AJ v Secretary of State for Education and Skills [2006] EWCST 797(PC) (28 February 2008)
AJ
Appellant
-v-
Secretary of State for Education and Skills
[2006] 0767.PC
[2006] 0768.PVA
Respondent
Before:
Mr. Simon Oliver
(Deputy President)
Mrs. Susan Howell
Mr. Jim Lim
Decision
Heard on 12th to 15th and 30th November 2007 at Care Standards Tribunal, 18 Pocock Street, London SE1 OBW.
Representation
The Appellant appeared in person and was assisted by his father-in-law, who read out the closing submission on behalf of AJ.
The Respondent was represented by Mr. Coppel of counsel, instructed by the Treasury Solicitor.
Appeal
- This is an appeal by AJ against the decision of the Secretary of State to place him on the Protection of Children Act list (PoCA list) on 12th June 2006. As a result of that listing, the applicant was also placed on the Protection of Vulnerable Adults list (PoVA list) and the education list (commonly called List 99) which prohibits him from working with children in schools or further education establishments.
- AJ appealed against his listing to this tribunal on 22nd August 2006. A response was received from the Respondent in September 2006. There was intended to be a directions hearing on 18th January 2007 but this finally took place on 7th August 2007. At that hearing directions were given to set this case down for hearing.
The Law
- Appeals to this Tribunal against inclusion on the PoCA and PoVA lists are governed by section 4 of the Protection of Children Act 1999 and section 86 of the Care Standards Act 2000 respectively. Sections 4(3) and 86 (3) (combined) state that:
If on an appeal or determination under this section the Tribunal is not satisfied of either of the following, namely—
(a) that the individual was guilty of misconduct (whether or not in the course of his duties) which harmed (a child) or placed (a child) at risk of harm (a vulnerable adult); and
(b) that the individual is unsuitable to work with (children) (vulnerable adults),
the Tribunal shall allow the appeal or determine the issue in the individual's favour and (in either case) direct his removal from the list; otherwise it shall dismiss the appeal or direct the individual's inclusion in the list.
- Thus there are two elements that the Tribunal panel needs to consider in relation to a PoVA and PoCA appeal. First, there is whether or not the applicant is guilty of misconduct. The second is whether the applicant is unsuitable to work with children or vulnerable adults. If the panel is not satisfied on one or other ground it allows the appeal. However, under section 4(3), if the two criteria are met the Tribunal must reject an appeal against listing: there is no discretion.
- The onus of proving each of the two matters in section 4(3) lies upon the Respondent. The standard of proof is the civil standard of proof. The civil standard of proof is a single standard, namely the balance of probabilities. The civil standard of proof does not recognise or embody a moving standard according to the gravity of the allegation. Rather, the more unlikely it is that an incident of the kind alleged to have occurred would take place (based upon common experience), the stronger must be the evidence before a court or tribunal will find that on the balance of probabilities that occurrence did occur[1]. It is for this Tribunal to use its own collective experience in assessing the inherent likelihood of the particularised misconduct. It is that likelihood against which the totality of evidence is to be measured.
- Where an adult has been included on the List, that adult may at any time after 10 years apply to the Tribunal to be removed from it: sections 4A and 4B of the 1999 Act. Inclusion in the List does not prevent the listed person from securing any other form of employment. The List is not a public document. The List is not punitive. It is not disciplinary. Still less is it intended to shame or stigmatise a person. The objective of the List is to lessen the risk of harm to children from those working or having extended contact with them. It secures that objective by preventing a person who has been guilty of misconduct that harmed a child, or risked the same, and who is unsuitable to work with children, from being in a position having extended, unsupervised contact with children.
- It is the Respondent's case that the misconduct identified in each of 10 particulars set out in paragraph 22, below, placed a child at risk of harm. It is said by the Respondent that each instance of misconduct is sufficient in itself to sustain the Appellant's listing. Mr. Coppel says that unless a complainant is at particular risk (which is not asserted here), it is not necessary for the Secretary of State to adduce evidence that particular misconduct harmed or placed the complainant at risk of harm. Rather, it is for this Tribunal to use its experience and common sense to determine whether conduct of the sort described would harm or place a child of the age of these complainants at risk of harm. It is the Respondent's case that professional experience and common sense would indicate that the types of misconduct set out in Paragraph 21 below, and in particular the "Sexual Assault Misconduct", if it did not actually produce harm, certainly put the complainants at risk of harm. The Appellant accepted this in cross-examination. Therefore, the Respondent says, if not as obviously so, the same is true of the "Alcohol Misconduct" and the "Sex Magazine Misconduct", as set out in paragraph 21.
- In the present case, it is said on behalf of the Respondent that any of the incidents of Sexual Assault Misconduct (without more) renders the Appellant unsuitable to work with children. Insofar as the Alcohol Misconduct and the Sex Magazine Misconduct is concerned, Mr. Coppel says that if this Tribunal finds more than one instance of such misconduct proven, then that will suggest that the Appellant is unsuitable to work with children and that if this Tribunal accepts the gist of the accounts of any of the Royal Navy ratings', then the Appellant is unsuitable to work with children. He also contends that even without either of the foregoing, it would be open for this Tribunal to conclude that just a single instance of the Alcohol Misconduct or the Sex Magazine Misconduct renders the Appellant unsuitable to work with children on the basis of lack of acknowledgment and insight into the impropriety of the conduct.
The Background
- AJ was first an instructor with the Sea Cadets Corps at his local Unit between 1985 and mid-1987 when his employment in the Navy meant he returned to sea. As a result of a chance meeting in Tesco's in about November 1997, AJ was asked to consider returning to the Sea Cadets, which he did. As a result he became very actively involved in the local organisation, enabling youngsters to learn off-shore sailing economically. Between October 1998 and October 1999, for example, he organised 5 sailing trips. They were popular with the Cadets and on two trips it was necessary to charter a second yacht. In March 2000, such was the demand that all three of the Sea Cadet yachts were chartered.
- There is no doubt that AJ has an exemplary naval career. He has impressive skill, experience and expertise in relation to submarine escape techniques and it is not disputed that his employment involves danger and courage. It is not for a moment suggested by Mr Coppel on behalf of the Respondent that in any of these matters the Appellant should do other than command respect. However, as will be seen, there are matters relating to his naval career that we will need to consider and upon which we will need to reach a conclusion.
- Between 17th and 29th April 2002 the Applicant stood trial in the Crown Court on three counts of indecent assault on three minors: AA, RL and JB. The Applicant was found not guilty on all counts (following a rehearing in relation to AA later in the year).
- In terms of what training and induction the Applicant had when he rejoined the Sea Cadets, AJ asks us to bear in mind the evidence of AC, who is now on the District Staff of Sea Cadets. AJ says that in his witness statement and oral evidence to the Tribunal, AC describes the procedures in place when the Appellant joined the Sea Cadets in 1997. He makes it quite clear in his witness statement that the process for an adult to join the Sea Cadets is the same for all prospective volunteer personnel, even Navy personnel, confirming, in his oral evidence, that these requirements are laid down in the Sea Cadet Regulations.
- AJ says that in cross-examination by him, AC confirmed two significant facts namely: that none of the induction procedures were ever applied to the Appellant and that the appellant was never given an application form nor interviewed by the Commanding Officer; the Unit Chairman or the District Staff.
- The applicant also drew our attention to AC's Police statement of November 2000, in which he said that new staff members would be given a personal copy of the Sea Cadet Code of Practice and that staff members are expected to make themselves aware of this Code and that at Crown Court he stated that recently new staff members were required to sign as having received the Code of Conduct. When questioned further he stated that, to his knowledge, there was no record of the Appellant receiving a copy of this Code. The Applicant states that this evidence is contrary to what was said by AC at the Tribunal when AC asserted that, notwithstanding his being unable to find any record of the Appellant having been given a copy of the Code of Conduct, he, the Appellant, would have been aware of the Code and its requirement. When questioned by the Tribunal AC confirmed that there had been no training in child protection and that child protection issues pertinent to the Sea Cadets had not been discussed between colleagues.
- AJ says that AC, in his witness statement to the police in November 2000, claimed, presumably to emphasise the importance of it that the Sea Cadet Regulations were the "bible" that they work from. The Appellant asks us to conclude that this assertion sits uneasily alongside his admission during cross-examination at the Tribunal that he, a member now of the District Officers staff, does not have an in depth knowledge of the document, nor does his confirming that the only copy at the unit was held in the CO's office. The Appellant also asks the Tribunal to conclude, as the Appellant feels, that this should have been available to Instructors to be able to refer to at all times.
- In light of these facts, the Appellant believes AC's assertion is unsustainable and is firmly of the view that the lack of proper induction procedures by the Sea Cadets, thereby allowing the Appellant to unwittingly place himself in situations in which he became vulnerable to the allegations subsequently made against him.
- Mr Coppel asks us to be concerned about the Appellant's evidence at to norms within the Sea Cadets in the period 1998-2000. The disparity between the evidence of AC and that of the Appellant was both striking and revelatory. It was AC's evidence that permitting sea cadets to drink whilst on yachting trips and unaccompanied sleeping, were at the time (1998-2000) considered unacceptable within the Sea Cadets. The Appellant's evidence was to the opposite effect. The Respondent invites this Tribunal to prefer the evidence of AC. The Respondent invites this Tribunal to find that it is inconceivable that the Appellant did not appreciate that permitting sea cadets to drink whilst on yachting trips and that adults sleeping unaccompanied with youths were contrary to Sea Cadets norms and expectations.
- There is no doubt that there had been a change in attitudes during the times that the Appellant was not involved in the Sea Cadets. We can only assume that the purpose of having an induction interview and procedure was to ensure that all new adult members of the sea cadets were au fait with current child protection policies and procedures. If AJ did not go through this process it is unfortunate. We cannot say, however, whether the allegations would still have been made or not. Likewise we cannot conclude that the Applicant would have acted in a different way had the procedures been followed properly, only that it might have made a difference. We also note that the document referred to as the Code of Conduct has very little in the way of Child Protection advice or guidance and if that is all that is available it is woefully inadequate.
- Having said that, the Tribunal feels that whether or not the Appellant had a copy of the Code of Conduct or if he had read it is immaterial since good practice and common sense suggests that when young people are effectively "in trust" of a "responsible adult" alcohol consumption should not be permitted. Similarly where an adult sleeps in the same room or area as young boys he risks finding himself in a compromising situation.
The Particulars of Misconduct
- At our request the Secretary of State has set out in a document the particulars of misconduct relied upon. In short the case against AJ is that he behaved sexually inappropriately with three young men on various occasions during the period between October 1998 and July 2000 and on various occasions permitted them to consume alcohol.
- The Respondent has particularised 10 instances of misconduct. Four involve permitting a sea cadet to consume alcohol whilst being under the charge of the Appellant: particulars 2, 4, 7, and 10 ("the Alcohol Misconduct"). Five involve a sexual assault: particulars 3, 5, 6, 8 and 9 ("the Sexual Assault Misconduct"). One involves providing a youth with one or more magazines with pictures showing human sexual penetration: particular 1 ("the Sex Magazine Misconduct").
- We will set out here the details of the 10 Particulars of Misconduct. There after we will simply refer to them as 'Particular X'
First particular of misconduct: The Appellant, in the course of his being an instructor in the Sea Cadets, showed RL, a 13 year-old Sea Cadet in his charge, pictures of human sexual penetration.
Second particular of misconduct: The Appellant, in the course of his being an Instructor in the Sea Cadets, permitted RL, a 13 year-old Sea Cadet in his charge, to consume alcohol.
Third particular of misconduct: The Appellant, in the course of his being an Instructor in the Sea Cadets and without invitation or cause, placed his hand inside the sleeping bag of RL, a 13 year-old Sea Cadet in his charge, and touched his penis as he did so.
