Swallow v Secretary of State [2010] UKFTT 210 (HESC) (07 June 2010)

In the Care Standards Tribunal

Peter James Swallow

and

Secretary of State for Children Schools and Families

[2009]1697.PT

Before:

Mrs Meleri Tudur

Mr John Burrow

Mr John Hutchinson

DECISION

Date of hearing: 7^th May 2010 at the Combined Court Centre, Canterbury.

The Appellant represented himself and gave oral evidence.

The Respondent was represented by Mr Richard Smith of Counsel, instructed by Ms Jade Allen of the Treasury Solicitors. Mrs E Brass who works in the Children’s Safeguarding Operations Unit at the Department for Children, Schools and Families gave evidence for the Respondent.

Appeal

1. The Appellant appeals against the decision of the Secretary of State for Children Schools and Families made under section 142 of the Education Act 2002 on the 24^th September 2009. The decision bars the Appellant from working in any capacity with children as provided by section 142 of the Education Act 2002. The ground relied on by the Secretary of State was the Appellant’s unsuitability to work with children.

2. The Tribunal makes an order under Rule 14(1)(b) and (2) of The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 restricting the reporting of the proceedings. We are satisfied that in order to prevent serious harm to the young people involved in this matter an order should be made preventing the disclosure in any publication of any information that may lead to the identification of any young person involved in the proceedings.

The Law.

3. Section 142 of the Education Act 2002 ( “the Act” ) provides that the Secretary of State may direct that a person may not carry out work to which section 142 applies, namely the provision of education, if one of the grounds contained in section 142(4) applies. The direction may be made on grounds of misconduct or unsuitability to work with children.

4. In the Appellant’s case, the direction was made on the grounds that he is unsuitable to work with children.

5. The standard of proof applied by the Secretary of State in reaching the decision is the balance of probability, ie the civil standard of proof.

6. Section 144 (4) of the Act provides that the Secretary of State may by regulations prescribe the circumstances in which the Tribunal shall allow an appeal against the direction made under section 142. The relevant regulations are The Education (Prohibition from Teaching or Working with Children) Regulations 2003.

7. Regulation 12 provides that an appeal may be brought to the Tribunal by a person against whom a direction under section 142 has been made.

8. Regulation 13(1) provides that where on an appeal under Regulation 12 the Tribunal considers that the direction is not appropriate it may order the Secretary of State to vary or revoke the direction.

9. The Tribunal’s role in the appeal is to consider whether the Respondent’s decision is appropriate in the light of the available evidence. Regulation 13(2) provides that the Tribunal shall not take into consideration any information relevant to the decision to give the direction which the Secretary of State did not have at the time the decision was made or any evidence of a material change of circumstances of the person concerned, occurring since the decision to give a direction or not to revoke or vary a direction was given.

10. The burden of proving on appeal that the direction was an appropriate or proportionate response to the evidence lies with the Secretary of State.

Background

11. The Appellant has been a qualified teacher since 15^th May 1978.

12. In 1997, the Appellant was referred to the Secretary of State following his resignation from St Albans Girls School because of allegations that he had made false declarations regarding his qualifications and experience and that his curriculum vitae was a misrepresentation of the facts. The Appellant acknowledged that his curriculum vitae contained inaccurate information but maintained that the information was the result of errors rather than a deliberate attempt to mislead.

13. On the 31 July 1997, the Secretary of State sent a letter confirming that on this occasion no action would be taken against the Appellant regarding the misconduct and warning him that any further misconduct on his part calling for action is likely to have serious consequences for his future career as a teacher.

14. In 2002, historic allegations of abuse were made against the Appellant by a former pupil at a school where he taught. The pupil, A, who was then about 15 years old, made allegations dating back to a period when he was aged about 7 or 8 years. The Appellant was interviewed by the police and vehemently denied the allegations. The police took no further action in relation to the allegations and the Secretary of State confirmed that these allegations were not relied upon in the decision to bar the Appellant from working with children.

