AJ v Secretary of State for Education and Skills, Court of Appeal - Protection of Children Act List and Prohibition from teaching and working in schools, February 28, 2008,  EWCST 797(PC)
|Resolution Date:||February 28, 2008|
|Issuing Organization:||Protection of Children Act List and Prohibition from teaching and working in schools|
|Actores:||AJ v Secretary of State for Education and Skills|
Care Standards Tribunal
AJ v Secretary of State for Education and Skills  EWCST 797(PC) (28 February 2008)
Secretary of State for Education and Skills
Mr. Simon Oliver
Mrs. Susan Howell
Mr. Jim Lim
Heard on 12th to 15th and 30th November 2007 at Care Standards Tribunal, 18 Pocock Street, London SE1 OBW.
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.
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.
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 See both Re: H and R (Child sexual abuse : Standard of Proof )  1 FLR 80, per Lord Nicholls and R (N) v. Mental Health Review Tribunal (Northern 3 Region) & ors  QB 468 at -
. 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.
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...
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