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You are here: BAILII >> Databases >> England and Wales Care Standards Tribunal >> Cunningham v Secretary of State for Health [2002] EWCST 2(PC) (12 August 2002) URL: http://www.bailii.org/ew/cases/EWCST/2002/2(PC).html Cite as: [2002] EWCST 2(PC) |
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Cunningham v Secretary of State for Health [2002] EWCST 2(PC) (12 August 2002)
John Ernest Cunningham v The Secretary of State
for Health
2002.2.PC
Hearing dates: 23rd and 24th July 2002
His Honour Judge David Pearl (President)
Mr David Allman
Mr Ronald Radley
DECISION
1. John Ernest Cunningham appeals under s 4 of the Protection of
Children Act 1999 against the decision of the Secretary of State
for Health to include him in the list kept by the Secretary of State
of persons considered unsuitable to work with children pursuant
to s 1 PCA 1999
2. It is common ground that Mr Cunningham's name was included in
the s 1 list by way of a transfer from the Consultancy Service Index.
(s 3 PCA 1999). By letter dated 10th March 2000, Mr Cunningham was
informed of his temporary inclusion on the Consultancy Index. He
was informed by letter dated 29th September 2000 that his name was
to be retained on the Consultancy Index and by a letter dated 4th
January 2001, he was informed that his name was included on the
s 1 PCA 1999 list.
3. It is also common ground that Mr Cunningham was named in the
Report of the Tribunal of Inquiry into the abuse of children in
care in the former county council areas of Gwynedd and Clwyd since
1994: Lost in Care; Chairman (Sir Ronald Waterhouse) HC 201 (the
Waterhouse Report). The Report was ordered to be printed on the
15th February 2000. In Mr Cunningham's notice of appeal it is said
that the Respondent's policy was to add to its Consultancy Service
Index the names of all those persons who, in its opinion, had been
named in the Waterhouse Report as having been found to have harmed
children or be unsuitable to work with children. This would appear
to have been the policy. (See "Learning the Lessons.
The Government's response to Lost in Care" Cm 4776 at
p 10). Transfer to the s 1 list followed on from a review of the
position of each individual by virtue of s 3 of the PCA 1999 as
amended by s 99 of the Care Standards Act 2000.
4. In the appeal before us, Mr Philip Coppel of Counsel represented
the Secretary of State and Miss Sandhya Drew of Counsel represented
the appellant. Our powers are as set out in s 4(3) PCA 1999. This
states:
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; and
(b) that the individual is unsuitable to work with children,
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.
5. The Tribunal has considered in other cases its powers as set
out in s 4(3) in the context of a case where ss 3(3)-(7) PCA 1999
have been applied because the appellant has been named in a Tribunal
of Inquiry. (See Barnes 0070 and Glover 0077). Mr
Coppel urged us to adopt the approach taken by the Tribunal in
Barnes, and reaffirmed, by a differently constituted Tribunal,
in Glover. This approach is set out in paragraphs 12-15 of
the Barnes decision, that we reproduce below.
"12. Miss Marshall [Counsel for Mr Barnes] does not seek to appeal against the findings of the Inquiry, and she must be correct in this approach. It would be wrong of this Tribunal to enter into any analysis of the procedures adopted by this Inquiry, or indeed any other Inquiry defined by s 2B of the 1999 Act. That is not our function. Rather our function is limited to s 4(3) of the 1999 Act. We agree with Mr Palmer [Counsel for the Secretary of State] when he submits that the Tribunal must give very substantial weight to findings of the Waterhouse Inquiry. However, we are also of the view that it is incumbent on us to look closely at the evidence that was before the Waterhouse Inquiry (as available to us in the transcripts of the Inquiry) and compare what was available to that Inquiry with what has been made available to us. Thus, our approach, although fairly close to that suggested to us by Mr Palmer and set out in paragraph 9 above, departs from it in a number of respects.
13. Evidence that was not before the Waterhouse Inquiry but has been placed before us must be analysed by us in the same manner as we would analyse any evidence. We do not believe that the right approach is simply to "set [this new evidence] in the balance against the very substantial weight of the Inquiry report." Rather, as "new" evidence we must give it close attention. It may support the Waterhouse findings; it may undermine the findings; it may be neutral. The fact that the "new" evidence could have been raised before Waterhouse but was not is a matter that may be of relevance, depending on the reason why it was not raised.
