Lochan Peryagh
v
Secretary of State
[2009] 1542.PVA
[2009] 1543.PC

- Before - 
Simon Oliver
(Deputy Principal Judge)

Decision on Strike Out Application

Heard on 9th November 2009 at Leicester Magistrates Court 

Appearances

Mr. Peryagh appeared in person
Ms Jade Allen, solicitor, represented the Secretary of State.

Application

1.	By a letter dated 24th June 2009 the Secretary of State for Health notified the tribunal that he opposed the appeal by Mr Lochan Peryagh and that, in accordance with Rule 8(4)(c) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 the Secretary of State applied for the appeal to be struck out on the basis that the appeal has no reasonable prospect of success.

2.	The Secretary of State also requested an extension of time for filing its Response to Appeal until 20 days after the date application for strike out was finally determined.

The Legal Framework

3.	In accordance with 86(4) of the Care Standards Act 2000 and section 4(4) of the Protection of Children Act 1999 the facts resulting in a conviction can not be challenged on appeal to the Tribunal. 

4.	Should it be necessary to consider the issue of unsuitability the Tribunal in Mairs v The Secretary of State [2004] 269 PC considered unsuitability in the context of PoCA rather than PoVA, but nevertheless provides guidance as to the Tribunal’s approach. 

Background

5.	Mr Peryagh was alleged to have assaulted three elderly dementia patients in his care whilst working as a Bank Worker at Grey Ferrers Rest Home on 17th May 2007. Following disciplinary action he was dismissed on 31st August 2007. He appealed his dismissal internally and the decision to dismiss was upheld on 15th October 2007.

6.	On 7th January 2008 the Appellant was found guilty at Leicester Magistrates Court (having pleaded not guilty) of three charges of common assault in respect of the events on 17th May 2007. He was sentenced on 28th January 2008 to 150 hours of unpaid community work, £150 compensation (to be divided equally between the victims) and court costs of £100.

7.	Prior to sentencing, the magistrates considered the pre-sentence report of Ms Elizabeth Chadwick dated 21st January 2008.  At paragraph 2.2 Ms Chadwick summarises the allegations that the Appellant was found guilty of:

“… the prosecution account details are that Mr Lochan tapped the back of one patient’s hand in an attempt to agitate her, that he slapped a second patient on the face and pinched her ear and that he slapped the third patient on the hand.”

8.	The Appellant appealed against his conviction. There were two preliminary hearings but on 31st October 2008 the Crown Court at Leicester heard his appeal by way of complete rehearing. The court record shows that Julia Richards gave evidence and was cross-examined for around 45 minutes by the Appellant’s Counsel. A statement from Chris Vickers was read and the case for the prosecution was closed. The case log shows that that the Appellant’s counsel made legal submissions that there was no case to answer following the evidence of Ms Richards and Mr Vickers. There was a comprehensive defence case statement setting out these points which I have read.

9.	 The court log shows that the judge concluded that there was not only sufficient evidence for case to continue notwithstanding the inconsistencies raised by Mr Peryagh but also that the submission on common assault failed, the judge considering that the offence was made out. The judge said that as it depends on the victim who is being touched - in this case elderly ladies suffering from dementia - the common assault is made out. 

10.	The Appellant gave evidence in the crown court and was cross-examined. The judge and magistrates dismissed the appeal and confirmed the sentence. I am told that Mr Peryagh has completed the 150 hours unpaid work and has also paid the compensation and costs ordered. He did not appeal that decision to the Court of Appeal.

11.	Subsequently Mr Peryagh has referred his case to the Criminal Cases Review Commission (“CCRC”) alleging a miscarriage of justice. Ms Allen told me that she understood that at present all the CCRC has done is acknowledge receipt.  

12.	As the CCRC is not an Appellate Court, the Secretary of State submits that the Appellant has exhausted his appellate remedies and that the Tribunal may proceed to decide this case. I agree. I can see no merit in waiting for the CCRC to determine the application particularly as there is no timescale in which it might be considered.

13.	Should the CCRC decide to consider the matter (not something that is guaranteed by a referral) the CCRC has the discretion to take no action (i.e. no referral back for fresh appeal). That discretion is exercised in cases where, although the CCRC believes that it is likely a miscarriage of justice has occurred, quashing that conviction would make no difference to the accused and ordering a fresh appeal on that singular conviction would be a waste of public funds.

14.	I agree with the argument put forward by Ms Allen on behalf of the Secretary of State that, in the event that the CCRC upholds Mr Peryagh’s referral and is of the opinion that there was likely to have been a miscarriage of justice, the CCRC may refer the matter back to the Crown Court for a fresh appeal. If the Crown Prosecution Service decided to defend the appeal then a new hearing would take place. It is then a matter for the Court to determine whether or not the charges are proved beyond reasonable doubt. It is possible that Mr Peryagh’s convictions would be upheld once again. 

15.	The CCRC is not bound to provide a decision on a particular case within a set period. Ms Allen tells me that, at present, the CCRC is unable to provide any indication of when it may reach a decision on Mr Peryagh’s case. 