15. In December 2004, further allegations of sexual abuse were made by another pupil, B. He alleged that the Appellant had been involved in sexual abuse of B for a sustained period, from when he was about 12 years old until Easter 2003, when he was about 15 years old. At the time the allegations were made, B was a student at university and aged 17 years.

16. The allegation concerning B, as contained in the police report, was that he had been abused first at the International School in Frankfurt, Germany, where the Appellant taught chemistry. He was aged 11 or 12 at the time and the abuse was said to have occurred during extra lessons provided by the Appellant at the school. In 1999, they met approximately every two days. B later attended evening classes at the Appellant’s house where it was said abuse would also occur. There was said to be masturbation and anal sex. In July 2001, B moved with his family to France and at the end of 2001 the Appellant moved to a new flat in Konigstein where B visited him, where he was abused again. A further visit occurred in the summer of 2002, when further abuse occurred. The final allegation made was in respect of a visit at Easter 2003 to the Appellants house in Canterbury where masturbation occurred. According to the police report, B referred to the Appellant having only one testicle and that he had two scars where he had his testicle lowered and possibly a scar on the outside of his leg. A copy of the statement was not available in evidence, or to the Respondent when considering the original decision because it was said that B could not be traced in 2007 and his consent to its disclosure had not been obtained.

17. According to the police report, when the Appellant was interviewed he denied assaulting B in any way. There was a summary of the interview in the police report. The Appellant allegedly admitted teaching B inside and outside of school hours and admitted being at the locations specified by B. He said the lessons were delivered for no fee. He admitted he had received some medical treatment on his testicles and that he had them lowered which, as he described it, resulted in him having “one and a half”. At that stage, he said he could give no information about scarring as he does not look at them. He declined a police offer to have himself examined by the Forensic Medical Examiner. He denied in interview having any kind of conversation with B about any of the medical treatment that he had undergone, or that B had seen him naked. He said he had a conversation with B’s mother about lowering his testicles and he presumed she had told her son. In a later statement, the mother denied having any such conversation with the Appellant.

18. The allegation was considered by a Detective Sergeant, who requested the Crown Prosecution Service (CPS) to authorise a charge. The matter was further considered by a CPS reviewing lawyer on 6 July 2005, who directed the police to undertake further enquiries. Additional statements were taken from B and his mother and the Appellant’s mother, who was living at the Canterbury address and who saw nothing untoward during B’s stay. These matters were considered afresh by the CPS reviewing lawyer on 1 September 2005. She said that she was personally persuaded that the complaint was genuine, but noted there was no corroborative or forensic evidence in the case. It was, therefore, the word of the complainant against that of the Appellant, and there were geographic and chronological inconsistencies, which in her view amounted to serious credibility issues. She said the evidence needed to be strong, compelling and utterly credible for there to be a realistic prospect of conviction (on the criminal standard of proof). She considered a judge would be unlikely to allow the case to remain before the jury after the conclusion of the prosecution evidence. She advised against charge, and no further action was taken against the Appellant.

19. The Appellant continued to work as a teacher and in 2008 applied for employment with Capita Education Resources, an agency providing supply teachers. In the course of the application, he was required to obtain an enhanced criminal records bureau (CRB) check and the appellant discovered for the first time that the two police forces involved in the investigation of the two sets of allegations made against him had released the information to the CRB as “soft information”. The prospective employer immediately terminated his employment and referred the issue to the Secretary of State, as required by the 2003 Regulations.

20. The Appellant formally objected to the information being included within the enhanced CRB check but the Chief Constables refused to remove the information.

21. The Respondent has to consider unsuitability to work with children, not on the criminal standard but on the civil standard of proof. He considered that on this civil standard of proof the evidence potentially established that the Appellant had committed the acts of indecency alleged by B, subject to any further explanation by the Appellant.

22. On 13 March 2008, the Respondent wrote to the Appellant setting out the allegations, and making reference to the previous warning given by the Secretary of State in 1997. The Appellant was invited to make representations about the allegations by B.

23. The Appellant could not provide any explanation as to why allegations might have been made against him other than that it was for financial gain.

