JVS v Secretary of State [2009] UKFTT 6 (HESC) (20 January 2009)
 Schedule 5 cases: Protection of Vulnerable Adults list - Inclusion on PoVA list

IN THE FIRST TIER TRIBUNAL (CARE STANDARDS)
[2008]1283.PoVA
[2008] 1284. PoCA

BETWEEN:

JVS
Appellant

-and-

SECRETARY OF STATE FOR HEALTH and SECRETARY OF STATE FOR CHILDREN, SCHOOLS AND FAMILIES

Respondent

-Before-

Mrs. Carolyn Singleton
(Tribunal Judge)
Ms. Bez Chatfield
Ms. Claire Trencher

Heard at Pocock Street, London on 1st, 2nd, 3rd and 4th December 2008

Representation

1.The Respondent was represented by Mr. Little of counsel. The Appellant appeared in person.

Burden of Proof

2.The burden of proof lies with the Respondent to prove misconduct in this case which harmed or placed at risk of harm a vulnerable adult. If misconduct is proved, the burden of proof switches to the Appellant to prove his suitability.

Standard of Proof

3.The standard of proof is on the balance of probabilities.

The Appeal

4.This appeal  is against the Appellant’s inclusion on the PoVA and PoCA lists. Appeal against inclusion on the PoVA list lies under s86(3) of the Care Standards Act 2000 which states;
“If on an appeal…..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 or placed at risk of harm a vulnerable adult; and
(b)     that the individual is unsuitable to work with vulnerable adults,

The Tribunal shall allow the appeal or determine the issue in the individual’s favour and…..direct his removal from the list; otherwise it shall dismiss the appeal or direct the individual’s inclusion in the list.”

Similar requirements apply to the Appellant’s inclusion on the PoCA list, save for the fact that the word “child” should be read for “vulnerable adult” and the appeal lies under s. 4(3) of the Protection of Children Act 1999. The Tribunal can consider matters up to the hearing itself.

History of the Case

5. The Appellant was formerly employed as a driver and part-time support worker by the London Borough of Barnet, working at New Fieldways, a residential care home for people with learning difficulties.

6. On 14th August 2005, HT, a resident at the Home made allegations of a sexual nature concerning the Appellant to Ian Hutchison, the Deputy Manager of New Field ways. HT suffers from communication problems with features of autism. The nature of the allegation was that the Appellant had showed her his penis and had asked her to show him her vagina.

7. On 24th August, 2005, HT was video interviewed in order to achieve best evidence (“ABE interview”) by police. In this interview she alleged that the Appellant had raped her.

8. The Appellant was subsequently charged with rape and sexual assault. He was acquitted of those charges at the Crown Court in September 2006. The Borough of Barnet carried out its own enquiry into the allegations and the Appellant was provisionally included on the PoVA and PoCA lists on 28th November 2005. He was dismissed by his employers on 4th May 2007 and confirmed on those lists on 25th March 2008. He lodged his appeal to this Tribunal on 9th April 2008.

9. At a directions hearing on 11th July 2008, a direction was made under Regulation 19(1) excluding members of the press and public (with the exception of the Appellant’s spouse) and a Restricted Reporting Order under Regulation 18(1) was made. The Tribunal directs that this should continue to be in force.

Evidence for the Respondent

10. Allegations of misconduct relied upon by the Respondent were handed in in documentary form. HT had given her evidence at the Crown Court by video link. A transcript of that evidence formed part of the bundle. It was not intended that HT should attend the tribunal hearing to give oral evidence. The allegations of misconduct were as follows:
    1. The Appellant at New Fieldways:
        (a) asked HT to show her vagina to him
        (b) showed his penis to HT
        (c) asked HT to touch and kiss his penis
      (d) penetrated HT’s vagina with his fingers
      (e) penetrated HT’s vagina with his penis
      (f) sucked HT’s breasts
      (g) showed HT his anus

2. In the front seat of the minibus the Appellant touched HT’s vagina.

11. The Tribunal watched the video of HT’s ABE interview on 24/08/05. The transcript of that interview is at document 416 of the papers. The interview was conducted by Alison Preece, a police officer. Before the interview actually starts, HT states “I need to have space from JS”.  Sergeant Preece then leaves the room temporarily and Ian Hutchison, the deputy manager of New Fieldways says “…When the lady comes back we’ll talk about J, OK?” When the interview is conducted HT describes how JS took her to the old day centre in New Fieldways and asked her to show him her vagina. He then showed her his penis and penetrated her with it. As to when this happened she said that it had happened on a Monday, quite a few weeks before. She goes on to say that JS asked her to lift her top and he sucked her breasts. He also asked her to kiss his penis and she did not like it. She gave a description of what JS looks like and what both she and he were wearing. She then states that JS asked her to pull her pants down but she did not want to do that and she pushed him away. When asked what happened then, she states that she told her key worker, Afshan. When asked by the police officer when she told Afshan, she says, “I told Afshan before”. At this point Ian Hutchison intervenes and says “That was the day you let staff know” and HT replies “Yes”.  HT is asked to describe the penis, which she does and then she refers to sperm coming out of it. She also, at this point, says that he showed her his anus. She states that JS penetrated her vagina with his fingers and that all this took place in the hall whilst she was standing up . When asked if J has ever done anything like this before or after, she says he hasn’t; “  it happened this one time”. She is asked if J said anything afterwards and replies that he talked about holidays and she did not like that because holidays make her homesick. She goes on to say that this took place after lunch. She had been sitting in the garden when JS had approached her and said “I want to take you into the hall so that you can see my penis”. She reiterates that she  does not like JS. He upset her and was rude to her. He was nasty to her. Once more, she is asked if JS has ever done anything to her before or after this incident which she says took place on a Monday and she replies that he has not.

12. In addition to this interview, the Respondent relies on the transcript of the further interview with HT conducted on 14th November 2006 which appears at document 101 of the bundle. This formed part of the enquiry undertaken by Barnet Borough. HT states that JS tried to “make me have babies with him” lots of times in the old school room downstairs. She says that she pushed him away when he tried to do this and told her key worker, Afshan, about it. She is asked what else JS has done to her and she replies that he lifted her high up into a big lorry and squeezed her. She then says that she has made a mistake and, in fact, JS only took her into the day centre once and had intercourse with her. She confirms that C, who is a fellow resident at New Fieldways, has tried to do this before but she told him to stop. She states that she does not like JS because he is rude to her and drives the minibus “loudly”. She states that JS touched her “front bottom” when she was sitting in the front seat of the minibus. She told JS that she did not like that. Other people were in the minibus at the time. She goes on to say that she was downstairs in the office when JS told her to go with him to the hall. He also lifted her up when she was at Brook Hill. He stuck his tongue out at her and gave her a dirty look. He poked her in the eye with his finger. It hurt when he put his penis in her vagina. She told Afshan straightaway and she, Afshan, then told Ian Hutchison. She states “My mummy said that JS is a very bad man and my daddy said that as well”.

