THE INDUSTRIAL TRIBUNALS

CASE REF:	5831/09

APPLICANT:		Department for Employment & Learning 

RESPONDENT:		Mark Butler, known as Mark McCrory
				t/a AM : PM The Actors Agency

DECISION
The unanimous decision of the tribunal is that the respondent be prohibited from carrying on, or being concerned with the carrying on, of any employment agency or employment business otherwise than in accordance with the conditions specified at Paragraph 9 below for the period beginning with the date of this Order, ie 26 March 2010 and ending on 25 March 2015.

Constitution of Tribunal:
Chairman:		Mr D Buchanan
Members:		Mr R Gunn
			Mr J Kinnear

Appearances:
The applicant Department for Employment & Learning was represented by Mr A Sands, Barrister-at-Law, instructed by The Departmental Solicitor’s Office.
The respondent was represented by Mr M Potter, Barrister-at-Law, instructed by Johns Elliott, Solicitors.

1.	In these proceedings the applicant Department (‘DEL') sought a prohibition order under Article 5A of the Employment (Miscellaneous Provisions) (Northern Ireland) Order 1981, prohibiting the respondent, Mr Butler, from carrying on, or being concerned with the carrying on of, an employment agency.  DEL sought such an order on the basis of the respondent’s conviction for indecent assault.  The application was for a prohibition order lasting until 6 July 2014.  The respondent remains on the Sex Offenders’ Register until that date.

2.	In order to determine this matter the tribunal heard evidence from Ms June Ingram, Director, Strategy and Employment Relations Division, (DEL).

It also heard evidence from the respondent, Mr Butler, and from Mr Lalor Roddy, an actor, and Mr Damon Quinn, currently a producer with his own company, on his behalf.  The tribunal had regard to documentary evidence to which it was referred by the parties.

It finds the facts set out in the following paragraphs.

3.	(i)	The respondent, Mr Butler, carries on the business of an employment agency.  The role of the agency is to find work for actors in Northern Ireland.  The respondent has carried on this business since 2004.  Before that he was an actor.  (His use of the name McCrory is explained by the fact that when he applied to join Equity, the actors’ union, there already was an actor called Mark Butler, and he therefore adopted the former name as his stage name.)	
			
	(ii)	Under the 1981 Order, there is no requirement for the respondent to register, or be licensed, by DEL.  There is in effect a form of negative licensing, that is to say DEL can make an application to prohibit someone from carrying on an employment agency on account of misconduct or other sufficient reason.	
			
	(iii)	In this case the sole ground for seeking a prohibition order is the respondent’s conviction for indecent assault.  It is not suggested that he is in any way in breach of the Conduct of Employment Agencies and Employment Businesses Regulations (Northern Ireland) 2005, which have been made under Articles 6, 7 and 10 of the 1981 Order and which make provision in relation to such matters as the agreement between the work-seeker and the agency, the content of such agreements, the keeping of client accounts, etc.

An inspection of the respondent’s business had in fact been carried out by an inspector from DEL in November 2008, and the report of that inspection was generally favourable, disclosing only some minor matters of concern which required attention.	
			
4.	(i)	On 6 July 2007, after a trial at Belfast Magistrates’ Court, the respondent was convicted of the offence of indecent assault upon a female contrary to Section 52 of the Offences against the Person Act 1861.  He initially appealed, but subsequently withdrew that appeal.

This offence took place on 25 May 2005, and when put on his plea on 14 March 2006, the respondent had pleaded not guilty.

His conviction following a not guilty plea indicates that in that respect, at least, he was dishonest.	
			
	(ii)	On conviction he was sentenced to four months’ imprisonment suspended for two years.  The Magistrate (now District Judge) therefore took a relatively serious view of the matter.  This was hardly surprising, having regard to some of the circumstances of the offence.

The injured party, Ms X, was in her early twenties.  She had visited the respondent at his business premises for the first time as a potential client of his agency.  Clearly, there was an element of vulnerability and potential dependency.  She was looking for assistance to get work, which might in turn have led to her entering into an ongoing professional relationship with the respondent, where she depended on him to collect fees and monies owing to her.

