent with extensive material upon which it sets out its grounds for believing that Mr Soper, in his capacity as choirmaster and organist at one of its churches, had engaged in sexual relationships with children aged between 16-18 years’ old, having abused his position of trust in order to do so. 
12.	I have considered the material that was before the Respondent (available to me in this Application for Leave and submitted by the Secretary of State when opposing the appeal against the listing), and I have concluded that it was reasonable for the Diocese to have considered the Applicant to have been guilty of misconduct which harmed a child or placed a child at risk of harm. I make no decision on whether Mr Soper was guilty of misconduct; simply on whether the Diocese reasonably considered him to have been guilty of misconduct.
13.	There remains the question relating to whether the reference by the Diocese was in accordance with law, and it is to this matter that I turn.

The Appellant’s employer
14.	Dollman & Pritchard, Solicitors then acting on behalf of the Applicant raised the issue of Mr Soper’s employer in a letter to the Secretary of State dated 9th July 2004. This letter states: “It certainly appears to us from the legislation that the referring Organisation must have ‘employed’ the individual in some capacity, either as an employee under a contract for services or as a volunteer. The fact remains that our client has never had any working relationship with the Diocese and was working only with individual Parishes, which are separate legal entities from the Diocese. It has already been confirmed in submissions that the Diocese has no power to stop a Parish employing our client and they have specifically stated ‘the Diocese of Southwark has distanced itself from the action of Coulsdon PCC.’
15.	In his submissions before me, both orally and then by way of the Response to Mr Coppel’s written submissions on this issue, Mr Soper reiterates this position. He states that he has never had a working relationship with the Diocese and therefore has never been dismissed by them. He refers me to the canon law which he says makes clear that a Church of England diocese has no power in canon law to appoint or prevent an appointment of an organist or a choirmaster nor to terminate or to bring about the termination of such an appointment. I am referred to Canon B20 which so far as is relevant says that “In all churches and chapels…the functions of appointing any organist, choirmaster…and of terminating the appointment…shall be exercisable by the minister with the agreement of the parochial church council…”
16.	Mr Soper submits that the Diocese was not his employer and accordingly was not a competent organisation to refer his name to the Secretary of State. 
17.	I have given very careful consideration to Mr Soper’s arguments which he has raised both at the hearing and in his Response to Mr Coppel’s written submissions. I must bear in mind the policy explicit in both the Protection of Children Act 1999 and the Care Standards Act 2000, namely to ensure that a system is put in place that appropriately safeguards our children and vulnerable adults.
18.	The 1999 Act was a Private Member’s Bill, and its drafting perhaps suffers from this origin. The Act is silent as to what matters are for consideration when applications for leave are made under section 4(1)(b). But an argument could be advanced that whether the referring organisation had legal status to refer an individual under section 2(1) is not a matter that can be considered by the Tribunal when considering an application for leave under section 4(1)(b). The point can be tested by asking the following question. Assuming I agreed with Mr Soper that he was not employed by the Diocese and that the Diocese had no power to refer him, what then? This is an application for leave, and if I were to grant leave, there would be a merits appeal where the only considerations would be whether there was misconduct which harmed a child or placed a child at risk of harm and whether the individual is unsuitable to work with children [section 4(3) of Protection of Children Act 1999]. In other words, Mr Soper would be unable to argue that the reference by the Diocese was unlawful. If he cannot argue this point at a substantive appeal, it is difficult to submit that he can argue the point at the leave stage. These are matters that are not within the statutory jurisdiction of the Tribunal, itself created under section 9 of the Protection of Children Act 1999. It could be argued that if Mr Soper wished to challenge the validity of the referral by the Diocese, then this should have been done by way of judicial review rather than by seeking leave to appeal the refusal to have his name removed from the list. 
19.	I would have been inclined to have refused Mr Soper’s application for leave solely for the reason as set out above, but as both Mr Coppel and Mr Soper have addressed the issue about employment, I deal with these submissions here. Mr Coppel refers to section 12(1) of the Protection of Children Act 1999 where “employment” is given an expanded definition to include office holders, so as, in his submission, to enable section 2(1) to be used by organisations to refer certain persons who are not employees within a narrow definition. He submits that the expanded definition is indifferent to whether the connection between the person who performs his functions and an organisation is one of employer-employee; master-apprentice; employer-contractor; organisation-volunteer; or organisation-officeholder. 
20.	The secular law in this area is in a state of flux at the present time. Neither Mr Coppel nor Mr Soper referred to a recent Employment Tribunal decision, reported in the Times on 20th February 2008. There is an order in place that prevents publication of this decision, and in consequence the only reference I have found to the case is the news item in The Times. It would appear that this case concerned the dismissal of an eminent organist and choirmaster in the North of England. The preliminary decision of the Employment Tribunal is that this church organist is an employee. Although this decision is not binding on me, it does illustrate that the law in this area is not as fixed as Mr Soper would have me believe. 
21.	I have looked at the Employment Appeal Tribunal decision in The New Testament Church of God v Rev S Stewart (UKEAT/293/06/DA; [2007] EWCA Civ 1004). This is one of a number of cases, following the House of Lords decision in Percy v Church of Scotland Board of National Mission [2006] IRLR 195, which emphasises intentions to create legal relations as between a Church and those carrying out spiritual and/or pastoral duties. Although that case is very different to the present one, it illustrates the important point that the view of the Applicant that the Diocese had no power to refer his name to the Secretary of State because he was not “employed” by the Diocese, cannot be dictated solely by his understanding of canon law. As Pill LJ said: “…a spiritual motivation in working for a church does not necessarily preclude an intention to create legal relations.”
22.	In this case, there is an intention to create legal relations. In particular, the Applicant is responsible for complying with child protection matters; and these are no less part of his contractual responsibilities as other more specific responsibilities concerning playing the organ and leading the choir. That latter matter may well be one between him and the vicar; the former however is between him and the individual within the Church who is responsible ultimately for the Child Protection Policy, namely the diocese. The Bishop, in his letter of 15th June 2001 to Revd Goodlad, puts the position in this way: 
‘Policy on Child Protection – A Policy Document by the House of Bishops’ places upon bishops the responsibility of advising…where there has been no prosecution but dismissal has taken place after a disciplinary hearing. 
The Diocese has the ultimate responsibility, or as Mr Coppel puts it   in his submissions “the framework of control” within the Church of England, to make referrals to the Secretary of State under section 2(7) of the Protection of Children Act 1999 of those persons who are performing functions within the Diocese; whether as vicars, choirmasters, organists, or volunteers. To argue otherwise would be to totally undermine the purpose of the legislation. The referral in this case was a valid referral under section 2(7) of the Act. 
23.	For all of these reasons, the application for leave is dismissed under Schedule 4 paragraph 6 and Schedule 5 paragraph 6.
24.	In accordance with Schedule 4 paragraph 7, the Applicant may request a reconsideration of the decision to refuse leave. Such a request must be received within ten working days after receipt of this Notice. It must be borne in mind however that the application for leave was dealt with by way of an oral hearing, and there have been subsequent written submissions. Accordingly, it is my opinion that paragraphs 7(2) and 7(3) have already been complied with. However, if the Applicant requests a reconsideration of the refusal of leave within the ten day period, the reconsideration will be considered by a nominated Chairman. If no request for a reconsideration is made, the refusal of leave to appeal will become final ten working days after receipt of this Notification.

NOTIFICATION ACCORDINGLY: REFUSAL OF LEAVE TO APPEAL.

His Honour Judge David Pearl
President
1st April 2008.