R
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE BURTON |
| Judgment Date | 29 July 2002 |
| Neutral Citation | [2002] EWHC 2007 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 29 July 2002 |
| Docket Number | CO/226/2002 |
[2002] EWHC 2007 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand,
London WC2
Mr Justice Burton
CO/226/2002
MR T BRENNAN QC (instructed by Association of Teachers and Lecturers, 7 Northumberland Street, London, WC2N 5RD) appeared on behalf of the claimant
MR C SHELDON (instructed by Waltham Forest Borough Council, Town Hall, Forest Road, London, E17 4JA) appeared on behalf of the defendant
This is the hearing of an application for judicial review by a Mr C, a well-established teacher, against the London Borough of Waltham Forest, pursuant to permission granted on paper.
The learned deputy judge, HHJ Wilkie, when he granted permission on paper, concluded that there was an arguable case on the substance and that arguably it was not out of time. Mr Sheldon, for the defendant, has sought to reopen the position as to whether the application was out of time before me today. Mr Brennan QC has submitted, in reliance on R v Criminal Injuries Compensation Board ex parte A [1999] 2 AC 330, that it is not open to the defendant to take a point on delay once permission has been granted. Mr Sheldon submits that the decision of the House of Lords in ex parte A has been overtaken by the provisions of the CPR in that they are now materially different from the old provisions of the RSC which were then in force. I do not feel it necessary to resolve that interesting question in this case because, strictly speaking, the claimant is not out of time in this case in the sense that he made the application three months after discovering what had occurred in this case, at any rate in broad outline, because a letter was sent to him of 15th October 2001, and that itself is complained of by Mr Brennan QC as being insufficient, but it was the first inkling he had as to the circumstances which are now complained of, and the application was issued three months thereafter on 15th January 2002.
Of course, it is the duty of a claimant to bring matters on quickly even within the three month deadline, but in this case Mr Brennan QC submits that the answer of 15th October was so inadequate that it was appropriate for them to probe it further, and, in any event, he relies upon the sending of a very detailed letter of 17th December 2001 by those advising the claimant, indicating that under the rules they were required to apply for judicial review by 15th January 2002 at the latest, and so requesting requested urgent consideration. That was sent to the Director of Education at the defendants with a copy to Miss Cochrane, the Head of Human Resources, and there was, surprisingly, no reply at all to that letter.
In those circumstances, in the absence of a reply which had asked for a number of important clarifications, the proceedings were issued. I am satisfied that the proceedings were not out of time, and that any delay is justifiable not least because no prejudice to good administration has been sought to be argued by Mr Sheldon. Consequently, I do not find the delay any bar in this case, or indeed to be a factor in the exercise of my discretion or judgment.
Equally, there could be said to be complaint, which Mr Brennan QC has not in the event made, about the lateness of the response by the defendants. Detailed grounds of response upon which they have sought to rely have only very recently been served, and most recently produced has been a witness statement from a Mr Daniels, who made the alleged decision on some unexplained date at the end of May of last year. Mr Brennan QC took no objection to the very late service of the witness statement of 26th July, which consequently I have read, and the basis upon which he has not objected is one which I sympathise with, namely that in fact it adds nothing, although, in my judgment, it should have added something, to the pool of human knowledge.
Setting aside therefore any complaints on either side as to delay, I turn to the merits.
The short history of the position is as follows. C was a teacher at a school operated by the defendant between 1993 and 1997. He was at that stage going out with Mrs E. Mrs E had, at that stage, three children: “P”, a boy, who was in 1997 coming up to 12; a girl, “S”; and a young son, “G”, who was at that stage 6 or so. It appears that C and Mrs E had not yet, as they subsequently did, started to live together and become partners, but C had developed a close relationship with her and her family. At a date in 1997, when P needed some treatment to his penis, it appears that Mrs E was reluctant to apply ointment and asked C to do so, and on one admitted occasion C did so at school, where he was a teacher and P was a pupil.
In September of that year C moved to another school in the area but not run by the defendants. The following year, at the instance of S, the sister, who, it is alleged, was jealous of C, who had then moved in with her mother, allegations were made against C in respect of P, which included the complaint in relation to the application of the ointment to which I have referred. Very shortly after the complaint, in August 1998, the police investigation concluded with no charges brought against C, although P at any rate was initially placed on the Child Protection Register.
In late 1999 C and Mrs E were living together with the young child, G, in respect of whom no allegations of any kind have ever been made against C, and P had moved out to live with one of his brothers, as indeed had S.
On 7th August 2000 a Child Protection Conference was held in respect of G. It appears that social services were concerned, not that there was anything wrong with G, who was apparently in good health and in good spirits, but because of the fact that C was living with his mother and with G in the light of the allegations that had been made some years before and the one admitted incident. At the Child Protection Conference a decision was taken not to put G on the Child Protection Register. The police were at the meeting and agreed with the decision.
The minutes of the meeting are not entirely accurate, regrettably. There are a number of occasions in which there is a muddle between P and G. Indeed, the recommendation at one stage was as to whether P's name should be placed on the Child Protection Register when it plainly meant G. One area of concern to me is that in the summary of facts there was a reference to a previous allegation made against C as to his applying cream inappropriately to G's penis, and that of course was completely inaccurate, it should have been a reference to P, but anyone looking at that report subsequently might have been forgiven for being under the wrong impression.
There was a police officer present at the meeting, a PC Burke from the Child Protection Team. Mr Burke's position, on behalf of the police, was that he had done all the necessary checks on C and that he did not consider that there was any evidence to suggest that C had acted inappropriately, and although there could be the likelihood of G being abused in the future, registration was not necessary.
In September 2000 C left the school in which he had been working for two years out of the defendants’ system, and rejoined the defendants’ system, within whose employment he thus recommenced as a teacher in a junior school. No suggestion was made by the defendant in any way that he should not be re-employed or indeed retained thereafter in their employment.
On 22nd September 2000, in the meanwhile, a letter was sent to social services child protection by a detective inspector on behalf of the Child Protection Team. That letter, which of course was not seen by C, or at that stage by the defendants, his employers, was critical of the Child Protection Conference on 7th August 2000, which, as I have indicated, was attended by one of the police Child Protection Team, PC Burke, to whom I have referred, but not it seems by the inspector in question. The letter commences:
“It has just come to my attention that a Child Protection Conference was held regarding this subject [that is G] on 7th August 2000 at Gainsford Road.”
It refers to PC Burke's's[^!-~] presence at the conference and says:
“Though I believe he agreed with the decision not to register … I am convinced that the full gravity of the concerns about [C] were not explained to the Conference.”
Then there is set out in that letter a series of extremely strong, if not inflammatory, views of that inspector about C. Although there had been no investigation, indeed the matter was closed, as I have indicated, by the police in August 1998, the inspector set out his view that there was clear evidence of a number of matters. Those matters include an assertion that the cream was applied on numerous occasions and of a number of other incidents, all of which had never been proved, and indeed were firmly denied by C, involving contact of an improper kind between C and P, all of them, it seems, emanating from the complaint of P's sister, S. The officer added that he thought that in terms of intellectual ability and socio economic background the relationship between Mrs E and C was, he understood, incongruous. The letter read as follows:
“There are many other concerns I have. In short, it is my absolute conviction that [C] is a clever manipulative UNCONVICTED [in capital letters and underlined] paedophile. On the balance of probabilities, he has sexually abused [P] in the past, and with the connivance of the mother … he now has the opportunity to do the same to [G].
I have six years experience of leading a Police Child...
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