DECISION

Appeal No [2009] 1680.PT

IN THE FIRST-TIER TRIBUNAL (HEALTH, EDUCATION AND SOCIAL CARE)

JP
-v-

THE SECRETARY OF STATE FOR EDUCATION

-Before-

IAN ROBERTSON
(Nominated Tribunal Judge)
RAY WINN
(Specialist Member)
MARGARET DIAMOND
(Specialist Member)

Heard on 2 June 2010
Care Standards Tribunal Service
18 Pocock Street
London SE1 0BW

Representation

Appellant in person

Mr G Lewis (counsel) for the Respondent

APPEAL

1.	This is an appeal brought by JP dated 24 November 2009 against a decision taken by the Secretary of State on 15 September 2009 to prohibit him from engaging in employment to which S142 Education Act 2002 applies. What is commonly known as List 99. The Appeal documents indicate that it is an appeal against being added to the Protection of Children Act list. This was clearly a mistake and we allowed JP to technically amend his appeal papers to reflect the true nature of the appeal. Mr Lewis on behalf of the Secretary of State did not oppose this.

THE BACKGROUND

2.	In 2004/2005 JP was Head of Year 10 at a school in Greater Manchester. In that capacity he heard that a girl, HP (dob 15/4/90) had made a video of herself masturbating. He had a copy made of that video which he admitted watching.
 
3.	In the summer of 2005 JP moved to school in North Yorkshire. In October 2005 he began communicating with HP via MSN and mobile phone (on a pay as you go phone not his usual mobile). It is unclear who initiated the communication. In her complaint to the school HP says he contacted her but JP says that HP first contacted him through his E mail address that was known to pupils.

4.	On 21 December 2005 JP attempted to send HP a video of a male masturbating to ejaculation. This never arrived however as he had typed in the wrong address. In February 2006 he sent her a picture of an erect penis with the message;

		“ hey sexy, thought I’d bite the bullet and send a picture so now you 		have my number I look forward to some in return” 

5.	The staff at the original school heard of matters through HP’s friends and the matter was reported to the police. JP was suspended on 1 June 2006.. When interviewed by the police that day he denied everything. The police obtained his laptop and extracted the communications set out above amongst others. They also extracted messages sent to HP after the issue had come to light in the following terms;

		“I aint fucking losing my job, wife, kid and going to jail as a perv’— 		rather 	go out in a high speed car crash so it locks accidental and so 		the wife  can still get the ljfe ‘insurance — and I’m not fucktng 			joking ’ 

		“Dunno what to do for best now —don’t tell them anything else. If 			the police get involved don ‘t admit anything — there is no proof 			Just say the teachers 	made u feel intimidated — but that it is really a 		randomer. Go back on everything ti said to show and deny it all,
 
		…wo things — that u ‘Ii deny everything to the police and ii ‘ii get 			rid of any convos we’ve had on line & txz..

6.	At an initial disciplinary hearing on 6/3/07 he denied everything. At a meeting on 12/4/07 when confronted with the police evidence he made partial admissions denying use of a mobile phone. At a meeting on 24/4/07 when confronted with evidence regarding the Pay As You Go Sim card he accepted that. 
 
7.	In a letter dated 15 May 2007 in which he offered to resign he said the following;

		“I am the victim of an infatuated and provocative 16 year old young 		woman who pursued me and initiated the contact and flirtatious 			communication.”

THE LAW

	8. This appeal is under section 142 of the Education Act 2002 and Regulation 	12 of the Education (Prohibition from Teaching or Working with Children) 	Regulations 2003. Section 142 applies to the provision of education at a 	school, further education institution or elsewhere. 
	9. A direction may only be given in respect of a person on specified grounds. 	The grounds are: 
		(a) that the person is included in the list kept under section 1 of the 			Protection of Children Act 1999; 
		(b) that the person is unsuitable to work with children; 
		(c) relating to the person’s misconduct; 
		(d) relating to a person’s health; 
		(e) in the case of a person taking part in the management of an 			independent school, grounds relating to the person’s professional 			incompetence.
 
	10. Regulation 13(1) permits the First Tier Tribunal to order the Secretary of 	State to vary or revoke the direction where it considers that the direction is not 	appropriate. The First Tier Tribunal shall not, in exercising its powers under 	Regulation 13, consider any information relevant to the decision to give a 	direction which the Secretary of State did not have at the time the decision was 	made: Regulation 13(2)(a). Nor shall the First Tier Tribunal consider any 	evidence of a material change of circumstances of the person concerned 	occurring since the decision to give a direction: Regulation 13(2)(b). 