16.	It is inevitable that a delay will occur before the CCRC reaches a decision, and if a referral is made, before the final disposal of this matter in the Crown Court. In those circumstances it is inappropriate for the consideration of strike out application to be delayed pending those decisions. 

17.	Furthermore, there is the added possibility that should Mr Peryagh obtain a referral back to the Crown Court, and be convicted again, he could make a further application to the CCRC and the process would begin afresh, adding yet further delay.

18.	In reaching the decision that the application to strike out will be considered now, I am satisfied that I am not putting Mr Peryagh at a disadvantage. This is because if Mr Peryagh is successful before the CCRC (in having the conviction referred back) and was also successful in having all of his convictions quashed on appeal he would be able to write to the Secretary of State at that time and with that information asking him to reconsider his listing in accordance with section 81(3) of the Care Standards Act 2000.

The listing

19.	As a result of being dismissed from his employment, Mr Peryagh was referred to the PoCA and PoVA team. That team notified Mr Peryagh by letter on 10th January 2008 that he was provisionally listed and asked for any observations he might have. Although Mr Peryagh returned his Provisional Listing Observation form on 11th February 2008, he did not make any observations. 

20.	On 5th March 2008 the Appellant wrote to the Secretary of State advising that he had appealed against his conviction. 

21.	On 24th April 2008 the Appellant was given a further opportunity to provide observations but appears to have declined to do so.  

22.	On 7th November 2008 the Secretary of State received notification from Scotland Yard that the Appellant had received 3 convictions for common assault and that his appeal had been dismissed on 31st October 2008. 

23.	As no further observations were received from the Appellant and the Secretary of State accordingly proceeded to consider his case on the evidence available and then confirmed that his name would be placed on the list.

Grounds of Appeal to this Tribunal

24.	The Appellant’s grounds of appeal to this tribunal are, in essence, that he denies the offending. He lists a number of factual issues that he believes “PoVA” should have investigated further.  

25.	Ground 1 of Mr Peryagh’s appeal is that he denies he assaulted or caused harm to any resident at the home. Ground 2 is that the photographs used as evidence against him should “be further investigated” due to the fact that bruising noted on one of the victims may have been prone to bruising due to a pre-existing medical condition. In Ground 3 of his appeal Mr Peryagh requests that “PoVA” undertake further investigations into the “nursing notes” of the three victims but does not state how or why these note can assist his appeal before the Tribunal. Mr Peryagh also requests the “positional change chart” of two additional patients. From what Mr Peryagh told me during the hearing this is because he wishes to highlight inconsistencies in Ms Julia Richards’ evidence. This request is made notwithstanding that Ms Richards gave evidence and was cross-examined in the Crown Court during the appeal for around 45 minutes by the Appellant’s Counsel and that the nursing notes were made available to Mr Peryagh before the crown court appeal. Although the Court noted there were some inconsistencies in her evidence he was, nevertheless, found guilty.

26.	Ground 4 of the Applicant’s appeal to the tribunal consists of a general request for “Further investigation by PoVA on the complaint”. As to this matter, the Secretary of State comments that PoVA team fully considered all the information available to it at the time. This included the documents supplied by the referring organisation (including the documentation produced and collected during the Course of the internal employment investigation) and a confirmation of conviction from Scotland Yard. 

Secretary of State’s case
 
27.	The Secretary of State argues before me that this appeal should be struck out as it has no reasonable prospect of success. The case is made on a number of bases.

28.	First, it is said that the Care Standards Act and Protection of Children Act expressly prohibit the Tribunal from engaging in a review of the facts of any conviction. In this case the facts leading to conviction were proved beyond reasonable doubt on two separate occasions (i.e. before the Magistrates and Crown Courts) and for the purposes of this appeal must be taken as proven. Grounds 1and 2 of Mr Peryagh’s grounds of appeal challenge the factual basis upon which he was convicted. The Crown Court Log of the hearing on 20th May 2008 shows that the hearing was adjourned to allow the Appellant to pursue disclosure of the medical records and a further witness. The Log for the hearing on 15th August 2008 shows that the medical records had been disclosed to the Appellant and he was therefore able to use them for his defence. In addition, the Appellant has consistently denied that the misconduct took place and has accused Ms Richards of fabricating the events with the assistance of Beverly Rhodes and Chris Vickers because she was unhappy with the way the Appellant had criticised her performance earlier that day. 

29.	The second basis of the Secretary of State’s argument is that there are three separate incidents of assault, involving three separate vulnerable adults occurring at three separate times (i.e. this was not a one off incident in the heat of the moment) which were serious enough to warrant three separate convictions for assault and for the Court to be considering a custodial sentence. It is argued that the sentence of 150 hours community work reflects the fact that these assaults involved the abuse of a position of power over vulnerable victims.

