Mann v Secretary of State [2010] UKFTT 138 (HESC) (31 March 2010)

Graham Peter Mann

Appellant

Secretary of State

Respondent

[2009] 1558.PT

Before:

Mr. Stewart Hunter (Tribunal Judge)

Mr. Mike Jobbins

Ms. Jenny Lowcock

Decision

Heard on the 23^rd February, 2010 sitting at Bradford Magistrates Court

Representation

For the Appellant: Mr. Brocklehurst (Solicitor)

For The Respondent: Mr. J. Coppel (Counsel)

Appeal

1. The Appellant appeals pursuant to Section 144 of the Education Act 2002 and Regulation 12 (1) of the Education (Prohibition From Teaching or Working With Children) Regulations 2003 against the direction of the Secretary of State given on the 27^th March 2009, under Section 142 of 2002 Act on the grounds that the Appellant is unsuitable to work with children.

Preliminary Issues

2. On the 7^th December, 2009 Deputy Principal Judge Oliver made a Restricted Reporting Order under Rule 14 (1) of the Tribunal Procedure (First-Tier) Tribunal (Health, Education and Social Care Chamber) Rules 2008 prohibiting the disclosure or publication of any matter likely to lead members of the public to identify any child in these proceedings. That order was to remain in force until the conclusion of the hearing. At the conclusion of the hearing the Tribunal ordered that the Reporting Restricting Order should continue.

The Evidence

3. The Appellant qualified as a teacher in 1968 and up until the suspension of his employment in 1994, he had been working as a teacher in the Bradford area for 26 years. It was stated by the Appellant that he had also been involved in the scouting movement and had been a leader in the Bingley District for 26 years.

4. In January, 1994, a boy AB, who was aged 11 at the time, made an allegation that the Appellant had touched him at the top of the leg and on his penis at night while he was in bed at the Appellant’s house.

5. A police investigation took place during which further allegations were made against the Appellant. AB’s younger brother CD (aged 9 at the time) alleged that the Appellant had touched him inappropriately while he was sitting on the Appellant’s knee. Also a young girl EF, a friend of AB’s alleged that the Appellant had touched her bottom while she was in bed at the Appellant’s house (EF was aged 12 at the time).

6. The Appellant was interviewed by the police on the 6^th February, 1994 as a result of these allegations, and was subsequently charged on the 6^th March 1994 with indecent assault against AB.

7. On the 8^th February, 1995, the Appellant was acquitted of the charge of indecent assault following a jury trial at Bradford Crown Court.

8. On the 25^th June, 1996 the solicitors that had acted for the Appellant in relation to the proceedings in the Bradford Crown Court, James & Co wrote to the Appellant stating in their letter as follows:-

“I understand that you are still suspended from school and due to attend a disciplinary hearing.

I can confirm that you were acquitted at Bradford Crown Court on the 8^th February, 1995. I noted that witnesses gave evidence on your behalf as to your character and in discharging you the trial judge advised you that you could leave Court without a stain on your character.”

9. The investigation by the police included the interviewing of AB, EF and CD, copies of the case notes of those interviews were contained within the papers before the Tribunal. There was also a witness statement from AB dated the 9^th January, 1994. Amongst the documents produced by the Appellant was an unsigned and undated statement from the Appellant with a hand written note endorsed on it indicating that it had been, “written for Court.” There were also signed statements from Alan Jowett dated the 8^th October 1994, Francis Jowett also dated the 8^th October, 1994 and a statement from Peter Beaumont which was unsigned and undated.

10. In his statement, the Appellant indicated that AB had in the spring of 1992 joined a cub pack of which the Appellant was the leader. The Appellant stated that AB’s mother was a single parent with three other children and no car, and on occasions the Appellant had arranged to take AB to and from the cub pack meetings. The Appellant went on to state that AB’s mother was having some difficulties in bringing up the children on her own and he had tried to assist, this had included offering to take her children to places of interest. He had arranged in 1992 for AB’s family to go a week’s holiday to Swanage and during 1992 and 1993 he had taken the children on various day trips. At some point during the spring of 1992 the children had started coming and staying over at his house. Initially it was just AB, but later one or more of AB’s brothers had come, as had EF who was a friend of the family.

11. The Appellant in his statement then referred to the allegations that had been made against him. The first of those allegations relating to an instance on the 30^th October 1993 when AB, CD, and EF had stayed overnight at the Appellant’s house, it being said by the Appellant that they had come to his house because they wanted to do some Halloweening in the area. The Appellant stated that he had put the children in two bedrooms which had involved giving up his own bedroom. He then stated as follows:-

“To facilitate this I gave up my bed and slept in my office on the folding bed using a sleeping bag. Unfortunately I woke up in the night feeling cold, partly because my warm sleeping bag, which I would have used, was stolen out of my car in Scotland on a camping trip. As all my bedding was in use I hadn’t any spare blankets, I went into AB’s bedroom and quietly got in without waking him. After about ten minutes and with no contact between us, I felt much warmer so I went back to my own sleeping bag. AB’s allegation that I got in his bed for 2 hours was wrong. AB also alleged that EF was sleeping in the other bed in the room. This is also wrong because EF was in fact sleeping in the back bedroom on the night. His brother CD was in the other bed in his room. I must also add that I never got into EF’s bed and I have never touched her.”

12. In reflecting on this incident, the Appellant went on in his statement as follows:-

“In retrospect I realise that it was foolish of me to get into bed with an 11 year old boy, but the decision was taken on the spur of the moment when I was half asleep in the middle of night out of necessity due to being genuinely cold.”

13. The Appellant stated that the next time the children had come up to his house was after Christmas when he had taken them to a “fun day”. A week later the Appellant stated that AB had telephoned and asked if he could stay at the Appellant’s house as his mother was working late at a night club. The Appellant stated that he had collected AB and EF and taken them to his house. AB and EF slept in the same bed with their heads on the pillow. The Appellant stated that he had gone into their bedroom once during the night at around 6.30am to check on they were alright. There had been a previous occasion when they had shared a bed and EF had fallen out because AB had rolled over too much and the Appellant stated that he was also concerned because:-

“…… there were two children, approaching teenage in bed together.”

