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Hudson v Secretary of State for Education and Skills [2002] EWCST 10(PC) (15 August 2002 )
Appeal No: 2002.10
Appeal By: Keith Stuart Hudson
Respondent: Secretary of State for Education
and Skills
Hearing Date: 1st July 2002
Mr Laurence Bennett (Chairman)
Ms Michele Alfred
Ms Christa Wiggin
DECISION
Appeal
Mr Hudson appeals under Regulation 13(1)(a) of
the Education (Restriction of Employment) Regulations 2000 against
a direction by the Secretary of State for Education and Employment
dated 24th August 2001 prohibiting or restricting his relevant employment.
Preliminary application and order
Mr Hudson applied under Regulations 18(1) and 19(1)
of the Protection of Children and Vulnerable Adults and Care Standards
Tribunal Regulations 2002:
a. A restricted reporting order
b. An order that the Press and members of the
public be excluded from the hearing.
Mr Hudson stated that the Secretary of State's
evidence included a confidential medical report and that an application
to the Criminal Cases Review Board may be prejudiced by publicity
given to his appeal.
Mr Martin Chamberlain, Counsel for the Secretary
of State made no objection to the applications.
We noted that the Secretary of State's documentary
submissions included medical evidence which would normally be confidential
to the patient, Mr Hudson. We accepted it would be inappropriate
for this confidentiality to be compromised any more than necessary
for the purpose of the proceedings and concluded that there should
be an order restricting reporting until the close of the hearing
and that the press and public be excluded. We further concluded
that the restricted reporting order should continue thereafter in
relation to the medical information. We did not accept that reports
of this appeal could improperly affect the outcome of an application
to the Criminal Cases Review Board and that there was a basis for
a wider order.
The Tribunal's order is that:
a. The Press and public are excluded from the
hearing.
b. Reporting of the contents of the proceedings
is prohibited until the close of the hearing and thereafter in respect
of medical information given in the appeal identifying or relating
to Mr Hudson.
Facts
- Mr Hudson qualified as a teacher in 1973 and taught Science
and IT in various schools until May 1996. He is now a self-employed
private tutor.
- In February 1996 Mr Hudson was arrested and interviewed in connection
with offences relating to magazines and other materials found
in his possession. He was convicted of five offences under Section
42 of the Customs Consolidated Act 1867 relating to the import
of magazines of an indecent and obscene nature He was fined £150
on each conviction and ordered to pay costs totalling £1,000.
- On 24th August 2001 the Secretary of State made a
direction under Regulation 5(2)(b) of the Education (Restriction
of Employment) Regulations 2000 (SI 2000/2419). Mr Hudson was
notified that "the Secretary of State has made a direction which
proves that you may only be appointed or employed:-
a. by a local education authority, as a teacher
(whether or not at a school or further education institution)
with children and young persons, in an establishment which does
not admit male pupils;
b. by any other body, as a teacher at a school
or further education institution, which does not admit male pupils;
c. by the governing body of a school or a
further education institution which does not admit male pupils,
as a teacher or as a worker with children or young persons;
d. by the proprietor of an independent school
or at an independent school which does not admit male pupils,
as a teacher or as a worker with children or young persons.
The effect of this direction is that you may
not be appointed or employed:
a. by a local education authority, as a teacher
(whether or not at a school or further education institution)
with children and young persons, in an establishment which admits
male pupils;
b. by any other body, as a teacher at a school
or further education institution, which admits male pupils;
c. by the governing body of a school or a
further education institution which admits male pupils, as a teacher
or as a worker with children or young persons;
d. by the proprietor of an independent school
or at an independent school which admits male pupils, as a teacher
or as a worker with children or young persons.
The expression 'worker with children or young
persons' means a person, other than a teacher, whose work involves
regular contact with persons under 19 years of age.
Your name, Departmental reference number and
date of birth will be included in the list of persons, determined
by the Secretary of State to be unsuitable for relevant employment
(List 99). Local Education Authorities and other bodies concerned
with the employment of teachers or childcare workers can make
checks to find out whether a person applying to work with children
is on the List."
