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					                                                            [2009] UKFTT 212 (HESC)
                                       MC

                                       -v-

                               Secretary of State

                                 [2007] 1193.PT
                                 [2008] 1472.PT

                                     -Before-

                                Mr. Simon Oliver
                            (Deputy Principal Judge)
                                Ms Bez Chatfield
                               Ms Linda Redford

                                    Decision


Heard on 25 and 26 of June 2009 at The Care Standards Tribunal, 18 Pocock
Street, London, SE1 0BW


Representation

The Appellant was represented by Mr J Crosfill of counsel
Ms K Olley of counsel represented the Respondent.


Appeal

   1. This is an appeal by MC against the decision of the Secretary of State of 5th
      September 2007 to prohibit him from working with children in schools or
      further education establishments under section 144(1)(a) of the Education Act
      2002 (“the Act”) and Regulation 12 of the Education (Prohibition from
      Teaching or Working with Children) Regulations 2003 (“the 2003 Education
      Regulations”).

   2. MC appealed against his listing to this tribunal on 26 th October 2007. A
      response was received from the Respondent in late 2007. There was a
      directions hearing on 22 nd January 2008 when directions were given to set
      this case down for a preliminary hearing. That took place on 2nd April 2008
      and the decision made by Mr Robertson dated 11th April 2008 is in our bundle.




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  3. On 13th June 2008, Mr Robertson gave directions time-tabling the case to a
     hearing in July 2008. That hearing did not take place and the proceedings
     were stayed so that MC could supply the Department for Children, Schools
     and Families with new information contained in his witness statement. This
     was to enable the Secretary of State to review the directions that had been
     made on 5th September baring him on the grounds of unsuitability to work with
     children. The Secretary of State considered the information and, in a letter
     dated 3rd December 2008, stated that he had decided that the direction should
     remain in force. MC appealed that decision to this tribunal on 27th February
     2009. As a result of a directions order made by His Honour Judge Pearl on
     25th March 2009 both appeals are to be heard together.


The Law

  4. Section 142(1) of the Act provides that the Secretary of State may direct that
     a person may not carry out work to which section 142 applies if one of the
     grounds set out in subsection (4) applies:

          (a) On the grounds that the person is included in the list under section 1 of
              the Protection of Children Act 1999;
          (b) On the grounds that the person is unsuitable to work with children;
          (c) On grounds relating to the person’s misconduct;
          (d) On grounds relating to the person’s health; or
          (e) On grounds relating to the person’s professional incompetence.

  5. In this case the Secretary of State decided that MC be barred from carrying
     out work on ground (b), unsuitability. Where a direction is given on grounds of
     unsuitability, section 35 of the Criminal Justice and Courts Service Act 2000
     (“the 2000 Act”) becomes relevant. This section provides that it is an offence
     for a person “disqualified from working with children” to work in a “regulated
     position”. Section 35 (4) (b) of the 2000 Act defines a “disqualified person” as
     a person “subject to a direction under section 142 of the Education Act 2002
     (prohibition from teaching etc), given on the grounds that he is unsuitable to
     work with children”. A regulated position is defined under section 36 of the
     2000 Act in terms which include under section 36 (1) (c) “a position whose
     normal duties include caring for, training, supervising or being in sole charge
     of children.”

  6. Section 144 of the Act and Regulation 12 of the 2003 Education Regulations
     provide a right of appeal against the making of a direction to the Care
     Standards Tribunal. When considering whether the direction is appropriate or
     not, Regulation 13 of the Education Regulations provides that the Tribunal
     shall not 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,
     or any evidence of a material change of circumstances of the person
     concerned occurring since the decision was given. Furthermore, subsection
     (1) of Regulation 12 of the Education Regulations sets out the right to appeal
     against a direction. Subsection (2) prohibits an Appellant from basing his


                                                                                      2
   appeal on evidence that has not previously been brought to the attention of
   the Secretary of State.