14. We must emphasise here that we are dealing specifically in the previous paragraph with "new" evidence. If it is simply "old" evidence, in the sense that the very same evidence was before Waterhouse, then attempts to persuade us to give greater weight to that evidence than Waterhouse did, or to ignore that evidence, would be tantamount to asking the Tribunal to act as a court of appeal. This, the Tribunal will not do.15.It is the duty of the Tribunal therefore to analyse in detail the findings of the Waterhouse Inquiry as they relate to Mr Barnes, and to examine the evidence on which those findings were made. We must then look at the "new" evidence that is before us. We must bear in mind always that the Secretary of State has the burden of proof, and he discharges this burden if he satisfies us on a balance of probability both as to s 4(3)(a) and s 4(3)(b) of the 1999 Act."
6. It is this approach that we adopt in this case. This approach
in no way undermines Miss Drew's submission that it was never part
of the Waterhouse Tribunal's responsibility to adjudicate on individual
complaints and that s 4(3) PCA 1999 imposes upon us a requirement
to conduct a full merits review. We accept her submissions in this
regard. We also accept her submission that we must conduct this
hearing in accordance with Article 6 of the ECHR as brought into
direct application in English law by virtue of the Human Rights
Act 1998. We believe that the approach set out in paragraphs 12-15
of the Barnes decision and followed in Glover complies
with our responsibility both under s 4(3) PCA 1999 and the Human
Rights Act 1998.
7. We were addressed by Mr Coppel on another aspect of the interrelationship
between s4(3) PCA 1999 and the Human Rights Act 1998, namely whether
a balancing exercise of proportionality is an exercise that is excluded
from our consideration. We address this aspect of the submissions
at the conclusion of this decision.
Application to exclude evidence under Regulation 14(3)
8. At the outset of the hearing, Miss Drew submitted that we should
exclude certain evidence from our consideration of the appeal under
Regulation 14(3) of the 2002 Regulations. This allows the Tribunal
to direct that a document or the evidence of any witness other than
the applicant be excluded from consideration because (a) it would
be unfair in all the circumstances to consider it. Miss Drew invited
us to exclude witness statements and other material. In particular,
Miss Drew emphasised that the witness statements of Kevin Maher
should be excluded because it would have been perfectly possible
for the Secretary of State to have called Mr Maher to give evidence
and therefore allow the evidence to be tested by cross examination.
The Secretary of State did not propose to call Mr Maher or any other
witness, and in consequence the appellant was denied the opportunity
of testing his evidence.
9. We understand that the reason why the Secretary of State has
decided in this and other similar cases not to call witnesses was
because of a policy decision taken not to subject them to further
distress. Mr Coppel drew our attention to paragraph 55.01 of the
Waterhouse Report. It says there that the Tribunal "are very
conscious of the burden that giving evidence, in whichever form,
imposed upon these witnesses; and that the burden was generally
most obvious when some of them were subjected to necessarily severe
cross-examination by Counsel for those against whom they made specific
allegations."
10. We decided not to exercise our power under Regulation 14(3)
and exclude the witness statements and other documentary evidence.
It is our view that these are matters that go to weight, and that
if we were to exclude the evidence we would be failing in our function
of carrying out a full merits review.
Failure of witness to give evidence
11. Necessarily, however, the absence of a witness giving evidence
before us will inevitably mean that we will have to assess credibility
without the benefit of hearing a witness at first hand. We made
this point in the case of C (Fam Law 2002 p.515). On appeal, and
when dismissing the appeal, Scott Baker J in Secretary of State
for Health v C [2002] EWHC 1381 (Admin) said: "I can see
great difficulty may be encountered in establishing the truth to
the satisfaction of the tribunal where the complainant does not
attend to have her evidence tested. Whether of course the allegations
can be established without attendance will depend on the particular
circumstances of the case."
12. This case is of course different in that we do have the transcript
of the evidence given by Mr Maher to the Waterhouse Inquiry. However,
the failure to call Mr Maher, who says he is a witness to the events,
prevents us from forming any firm view as to his credibility. As
Miss Drew says, the fact that he and others gave evidence before
Waterhouse and the fact that the transcript of his evidence has
been made available to us is no substitute to the witness appearing
before us in person.