14. The Appellant then went on to describe what took place after he entered the children’s bedroom:-

“They appeared rather close together so I gently put my hand inside the bed and pulled AB away from EF. I pulled AB because he was the nearest to me and he had encroached on her side of the bed. The bed was quite low and at first I pulled back the covers from the top of the bed whilst I bent down, locating AB’s tummy and pulling him a few inches towards the outside. I couldn’t check any further down without pulling off the covers so I crouched down at the side of the bed and reached in, in order to locate his legs and drag him over. My hand will have moved up and down his thigh and stomach once, whilst I was doing this I never touched him inappropriately. I was aware that whilst I was moving my hands up and down while moving him on this one occasion I made have accidently brushed against his penis region, over his clothing. AB’s allegation that I felt and stroked his penis is entirely wrong.”

15. The Appellant maintained in his statement that he had behaved responsibly at all times and there had been no sexual assault.

16. The statements from Mr. and Mrs. Jowett indicated that they had known the Appellant for around 25 years through their involvement with the scouts. Mrs. Jowett in her statement included the following:-

“I have always found his dealings with children to be entirely appropriate and have entrusted the care of our own sons to him. I can confirm that there has never been a suspicion of him behaving in an inappropriate manner.”

17. The other statement was from a Mr. Peter Beaumont who indicated that he was a Director of HF Holidays and that the Appellant was a fellow Director. He included the following comments:-

“When I heard of the allegations against him I was amazed, disappointed, and filled with a strong feeling of disbelief, as at no time over our long friendship have I heard him say anything or seen him act in any other than a caring way towards children and young people.”

18. Following the allegations made against the Appellant he was suspended from his employment with the City of Bradford Metropolitan Council. After the conclusion of the Appellant’s Crown Court trial the Assistant Director of Bradford Education wrote to the Appellant on the 12^th June, 1996 indicating that he was considering taking disciplinary action against the Appellant. This was in relation to the allegations that the Appellant had got into bed with AB in November or December, 1993 and that children staying over night at his house in 1992 and 1993 and that during the same period at his house he had caused CD to sit on his knee on frequent occasions and touched him on his stomach and leg. There were also four allegations in relation to events said to have taken place on the night of the 8^th January, 1994 relating to AB and EF.

19. A disciplinary hearing took place on the 12^th September 1996 following which the Assistant Director of Contract Services, Bradford Education Department, Mr. Neil Stoddart wrote to the Appellant. In terms of the seven allegations that had been made against the Appellant, the disciplinary panel found five of them proven, the two not being proven being the allegations that on the 8^th January, 1994 he had touched AB’s penis twice and on the same evening had touched EF’s bottom. Included in Mr. Stoddart’s letter was the following:-

“The facts of the case as demonstrated by management, and as confirmed in your own evidence, show that over a period of time in excess of eighteen months you related to AB, CD and EF in a most inappropriate manner. Your claimed errors of judgment and the circumstances of inappropriate behaviour over this period are of such a serious degree as to be wholly inconsistent with the standards of behaviour which can reasonably be expected of a professional teacher.”

20. The Appellant was dismissed without notice from his employment from the City of Bradford Metropolitan Council.

21. The Appellant appealed against the decision of the disciplinary hearing. The appeal was heard by Bradford Council’s Employee Appeal Sub Committee on the 22^nd January, 1997 and the 7^th February, 1997. The Appellant produced in the Tribunal proceedings a statement dated the 22^nd January, 1997 which had endorsed on it “tabled at appeal”. In that statement the Appellant gave details of his work as a teacher and as a scout group leader as well as his involvement with AB’s family. He then set out his response in respect of the five matters which had been found proven against him at the earlier disciplinary hearing. This included the incident when he had got into AB’s bed.

22. In relation to the findings that he had entered the beds of children staying at his house on at least six occasions during 1992 and 1993, the Appellant stated as follows:-

“The children often woke up before it was time to get up. Consequently, in the morning I would read them a story, sitting with them in bed. This occurred on six occasions over a two year period.”

23. In relation to the finding that he had sat CD on his knee on at least one occasion and touched him in a way CD found inappropriate, the Appellant stated that:-

“I do not dispute that on occasions I did sit him on my knee but I do dispute that I touched him in an inappropriate way. As this is not true then I consider it unfair to level that charge against me. As it was a domestic situation where I was in loco-parentis I did not consider a child sitting on my knee to be inappropriate.”

24. It was also a finding of the disciplinary hearing that the Appellant had permitted two unrelated children to sleep in the same bed at his house even though he had concerns about their sexual maturity. In response to this the Appellant stated that:-

“As the two children were pre-pubescent and they were allowed to sleep together at home, I had no worries when they asked me whether they could sleep together at my home. However, during the night I woke up to go to the toilet and on my returning went into their room to check if they were OK. On checking I found one child had strayed over on the bed so I put my hand inside the bed and gently moved the child back to his own side. This was the incident which was subject to close scrutiny by the Court and for which I was acquitted by the jury. To question my motives and explanations for my actions in this respect are a direct challenge to the authority of the criminal court.”

25. The Appellant accepted that on occasions his actions could have been misconstrued, but that there had never been any intention on his part to behave in an inappropriate way.

26. On the 7^th February, 1997 the Committee Secretary to the Employee Appeal Sub Committee wrote to the Education Directorate of Bradford Metropolitan District Council indicating that the Appellant’s appeal had been dismissed and that each of the five allegations had been proven, it being noted that the Appellant had in fact admitted those allegations. It was the finding of the Committee that each of the allegations constituted gross misconduct and that the decision to dismiss the Appellant without notice was upheld.

27. On the 15^th April, 1997, Bradford Metropolitan Council wrote to the Teachers Misconduct Team at the Department for Education and Employment enclosing various documentation including copies of notes taken at the original preliminary hearing, statements that were tabled at the appeal hearing and the original notes of the appeal hearing.

28. In the papers produced during these proceedings was an internal memorandum from a Janice Halliday of the Teachers Misconduct Team dated the 24^th April, 1997 apparently sent to a Mr. Smith relating to the Appellant. The memo noted that the Appellant had been found not guilty in the Bradford County Court on the 8^th February, 1995 on a charge of indecent assault. Mrs Halliday went on to note that the Appellant had been dismissed from Bradford LEA on grounds of misconduct in September 1996 and she then proceeded to set out the allegations that had been made against the Appellant in those proceedings. At paragraph 3 of the memorandum, Mrs. Halliday stated as follows:-

“3. It is hard to believe that a man who has been in the teaching profession for over 28 years could have been so naive. One would think that it would be obvious that any single male person living on his own would be wary of allegations being made against him. Despite my worries about Mr. Mann’s behaviour we cannot take this forward under Regulation 10 as we have no evidence to substantiate the allegations. The evidence which has been tested in a court of law has been found wanting. Under the circumstances please prepare a strongly worded no action/advice letter.”

29. On the 13^th June, 1997 Mrs. Halliday wrote to the Appellant in which she reiterated the allegations made against the Appellant in the disciplinary proceedings conducted by Bradford Metropolitan District Council. Mrs. Halliday then went on to state that on the basis of the evidence available it had not been possible for the Secretary of State to conclude that the allegations made against the Appellant were substantiated to a degree that would enable the Secretary of State to take action against the Appellation under Regulation 10 of the Education (Teachers) Regulations 1993. The letter then went on to state as follows:-

“Although the Secretary of State has decided not to impose a bar or restriction on your employment, he is concerned that such allegations have been made. The Secretary of State considers that whilst there is no suggestion of any sexually impropriety your behaviour towards children was inappropriate and capable of being misconstrued. You are advised that, in the future, you should take great care to observe the professional boundaries expected of a teacher and take great care to ensure that you do not place yourself in a position where further allegations of this nature can be made.”

30. On the 28^th April, 2008 Ms. Karen Cheeseman from the Children’s Safeguarding Operations Unit at the Department for Children, Schools and Families wrote to the Appellant indicating that the Secretary of State was conducting a review of historic List 99 cases and was reconsidering the Appellant’s case. Ms Cheeseman asked whether there were any representations that the Appellant wished to make and whether he would be agree to attend an interview with an independent specialist to assess the risk or potential risk to and suitability for working with children in educational and other settings.

31. The Appellant responded on the 11^th June, 2008 indicating that he had been acquitted of any wrong doing by a jury and that in 1997 the DFEE had upheld his status as a teacher and then went on to state as follows:-

“Since 1997 in spite of my treatment at the hands of Bradford Council officials I have continued to teach on a long and short term supply basis with a variety of agencies in state, primary and secondary schools in the West Yorkshire and North Yorkshire area. I have also spent four years as a proprietor of an independent school (nursery to 11 year olds) which included taking pupils on residential visits as well as full time teaching.

As I am now aged 61 years I am now officially retired, being in receipt of my teacher’s pension although I continue to do teaching work on an occasional supply basis mainly covering short term absences, a service which is much appreciated by schools.

Throughout the period from 1994 when the allegations were made to the present day no-one has ever questioned my treatment of children in any way. I consider this justifies the decision made by the then Secretary of State. Consequently I feel there is no reason to change the original decision.”

32. On the 11^th June, 2008 Ms. Cheeseman wrote to the Lucy Faithful Foundation asking if arrangements could be made for the Appellant to be seen for a report giving a professional opinion of his risk or potential risk to and suitability for working with, children in educational and other settings. The letter went on to include the following:-

“In this particular case the Secretary of State would be grateful if you will address the following questions/areas of concern in your report;

· Mr. Mann’s attitude towards appropriate boundaries between adults and un-related children

· Mr. Mann’s opinion about suitable touching in any context, of young children”

33. The Appellant was seen on the 21^st July, 2008 and on the 22^nd July, 2008 by Mr. Tom Squire a Lucy Faithful Foundation practitioner. Mr. Squire then prepared a report for the Secretary of State dated the 4^th August, 2008.

34. In his report Mr. Squire gave details of his background, experience and qualifications. He indicated that on behalf of the Lucy Faithful Foundation he had prepared specialist assessment reports on those who had committed sexual offences or who had been accused or suspected of sexually abusive or inappropriate behaviour. As part of his employment he regularly attended training events in relation to all aspects of child sex abuse and prevention. He was a qualified probation officer and had completed specialist training in cognitive behavioural treatment techniques for men who had committed sexual offences. He was an accredited trainer with regard to Risk Matrix 2000, an actuarial assessment tool.

35. Mr. Squire then provided details of the information that he had been provided with in relation to this case and his understanding of the history of the allegations made against the Appellant. Mr. Squire then gave details of his interviews with the Appellant, including the account given by the Appellant of the allegations. At paragraph 7.13 of his report Mr. Squire stated as follows:-

“In summary, Mr. Mann disputed that he had ever touched the children indecently or that his conduct had been in any way sexually motivated. He denied any suggestion that he had attempted to groom the children through his contact with them – “there was no attempt” – and explained his actions were motivated “purely out of concern for the children’s plight, trying to give them a good experience.” With respect to his personal boundaries and physical contact that he had with the children, Mr. Mann equated his behaviour to that of a parent; “I was in many ways taking the place of the parent, I was taking the role of the parent.” He therefore stressed that his conduct within this context had no bearing on his professionalism as a teacher or as a cub leader. Since the above allegations were made against him, Mr. Mann stressed that he had never had more children to stay at his home, something he described as “a wise decision” on his part; “it is like once bitten, twice shy. If you go though an experience like I did, I would never want to go through anything like that again.”

36. Mr. Squire then went on to give his opinion of the Appellant’s conduct. At paragraph 8.2 Mr. Squire’s stated as follows:-

“Despite Mr. Mann’s assertion that he was “in the role of a parent”, in my view his level of physical contact with the children was unwarranted and inappropriate, not least because he is unrelated to the children concerned.”

And later in the same paragraph Mr. Squire went on to state:-

“It is also likely to have caused significant emotional distress to the children concerned, and to have further undermined their sense of emotional security. However, these concerns notwithstanding, on balance I consider it unlikely that Mr. Mann’s behaviour was primarily motivated by a desire for sexual gratification, though that may have been a factor in his conduct. Likewise, given the particular context in which the concerns originated, my opinion is that there is little evidence to indicate that Mr. Mann would behave in a similarly inappropriate manner in a different and more explicitly professional setting.”

37. Later in his report Mr. Squire considered the Appellant’s personal history and current circumstances as well as his relevant relationships and sexual history.