7. Regulation 9 provides for a review by the Secretary of State. Regulation 9 (1)
   states that a direction made under section 142 of the 2002 Act may be
   revoked or varied by a subsequent direction on the grounds that either the
   Secretary of State is in possession of information or evidence to the decision
   to give the earlier direction which he did not have at the time that decision was
   made or the Secretary of State is in possession of evidence of a material
   change of circumstances of the person concerned occurring since the earlier
   direction was given. There is, however, a caveat to that. Regulation 9(1)(b)
   states that there cannot be a revocation or variation of the earlier direction
   where the first direction was given on the grounds that a person is unsuitable
   to work with children and the person claims he is no longer unsuitable to wor k
   with children. In this case, MC was the subject of a direction on the grounds
   that he was unsuitable to work with children and so cannot rely on Regulation
   9(1)(b)

8. The cumulative effects of the barring on the grounds of unsuitability under
   section 142(1)(b) and section 35 of the 2000 Act is that a barring order made
   on the grounds of unsuitability carries with it greater restrictions than an order
   made on other grounds. It also has the effect that is not open to an appellant
   to present evidence to the effect that whatever their circumstances were at
   the time of the decision, the present circumstances mean that the person is
   no longer unsuitable to work with children. If the tribunal upholds the order in
   the terms made by the Secretary of State the only recourse open to MC is for
   him to apply to the tribunal for a review of the order. By reason or Regulation
   10 and 11(4)(a) such an application may only be brought 10 years after the
   original order was made.

9. Regulation 13(1) provides that where the tribunal is considering an appeal
   under Regulation 12 and it considers that the direction is not appropriate it
   may order the Secretary of State to revoke or vary the direction. This means
   that the tribunal must decide whether it was “appropriate” for the Secretary of
   State to have given the direction. This has been considered in a number of
   cases before the tribunal. In particular, in FH v Secretary of State for
   Education and Skills [2005] 0552.PT the tribunal said that the test to be
   applied was “…whether the Secretary of State had sufficient evidence upon
   which to base a determination that the specified ground relied up on existed
   and…whether the direction was an appropriate or proportionate response in
   all of the circumstances known to the Secretary of State.”

10. That decision of the tribunal was approved in the High Court in the case of
    The Secretary of State for Children, Schools and Families v JN [2008] EWHC
    1199 (Admin).

11. Regulation 13(2) makes it clear that the information which was not before the
    Secretary of State at the time the decision was made is inadmissible before
    the tribunal and we are specifically prevented from considering any new
    material. The process for reviewing the new material is set out in Regulation 9

                                                                                   3
      and this route has been pursued by MC. In Secretary of State for Children,
      Schools and Families v Philliskirk [2008] EWHC 2838 (Admin), Mr Justice
      Collins held at paragraph 19 that “…the tribunal… looks at the material that
      was before the Secretary of State and it decides, on that material, whether in
      its judgement the relevant prohibition of relevant sanction was or was not one
      which ought to have been, in its view, imposed…that judgment must be
      exercised upon and only upon the material that was before the Secretary of
      State…”


The Background

   12. The appellant, MC, was born on 16th November 1972 and was a volunteer
      helper at WH Primary School. In this role, he was responsible for a number of
      activities including running a chess club, assisting with ICT in school and
      hearing children read. His services were terminated in May 2006 after a
      complaint that he had behaved inappropriately, in an over-familiar manner
      with an 11-year old girl. This behaviour included writing the girl a letter of an
      inappropriate nature, inviting her out and suggesting ways that they could get
      together, telling her that he loved her, taking photographs of her, sending her
      a “lonely hearts” style advertisement and giving her a certificate stating that
      she was the most wonderful person in the world. These incidents were
      investigated by the police but the appellant was not prosecuted as his
      behaviour did not meet the criteria for sexual grooming. He was referred to
      the Secretary of State by the Local Authority on 18th July 2006.

   13. On 8th December 2006 the respondent wrote to the appellant informing him
       that the Secretary of State was considering whether to give a direction under
       section 142 of the 2002 Act and inviting representations in response. The
       appellant responded by letters dated 15th December 2006, 2 nd January 2007
       and 29th January 2007. In addition, representations were attached to the letter
       of 29th January 2007. We have seen those letters and representations.