- On 21st November 2001, Mr Hudson gave Notice of Appeal
to the Tribunal. His grounds of appeal refer to his enquiries
of the Department of Education and Skills (DfES) asking for details
of their specific concerns. He stated that "My interest in the
physical development of children is purely academic and has never
involved any risk to children." He made comment on an interview
with the DfES in the presence of Dr Diane Ernaelsteen, who was
at the time Consultant Medical Advisor to the DfES. He stated
that relevant weight has not been given to his good teaching record
and to letters, testimonials and references from parents appreciating
work he has done with their children. He also stated that Dr Ernaelsteen
and Ms Elizabeth Anne Hunter, a Casework Manager with the DfES
Teachers Misconduct Team should have visited him at work and home
so that they would gain a "realistic and positive picture of the
way that I work with children and thus be able to appreciate that
I do not pose any kind of risk to children." He suggested that
account should be taken of expert evidence of the specialist officers
of Sussex Police, particularly D I West who have visited home
and work.
- Ms Hunter explained to the Tribunal how the decision to impose
restrictions on Mr Hudson's employment had been made. She said
that it was considered that his conviction was relevant misconduct.
In the case of misconduct involving indecent material teachers
are usually prohibited from employment at schools. The Secretary
of State seeks to ascertain whether there is a reasonable mitigating
factor for the misconduct and for some reassurance that the conduct
will not recur. The Secretary of State requires evidence that
the risks have been assessed and understood by the individual
and appropriate steps taken by him.
- Ms Hunter stated that the magazines were collections of photographs
of children, mainly of boys aged seven to eighteen. Although she
has not seen the material, the information she has is that it
included pictures of young boys and teenagers actually or simulating
masturbation. A transcript of a tape-recorded interview concluded
on 1st April 1996 at Hailsham Police Station indicates
that in addition to the magazines, photographs had been compiled
into albums by Mr Hudson including some of boys "pretending to
masturbate."
- Ms Hunter stated that research indicates that there is a link
between possession and viewing of obscene and indecent material
and touching and ultimately offending behaviour. She said that
some people go on to offend and some do not, but it is difficult
to know in any certain way the risk posed to others by a particular
individual.
- Ms Hunter stated that it was difficult to measure the level
of risk posed by Mr Hudson but as any risk to children is unacceptable,
a recommendation was made to the Secretary of State to make a
direction which took into account that the material concentrated
on young males. If Mr Hudson had accepted the implications of
his conviction and had taken steps to manage the risk in a way
acceptable to the Secretary of State then the Secretary of State
would have reconsidered the restrictions on his employment.
- Ms Hunter drew attention to a psychiatric report by Dr Janet
M Parrott, Consultant Forensic Psychiatrist, Bexley Hospital and
two reports by Dr Ernaelsteen. She said that the reports emphasised
Mr Hudson did not appreciate the seriousness of his conviction
and nor did he accept the inappropriateness of the material. The
reports stated that this material was pornographic and indicated
paedophile interest.
- Dr Parrott interviewed Mr Hudson on 26th February
2000. She also read extracts from Customs and Excise interviews
and a report from a Probation Officer. Her report stated that
"Mr Hudson spent a considerable period of time discussing the
formal wording of his convictions. He did this in a manner that
suggested there was a misunderstanding of the nature of the material
seized by both the authorities involved in bringing the charges
and by myself. Perusal of the list of material and the titles
of videos suggest that this was not the case and the facts are
that Mr Hudson has been convicted on the basis that these were
prohibited. My impression was that Mr Hudson was dismissive of
the supposition that someone in possession of such material is
more likely than not to be sexually attracted to children. He
describes this material as naturist and when challenged with regard
to a specific item with overt sexual content he minimised its
significance. Similarly the issue of responsibility was heavily
coloured by the notion that he was not aware that the material
was prohibited. It is difficult to comment in relation to risk
given this limited framework but such minimisation and denial
can increase risk in that it allows a person to avoid considering
means of risk management. On the basis that possession of this
material is questionable with regard to possible longstanding
paedophile interests Mr Hudson does not offer any explanation
that would address the concerns of the DfEE in this respect."
- Dr Ernaelsteen and Ms Hunter jointly conducted an interview
with Mr Hudson in the presence of his ATL representative on 10th
April 2001. Dr Ernaelsteen said that the interview incorporated
a medical assessment. The interview touched upon his teaching
career, his interest in naturism, memories of childhood and family,
understanding of unacceptable behaviour and circumscribed interests.