38. Mr. Squire then went on to carry out a risk assessment, at paragraph 11.1 of his report, Mr. Squire stated as follows:-

“Consequently, in my opinion, Mr. Mann is vulnerable to forming inappropriate intimate, and potentially sexualised, relationships with children, within particular situations such as a domestic setting.”

39. Mr. Squire then stated that the vulnerability and risk factors were to a significant extent offset by several protective factors, these included the fact that the Appellant appeared to hold no beliefs or attitudes that were supportive of sexually harmful behaviour towards others nor that there was any clear evidence that his sexual interests were primarily paedophilic. There had also been no further allegations or concerns raised about the Appellant’s conduct since his trial in 1994 and he appeared to have learnt from his experiences. The Appellant had managed to maintain strict boundaries in relation to his contact with children and risk factors were further contained through his lack of involvement with the scouts by the fact that members of his church were apparently aware of the allegations made against him. Mr. Squire stated that the Appellant presented a minimal risk of sexual and emotional harm to children and young people. The concluding paragraph of his report at paragraph 12.1 reading as follows:-

“Following the allegations against Mr. Mann in early 1994, his case was subsequently referred to the Teachers Misconduct Team. As previously noted, on that occasion the Secretary of State decided not to restrict or bar Mr. Mann’s employment. Since this time no further complaints have been made against Mr. Mann and he has retired from full time teaching. On the basis that Mr. Mann appears to have learnt from his experience and modified his boundaries in relation to contact with children, I do not consider that he presents a significant and current risk of harm to others.”

40. A copy of the report was sent to the Appellant on the 3^rd September, 2008. On the 18^th December, 2008 Ms. Carol Bell from the Department for Children, Schools and Families wrote to Mr. Squire indicating that the Department was writing after having considered his report and was asking him to clarify a number of specific points which were outlined in the letter. In particular, seeking Mr. Squire’s observations on what had motivated the Appellant to behave towards the children in the way that he acknowledged that he had and what the Appellant’s understanding of his motivations might have been.

41. Mr. Squire replied on the 15^th January, 2009.

42. In relation to admitting to two unrelated children aged 11 and 12 of the opposite sex to sleep together in a single bed, Mr. Squire stated that in his opinion the Appellant’s conduct was likely to have been motivated by two factors. Firstly, his lax approach to physical boundaries and secondly there was a distinct possibility in Mr. Squire’s view that the Appellant was motivated by a voyeuristic desire to either observe or facilitate some form of physical and sexual intimacy between the children.

43. As regards the Appellant having got into bed with AB “in order to warm up” Mr. Squire stated that he considered the Appellant’s account implausible. In respect of the Appellant separating out AB and EFC whilst they slept in the same bed, during the course of which he might have brushed past AB’s genitalia and touched EF’s breast, it was Mr. Squire’s opinion that the Appellant’s explanation that he was endeavouring to separate the children lacked credibility. In Mr. Squire’s opinion the Appellant was more likely to have been motivated by desire to either indecently assault AB as subsequently alleged or to witness or encourage sexual contact between the two children.

44. As far as the Appellant reading to the children whilst in bed with them, Mr. Squire’s stated opinion was that this was a further clear example of the Appellant’s willingness to breach appropriate physical boundaries with children.

45. In looking at the Appellant’s behaviour in respect of all of the allegations against him, Mr. Squire considered that the Appellant did not accept that his actions were inappropriate. Later in his report, Mr. Squire stated that in his view the Appellant accepted his past actions were at least open to misinterpretation but that there was little evidence to suggest that the Appellant had reappraised his behaviour from his own, internal prospective.

46. Mr. Squire’s letter of the 15^th January, 2009 was forwarded to the Appellant, who responded on the 10^th February, 2009. As well as making comments in relation to the specific allegations and Mr. Squire’s opinion of the Appellant’s motivations, the Appellant also commented on Mr. Squire’s opinion about the risk that he might present, stating as follows:-

“I would suggest that this is highly unlikely given my 30 years experience as a teacher and my 26 years as a leader in the Scout Movement where my record is unblemished. Over the years I have looked after hundreds of children in residential situations with no problem. It is now 15 years since my humanitarian good turn with the G family came to an end since then I have continued to teach on a supply basis and been a partner in an independent school again with no problem. I have removed the cause of the problem, that of allowing children to stay at my house however desperate their circumstances. I have now retired from full time teaching so my contact with children is now minimal and only on a casual supply teaching basis.”

The Appellant went on to state that he considered that in hindsight some of his actions could have been misconstrued. He stated that this had to be viewed in the context of him trying to do his best for the children in often very difficult circumstances which were not of his making.

47. On the 27^th March, 2009 Ms. Valerie Johnston of the Safeguarding Operations Unit (List 99) at the Department for Children, Schools and Families wrote to the Appellant. In the letter it was stated that the Secretary of State having carefully considered all the information put before him on this matter and had decided that the Appellant should be barred on the grounds of his unsuitability to work with children from employment to which Section 142 of the Education Act 2002 applies. The letter then went on to state:-

“In reaching a decision, the following has been taken into account:-

All of the documents listed in the Annex to this letter. Particular consideration has been given to the Risk Assessment by the Lucy Faithful Foundation dated the 4^th August, 2008 and the supplementary comments by the assessor dated the 15^th January, 2009.”

48. The Appellant appealed to this Tribunal against the Secretary of State’s decision to which a Response was served on behalf of the Secretary of State. The Response made reference to the Appellant’s acquittal at Bradford Crown Court as well as the findings made against him in the disciplinary action by Bradford Metropolitan Council. It was noted that the then Secretary of State had in June, 1997 taken a decision not to bar the Appellant from employment it being felt that it was appropriate to issue a strongly worded “no action” letter warning the Appellant not to place himself in a position where further allegations could be made.

49. At paragraph 7 of the Response it was stated as follows:-

“Since then, the Appellant has continued to teach and otherwise to have contact with children. On the 12^th July 2001 he applied to become a supply teacher with Education Leads. In 2003, he purchased shares in Joseph Rayner Independent School in Oldham and taught at the school. He was listed as sole proprietor of the school in January 2006 although the school closed in July 2006. In 2007 the Appellant was organist at two churches and had access to a workshop below a scout meeting hut. The Appellant made CRB applications on the 10^th February, 2003, the 9^th September, 2004, the 10^th April, 2006 and the 28^th August, 2006.”