Evidence

24. The Secretary of State relied on the evidence of the police investigation into the allegations of B, the Appellant’s responses to the allegations and the specialist assessment report prepared by Ms Annie Stubley, Chartered Educational Psychologist from the Lucy Faithfull Foundation, following her assessment of Mr Swallow on the 30^th June 2008 and the 3^rd July 2008. The purpose of the assessment was to provide a professional opinion as to Mr Swallow’s risk or potential risk to children and young persons in educational and other settings.

25. The Appellant responded to the allegations on 27 March 2008, saying he was surprised the matters had been disclosed in the CRB enhanced disclosure. He said the information was untrue and the allegations simply failed to make sense. He wrote again on 19 April 2008 and 8 May 2008 enclosing a CV, a number of references, a record of qualifications and other documentation, including school reports.

26. He said an operation in 1962, to correct a testicular dysfunction, damaged his erectile muscles and a circumcision had damaged nerve endings. He had contracted mumps and chicken pox as a child, and he said this had caused damage to sensitive areas which resulted in an inability to function in any responsive way to emotional attraction to any person of either sex, regardless of age. He said he has no ability to respond by way of inappropriate approaches to young people and was unable to maintain an erection.

27. The Appellant said he had no intent to commit any sexual assault on any student and that he has never been accused of any indecency towards his students, save for the two students mentioned in this matter. He said he had never showed any abnormal interest in B. The allegations had been made after B and his parents had provided references for the Appellant. The Appellant’s memory of B was as a prepubescent boy who would be unable to engage in any sexual activity. He said adults were present at all times when he was with B in England and his mother had said that no inappropriate activity ever took place. The Appellant maintained that the information in the CRB disclosure was inaccurate, defamatory and without sufficient supporting evidence. It had acted as a bar to him in seeking teaching positions and had done irreversible damage to his reputation.

28. The Appellant submitted a copy of a letter sent to his solicitors dated 2 August 2005, in which he said that he did tell B that he had poorly developed genitalia and deeply scarred, scored areas of the upper region of the penis, in the course of a biology lesson. He said that this may have been the source of B’s knowledge on the matter. He suggested that the allegations were being made as a result of B entering university and his potential student debt. He pointed out that there had been considerable delay in making the allegations.

29. The Appellant stated that whilst being interviewed by the police he had managed to read parts of B’s statement upside down and had noted the grammatical construction in the statement was weak. He doubted it had been written by B who has a superior command of language. He confirmed that B had stayed with him at his home over the Easter weekend in 2003 and has slept in the Appellant’s bedroom, whilst the Appellant slept on the couch downstairs. The Appellant’s mother had been present in the house at all times. He claimed that a motorcycle accident in 1995 had resulted in a fracture of the leg and an implanting of a hip pin. This left him with problems with forward and sideways motion, inhibiting any sexual act.

30. Further documentation, complaining about the procedures adopted by Capita, were submitted, along with correspondence with Capita. The Appellant admitted he gave B private tuition at school but claimed that the door of the flat was always left open and he told another teacher whenever B was in the flat. The tuition was time constrained and there was never any time for physical contact. B never made any complaint about the Appellant’s conduct and always seemed happy. B’s mother had contacted the school for extra tuition and the Appellant gave tuition at the weekends to assist him in achieving GCSEs in chemistry and biology. He had lost contact with B for a good two years, and contact was only renewed when B phoned him. It was suggested that further tuition could be given in the UK and B subsequently stayed with him at the house in Canterbury during the Easter weekend 2003. He said the allegations of indecency or abuse, were false.

31. Having considered the evidence from the police and the Appellant, the Respondent referred the case to Ms Stubley. She interviewed the appellant for some six hours over two days. After setting out his early development, he said he had never had a sexual relationship and did not experience sexual arousal, even during puberty. He attributed this to two operations he had had when young which had left him with scarring to his genitals. He maintained that despite these difficulties he had not felt lonely or isolated. He did not seek friendships or relationships. Ms Stubley found these assertions incongruent with what is known about sexuality and human development and she found them difficult to accept.

