- Stephen Woodcock appeals under
s 4 of the Protection of Children Act 1999 against the decision
of the Secretary of State for Health to include him in the list
kept by the Secretary of State under s 1 of that Act as being
unsuitable to work with children. The letter informing him of
that decision was dated 24th May 2001.
- Mr Woodcock was included in the s 1 list after consideration
by the Secretary of State following a review of his position under
s 3 of the Protection of Children Act 1999 as amended by s 99
of the Care Standards Act 2000.
- In the appeal before us Mr Andrew Sharland of Counsel represented
Mr Woodcock and Mr Philip Coppel of Counsel represented the
Secretary of State.
- Our powers are set out in s 4(3) of the Act. This states: "If
on an appeal or determination under this section the Tribunal
is not satisfied of either of the following, namely – (a) that
the individual was guilty of misconduct (whether or not in the
course of his duties) which harmed the child or placed the child
at risk of harm; and (b) that the individual is unsuitable to
work with children, the Tribunal shall allow the appeal or determine
the issue in the individual’s favour and (in either case) direct
his removal from the list; otherwise it shall dismiss the appeal
or direct the individual’s inclusion in the list."
- Standard and burden of proof
It is common ground that s 4 of the Act places
the burden of proof on the Secretary of State. We approach an
analysis of the evidence, therefore, bearing in mind that it is
the Respondent who must discharge this burden.
The standard of proof
Mr Sharland, on behalf of Mr Woodcock, attacked
the view taken in all of the decided cases under the Act that
the standard of proof is the civil burden of the balance of probability.
He argued that the reliance by the Tribunal in previous cases
of the case of Re H and ors [1996] 1 All ER 1 was an error.
Mr Sharland’s arguments were first that the case of re H was a
child care case and that a more proper comparison of the function
of this Tribunal is to compare it with disciplinary tribunals
such as those of the bar, solicitors, or the General Medical Council.
He took the Tribunal to the cases of Re a Solicitor [1992]
2 All ER 335; McAllister v The General Medical Council [1993]
1 All ER 982, which he relied upon as authority that in cases
where serious charges are brought which could also found criminal
charges, it may be appropriate that the onus and standards of
proof should be those applicable to the criminal trial. He also
relied upon the DFE Circular 11/95 published in October 1995 dealing
with misconduct of teachers and workers with young persons. He
pointed particularly to paragraphs 21 and 22 of that Circular,
which indicated that the Secretary of State needed to employ a
standard of proof regarding the alleged misconduct as substantiated
as being greater than that which an employer might apply when
considering disciplinary action. The employer might decide that
the person has been guilty of misconduct which warrants dismissal
on the basis of the balance of probabilities. "The Secretary
of State must apply a higher standard of proof." Mr Sharland
advanced the argument, therefore, that the Tribunal in considering
whether or not there had been an act of misconduct were obliged
to decide that to the criminal standard of "beyond reasonable
doubt", but when deciding the second criteria should do so
on the balance of probabilities.
- Mr Coppel, in a succinct argument, argued that the Tribunal
was not dealing with a criminal matter, therefore the normal burden
of proof in a civil matter applied unless statute provided otherwise.
He said the statute did not provide otherwise and that it would
be incredible for parliament to have considered there would be
two different standards of proof for the Secretary of State to
satisfy. He pointed out that the purpose of the Protection of
Children Act was the protection of children because of their vulnerability
to adults and the maintenance of public confidence in the List,
especially the confidence of parents. He argued that if the criminal
burden was to apply it would undermine the purposes of the Act.
He accepted that the discharge of the burden may be dependent
on the type and seriousness of the issue before the Tribunal.
- We have considered these arguments in detail. We are satisfied
that the approach adopted in re H is the correct way in which
we should approach the issue of the appropriate standard of proof.
In re H, Lord Nichols stated: "Where the matters in issue
are fact the standard of proof required in non-criminal proceedings
is the preponderance of probability, usually referred to as the
balance of probability …… The balance of probability standard
means that a court is satisfied an event occurred if the court
considers, that on the evidence, the occurrence of the event was
more likely than not. When assessing the probabilities the court
will have in mind as a factor, to whatever extent is appropriate
in the particular case, that the more serious the allegation the
less likely it is that the event occurred, and hence, the stronger
should be the evidence before the court concludes that the allegation
is established on the balance of probability."