   14. At the request of the respondent, MC also attended an appointment with Dr
       Judith Earnshaw, Senior Clinical Therapist at the Lucy Faithful Foundation on
       19th and 20th April 2007. Dr Earnshaw produced a report dated 26 th April
       2007.


Particulars of misconduct

   15. The Secretary of State’s decision was set out in the decision letter of 5th
       September 2007 and was made following the recommendation of Cynthia
       Tighe and consideration via the independent panel chaired by Sir Roger
       Singleton. There were 6 particulars of conduct alleged. They are as follows:-
          1) The appellant wrote to the girl saying she was his favourite person in
              the world and that he wanted to spend more time with her. He also
              stated that though she liked him too and that she was waiting for him
              to make the first move. He said that he would be happy to do this but
              was not allowed. He also made suggestions that they could go

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           shopping or bake a cake together providing that the girl was able to
           get permission from her parents.
      2)   The appellant told the girl that he loved her, the girl noticed that the
           appellant had the word “September” written on his hand which was his
           computer password. When the girl asked MC why September was his
           computer password, he wrote on his hand “loved you since
           September” the appellant also allegedly told the girl “I think you are
           wonderful and I would like to know what you are like on the inside”.
      3)   The appellant inappropriately gave the girl a certificate which he had
           composed and designed himself which said something like “This
           certifies that there is no one more wonderful in the whole world than…”
      4)   The appellant gave the girl chocolate gifts. The appellant would give
           out chocolates to pupils at the end of term and the girl received more
           chocolates than other pupils.
      5)   MC composed a “lonely hearts” style advertisement for himself and
           gave it to the girl. In the advertisement, he described the type of
           person he was looking to date. The person he described had many of
           the girl’s characteristics.
      6)   The appellant kept photographs of the girl, which were found by the
           police, on his computer . They were close-up portrait shots.

16. The incidents were investigated by the police and when interviewed, MC
    admitted that he had informed the girl that he loved her, that he had become
    friends with her and that he had given her the password to his computer,
    accepted that the child had a crush on him, that he had behaved
    inappropriately and that he should not have attempted to relate to the child in
    a manner in which he did. In his representations submitted with the letter of
    29th January 2007 MC claimed that the girl had developed an unusually
    strong and lengthy crush on him which he was unable to handle due to his
    illness.

17. It is important now to deal in some detail with the illness suffered by MC.
    Soon after graduating from university in 1994, MC began suffering with
    extreme fatigue. All of the test results were negative and so, by deduction, he
    was diagnosed with Chronic Fatigue Syndrome. He informed us that the
    symptoms have been so severe that he has not been able to plan a career
    path and has been unable to work full-time since then. In February 2008, he
    was diagnosed with a condition, Acromegaly. This has been caused by a one
    centimetre tumour growing on his pituitary gland. The condition causes the
    sufferer to produce too much growth hormone. Various symptoms develop
    slowly over the years including an increase in the size of the hands and feet.
    In his statement prepared for this appeal dated 17th August 2008 MC sets out
    a number of symptoms, many of which he has had. The condition is treated
    by an operation. MC had his operation in October 2008 and has already
    benefited. He says in this statement dated 13 th May 2009 that there has been
    an immediate lessening of his disabling symptoms and can now anticipate a
    full recovery.

18. We heard evidence in this case from Elizabeth Brass and MC. We also read
    and took into consideration the report from Dr Earnshaw dated the 24 th of

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   April 2007. Ms Brass took us through the details of the allegations of the
   inappropriate behaviour. Ms Brass also discussed Dr Earnshaw’s report and
   her conclusions. Ms Brass explained to us that the concerns that had been
   raised by the police meant that the department needed an expert opinion
   which is why Dr Earnshaw was asked to undertake the report. She said that
   she thought this was not a “cut and dried” case because, although there were
   some elements of remorse and understanding shown in MC’s witness
   statement, he did not appear to be accepting responsibility and was still partly
   blaming the child.