50. The Response went on to explain that following public concern about the case of a teacher whom the Secretary of State had decided not to include on List 99, the Secretary of State in 2006 had given a commitment to Parliament to review that case and certain other past decisions not to bar individuals. A Historical Case Review had been set up and the Appellant’s case was one in which the review panel had taken the view that the original decision to bar was flawed. The case had then been cleared for reconsideration by the Secretary of State, the Appellant had been notified of this and invited to make representations as well as to take part in an independent risk assessment. The assessment was carried out by the Lucy Faithful Foundation and the Appellant had willingly agreed to participate.

51. In the light of the advice from the Lucy Faithful Foundation concerning the risk posed by the Appellant, the Secretary of State had taken the view that it was appropriate to prohibit the Appellant from work covered by Section 142 of the Education Act and so to seek to minimise the level of risk which the Appellant posed for children.

52. The Respondent included in these proceedings a written statement from Ms. Carol Bell dated the 25^th January, 2010 in which she stated she was the Team Leader in the Children’s Safeguarding Operations Division of the Department for Children, Schools and Families. She had worked on that team for 2.5 years. Ms. Bell then set out the background to the Appellant’s case as well as the how the Historic Cases Review came to be established and the setting up of the Review Panel headed by Sir Roger Singleton to review all the List 1999 cases where individuals had been cautioned, convicted or alleged to have committed a sexual offence which had resulted in a decision not to include on List 99 or which resulted in a restriction or partial bar.

53. At paragraph 13 of Ms. Bell’s statement she indicated that:-

“In the Appellant’s case the expert panel considered that the original decision maker had erred in the standard of proof which she had applied to the allegations against him (I attach to this witness statement an internal minute from Mrs. Janet Halliday to Mr. Smith dated the 24^th April, 1997 and a letter to Mr. Mann which relates to the original decision not to bar, dated the 13^th June, 1997). It should not have followed automatically from his acquittal that the evidence against him could not support a bar on future teaching employment.”

There was then a reference by Ms. Bell in her witness statement to the risk assessment carried out by the Lucy Faithful Foundation, Ms. Bell stating at paragraph 17 of her witness statement as follows:-

“In the light of the advice from LFF to the effect that the level of risk posed by the Appellant would increase if he was to have increased contact with children, it was appropriate for the Secretary of State to take steps to prohibit the Appellant from the work covered by Section 142 of the Act and so to seek to minimise the level of risk which he posed to children.”

54. Ms. Bell gave oral evidence at the Tribunal hearing in which she confirmed that she had signed the witness statement dated the 25^th January, 2010 and the facts contained within that statement were true. She was then tended for cross examination.

55. Ms. Bell stated that the Appellant had given an account of the incidents and the basis of the allegations against him, but he had not acknowledged that his actions had been inappropriate.

56. Ms. Bell acknowledged that the evidence against the Appellant had been found wanting in a court of law and it was a marginal case, but said that there were reasons to ban the Appellant from employment.

57. It was accepted by Ms. Bell that the letter sent on behalf of the Secretary of State to the Appellant dated the 13^th June, 1997 did not give any indication that the decision not to bar the Appellant might be revisited in the future. The letter was worded carefully to ensure that the Appellant followed professional boundaries. It was always open to the Secretary of State to relook at a case.

58. It was also accepted by Ms. Bell that the testimonials that the Appellant had provided were those submitted in respect of his Crown Court trial rather than to the Department, but they had been seen by the Department prior to the Secretary of State’s decision being made in March, 2009.

59. In respect of the report from Mr. Squire, Ms. Bell said that she had seen the letter of instruction that had originally gone to him. The purpose of the report had been to look at the risk or potential risk that the Appellant posed; it was an independent risk assessment. Having seen the report a view was taken that a lot of the information in the report did not follow through to the conclusions that Mr. Squire had reached and that was why it had been necessary to raise additional questions. Both Mr. Squire’s original report and his subsequent letter were taken into consideration by the Secretary of State in reaching the conclusion to place the Appellant on List 99. Ms. Bell confirmed that nothing had occurred in the last 13 years which had come to the attention of the Department in relation to the Appellant’s work with children. Ms. Bell said that the Department were aware that the Appellant had been working as a supply teacher since 1997 and that this was recognised as an important service.

60. In answer to questions from the Tribunal panel, Ms. Bell stated when the decision not to bar the Appellant had been made in 1997 the wrong test had been applied.

61. In terms of the referral to the Lucy Faithful Foundation, Ms. Bell stated that they were instructed to undertake a risk assessment and there was an expectation on the part of the Department that the Lucy Faithful Foundation would use a suitably qualified professional to carry out that task. It was not the role of the Department to question the qualifications of any one doing the risk assessment.

62. Mr. Squire’s conclusions in his original report had puzzled Ms. Bell as they did not appear to follow what had been stated earlier in his report. Ms. Bell stated that she did not know whether Mr. Squire had used Risk Matrix 2000 in carrying out his assessment.

63. It was confirmed by Ms. Bell that the Appellant’s case had been looked at by the expert panel which had been introduced in 2004. At least two members of the expert panel including Sir Roger Singleton had looked at the case.

64. The Appellant did not give evidence at the Tribunal hearing.

The Law

65. Section 142 (1) (a) provides that the Secretary of State may direct that a person may not carry out work to which Section 142 applies. Section 142 applies to provision of education at a school and elsewhere.

66. Section 142 (4) of the 2002 Act provides that a direction may be given in respect of a person only the specified grounds. These are:-

(a) that the person is included on the POCA list

(b) that the person is unsuitable to work with children

(d) on grounds relating to the person’s health; or

(e) on grounds relating to the person’s professional incompetence

In this case the Respondent relies on Section 142 (4) (b) in other words that the Appellant is unsuitable to work with children.

67. Section 144 (1) (a) provides that a person in respect of whom the direction has been given under Section 142 may appeal to this Tribunal against the decision to give that direction.