- The facts
As is the case with many of the early applications
to this Tribunal, this is an old case. Mr Woodcock is faced with
a series of allegations relating to the time when he worked as
a teacher at Beeches First School. The Secretary of State’s case
involved twelve specific allegations against him covering the
period from 1987 to 1994. At the end of the case, the Department
accepted that they could not proceed with three of the allegations
and effectively, therefore, the allegations covered a period from
1987 to 1992. By reason of the length of time which has expired
since these allegations first came to light, it was not surprising
that a substantial volume of written and video evidence had been
lost or destroyed. We did, however, have in respect of most of
the allegations, documentary evidence either from social workers
or the police of statements which had been taken from a number
of children and parents relating to the particular allegations.
In the course of the hearing, we heard evidence from PC Neil Williams,
a Detective Constable of the West Mercia Constabulary. Between
1990 and 1997, DC Williams was attached to the Child Protection
Unit at Bromsgrove Police Station. He was responsible for the
investigation into the majority of the allegations which are made
against Mr Woodcock. We also heard evidence from Mr Alan Ferguson,
who is employed by the Worcestershire County Council within its
Social Services Department in the post of Unit Manager, Child
Protection/Planning and Review. He gave evidence to us of reviewing
the case records relating to Mr Woodcock for the period from 1991
to 1996. We heard evidence also from Gillian Sebright, a Principal
Officer employed by Birmingham Social Services since May 1995.
She dealt with the involvement of Birmingham Social Services Department
into various Inquiries held by the Child Protection Unit in Birmingham
from late 1996 to 1998. We also heard evidence from Mr Woodcock.
- The first allegation relates to three alleged incidents with
two named pupils, A and B, and a third pupil whose name is unknown.
The first of these incidents was alleged to have occurred in 1990
when pupils from the school went on holiday to Ilfracombe, Devon.
Mr Woodcock was one of the accompanying teachers. Apparently,
one of the parents of a boy who went complained that Mr Woodcock
had acted inappropriately towards his son. This centred on an
incident when the children had been swimming and it was alleged
that Mr Woodcock had towelled a boy dry and, in doing so, towelled
his genitals, although there was no direct skin to skin contact.
This matter was acted upon by the LEA, but no report was made
either to the Social Services or to the police. The matter resulted
in Mr Woodcock receiving "informal advice" with regard
to inappropriate behaviour and the consequences of such, bearing
in mind his vulnerable position.
- The allegations in respect of the boys A and B arose when a
parent of a nine-year-old boy overheard a conversation between
her son and another young boy he was playing with. Child A was
heard by his mother to say "Mr Woodcock would kiss him on
the cheek". This comment caused the parent some concern and
the matter was reported. A planning meeting of the Child Protection
Unit was convened and background inquiries were made. During initial
inquiries, several boys were identified as having been heard talking
about being kissed by Mr Woodcock. On 8th November
1991, child A was interviewed by DC Williams and Andrea Shorten,
a social worker, and the interview was video taped. No copy of
that video tape now exists and no transcript of the evidence exists,
but a note of this part of the Inquiry was prepared by Mr Williams
and was before us. It was a note dated 11th March 1992
which he told us was made from his contemporaneous records. According
to this note, A said that Mr Woodcock would tousle his hair and
sometimes kiss him on the cheek. The police traced another boy,
B, who again was interviewed both by DC Williams and by Andrea
Shorten, this time on 20th November 1991. Boy B said
that on one occasion he was kissed on the cheek by Mr Woodcock.
From the interview, it appeared that the incidents might have
occurred in 1990 or in 1991 and they might have occurred before
Mr Woodcock received the informal advice about the holiday
school incident.
- It became apparent to the police that rumours about these matters
had spread around the local housing estate. Many parents expressed
the view that Mr Woodcock had done nothing wrong, that he was
an exceptionally good teacher and well-liked, although none of
these comments were made directly to the police. Because of the
rumours in the community, however, it was apparent that Mr Woodcock
was aware of the police investigations and the police decided
to interview him immediately. He attended the Police Station voluntarily
on 27th November. During his interview, he did not
deny that he might well have kissed some pupils on the cheek,
both boys and girls. He told the police this was something he
did quite often to children he thought were unloved and not receiving
parental affection. He stated this was something he had done quite
unconsciously and did not really apprehend the consequences of
the action until he had received the informal advice regarding
the holiday incident. He stated he would be careful how he interacted
with children in future, being aware of his vulnerable position
and the consequences of any inappropriate action. At the time,
DC Williams recorded that there was no evidence to suggest
there was any sexual motive in Mr Woodcock’s action and he gave
the impression of being naïve and not thinking about the
consequences. At that time, the police had no evidence to suggest
anything else had occurred between Mr Woodcock and current pupils.