Fourth particular of misconduct: The Appellant, in the course of his being an Instructor in the Sea Cadets, permitted RL, a 13 year-old Sea Cadet in his charge, to consume alcohol.
Fifth particular of misconduct: The Appellant, in the course of his being an Instructor in the Sea Cadets and without invitation or cause, masturbated JB, a 13 year-old Sea Cadet in his charge, causing him to ejaculate
Sixth particular of misconduct: The Appellant, in the course of his being an Instructor in the Sea Cadets and without invitation or cause, placed the hand of JB, a 13 year old Sea Cadet in his charge, on the Appellant's penis.
Seventh particular of misconduct: The Appellant, in the course of his being an Instructor in the Sea Cadets, permitted JB, a 13 year-old Sea Cadet in his charge, to consume alcohol.
Eighth particular of misconduct: The Appellant, in the course of his being an Instructor in the Sea Cadets and without invitation or cause, placed his hand on the penis of AA, a 13 year-old Sea Cadet in his charge, leaving it there for a period of upwards of one minute.
Ninth particular of misconduct: The Appellant, in the course of his being an Instructor in the Sea Cadets and without invitation or cause, pulled down the shorts of AA, a 13 year-old Sea Cadet in his charge, and kissed his penis.
Tenth particular of misconduct: The Appellant, in the course of his being an Instructor in the Sea Cadets, permitted AA, a 13 year-old Sea Cadet in his charge, to consume alcohol.
- In response to the Respondent's 'Particulars of Misconduct', AJ, whilst accepting that the three young men were under his supervision at the Sea Cadets, denies the allegations made against him in relation to the Sexual Assault and Sex Magazine Misconduct. As for the Alcohol Misconduct, AJ states that, in relation to RL, he was not in his charge at the time suggested. In relation to JB, AJ accepts that he permitted JB to drink alcohol although he disputes the quantities stated. As for AA, AJ denies permitting him to consume alcohol on that occasion.
In all, the Applicant has been living with the allegations in one set of proceedings or another for about 7 years.
- In addition to the Sea Cadet allegations, there have been a series of allegations made about AJ's conduct in the Navy between April and August 2000. The allegations are that that the Appellant, uninvited and without excuse, manually contacted each of twelve naval rating's genitals in a manner and for a duration that is inconsistent with it being an accident. We will deal with these allegations before we consider the ten allegations of misconduct.
The Evidence heard
- We heard evidence from AA, AJ, AC, JW Leigh and Lt Cdr G. We did not have live oral evidence from JB or RL but we were able to watch the video recording of their police interviews and read the transcript of their evidence in the crown court. Given that neither JB nor RL gave live evidence to the Tribunal, the Applicant made a statement to us at the end of each of their evidence drawing our attention to matters he asked us to take into consideration when assessing their evidence. We will refer to those points when making our findings. In all, we read about 2,500 pages of documents and saw 4 DVDs. In addition to the evidence relating to the 10 'Particulars of Misconduct' we had documents relating to the naval enquiry as well as documents concerning the educational development of the three boys and the local authority's child protection documents. Both Mr Coppel and AJ provided us with detailed and extensive written closing submissions, each running to over 26 pages. Given the quantity of evidence we have considered, we do not intend to rehearse it in detail in this decision – just those matters that are germane to our decision making.
Our approach
- Having thought about the way to structure this decision so it is intelligible, we have come to the conclusion that it is best to deal with each particular of misconduct as a discrete entity, setting out the evidence we have heard, the facts we find in relation to that evidence and the conclusion we reach on the facts. Before we can do that, however, we need to consider what weight we have to attach to the evidence of each witness and, given that it took a far more significant role in the case than had been anticipated by all concerned, we have decided that we need to make some findings in relation to the naval investigation evidence. It may be that our conclusions on that evidence will inform our decision in relation to the 10 Particulars.
The assessment of the witnesses
- In reaching a decision on each of the ten particulars of misconduct, it is going to be necessary to reach a conclusion on the competing merits of the evidence we have heard and read. Given that JB and RL did not attend the Tribunal hearing, we will need to determine what weight we place on their evidence in contrast to AA's. There is the additional point raised by Mr. Coppel in relation to witnesses who could have been called but were not. He says that the failure by a party disputing a fact in issue to call available contrary evidence has two consequences. Mr Coppel said that the first consequence was that the fact that might have been contradicted can more readily be accepted and the second consequence was that the failure to call that evidence is a factor in favour of whether, as a matter of logical reasoning, an identified inference which is otherwise open from the proven facts should be drawn.
- In those circumstances we are also going to have to reach a view on the effect of not hearing from certain witnesses as well. Mr. Coppel says that if a party fails to call a witness who might have been expected to give evidence favourable to that party, that allows the Tribunal to draw an inference that that witness' evidence would not have helped that party's case. Mr Coppel relies upon the case of Wisniewski v. Central Manchester Health Authority[2] and says that Brooke LJ, after considering the authorities, summed up the principles relating to the failure to call a particular witness thus:
"(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.
(2) If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.
(3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.
(4) If the reason for the witness's absence or silence satisfies the court then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified."
In other words, we have to determine what, if any, inference we draw from the failure by the Applicant to call JW, CW and DN, which we do from Paragraph 42 onwards.
The Respondent's witnesses
- Of the three complainants whose allegations found the misconduct upon which the listing is based, the Respondent was only able to secure a statement and attendance from one — AA. The non-attendance of the other two — RL and JB — was explained in a witness statement from the Respondent's solicitor. Mr. Coppel wishes us to accept that the reasons that they did not attend are sufficient such that no adverse inference should be drawn from their non-attendance. He does accept, however, that the evidence that comes from them through their police interviews should not be given the same weight as if they had attended the Tribunal as it is unquestionable that had they attended the Tribunal to give evidence that would have made their evidence more compelling because they would have been able to have been questioned. Of course, Mr Coppel says, the Tribunal has the advantage of having seen a video recording of their interview, together with a transcript of the same, as well as transcript of their cross-examination in the Crown Court and so the Tribunal is better placed to assess their evidence than had it had transcripts or statements alone.
- The applicant attacks the credibility of both RL and JB, referring us to documents relating to their education background as well as inconsistencies in their evidence. We will set this out when we consider the first allegation relating to each individual. In general criticism of the Respondent's witnesses, however, the Applicant says that the Respondent seems to have made no strenuous efforts to either persuade or compel either of them to attend at the tribunal and that the lack of diligence in seeking to compel their attendance, is prejudicial to the Appellant as it denies him the opportunity of cross examination of persons whose allegations the Appellant would seek to show are entirely false.
- As for the fact that the Respondent wishes the Tribunal to take the view that no adverse inference should be drawn from, nor any reduction allowed in the weight of their evidence because of their unreasoned non-attendance, the Appellant contests that most strongly and urges us to give appropriate weight to the his objection when considering the reliance to be afforded to any of the evidence given in any of the statements previously made by RL and JB.
- We acknowledge that neither RL nor JB attended. We accept that the Respondent did make appropriate and reasonable efforts to secure their attendance. However, it is still the case that they did not attend and we did not have the benefit of hearing their evidence. AJ did not have the opportunity to cross examine them and we were not able to form an assessment of them in the same way as we could with AA. We cannot conclude that we should discount all their evidence but we do treat it with caution and place less emphasis on it from the start. Our view of exactly how much weight to put on their evidence will depend on their individual circumstances. For example, we also bear in mind that current thinking in child protection work would urge that, to give less weight to young persons whose evidence was given on video, would be prejudicial. As their respective video evidence was admissible in court, it is said that to ask them to revisit the abuse is, in itself, "abusive". However, we also bear in mind that we have to assess this evidence as all of it on the Balance of Probability and bearing in mind the Re H test so this evidence can form only part of our assessment.
The Appellant
- In assessing the Applicant as a witness, Mr. Coppel reminds us that there are irreconcilable differences between the Appellant's account of events and those of AA, JB, RL and the 12 Royal Navy ratings. It is the Respondent's case that these differences cannot be simply characterised as differences of interpretation or recollection and that to the extent that these accounts differ, the accounts given by AA, JB, RL and the 12 Royal Navy ratings are at their core truthful and that the account given by the Appellant is not truthful or, at best, at times not accurate.
- Mr. Coppel goes further, however. He says that the Appellant's loose attitude to the truth has marked his approach to the listing from the outset. For example Mr Coppel says that the Appellant's attempt to return to the Sea Cadets immediately after his second acquittal (which was rejected by the Sea Cadets) is important, as is the fact that the Appellant did not, at that time he was seeking to return, disclose to them that he had been investigated by the Royal Navy for allegations of sexual abuse and that this had got so far as being referred to trial by court-martial. The Respondent says that when the Sea Cadets were made aware of this by Social Services, the Appellant misrepresented the outcome of the Royal Navy investigation. These points are relevant, asserts Mr. Coppel, because it suggests very troubling behaviour on the part of the Appellant. Mr. Coppel suggests that by withholding relevant facts and distorting others, the Appellant was 'self evidently engaging in conduct that undermined the integrity of the risk assessment that necessarily had to be carried out if he were to return to the sea cadets.' When challenged on these matters before this Tribunal, Mr. Coppel notes that the Appellant was unrepentant, showing no insight as to the importance of candour for the purposes of this exercise and that we should bear in mind this lack of candour when we assess AJ as a witness.
35. In response AJ says that the suggestion that, following his acquittal on the criminal charges, his intention in seeking to discover whether he would be able to re-join the Sea Cadets was for ulterior motive is vehemently rejected. The Appellant says that the purpose of him raising the question was to discover what their attitude would be to this and, if negative, to obtain their reasons.
- The reasons for wanting to discover what attitude the Sea Cadets had is, he said, that whilst he acknowledges the hard work and dedication of the many individuals who work as volunteers for the Sea Cadets, he does not now respect the Sea Cadets as an organisation. This, AJ says, stems from the total lack of support offered to him and his family by the Sea Cadets, which the Appellant feels is best summed up in the minutes of the Strategy Group Meeting following his acquittal at Crown Court, when, without any evidence to support his assertion, the Sea Cadet representative told the meeting that by "reading between the lines" of letters received from the Appellant, he believed he was trying to take on the Sea Cadets for being unfairly dealt with.
- AJ also said that, although he considered the Sea Cadet's actions in sending letters to parents of cadets as unjust and potentially harmful to his family, he has never taken on the Sea Cadets for being unfairly dealt with in relation to the allegations made against him by cadets. However, he has insisted that the Sea Cadets justify their decision to refer his name to PoCA, especially after they stated that they "did not intend to challenge the decision not to place the Appellant's name on the PoCA list because it saw little chance of success and considered that to do so might appear purely and inappropriately vindictive". We were left perplexed as to the Appellant's motive. If his reasons were merely to obtain a position to test out the organisation, this appears to us to be an unusual response to a genuinely perceived "let down" by the organisation.
- Our assessment of AJ as a witness is that generally he presents as a good witness. He has prepared his appeal with care and diligence. He was able to respond to long and searching questioning from Mr Coppel. He appeared to be under most pressure when dealing with the sexual assaults when he became slightly less coherent but he was able to quickly regain his composure and was much more at ease when describing SETT escape techniques and layout of yachts. In his eagerness to clear his name he may have on occasions given conflicting evidence and been too ready to suggest those alleging indecent assaults were bearing grudges. Likewise, following his perceived poor treatment by the Sea Cadets, he appeared determined to expose their organisational frailties.
- As a person, we find AJ admirably composed and ably competent in the way he has conducted the case. His calmness throughout the proceedings belies a man steadfastly determined to clear his name in "open court" and we are conscious of the requirement to separate his evident professional standing and qualities against what the potential risk a person that so inclined could pose to vulnerable young people, whatever his other personal qualities may command.