68. Regulation 12 (1) of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 also provides that an appeal to the Tribunal made be brought by a person in respect of whom a direction has been given under Section 142 of the Act, against such a direction. By Regulation 12 (2) no appeal may be brought on the grounds of information or evidence referred to in Regulation 9 (2) unless that information or evidence has been brought to the attention of the Secretary of State under Regulation 9.

69. Regulation 13 (2) provides that the Tribunal shall not, in exercising its powers under Regulation 13 consider any information relevant to the decision to give a direction which the Secretary of State did not have at the time the decision was made, or evidence of a material change of circumstances of the person concerned, occurring since the decision to give a direction was made.

70. The relevant provisions of the Act and Regulations have been repealed under the Safeguard of Vulnerable Groups Act 2006. However, the Safeguarding Vulnerable Groups Act 2006 (Commencement No. 6, Transitional Provisions and Savings) Order 2009 provides that the provisions of the Act and Regulation remain in force for Appellants who have an appeal pending against such a direction.

71. The Secretary of State has the burden of showing that his decision was appropriate. The standard of proof to be applied is “the balance of probability” in other words the Tribunal can consider an event occurred if on the evidence the occurrence of the event was more likely than not.

72. It is for the Tribunal to consider in the context of this appeal, whether it was appropriate or a proportionate response for the Secretary of State to have made a decision to restrict the Appellant’s employment. In the Tribunal case of Brazier v Secretary of State [2007] 1085, the Tribunal quoted the comments made in an earlier Tribunal case of FH v Secretary of State [2005] 552.PT when it was stated that the Tribunal should decide whether:-

“The restriction is an appropriate measure to ensure, so far as possible, that children will be properly protected and that reasonable parents and other interested parties will not have their confidence in the education system diminished in the future.”

We endorse that approach.

The Parties Submissions and Our Conclusions

73. Both representatives submitted skeleton arguments as well as making oral submissions at the conclusion of the hearing.

74. Mr. Coppel submitted that the Secretary of State was in principal entitled to review past decisions not to bar individuals. The power to make a direction to bar was a power which, unless a contrary intention appeared, a power which could be exercised from time to time (Section 12 of the Interpretation Act 1978). There being no contrary intention in the Regulations, the Secretary of State was entitled to exercise the power of review on rational grounds. The grounds in this case being what was said to have been the erroneous approach of the original decision maker.

75. Mr. Brocklehurst did not dispute that the Secretary of State had the power to review past decisions. He did however submit that the decision taken by the former of Secretary of State to carry out the Historic Case Review was made in the context of two cases, one in which the individual concerned was a registered sex offender and in the other where there had been a conviction for indecent assault and that both cases the individuals concerned were found to be working in schools. Mr. Brocklehurst said that the purpose of the Historic Case Reviews was therefore intended to be in relation to cases where an individual had been cautioned or convicted.

76. Mr. Brocklehurst did not accept that the original decision maker in the Appellant’s case had made an error in 1997. The Appellant was entitled to rely on the letter he had received and had done so in pursuing his career since that date. It would be unfair after 13 years for the Secretary to State to seek to correct that letter.

77. We accept Mr. Coppel’s submission that unless the grounds on which the Secretary of State was carrying out a review were irrational, in which case an application to the Administrative Court might be appropriate, then the Secretary of State does have the power to review decisions taken not to bar individuals.

78. We were referred by Mr. Coppel to the case of Duffield [2009] UK FTT (HESC) in relation to guidance on the matters should be considered by a Tribunal on the issue of an Appellant’s unsuitability to work with children. Although Mr. Coppell acknowledged that the guidance given in that case was in circumstances relating to the issue of misconduct and that there was a distinction to be drawn between cases involving the POCA list and List 99.

79. In looking at the question of suitability, Mr. Coppel submitted that the Tribunal should have regard to the important role of teachers in society as set out by the Tribunal in the case of Moseley [2002] 1PC also cited in Brazier where it was stated that:-

“The role of a teacher in society is an important one and parents and the general public expect or are entitled to expect high standards from teachers. A teacher is placed by the parents of a child in a position of trust and responsibility and a teacher must be able to demonstrate those qualities not only in their professional spheres of work as a teacher but also in their personal conduct. Teachers are perceived as role models for children and trust and honesty are core values which underpin the status of teaching as a professional.”

80. We were also referred by Mr. Coppel on the issue of the suitability to work with children to the case of Secretary of State for Children, Schools and Families v BP [2009] EWHC 866 a POCA case in which Mr. Justice Munby stated at paragraph 24 as follows:-

“No-one has really questioned the Tribunal’s jurisprudence as set out in these authorities, though at one stage during his oral submissions BP did ask rhetorically why the Tribunal should have to consider public confidence, adding words to the effect, why can’t the Department take a lead and say that someone is not in fact a risk although the public may think they are? The answer to that is two fold. In the first place, the issue in a case such as this is, as we have seen, suitability rather than risk. Secondly, however the Tribunal in my judgment is plainly right and for the reasons that it has given, in stressing the vital importance of the issue of public confidence. This does not mean, of course, that the Tribunal is simply to pander to the unreasoned baying of the mob; but it does mean that it is entitled to have regard to matters which are likely to be of concern to ordinary sensible people. For my part I would not wish to question the Tribunal’s jurisprudence. In my judgment it is quite plainly correct.”

81. Mr. Coppel submitted that there were two questions that the Tribunal needed to consider in a suitability case such as this. Firstly, what risk did the Appellant pose and secondly what impact would there be on public confidence of allowing the person concerned to continue to teach. We accept that in the context of the decided cases that it is appropriate that we should consider these questions.

82. It was suggested by Mr. Coppel that there were a number of worrying features of the Appellant’s case which left doubts as to his suitability. The Appellant had admitted a number of the allegations that had been made against him. In particular that he had got into bed with AB when AB was apparently sleep, he had got into bed with children who were staying overnight at his house, he had sat CD on his knee on frequent occasions and touched him on his stomach and legs, he had permitted an unrelated girl, EF and AB to sleep together in the same bed at his house and had touched AB on the top of his legs and the inside of the top of his legs several times whilst he was in bed at the Appellant’s house. The explanations given by the Appellant in relation to all of these incidents were, Mr. Coppel submitted, totally implausible and gave rise to cause for serious concern.