13. Ian Hutchison, at the relevant time, was the Deputy Manager at New Fieldways. His statement appears at document 40 of the bundle. He had known HT since the beginning of June 2005. In that statement he describes HT as “unique”. She is very articulate but does not engage in social conversation. She tells you what she wants you to know. When she is very anxious she self-harms, screams and shouts and bangs objects. Staff at New Fieldways were wary of approaching her. Rules are important to her, for example, she wears bangles on each arm which provide her with a sense of security. She also has a rule that no-one is allowed into her bedroom without her permission.

14. On 14th August 2005, when he was Acting Manager, HT and another service user were in the TV lounge. HT appeared anxious, talking about her bangles and, in the middle of talking about those she said that she did not want JS to show her his willy because it was dirty. Mr. Hutchison took this very seriously and offered HT the opportunity for HT to talk privately and moved to the kitchen. There she repeated that she did not want JS to show her his willy. Mr. Hutchison requested Afshan to attend and take notes. Whilst not able to remember the conversation in detail, he is satisfied that Afshan’s notes are accurate. He read the notes afterwards and signed the typed copy. The hand written notes are at document 176 of the bundle. They say, inter alia, that JS “pulled his pants down and showed me his willy” and then took HT to a private room and asked her to pull her pants down and show him her vagina. According to the notes, HT says that this happened on a Friday afternoon. JS sucked her bosoms and HT did not like it. She thinks that JS will get the sack. She says “I don’t want JS to come into my room because it is private”. Afshan writes that HT kept saying that she is telling the truth and not telling fibs. She repeatedly talked about keeping her bracelets on, saying, “ I don’t want Mummy to tell me about my bracelets”. In the background information provided by Ian Hutchison at document 178 of the bundle, he describes how, when he was sitting in the lounge on the day the allegation was made, HT was talking anxiously about her bracelets, saying that the blisters on her arms were nothing to do with the bracelets and she wanted her mother to let her keep wearing them. He also comments “H has previously told me to tell J that she does not go on holiday and also that she does not like J going into her bedroom (J explained that he had gone into H’s room to look for something that she said she had lost).

15. In cross-examination, Mr. Hutchison was asked whether he thought it feasible for someone to undress HT without someone hearing her, given that she is known to scream and shout. He was not prepared to make assumptions but confirmed that, if HT is in an unhappy situation, she is likely to become agitated. He has heard her shout and scream at people to “go away”. In answer to questions from the Tribunal he confirmed that if someone was screaming in the old day centre and the nearby office was occupied, they would definitely be heard.

16. Mr. Hutchison stated that HT does not interact with other residents much but she will tell someone if they are annoying her. Whilst she does not communicate with fellow residents, she is known to repeat elements of their conversations. Her hearing is markedly good.

17. Afshan Mustafa was HT’s key worker at New Fieldways. Her statement is at document 46 of the bundle. She describes HT’s needs as complex. Even talking about HT’s routines could upset her and staff were cautious and wary of her. Her statement also recalls HT’s friendship with C who was a service user who lived semi-independently in a flat adjacent to New Fieldways. She used to see them sitting outside together holding hands. She got the impression that C wanted a physical relationship with HT. In answers to questions from the Tribunal she said that C could be inappropriate at times in the way he spoke to staff. She had overheard him saying to HT that he wanted to take her up to his room but that HT had said that she did not want to go. Ms. Mustafa felt anxious about this and reported it to her senior. However she is not aware of any action being taken to ensure no impropriety took place.

18. Ms. Mustafa confirmed that HT was not easily persuaded to do things she did not want to do. She would get very anxious in such a situation and become quite vocal. She stated that HT had quite a lot of contact with other service users and had conversations with them to an extent. She could not recall her repeating other people’s conversations but confirmed that her hearing was acute.

19. She confirmed that the first she had heard of the allegation was when Ian Hutchison asked her to take notes of the conversation. At that point she had known HT for 6 weeks and there had been no period when she had appeared to be unusually upset and she was not upset when she told Ian Hutchison about the alleged incident.

20. In cross-examination by the Appellant, she confirmed that there had never been any cause for concern about him before and that, if a service user were to be absent from New Fieldways, staff would know.

21. Moji Malomo is a Reviewing Social Worker for Barnet Social Services. Her statement appears at document 51 of the papers. She first met HT in 2004 and continued to work with her until early 2008. She states that HT is noticeably resistant to physical contact and communicates most effectively through her drawings. Her statement, which is dated October 2008, says that HT has not made specific disclosures about the alleged assault by JS to her but that she feels that HT does not have the capacity to lie. In her view HT does not understand sexual relationships. Certainly she does not go looking for sex.

22. In cross-examination she told the Tribunal that she knows HT very well but in answer to questions from the panel she said that she had never heard of the service user C. She would expect to be made aware of any concerns by staff at New Fieldways but had not been told about C. She has never seen HT have any physical contact with anyone so it would surprise her to be told that she had held someone’s hand. That would represent a significant change and she would expect to be told about it. She would definitely expect to have been told about any concerns or inappropriate behaviour but she was not told about C.

23. Her description of HT was that she would demonstrate challenging behaviour if she did not want to do something. She becomes anxious and repetitive but does not shout or become verbally or physically aggressive. She does, however, self-harm. Ms. Malomo would have expected there to be a change in HT’s behaviour at the time the alleged offences took place.

24. CT is the mother of HT. Her statement is at document 54 of the bundle. In this she describes how HT has rings, bangles, badges, hair clips and sponges that are very special to her She likes to hold on to them, saying “If my hands are empty, I feel like I am nothing”. HT still says “The only person who ever made me have my hands empty was JS”. CT believes that there was more than one assault because, since the initial allegation made by HT, she has made a number of other disclosures about JS to her mother. After each conversation with HT, CT made a note of what had been said. Her notes of 24th October show that HT had drawn a picture of JS in her room with his penis showing. Also HT had told her that JS had lifted her up to a lorry whilst the residents were at a service station and squeezed her. He had also touched her vagina whilst in the minibus. Her notes dated 26th August 2006 record that HT told her that JS had climbed into a lorry after her and raped her.

25. She confirms in her statement that HT has always used drawings as an important part of communication. When HT had drawn pictures of the alleged incidents whilst she was with her parents, CT had made a note of the date and written down any comments HT had made about it. Those pictures formed part of the bundle of evidence.