Consequently, we are dealing here with a breach of trust, an expression used by the magistrate in sentencing, echoed by Ms Ingram in her evidence and, rightly, not disputed by the respondent or his counsel in evidence and submissions respectively.	
			
	(iii)	We must also, however, consider the respondent’s actual conduct on the occasion in question.  The indecent assault of which he was convicted consisted of him placing his hands on the injured party’s waist, and kissing or attempting to kiss her.  This conduct took place during the improvisation of an acting scene.  Indecent assault, like any other criminal offence, encompasses a range of conduct of varying gravity.  At its most serious, it can be conduct short of attempted rape.  Here the respondent’s conduct, objectively speaking, was at the lower point in the scale, and this was very fairly conceded by Mr Sands BL, for DEL.

There is no evidence before us of the impact of the respondent’s conduct on the victim.

However, from her point of view, it must have been a distressing and humiliating experience, aggravated by the fact that the respondent subsequently attempted to deny his guilt and then put her through the trauma of giving evidence at his public trial.	

5.	We also bear in mind the following facts:-

(i)	Apart from the conviction for this offence of indecent assault, the respondent has no criminal record of any sort.

(ii)	Since the date of the offence, which took place on 26 May 2005, there have been no complaints of a similar nature against him.

(iii)	There has been a delay in bringing these proceedings for a prohibition order.  DEL only became aware of the conviction in 2009, and commenced proceedings at that stage.  Consequently, when the matter came to their attention they acted promptly and we make no criticism of them.  No statutory requirement exists, nor is there any administrative arrangement in place, to ensure that the police, prosecuting authorities, or convicting court notify offences of this nature to DEL.  Clearly they have a legitimate interest in knowing of such offences.

We regard delay as a mitigating factor.  While the matter has been hanging over the respondent, the passage of time has also been to his advantage, for he has had a further opportunity to show he can conduct himself properly.

(iv)	This episode has had a profound effect on the respondent and his family.  We accept that he now acknowledges the serious and unacceptable nature of his past conduct, and is genuinely sorry.  

(v)	No client has left the respondent’s agency as a result of his conviction, or perhaps more accurately, no one who has left has given his conviction as a reason for leaving.

He has consistently had around sixty to seventy actors on his books, and since 2007 has taken on around twenty actors of different ages and sexes.  About twelve of these are young females.

Mr Roddy and Mr Quinn, who gave evidence on his behalf, spoke highly of his ability and the work he does.  Notwithstanding his conviction, they continue to work with him and recommend him to others as an agent.  Other clients of the agency have provided written statements, in which they similarly speak highly of him.

(vi)	The respondent, when meeting potential clients for the first time, now meets them in a public place, eg a café, and is accompanied on these occasions by a third party.

(vii)	We cannot say with certainty that there is no risk that he will re-offend.  In predicting human behaviour, a person’s past conduct is the most reliable indicator we have of their likely future behaviour.  However, we are satisfied that the risk of any repetition of this conduct on the part of the respondent is low.  Following his conviction for indecent assault he was required to sign the Sex Offenders’ Register and will remain on it until 6 July 2014.  (This requirement followed upon conviction by operation of law.)  For the purposes of potential           re-offending he is classed as Level 1, which is the lowest risk assessment.

6.	We now turn to consider the relevant law.

(i)	Article 5A of the Employment (Miscellaneous Provisions) (Northern Ireland) Order 1981 provides as follows:-

“5A –

(1)	On application by the Department, an industrial tribunal may by order prohibit a person from carrying on, or being concerned with the carrying on of –

(a)	any employment agency or employment business; or

(b)	any specified description of employment agency or employment business.

(2)	An order under paragraph (1) (in this Order referred to as ‘a prohibition order’) may either prohibit a person from engaging in an activity altogether or prohibit him from doing so otherwise than in accordance with specified conditions.

(3)	A prohibition order shall be made for a period beginning with the date of the order and ending –

(a)	on a specified date; or

(b)	on the happening of a specified event,

in either case, not more than ten years later.