83. That they should give rise for serious concern could, it was suggested, be ascertained from Mr. Squire’s report. Mr. Coppel drew our attention to a number of specific comments made by Mr. Squire in his report. This included Mr. Squire expressing serious concerns in relation to the Appellant’s behaviour towards EF, CD and AB, about the Appellant’s physical boundaries with children, and the clear possibility that his conduct was sexually motivated.

84. In relation to the touching of children under the bed covers in the dark, Mr. Squire had expressed the view that the Appellant had generated the possibility that he might touch their genitals whether intentionally or otherwise and that his actions could be misconstrued. Mr. Squire had also put forward the view that whilst the Appellant’s emotional bond with the children concerned had increased, with AB and CD in particular, this may have resulted in his affection for them and his interactions with them becoming increasingly sexualised. In his later letter Mr. Squire had stated that the Appellant’s action in getting in to bed with AB in order to warm up was implausible and Mr. Squire’s had formed the view that the Appellant’s conduct was motivated by a desire for physical proximity and intimacy as a potential prelude to later sexual contact.

85. In relation to allowing AB and EF to share a bed, in Mr. Squire’s view, this showed the Appellant had a lax approach to establishing appropriate physical boundaries and a voyeuristic desire on his part to observe the children’s physical proximity and potential sexual activity. The importance of appropriate boundaries was again an issue in relation to the occasions when the Appellant had got into bed with the children to read them stories, with Mr. Squire stating at paragraph 8.7 of his report as follows:-

“Indeed, the distinction between being a parent and being an unrelated adult, albeit “in loco-parentis”, was one that Mr. Mann in my view found difficult to grasp.”

Such that Mr Squire considered the Appellant had derived increasing levels of sexual frisson and excitement from such physical proximity with the children. Mr. Squires had made clear findings that the Appellant was engaged in a process which was becoming increasingly sexualised.

86. As well as Mr. Squire’s evidence, we were also referred by Mr. Coppel to an interview statement from Ms. Gabrielle Hall, a Principal Education Social Worker dated the 8^th December, 1995 which was submitted as part of the evidence in the Appellant’s disciplinary proceedings. She was recorded as having stated in the interview that she had read the case facts and that there were areas which gave her cause for concern. During the interview she is recorded as having said:-

“There are uncomfortable similarities with regard to the facts of the case and the known behaviour of some perpetrators. Mr. Mann is both a teacher and a cub leader. He befriended a disadvantaged and vulnerable single parent family. A boundary was crossed whether intentionally or not. If the child had not at this stage told about what he had interpreted as inappropriate, Mr. Mann’s behaviour may have become more clearly abusive.”

87. Mr. Coppel submitted that the Appellant did not have any insight into the inappropriateness of his conduct. The explanations that he had given for his conduct were implausible and there was no indication that he regarded his conduct as wrong and inappropriate. There was no genuine insight by him into his wrong doing.

88. The Appellant had not made any attempt to change through therapy or counselling. Although he had stated that he had separated from children the thought process that lead to his misconduct was still there. He had simply held himself in check for the last 13 years. He would have been in a stronger position if he had made an effort to reform, but that would have required him to accept that what he had done was wrong.

89. In the Appellant’s case there were other risk factors still present in relation to the Appellant’s background, which Mr. Squire had considered exacerbated the position, for example the Appellant’s lack of sexual experience and significant adult relationships.

90. The Appellant had indicated a wish to continue to have contact with children and it was unknown if he would maintain appropriate boundaries in those circumstances.

91. It was submitted by Mr. Coppel that if all the factors were taken into account together, it was appropriate and proportionate to conclude the Appellant was unsuitable to work with children.

92. Mr. Brocklehurst stated that the Appellant had willingly agreed to be interviewed by Mr. Squire and had fully co-operated with him. Mr. Squire had found that there was little evidence to indicate that the Appellant would behave in an inappropriate way in a professional setting and that the Appellant was “extremely aware” of his physical boundaries with children. The conclusion to the report had been that Mr. Squire did not consider the Appellant presented a significant and current risk of harm to others. It was contended by Mr. Brocklehurst that the Secretary of State had either ignored or had not attached sufficient weight to Mr. Squire’s findings as set out in his report. The subsequent letter from the Secretary of State to the Lucy Faithful Foundation had been unnecessary and raised issues already covered in the report, in the circumstances it was no more than “a fishing expedition” in order to find some reason to impose a bar. Further that the comment in Mr. Squire’s subsequent letter that it was possible to envisage circumstances in the future in which the Appellant’s lack of risk would increase to a concerning level, contradicted comments in Mr. Squire’s previous report. The Secretary of State had relied entirely on Mr. Squire’s letter of the 15^th January, 2009 rather than the original report.

93. It was also submitted by Mr. Brocklehurst that the Appellant would not be having any more contact with children in the future than he had had since 1997, and that any such contact would be in a professional setting as a supply teacher.

94. Whilst it was acknowledged that List 99 was not punitive and was intended to safeguard children, nevertheless the consequences for the Appellant were serious. Mr. Brocklehurst referred to the remarks by Baroness Hayle in R ( On the application of L) (FC) v Commissioner of Police for the Metropolis [2009] UK SC3 that “….. the fact that a person has been excluded from employment is likely to get about and if it does the stigma will be considerable.”

95. Mr. Coppell submitted that there were good reasons for the Secretary of State to ask Mr. Squire to clarify the views set out in his report; there were no significant inconsistencies between the report and Mr. Squire’s subsequent letter. There was little difference in Mr. Squire’s comments in his letter from those contained in his report, until the final page of his letter of the 15^th January 2009, when Mr. Squire went further than before. There was nothing startling or dramatic about Mr. Squire’s comments, such as his concerns about the Appellant’s capacity to manage his behaviour within appropriate boundaries in the future. Mr. Coppel said that even if there were inconsistencies between Mr. Squire’s report and his subsequent letter, the Secretary of State was still entitled to look at the letter and the answers given to direct questions.

96. In looking at the Appellant’s suitability to work with children, as suggested by Mr. Coppel, we have considered firstly the risk that the Appellant poses. We take into account the fact that he was charged with indecent assault of AB and his subsequently acquitted following a trial at Bradford Crown Court. However there are a number of other allegations in this case which formed the basis of the disciplinary proceedings against the Appellant regarding his conduct towards AB, CD and EF, the basic facts of which he does not dispute. The allegations against the Appellant were serious, and save for two, were upheld in disciplinary proceedings brought against him by his former employers. It was found that the Appellant had behaved in a most inappropriate manner, wholly inconsistent with the standards of behaviour to be expected of a professional teacher.

97. The Appellant has been consistent in the explanations that he has given for what occurred in relation to the allegations made against him and has always stated that he had never had any intention to behave in an inappropriate way. However we regard some of the explanations given by the Appellant to be more plausible than others. Whilst we consider it to be possible that reading to children in bed, might be seen as acting as a parent would, the suggestion that the Appellant got into AB’s bed because he felt cold, we regard as implausible. Since the dates when these incidents occurred the Appellant has had a considerable amount of time to consider his actions we are not clear that he fully understands how inappropriate his actions were, however the evidence indicates that he does now understand the need for appropriate boundaries.

98. The information regarding the allegations has not changed and we note that the then Secretary of State in 1997 made the decision not to bar the Appellant from teaching. It is said by the Respondent that the decision maker adopted the wrong test and was of the view that because the Appellant had been acquitted in the Crown Court if followed that there was not sufficient evidence on which the Appellant could be barred from teaching. Whilst this may have been part of the thinking of the decision maker, we also note the comment in Mrs. Halliday’s letter to the Appellant of the 13^th November, 1997 when it was stated that:-

“The Secretary of State considers that whilst there is no suggestion of any sexual impropriety, your behaviour towards children was inappropriate and capable of being misconstrued.”

We are not therefore convinced that the decision made by the Secretary of State in 1997 was due to a misunderstanding by Mrs Halliday of the law.

99. In any event, as we have accepted, the Respondent is not prevented from looking again at the Appellant’s case. As well as having the documentation previously before the Secretary of State in 1997, the Respondent has also had the benefit of the report from Mr Squire and his subsequent letter. We have found considerable difficulty in determining the weight to be attached to Mr. Squire’s views. In his initial report he initially raises serious concerns about the Appellant’s physical boundaries with children as well as raising the possibility that the Appellant’s conduct was sexually motivated, but then goes to say that despite these concerns he considers it unlikely that the Appellant’s behaviour was primarily motivated by the desire for sexual gratification, although that may have been a factor.

100. When carrying out his risk assessment Mr. Squire starts off by saying that the Appellant is in his opinion vulnerable to forming inappropriate intimate and potentially sexualised relationships with children within particular situations such as a domestic setting, but then goes on to say that these factors are to a significant extent offset by several protective factors, before coming to the conclusion in paragraph 12.1 of his report that:-

“I do not consider that he presents a significant and current risk of harm to others.”

101. The Secretary of State then poses a number of questions for Mr. Squire which appear to press him to reconcile what may have appeared to have been conflicting comments in his report. In his response Mr. Squire states that he has concerns about the Appellant’s capacity to manage his behaviour within appropriate boundaries in the future, given that he found little evidence of change in the Appellant’s personal circumstances that were associated with risk. Whereas in his earlier report Mr. Squire commented that the Appellant’s decision to maintain “strict boundaries” in terms of his physical contact and boundaries with children when teaching, affected his conscientiousness about boundaries.

102. In his letter of the 15^th January, 2009 Mr. Squire states that where in the conclusion to his earlier report he had indicated that the Appellant did not present a significant and current risk of harm to children that was based upon the Appellant’s apparently minimal contact with children at the present time. Mr. Squire was clearly aware when he wrote his original report of the contact that the Appellant was having with children, indeed he refers to such contact at paragraph 11.3 of his report and indeed appears to have taken into account that the Appellant had modified his boundaries in relation to contact with children. We are therefore unclear on what if anything had changed between the writing of the report and Mr Squire’s subsequent letter. In considering Mr. Squire’s evidence overall we find it to be contradictory and not particularly helpful.

We have nevertheless taken into account Mr. Squire’s evidence in considering the risk that the Appellant may pose, but have also taken into account the evidence regarding the Appellant’s length of time as a teacher and a scout leader and that in particular since the allegations in 1994 there have been no reports of any complaints involving the Appellant notwithstanding that he has still had contact with children. We have also considered the evidence of the children concerned, and that provided in the disciplinary process, as well as the Appellant’s own statements and we conclude on a balance of probabilities that the Appellant does not present a significant current risk of harm to children.

103. That is however not the end of the matter in that we are looking at the Appellant’s suitability and the fact that we have concluded that he does not represent a current risk of harm, does not in itself mean that he can be considered a suitable person to work with children. The other aspect that we need to consider is what impact there is likely be on public confidence of allowing the Appellant to continue to teach. Again we have considered all of the evidence, including the nature of the allegations made against the Appellant and his response to those allegations, and also the fact that he was dismissed for misconduct from his position with Bradford local education authority. In addition we also take into account that he was acquitted in the Crown Court on an indecency charge, his long record as a teacher and scout leader (and the testimonials provided), and in particular the fact that these allegations took place in 1994 and there have been no reported allegations made against the Appellant since then. In those circumstances we conclude that notwithstanding the nature of the allegations made against the Appellant, the public would nevertheless be entitled to have confidence in the Appellant being allowed to continue to teach. Accordingly we do not consider that the Secretary of State’s decision to place the Appellant on List 99 was appropriate or proportionate and we therefore allow the appeal.

Order

The Appeal is allowed. We direct the Secretary of State to remove the Appellant’s name from the list maintained under Section 142 of the Education Act 2002 (“List 99”).

Mr. Stewart Hunter (Tribunal Judge)

Mr. Mike Jobbins (Specialist Member)

Ms. Jenny Lowcock (Specialist Member)

Dated the 31st day of March, 2010.

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	First-tier Tribunal (Health Education and Social Care Chamber)
You are here: BAILII >> Databases >> First-tier Tribunal (Health Education and Social Care Chamber) >> Mann v Secretary of State [2010] UKFTT 138 (HESC) (31 March 2010) URL: http://www.bailii.org/uk/cases/UKFTT/HESC/2010/138.html Cite as: [2010] UKFTT 138 (HESC)

First-tier Tribunal (Health Education and Social Care Chamber)