The police concluded there were no criminal offences committed
at that stage.
- The second group of allegations made against Mr Woodcock deal
with a wide variety of pupils in his care between 1991 and 1992.
These matters came to light by chance. The parent of pupil C,
speaking to a friend, asked her whether she knew Mr Woodcock.
It transpired that her son, C, had been in his class. The other
parent told the parent of C that she had been speaking to another
parent at the school and that that parent had told her that that
parent’s son had complained that Mr Woodcock had been doing "rude
things" to him. This reminded the mother of child C of an
incident when she had picked C up from school. C had told his
mother that Mr Woodcock was always putting his arm around him,
cuddling him and kissing him. At the time, she had told C that
this was a serious thing to be saying about a teacher and asked
for confirmation that C was telling the truth, which had been
given. Because C said that he was not particularly upset, his
mother did nothing about the matter at the time.
- As a result of what was said in a conversation with the other
parent, on 1st July 1992, C’s mother spoke to C again
with her husband present. She asked him to think carefully about
what had happened and to tell her. C said that when he was in
Mr Woodcock’s class, Mr Woodcock would cuddle him and put his
arms around him. He demonstrated to his parents how the cuddling
took place. He indicated that Mr Woodcock would kiss him on the
lips and also, when cuddling him, he would put his hands onto
his bottom and move them around. C said that Mr Woodcock would
also put own hand down his own trousers and move it around when
he was cuddling him. As a result, the matter was reported to the
police. The acts described by child C to his parents were repeated
by child C both to social workers and to DC Williams and the documentary
evidence produced to us is consistent.
- At the same time as child C was making these disclosures to
his parents, child D was telling his mother, on 29th
June 1992, that "Mr Woodcock is bent". He described
to his mother that Mr Woodcock had given him and another friend,
child E, a cuddle. He did not like Mr Woodcock doing it because
he had held him really tightly and pressed himself up against
him. Child D explained that this was not the first time that this
sort of thing had happened. He went on to describe that on other
occasions Mr Woodcock had held him on his knee and then went on
to describe an incident when he had been taken to the book corner
in the classroom in the absence of the other members of the class
and that Mr Woodcock had laid on top of him and moved up and down
on him and asked him if it was nice.
- On the following day, the parent of child D reported the matter
to her health visitor who, in turn, reported the matter to Social
Services. The parents of child D were present when child D
was interviewed by DC Williams and the social worker. The witness
statement before us from the mother of child D, indicates that
the version given by child D to the police and to the social worker
was entirely consistent with the version that he had given his
parents.
- Both child C and child D suffered nightmares following the incident
which might have been connected with it, and child D remained
concerned about being taught by male teachers.
- As a result of the statements which had been given to DC Williams,
he proceeded in the company of social workers to interview a number
of other children in the school who had been in the class of children
C and D. Children E, F, G, H and I were interviewed and those
interviews were videoed. The videos were not available to us but
records made at the time giving a summary of the evidence given
in videos were. Child F maintained that Mr Woodcock sat him
on his lap and pushed him from side to side when holding him.
He also maintained that Mr Woodcock gave him "hard cuddles"
and smacked his bottom softly whilst jokingly telling him he was
a naughty boy. Child F maintained that he had been kissed by Mr
Woodcock on the cheek, neck and ears region and that Mr Woodcock
had blown in his ear. Both child E and child F maintained that
other children had been treated in the same way by Mr Woodcock.
Other children were interviewed but made no complaint against
Mr Woodcock.
- Child G maintained that he had been hugged around the shoulders
and kissed on the head, neck and ears region. Child G maintained
that he had been kissed on the head. Child H maintained that he
had been held hard against Mr Woodcock so he could feel Mr Woodcock’s
genitals against him, had been held by the waist tightly so that
his thigh touched Mr Woodcock’s private parts, that he had been
cuddled around the waist and lower back, and that on other occasions
he had been given tight cuddles. All of the video recordings have
been lost or destroyed but we saw each of the records of the interviews
which were consistent with the allegations being made.