Burden and Standard of Proof
13. It is common ground that the burden of proof is on the Secretary
of State to satisfy us as to s 4 (3) PCA 1999. The standard of proof
is the balance of probability. Mr Coppel has helpfully set out in
his final submissions the appropriate test that we must apply when
considering the standard of proof. He submits that there is only
one civil standard of proof: the balance of probability. He submits
further that the evidence required to satisfy that standard does
not become raised according to the "gravity of the allegation."
He refers to the two House of Lords cases, Re H [1996] AC 563 at 587 and Secretary of State for the Home Department v Rehman
[2001] UKHL 47 at para 55 in support of the proposition that it
is right for the tribunal to consider the inherent likelihood of
the occurrence of a particular event, and it is that likelihood
against which the totality of evidence is to be measured. He submits:
"The inherent likelihood of an occurrence may assume particular
importance when there is no direct evidence of the occurrence: a
judge or tribunal will be justified in being slower to draw from
circumstantial evidence an inference as to the occurrence of a fact
that is inherently unlikely from one that is not so inherently unlikely."
He then goes on to emphasise the importance of the Tribunal being
composed of people who because of their training and professional
experience are well familiar with the likelihood of there occurring
incidents that form the basis of the claim of misconduct and of
the reliability of the accounts given of that misconduct. He concludes
that it is against the body of experience that they are to judge
on the balance of probability the matters before them keeping in
mind their inherent likelihood.
14. We have given careful consideration to Mr Coppel's submission,
and we have looked also at Scott Baker J's decision in Secretary
of State v C where he says at para 15 of the decision "The
more serious the allegation, the stronger should be the evidence
before the court is satisfied that the event occurred." This
approach is rather different to Mr Coppel's submission, and in some
cases may make a considerable difference. Our view on this issue
can be expressed as follows:
The facts
16. Mr Cunningham was born on 23rd March 1946 and between 1962
and 1980 he was employed as a welder or a welder/plater, first at
Cammel Laird and Co in Birkenhead and then at BSC at Shotton. In
1981 he changed his work environment dramatically having been made
redundant in March 1980 from BSC. In May-July of 1981 he was employed
at Glynn Alyn School at Loggerheads and then on September 28th 1981
he began work as a residential child worker at Bersham Hall. He
remained at Bersham Hall until 8th June 1983 and on 13th June 1983
he went to Bryn Estyn Home on a series of temporary contracts as
a residential child care officer until 31st January 1984. He was
re-employed as a night care officer between 22nd March and 30th
June 1984.
17. The two incidents that form the basis for the listing took place
whilst he was at Bryn Estyn. The first occurred on 23rd October
1983 when he was employed as a temporary residential child care
officer, and the second incident was on 30th April 1984 when he
was a night care officer.
The first incident
18. The Waterhouse Inquiry (at 10.134) says the following about the first incident:
"The complainant [whom we know to be Simon Birley who is now deceased] and others were taken by Rayfield and Cunningham on a trip to Blackpool, where Birley and another obtained a tin of glue to sniff. They sniffed the glue at the pier and continued to do so when they rejoined the bus. When told by Rayfield to get rid of the tin, Birley said that they would do so in a minute, whereupon Cunningham told Rayfield to pull off the main street and stop the bus in a minor road. Cunningham then went to the back of the bus, opened the door, grabbed Birley by the neck and head butted him in the face, causing his nose to bleed. His fellow glue-sniffer, who admitted being extremely difficult at Bryn Estyn, confirmed this incident in his oral evidence but Cunningham denied assaulting Birley. His account of the matter was that Birley had been kicked out of the minibus by the other boys in order to prevent Cunningham getting at the glue. Rayfield told the police in April/May 1992 that he had no recollection of this incident but he identified an entry in the main school log dated 23rd October 1983 which fixes the date of the incident but does not throw any light on it."
19. The Waterhouse Inquiry concluded at 10.146 that the complaint
against Mr Cunningham in relation to this complaint was justified
and that his explanation of the incident is unacceptable. It said
that he used excessive force against Birley in provocative circumstances.