(4)	Subject to paragraph (5) and (6), an industrial tribunal shall not make a prohibition order in relation to any person unless it is satisfied that he is, on account of his misconduct or for any other sufficient reason, unsuitable to do what the order prohibits.”

(ii)	In Department of Trade & Industry  v  Webster and Others [EAT/539/99], Lindsay J stated, at paragraph 34, that:-

“the very wide words ‘misconduct’ and ‘unsuitability’ within Section 3A(4) [of the corresponding Employment Agencies Act 1973] are not confined to misconduct which is in breach of the Act”.

(iii)	We have no doubt that the respondent’s conviction for indecent assault constitutes ‘misconduct’ under the 1981 Order, and that on account of this he is unsuitable to do what the order prohibits.

(iv)	Having so satisfied ourselves, we must consider whether to make a prohibition order.  Notwithstanding our finding of misconduct, it is clear from the word ‘may’ in Article 5A(1) that we have a discretion whether or not to make such an order.

However, having regard to the circumstances of this offence, which the respondent committed in the course of carrying on the business of an employment agency, and where the injured party was a work seeker who was seeking to avail of his services, we have no doubt that it is appropriate to make such an order.  A failure to do so would be to ignore the gravity of the respondent’s conduct.

7.	(i)	We now turn to consider the form of any such order, that is to say whether it should prohibit the respondent from engaging in the activity altogether, or whether it should prohibit him from doing so otherwise than in accordance with specified conditions.  We must also decide on the length of any such order.	
			
	(ii)	The purpose of making a prohibition order is primarily to protect the public.  We have to balance the public interest in being protected from wrongdoing and misconduct on the one hand against the respondent’s right to earn his livelihood in the other hand.	
			
	(iii)	In a previous application for a prohibition order, Department for Employment & Learning  v  Patrick Duncan t/a Dealers Agency [Case Reference No: 1657/08] which was heard by the same constituted tribunal and in which the decision issued on 23 June 2009, we pointed out that in performing this balancing exercise, assistance could be derived from the approach of the courts in applications relating to the disqualification of company directors.  We again emphasise that we looked at such decisions for general guidance only, particularly as there is a minimum two year period of disqualification under the Company Directors Disqualification Act 1986.	
			
	(iv)	In Re: Westmid Packing Services Ltd, Secretary of State for Trade & Industry  v  Griffiths and Others [1998] 2 All ER 124 9CA, Lord Woolf MR, at 131 – 145, referred to specific matters which it may be helpful to consider.

These included the fact that persons who undertake statutory obligations must realise that they have responsibilities, the wider interest of protecting the public, and in relation to the person concerned, his general reputation and his conduct in the discharge of his responsibilities (the latter going to the question of the extent to which the public needs protection), his age, state of health, whether he has admitted the conduct alleged, and his general conduct before and after the offence.

He also recognised that a disqualification order, in order to fulfil its role of protecting the public, “would have a deterrent element in relation to the director himself and a deterrent element as far as other directions are concerned”.  He continued at 131, 132:-	

“Despite the fact that the courts have said disqualification is not a ‘punishment’ in truth the exercise that is being engaged in is little different from any sentencing exercise.  The period of disqualification must reflect the gravity of the offence.  It must contain deterrent elements.”

		While, therefore, the making of a prohibition order involves a deterrent or punitive element, it is clear that in making it we can take mitigating factors into account.	

8.	As is clear from the foregoing paragraphs, we take a serious view of the circumstances of the respondent’s misconduct, a sexual offence committed against a potential client of his business.  However, that offence was very much at the lower end of the scale.  It took place almost five years ago, there has been no repetition of it and any other misconduct, and we think it unlikely that the respondent will indulge in such behaviour again.  In these circumstances, we consider that the making of a prohibition order subject to specified conditions is sufficient to protect the public interest.  The respondent was prepared to agree to a condition whereby he would disclose his conviction to each potential client of the agency.  However, we do not make such a condition because we feel the publicity surrounding these proceedings will result in largely the same effect.  We consider it appropriate to make his self-imposed condition about meeting clients an express condition of the prohibition order.  We also consider that in the circumstances of this case, it is appropriate to require him to report any future convictions, etc to DEL as the enforcement authority.  