26. Her statement also refers to the plasticine models made by HT on the weekend of 16th-18th September 2005 whilst on a home visit. CT’s notes refer to the models being of HT and JS and that HT put the hand of the model of JS to the open legs of the model of HT, saying that JS had put his finger in her vagina and it had hurt. She also recounts how, in the waiting room of the Crown Court on the first day of the criminal proceedings against the Appellant, HT made plasticine models of JS’s penis and her vagina and pushed them together, stating “This is what he did to me and I didn’t like it.”

27. Insofar as sex education is concerned. CT has only spoken to HT in simple educational terms. HT had never raised the subject of sex in an adult way before the alleged incidents and CT describes her as childlike in this respect. 

28. In oral evidence she confirmed that she had never seen HT do drawings with sexual content before. In cross-examination she was asked what HT’s reaction would be to comments about holidays and clothes and she replied that she would panic. The Appellant said that on one occasion he had picked up HT’s tins and she had accused him of stealing them. She had self-harmed and said she did not like him. CT was asked if HT’s reaction and drawings could be because of this incident. CT said that would not be the case because she would not have drawn JS in her bedroom. The picture drawn by HT of JS in her bedroom proved to CT that JS had been in her bedroom and that he had told HT to remove her bangles, something which would have been very frightening for her. Although it had been confirmed by earlier witnesses that the Appellant had never worked a night shift, HT could not have made it up. To CT it was clear from the picture that the Appellant had been in HT’s bedroom. 

29. CT told the panel that, prior to the criminal trial, she had been told to be as specific as possible about when the alleged incident that formed the basis of the prosecution took place. HT knows days but not dates. Whilst she is satisfied that the original alleged incident took place on a Monday, she is no longer sure of the date. She and her husband had thought it was the 8th August 2005 because they had asked HT whether it had happened on the day she went in the juggernaut and she had replied “Yes”.

30. It was put to her that she had assisted HT with the drawings. She denied this but accepted that the clothes drawn on page 467 had been added by HT after CT had asked her where the clothes were. It was put to her that the only drawings which show semen were drawn when she was with HT. CT could not offer any specific explanation for this other than HT may have felt more able to tell her than others.

31. In questions from the panel, CT was asked as to whether there had been anything untoward in HT’s behaviour during the period 1/6/05 to 14/08/05 which is when the alleged incident or incidents must have taken place. CT replied that there had not been anything apparent but that, subsequent to the allegation being made by HT on 14th August she appeared to be traumatised. After the Appellant had been suspended, HT came home. She did not mention him to her parents but was much more compulsive in her behaviour. Her parents mentioned JS to her by name rather than HT naming him to them. She is now much more compulsive in her behaviour and talks constantly about what happened.

32. She told the Tribunal that HT watches films and television. She goes out with her sister and her husband. She does not lead an isolated life. In re-examination she was referred to document 271 which is CT’s note of a conversation with HT dated 29/09/06. It relates to HT’s relationship with C and states that HT had been in C’s room for drinks. C had said to HT “I  want to show you my willy”.  C had said that he wanted to “put his willy inside me”. CT could not remember when HT had first mentioned C to her.

33. Dr. Annabelle Dudley is a consultant psychiatrist. Her statement appears at document 61 of the papers. She told the Tribunal that HT was very certain about JS being the perpetrator. She was clear and emphatic and obviously distressed. Only one incident was described to her by HT. She had only met her once and therefore did not feel able to comment on the fact that, prior to the allegation being made on 14th August 2005, there had been no unusual behaviour demonstrated by her, but she believes that what HT told her was the truth.

34.Margaret Rustin is a Consultant Child and Adolescent Psychotherapist. Her statement appears at document 79 of the bundle and it sets out HT’s history to some extent in that Ms. Rustin has been involved with her since 1985 when she was referred to the Child and Family department of the Tavistock Clinic by Dr. Anderson, consultant child psychiatrist. Dr. Anderson had described HT at that time as clearly psychotic but probably intelligent and very verbal, the belief being that she might respond to psychotherapy. Paragraph 7 of her statement sets out her description of HT and her cognitive functioning. HT’s mother requested that Ms. Rustin see HT after the alleged incident. Ms. Rustin is unable to locate her notes of those meetings and is, therefore, unable to give precise details of what she was told by HT. However, she sets out her conclusions in paragraph 9. She has always found HT to be truthful. In paragraph 9(d) of her statement she describes what she refers to as the inner state of HT’s mind ( for example, her imagined experience, fantasies, dreams etc) and what might be an account of something which actually happened to her. She emphasizes that the distinction between the two was usually clear. However there had been occasions when Ms.Rustin had felt the need to explore whether an account of something given to her by HT had actually happened. She states that HT always responded realistically to these enquiries, talking about the “ inside” person for describing imagined events and the “outside” person for something that did take place. In recounting the alleged assaults by the Appellant, Ms. Rustin felt she could be clear about what was HT’s recall of events and what was part of her fear of him.

35. In her evidence in chief, Ms. Rustin told the Tribunal that she had been brought in by HT’s parents to provide some psychiatric support as HT had been described by her parents as being very upset. In the meetings, Ms. Rustin did not introduce any topic; she allowed HT to talk freely and it was HT who mentioned the Appellant to her, not the other way around. She confirmed that she had always found her to be truthful on previous occasions. She was asked whether HT could have seen things on television which could have led her to make allegations against the Appellant. She replied that HT had never talked to her about TV so she did not know what importance it had in her life. However, she went on to say “I think my perception is that she is literal and cannot transpose from one thing to another”.

36. In cross-examination, Ms. Rustin stated that she was not confident that HT would remember a specific day, but that she would remember going inside a juggernaut because she is very interested in lorries. “They are very important in her imaginative life and sitting in one would be a very significant experience.”

37. Ms. Rustin was asked questions by the Tribunal. She was asked whether HT could develop pathological tendencies if she took a dislike to someone or someone took a dislike to her. Ms. Rustin responded that she thought HT would become anxious and could retreat to familiar ways of obsessional protection but not as the result of an imaginary event. She was surprised that HT had stated that she immediately told her key worker, Afshan, and that, in fact, that was not the case but pointed out that HT’s sense of time is not the same as other people’s. It was put to her that establishing when these alleged incidents took place was difficult but that she had only been at New Fieldways since 1/06/05 and the first comment made by her was on 14/08/05 and during that time neither her parents nor any member of staff had noticed any change in her behaviour. She was asked to comment. She agreed that her parents, key worker and Ian Hutchison were in close contact with HT and would be best placed to observe any change but that things that upset her deeply may not manifest themselves until later. When she had seen HT some weeks later, she had noticed a great intensification of her “magical” protections, her bangles and tins. She was asked what effect she thought the alleged physical intrusion would have on her and she said she would anticipate a shrinking back into herself. She thinks she first saw her in September 2005 and she noticed a significant raising of her anxiety level.

