ID v SOS (Rev 1), Court of Appeal, April 07, 2011, [2011] UKFTT 202 (HESC)

Resolution Date:April 07, 2011
Actores:ID v SOS (Rev 1)
 
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[2011] UKFTT 202 (HESC)1DECISIONCase No: [2009] 1733.PT THE FIRST TIER TRIBUNAL (CARE STANDARDS)BETWEEN IDAppellant-AND-THE SECRETARY OF STATE FOR CHILDREN SCHOOLS AND FAMILIES.RespondentBefore: Tony Askham (Tribunal Judge) Susan Last Raymond Winn Dates18 and 19th August 2010 and decision consideration 28th March 2011. DecisionAppealID appeals under Section 144 of the Care Standards Act 2002 against the Respondents' direction contained in a letter dated 30th September 2009 to bar the appellant from employment to which Section 142 of the Act applies.AttendanceFor the AppellantMr Bentote (helper and witness)The Appellant For the RespondentPaul Ozin (Barrister)Instructed by Sarah Townsend (Solicitor) Witnesses:John Shields (18.08.10)Preliminary matters1. After the hearing on the 18 and 19 August 2010 we adjourned our decision to seek further documentary evidence from both parties as to certain of the main allegations against the appellant. As a result we have now produced to us by the appellant documents relating to the appellant's divorce and custody and access hearing in the Bristol County Court in 1995 and 1996 and by the respondent the indictment of the appellant in the Portsmouth Crown Court on four charges of indecent assault dated the 14 September 2000. 2. In addition the respondent has shown us that all the records relating to the Bristol prosecution are certain to have been destroyed and similarly all papers as to the Portsmouth prosecution have also been destroyed. It appears possible that there may still be papers in the Bristol County Court relating to the divorce proceedings but at this time these are not available to us. 3. In the circumstances we have decided we must now make a decision on the basis of the evidence now available to us.4. In addition we have received the further final written submissions of both parties.The Issues5. The Appellant, who was employed as a math's teacher at Bay House School and was referred by it on the 19th October 2007 to the Independent Safeguarding Authority as a result of its investigations following it finding out that the appellant, had been arrested for alleged child abduction.6. The Respondent maintained that the Appellant had been the subject of a number of serious allegations involving serious misconduct with children and as a result is unsuitable to work with children.7. The Appellant maintained in his Notice of Appeal, that he had been found not guilty on two occasions of alleged indecent assault on children. That he had never committed any act of indecency with children and that the allegations against him were untrue or exaggerated. Although he no longer intended ever again to work with children he stated that his name should not be placed on list 99. The evidenceThe Respondent's evidence8. Counsel for the Secretary of state took us carefully through the skeleton argument he had prepared and which set out each of the allegations made against ID and on which the Secretary of State relied in arriving at his decision to place ID on list 99. These allegations relate to two separate types of misconduct the first and most serious allegations A1 - A4 which relate to separate allegations of indecent assault on children and A5-A7 which relate to school related issues. 9. These matters and key dates were presented to us by the Respondent as follows:10. As to incidents A1-3 it became apparent that there was no direct evidence whatsoever of the 1996/7 incidents which led to the acquittal of the Appellant in the Bristol Crown Court some time in 1997. The only record is in a police note of an investigation in December 1998 when the police reinvestigated the allegation A2 following a complaint by the two children's father, who was unaware of what had happened previously. 11. That note read ``ID's file collected from the registry at new Bridewell 30.12. 98 both CJ and LJ were interviewed on video about ID. Both made disclosures of indecent assault. Their mother wrote saying that she would not let her daughters attend court and give evidence. The case then proceeded with only JH as a victim. ID was found not guilty.''12. This note supported the explanation of the events given by ID in his evidence in that he said the first two allegations A1 and A2 were all the subject of one trial in the Bristol Crown court and were not separate incidents. 