She reported that "Mr Hudson is sexually attracted to young boys
and that he has satisfied his interest through his activities
with naturism and the photographic and other material he held
and which was deemed pornographic by the courts. I conclude that
this interest is homosexual, paedophilic and inappropriate ………
I conclude that Mr Hudson's circumscribed interests and his voyeuristic
interest in naked boys and young males, which must reasonably
and inevitably be concluded to have a strong sexual component,
are engrained and unchanging. The risk of breakthrough or sexualised
behaviour with real boys must be considered to remain a future
possibility but potentially low risk. The evidence suggests that
Mr Hudson has no interest in girls. I conclude that it would be
reasonable for the Minister therefore to determine that Mr Hudson
should be excluded from teaching in any school with male pupils
and from any boarding establishments with male pupils." She also
concluded that "Mr Hudson is less likely to break through into
any intimate or actual indecent touching, except in situations
which allow for such closeness and intimacies, when temptations
may present themselves. I do not consider Mr Hudson to be predatory.
Nor do I consider that he is likely to exhibit grooming behaviour."
- Dr Ernaelsteen, who Mr Chamberlain advised is a Paediatric Psychiatrist
told the Tribunal that although there is no record of improper
behaviour with a pupil, she felt that in certain conditions there
is a risk this might occur, this risk cannot be managed. Dr Ernaelsteen
has not seen Mr Hudson since the interview, the sole occasion
they met. She gave her opinion that it is reasonable he continues
as a private tutor.
- DC Graham Oliver, Weald Child Protection with Sussex Police
stated in a letter dated 10th May 2001 that "Mr HUDSON
is on the Sex Offenders Register until February 2003 and although
he is visited at home from time to time by the Police in order
to monitor any change of circumstances, he has never been part
of any Sex Offenders Programme………..Having reviewed the file on
Mr HUDSON, I have seen some correspondence relating to his objection
to being included on the Sex Offenders Register and also with
regards to references being supplied by the Police in favour of
Mr HUDSON. The Police have never agreed to supply any such references
and have always refused when asked."
- Mr Chamberlain on behalf of the Secretary of State made submissions
as to the weight to be given by the Tribunal to Mr Hudson's conviction
for an offence involving the possession of material of a nature
which indicated risk to children. The material included photographs
of young boys masturbating. It is a matter of concern that Mr
Hudson cannot accept that this raises questions and indicates
a sexual interest in children, in particular boys. In the absence
of other mitigating factors, the Secretary of State has imposed
the least onerous restrictions available to her.
- Mr Hudson stated to the Tribunal that he does not accept
the Secretary of State's conclusion as to risk. He does
not consider that the material which led to his conviction is
obscene. The material was legitimately available in Germany and
in his view contained pictures of general naturist interest. He
commented that the Authorities had seemingly disregarded material
that was not pictures of boys and young males.
- Mr Hudson said that he is an active naturist. He attends naturist
events, such as weekends and holidays and sporting activities,
such as swimming in local centres. The events usually involve
families and allow opportunities to enjoy a common interest. He
has as a result made naturist friends.
- Mr Hudson said that his private tuition business is expanding.
He said that no concerns have been expressed relating to it and
that to his mind the risks to pupils might be considered greater.
In schools other staff are present especially in Science lessons,
doors and windows could be left open and it is unlikely that a
teacher would be left alone with a pupil. He stressed that the
Police have not made an objection to his current business albeit
they have not provided a reference. He recognised that other people
may perceive a risk and he now leaves the door open when teaching
children. Mr Hudson emphasised Dr Ernaelsteen's view that the
risk of a "break through" is very small.
- Mr Hudson said that he had good relationships with pupils at
his schools. He was seen by them as a person to whom they could
take their problems and who could be trusted. He considers that
he is compassionate and sensitive to his pupils and does not feel
that he requires strategies to manage his behaviours. He referred
to the letters of support he had submitted relating to his activities
as a tutor. He suggested that Dr Ernaelsteen formed a view based
on the conviction and not on any systematic or medically valid
examination.