38. Ms. Rustin was asked about her reference in her statement to HT’s imaginings. She could not say that HT would never make anything up but that she, herself, had never observed it. If she had a bad relationship with someone she did experience all kinds of things in her imagination but she could tell the difference between the two. A lot of Ms. Rustin’s work had been in addressing and maintaining the boundaries between HT’s real and imagined life. Before she first met HT that boundary had not existed and the two had blurred and merged together. She described HT as having a very vivid imagination which, more recently, had been held within bounds. She described the suggestion that she could not describe something without having experienced it as “totally inaccurate”. The most important thing to HT was to maintain her sense of personal safety. If something happened to her which made her fear for her safety, there was a risk that the boundary maintained between reality and imagination could be knocked out of kilter. However, she thought it very unlikely that she would adopt other people’s experiences as her own. She would try to keep those things out, in order to maintain her own sense of identity.

39. Ms. Rustin was asked about HT’s understanding of sex and she confirmed that HT had discussed sex with her from the earliest days of her involvement with her. Specifically, HT had talked about, what Ms. Rustin believed to have been, sexually abusive behaviour towards HT by boys at school when she had been aged 13 or 14; this abuse taking place in the lavatory. Ms. Rustin was satisfied that this account was real. Predominantly, HT talked to Ms. Rustin about her own sexual feelings and talked a lot about sexual fantasies to do with her own body. HT was aware of her own sexuality and was also aware of being able to make herself sexually excited. She was aware she had a sexual body but wanted to keep it away from other people and did not want to be involved in a sexual relationship with someone else. She could achieve sexual gratification for herself, but Ms. Rustin emphasised that this area of HT’s life was childlike, not grown-up.

40. The information given by Ms. Rustin as to the sexual abuse which occurred in a lavatory when HT was a teenager was explored further. The Tribunal told her that some of the current allegations centred around a lavatory as drawn in a picture by HT and Ms. Rustin was asked whether HT’s memory could have been stirred up by something else happening. She agreed that it could. Her anxieties could be touched off causing her to link allegations. She is afraid of lavatories, seeing them as bad. However, she thought it unlikely that HT’s accusations would be historical. Ms. Rustin felt that she could tell the difference between when HT was recounting an actual event and when she was imagining something but said she is a difficult person to understand. She agreed that the boundary between reality and fantasy could give way if HT was mentally ill but, in her view, she was not.

41. Finally, Ms. Rustin was asked a general question about HT’s drawings and confirmed that Ht would draw pictures of imaginary things when she was with her as well as actual things.

42.Michelle Tuddenham is a psychotherapist. Her statement appears at document 63 of the bundle. She first met HT in January 2006 and she met her weekly until August 2007. In her statement she says that HT always initiated the conversations about the Appellant and Ms. Tuddenham was always careful not to be directive when talking about it. She is of the view that something inappropriate happened between HT and the Appellant. Over the period she worked with HT, the allegations remained consistent and in HT’s drawings, the Appellant was always drawn in the same way. In her opinion, HT does not have the mental development or agility to maintain a deception over a period of time. Her development can be equated to that of a 2-4 year old. The allegations made by HT could only have been gained in sexual situations and Ms. Tuddenham’s opinion is that she is unaware of her own sexuality.

43. Several months after the Crown Court trial, HT discussed C with her. C had proposed a sexual relationship with HT and she had refused. She became angry with him and said that she did not want anything more to do with him.

44. In oral evidence, she told the Tribunal that HT’s mind is very rigid. Asking her to create something from fantasy is something she cannot do. She cannot fantasize or imagine anything because she does not have the mental functioning to do it. Although she is verbally sophisticated, she merely regurgitates what she has seen or been told. When HT had talked to her she had talked about the alleged assault and the taking away of her tins as the same thing and in her drawings she related their removal with the assault. When she asked HT what she had drawn, HT would reply “It’s JS when he hurt me, when he took away my tins”. She does not manage anxiety in an appropriate way. She self-harms and increases memory retention so that the memory is reinforced.

45. Ms. Tuddenham was asked whether the level of HT’s distress would be affected by the seriousness of the event upsetting her.  She explained that, to HT, the removal of her tins would be extremely significant. They are a source of comfort to her and the removal of them would overwhelm her. The panel pointed out that, on 14th August, HT made a matter of fact comment without showing any distress and without having shown distress before. Subsequently her distress increased. Ms. Tuddenham expressed the opinion that a level of distress would exist and, once she had told Ian Hutchison, events that followed such as the questioning, the visit to the police station, and changes in her schedule would increase her concern. The anxiety of people around her would transfer to her. The escalation of events would have led to an escalation in HT’s distress.

46. PC Kerry Bonomi is an officer in the Metropolitan Police. Her statement is at document 71 of the bundle. A copy of her notebook is at page 1246 of the bundle. She is the officer who attended New Fieldways on 17th August 2005 after the first allegation had been made. Her note on 1248 says that it happened on a Monday at about 1300 hours. She told the Tribunal that this information must have come from HT. Whilst she acknowledges that HT cannot tell the time, she would not have written it down if HT had not said it. That is why in the CRIS entry on page 528 of the bundle she stated that HT could not be sure.

47. She was asked by the Tribunal  whether she ever thought HT was confused and she replied that she had thought that, but that it was understandable, given HT’s disability. It was pointed out to her that, in her notebook, the Appellant is only mentioned by name when his personal details are recorded. Throughout the remainder of her note there is reference to “he” and “him”. She assumed that that was because HT did not mention him by name although she could not specifically recall. However, she said, if HT had said “JS” she would have written that down. She confirmed that HT was with a member of staff when she spoke to her. She assumed that HT had told that member of staff who she was referring to but did not refer to him by name in her presence. All the information on the Appellant had been provided at New Fieldways by staff. She could not recall whether those details had been provided in the presence of HT or not.

48. PS Alison Preece is an officer of the Metropolitan Police. She conducted the ABE interview with HT on 24/08/2005. On 27/08/2005 she visited New Fieldways to meet HT and her mother. Prior to the meeting she familiarised herself with the premises and made notes in the SOIT log. She described the area in which HT alleged the assault had taken place as dirty and abandoned. She describes her meeting with HT and her mother. She had seen the drawing HT had done of herself sitting on the toilet and the Appellant standing up with his penis visible. Paragraph 7 of her statement says that she asked HT what had happened in the toilet as they walked past it. HT replied “He took me in here. I didn’t like that.” PS Preece then said “What did JS do?” and HT replied “JS took me in there and showed me his penis. I didn’t like that”.