	We consider that a period of five years is the appropriate length of the order.

9.	The order is therefore as follows:-

The respondent is prohibited from carrying on, or being concerned with the carrying on, of an employment agency or business otherwise in accordance with the following condition(s) for the period of five years beginning with the date of this order, ie 26 March 2010 and ending on 25 March 2015.

The conditions are:-

1(i)	the respondent, when meeting new or potential clients, will see them in a public place, or place of public resort.

(ii)	The respondent will be accompanied at such meetings by a third party.

(iii)	A written record of those at the meeting will be kept and signed by each of those present.

(iv)	Such written records will be kept by the respondent, and made available on request to any officer or inspector appointed by the Department for Employment and Learning for the purposes of the Employment (Miscellaneous Provisions) (Northern Ireland) Order 1981.

2	If the respondent is cautioned or summoned for, or charged with a criminal offence (other than one dealt with by way of fixed penalty) he shall, without delay, bring this to the attention of an officer or inspector appointed by the Department for the purposes of the Employment (Miscellaneous Provisions) (Northern Ireland) Order 1981.

10.	We make no order under Article 5C(4) of the 1981 Order (power to make orders with a view to preventing frivolous or vexatious applications to the tribunal to vary or revoke the order when there has been a material change of circumstances since it was made).

11.	We wish to conclude by making some general observations:-

(i)	We realise that we have given the respondent a chance.  Should there be any further alleged misconduct on his part which leads to an application for a prohibition order, any such application should be listed before this tribunal as presently constituted, if available, and subject to any direction of the President of the Tribunals in the exercise of her functions relating to the listing of cases.  While, of course, every case must be determined on its own facts, we would be most unlikely to give him a further chance if future misconduct were proved.

(ii)	We have noted that the respondent’s conviction did not come to the attention of DEL until very late in the day, and that this did not happen as a result of notification by any law enforcement agency.  We would draw attention to Section 166 of the Consumer Credit Act 1974 which provides:-

“Where a person is convicted of an offence or has a judgment given against him by or before any court in the United Kingdom and it appears to the court –

(a)	having regard to the functions of the Director [General of Fair Trading] under this Act, that the conviction or judgment should be brought to the Director’s attention; and

(b)	that it may not be brought to his attention unless arrangements for that purpose are made by the court;

the court may make such arrangements notwithstanding that the proceedings have been finally disposed of.”

Section 166 is mirrored by Section 131 of the Fair Trading Act 1973 in relation to the functions of the Director General under Part III of that Act (ie “Additional functions of Director for Protection of Consumers”).

We think that it would be useful if consideration were given to the inclusion of such a provision in legislation regulating employment agencies and businesses.

(iii)	Additionally, in dealing with this matter we have been constrained by the fact that the only sanction available to us is the somewhat draconian one of making a prohibition order (albeit that this can be mitigated by making an order subject to specified conditions, as we have done here).

In his book, Consumers and the Law [1978], at p.374, Mr Justice Cranston, as he now is, makes the point in relation to licensing systems, which are in many ways analogous to proceedings for a prohibition order, that such a :-

“ … system is deficient if it does not contain a gradation of sanctions ranging from the mild to the severe … If a condition is too mild, it will not deter …; while if a sanction is too severe the agency will be reluctant to impose it”.

He goes on to point out, also at p.374, the varied disciplinary powers which the South Australian Credit Tribunal exercises over credit providers, such as the power to issue reprimands and impose fines not exceeding a certain amount.  While we do not suggest that a power to issue a reprimand or impose a financial penalty would necessarily have been appropriate if available to us in this case, one can think of other powers, such as the power to make a prohibition order, but suspend its operation, or an express power to defer making an order so that a respondent’s conduct can be monitored and reviewed, which might have been useful, particularly if exercised in conjunction with other sanctions such as those mentioned.  Again, this is something we think could be considered in any review of the law.

Chairman:

Date and place of hearing:	4 February 2010, Belfast

Date decision recorded in register and issued to parties: