R Patrick Wood v Secretary of State for Education
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr. Justice Singh |
| Judgment Date | 09 December 2011 |
| Neutral Citation | [2011] EWHC 3256 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/110/2010 |
| Date | 09 December 2011 |
[2011] EWHC 3256 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr. Justice Singh
Case No: CO/110/2010
Heather Williams QC (instructed by Matthew Gold & Co) for the Claimant
Martin Chamberlain (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 16th & 17th November 2011
Introduction
In this claim for judicial review the claimant challenges the decision of the Secretary of State dated 6 October 2009, taken under section 142 of the Education Act 2002, to bar him from working with children. As the claimant has spent his entire professional life as a teacher, this has obvious and serious consequences for him, including an impact on his reputation as well as on his employment prospects.
In essence the claimant's complaint is that his case was investigated by the department for which the Secretary of State is responsible 1 between 2003 and 2005 but at that stage it was decided that no action would be taken to bar him. In particular he was sent a letter dated 15 April 2005 which, he submits, made it clear that no further action would be taken against him in the absence of further misconduct coming to the department's attention. It is common ground between the parties that there is no evidence or allegation of any misconduct since that time. In those circumstances, the claimant submits, the decision to bar him in October 2009 is unlawful on a number of grounds. His main ground is that the decision was an abuse of power because it was taken in breach of a substantive legitimate expectation. He also contends that it breached his rights under the Human Rights Act 1998 ( HRA), in particular the right to a fair hearing in article 6 and the right to respect for private life in article 8.
It should be noted that the claimant has exercised his right of appeal against the Secretary of State's decision. By a consent order dated 14 May 2010 that appeal is currently stayed before the Care Standards Chamber of the First-tier Tribunal. Although the Secretary of State has reserved his position in relation to whether that appeal was lodged in time, there is no dispute that in principle the Tribunal does have jurisdiction to hear appeals in cases of this kind. This is something to which I shall have to return later in this judgment.
Procedural matters
Permission to bring this claim was granted after an oral hearing on 13 January 2011 by David Elvin QC (sitting as a deputy High Court judge). Permission was granted to pursue all of the grounds then proposed in the Amended Grounds attached to the claim form except for ground (f). That ground alleged that the Secretary of State had acted irrationally by leaving a particular piece of evidence out of account. More recently the claimant has made it clear that he no longer wishes to pursue grounds (a) and (c). Those grounds asserted, respectively, that the Secretary of State was prevented, as a matter of law, from taking the decision under challenge on grounds of finality and that he had acted in a way which was procedurally unfair at common law. However, the claimant now seeks permission to re-amend his grounds in so far as that may be necessary.
In the exercise of my discretion I grant the claimant permission to re-amend his grounds as proposed, including a short addition that was filed, at my request, after the hearing, which puts in writing one of the points that was advanced orally before me. In my view, the interests of justice would be served by permitting the claimant to advance all the grounds that he now wishes to, having had the opportunity to consider the evidence filed on behalf of the defendant. There has been no prejudice to the defendant, who was able to respond to all the arguments which the claimant wishes to pursue.
Counsel for the defendant did not object to all of the proposed changes in the Re-amended Grounds but submitted that the claimant should not be permitted to make arguments challenging the decision to make the barring order against him, and should be confined to challenging the earlier decision to reconsider his case with a view to making such an order.
However, the decision under challenge in the original claim form was the decision to make a barring order dated 6 October 2009. At least one of the original grounds of challenge, that based on article 8, relates to that decision in any event. Most importantly, the real thrust of the submissions for the Secretary of State was that the distinction between the decision to reconsider the claimant's case and the resulting decision to make a barring order is of crucial significance because the latter decision can be the subject of an appeal to the First-tier Tribunal. In my view, that argument is an important one which should be considered in the context of the merits of the present claim rather than at a procedural stage.
Factual background
The claimant, who is now aged 67, qualified as a teacher in 1965 and spent most of his working life as a teacher in various schools both in this country and abroad.
Between 1968 and 1991 he was a teacher at Towers School in Ashford, Kent. After a spell in China, he returned to this country in 1994 and began teaching at Sittingbourne Community College.
Early in 2000 accusations of assault and indecency were made against the claimant by two 12 year old boys at Sittingbourne College, who were referred to at the hearing of this case as T and A. The minutes of a strategy discussion meeting held on 17 February 2000 to consider the allegations record that T alleged that he had been put over the claimant's knee by him and smacked on the bottom with a hand, ruler or stick. This was alleged to have happened several times. A stated that he had witnessed it and that it had also happened to him. T also alleged that the claimant had cuddled him by pulling him into "his private parts." Additionally it was stated by T that the claimant had offered him money of £10. He admitted taking £5 on one occasion but said that he did not know why he was being offered the money.
On 8 May 2000 the claimant was administered cautions for two offences of common assault at Sittingbourne police station in connection with the above allegations. He accepted those cautions at the time although he has more recently denied that he was guilty of anything and regrets having accepted the cautions. The claimant was not cautioned in respect of any offence of indecent assault. Nor was any disciplinary action taken against him by his school, Sittingbourne College.
In November 2002 allegations of indecent assault were made against the claimant by his step-son, who was referred to at the hearing as K. These were allegations of incidents alleged to have taken place at Towers School between January 1973 and December 1975, when the claimant was a teacher there and K was a pupil. K alleged that the claimant used to take him into the school office and indecently assault him there by making him sit on his lap and that he could feel that the claimant had an erection. The claimant subsequently married K's mother and K alleged that the claimant had continued to abuse him at home by kissing him and touching him around his genital area while he was lying in bed. There was also an allegation of kissing made by K's brother, referred to at the hearing as S, dating from around the same period in the 1970s.
As a result of those allegations, the claimant was charged on 24 July 2003 with indecent assault on a boy under the age of 14, under section 15 of the Sexual Offences Act 1956. He was committed for trial at Maidstone Crown Court. The trial took place on 10 and 11 June 2004. The evidence in relation to S was ruled inadmissible on the ground that it did not meet the test for similar fact evidence. At the conclusion of the prosecution's case the trial was stayed by the judge on the ground that a fair trial was not possible because of the passage of time since the alleged events. In particular it was observed that potentially important witnesses had died in the meantime and potentially relevant documents had been in files which had by then been destroyed.
In the meantime, on 17 September 2003 the Kent Schools Personnel Service wrote to the Teacher Misconduct Section of the department, which investigated the allegations which had by then surfaced.
A memorandum within the department, which is wrongly dated 12 April 2004 but which was in fact written on 12 April 2005, records the following views:
"Turning to Mr Wood's caution in 2000 for common assault, which related to his employment at Sittingbourne College, the details are still not exactly clear, despite the police having sent us their notes. From these notes….we can establish that two 13 year old boys alleged that Mr Wood both physically and indecently assaulted them by pulling them close to him so that his genitals were touching them whilst he smacked their bottoms (all were fully clothed). However, the police are unable to say why the CPS decided to pursue assault by beating rather than indecent assault charges.
There are no witnesses to these allegations or evidence relating to the other allegations that he offered one of the boys money…, although the head teacher did write to the police casting doubt on the credibility on one of the boys concerned and his allegations against another teacher…; the head also did not want to take disciplinary action against Mr...
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