49. She states that HT showed her where sperm came out onto the carpet in the lounge area. It was seized for forensic investigation on 30th August. She also sent, for examination, a bra given to her by HT’s mother who said it was worn by HT on the day of the alleged assault. She confirmed that nothing was found as a result of those items being forensically examined.

50.  Mr GM Flannigan is a Consultant Urological Surgeon based in West Yorkshire. His report appears at page 87 of the bundle. He gave his evidence by telephone conference. He had been asked by the Respondent to prepare a report relating to the effects of a medical condition suffered by the Appellant and, for this purpose, he had access to the Appellant’s GP notes and some hospital notes. The Appellant suffers from a urethral stricture. He confirmed that, with this condition, it is possible to get drops of semen in urine. Also, if the Appellant was showering and he suffered from incontinence of the bladder, even to a small degree, it would be possible for some leakage of semen to be released in that urine.

51. The witness statement of DC Gill Riley of the Metropolitan Police was relied on. However, for personal reasons, she was unable to attend the hearing and give oral evidence. On 18th August 2005, she visited New Fieldways and met with HT. Her CRIS report states that HT told her that “J had put his penis inside her vagina a few Mondays ago.” She notes that this was the first mention of penetration. Based on information at the time, she concluded that the alleged penetration by JS’s penis had taken place some weeks before and the digital penetration had occurred sometime during the week before.

Evidence for the Appellant

52. The Appellant, JS, gave evidence. His statement is at document 37 of the bundle. In that statement he confirms that he was initially employed by the London Borough of Barnet as a minibus driver at a home for people with learning difficulties. His employment started on a temporary basis and then became permanent when he was appointed driver/handyman. He was then asked if he wished to work weekends as a support worker. He agreed and, when that home closed and all the residents moved to New Fieldways, JS moved as well. He continued as a driver/handyman and as a support worker, mainly on Saturday mornings. He also helped out at other homes and day centres and took service users out on day trips and weekends away. He denies that any inappropriate behaviour has taken place between himself and HT.

53. In cross-examination he was asked about any physical contact he had had with HT. He accepted that she had held his hand whilst on a trip to Legoland but insisted that HT had held it rather than him taking her by the hand. He pointed out that a lot of the service users on the trip to Legoland had wanted to hold hands with someone. The trip to Walton-on-the-Naze had been different. It was a more sophisticated group and no one wanted to hold hands. 

54. He confirmed that, on the trip to Walton -on-the-Naze, the group had returned  to the home at 10.30 pm. That was the day that HT had been in a juggernaut. A photo of this is at document 1234. It shows HT stepping down from the cab of the lorry. The Appellant is helping her and both HT and the Appellant are smiling. The Appellant said that this took place at a service station at Stoleway on the A12, half-way between Barnet and Walton - on- the-Naze. He denied that it took place at South Mimms. It was, he said, true that the picture was taken on a Monday. He said that he took some service users back to Brook Hill and then took HT to New Fieldways where he dropped her off and took S home by car.

55. The Appellant agreed that HT became very upset if anyone talked about holidays or mentioned her clothes. He described her as being “very awkward”. You had to be careful about everything you said to her. On one occasion he had picked her tins up and she had become extremely upset, “to put it mildly”.

56. The Appellant was asked questions about his urethral stricture. This had been offered by him during his interview with police prior to the Crown Court trial as an explanation as to why his semen might be found on the carpet that HT had identified in the day centre at New Fieldways. He had said that he used to shower in there after he had been working. He explained that the whole of the downstairs of the building was the day centre. When he worked there it was as a handyman and he needed to shower, If he worked upstairs in New Fieldways he was working with residents and did not need to take a shower. They were two separate units. However, once the day centre closed, he did not need to use the shower at all. It was put to him that when the police asked for any reason why his semen would be found in the day centre, he had conveniently provided an explanation linked to him having had a shower in the days prior to the allegation having been made. He said that he had never been in a police station before and had felt under enormous pressure. He gave the same reason for having said in his police interview that HT may have seen him showering through the window. That, in fact, cannot have been the case because his evidence to the Tribunal was that his last shower in the day centre had been taken some 6 months before the alleged incident and HT had only arrived at New Fieldways at the beginning of June. The Appellant said he had just been trying to think of reasons why HT may have seen him. “It’s a lot of pressure to be under.” 

57. Each of the allegations made by HT was put to the Appellant. He denied them in their entirety. In answer to questions from the Tribunal he said that he had never been inside HT’s room. On one occasion, he and another member of staff had attended HT’s room because she was very upset at having lost the instructions of how to construct some Lego she had. He merely stood at the door. He did not go in. HT had a key to her room and she used to lock it.

58. The Tribunal had access to the interviews given to police by the Appellant, the transcript of the Crown Court trial, and the Appellant’s medical records. Throughout the criminal investigation and at the trial, the Appellant denied any impropriety. Linda Tyler and Diane Isaacs, both of whom had worked with the Appellant gave a character reference at the Crown Court. The transcript of their evidence was included in the bundle. Both ladies spoke highly of the Appellant, saying that they had never witnessed any inappropriate behaviour by him or seen anything to cause them concern. They described him as trustworthy and honest.

Tribunal’s Discussion

59. The law relating to this appeal is set out in paragraph 4 of this decision. There is a two stage test to apply. Firstly, the Tribunal must decide whether the Appellant has been guilty of misconduct which harmed, or placed at risk of harm, a vulnerable adult. The burden of proof on this part of the test is on the Respondent. If satisfied on this point, the Tribunal must go on to consider whether the Appellant is unsuitable to work with vulnerable adults. The burden of proof shifts to the Appellant on this part of the test. The Tribunal must be satisfied on the balance of probabilities.

60. Misconduct
It is manifestly obvious that if any of the allegations made by HT are true, then the Appellant is guilty of misconduct and unsuitable to work with vulnerable adults. It has been, therefore, necessary to look at the allegations and the circumstances of this case very carefully together with the chronology of the statements made. There are no independent witnesses to the allegations. Quite simply, it is a case of HT’s word against the Appellant’s and the credibility of each has to be weighed in the balance. Also, the Tribunal is not confined to considering the allegations which formed the basis of the Appellant’s referral to the PoVA and PoCA lists.