	11. Thus the Tribunal is confined to conducting a review of the decision made 	by the Secretary of State. The Tribunal is not empowered to rehear the case 	or to determine the primary facts. It is required, in effect, to decide whether 	the Secretary of State had sufficient evidence upon which to base a 	determination that the specified ground existed and, further, to decide 	whether the direction was an appropriate or proportionate response in all the 	circumstances known to the Secretary of State. 

THE EVIDENCE

12.	We had before us a bundle of papers running to 252 pages. This included details of the police enquiries, the disciplinary proceedings, statements from JP and testimonials together with copies of E mails from other students and their parents which were entirely innocent in nature. We heard oral evidence from Mrs Brass the List 99 Team Leader. She set out in detail the investigations and the rationale for the Secretary of State’s decision. She was cross examined by JP with regard to policy issues. He made it clear in response to a question from the Tribunal that he accepted the factual content of the statement. We therefore set this out below in some detail.
 
13.	 “10. ln approximately September 2005 the Appellant left [the original school] to move to [the school in North Yorkshire]. His wife was expecting a baby and they wished to be nearer to her family. 
11. In approximately October 2005 the Appellant began electronic communications (by MSN Messaging and mobile phone) with HP. it is not entirely clear who began the communication. The Appellant states that HP contacted him first, however there was evidence before the Secretary of State to suggest that HP was initially unaware of who was sending messages to her, indicating that it was the Appellant who initiated the contact. 
12. At this time the Appellant was aware that LW was only 15 years old and was still a pupil at his former school. 
13. The conversations became sexualised and on 21 December 2005 the Appellant attempted to send HP a picture of a male masturbating to ejaculation accompanied by the message: 

		“This is the result of our sexy chat!! Hope u like - not the best of 		hard-ons at the time (much better when someone else is doing it (sic) 		for you!!). Will see if ur on line at about 12.30 today!  Xxx 

	This message was never delivered as the Appellant had entered HP’s 	email address incorrectly. 
	14. In early 2006 the Appellant sent HP a picture of an erect penis. The 	picture was accompanied by text which said words to the effect of:

		“hey sexy, thought 1’d bite the bullet and send a picture so now 			you have my number I look forward to same in return”. 

	15. Teachers at [the original School] learned of the communications either 	through HP or other students and the matter was reported to the police. 	The Appellant was suspended from his school on 1 June 2006. 
	16. The Appellant was interviewed by the police on 1 June 2006 and 	consistently denied 	having any inappropriate contact with HP. He 	concealed from then the fact that he had also been using a “Pay As 	You Go” sim card to communicate with HP? 
	17. Police investigations of the Appellant’s laptop identified four images 	of HP, some showing her semi-naked. The police extracted from his 	computer messages from him sent to HP, telling her to deny everything to 	the police, get rid of the online.text conversations they had had, and 	suggested that he would kill himself rather than lose his 	job and family 	and go to jail. 
	18. Three of the messages extracted from the Appellant’s computer read: 

		“I aint fucking losing my job, wife, kid and going to jail as a perv’— 		rather 	go out in a high speed car crash so it locks accidental and so 		the wife  can still get the ljfe ‘insurance — and I’m not fucktng 			jokingl’ 

		“Dunno what to do for best now —don’t tell them anything else. If 		the police get involved don ‘t admit anything — there sx no proof 		Just say the teachers 	made u feel intimidated — but that it is really a 		randomer. Go back on everything ti said to show and deny it all,
 
		…wo things — that u ‘Ii deny everything to the police and ii ‘ii get 		rid of any convos we’ve had on line & txz.. 