32. In her report, dated 15^th August 2008, Ms Stubley recorded that she had been struck by the absence of expressed negative or any overt emotion by Mr Swallow in his account of his life to date and also struck by the marked degree to which his experiences of relationships and sexuality sit apart from the norm.

33. In the course of the interview with Ms Stubley, Mr Swallow explained that B knew about the scarring because he had accessed a letter to the police written on the Appellant’s computer in response to the allegations made by pupil A. The Appellant alleged that the file had been located in the course of tutorial work on the Appellant’s computer but had not led to any discussion about the matter between the Appellant and the pupil, with the pupil merely being refocused on his work. The Appellant explained that he no longer had access to the letter, as the computer was broken.

34. The Appellant was unable to understand why the allegations had not been made earlier or why the pupil had come to stay with him in 2003 if the allegations were true.

35. In her report, Ms Stubley concluded that the appellant’s denial of sexual interest or potency is of central evidential significance. She noted the refusal to be medically examined and suggested that if the Appellant would be prepared to consult a suitably qualified medical practitioner, the issue of his sexual interest or potency might be resolved, but the issue was not, at that point, the subject of any medical information to corroborate the Appellant’s account.

36. He was asked why B would make the allegation if untrue and he said there was no basis for any misinterpretation of his behaviour. There had simply been no physical contact. He could not say why B had wished to damage him. He said his perceived eccentricity may have contributed to the misperception of himself.

37. In assessing the accounts given by the Appellant and the complainant, Ms Stubley said she was unable to conclude whose account was the most reliable on the balance of probabilities. She noted that given the high level of preoccupation with sexual matters inherent in the allegations by B it might, if true, be expected that more complaints would have been laid against the Appellant over his 30 year career than, in fact, had been. Of the unrelated allegation in 1997 concerning the misleading material on the CV, the Appellant said there had been no intent to mislead. It had been a mistake when the CV was drawn up.

38. Ms Stubley said the Appellant’s veracity and accuracy will strongly influence the assessment interview. She found the Appellants invitation to B to stay at his home and sleep in his bed surprising, as was the decision to return to the UK for just 3 or 4 days of tuition. These actions did not seem wholly compatible with the Appellant’s expressed detachment from friendships or relationships. Further, this invitation came just a year after the A allegations and his questioning by the police on that matter.

39. She found the Appellants explanation about B finding the letter on his computer as “extraordinary” and lacking credibility. She noted the discrepancies in B’s account alluded to by the CPS reviewing lawyer. She was unconvinced by the Appellants assertion of a lack of sexual arousal, as being inconsistent with what is known of lifespan human development. She suggested that the Appellant should consult a doctor to resolve the issue of the scarring. She noted the differing explanation about B’s knowledge of the scarring offered in the interview with her, when compared to that put forward in the police interview. She concluded that “there are sufficient gaps in his account of his sexuality to required further corroboration before his version can be accepted”. She later said “I do not find Mr Swallows account of his sexuality plausible”.

40. She was also concerned about the Appellant’s account of having no experience of forming intimate or close emotional relationships. She found this difficult to accept as being true and the fact the Appellant had asserted it, was of concern in the risk assessment. She concluded that, in her view, the Appellant was an anxious man who had experienced a lasting impact from the allegations of B, and this made it unlikely that he would repeat the alleged behaviour. She did not think he is sexually preoccupied, noting the general absence of allegations over his long career, (save for the current matters) and the absence of sexual material at his home or on his computer.

41. Later, she said: “I would say there are more indicators that Mr Swallow does not seek intimacy with young people than there are to the contrary”. She concluded: “On the balance of the available information, I would not be inclined to regard Mr Swallow as someone who presents a current risk of harm to children or young people”. However, she then went on to state that there is what she calls “a notional future risk”, and his assertion that he has no sexual or intimacy needs and is, therefore, not driven to meet them becomes problematic from a relapse prevention perspective. This is because those who are deemed to have engaged in sexually abusive behaviour must identify how they might meet those underlying needs in a legitimate and satisfying way in the future.