19. Ms Brass accepted that there is no evidence that MC had a sexual interest in
    children and she agreed that just because MC had formed an inappropriate
    relationship with this child it did not mean (and there was no evidence to
    suggest) that there was a relationship with anyone else. She also accepted
    that MC had worked in the school for about 6 or 7 years before this behaviour
    occurred. In explaining to us why the decision was made to bar MC she said
    that if someone was unsuitable they had to be barred and there was not a
    possibility of being “a little bit” unsuitable. Whilst it was possible to impose
    conditions on someone who was found to be unsuitable the Secretary of
    State does not do that, taking the view that unsuitability should mean an
    outright bar.

20. Ms Brass also accepted that MC had acknowledged that his behaviour was
    inappropriate and, therefore, had insight and that as far as she was aware he
    had been honest throughout. In discussing why the decision had been made
    not to remove MC’s name from the list, Ms Brass explained that the
    department would have expected something clearer, more personalised than
    what had been received. She had expected something that conveyed more
    definitely that he appreciated that he had done wrong, would not do it again
    and appreciated the effect on the child.

21. In giving his evidence, MC explained to us the practical effects of his illness.
    He told us that he felt ashamed of what had occurred and that it was obvious
    to him what he had done was wrong from the first day and child’s reaction.
    He said that when he’d sent his information to the Secretary of State he felt
    that it would be obvious to a reasonable person that he knew what the effect
    of his behaviour would have been on the child.

22. He accepted that his behaviour was not only ill-advised but inappropriate and
    that sending and creating these documents was totally inappropriate, ill-
    judged and the wrong thing to do. He accepted that anyone knowing about
    these things would become extremely worried and that as a matter of
    common sense what he did was inappropriate.

23. In addition to the witnesses giving evidence, as indicated above we had the
    benefit of reading the report from Dr Earnshaw. Her detailed report sets out
    not only MC’s attitude to the assessment, his accounts of the concerns that
    had been raised but also any relevant sexual and relationship history. Her
    risk assessment states, at paragraph 64, that MC “…accepts that he did form
    an inappropriate romantic attachment to the girl, that he wrote the letter and

                                                                                  6
   advertisement, and that he behaved in an ill-advised way which may well
   have been alarming and harmful to her. He denies that he had any intention
   of engaging in any sexual activity whatever with her”.

24. In paragraph 66 of her report Dr Earnshaw said that it was her view that MC
    was so emotionally and sexually immature that he probably really had not
    formulated any plans to abuse the child. She continued that he “…does
    demonstrate some risk predictors including emotional congruence with
    children, emotional loneliness and difficulty in forming adult relationships.” Dr
    Earnshaw reported that MC is very ashamed of his behaviour and concerned
    about it. He appears very eager to learn from his mistakes she said. She
    stated at paragraph 67 that “until he has matured and shown that he has the
    capacity to develop adult friendships and partnerships that meet his
    emotional and sexual needs… [she]…cannot feel certain that he would not
    present some risk to children, even if this were only of further inappropriate
    attachments. She concluded in paragraph 68 that she believed that “…the
    safest course is for MC to be barred from work with children on grounds of
    unsuitability but this is a case that I believe should be reviewed with
    sympathy if he is able to meet the criteria described above.”


Findings and Conclusions

25. This appeal is somewhat unusual in that since MC accepts that his behaviour
    was entirely inappropriate the tribunal does not have to make findings as to
    whether the particulars relied upon by the Secretary of State are proved or
    not. The basis of the appeal is that the Secretary of State was wrong to bar
    MC on the grounds that he was “unsuitable”. Mr Crossfill submits to us that
    on an appeal the tribunal is not limited to simply revoking or upholding the
    order but has the power (by regulation 13 (1)) to vary the order. He submits
    that the tribunal has the power to make any order that the Secretary of State
    could have made and that could include the imposition of conditions. Mr
    Crossfill continues by saying that given Dr Earnshaw’s concluding comments
    as set out in paragraph 68 an outright life-long barring order may not be
    appropriate. He suggests that the tribunal has the power to either impose a
    condition (such as training or counselling or the satisfaction or a medical
    requirement); imposing a barring order of a limited duration or provide that
    MC could not take up prohibited employment without the permission of the
    department.