- DC Williams believed then, and still believes, that the account
given by each of the children was entirely truthful and that there
had not been any collusion between them. As a result of the allegations,
Mr Woodcock was arrested on suspicion of committing indecent assaults
against boys C and D. He was arrested on 27th July
1992 and was subsequently charged with three offences involving
indecent assault on both boys and an act of gross indecency with
one of them.
- Following the arrest of Mr Woodcock and the attendant press
coverage, a male young person, J, approached the police. He had
attended St Chads Youth Club in Rubery, where Mr Woodcock was
a youth leader. He recalled an occasion when he was 14 and with
a friend was invited back to Mr Woodcock’s home after school in
order to try out some games which Mr Woodcock said he intended
to use on the forthcoming weekend. He recounted that he was asked
to lie down on his stomach and described how Mr Woodcock lay on
top of him. He described how Mr Woodcock rubbed himself up and
down his body and, in particular, he could feel his private area
rubbing up and down his bottom. He described that Mr Woodcock
was breathing heavily throughout the activity. He said that he
was not aware of any of the younger boys involved in the incidents
referred to earlier in this Judgment and the police could find
no connections with them. J subsequently made a witness statement
in connection with this appeal, which was in the papers before
us, in which he confirmed the truthfulness of the allegations
he had made to the police at that time. Shortly after Christmas,
J decided not to appear before the Tribunal and give evidence
and the Secretary of State decided not to insist on his attendance.
- The police then referred all of the papers in this matter to
the Crown Prosecution Service, who ultimately decided to discontinue
the prosecution against Mr Woodcock. The CPS decided that, so
far as boys A and B were concerned, there was nothing capable
of corroborating their complaints and the CPS were concerned about
the harm to the boys should the matter proceed. The CPS considered
that at that time, although the courts were willing to hear younger
children, the boys were so young and the trial procedure, even
with the aid of video link, would be traumatic for them. The CPS
did not feel they were capable of relying upon the other children’s
complaints of kissing because by the time these children had been
seen there was substantial public and press interest in the case
and that a number of them accepted in their statements that Mr
Woodcock’s behaviour was being talked about in the playground.
- The LEA, as Mr Woodcock’s employers, proceeded with disciplinary
action against him, with a view to him being dismissed. Mr Woodcock
resigned from his employment before those proceedings could be
completed. There is a dispute between himself and those from Social
Services as to whether or not the LEA and his Trade Union advised
him to resign. He maintains that he would not have been given
a fair hearing for a variety of reasons, and felt there was no
alternative but to tender his resignation.
- Following his resignation, the LEA wrote to the Department of
Education with a view to the Secretary of State precluding Mr
Woodcock’s further employment in schools by including him on List
99. After two years of deliberation, the Department of Education
declined so to name him. It is unclear to us what investigation,
if any, was undertaken by the Department of Education, but it
is apparent that in the course of their investigation they invited
Mr Woodcock to be seen by a psychiatrist, Dr N V Griffin
of the Reaside Clinic in Birmingham. Following interview, Dr Griffin
concluded that Mr Woodcock had not initiated or sustained a significant
emotional adult relationship, but had devoted his time and energy
to a large number of social activities, mainly associated with
the church. Dr Griffin said that it was "possible to speculate
this lifestyle is a consequence of underlying psychological disturbance,
but if so, Mr Woodcock appears unaware of this and there is no
evidence of any form of significant psychiatric disorder, or abnormality
of personality. With regard to the possibility that Mr Woodcock
has a sexual interest in young children, of either gender, I can
say that the only evidence for this is the allegations themselves,
in the face of his denial.". The Department subsequently
decided not to place him on List 99.
- Following that decision, Mr Woodcock was able to take up again
employment as a teacher and carried out a series of roles in schools
in the Birmingham area. In one of those roles, it was alleged
that he had rubbed one of his pupils on the stomach, back and
chest in such a way as to distress the child and cause him to
run out of the classroom. That allegation is not proceeded with
before us in this appeal. Subsequently, a referral was received
by Birmingham Social Services expressing concern that Mr Woodcock
had obtained employment in a Birmingham school and about the number
of voluntary activities taken by Mr Woodcock where unsupervised
contact with children was possible or likely. In August 1997,
the Chief Executive of Hereford & Worcester County Council
wrote to the Department of Health requesting their consideration
of including Mr Woodcock’s name on the Consultancy Index and subsequently
Birmingham Social Services Department also made representations
to the Department of Health who placed Mr Woodcock on the Consultancy
Index. Mr Woodcock was dismissed from his teaching post in Birmingham.