The Appellant's witnesses
- Mr. Coppel wishes us to draw inferences from the inconsistencies in the evidence of the witnesses called by AJ. The Appellant's preparation of witness statements for JuW, JW and CW and his less than candid account of the extent of his involvement with those witness statements, cannot simply be passed off as lack of familiarity with procedure. It was, says Mr. Coppel, a deliberate attempt to bring evidence forward, seemingly from independent witnesses, but which actually emanated from the Appellant himself. Of course, although statements were prepared for all of them they did not all give evidence.
The witnesses the Appellant did not call
41. Mr. Coppel says that there were notable witnesses whom the Appellant might have been expected to call, but whom he did not call namely DN. Mr Coppel says that the Appellant had known him in a close professional capacity for years. The Respondent drew our attention to the fact that Appellant did not suggest that he did not know of his current whereabouts. As DN could have given evidence on the trips on the Sea Lion, his absence is unexplained and the Respondent invites this Tribunal to draw an adverse inference from the Appellant's failure to call DN. The Respondent further invites this Tribunal to take this into account in its overall assessment of the evidence, with the effect that it weakens the Appellant's own account of the events in question.
- We have read through the evidence that DN gave in the crown court. It seems to us that he was not able to recall too much detail and did say that had anything unusual occurred he would have remembered it. Whilst it is always important in a tribunal such as this to have the opportunity to see and hear witnesses to gain a better understanding of events, we do accept that, given the limited detailed evidence DN gave in the crown court it would be difficult for him to add anything from his own memory rather than from being prompted by documents or discussions with AJ. As a result we do not see the decision not to call DN as a weakness.
- Another witness the Respondent says AJ could have called but did not was JuW. He was on the Sea Lion trip with RL in October-November 1998 and gave evidence to the Crown Court on 19 April 2002 as to contemporaneous complaint by RL of sexual assault. He gave a statement to police to similar effect Mr. Coppel also states that JuW similarly gave evidence to the Crown Court of a contemporaneous complaint by JB of having been sexually abused by the Appellant and was also on the two trips that AA was on, giving evidence to the Crown Court as to what took place on those trips. The Respondent also says that JuW also gave evidence to the Crown Court of alcohol consumption by Sea Cadets whilst on trips. Indeed, says Mr. Coppel, the Appellant went so far as to serve a witness statement signed by JuW. He was, apparently, present at the Tribunal, ready to be questioned. Then, without explanation, the Appellant announced that he would not be called as a witness. In so doing, the Appellant chose not to call a witness who could speak to the very occasions on which the particularised misconduct was alleged to have taken place. This Tribunal specifically invited the Appellant to reflect on this decision, allowing the Appellant a short adjournment to do so. The Respondent alerted the Tribunal to the significance that he would seek to draw from the Appellant's decision. Given all this, the Respondent invites this Tribunal to draw an adverse inference from the Appellant's failure to call JuW. The Respondent further invites this Tribunal to take this into account in its overall assessment of the evidence, with the effect that it weakens the Appellant's own account of the events in question.
44. The last witness that the Respondent says that the Appellant should have called, and did not, was CW. CW was a supervising adult on the 12-14 March 1999 trip, about which AA made a complaint of sexual assault by the Appellant. He was also on the TS City Liveryman on the trip on 3-5 March 2000, about which RL made a statement. He, too, could have given evidence about norms and expectations regarding alcohol consumption and sleeping arrangements. Once again, the Appellant went so far as to serve a witness statement signed by him. He too, apparently, was present at the Tribunal, ready to be questioned. Then, without explanation, the Appellant announced that he would not be called as a witness. The Respondent repeats for CW the invitations made above in relation to JuW.
- The Appellant states that the basis of his approach has been quite straightforward. In deciding upon which witnesses to call, he firstly re-read all the statements made seven years ago to decide whether any of those who made them would be likely to have any better recollection of the events than they did then. He concluded that this was very unlikely and, as such, no purpose would be served in calling them. Those he did call, Lt Cdr G and AL, were there specifically to deal with issues not previously covered within the documents available to the Tribunal. Although JW, JuW and CW all attended to give evidence regarding the allegation that the Appellant had allowed alcohol to be consumed by minors on sailing trips, only JW was actually called to give evidence. Nevertheless, all three provided witness statements covering this question, it not being an issue covered by any of them previously
- The Respondent attempted to impugn the validity of these witness statements by drawing attention to their similar phraseology but the Appellant pointed out that the phrase used was that which appeared in the Particulars of Misconduct that the Appellant was asking them to refute. The imputation that JWs evidence was fettered by reason, openly declared by the Appellant, of him and his family being "family friends" is totally rejected by both the Appellant and JW. The Appellant also rejects the Respondent's assertion that the Appellant tried to hide anything from JW. Whilst JW stated that the Appellant and he had, for the purposes of preparing his witness statement, only talked about issues concerning alcohol, bearing in mind that his brother gave evidence at the Crown Court and that he was a Sea Cadet at the time of the alleged incidents, it is inevitable that JW would have known about the allegations made against the Appellant.
- The Appellant believes that the five people who gave witness statements specifically for this Tribunal and the three witnesses called by him gave witness statements or testimony not because they were friends, as in the case of the JW's and CW or work colleagues as in the case of Lt Cdr G and AL, but because it was the right thing to do. The Respondent's suggestion that Lt Cdr G was giving his evidence on the basis of a Senior Officer looking after one of his own took no account of Lt Cdr G's integrity. It should be borne in mind that Lt Cdr G has, from the very beginning in 2000, always been aware of the allegations made against the Appellant and there can be very few endorsements that say more than Lt Cdr G stating that he would have no worries at all about his young son, who has recently joined the Navy, being cared for by the Appellant.
- For us as a Tribunal, not having the opportunity to see these witnesses makes our decision all the more difficult. It may have been that they would have rehearsed ground already covered but we might have been given a different perspective and even gained a better understanding of the situation. We did not have the opportunity of 'testing the evidence'.
- Our conclusions upon the non-calling of witnesses by the Applicant is that the Tribunal would have been assisted by any witness who could corroborate the facts of what actually occurred. We could have judged the credibility of that witness and even if there were "gaps in the story" we could have formed a view. We cannot be sure whether the appellant felt his case would be weakened by submitting the witnesses to cross examination or whether, as he said, there was no fresh evidence to hear. Whichever would have been the case whilst we cannot use the evidence of those who were not called to decide this matter one way or another, the lack of this evidence does not fatally weaken the Appellant's case as there is a wealth of material for us to consider in any event.
Royal Navy investigation
- Before we turn to the ten allegations of misconduct we need to make a decision as to the Royal Navy investigation and what weight we put on that evidence. This is notwithstanding the fact that the Respondent does not use the evidence from the Royal Navy ratings as free-standing instances of misconduct for the purposes of section 4(3)(a) of the Protection of Children Act 1999 but because we are asked us to draw a number of conclusions from it. It is said by Mr. Coppel that the evidence stands as similar fact evidence which is probative of the non-alcohol related particulars of misconduct and stands as evidence of present unsuitability to work with children under section 4(3)(b).
- Mr Coppel submitted to us that evidence of what has happened on an earlier or later occasion (such as the Naval matters) may make the occurrence of what happened on the occasion in question (that is the Particulars) more or less probable. He says that whether it is so probative depends on the degree of similarity between it and the primary matter in issue, as well as the temporal proximity of the two occurrences. It is necessary, therefore, for us to reach a conclusion on the Royal Navy allegations as our conclusions there may affect our decision on the other matters. Of course, the first point to note is that we did not hear from any of the Navy ratings. We read their statements and saw a video of what happened in the training.
- The reason Mr. Coppel wishes to rely on the incidents involving the Royal Navy ratings (assuming they occurred in broadly the manner described in the rating's witness statements) is because he says that they share features with each of the particularised instances of non-alcohol related misconduct:
- they all involve the Appellant with another male, very considerably younger than the Appellant (the other male invariably being in his teens or early 20s);
- they all involve settings with which the Appellant is familiar, but the
- they all involve the complainant in a subordinate position to the Appellant;
- they all describe occurrences of short duration (no more than 10 minutes or
- so), unaccompanied by violence or words related to the acts; and
- they are all opportunistic occurrences, with third parties in close proximity
- but not witnessing the occurrences.
The statements of the Royal Navy ratings
- The Tribunal has not had the advantage of seeing the Royal Navy ratings and the Appellant has not had the opportunity of testing their evidence. That will necessarily lessen the weight to be attached to their witness statements. However, Mr. Coppel says, nonetheless, that
• The statements are mostly contemporaneous or near contemporaneous.
• The witnesses came from 4 or 5 different training groups, with no obvious means for collaboration between the groups.
• Their form suggests that they were professionally prepared, including explicit warnings.
• The handwriting on the statements, which changes from statement to statement, suggests that they were written by the ratings themselves.
• No attempt appears to have been made to correct the frequent and obvious spelling and grammatical mistakes, again suggesting that they are the sole work of the witnesses themselves without assistance.
• Significantly, material adverse to any proceedings (and which is helpful to the Appellant) has been included, including witnesses who state that they make no complaint about what occurred and witnesses who speak of discussion amongst the ratings.
Mr. Coppel says these points all suggest properly prepared witness statements that faithfully record the witness' recollection of events. The non-attendance of the ratings at this tribunal does not assist or detract from our decision making. Of course, had they attended the hearing to give repeat their allegations that would have provided an opportunity for the Appellant to cross examine them and for us to explore some contradictions that appear in the statements. However, we are satisfied that our analysis of these complaints has not been hampered by the lack of direct oral evidence as we have all the papers. We can, and will, rely on the documents provided to us which not only detail the allegations but also the process and outcome of the SIB investigation.
- Until the start of the hearing the Appellant was not clear as to what use the SIB evidence was to be put but, when informed by Mr. Coppel, he was able to deal with the matter. Lt Cdr G had been called by AJ to give evidence about other matters. Having been taken to one of the statements by Mr Coppel Lt Cdr G was able to make comments about why he thought that the individual who made that statement. It was after a brief adjournment by the Tribunal that Lt Cdr G agreed with our invitation to consider all the Naval ratings evidence and returned on the Thursday of the hearing. The reason we asked Lt Cdr G to do this was because we were concerned about the quality of the SIB evidence and had come to the conclusion that if we were being asked to rely upon it and draw certain conclusions from it, we needed to explore it in more depth and not necessarily take it at face value.
- It is fair to say that AJ and Lt Cdr G mounted a concerted attack on these statements, as might be expected given that they had now taken on greater importance then was at first thought. Mr. Coppel is critical of both AJ and Lt Cdr. DG, stating that their evidence 'shifted according to the moment'. At first, he says, they were adamant that the ratings had simply misconstrued innocent physical contact that was an inevitable part of the training exercise. It was said that the events had taken place in a highly charged and unusual setting, making misinterpretation easier. The Appellant made much of the "hydrostatic leg squeeze", but in fact none of the ratings complained of contact with their legs. At other times, when the evidence of pelvic contact could not be reconciled with such a benign interpretation, both the Appellant and Lt Cdr DG asserted that the witnesses had been coached, that they had collaborated with each other, and that they had lied so as to attack the position of a senior officer. And at yet further times, both the Appellant and Lt Cdr DG attacked some of the ratings' evidence on the basis that the Appellant was not (and could not have been) their instructor. This last line of attack was contradicted by the Appellant's own evidence and no more need be said about it.
- Mr Coppel invites us to come to the conclusion that all three lines of attack had the same objective: to rubbish the evidence given by the Royal Navy ratings and that none of the lines of attack stands up to scrutiny. The innocent manhandling explanation cannot be reconciled with the accounts given, he says. Even allowing a considerable margin for descriptive inaccuracy, the nature, extent, character and duration of the touching described in the ratings' witness statements are simply incapable of being brushed off as misunderstanding on their part. Again, the essential consistency between these accounts - prolonged manual contact by the Appellant with the rating' genitals - makes the Appellant's innocent manhandling thesis untenable.