61. The first allegation made by HT is on 14th August 2005 when she speaks to Ian Hutchison about her bangles and appears anxious. In the flow of conversation she says that she does not want J to show her his “willy” because it is dirty. Mr. Hutchison takes her to a private room and arranges for Afshan Mustafa to be present and to write notes of what is said. Those notes appear at page 176 of the bundle.  They are that HT described how JS pulled his pants down and showed HT his willy and that he asked HT to pull her pants down and show him her vagina. This happened on a Friday afternoon in the hall at New Fieldways. HT did not like it. J went to cuddle her and she did not like that either. JS gave her dirty looks. She did not like him talking about holidays in the minibus on the way to Brook Hill and she told him so. He sucked her bosoms and she did not like it. She then went upstairs and J said “Goodbye” to her. She has not seen J since. She thinks J will get the sack. She does not want JS to come into her room because it is private. It is ok to see J again. She does not want her mother to tell her about her bracelets. Afshan notes that HT was very anxious and kept saying that she is telling the truth and not telling fibs.

62. On 17th August 2005, PC Bonomi attends New Fieldways and talks to HT. The relevant extract from PC Bonomi’s notebook is at document 1246. This states that HT told her that “he” took his pants down and showed her his penis, asked HT to take her top off. She was asked to touch and kiss “his” penis. He then penetrated her with his finger. It happened on a Monday. At other times he had lifted her up and cuddled her but hadn’t touched her before. He had talked about holidays. At no stage is JS mentioned by name.

63. On 18th August 2005, HT tells DC Riley that JS had penetrated her with his penis.

64. On 19th August 2005 HT went home for the holidays. Notes of conversations between her and her mother are at page 160. The first comment by CT is “Dad and I know what happened with JS. Do you want to talk to me about it?” In the course of the conversation HT states “Then he put his willy in my vagina”. She then tells her mother of sperm on the floor.

65. On 24th August 2005 HT attends a police station for her ABE evidence. A transcript is at document 415. The first mention of the Appellant is when HT says “I need to have space from JS.” The police officer leaves the room and Ian Hutchison says “When the lady comes back we’ll talk about J, ok?”  The police officer says  “We’ll have a little chat about JS in a little bit.” HT makes the allegation of rape, taking place in the old centre, downstairs at New Fieldways. HT says it happened “this term”, “on a Monday”, “quite a few weeks ago”. She goes on to say “And he lifted me up like a child and I didn’t like that.”  She goes on to say that she told Afshan “before” and Ian Hutchison interjects at this point, saying “That was the day you let the staff know……..That was on a Sunday wasn’t it?” HT responds “On the Sunday I told Afshan about JS.”  In the course of this interview, HT, for the first time, alleges that the Appellant showed her his anus. She alleges digital penetration. She is asked specifically whether this kind of thing has happened before or since and she states it has not. It has only happened once. She alleges that, on the day in question, JS came to her in the garden and said, “I want to take you into the hall so that you can see my penis.” Ian Hutchison asks HT if she knows the Monday she is talking about and she replies that she does. She is asked again whether the Appellant had done anything to her before or since and she confirms that he has not.

66. On 3rd September 2005, the Appellant is interviewed under caution. That interview is at page 438 of the bundle. He confirms that, prior to this allegation having been made, he had been warned by management not to upset HT because she self-harms. Talking about holidays, her bangles and her clothes obviously upset her. His only involvement with HT had been as the driver of the minibus and occasionally helping load or unload the washing machine. Sometimes, when in the minibus, HT would climb over seats to sit next to him in the front. He had told management about it and been advised that this was ok if it kept HT quiet. The Appellant is asked if there is any reason why his DNA i.e. semen should be on the carpet that has been identified by HT and removed for forensic examination. He then offers the explanation about his medical condition and the shower. 

67. The Appellant explained how, when he had taken HT and other residents to Legoland, HT had started holding his hand when the group was walking around. That is not really allowed but, at the time, it was easier to allow HT to hold his hand than refuse and have to face the consequences of that refusal. Some members of staff said to him that HT viewed him as a father figure. He had been told that it was all right so long as it kept the peace.

68. The Appellant was asked why HT would make a story up and he said that he thought that he had upset her on a number of occasions. He had talked about holidays and commented on her clothes. Also there had been an occasion when he had overheard the resident C asking HT to go up to his room and he had told HT that she was not to do that without telling a member of staff.

69. The Appellant is asked to identify the last time he showered in the day centre and says it must have been the Tuesday before he was suspended. The previous Monday he had taken a group of residents from a different centre to the seaside. HT had missed the trip from New Fieldways the week before because she had been with her parents so the Appellant asked if HT would like to come. He says that she spoilt the day with constant tantrums. The weather had been miserable in the morning but brightened up in the afternoon. Consequently, many of the group did not want to go when it was time to leave. As a joke, the Appellant had suggested to the group that they book into a hotel. This had upset HT.

70. He is asked whether any of his DNA should be on HT’s clothing and explains that, whilst returning from the trip to the seaside, the group of residents had stopped at a service station . There was a brand new lorry on display and, knowing of HT’s interest in lorries, the Appellant asked the driver if she could go into the cab and press the brake. When she came to get out of the lorry, she attempted to come out forwards instead of backwards. It was high off the ground and the Appellant told HT to turn round and she did and, more or less, dropped and he caught her.

71. Included in the scheduled evidence is the set of HT’s drawings referred to by CT in her evidence and CT has made a note in respect of each one detailing HT’s comments. The clothes drawn on picture 468 were added by HT when CT asked where they were. Also included is a letter that HT wrote to CT about going in the lorry. The letter gives the impression that it had been a very positive experience for HT. She has drawn two figures on it, both of whom have smiling faces and it is also indicative of HT’s ability to use her imagination in that she describes going in the lorry but adds “I pretended it was a balloon.” CT says this was posted some time between 7th and 19th August 2005.

72. CT’s first statement to the police appears at document 570 of the bundle. In this she explains how HT stays at New Fieldways for 12 nights and then comes home for 2 nights and for regular holidays. When she came home on 19th August, she confirms that she detected no change in HT’s character. When she starts to talk to HT about the allegation, she asks if she wants to talk about JS. She knows the allegation involves him because Ian Hutchison had phoned her to tell her. CT made notes after the conversation. In that conversation HT recounted how JS raped her and penetrated her with his hand. 

 73. That night she noticed that HT had left her bra in the bathroom. The following morning she noticed that one of the hooks had been ripped off. HT told her that JS did it. CT handed the bra to the police.

74. On 24th August HT was interviewed by the police .

75. Over the following days, HT’ parents continued to ask HT about the incident. HT said that the incident had happened on the day she went in the lorry which is referred to above. CT calculated that this was 8th August. HT ,at this point, told CT that JS had taken her into the lavatory and shown her his penis and then made her accompany him to the day centre. She said “He kissed my ears hard. I didn’t like that”.  When asked what she did when it was all over, CT records that HT said she went and told Afshan. She has never talked about sex before.