- During the course of cross-examination, Mr Woodcock accepted
that each of the matters alleged against him, if proven, would
amount to misconduct and would have put pupils at risk. He accepted
that if all or the majority of the allegations were proven against
him, then it would be right for us to conclude that he would be
unsuitable to work with children, although it was maintained on
his behalf by Counsel that if we were to find only some of the
earlier allegations proven, it might not be right for us to reach
that conclusion.
- Insofar as the allegations by children A and B are concerned,
we are satisfied, to a very high standard, that Mr Woodcock kissed
these pupils and that such kissing was misconduct within the meaning
of the Act. We are supported in our view by the limited admission
made by Mr Woodcock in this respect when he was first interviewed
by the police and by the evidence of the other young children
who were interviewed in connection with this matter, the majority
of whom gave clear evidence, in an entirely consistent way, of
Mr Woodcock kissing them and other boys in the class. We take
the view that this evidence produces an accumulation of similar
facts or occurrences which is probative as to dispel any reasonable
doubt that these two matters are proved.
- As to the allegations in respect of children C and D, we find
also to a high level of probability that these acts also occurred.
We reached this conclusion for the following reasons: first, that
so far as child D was concerned, the incident of lying on top
of the child by Mr Woodcock was entirely consistent with the allegations
subsequently made by the young adult, J. We see no real prospect
that there was any collaboration between that young adult and
the child concerned, given their difference in age, school etc.
Secondly, the way in which these allegations came to light was
entirely consistent with them having occurred. Thirdly, the accounts
given by child C to his parents, to the police and to Social Services
were entirely consistent.
- So far as child D was concerned, we are again satisfied to a
high degree of certainty that this act also occurred.
- So far as the other allegations involving the children in the
class, in respect of children E to I are concerned, we cannot
be satisfied, given the high level of proof which is required,
that these allegations are made out by the Department. We are
mindful of the fact that the nature of the allegations against
Mr Woodcock were well known to children in the school prior to
the interviews of these children by the police. Whilst we accept
the fact on the evidence of DC Williams that there was no evidence
of malicious collusion between these children, we cannot discount
the fact that there might have been some collusion. Their evidence
is, however, remarkably consistent with the main complaints in
this matter.
- We are then left with the final allegation involving the young
adult, J. Given the fact that J decided not to appear before the
Tribunal and give evidence and again mindful of the high standard
of proof which is required, we cannot decide that this allegation
has been made out. Again, however, the allegation is remarkably
consistent with those which we have no doubt took place.
- Given our findings of fact in this case, we have no doubt in
concluding in summary that Mr Woodcock was guilty of misconduct
which harmed the child or placed the child at risk of harm on
the occasions set out above. We are not satisfied on the balance
of probabilities as to any of the other allegations. Given the
seriousness of the allegations which we have found proved, we
have no doubt that Mr Woodcock is unsuitable to work with children.
We reached this conclusion both because of the seriousness of
the misconduct and the fact that Mr Woodcock has consistently
denied that misconduct and has hence had no opportunity for treatment
which might have led us to a different conclusion. We make all
of these findings knowing that Mr Woodcock has laid both before
the Departments and ourselves testimonials of over 107 people
in his local community who vouch for him.
- At the end of this case, we were invited by Counsel for Mr Woodcock
to continue the Restricted Reporting Order in place. We agreed
that a further Restricted Reporting Order should be made, prohibiting
the publication (including by electronic means) in a written publication
available to the public, or the inclusion in a relevant programme
for reception in England and Wales, of any matter likely to lead
members of the public to identify any child referred to in these
proceedings. So far as the applicant is concerned, although we
are mindful that the High Court have ordered that his name should
not be published in respect of these matters, we concluded that
it was right to extend the Restricted Reporting Order for a period
of 28 days after the giving of this Judgment, but not further
or otherwise. We are persuaded that the purpose of such orders
are not meant to prevent the name of the appellant being reported
once complaints against him or her have been upheld. In the circumstances,
we are not prepared to make a further Restricted Reporting Order
after the termination of the extended order made in this paragraph.