26. Miss Olley contends that the concern in this case relates to the clear inability
    of MC to maintain the necessary professional boundaries when working with
    children or young people. She says that MC did not put forward to the
    Secretary of State sufficient evidence to indicate that he had done what was
    necessary to try to meet Dr Earnshaw’s concerns and therefore it was entirely
    appropriate not to revoke the direction of 3rd December 2008. Miss Olley also
    stresses that regulation 13 cannot be read to provide the tribunal with the
    ability to make conditions nor does the Secretary of State (and thus the
    tribunal) have the power to make a time-limited order. She says regulation 11
    specifies a 10 year time limit without variation.

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27. In considering what to do we bear in mind that section 142(4) sets out the five
    grounds upon which the Secretary of State can direct someone not to carry
    out work. In reading them, we believe the only two that could be possibly
    appropriate for us to consider are (b) unsuitability and (c) misconduct. In
    relation to those points Miss Olley submitted to us that unsuitability should be
    given a wide definition. She says that there is no test that should be created
    on the hoof and that in considering misconduct she submits that it usually
    relates to acquisitive offences and is, therefore, addressing a different
    concern.

28. Mr Crossfill submits to us that a listing on grounds of unsuitability is a
    draconian measure with different consequences from any other of the five
    grounds in section 142(4). He says, for example, that MC was originally put
    on the Protection of Children Act list rather than simply barred under section
    142. If that had been the case he would have had the ability, says Mr Crosfill,
    to apply for a revocation of the bar before ten years have elapsed. The same
    applies in relation to misconduct but not in relation to a person’s suitability.
    There is an absolute minimum of ten years before which any application can
    be made by a person barred on the basis of unsuitability. Indeed, Mr Crossfill
    also makes the point that had the section 142 listing been as a consequence
    of being placed on the Protection of Children Act list the main appeal would
    have been against the POCA listing and the tribunal would have been able to
    look at matters as at the date of the hearing rather than limit it to what was
    before the Secretary of State at the time the decision was made.

29. Mr Crossfill argues that to give full effect to the final sentence of Dr
    Earnshaw’s report it is necessary not to bar MC on grounds of unsuitability
    because in doing so the ability to review the case (whether with sympathy or
    not) is simply unavailable.

30. Before dealing with the submissions in detail, we should make it clear that we
    see some link between MC’s illness and the behaviour he has accepted. We
    believe that it did have some impact on his level of emotional maturity and his
    ability to cope with stress as well as his social isolation from his peers – all of
    which we see as relevant factors in the development of an inappropriate
    relationship with the girl. We understand that the illness must have been
    debilitating and that has affected him over a number of years. However, we
    do not believe that his illness itself caused him to act inappropriately but
    rather that one of the consequences of his illness was his lack of emotional
    maturity. Whilst it might not be the cause of his behaviour it is possible that
    his operation may mean that he is less likely to repeat that behaviour.

31. We fully appreciate and understand that “unsuitability” carries with it the
    prohibition from reviewing the case for ten years. We note that, in fact, the
    Secretary of State did consider MC’s application to vary the order even
    though the legislation would suggest it was not permissible. We are
    considering an appeal against the refusal to lift the bar, even if there was no
    legal basis on which to lift that barring order.


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32. We have been unable to find any case or statutory provision that establishes
    the distinction between what is “misconduct” and what is “unsuitability”. Whilst
    Miss Olley submits that misconduct tends to be used for acquisitive offences
    it is fair to say that in the reported decisions of the tribunal are divided
    between barring for misconduct and unsuitability. In some cases
    professionals and teachers have been barred under section 142 for acts of
    misconduct where the facts would appear to be of a similar or more serious
    nature. For example, in the May 2009 edition of the Digest of Cases (Series
    Four, July 2008 – March 2009) there are two cases of relevance. Trevor
    Brazier v Secretary of State [2007] 1085.PT concerned a teacher who
    engaged in an inappropriate relationship with a 17 year old female boarder in
    a school. He was barred on grounds of misconduct. By contrast, in MG v
    Secretary of State [2007] 1170.PT the appellant (a volunteer) engaged in an
    intimate discussion with and hugged a 14 year old girl. He was barred on
    grounds of unsuitability.