- The Respondent invites this Tribunal to reject the contention that all twelve Royal Navy ratings, in the accounts given in their witness statements, had misinterpreted what was no more than necessary physical manhandling that was part of the training process. The Respondent invites this Tribunal to accept the essential elements of the accounts given: namely, that the Appellant, uninvited and without excuse, manually contacted each of the rating's genitals in a manner and for a duration that is inconsistent with inadvertence.
- Mr Coppel points to what he described as "other troubling elements" in the Appellant's evidence:
(1) He was adamant in answer to questions from the Tribunal that during the "dry run" (otherwise called the "tower acquaint") the hatch on the floor of the escape tower would be left open. On this basis, the Appellant challenged the veracity of some of the ratings' statements. Lt Cdr. G gave clear evidence to the Tribunal to the opposite effect, i.e. that once the rating was in the escape tower, the hatch would be shut, not least because of the obvious safety hazard in leaving it open. Mr Coppel says that the significance of the discrepancy is obvious: by telling the Tribunal that the hatch was open, the Appellant both wanted to give the impression that whatever he was doing in the escape tower could have been seen, as well as attacking the credibility/reliability of the ratings' statements. The Respondent invites the Tribunal to find that the Appellant's account to this Tribunal was incorrect (i.e. the Respondent invites the Tribunal to find as a fact that the hatch was shut) and that the Appellant knew it was incorrect.
- The Appellant's evidence as to the duration of the tower acquaint exercise (something he has performed many times) altered significantly, says Mr. Coppel. He began by telling the Tribunal that it lasted approximately 1½ minutes. Later, the Appellant ran through for the Tribunal just that part of the briefing that comprised showing the rating whether the pennant would attach to the belt: that, alone, took 1½ minutes. The Appellant admitted that he had to speak slowly in order to ensure that the ratings understood. Lt Cdr G gave evidence to the Tribunal that the tower acquaint exercise lasted considerably longer than 1½ minutes. Echoing the Appellant's attack on AA, the Appellant told this Tribunal that it was possible that the rating who initiated the complaint had a "grudge" against him or complained maliciously on the basis that the rating had been reprimanded by the Appellant in class. As was put to him in cross -examination, this was not suggested by him in his interview by the RN SIB (on 12th December 2000). His only explanation to this Tribunal for this remarkable omission was that he only answered questions asked of him. The Appellant was taken in cross-examination to the statement of MS, who stated that during the tower acquaint the Appellant made his hand into a fist, which remained in his groin area for the remainder of the session, approximately two minutes. The Appellant, having been taken specifically to this statement, first told this Tribunal that that did not amount to a sexual assault. When asked to look at it again, and the question was repeated, his answer to the Tribunal was that "it could be sexual assault, but that it was not."
- Mr Coppel argues that Lt Cdr G is deeply flawed witness and draws the following points to our attention. He says that Lt Cdr G assumed for himself the role of analysing the witness statements of the Royal Navy ratings, supposedly to give an independent assessment of their reliability. When, on the first day of his evidence, he undertook to carry out this task (not having previously seen the statements) he told the tribunal that: "I find the whole thing personally farcical" A little later on, having seen only two of the statements, he told the tribunal: "I could pick holes in all of these." And that is precisely how he approached the whole task. When he returned to give evidence, he quickly conceded in cross-examination that all he had been concerned to do in this exercise was to identify what he considered to be flaws in these statements. This admitted approach, alone, makes it unsafe for this Tribunal to accept any part of his analysis of those witness statements. The Respondent invites the Tribunal to reject his "analysis" in its entirety. It is simply not possible to identify safely which bits of his "analysis" are blighted by his approach and which are not. But Lt Cdr. G's partisanship went further than this says Mr Coppel. He took it upon himself to comment on the way in which the statements had been secured, happy to speculate as to the supposed shortcomings in their preparation. During the course of his "analysis" of the ratings witness statements, he went so far as to assert that the ratings: "had said things to please the investigating staff and not to tell the truth." In fact, he had absolutely no factual basis for assuming that the witness statements had not been prepared other than properly by the Royal Navy SIB. He told the Tribunal that it should "throw out" the entirety of PRJ's witness statement on the sole basis of it mentioning a rumour: "that a coxswain at the tank touches you up."
- The Tribunal is asked to remember that Lt Cdr. G told us that JSP's evidence as to what occurred during the "rush escape" was impossible on the basis that there was no way the Appellant could reach JSP. When pressed by the Tribunal (noting that JSP had said that it occurred before he entered the tower), Lt Cdr. G was forced to acknowledge that he had misinterpreted the witness statement and had to retract his evidence that what was described was impossible. This reflected great carelessness by Lt Cdr. G in his reading of the witness statements and in his evidence to the Tribunal. In his anxiety to protect the Appellant, Lt Cdr. G provided the Tribunal with a catalogue of increasingly incredible excuses for what the ratings recorded had happened. First, he said that the net result of the Appellant using his left hand, the rating wearing a suit and the restricted space in the tower was that there could be pressure around the rating's genitalia. When it was put to him that the ratings complained of movement, he then said that because the suit was gathered there could be "a sensation of movement." When it was then put to him that even if this did occur, that could not explain the duration complained of, his response was that an instructor's hand might have to be in the groin area "for however long, up to a minute." Tellingly, the Appellant did not give evidence to this effect.
- The Tribunal is asked to remember that Lt Cdr G stated that he would expect to be told within a day of any allegations or complaints. But, in fact, as came out during his reexamination, it was another coxswain at the SETT who decided that it was necessary to report the incident to an independent person. The Respondent invites the Tribunal to reject the independence or reliability of Lt Cdr G's assessment of the ratings' witness statements. The Respondent invites the Tribunal to find that his "assessment" was exclusively informed by his desire to assist the Appellant and, as part of that, to denigrate any part of the ratings' witness statements that he considered contrary to the interests of the Appellant.
- In response, the Applicant says that the professionalism and standards that the Appellant insisted upon were confirmed by Lt Cdr DG and were supported by WO AL. AL is now in charge of the SETT, confirmed in his evidence that the third DVD we were shown portrayed an accurate depiction of the training that took place in 2000 known as "Tower Acquaint" also referred to as "Dry Run" during this hearing. The Applicant also reminded us that AL confirmed that he had wished for a training stance that incorporated an appreciation of Hydrostatic Squeeze and that this had been accepted and introduced from the start of the Summer term 2000 (in April) but was withdrawn following complaints made at the end of the Summer 2000 term (by about August). Lt Cdr G also agreed that this particular training stance had been introduced about Easter 2000.
- The basic facts of the RN SIB investigation are not in dispute. In August 2000 a complaint of indecent assault by the Appellant was made by a JMW. The Royal Navy Special Investigation Branch (RNSIB) conducted an inquiry and we have had the benefit or reading all those papers. During the course of the SIB inquiry, a number of other trainees made statements to the RN SIB that they had experienced similar assaults. AJ says that as there had been no complaints recorded against the Applicant before JMW's there must have been a "trawl" through all those trainees who had passed through the SETT during the time the Appellant had been involved as an Instructor using the revised escape drills instituted in the Spring of 2000 which were those subsequently revised in the light of the allegation that led to the RNSIB investigation. We have no evidence to say whether this assertion is correct or not. However, we do note that some witnesses gave differing accounts of what they thought about AJ's actions. When first interviewed they thought what happened to be normal and part of the procedure but it was only after others complained that they sought to place a different emphasis on what had gone on. We are aware of the possibility that there may have been abuse committed by AJ but that given the inherent structures of the Navy and ethos of not questioning a superior officer it could be possible that most individual junior ratings would tend to keep quiet about any misdemeanour upon them until there was a complaint and investigation. .
- The Applicant says that the detailed and graphic description given to the Tribunal of the training carried out at the SETT confirmed that it is dangerous to- an extent that any deviation from the tightly choreographed routines of the training programme is likely to create hazards to the physical health and well being of any of the participants, which could cause (and has in the past indeed caused) serious debilitating injury or even death. The Applicant asks us, therefore, to consider whether it is conscionable that anyone, let alone a Senior Instructor with responsibility for the safety of others, would or could indulge in any extraneous activity such as that of which the Appellant is accused, knowing the level of risk to life involved.
- The Respondent invites this Tribunal to reject the contention that all twelve Royal Navy ratings, in the accounts given in their witness statements, had misinterpreted what was no more than necessary physical manhandling that was part of the training process. The Respondent invites this Tribunal to accept the essential elements of the accounts given: namely, that the Appellant, uninvited and without excuse, manually contacted each of the rating's genitals in a manner and for a duration that is inconsistent with inadvertence.
- Mr Coppel states, therefore, and asks us to find that on the basis that the incidents involving the Royal Navy ratings occurred in broadly the manner described in their witness statements, they make it significantly more likely that the events described by RL, JB and AA are neither invented nor inaccurately described.
- We are also aware that although there were 12 ratings, they attended on only five courses. We cannot tell because we did not have the benefit of seeing them give evidence and be cross-examined and whether or not they had discussed the matter between themselves. We likewise do not know whether or not the groups were from the same base and there at the same time giving rise to the concern that they may have spoken to others about the alleged incidents.
- On 12 December 2000 the Appellant was interviewed by the RNSIB and was asked to describe the "Dry Run", this he did. From the written evidence and what we saw on the DVD (and confirmed as correct by AL) the lower hatch is left open for a "Dry Run". This leads us to the conclusion that it is Lt Cdr G whose memory is at fault in that respect and that no inferences can be drawn against the Applicant in that regard.
- The Appellant draws to our attention to the Naval Prosecuting Authority's decision that it would "be improper to institute Court Martial proceedings" which was based, inter alia, upon his opinion that: There is compelling evidence that properly conducted demonstration training does necessarily involve contact that might otherwise be indecent. During the investigation, another instructor at SETT was invited to demonstrate the instruction technique on one of the investigators. The investigator gives evidence that the demonstration involved contact that could be construed as touching of the area around the genitals. It is clear that a number of the trainees were aware both before and / or after their training of rumours regarding AJ. This raises the obvious issue of whether this knowledge may have created in their minds an expectation, which was not true. In other words the complainants have interpreted AJ's conduct in a way that is consistent with what they had been told to expect and have disregarded an innocent explanation. Apart from the complainants, there is a large number of other trainees (perhaps hundreds) who have been instructed (since November 1997) by AJ without complaint.
- We accept the comments in the investigating officer's report. The evidence surrounding the allegations gives us cause for concern for the reasons set out in the preceding paragraphs. Whilst it is impossible to be certain what happened without there being a full hearing of all the evidence, from what we have read and heard we have come to the conclusion that on the balance of probability given the Re H test, we are unable to ascertain whether these allegations are made out or not. To our knowledge this was the first time that the evidence had been tested and counter arguments put. However, we remains perplexed as to why Lt Cdr G was apparently not involved in any substantive part of the investigation process by the SIB inquiry considering that he was AJ's commanding officer. His robust defence of AJ and rebuttal of the allegations as seen at the hearing might have made a difference had they been put at the time of the investigation.
- We note that AJ was removed from the procedure as soon as the allegations were made and that as a result of the whole investigation the process in the tower changed. We also bear in mind that the Naval Prosecuting Authority did not pursue the matter for four reasons
• There was compelling evidence that properly conducted demonstration training does involve contact that might otherwise be indecent. The SIB investigator gave evidence that the demonstration involved contact that could be construed as touching of the area around the genitals.