Tribunal's Conclusions with Reasons
i. We have carefully considered the written
evidence and submissions presented to the Tribunal prior to
the hearing and the oral evidence and submissions given at the
hearing.
ii. Regulation 14 of the Education (Restriction
of Employment) Regulations 2000 states that "Where ….. the Tribunal
considers that the direction is not appropriate it may order
the Secretary of State to revoke or vary the direction."
iii. The burden of proof lies upon the Secretary
of State. We must be satisfied in Mr Hudson's case that on a
balance of probabilities, the direction on the grounds of misconduct
is appropriate.
iv. Regulation 13(3) of the Education (Restriction
of Employment) Regulations 2000 states that "Where a person
has been convicted of any offence involving misconduct, no finding
of fact on which the conviction must be taken to have been based
shall be challenged on an appeal under these Regulations."
Our conclusions are:
a. We note that the Secretary of State's
recommendations follow an investigation by the DfES Misconduct
Team arising from a conviction in the Criminal Courts for an
offence involving indecent material. We accept from the evidence
provided on behalf of the Secretary of State including transcripts
of Customs and Excise interviews that this material includes
pictures of boys and young males, some of whom were masturbating
or simulating masturbation. Mr Hudson's view is that the material
is consistent with his naturist interest and not indicative
of any inappropriate sexual activity.
b. From the description of the material
and the fact that it has been found obscene by the Criminal
Courts, we accept that it indicates an interest in young males
which is inappropriate. Whilst it may be that Mr Hudson does
not see why this is the case, we consider that possession of
the material indicates that he is attracted to this area of
activity.
c. We have taken careful account of Ms Hunter,
Dr Parrott's and Dr Ernaelsteen's views as to the level of risk
which this interest might pose. The question they appear to
have asked is whether there might be a "break through" into
actual activity with a pupil, such as touching. Their evidence
suggests that the risk is small but real, not least because
Mr Hudson does not appear to recognise the bounds of acceptable
behaviour. This is illustrated by his continuing failure to
comprehend objections to the nature of the material he imported.
We find their views are supported by the facts and are consistent
with the research mentioned by Ms Hunter. We conclude from that
evidence that there is a risk of offending behaviour, albeit,
low.
d. It is apparent from the evidence given
by Mr Hudson in the proceedings, his response to questions and
his demeanour that he did not appreciate concerns expressed.
If he did, he did not address them. Whether or not Dr Ernaelsteen's
diagnosis is accurate, we heard from Mr Hudson that he does
not accept that the material found in his possession is indecent
or that it points to sexual interest. This is contrary to the
facts of the conviction and the assessment of the risks he poses.
We conclude that it is appropriate for the Secretary of State
to consider a direction on the grounds of Mr Hudson's misconduct
notwithstanding any medical condition he may have.
e. Mr Hudson is a qualified teacher, it
is appropriate that he be allowed to continue teaching in a
way in which identified risks are not taken. He clearly has
teaching skills to offer. This is evident from the success of
his private tutoring business. Ms Hunter's stated view is that
any significant level of risk to pupils arising from the employment
of teachers by schools is unacceptable. She explained that as
the material involved boys, the Secretary of State's restrictions
upon Mr Hudson are limited to working with boys in a school
setting. We agree, we do not see how the restrictions could
be more precise or closely defined. We conclude that more limited
restrictions would not suffice and that the Secretary of State's
direction is appropriate.
f. In summary we have concluded that:
i. Mr Hudson has a conviction involving
indecent material.
ii. This material contains photographs
of naked boys and young males, some of whom are in sexually
active poses.
iii. The conviction is evidence of misconduct
and gives rise to a power to restrict Mr Hudson's employment.
iv Mr Hudson's behaviour indicates a
risk that he may participate in inappropriate physical activity.
v. Although the risk is low, it exists
and must be taken into account.
vi. There should be restrictions upon
Mr Hudson's employment as a teacher.
vii. These restrictions should relate
to Mr Hudson's employment in institutions which admit male
pupils.
viii. Mr Hudson's name should be included
in the list maintained by the Secretary of State (List 99)
setting out such restrictions.
We conclude that the Secretary of State's direction
dated 24th August 2001 is appropriate. The decision
is the unanimous decision of the Tribunal.
Laurence Bennett (Chairman)
Michele Alfred
Christa Wiggin
Order
Mr Hudson's appeal is dismissed.
Date: August 2002
Signed: Chairman: L J Bennett
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