42. She considered that Mr Swallow’s unresolved psychosexual conflict (that is to say, denying a sexuality which is in fact present) is unsustainable in the longer term. She noted that his current circumstances in caring full time for his elderly mother affords a stability that might not persist. She said she “..is unable to conclude at the present time that there is no future risk of emotional or sexual harm to children and young persons”. Her final conclusion is “I am unable to rule out a significant risk of harm to children and young persons in educational or other settings in the future”.

The Hearing

43. In the hearing, the Respondent’s counsel referred first to the complaint in 1997 concerning the misleading material in the CV. It was accepted by him that this allegation was not of central significance, but he submitted it called into question the Appellant’s credibility, and that this should be borne in mind when considering the Appellant’s accounts in relation to the allegations by B.

44. He then addressed the evidence from the police. The Respondent relied on the fact that the CPS reviewer was personally convinced that the allegations by B was true, albeit the statement by B contained inaccuracies in dates and places and was not sufficient to meet the criminal standard of proof. Her opinion that the Judge would not have allowed the case to proceed beyond half time was again a reflection of the higher criminal standard even at that stage of the trial. It had not been possible to use B’s statement because his consent was required and he was at University, and unlikely to be at the same address. It was accepted by the Appellant that he had been together with B at the times and places alleged by B. Taking all the police evidence together, there was in the Respondent’s view a prima facie case on the balance of probabilities, that the allegations by B were true.

45. He accepted that it was a borderline case, however, and a report from a forensic psychologist was obtained. This report indicated Ms Stubley did not believe what the Appellant had said about his sexuality, and that there were doubts about his credibility. It was pointed out that the explanation proffered by the Appellant to Ms Stubley about B’s knowledge of the scarring provided a third conflicting explanation for this knowledge, none of them credible. In the letter to his solicitors dated 2 August 2005, the Appellant had said that he had mentioned the scarring to B during the course of a biology lesson. In his police interview, he had said that he had never discussed it with B but that he had mentioned it to B’s mother, who had later denied any such conversation. It was suggested that the discrepancy indicates that the explanations are untrue and invented and significantly damaged the Appellant’s credibility.

46. Also relied on were Ms Stubley’s reservations about why the Appellant would invite B to his home in 2003, so soon after facing allegations by A. It was pointed out that there was no significant delay in reporting the matter in December 2004 – just some 18 months after the last alleged abuse. Ms Stubley did not accept the Appellant’s claim of a lack of sexual arousal. She advised the Appellant to seek medical evidence as to the scarring and he has not done so. Having claimed he was physically incapable of sexual abuse, he failed to obtain corroborating evidence for it.

47. On this evidence, the Respondent decided the allegations by B probably were true, and that the Appellant was a risk to children. The Respondent further noted that in Ms Stubley’s view there was a continuing notional risk arising from the Appellant’s denial of his sexuality, which she had found implausible. The stability afforded by his full-time care of his mother ameliorated the current risk, but she was unable to conclude there was no future risk were his situation to change. This meant that there was a risk. Furthermore, if a teacher who had previously sexually abused a pupil was allowed to continue to teach, this would represent a significant impact on public confidence. There was, therefore, sufficient evidence before the Secretary of State for a finding of unsuitability.

48. At the hearing, the tribunal heard the oral evidence of Mrs E Brass confirming the process undertaken by the Secretary of State and the basis for the decision made to bar the Appellant. She explained that the Secretary of State does not have an investigatory role, and must rely on the information provided by the agency making the referral. Where the information is insufficient however, the Secretary of State can commission an assessment report by a Chartered Psychologist by way of a risk assessment, as had been done in the present case.

49. The Appellant gave oral evidence in support of his appeal. He explained to the tribunal that he did not consider the direction proportionate and had decided to pursue an appeal despite the fact that he did not envisage himself going back into teaching given his age and his duties as a full-time carer. He did, however, wish to consider returning to teaching post-16 pupils on a private tutoring basis and invited the tribunal to consider as an option to a total bar the imposition of a condition that he should not teach pupils below the age of 16.

50. The Appellant gave evidence that he had made mistakes because he did not have a solicitor. He pointed out the errors in B’s allegations, including references to his residences. He confirmed that there had been no visits to his first flat up to 1999 but there were visits to his second flat near the school from 1999 to 2000. There were further visits on 2 or 3 occasions during May 2002 to discuss entry to University. The Appellant had met B’s parents in 1998, when they had expressed concerns about returning to the UK and sought additional tuition for B.

51. During 2000-2001, the lessons were more frequent in preparation for exams, but the Appellant stated that there was pressure of work and no time for the alleged intimacy. He denied physical contact with B and said B’s description of his body was inaccurate in that the scars were in the groin rather than on the testicles. He referred to the motorcycle accident in 1995 which had resulted in compound fractures of both legs, causing him to walk with a limp and the resultant restriction to his movement meaning he physically could not commit anal intercourse. He also reiterated that following the operation to lower his testicles, blood supply was restricted and it was difficult to get an erection.

52. He confirmed that his sexual orientation is heterosexual not homosexual and he denied that he was sexually repressed, saying he would never be involved teaching students under 16 again.

53. He claimed that the three different explanations as to how B knew about the scarring was due to stress. At first, he said that there was no visible scarring on his genitals then he said a person would have to look very closely to see if there were any scars at all.

Tribunal’s conclusions

54. We considered the documentary evidence presented, the oral evidence of Mrs Brass and Mr Swallow and the submissions made by Mr Smith on behalf of the Secretary of State.

55. The burden of proof in the appeal is on the Secretary of State to show that a direction under Section 142 is appropriate.

56. We first considered the effect of the warning given by the Secretary of State in 1997. We accepted that the Appellant had been at fault in the matter but we did not feel it right to conclude that because of this, we should approach the evidence of the Appellant on the B matter from the perspective of a witness whose credibility is generally impaired. We noted the age of the allegation and that it was different in nature to the current matter. We treated Mr Swallow as a prima facie credible witness and assessed the credibility of each part of the evidence according to the content of the evidence itself, taking into account the psychologists evidence.

58. The evidence relied upon in this case arose from one set of allegations of sexual abuse of a young man under the age of 16 over a prolonged period from 1998 to 2003. The Secretary of State was hindered, as were the Tribunal, in reaching a definitive conclusion based solely on that evidence because the full file of the police investigation had not been made available in the course of the barring decision. The police had been unable to charge the Appellant on the basis of the evidence because of the concerns expressed by the CPS about the likelihood of securing a conviction applying the criminal standard of proof.

59. Clarification was therefore sought through a risk assessment undertaken by Ms Stubley. On the strength of her conclusions, the Secretary of State concluded and maintained the decision on appeal, that a section 142 direction is appropriate for the Appellant.

60. We had concerns about the primary evidence presented in support of the referral: the evidence from the police investigation was, for the purposes of making a decision based upon it, alone, poor. We found it surprising that effort had not been made by the police to secure the consent of the complainant to the release of the information contained in his statement, which might have clarified a number of the issues which caused difficulty. Our remit, however, was not to reach a conclusion whether or not the allegations were true. Our role is to decide whether the Secretary of State’s decision to impose a bar, based on the information available at the time the decision was made, was appropriate.

61. We noted there was a considerable amount of detail in the papers about what had been in the statement. We noted the allegations of abuse were extensive, stretching over several years in both Germany and the UK and mentioning some adults who would be able to corroborate or refute parts of the statement. We noted also that although some of the detail was incorrect, the Appellant confirmed many of the important details provided by the complainant. For instance, he confirmed B had attended his flat in Germany and his house in Canterbury at roughly the times claimed. It was clear, in our view, that the Appellant had, at least, the opportunity to abuse B.

62. We considered the Appellant’s response to his situation and the police investigation into the allegations: as noted in the report by Annie Stubley, the Appellant, with hindsight realised that to invite another young person to stay at his home within a few months of the police interview was probably unwise. Nevertheless, that is what he did and allowed pupil B to stay at his home for a weekend, free of charge and without charging for the additional tuition given to him.