76. In September 2006, the Appellant stood trial at the Crown Court for an offence of rape and one of sexual assault. Prior to the trial taking place HT received counselling from Michelle Tuddenham whose oral evidence is described earlier in this decision. Her police statement formed part of the scheduled evidence and is at document 609. In that, she confirms that “The Code of Practice for Victims of Crime” was followed and the allegation was not discussed with HT until after the case had concluded. Ms. Tuddenham describes HT as suffering from an autism spectrum disorder and a learning disability.  That is evidenced by profound deficits in communication and understanding and by ritualistic and obsessional behaviour. She describes HT as having very high anxiety levels. When she is acutely anxious she tends to become rigid and repetitive as a way of dealing with her panic. She states “The combination of her verbal capabilities and idiosyncratic forms of thinking and rationality can be very upsetting for her. When she is anxious or upset these elements in her mental functioning come to the fore. She gets stuck in particular ideas and cannot move on”.
She recommends that HT has a communicator with her when she is giving her evidence at the Crown Court. In fact, that did not happen.

77. The transcript of the Crown Court proceedings appears from page 623 of the bundle. HT gave her evidence by video link. Her first mention of the Appellant is with reference to her plasticine pots, saying “These are the sort of things that JS tried to take home with him and I didn’t want that, full stop.” She goes on to say that JS tried to steal them. In her evidence in chief HT holds up a plasticine model she has made of a vagina and a penis and, using them, says “That’s the sort of thing JS did to me. Forced me to make babies”. She confirms that she gets upset if people ask her to remove her bangles and if people comment on her clothes. One day, JS had asked about her trousers and she got upset. She said that she did not like talking about holidays and had got angry with JS about this. She had screamed at him and confirmed that she got upset even when JS talked to other people about holidays.

78. HT referred to the time when JS tried to steal her plasticine pots at Brook Hill, which is a day centre she and other residents at New Fieldways attended. She said how she got very angry with him, screamed and shouted at him and squeezed her plasticine in temper.

79. She told the Court that she did not get on with JS because he talked about holidays and her clothes and tried to steal her pots. “I never want to see JS again”.

80. There followed a discussion in which Counsel asks if the alleged incident happened after her  trip home for the period 29/07/05 to 7/08/05 and HT confirms it did. She is sure it must have been on a Monday so, Counsel says, it must have been on the 8th August 2005. She says JS put his penis “deep inside”.

81. HT alleges that she hit JS in the face. This is new evidence and she was asked, therefore, where it had happened. She replied it had taken place in the lavatory at Brook Hill when the Appellant “was trying to make me have babies”. Then she changed her mind and said it happened at New Fieldways and then became distressed and said that it had happened at Brook Hill and New Fieldways and also in the minibus. The evidence she gave in her ABE interview is referred to where she said that it had happened only once. She does not know why she did not tell anyone else about the occasions in Brook Hill and the minibus that she has just explained and becomes upset, saying “I don’t fit do I? I don’t tell fibs, do I?”

82. She confirms that the drawing she made of the lorry was the same day that JS had sex with her. She was not happy when she got out of the lorry because JS had carried her down. She says she did not like that at all. 

83. She reveals how she calls Fridays “H days” because she stays and does her laundry on those days. On the Friday before she made her allegation there had been a funeral for a former resident and some of the service users had attended it. She recalled that, when JS asked if she was going to the funeral, she became very cross and threw all her laundry in the air. On that same day C had asked her to go his room and JS had told her she must tell a member of staff. HT was very annoyed and agreed that it was none of JS’s business. She agreed that , when two days later she made the allegations to Ian Hutchinson, she was still angry with JS.

84. In further evidence HT says that JS had sex with her in a hut near New Fieldways and agrees that, on the day she says he touched her vagina in the minibus, there were other people on the bus.

85. CT gives evidence to the Crown Court. She gives evidence about HT’s drawings and the conversation she had with her on 19th August 2005 which is referred to earlier in this decision. She says that the service station where HT went up into the lorry is South Mimms. She knows this because HT told her so. 

86. She confirms that HT knows the days of the week because of her routines, but not dates. She says that HT has told her of another occasion when JS raped her.

87. The Appellant was acquitted.

88. The London Borough of Barnet then carried out its own investigation. The documents relating to that investigation are in the bundle.

89. On 20/10/06 the Appellant is interviewed by Amanda Jackson. He makes a total denial of the allegations and describes the difficulties in dealing with HT. He has heard HT talking about sex with other residents whilst in the minibus. He maintains his denial throughout.

90. On 6/10/06 HT’s parents are interviewed. CT says that she feel that the whole period 1/06/05 to 14/08/05 should have been investigated. HT knows the days of the week and months of the year but has no concept of time. She describes HT as “a complete innocent” and describes the images drawn by her as totally beyond her knowledge. CT says that HT told her that, after she had been inside the lorry, JS appeared and raped her and this was at South Mimms. She believes that JS took HT out on her own on this occasion specifically to take her to the lorry. It was a separate incident. HT could not be confused and she is guileless.

91. CT is asked if HT could have been describing something that happened to her but not with JS. She replies “No, because she came home last weekend and said “I like C, he’s my friend but he says dirty things.” HT’s father JT says “She said in a whisper “ C said some dirty things to me. He said he wanted to f…. me. But I like C…”

92. Michelle Tuddenham, psychotherapist, was interviewed by Amanda Jackson on 26/09/06. The record of that interview appears at document 143. She explains how HT suffers from “echolalia”, that is she repeats what she hears. Her artwork is more significant than what she says. She cannot create fantasy from nothing. She does not have autonomous fantasy ability. She has no sexual identity as a woman at all.

93. Moji Malomo was interviewed on 29/09/06. The record of that interview is at document 149. She states that HT was very anxious before making the allegations.

Tribunal’s  Findings and Decision

94. HT suffers from communication problems with features of autism. That makes assessing her evidence extremely difficult. We are told by her mother CT that whatever she says or draws is the truth because she is guileless and cannot make things up. This is supported to some extent by Michelle Tuddenham who told the Tribunal that she is not capable of imagining anything, although the Tribunal notes the description she gives of the condition HT suffers, echolalia.

95. This view of HT is not supported by the evidence of Margaret Rustin who has known HT since her early years. She describes HT as having a vivid imagination. She could not say that HT would never make anything up but she, personally, had not observed it. Before she had become involved with HT the boundary between HT’s “outside” and “inside” world had been blurred and her work had been to try and separate the two. She said that to say HT could not imagine an event was “wholly inaccurate”. Also the letter HT wrote home referring to going into a lorry, which is described earlier in this decision, indicates the use of imagination on HT’s part. Although she wrote stating she went  into a lorry, she added “I pretended it was a balloon.”