30.	The third point is that because the Appellant pleaded not guilty at trial and was convicted, appealed his conviction and was dismissed, has subsequently forwarded his case to the CCRC for review and is denying that he is guilty of the offences he has failed to demonstrate any remorse for his actions or recognition that his actions harmed or had the potential to harm a vulnerable adult. It is said that there are no extenuating circumstances that would mitigate the Appellant’s actions.

31.	Fourthly, if the issue of unsuitability is considered, it is submitted by the Secretary of State that, due to the nature of his convictions and the allegations that led to the convictions, the fact of Mr Peryagh’s 3 convictions approximately 2 years ago is sufficient in itself to satisfy the Tribunal that he is unsuitable to work with Vulnerable Adults. Further, the Appellant failure to demonstrate any remorse or insight into his actions also suggests his unsuitability. 

32.	In addition, the Secretary of State argues that the abuse of the position of trust and power Mr Peryagh had over Vulnerable Adults also supports the conclusion that the Appellant is unsuitable to work with children. Paragraph 4.2 of the pre-sentence report notes:

“The nature of Mr Lochan’s offending suggests that the risk of causing harm to the public is assessed as low. However, should he be placed in a position of authority or power over vulnerable individuals, then this risk of harm would be raised to medium.” [Emphasis in Bold Added]

33.	In considering Mr Peryagh’s written arguments in reply to the application to strike out, the Secretary of State says that the Appellant’s Grounds of Appeal raise no arguable issues but rather attempt to challenge the factual basis upon which he was convicted or have the Secretary of State undertake further investigations and that there is nothing in Mr Peryagh’s letter that should persuade the Tribunal not to strike out his appeal. It is said that paragraphs 2 to 5 Mr Peryagh maintains that he did not commit the offences he was convicted of and reiterates that his case is currently before the CCRC for consideration. He appears to be attempting to show inconsistencies in Julie Richard’s evidence by providing extracts from a record of conversation with her and a transcript of her evidence before the Crown Court but has not set out which parts of those documents support his case and why.

Mr Peryagh’s case

34.	Mr Peryagh has consistently maintained from the outset that the allegations against him were fabricated by Julia Richards in response to criticism of her professional performance that morning at Gray Ferrers Home. He has further claimed that Ms Richards colluded with the Nurse on Duty (Beverly Rhodes) and the Home Manager (Chris Vickers) to manufacture the claims against him in order to have him dismissed.

35.	He argued that in the Magistrates Court, it is in his Defence Case Statement for the crown court and it was said before me. In his written response (dated 11th August 2009) to the strike out application made by the Secretary of State, Mr Peryagh says that he has denied and still denies the allegations made against him.

36.	During the oral hearing on 9th November 2009 Mr Peryagh explained in detail the reasons why he believed that he was not guilty of the three common assaults. He told me that he had not assaulted anyone and that he was still trying to prove that he was innocent. Mr Peryagh told me the reasons why he believed that the crown court hearing was unsafe. He took me through various documents to show what he said were inconsistencies in the evidence given and read to me a letter of commendation of April 2007 from a patient’s relative about the way Mr Peryagh cared for the patient.

37.	It is not necessary to set out in detail here what Mr Peryagh said to me. Suffice it to say he referred me through a study of the documents he had sent to the tribunal to inconsistencies in the written statement of the police officer as to the location of bruising and the photographs showing the same; the failure of Julia Richards to abide by good practice in relation to two residents and to record what was done on the charts; the fact that one resident’s medical condition made her prone to bruising and how another was known to be aggressive. Mr Peryagh also spoke about the effect losing his job had had on his family. He suggested that he could be kept on the provisional listing until the outcome of the CCRC was known.

Conclusions with reasons

38.	I have already indicated in paragraph 12 above that I do not accept that that this appeal before the Care Standards Tribunal should be delayed until after the decision of the CCRC. There are too many unknowns in that process (as outlined in Paragraphs 13-17) for it ever to be certain when it will finish or what the final outcome might be. I am satisfied that, as mentioned in Paragraph 18 above, there is a route open to Mr Peryagh should his conviction be quashed.

39.	In his written submissions of 11th August and his oral submissions to me on 9th November 2009, Mr Peryagh raised, as his only reason for saying that the case should not be struck out, the fact that he did not accept that he was guilty of the three common assaults.

40.	It is not possible for this tribunal to look behind any criminal convictions. We are expressly prohibited from doing that by 86(4) of the Care Standards Act 2000 and section 4(4) of the Protection of Children Act 1999. 

41.	Given that the only basis of the appeal is the challenge to the convictions there is nothing that this tribunal can do. It necessarily follows that we will be unable to consider any evidence or submissions that relate to the convictions. For that reason I have come to the conclusion that this appeal has no reasonable prospect of success and so, in accordance with Rule 8(4)(c) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, it must be struck out.

42.	In reaching this conclusion I have not considered the issue of whether or not Mr Peryagh is unsuitable.

ORDER
In accordance with Rule 8(4)(c) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 this appeal is struck out on the basis that the appeal has no reasonable prospect of success.

Simon Oliver
Deputy Principal Judge, Care Standards
18th November 2009