• A number of trainees were aware of rumours concerning AJ both before and/or after their training and that raises the obvious issue of whether this knowledge may have created in their minds an expectation which was not true. In other words, the complainants interpreted AJ's conduct that was consistent with what they had been told to expect and had disregarded an innocent explanation
• Until W made his complaint in August 2000, none of the other trainees had made a complaint at the time [the report inaccurately states that W's complaint was made in April. We also note that the procedure had been introduced in April so there had been 5 months of training before W's complaint]
• Apart from the complainants, there is a large number of other trainees (perhaps hundreds) who have been instructed by AJ (since November 1997) without complaint
We agree with those conclusions. The report also said that AJ's exemplary service record would weigh heavily in his favour. We do not place so much weight on that as the Prosecuting Authority does. The conclusion reached was that 'the NPA concludes that the evidence is not sufficiently strong to provide a realistic prospect of conviction on any of the charges'.
- In relation to the Respondent's assertion that the Appellant was either not being truthful or was trying to hide from Sea Cadets the fact that he had been charged with offences of indecent assault within the Royal Navy, we accept the Applicant's view that this is a unfair assertion since, although charges were framed (as we can see in the papers we have) the Appellant was never formally charged with any offence in relation to the RNSIB investigation.
Allegations concerning RL
Particular 1: The Applicant showed RL pictures of human sexual penetration.
- RL was born on 27 November 1984. The precise date on which the misconduct complained of is alleged to have taken place is not clear, but it is during the period October-November 1998. It is said by Mr. Coppel that the precise date does not alter the alleged misconduct. The misconduct is alleged to have taken place on a Sea Cadet yacht, the Sea Lion.
- So far as this allegation is concerned, the Appellant does not dispute that he was an instructor with G Sea Cadets; that he was onboard the Sea Lion from (Mon) 12-14 and (Fri) 16-18 Oct 98; that RL was also on board on one of those sets of dates; and that on that occasion they were sailing around the Solent. Nor is it in dispute that there was a magazine showing adult heterosexual penetration on the vessel and that RL had access to it either by finding it or by bringing it with him. The issue between the parties is whether RL had it removed off him and then took it again, or whether the Appellant supplied the magazine to RL.
76. The evidence we heard on the video recording and read in the transcripts was followed the memorandum of good practice and it is clear that RL's evidence of itself was not clear and unequivocal, there were evidence which warranted the action taken by the CPS.
- It is at this point we need to determine the weight to place on RL's evidence. In relation to RL the Applicant says: When the police first spoke to RL on 5 Oct 2000, he indicated that he knew that the police wished to speak about the Sea Cadets. As the Police had not previously provided any such information to him and they failed to ask him how he knew, the Appellant has a strong suspicion that in all likelihood he had got this information from another cadet. However, the Tribunal is familiar with the practice of achieving "best evidence" in child protection matters, namely where any young person due to be interviewed goes through a process of being informed about the purpose and is given an understanding of what will be discussed. This is generally accepted practice in child protection interviews. When assessed against the above, the fact that RL was aware of what the Police interview was about takes on less significance than AJ would ask us to consider and is not, on its own, evident of collusion. Consequently, RL's prior knowledge does not alter our view of the weight we are to place on his evidence.
- AJ asks us to bear in mind, and we do, that during this interview, RL said he had left the Sea Cadets because he was being victimised by the Staff. Asked to name the Staff he disliked he gave the names of PO W and NW. It is significant, says AJ, that he made no mention of the Appellant.
- The Applicant further contends that as the interview progressed RL said that he enjoyed the sailing trips but, knowing that the police were there for a reason in connection with the Sea Cadets and were asking him which staff he liked and disliked, it seems incredible that he failed to qualify his answers in any measure by mentioning the allegation of sexual assault that the Respondent is relying upon. Presented with another opportunity to tell the Police of a sexual assault by an adult when asked if anything had happened to him that he thought inappropriate, he said only that he had been "touched up" by another cadet about 2 years before. This would have been the autumn of 1998, around the same time he first went offshore sailing. He then went on to describe an incident between himself and Cadet AI when he thought Cadet AI was trying to masturbate him. RL then informed the police that AI was in the Army. We acknowledge that there is force in these arguments.
- During a subsequent interview on 25 October 2000 RL described AI as his "best mate" in which case it can only be that RL deliberately lied to the Police on 5th October 2000 as he must have been fully aware at the time of his previous interview that AI was not in the Army. Interviewed by the Police on 14 November 2000, AI confirmed that he and RL were in fact 'best mates and had in fact been "clubbing" last weekend & were going this weekend' but he denied that the events described by RL had happened. The police never questioned RL as to why he had apparently lied to them about this even though it was only after he talked about AI that he made any mention of being "touched up" by the Appellant, claiming as well that it had also happened about two years previously, that is, the same time as the alleged incident with AI. It is relevant to note here that the record of an Interview Planning Meeting between S Police and Social Services describes RL who, when interviewed was almost 16 years of age, as having an "age appropriate" concept of time. This evidence gives us cause for concern because it suggests that RL invented a sexual incident involving AI. It also suggests to us that RL does not accurately recount recent relatively important matters. The Tribunal is unable to draw many inferences from this history as it was largely the accounts of those directly involved namely RL and AI and we heard from neither of them. There is a clear conflict between the two individuals as to whether the incident happened or not. However, we are able to conclude that it is more probable than not that this incident between AI and RL did NOT happen given AI's view. Inevitably we are drawn to the conclusion that this casts doubt on RL's general perception of matters. We also note that RL used the words 'silent agreement' in respect of the alleged incident with AI and with AJ. The use of the same language may be coincidental although it could equally suggest a rehearsed phrase.
- In his Police interview, RL claims that the Appellant was sleeping right next to him about half a foot apart when the alleged sexual assault (misconduct 3) took place. However, in cross-examination he agreed with the judge in the crown court that he had said to CH that the Appellant had got off the bunk and touched him. The Appellant believes that these totally different versions are indicative of RL self-confessed predilection for lying. Whilst we cannot draw that stark conclusion from the discrepancy, it adds to our concern about how reliable RL's evidence might be.
- Some six days after his initial interview with the police, on the 11th October 2000 interview, RL reiterated that his leaving Sea Cadets was as a result of victimisation. Asked who the staff members on the trips were and which of those he liked or disliked, he replied: "Well I liked most of them, apart from, apart from one, I'd say, being CW. I had a lot of respect for the rest of them, but not CW. It is particularly significant, according to AJ, that, even though he was aware of the reason he was being interviewed, he made no mention of the Appellant and it was only when prompted by direct questioning did he say anything about misconduct by the Appellant. Even then, he was vague about when the alleged misconduct had occurred, saying only that it was "Any time from a year to 2 years, or a year and a half….." Oddly, given his vagueness about dates, he was able to give a quite detailed description of what, by comparison, were quite inconsequential things such as type of kit bags, colour of sleeping bags etc.
- Questioned further about the alleged sexual assault, and why nothing was said at the time, RL replied: "since that time, we had, like a silent agreement if you would, that he and I never slept in the same cabin together again". "Silent agreement" is a phrase RL used again, some two weeks after his videoed interview, when talking to the Police about the alleged incident with AI with whom he said he also had such an agreement. He then went on to elaborate upon the alleged masturbation incident with AI now claiming: "He then shoved his manhood into my mouth"
- The applicant says that RL's evidence throughout is riddled with inconsistencies, vagueness and unsubstantiated allegations. The Appellant therefore asks the Tribunal to take the view that the testimony of RL in support of his allegations of sexual assault cannot be relied upon. We agree with the Applicant's submission that RL's evidence is inconsistent and vague and so must be treated with considerable caution.
- It is the Appellant's view that RL displays a deviousness of character amply demonstrated by his willingness to make false statements and his predisposition to embellish actual events. The Appellant believes this can be seen to manifest itself in comparing the information he gave in his videoed interview and that that he gave to the Police six days earlier. The Applicant also relies upon a number of other matters for this view. In cross-examination at Crown Court in 2002, RL agreed that he admitted telling Social Services that he frequently did not tell the truth and invented stories when he was feeling bored or wanted to avoid difficult situations.
- Further, HM of Social Services Department, who was a Senior Social Worker dealing with the allegations made against the Appellant and as such was a member of the Senior Strategy Group, also came to the same conclusion on 19 Sept 2001 in a Case Review Document: "RL makes no secret of the fact that he frequently does not tell the truth. He is very good at inventing stories if he is feeling bored or he wants to avoid difficult situations" Social Services also reported that RL is an attention seeker, as did AC and Commander P in a Strategy Group Meeting held on 19 October 2000.
- In evidence to the Crown Court, DN stated that RL stuck in his mind because he considered him strange and an attention seeker. Despite there being other adults onboard all the sailing trips along with other cadets, RL's assertion that he and the Appellant shared a cabin is not corroborated by any of these.
- Mr. Coppel says that the Appellant's attack on RL's credibility does not bear analysis. As to RL, Mr. Coppel says that the Appellant's attack on RL in his response to the report from Social Services, which the Appellant sent to The Sea Cadets, went well beyond what emerged from RL's cross-examination in the Crown Court. It was based upon an alleged grudge. In fact, there was no reason why RL would "hold a grudge" against the Appellant — quite the opposite. The Appellant used to visit RL at his home to help him join the Navy. As will be noted later, the Appellant has similarly sought to answer other abuse complaints by asserting that the complainant "holds a grudge."-
89. In relation to the first Particular of Misconduct, the Appellant denies the allegation that he allowed RL to view a pornographic magazine and draws out attention to the following matters. During his videoed interview, RL claimed he found a pornographic magazine onboard the yacht and that the Applicant took it from him and put it in his (AJ's rucksack). He further said that he (RL) removed it, which caused the Applicant to remonstrate with him. These facts are not disputed, therefore. RL's claim that the Applicant allowed him to view it is rejected by AJ who believes that by preventing RL from flaunting the magazine amongst the other cadets he had frustrated RL's desire to be the centre of attention.
Findings
- We have come to the conclusion that the magazine was either found by RL or brought on the boat with him. We are equally satisfied that the magazine was confiscated by the Applicant and that he expressed displeasure. We prefer the evidence of the Applicant to that of RL in relation to this incident. We are satisfied that RL removed the magazine from the Applicant's rucksack. Given the reaction of the Applicant when he discovered the magazine (which is accepted by RL) it is unbelievable that the Applicant would have given it back to RL.
- We also find it hard to believe that the Applicant and RL were looking at the magazine together. From the known layout of the boat we are satisfied that if this had been the case they would have been seen by someone else.
Conclusions
- Given that we prefer the evidence of the Applicant to that of RL, we come to the conclusion on the balance of probabilities that this allegation did not occur as claimed by RL. We do not find this allegation of misconduct proved and dismiss it.
Particular 2: The Appellant permitted RL to consume alcohol.
- This misconduct is alleged to have taken place on the same voyage as that of the first particularised incident of alleged misconduct. The Respondent relies on the Appellant's generalised admissions as to alcohol consumption and his evidence to this Tribunal. The Respondent says that this all conflicts with the statement of JuW, whom the Appellant did not call. As to its known impropriety at the time, the Respondent relies upon the evidence of AC.
94. In relation to Particulars of Misconduct 2 and 4, the Applicant says that it is not disputed that when in harbour during sailing trips, the adults on board sometimes used the facilities of yacht clubs or public houses. However, at no time did the Appellant either supply RL with, or permit him to consume alcohol and the Respondent has offered no evidence in support of this allegation. RL made no such assertion in his evidence to the Police and no other complainant has come forward to support the allegation.
- In his oral evidence, JW (who was called by the Applicant) stated that on the trips he had been on, which included the trip in March 2000, none of the instructors had given permission for, nor were aware, that any of the cadets had bought alcohol; he also stated that the Appellant had supplied no alcohol nor had he allowed it to be consumed.
- The only occasion when it became apparent that RL had obtained and consumed alcohol was while ashore in Southampton in March 2000. There were three yachts in use on that trip and, in addition to the Appellant, there were two full time Sea Cadet Officers and three other members of the G Sea Cadet Staff, including the Training Officer, CW. Inspecting the log books of TS's Leopold Muller, Vigilant and City Liveryman in our papers show the Appellant was on the Leopold Muller and RL was onboard the TS Vigilant. The only reason that RL was on this trip, despite the Appellant's previously declaring that due to his behaviour he would not be allowed to sail with the Appellant again was firstly, that they were on different yachts and secondly, that the Appellant was not the Senior person present and was therefore not in charge.
- The Appellant acknowledges that he allowed some senior cadets who, at the time were students at Sixth Form College, to take a glass of wine on one occasion in October 1998, when the yacht was tied up to a buoy. However, although he acknowledges that this was unwise, he asks the Tribunal to accept his assertion that there was no ulterior motive to this action and that it neither harmed nor placed these cadets at the risk of harm.
Findings
- RL states in his evidence that he purchased the alcohol himself. We also note that the documentary evidence shows that he was not on the same boat as the Applicant and that the Applicant was not in charge of RL or the outing. The Applicant had stated that he had refused to sail with RL again.
- There is a distinction between the cadets going off site and buying alcohol to consume and it being bought for them or consumed with the leaders' knowledge. We are satisfied that this falls within the first category and that the Applicant cannot be held responsible for this. There is no evidence that he was complicit in either the purchase or consumption of alcohol at this time or that there was any alcohol on the boat. Even if RL had alcohol we cannot see how the Applicant is responsible for this given what we note in the preceding paragraph.
Conclusions
- The reliable and objective evidence that is available does not amount to the allegation. We conclude that this allegation is not made out and dismiss it.
Particular 3: The Appellant placed his hand inside the sleeping bag of RL and touched his penis as he did so.
- The Respondent relies on the police interview of RL and the evidence RL gave in cross-examination to the Crown Court on 22 April 2002. The Respondent also relies upon the statement given to police by JuW on 10 December 2000 and the evidence given by him during the trial at the Crown Court which evidences a contemporaneous complaint by RL. It is said by the Respondent that it beggars belief that RL would, in the middle of the night and without cause, make up such a story and tell others. It is said that the Appellant's evidence, both during his trial and to this Tribunal, does not impair the credibility of RL's account so as to undermine the evidence.
Findings
- We note that, in his video evidence, RL was very clear about the details of the colour of various items, such as the sleeping bags, in the sleeping area and we are aware that he seems to have made a comment about it fairly soon afterwards. However, we are also aware that this was reported to have taken place in the after-cabin. That contains three bunks. It was also reported to have occurred on the first night of the trip, soon after the matters alleged in Particular 1 are said to have occurred. We are concerned that if this incident did take place, there was no reference to it whatsoever until October 2000.
- We have already noted that we are concerned that RL's statements are full of inconsistencies. We also need to be cautious given the alleged sexual incident with AI. Whilst inconsistencies do not, of themselves, mean that we should dismiss RL's evidence and, indeed, it can be argued that inconsistencies show that an individual is not making something up as there is not a 'fixed' version of events, we need to see these inconsistencies in the context of other matters and determine to what extent variation in detail is significant. First, there was another adult on board this boat and second the area that RL and the appellant were sleeping was open. There are also inconsistencies as to exactly where they were sleeping that night.
- We also note that there were light sticks around the boat making the environment lighter than if there were none. The berths were near the lavatory. We also bear in mind that RL decided to sign up for another sailing trip with AJ – something he might not have been happy to do if what he says occurred did happen. We were informed that RL's mother worked at the Sea Cadets as a volunteer and asked AJ to talk to RL about a career in the Navy. We know that RL was happy to allow AJ to discuss this in RL's bedroom – something he might not have wished to do given what he said happened on the boat. We also have to bear in mind and balance two other contradictory matters namely first that there is a compelling view that victims often have no control over their own behaviour towards approaches by an abuser given the power imbalance that exists and secondly that these young men were individuals with behavioural difficulties who may well not have kept quiet if they had been assaulted as alleged.
- As already mentioned, we are aware from the papers that RL said that he was touched inappropriately by AI. This is important because, as noted above, because RL and AI are very good friends who go clubbing together and AI denied that it happened.
Conclusions
- It is very difficult to be certain as to what happened but given the important inconsistencies in RL's evidence on other matter as well as in relation to this matter, we find that we can only place limited weight on RL's evidence and consequently we have come to no clear conclusion regarding this allegation. There is no independent evidence for us to consider and so we find this allegation not proved and dismiss it.
Particular 4: The Appellant permitted RL to consume alcohol.
- This misconduct is alleged to have taken place on a different voyage than the first three instances of alleged misconduct. The voyage is alleged to have taken place in February-March 2000. The vessel involved was, again, the Sea Lion. So far as this allegation is concerned, the Appellant again does not dispute that he undertook a sailing trip with them from (Fri) 3-5 Mar 2000; that they were sailing around the Solent. However, the Appellant contends that he was, on that occasion, the skipper of TS Leopold Muller and that, on that occasion, RL was on the Sea Lion.
- The Respondent accepts that there are discrepancies as to the detail of this sailing trip but says that the evidence as to the core of the complaint (that the Appellant permitted the sea cadets to consume alcohol whilst on the trip) is both clear and consistent. The Respondent relies upon RL's police interview on 11 October 2000, RL's evidence to the Crown Court on 22 April 2002, PH's statement to the police on 25 October 2000, PH's evidence to the Crown Court on 18 April 2002, JuW's evidence to the Crown Court on 19 April 2002 and the incident report. The Respondent says that the Appellant's own evidence, both to the Crown Court and to this Tribunal does not materially detract from these accounts. The Respondent also relies on the Appellant's generalised admissions as to alcohol consumption. As to its known impropriety at the time, the Respondent relies upon the evidence of AC.
109. We also bear in mind paragraphs 94-97 above in relation to the Particular.
Findings
- The documentary evidence for this voyage shows that RL was aboard The City Liveryman and AJ was on The Leopold Miller. We heard from AJ that he was not prepared to have RL on a boat he was in charge of and the only reason RL was able to come on the trip was because he was on a different vessel. AJ also told us that he was not in command of the vessel RL was on or the one in overall command.
Conclusions
- We are not satisfied that this allegation is made out. The Applicant was not on RL's vessel and at no time was he in direct command of him. If RL did drink on that trip, others are responsible for permitting RL and others to drink and the blame cannot be laid at AJ's door.
We dismiss this Particular.
Allegations concerning JB
Particular 5: The Appellant masturbated JB causing him to ejaculate
- JB was born on 3 September 1986. He joined the Sea Cadets on 8 March 1999. The misconduct is alleged to have taken place in a room on the first floor of the Sea Cadet Centre on Fri-Sat, 21-22 July 2000. So far as this allegation is concerned, the Appellant does not dispute: That he was on that date acting as an instructor with the Sea Cadets; That on that date the Appellant, JB and another boy (PH), and no other person, slept together in the room on the first floor of the Sea Cadet Centre.
- Because JB did not attend to give evidence, the Respondent relies principally on JB's police interview on 2 October 2000 and on his evidence to the Crown Court on 17 April 2002. it is said by Mr. Coppel that the gist of JB's account is clear, consistent and coherent. It is supported by the record of police interview of PH on 25 October 2000 and his evidence to the Crown Court on 18 April 2002. It beggars belief, Mr Coppel says, that JB would, in the middle of the night and without cause, make up such a story and tell PH.
- In relation to JB, the Appellant does not dispute that he, together with JB and PH, slept over at the Sea Cadet Unit on the evening 21 July 2000; nor does he dispute that he allowed them to consume some lager with a take-away Chinese meal. There may be an argument as to the exact quantity and make but the Applicant accepts that there was drink provided by him on that occasion. The suggestion by the Respondent that this sleep over was arranged for the purpose of, or to facilitate, any form of sexual abuse is strenuously denied by the Appellant.
- The Appellant says that, as confirmed by CW in his evidence at Crown Court, arrangements had been made for 5 cadets to attend the Sea Cadet Unit on the evening of the 21st July 2000 to take part in preparation for the sailing trip due to start the next day from Gosport. Before travelling by train to Gosport the cadets were scheduled to do an early morning shift at a sponsored "car wash". Plans had to be changed when 3 of these cadets won through to the national canoeing finals; as a result the stay at the Sea Cadet Unit was cancelled.
- However, the Appellant was informed that neither JB's father nor PH's mother would be able to get their sons to the car wash on time. JB confirmed this in his video evidence. As a result, it was necessary for arrangements to be made with the boys' parents for them to "sleep over" at the unit so that they could attend the car wash and then catch the train to Gosport. These arrangements and the reason for them were confirmed by CW in his evidence to the Crown Court.
- The Appellant stated that he was faced with the dilemma of trying to meet, at short notice, a number of competing requirements, namely arranging for the three 'canoeing' cadets to join the sailing on the Sunday, Getting the remaining two cadets to the early morning 'Charity Car Wash' on the Saturday morning, and then transporting them from the car wash to the station to catch the train to Gosport in time to join the sailing. The Applicant said that the arrangement made in order to overcome these difficulties was the "sleep-over" but, he said, with the benefit of hindsight, the Appellant has been made aware of the vulnerable position in which his desire to achieve a satisfactory resolution for all concerned, has placed him.
- That having been said, the Appellant asked us to bear in mind that AC in evidence to the Tribunal confirmed that the Sea Cadets approved these arrangements. The Appellant says that as Sea Cadet Unit was, at the time, in a state of considerable upheaval due to building works and he was not in possession of keys to all rooms in the unit, this meant that the only usable space available, apart from the large halls, was the room used.
- The Appellant has never disputed that he allowed both PH and JB to have a small quantity of lager with a Chinese meal. In his evidence to the crown court, PH confirmed that they had a one bottle of beer each. The Appellant fully accepts that although they were having a Chinese meal and he had a drink with his meal, he should not have allowed the cadets to do so. At the time the Appellant believed that there was nothing wrong with allowing a small amount of alcohol under supervision to be drunk whilst eating. It is not a belief he continues to hold. The Appellant rejects the Respondent's assertion that he allowed them to have a drink in order to either reduce their inhibitions or for any ulterior motive.
- In his evidence, JB confirmed that the room used was well lit, in fact he says, "..there was a street light a couple of feet from the window" and goes on to say "It was bright enough to read a book or something, It was bright enough to read"
- JB's assertion that during the night he was masturbated by the Appellant and that he (AJ) took his (JB's) hand and placed it upon the Appellants penis is rejected by the Appellant as untrue and says that, to claim, as JB does, that it took place in a well lit room with someone else present is beyond credibility.
- Although the Appellant cannot say whether it was part of his original thought process or something he decided to undertake at a later stage, what is known is the fact that JB either attempted, or conspired, to blackmail the Appellant, something the police failed to prosecute. Because the police failed to ask the question, what is also not known is the identity of the friend that he discussed this with and was allegedly going to assist with the blackmail.
Findings
- We need to evaluate the credibility of JB so as to give the appropriate weight to his evidence. We start from the basis that are aware that there is evidence that JB has a history of making unfounded allegations. Indeed, Social Services risk assessment carried out on him in February 1999, describes him as having a "Complex psychological history and evidence of past behavioural problems. His condition appears to result in his pushing people to the limits in order to induce a negative response". It is also reported that social concerns about JB were first noticed at the age of three and "have persisted despite all attempts at intervention". Some of these concerns were noted by Social Services in 1996 and included interrupting others in the lavatory, being an exhibitionist and a compulsive liar.
- We note, as part of our assessment of JB's credibility, that in February 1999 JB had contacted Childline alleging that his father had physically abused him. We understand that Police and Social Services conducted an investigation and reported that "Since the first strategy meeting, J called Childline twice alleging physical abuse by his father,…" (we think, in fact, therefore that there were three allegations). The report went onto say that a home visit did not substantiate any abuse. During this home visit JB told the Police Officer that he "knows he does things wrong but couldn't stop doing them". Following on from this report, LS, a Senior Social Worker in the authority's Family Support Team felt that he built on a kernel of truth in order to obtain attention and that his behaviour appears designed to provoke extreme reactions.
- There are some incidents in the papers that post-date the allegations in this case but need to be considered too. In February 2001 JB informed a police constable that a number of pupils were in possession of illegal drugs. Although the pupils accused were searched they were found not to be in possession of any illegal substances. This becomes relevant when it is also noted that on the 16th March 2001 Social Services reported that JB believed that recent episodes of his being stopped and searched by the Police, on suspicion he was carrying drugs, were as a result of malicious phone calls made by others. In fact, it seems that by 11th April 2001, a Detective Sergeant informed Social Services that phone calls to the police that JB was carrying drugs had been traced back to his own phone and that the police were of the view that he made these calls with a view to subsequently getting himself stopped by the police.
- In relation to JB's educational attainment, we note that he has an Individual Education Plan in April 1999, in which it is noted that his parents "warn that he can be very manipulative and plausible". In September 1999 the school notes that "J has a Statement of Special Educational Need for 'Significant social impairment and significant difficulties in empathy' he is extremely articulate and plausible but needs careful monitoring because he has been known to take things and to initiate trouble in a devious and clever way……"
- The Appellant states that at the time he knew nothing of JB's social and behavioural history and that had he done so he would not have put himself in a position of proximity to such a "devious and manipulative" individual. We contrast the view of AJ with the view expressed by AC who said in reply to a question from the Tribunal that it was well known to everyone (adults and other young people) that JB was a young person with unspecified educational and behavioural problems and also, that the three boys concerned, "you could spot them, as special problems kids!"
- In relation to JB, Mr. Coppel accepts that, JB had difficulties when at his Choir School where he made a hoax bomb call which led to his permanent exclusion. But, as the Headmaster of that school himself observed, "it is fair to conclude with the observation that many of the problems we encountered with J would not necessarily become apparent in a non-boarding environment." Mr Coppel suggests that a more insightful assessment is to be found in the Special Educational Needs Form. Given JB's documented significant difficulties in empathising, Mr Coppel contends that, if events alleged did take place on 21 July 2000, little or nothing can legitimately be drawn from the catalogue of incidents thereafter and says that the cross-examination in the Crown Court as to JB's credit added little to what is in the documents we have and is subject to the same limitations. Mr Coppel says that JB stating that he was prepared to drop the criminal charge in return for a Nokia mobile phone does not demonstrate fabrication; and that JB adhered to his account when the request had been refused is more difficult to reconcile with fabrication.
- The Respondent invites the Tribunal to accept the evidence of RL and JB as given in his interviews. The Respondent invites the Tribunal to find that the essential details of his account are coherent, consistent and credible.
- In relation to JB we find that there is no doubt that he was in the same room as AJ on the night in question. We can see why it is contended that something happened – there was horseplay which might have been seen as some limited attempt at lowering inhibitions and certainly gave rise to unnecessary physical contact. AJ did not need to sleep in the middle of the boys, albeit that there was 18" to 2 foot between them.
- We cannot accept the evidence of AJ that he was unaware of JB's general history at the time of the sleep over. We find that although JB has a statement of special educational needs, he is a very clever, but disturbed, young man. He was under 10, for example when he made the hoax bomb call and the telephone calls to Childline which gave rise to the social services investigation cannot be seen as anything other than deliberate and intentional. We find that JB has a history of not telling the truth. The actual alleged incident was not witnessed by anyone else and we note that JB had to wake PH to tell him what happened – and that PH did not believe JB. Waking PH does not mean that the incident occurred, just that JB told him that it did. It is entirely possible that JB told PH so as to create a contemporaneous "witness", thus seeming to give the allegation added weight. Equally, it is entirely possible that JB woke PH because it did happened and that he reacted by telling his nearest available peer.
- We also discount any possibility that this was a pre-planned event. From the history we have set out in paragraphs 115 to 118 above, we are satisfied that the situation was not of the Applicant's making and came about as a result of an unfolding series of events.
Conclusions
- The decision-making process in a tribunal is different from that which might occur at a child protection panel. The Tribunal has to apply the law and assess the evidence on a balance of probabilities bearing in mind the House of Lords decision in the Re H case (mentioned above). Given that approach, what might be of significance in a child protection investigation may be of less importance in a tribunal when the quality of the evidence is assessed. Whilst JB's words may have an importance they need to be weighed against the weaknesses in his evidence and against the legal test. This has not been easy to do. The decision we have reached has not been taken lightly as the nature of the allegation is serious and it has been very difficult to come to view. We have considered very fully and carefully the Child Protection Strategy Meeting minutes and outcome report in balancing the evidence. Likewise, we have borne in mind (from our various professional backgrounds) the research and understanding about the approaches taken by individuals in targeting young people and taking opportunities when they arise. However given the findings we have made in the preceding paragraphs we are NOT satisfied, on a balance of probabilities given the Re H 'test' that we can rely on or accept JB's evidence so as to be satisfied that the Particular is made out. We have no evidence to support it from an independent source and so we cannot conclude, on the balance of probabilities, bearing in mind the Re H test, that this allegation has been made out.
We dismiss this Particular.
Particular 6: The Appellant placed the hand of JB on the Appellant's penis.
- This particular of misconduct relates to the same occasion as the previous particular of misconduct, with the difference here being that instead of the allegation being that JB had his penis touched by the Appellant, the Appellant caused JB to touch the Appellant's penis. Again, the Respondent relies principally on JB's police interview on 2 October 2000 and on his evidence to the Crown Court on 17 April 2002.
Findings
- Given the findings we made in relation to Particular 5, we make the same findings in relation to Particular 6, the incident occurring at almost the same time.
Conclusions
- Given the conclusions we reached in relation to Particular 5, we reach the same conclusions in relation to this matter.
We dismiss this particular.
Particular 7: The permitted JB to consume alcohol.
- This particular of misconduct relates to the same occasion as the two previous particulars of misconduct. Again, the Respondent relies principally on JB's police interview on 2 October 2000 and on his evidence to the Crown Court on 17 April 2002. The Respondent also relies on the Appellant's specific and generalised admissions as to alcohol consumption. As to its known impropriety of permitting cadets to drink alcohol at the time, the Respondent relies upon the evidence of AC. The Appellant's evidence to this Tribunal also supports the basic account given by JB.
Findings
- AJ does not deny that he permitted JB (and PH) to consume alcohol, as set out in paragraph 119 above. There is an issue as to the quantity consumed although we are not convinced that it is necessary for us to determine it.
Conclusion
- We find this particular of misconduct proved. We will need to consider it again in relation to suitability.
Allegations concerning AA
Particular 8: The Appellant placed his hand on the penis of AA leaving it there for a period of upwards of one minute.
- AA was born on 5 January 1986. He joined the Sea Cadets on 23 February 1996. This particular of misconduct is alleged to have taken place on the Sea Lion on a trip around the Solent on 12-14 March 1999. So far as this allegation is concerned, the Appellant does not dispute that he was on these dates onboard the Sea Lion; that AA was also on board on these dates; and that on that occasion they were sailing around the Solent.
- The Respondent relies principally on the interview of AA on 22 November 2000 and on 22 December 2000, his evidence to the Crown Court on 18 and 19 April 2002 and on 2 September 2002, his witness statement to this Tribunal and his oral evidence to this Tribunal. It is said by Mr. Coppel that these provide a clear, coherent and consistent account of the alleged conduct which the Appellant's evidence, both to the Crown Court and to this Tribunal, does not detract from the core of that account.
- The police first interviewed AA on 22 November 2000. In the course of this interview he claimed the appellant had sexually assaulted him on two separate occasions whilst on sailing trips with the Sea Cadets although at the commencement of this interview he stated only that he had been "Touched up" by the Appellant on "The last sailing trip".
- Asked how long ago the last sailing trip was, AA stated 'seven; eight months ago, maybe a bit longer, can't remember. After further questioning, AA indicated that the first of the two alleged incidents happened about a year ago and was repeated on his last sailing trip.
- The Respondent claims that AA's learning difficulties inevitably led to some discrepancies within his witness statement, but, insofar as an understanding of time is concerned, it is important to note that both TM of the police and HM of the Social Services Department agreed at an Interview Planning Meeting that he has a concept of time appropriate for a 14 year old boy. Bearing this in mind and taking the date of interview as late November 2000, according to AA the alleged incidents took place in or about November 1999 and March 2000.
- Over the first weekend of March 2000, the Sea Cadets did conduct some offshore sailing, using three Sea Cadet yachts. Inspection of these boat's log books shows that AA was not onboard the Appellant's yacht, the TS Leopald Muller nor was he on either of the other two yachts in use. It is, therefore, evident that AA did not go sailing in March 2000 when the Appellant is alleged to have sexually assaulted him. Furthermore, by his testimony at this tribunal he stated that he did not go sailing in the year 2000.
- Although there were no sailing trips in the November 1999, AA confirmed in his evidence to the Tribunal that sailing trips in March; August and October 1999 were the only sailing trips on which he had been. He also confirmed in his cross-examination at the Tribunal that on one occasion he had been sharing a cabin with Cadets RL and DW. This is supported by his evidence to the Crown Court, in September 2002, at the same time he confirmed that it was on the October 1999 trip that he shared the after cabin with these two cadets.
- His evidence both to this tribunal and the Crown Court is that he had been in the saloon area at the same time as the Appellant and that nothing happened on that trip. In his Crown Court evidence, AA states that on another trip he was in a cabin with a cadet called DW and he confirmed this during his evidence to this tribunal.
- From the foregoing, it becomes quite clear that apart from the one trip AA and the Appellant were in the Saloon, there was no occasion when they were in the Fore cabin together so negating AAs' assertion that he and the Appellant were in that situation on two separate occasions.
- Again, in his Crown Court evidence, AA clearly states that being in the Saloon with the Appellant occurred on one trip. His witness statement for this tribunal however said that;
"I shared a cabin with coxswain [A]J on every trip I went on with [the] Sea Cadets but this was not something that I controlled"
This directly contradicts his statement at that;
"I could have moved into one of the rooms where you could fit three people but I had already moved my stuff into the front room and it seemed too much hassle"
It is the Appellant's contention that this negates any grounds upon which the Respondent seeks to establish AA's allegations as true.
- The Applicant says that three important questions now arise as to the truth of AAs' allegations: first, if an assault had taken place, is it likely that he would have voluntarily placed his name on a list for a place on a boat on a further sailing trip when the sailing notice clearly showed that the Appellant would skipper the boat? Second, if an assault had taken place, is it likely that he would have asked the Appellant in September 2000, prior to his starting at a Residential School in Romsey if he could still go sailing with him? Third, if an assault had taken place, is it believable that he did not take the opportunity to move to another sleeping area merely because it was "too much hassle"?
- The Applicant also invites use to consider of the contents of the videoed interview which took place on 22 December 2000, as, he says, it gives rise to a number of other questions regarding the believability of AAs' allegations: First, although the Interviewer provided many opportunities for him to reconsider the dates he gave, AA was adamant that these further acts of abuse all took place during the year 2000 and that these were not only on sailing trips but also at an Easter camp. He also claimed he had been on two sailing trips during that year. The Appellant rejects these claims on the grounds that they are false and shown to be so by his absence from any sailing trips in the year 2000
- Second, AA witness statement to the Tribunal makes no mention of the Appellant having performed oral sex on him at an Easter Camp but as he had mentioned it during the interview of 22nd December 2000; he was asked at the appeal hearing if it had happened. He said it had. The Appellant rejects this claim on the grounds that it is false and the incredibility of such an act being perpetrated in a situation where some 30 to 35 other boys, including the Appellants own son; all in boisterous mood; sleeping in one large communal area with the likelihood of several toilet visits during the night.