20. We have read the transcript of the evidence given to the Waterhouse
Inquiry by Kevin Maher. He told the Inquiry that he and Simon Birley
went glue sniffing underneath the pier at Blackpool and that they
returned to the mini van at 10.00pm. He remembered Simon Birley
giving Mr Cunningham verbal abuse, and that five minutes into the
journey "John Cunningham who was in the passenger seat got
out, come round to the back of the van, grabbed Birley by the throat,
butted him on the face right on the nose, shoved him back in his
seat". In an answer to a question he said that the incident
took place inside the van.
21. Mr Maher made a statement on this matter to the police on 14th
April 1992. This statement was put to him by Counsel at the Waterhouse
Inquiry but not in a developed way so as to draw out the inconsistencies.
The statement to the police contains a slightly different account
from the statement he had given in evidence to the Waterhouse Inquiry.
The main difference is that in the 1992 statement Mr Maher says
that Mr Cunningham " grabbed Birley by his upper clothing and
physically dragged him out of the bus to the passenger side, because
of it being dark at that time of night the two moved out of my view.
After no more than 5 minutes Simon climbed back into the rear of
the van, Mr Cunningham got back into the front and we continued
on our way home. Simon was in great distress and although it was
dark in the rear of the van I could clearly see that he was bleeding
heavily from his nose."
22. In his evidence before us, as in his evidence before the Waterhouse
Inquiry, Mr Cunningham denied that he had assaulted Birley on 23rd
October 1983. We have looked carefully at all the evidence that
has been presented to us about this incident. The supporting evidence
is that of Kevin Maher, who by his own account had been sniffing
glue that evening. There is a substantial discrepancy between what
he told the police in 1992 (Birley was dragged out of the van) and
what he told Waterhouse (the incident happened in the van). There
are no records that we have been shown or that were before Waterhouse
that support Maher's version of the event or Mr Cunningham's version
of the event. Miss Drew submits that the absence of any records
supports Mr Cunningham's version.
23. Waterhouse says that Mr Cunningham's explanation of the event
was unacceptable. Miss Drew in her submissions says that this should
not be sufficient to discharge the burden of proof. She submits:
"The important functions of the Waterhouse Inquiry did not
extend to detailed adjudication on individual allegations. No reasons
were given why Maher's account was preferred notwithstanding the
inconsistency."
24. In his submissions to us, Mr Coppel agreed that the allegation
of 23rd October 1983 was the less serious of the two allegations.
However, he submitted that if Mr Maher had invented the incident,
some plausible explanation should be given as to why he did and
that no explanation had been given by Mr Cunningham. He said that
there was no evidence of a financial advantage or a personal gain.
He also drew our attention to a discrepancy in Mr Cunningham's account
of the event. Whereas in his witness statement he gave a positive
account of the other boys in the bus injuring Birley, in his evidence
to us he had said that he had no recollection of Birley having any
injury at all.
25. In examining all of this evidence, we have formed the view that
the Secretary of State has not discharged the burden that is on
him on a balance of probability that Mr Cunningham assaulted Simon
Birley on 23rd October 1993. The only evidence he provides is the
evidence of Kevin Maher by way of a statement in 1992 and the transcript
of his evidence to Waterhouse in 1997. We were not able to test
Kevin Maher's account, and we note that there are two different
descriptions by him of what happened. Mr Cunningham has always denied
that he assaulted Birley. There is no contemporaneous record of
the incident, and when Mr Rayfield was questioned about it in 1992
he remembered the trouble of the glue sniffing but made no reference
to any injury to Birley or to any assault by Cunningham on Birley.
26. We have applied the approach we set out
·
27. We have no doubt in relation to the first matter that the Secretary of State has not come up to proof and therefore we cannot find as a fact that Mr Cunningham has been guilty of misconduct as alleged. Accordingly, s 4(3)(a) PCA 1999 is not satisfied and we do not need to consider s 4(3)(b) PCA 1999. We turn our attention therefore to the second matter.
The second incident
28. We can deal with the second incident relatively shortly. The
second incident concerns an allegation that Mr Cunningham assaulted
Carl Barrett on 30th April 1984. According to the transcript of
the evidence given by Barrett to the Waterhouse Inquiry, he and
another boy had been drinking and he was drunk when he returned
to Bryn Estyn. A member of staff, Liz Evans, tried to prevent him
from going up to the dormitory and he tried to get past her. There
was an altercation between them. By all accounts Miss Evans ended
up in a highly distressed state. There is considerable factual dispute
as to how Mr Cunningham became involved. Suffice it to say that
Mr Cunningham has agreed all along that he accepts that he caused
an injury to Barratt but that this was sustained during the course
of the struggle which he had with him to try to restrain him. Barratt
says that Mr Cunningham grabbed him before striking him on the nose
with a torch.