	19. HP declined to be interviewed and the CPS decided not to take any 	further action against the Appellant. 
	20. It was only at the second disciplinary investigatory interview at 	[school] on 12 April 2007 that the Appellant admitted to inappropriate 	conduct, but 	only after he was confronted with the evidence the Police 	had collected 	from his computer. However he still denied that he had 	used a mobile phone and it was not until a third disciplinary investigatory 
	interview on 24 April 2007 when confronted with further evidence from 	the police that he admitted to using a ‘Pay as You Go’ sim card to contact 	HP. 
14.	The Secretary of State made his case based upon the following criteria. Mr Lewis argued that each on their own justified listing, cumulatively the case was unanswerable.

		a. The sexually explicit and generally inappropriate nature of the 			Appellant’s contact with HP; 
		b. The Appellant’s fai1ure to establish and maintain appropriate 			professional boundaries with respect to HP; 
		c. The Appellant’s initial denial of inappropriate conduct; 
		d. The Appellant’s attempts to conceal evidence by pressuring HP into 		disposing of evidence of their communications; 
		e. The Appellant’s attempts to pressure HP into making false 			statements to the authorities; 
		f. The lack of insight demonstrated by the Appellant in his letter of 			resignation and representations. 

15.	JP did not give evidence but made submissions. Given that there was no factual challenge the Tribunal drew no adverse inference at all from his taking this approach. He said that he had allowed his E mail address to become known as he had published it on the back of a DVD produced following a school trip with his old school. He was clear that it only became known once he had left the school and the purpose in publishing it was to allow students to tell him of their progress in years to come. He saw no harm in this.

16.	He emphasised how well he was regarded at both schools and pointed to glowing testimonials regarding his professionalism.

17.	He maintained that it was the girl HP who contacted him. He said that he did not know her age although he was aware that she was a Year 11 girl. He emphasised that prior to her 16th birthday (April 2005) the communication had been mainly innocuous although he accepted that the attempt to send the obscene video had occurred prior to her 16th birthday and that a message in February was not innocent. He indicated that he felt that communication with a child at a different school and no longer under his authority was acceptable. He indicated that he thought that the codes of practice did not prohibit this. 

18.	He said that he denied everything initially out of a sense of shame. He realised his career was in jeopardy and he did all he could to avoid the consequences of his actions.

19.	He denied putting pressure on HP when matters came out. The messages set out at paragraph 5  (above) were a panic response and not an attempt by him to coerce her into denial. 

20.	Finally he said that he felt HP had a key part to play. If she had not initiated it he would still be teaching. He did not take account of the fact that she was a risky person. He said that if he had been informed of her risky behaviour he would have been more aware of the situation. He said the Secretary of State should have taken account of the descriptions of her as being a risk to young people and staff and requested that the Tribunal should do so.

21.	He denied that he was a risk to young people in the future. This was a one off incident with no prospect of repetition. He said that List 99 was for rapists, sexual perverts and paedophiles and that placing him on the list was inappropriate and disproportionate.

ANALYSIS

22.	We were extremely surprised after all the time that has passed and all the opportunities that JP has had to reflect upon matters that he has shown so little insight or understanding regarding his conduct.

23.	JP was HP’s Year Head. He had in addition to his teaching duties a duty of pastoral care. He must have been aware from the time he saw the video that this was a vulnerable young person. He was aware that she was a Year 11 child. For him to now say that he thought she was 16 and because she was in another school it was alright for him as a teacher to enter into sexual communication with her and send or attempt to send, obscene videos and photographs, is at best disingenuous, at worse blatantly dishonest. 

24.	JP does not seem to understand the nature of his responsibilities as a teacher. He does not seem to understand that it is wrong in absolute terms for him to have entered into the communication he did. For him to try and raise a “Lolita” defence shows a complete lack of understanding of what is expected of him. He knew she was a vulnerable young girl. The video he saw shows that. If his version of events is correct he should have had nothing whatsoever to do with her when she E mailed him. He should have reported it. Instead he knowingly entered into a progressively more explicit sexualised virtual relationship for which he, and only he, is to blame. His conduct was far below that expected of a teacher and on this ground alone the Secretary of State was clearly right to place him on List 99.

25.	His conduct once discovered however raises even greater questions. The three E mails to HP set out above show a total disregard for her welfare and show a weak and desperate man. His refusal to tell the truth in successive interviews with the police and school disciplinary meetings, until confronted with irrefutable evidence, shows a man lacking any moral compass prepared to lie repeatedly to save and protect his position. The letters written at the point of his resignation blaming everybody for the situation he was in, show a man unable to accept personal responsibility. His submissions to us at the hearing show a man incapable of insight.

26.	We have no hesitation in refusing this appeal. The Secretary of State was plainly right to place him on List 99. We consider that his behaviour towards HP and his subsequent minimalisation, deceit and lack of personal integrity do not give us confidence that there is no risk to children in the future with whom he may come into contact.

Ian Robertson
Tribunal Judge, Care Standards
9th June 2010