- Third, AAs' claims in his Witness statement that, after the first night on board, the Appellant moved other cadets out of the forward cabin in order to facilitate the Appellant being in there with him. The Appellant rejects this claim as untrue and no evidence or supporting testimony has been produced by the Respondent to support this claim. The Tribunal will no doubt consider the likelihood is that such a major change of sleeping arrangements on a crowded, 38 foot yacht, would have been remembered by others who were onboard. Fourth, AA implies in his witness statement that the Appellant singled him out for favourable treatment by obtaining for him special financial arrangements for paying the costs of activities. The Appellant rejects this claim as untrue because such facilities were available to all cadets; a fact confirmed by AC in his evidence to the Tribunal
- Fifth, the Appellant's contradiction of AA's claim that he reached the rank of Cadet Petty Officer was also confirmed in his evidence by AC.
- With regard to AA's evidence to the Tribunal, the Appellant makes the following observations: Although the Appellant was unaware of this at the time, it has since been disclosed that AA has Special Educational Needs but his contention that this was the sole reason for his referral to attend a residential school is an invention. As confirmed at the Tribunal hearing, this is a Boarding School specialising in the education of children with behavioural problems. The respondent may suggest that the behavioural incidents highlighted by the Appellant all occurred after the alleged abuse, that may be so, but the Local Education Authority, does not place a child in a school such as this without first exploring all other options of intervention to assist in behavioural problems. Further, in AA's case, neither the Police nor Social Services allude to anything other than behavioural problems as reason for Special Educational Needs. The Respondent, despite enquiring of the Appellant as to why he didn't have AA's Educational Records, failed to produce a single piece of corroborative evidence to support his assertion that AA has memory difficulties.
- At the start of his evidence, AA was asked if he had ever been involved in a "hitting incident" this he denied, and when shown letters from both the Headmaster and a Teacher from his former school AA could only say that the Headmaster and Teacher concerned were exaggerating the truth. The Appellant considers it to be beyond belief that in view of the known aggressive manifestations of AA's behaviour he would not react other than in a very positive, antipathetic manner against any attempt at sexual abuse upon his person.
- The Respondent's assertion in the Particulars of Misconduct he relies upon, that AA and others were permitted to consume alcohol, is completely negated by AA's reply of "No" when asked at the Tribunal if he had ever had alcohol on a sailing trip.
Findings
- There is a discrepancy as to exactly which trip AA was on when this matter is alleged to have taken place. It was unclear whether AA was on two or three trips and the date of them and even which cabin they were in when it was supposed to have happened. As we have indicated above, inconsistencies are not necessarily fatal to a witness' evidence but need to be seen in the context of the other available information. There is clearly a gap between the incident and the police interview and although AA has given his account on a number of occasions, there is a risk that, as his story has not changed, it could be because AA has come to accept what he has said as being the truth or even believes what he has said did happen.
- We are aware from the documentary evidence that AA had a statement of special educational needs and that his behaviour was a major cause of concern. In addition he has been diagnosed with ADHD and dyslexia and attended a special school. It is clear that it was difficult to know how AA might react in a situation and we are therefore surprised that he did NOT react adversely to what he said was supposed to have happened. We also bear in mind that AA says that he was assaulted during an Easter Camp at the Sea Cadets. Given that he was one of about 30 people in the large hall and given that this allegation seems to be new, we are concerned as to how reliable AA's evidence may be. Whilst the basic account might not have changed, the evidence has been embellished each time it is repeated. For example, initially the allegation was one of being touched up, but by his statement for the Tribunal this had developed into 'blow jobs'.
- We do bear in mind, however, that AA was the only complainant to attend the Tribunal and make the allegations once again. We also bear in mind that it is not unusual for the first disclosure to be less specific than a later disclosure and that, perhaps, matters become clearer over time and with age. AA has gone through two crown court trials and the Tribunal hearing.
- Our difficulty, however, is that as there is a change in the number of occasions and the extent of AJ's alleged behaviour, it does make it difficult for us to place great reliance on the veracity of the disclosure. We find that AA is a poor reporter and has very little insight into the truth of matters. An example of this was when he was questioned about his behaviour as reported in letters from his head teacher. AA first denied that his behaviour was as reported and then said that the head teacher was wrong.
Conclusions
- Unlike the other two young men, AA attended the hearing and gave evidence. We bear this in mind. He did not attend for any financial gain and we could certainly see that he was passionate about what he told us. Again we have to remind ourselves that we are a tribunal which has to reach a decision on the evidence presented based on a balance of probabilities and, given the nature of the allegations, bearing in mind the Re H test that the more serious the allegations the more compelling the evidence has to be albeit still on a balance of probabilities.
- Again, it is the serious inconsistencies in AA's evidence which gives us concern, particularly in relation to the number of trips he had been on, on which occasion he believed the incidents happened, the allegation that he was assaulted on the Easter camp and his recollection of his school record. All of these matters cast doubt in our minds as to the reliability of AA's evidence. We cannot simply ignore these matters as if they had not occurred. Weighing these serious inconsistencies against the evidence, we have had to come to the conclusion that we cannot regard AA's evidence as sufficiently reliable to meet the legal test we have identified in the preceding paragraph.
- As before, we have no corroborative evidence to draw upon to support AA's allegations and so we have had to come to the conclusion that there is insufficient reliable evidence for us to rely on to be satisfied that this allegation is made out. In those circumstances we have come to the conclusion that the Particular has not been made out and dismiss it.
Particular 9: The Appellant pulled down the shorts of AA and kissed his penis.
- This particular of misconduct is alleged to have taken place sometime in mid-August 1999. There is some difference as to the precise date (plus or minus a few days), but that does not go to the basic account or allegation. The misconduct is said to have taken place on the Sea Lion as it went for a trip around the Solent. So far as this allegation is concerned, the Appellant does not dispute that he was onboard the Sea Lion on these dates; that AA was also on board on these dates; and that on that occasion they were sailing around the Solent.
- The Respondent relies principally on the interview of AA on 22 November 2000 and on 22 December 2000, his evidence to the Crown Court on 18 and 19 April 2002 and on 2 September 2002, his witness statement to this Tribunal and his oral evidence to this Tribunal. These provide a clear, coherent and consistent account of the alleged conduct. The Appellant's evidence, both to the Crown Court and to this Tribunal, does not detract from the core of that account.
Findings
- We have to bear in mind those matters we have set out in relation to Particular 8 in relation to inconsistencies and reliability. In addition, we wonder why, if AA was concerned about what AJ might do, he decided to go on a second trip with him.
Conclusions
- We also have to bear in mind the conclusions we have reached in Paragraph 163 above as to the reliability of AA's evidence.
- As before, we have no corroborative evidence to draw upon to support AA's allegations and so we have had to come to the conclusion that there is insufficient reliable evidence for us to rely on to be satisfied that this allegation is made out. In those circumstances we have come to the conclusion that the Particular has not been made out and dismiss it.
Particular 10: The Appellant permitted AA to consume alcohol.
- This relates to the same trip as the ninth particular of misconduct, namely in about August 1999. The Respondent also relies on the Appellant's generalised admissions as to alcohol consumption. As to its known impropriety at the time Respondent relies upon the evidence of AC. The Respondent relies upon the interview of AA that took place in November 2000 and the evidence AA gave to the Crown Court in 2002. AA did, of course, give evidence to us.
- We note that in AJ's written submissions he has stated that in reply to a question asked at the hearing before us (had he ever had alcohol on a sailing trip), AA had responded 'No'. This is the evidence we heard.
Findings
- Given that AA, when asked a direct question about the consumption of alcohol, said that he did not have any on a sailing trip, it is difficult to see that we can rely on evidence recorded in 2000 and 2002. It seems to us that we have to accept the answer given at the tribunal hearing and not seek to explain it away. The answer was unequivocal and clear. There was no uncertainty or hesitation.
Conclusions
- On the basis of the answer given to the tribunal at the hearing, we conclude that the allegation is not made out at all (as opposed to not proven) and so we dismiss this particular.
Suitability
- We have found only one allegation of misconduct proved. That is Particular 7 and relates to permitting JB to drink alcohol at the Sea Cadets building. AJ admitted that he did allow this to happen.
- The approach of the Sea Cadets to alcohol has been considered through this decision. Whatever the approach, we bear in mind the Appellant fully accepts that although they were having a Chinese meal at the Sea Cadets building and that he had a drink with his meal, he should not have allowed the cadets to do so. At the time the Appellant believed that there was nothing wrong with allowing a small amount of alcohol under supervision to be drunk whilst eating. He told us during the hearing, and we accept, that it is not a belief he continues to hold.
- In addition, the Appellant told us that he now appreciates that his strong approach to discipline, whilst appropriate within the potentially hazardous world of the submarine service, may not be totally appropriate when dealing with teenagers, as he saw when reading comments recorded by the police from CS who said that the Appellant "sometime comes across as being quite harsh – but not in an aggressive way. Believes that it is his Navy background." Having recognised this as something that needed addressing (as confirmed by Lt Cdr G) the Appellant has taken positive steps to modify his approach by attending appropriate training courses including, "Care of Young Trainees; Motivation and Coaching Techniques, a Joint Staff Course and by qualifying as an Equality and Diversity Advisor. The appellant told the tribunal that he is now more aware of putting himself in potentially compromising positions. For example when talking to young people in his office, he keeps the door open.
- The test that we have to apply as to suitability is set out in Paragraph 3 above and is whether AJ is 'unsuitable to work' with children or vulnerable adults. Does this one proven and accepted particular of misconduct make us come to the conclusion that AJ is unsuitable to work with children and/or vulnerable adults? No. We cannot conclude that AJ's lax approach to allowing the cadets to drink is sufficiently serious to say that he is unsuitable. It was ill advised and in hindsight foolhardy. We have no doubt, however, that if AJ was to find himself working with young men again he would not allow them to drink at all.
- Again, referring to the statutory test set out in Paragraph 3 above, unless we are satisfied both that AJ was guilty of misconduct AND that he is unsuitable to work with children and vulnerable adults, we 'shall allow the appeal … and direct his removal from the list. We have determined in 9 of the particulars that the allegation of misconduct has not be proven so they cannot form the basis of retaining AJ's name on the lists. If we had come to the conclusion that Particular 7 was of such a nature that we did regard AJ as unsuitable then we would have dismissed this appeal. However, given that we have not reached that conclusion, we allow this appeal and will direct his removal from the lists.
Concluding Remarks
- This was an appeal brought under the 1999 and 2000 Acts. These acts give an Applicant a right of appeal on the merits. These acts are to be replaced by the Safeguarding Vulnerable Groups Act 2007. Section 4 of the 2007 Act expressly excludes a merits appeal to this tribunal, the only appeal being on a question of fact or a point of law. If ever there was a case that shows how wrong the decision to restrict a merits appeal, this is it. If a person is placed on a list without having a right, at some point, to seek to have an analysis of the evidence as we did over the 5 days, there is a risk of a miscarriage of justice.
- We are also acutely aware that we had indicated that our decision would be produced before Christmas. That has clearly not happened. We apologise for the delay. This was not an easy case to determine and took us many hours to reach a conclusion as we needed to reread, consider in detail and evaluate all the evidence in relation to not only the ten particulars but also the Naval SIB investigations.
Accordingly, our Unanimous decision is:
APPEAL ALLOWED. We direct the Secretary of State to remove AJ's name from both the PoCA and PoVA lists as well as that maintained under section 142 Education Act 2002 (the 'List 99').
Mr. Simon Oliver
(Deputy President)
Mrs. Susan Howell
Mr. Jim Lim
Date: 28th February 2008