33. The lack of guidance or definition as to the threshold between misconduct
    and unsuitability means that we need to apply common sense. In this case
    we believe that the only reason the Secretary of State placed MC on the
    section 142 list on grounds of unsuitability was because Dr Earnshaw used
    that word in the last paragraph of her report. We do not have in the papers
    we have read a copy of the letter of instruction from the Treasury Solicitors to
    Dr Earnshaw so we are unclear whether she was asked to address issues of
    unsuitability/misconduct or whether she was only directed towards
    unsuitability. Indeed it may be that she was given no guidance on what
    ground should be applied.

34. We are alert to the fact that in her report Dr Earnshaw envisages that there
    should be a review of MC’s barring if he is able to meet the criteria she has
    set out in her risk assessment. She says that there should be a sympathetic
    review of his being barred. This suggests to us that Dr Earnshaw was either
    unaware of the inability to review the case for ten years because of the
    unsuitability listing or that she had taken the view and come to the conclusion
    that whilst MC might be unsuitable, he may well be able to come off the list if
    he can show progress.

35. Whilst we do not disagree with Ms Brass that the totality of the evidence
    presented to the Secretary of State was sufficient to support a decision that a
    specified ground in section 142(4) existed, and we agree that the respondent
    was justified in issuing a direction, we are concerned that perhaps insufficient
    attention was paid to the nature of the listing. This became apparent during
    the course of the hearing where Ms Brass indicated to us that the officers
    acting on behalf on the Secretary of State would consider a review of a listing
    in an unsuitability case although that was contrary to the legislative
    framework. It may be, therefore, that the Secretary of State’s officials were
    unaware that the effect of listing for unsuitability rather than misconduct was
    very different.

36. If, as it appears, the Secretary of State believed a review was possible before
    ten years if there was an unsuitability listing there would be, on the face of it,

                                                                                    9
   little or no distinction between unsuitability or misconduct. However, clearly
   Parliament in providing the two grounds and strengthening the listing on
   grounds of unsuitability by section 35 of the Criminal Justice and Courts
   Services Act 2000 believed that there needed to be a distinction between the
   two. It is, of course, unfortunate that this distinction is not made clear within
   the 2002 Education Act or any regulations or Guidance. Dr Earnshaw in her
   report may not have been aware that by using the word “unsuitability” she
   was using a technical word which had legal consequences.

37. In considering this matter, we do not for one moment think that MC should be
    removed from the list. We believe that he still has considerable work to
    undertake if he is to fulfil the conditions set out by Dr Earnshaw. We are fully
    aware that the provisions of sections 142 are designed to protect children and
    prevent inappropriate people working with them.

38. We bear in mind that an unsuitability listing means (by virtue of section 35 of
    the 2000 Act) that a person is not able to work anywhere with children
    whereas a misconduct listing is limited only to a school environment.

39. We note that in relation to MC’s role within the school we did not hear any
    evidence that there was any training session in child protection for volunteers
    working within the school environment, no induction training into appropriate
    ways of conducting oneself as an adult in a school context and that the
    school did not seem to worry about a volunteer having unsupervised contact
    with a child whether that person had been CRB checked or not.

40. We have no evidence before us that MC has yet dealt appropriately with
    matters identified by Dr Earnshaw. We believe that he still has a long way to
    go. We believe that he has relied to a large extent on his illness and whilst we
    are satisfied, as indicated above, that this was relevant to his behaviour to
    some extent it is not the whole reason for it. We believe that MC still needs to
    resolve matters at an emotional level and we note that Dr Earnshaw did see
    that there was the possibility for change in time.