63. We agreed with the psychologist that aspects of the Appellant’s admitted contact with B were inappropriate. This included providing unpaid tuition in his own flat and inviting the complainant to the UK to stay with him without B’s parents and thereafter allowing B to sleep in his bed while the Appellant slept downstairs. This was particularly the case in view of the recent complaints in respect of A.

64. We considered the explanations given by the Appellant to the disclosure by pupil B that he had scarring from a surgical procedure relating to his testicles. During the course of the investigation by the police, in a letter to his solicitor and during the assessment by the Chartered Psychologist, he had offered no fewer than three different possible explanations, two of which were irreconcilable with each other and a third which was irreconcilable with the fact that the issue of scarring was not raised in the course of the first police investigation.

65. We attached particular weight to the fact B had referred to scarring on the genitals of the Appellant, to his having one testicle and to having his testicle lowered. The Appellant, although giving different accounts at different occasions, appeared to accept that there was some scarring on his genitals and that he had had his testicles lowered by operation and had “only one and a half testicles.” We further accepted that the three differing explanations given by the Appellant were notable by reason they were contradictory, and lacked credibility. We concluded that taken together this evidence gave substantial support to the likelihood of the allegations being true.

66. We next considered the evidence of the CPS reviewing lawyer. We noted the Respondent had placed weight on her finding that she personally believed the allegation of the complainant. We concluded that this assertion by the reviewer should be set against her other statements that there were serious credibility issues in B’s statement, that in her view the case would not survive a submission of no case and her recommendation to refuse charge. We fully accepted the importance of the difference of the standards of proof between the two jurisdictions, but we concluded, taking the matter in the round, that the evidence in relation to the reviewing officer provided only limited support for the truth of the allegations.

67. In the context of public confidence, we took into consideration the conclusion by the Chartered Psychologist that she was unable to rule out a significant future risk to children and young person should the appellant’s circumstances change and his current responsibility as carer cease.

68. We have concluded that it is the cumulative effect of the content of the allegations made against the Appellant and the Appellant’s own responses to those allegations that have led to the conclusion that on a balance of probability the Secretary of State’s determination that a direction was appropriate. There was no obvious reason why pupil B should make malicious allegations against the appellant and the Appellant’s only suggestion was that he had done so for financial gain, although there was no indication that the complainant took any steps to pursue such a course at all. The Appellant does not deny the regularity and frequency of contact with the complainant, and confirmed that the pupil had stayed with him in his home on more than one occasion over the years free of charge and without a fee requested for the one to one tuition provided to him. Such an arrangement is in our view unusual. Given that the Appellant had been warned about the potential impact of any future misconduct in 1997 and had recently been the subject of a police investigation into allegations of abuse, we concluded that to allow a pupil to stay in those circumstances was, at the very least unwise, and potentially, reckless. In our view, it raised the question of whether the Appellant understood the potential danger of the situation in which he placed himself and an inability to grasp the seriousness with which allegations are viewed.

69. The purpose of the psychological assessment was to assess the risk presented by the Appellant. Although the conclusions were restrained, the final conclusion was that she was “.. unable to rule out a significant risk of harm to children and young persons” in the future. In those circumstances, both limbs of the question require that the Secretary of State make a direction and it is our unanimous decision, taking all these matters together, that the Secretary of State’s finding that the allegations by B were true on the balance of probabilities was supported by a sufficiency of evidence. We further accepted that by reason of this finding and of the evidence of the psychologist, there was a sufficiency of evidence to support the finding on the balance of probabilities that there was a continuing risk to pupils in education. We agreed that the fact that the allegation concerned sexual abuse of a student, was such that the general public would have legitimate concern if the Appellant were able to continue teaching.

70. We then considered whether it would be appropriate to limit the appellant to teaching pupils over the age of 16 years. We concluded that where there is an issue in relation to allegations of sexual abuse of pupils who were near that age, public confidence requires that the direction applies to all young persons and that the appellant’s proposal to limit himself to private tuition of pupils over the age of 16 years would not secure the confidence of the parents of potentially vulnerable pupils under the age of 18 years.

This is the unanimous decision of us all.

Appeal dismissed.

Meleri Tudur

John Burrow

John Hutchinson

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