13. It was apparent that there was in respect of these two allegations no direct evidence at all as to the nature of the alleged assault on JH or when it occurred. Neither was there before the Secretary of State or ourselves the video evidence of the two girls the subject of allegation A2 or any transcript of their evidence or any evidence relating to the case at that time. There was no record of the outcome of the Crown Court trial (other than the note referred to in paragraph 11) or whether the charges relating to CJ and LJ were withdrawn or whether the appellant was found not guilty on them. It was unclear when the alleged assaults occurred and how old the children where at the time.14. The documentary evidence and that of Respondent about these two allegations A1 and A2 showed that these arose because on the 28.12 1998 the children's father, who apparently knew nothing about the matters set out above and the fact that ID had been charged with assaulting his daughters, was told by CJ that ID (described as her mum's new partner) had touched her breasts on a few occasions and that the same might have happened to LJ.15. As a result the police looked again at the allegations but by the 30.12.98 had informed the father that they knew of the allegations previously and that the children had been videoed. He was also told that the mother would not let the children give evidence. In the course of this short investigation though the documents showed that CJ alleged that the first incident had happened when she was about 5 or 6 and the second incident when she was about 8. On that occasion she said that he touched her between her legs. On another page of the note she says first assault was in 1991 when ID was first the mum's boyfriend and second time when ID became her mum's boyfriend again. LJ said it had never happened to her and she only knew about the matter because her mother had told her. The note suggested that CJ had told her mother about the matter before the incident with JH who it was said was a friend of CJ.16. A separate police note suggested that both girls had only been videoed as witnesses for JH. The note suggested the matter had arisen because ID had been back on the scene for some 6 months.17. The police record at the time showed that CJ was then aged 13 (25.10.85) and LJ 14. (07.03.84). A note also said that ID was residing at the mother's address at the time. 18. Allegation A3 related to an alleged indecent assault on ID's own daughter who was born 21.1.1994. The assault was said to have taken place on the in 1997 when M was said to be 4. A Hampshire constabulary report relating to allegation A 4 reports that ``an allegation was also made by ID's 4 year old daughter that he had put his finger in her fanny, however she was too young to interview and examine.'' There were no other papers relating to the matter with the papers before us or the Respondent other than the appellant's answers to questions put to him by the school and his case to the Tribunal.19. In a police note referred to in the next paragraph mention is made of 1997 assaults and ID's acquittal. It also records that in the same year 1997 it was reported that ID was the subject of a ``complaint by his own daughter then aged 4 that he had put his finger in her fanny'', however we noted that again there was no original material from the Avon and Somerset police concerning this. Other than ID's accounts we have no information as to the allegation or how the police were aware of them. We note that ID says that his daughter's date of birth was 19.1.94. So that she would have been 3 in 1997. 20. From the papers it is apparent that despite these matters being known to the police and ID's previous employers, when in 1998 he transferred to Mayfield School no disclosure of the allegations or the acquittal was made of them to his new employer or to the school from his previous school or Local Authority. 21. The papers showed that in 1999 a member of the public had made known to Mayfield School the details of ID's previous court appearance and a multi agency meeting was held to discuss ID's continued employment. Following that meeting on the basis of the acquittal and a clear police check the school decided to take no action. 22. Allegation A4. The Respondent relies next on an alleged indecent assault on a 7 year old girl in Portsmouth in 2000. ID was charged with an indecent assault involving a daughter of his then partner. Again ID was prosecuted and acquitted following a trial at the Crown Court. Despite the Hampshire constabulary being involved in the final meetings leading up to the reporting of ID to the ISA we again have no documents relating to the police investigation or the trial and acquittal of ID save for a 3 page case summary. 23. That case summary suggests that on Saturday 15th July 2000 ID and his partner and her 2 children were at home and ID was reading to the daughter whilst lying on her bed. After a few minutes the child came into the bathroom and told her mother that ID had ``touched her Poutaki (the Greek for female genitalia) and pointed to her pubic area''. Her mother took her to hospital and ID was arrested for indecent assault and charged with two counts of indecent assault...

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