41. In deciding what to do we have come to the conclusion that it would be
    inappropriate to impose conditions as urged on us by Mr Crossfill because in
    terms of unsuitability this would be meaningless. To apply conditions or
    restrictions that gave criteria for removal from the list would be raising false
    hopes because it is clear that an unsuitability listing means nothing can be
    done for ten years. We also accept that we are unable to impose a barring
    order of limited duration as urged upon us by Mr Crossfill but because once
    again the legislation prevents it. Likewise, we do not believe that we have the
    power to make a condition that MC be prevented from taking up employment
    without the permission of the department.

42. It seems to us the question we have to resolve is whether or not MC should
    have been placed on the list by reason of unsuitability or misconduct. We
    remind ourselves of the view expressed by Mr Justice Collins in SSCSF v
    Philliskirk where he said in paragraph 19 that the tribunal has to exercise its
    own independent judgement and that it looks at the material that was before

                                                                                 10
   the Secretary of State and decides, on the material, whether in its judgment
   “the relevant prohibition or relevant sanction was or was not one which ought
   to have been in its view imposed…”

43. Bearing that in mind, we have already indicated above that we accept that
    MC should be placed on the list. We take into account the conclusions
    reached by Dr Earnshaw and the clear indication she gives that whilst MC is
    barred at present his case should be reviewed with sympathy were he to
    meet the criteria she has set out in her report. We believe that, in the
    circumstances, whilst the Secretary of State was right to bar MC it was wrong
    to bar him on grounds of unsuitability. We believe that had the Secretary of
    State been fully aware of the consequences of an unsuitability barring and
    the consequences of section 35 of the Criminal Justice and Courts Services
    Act 2000 he might not have come to the same decision. The fact that Ms
    Brass in giving her evidence was unaware that the review process was
    unavailable for an unsuitability listing only underlines to us the fact that
    hitherto the Secretary of State might have treated unsuitability and
    misconduct in the same way. That is clearly not what was intended or
    provided for.

44. In considering this appeal and evidence that the Secretary of State had
    before him, therefore, we have come to the conclusion that it is entirely
    appropriate for MC to be barred under section 142 but we would substitute a
    barring under section 142(4)(b) for a bar under section 142(4)(c). To put it
    into English we believe that MC should be barred on grounds of misconduct
    rather than unsuitability. We believe that had the Secretary of State been
    aware of the distinction between the two and had wished to put into effect the
    recommendations made by Dr Earnshaw he would have reached the
    conclusion that a misconduct listing would have been more appropriate in the
    circumstances.

45. We stress that it does not follow that in every case an individual should be
    listed on grounds of misconduct rather than unsuitability. The reason why it is
    appropriate here to make the distinction and change the listing is because it
    is clear from Dr Earnshaw’s report that MC has the ability to change and that
    he should have a sympathetic review if he was to meet the criteria described.
    There are many cases that come before the tribunal when a recommendation
    of that nature is not made and therefore in those circumstances it may be
    appropriate for a listing of unsuitability to be retained. As with every case
    before this tribunal, the outcome depends on the individual circumstances of
    a case.

46. We emphasise that by taking this course of action we are not saying that MC
    should work with children at the moment. Not only does he have to fulfil the
    conditions set out by Dr Earnshaw in her report but we believe that when the
    time comes (if ever) there will need to be consideration given to mentoring,
    observation and supervision. It can only be right that if the Secretary of Stat e
    is asked to review his decision in the future he should be satisfied that Dr
    Earnshaw’s conditions have been met before any consideration is given to
    removal of MC’s name from the list.

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Accordingly, our decision is:

APPEAL AGAINST THE LISTING ALLOWED TO THE EXTENT THAT THE
APELLANT’S LISTING ON THE GROUNDS OF SECTION 142(4)(b) IS
REPLACED WITH A LISTING UNDER SECTION 142(4)(c).

APPEAL AGINST THE REFUSAL TO REVIEW THE LISTING DISMISSED.




Mr. Simon Oliver
(Deputy Principal Judge)
Ms Bez Chatfield
Ms Linda Redford

Date: 28th August 2009




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