29. We do not need to arrive at any conclusion as to whether Mr
Cunningham hit Barratt with a torch or whether it was simply a whack
with the hand. As the Waterhouse Report says, at 10.146, "he
has virtually admitted using excessive force on 30th April 1984"
and that the injury to Barratt, that necessitated a visit to the
hospital that night, was as a result of Mr Cunningham's violent
response to the incident that had occurred between Barratt and Miss
Evans. In his evidence before us he accepted that he caused Barratt's
injury that night.
30. In her submissions to us, Miss Drew stated that Mr Cunningham
accepts that the evidence of what happened that night, even reading
it in a way which is most favourable to Mr Cunningham, amounts to
misconduct that harmed a child.
31. The important issue in relation to the second incident is whether
s 4(3)(b) is satisfied. We have read carefully all the references
that have been produced by Mr Cunningham in support of his appeal.
In particular, there is a strong reference from Mrs Worthington
who worked with him at South Meadows Children's Home from 1985.
These reports are all supportive of Mr Cunningham. We are under
a duty to assess the risk to children if Mr Cunningham were to return
to work with children. He has no training in child care. We believe
that the Barratt incident is an illustration of his vulnerability
within the environment in which he was working in 1983/84. There
is nothing that we have read or heard which persuades us that the
situation has changed since then. We feel that if Mr Cunningham
were to be placed in such a provocative situation again, he would
not be able to handle the situation in any way that would be different
from how he dealt with the situation in 1984. We feel that the assessment
by the Waterhouse Inquiry of Mr Cunningham is correct in saying
at 10.146 "He was not a man who regularly resorted to force
but he was ill-suited to work with difficult adolescent children".
The Report goes on to refer to his later career at three children's
homes confirming this view. Miss Drew correctly wonders where this
information comes from. However, we have had an opportunity of hearing
Mr Cunningham give evidence, and have been able to form our own
assessment. Notwithstanding the positive commendations that we have
read, we have reached the conclusion that he is unsuitable to work
with children.
Proportionality
32. Mr Coppel addressed us on whether the Tribunal was entitled
to consider the question of proportionality. He submitted that proportionality,
in the sense of weighing the public interest in protecting children
against the risk of harm from adults in child-related employment
against an individual's private rights to pursue whichever line
of employment he might like, has already been taken into account
by Parliament in creating the listing scheme under PCA 1999. If
s 4(3)(a) and 4(3)(b) are satisfied then the Tribunal must dismiss
the appeal, and there is no third criterion that the Tribunal must
satisfy itself that inclusion on the list is proportionate. Furthermore,
proportionality does not enable the Tribunal to elasticise the first
and second requirements.
33. We have given very careful consideration to Mr Coppel's arguments.
Since the hearing, the Court of Appeal judgements in R (on the
application of M) v London Borough of Bromley have become available.
Judge LJ speaks of the "statutory scheme [that] seeks to balance
the interests of the vulnerable and avoid the risk of harm to them
from contact with an unsuitable adult, while…protecting an
innocent individual from wrongful inclusion on the list". The
Tribunal has to consider both of the criteria that the Secretary
of State has to fulfil before including a name on the list. At first
instance in M before Scott Baker J, the Judge said that "Parliament
has provided for a comprehensive and detailed investigation to take
place before an impartial tribunal whose purpose is to decide whether
or not an individual's name has properly been included on the list."
This approach was approved by Buxton LJ in the Court of Appeal.
34. The Tribunal therefore has much the same considerations in front
of it as has the Secretary of State. It is our view that one aspect
of suitability is an assessment of risk, and that this inevitably
involves issues of balance and of proportionality. To this extent,
we disagree with the approach urged upon us by Mr Coppel.
35. In this case, we have decided that there is a risk and therefore
have decided that Mr Cunningham is unsuitable to work with children.
Our decision is unanimous.
Accordingly, and for the reasons set out in detail we dismiss
this appeal.
His Honour Judge David Pearl
Mr David Allman
Mr Ron Radley
Dated: 12 August 2002