96. Similarly, CT describes HT as a “complete innocent” and says that HT could only have produced the drawings if she had experienced the events depicted. Since she is confident that HT has never had any sexual experience before, she is satisfied that the events drawn are an accurate depiction.  Michelle Tuddenham says that HT is unaware of her own sexuality. This is not supported by the evidence of Ms. Rustin who told the Tribunal that HT had discussed sex with her for many years and was aware of her own sexual feelings. Although she was aware of having a sexual body she wanted to keep it away from other people. HT talked about her sexual feelings and had sexual fantasies about her own body and her own physical experiences. Furthermore, HT had described to her, what Ms. Ruston believed to be, sexually abusive behaviour by boys when she was a young girl. Also, the Tribunal heard that suggestions of a sexual nature had been made to her by C. This account postdated the allegation being made but evidence was heard that HT and C had been seen holding hands and two days prior to the original allegation being made, the Appellant overheard C asking HT to go up to his room with him. HT’s evidence to the Crown Court was that the Appellant’s intervention at that point made her very angry; she thought it was none of his business. Nevertheless Ms. Rustin believes the account given by HT of the events alleged to be true as, indeed does Michelle Tuddenham. 

97. The chronology of the events in this case is important. The Tribunal notes that HT’s version of what happened changed and expanded over the months leading up to the Crown Court trial and beyond it. The initial allegation which is of JS showing her his penis and asking her to show him her vagina is, of course, behaviour sufficient to amount to misconduct which renders the Appellant unsuitable, if true. However, the evidence is that this allegation was made a short time after the Appellant had upset HT. The Tribunal was told that it is very easy to upset HT and comments that may seem totally innocuous to other people can cause her to react extremely. It is clear that Afshan Mustafa’s notes of the initial allegation state that HT appeared very anxious and kept on saying “I am not telling fibs”. She was also insistent that the incident happened on a Friday. We know that HT knows the days of the week, particularly Fridays because they are her “H days”. This is significant because, although we are told that whatever HT says must be right, because she is incapable of inventing things, when she next talks about the incident, it happened, according to her, on a Monday. She also makes the comment that she thinks JS will get the sack. The Tribunal considered that this was a most unusual thing for her to say, given her disability, and suspects that she is repeating something that has been said to her - “echolalia”.

98. HT’s next interview is with PC Bonomi . As indicated above, she makes no reference to the Appellant. She merely refers to “he” and “his”. PC Bonomi gets the Appellant’s personal details from a member of staff and cannot remember if HT was in the room at the time.

99. On the 18th August, to DC Riley, HT alleges rape.

100. She then goes home, by which time her parents have been apprised of the allegation. They are understandably distressed and concerned and the first mention of the Appellant comes from CT, not HT, who says “We know what JS has done…”. All that happens thereafter reinforces to HT that it was the Appellant. That includes the ABE interview that took place with the police. Presumably, someone told HT where she was being taken when she attended the police station. The tribunal does not know what was said to her or whether an explanation was given. It is not known whether the Appellant’s name was mentioned but it may well have been. The suggestion by counsel for the Respondent that significant reliance should be placed on the fact that references to JS are made by HT even before a question is asked would indicate that she knew why she was being interviewed. Everything that was said to her, either by her parents, staff at the home or the police was predicated on the basis that JS was the perpetrator.

101. There is no evidence, apart from Miss Malomo, that HT exhibited any undue distress prior to the allegation being made or in the period leading up to her visit home on 19th August. Miss Malomo’s assertion in her interview with Amanda Jackson at Barnet Borough that HT exhibited a heightened level of anxiety prior to her making the original allegation is not borne out by the evidence of other witnesses.

102. It is undoubtedly the case that, following the original allegation having been made, HT’s levels of anxiety increased. That is not surprising given the understandable distress her parents will have experienced and the fact that HT’s routine must have been disturbed considerably. She found herself talking to police officers, psychotherapists and ultimately giving evidence in court, albeit by videolink. This would have heightened anybody’s stress levels, let alone someone with HT’s condition, a fact confirmed by Michelle Tuddenham as stated above.

103. The Tribunal understands that CT’s view of this matter will be based on the natural distress felt by her as HT’s mother and her entirely reasonable desire to protect her daughter and see justice done. It has no doubt that the account she gave to the Tribunal of what HT said to her, the pictures she drew and the allegations made subsequently by HT, leading up to the trial and, beyond that, to the enquiry by Barnet Borough, are accurate. She believes that the Appellant, on a different occasion, removed HT from the home, took her to a lorry park at South Mimms and raped her. She was adamant about this when being cross-examined by the Appellant. She is adamant because she says HT is incapable of making things up. However, the evidence of the experts is conflicting in this matter as set out above. 

104. The Appellant has always denied the allegations. His denial has remained steadfast throughout the history of this case. At the Tribunal hearing, much was made of the explanation he gave to police for his semen being on the carpet in the day centre. It was suggested that the only reason for explaining about his medical condition was that he knew evidence would be found and he needed to “head it off at the pass”. The Tribunal does not accept that this is made out. The Appellant was in a police station for the first time in his life, being interviewed about an alleged rape. He would be under enormous pressure. With the greatest respect to him, he did not appear to the Tribunal as a calm and sophisticated man who would have taken such a scenario in his stride. In the final event, no DNA evidence was found, but the Tribunal does not consider that the Appellant’s attempts to explain away the possible presence of his DNA at the scene is indicative of a guilty man. His subsequent evidence as to when he last took a shower in the day centre renders him less credible, however. In his police interview he said that it was the Tuesday before he was suspended, but, in cross-examination, accepted that, in fact, he had not showered there for several months before.

105. The Tribunal has heard no evidence of any attempt by the Appellant at grooming HT. Indeed, the witnesses who attended the Crown Court trial on his behalf spoke highly of him and said that they had never been witness to anything to give them cause for concern. Witnesses for the Respondent from New Fieldways did not allege grooming.

106. The Tribunal is at pains to say that they do not believe that HT has maintained a lie throughout the course this case has taken. However, the original complaint on 14th August 2005 was made after a number of events where the Appellant had inadvertently upset her. The suggestion that she is unaware of sexual behaviour is not borne out by the evidence. Whether there had been an event where HT had blurred a number of matters together is speculation. Certainly, the evidence of Margaret Rustin is that she had been capable of this, albeit in the past. Once the allegation was made, everything that happened subsequently, reinforced to her that it was JS who had done it and, as a result, her subsequent accounts and extended allegations are tainted.

107. The burden of proof in this aspect of the statutory test is on the Respondent. The Tribunal must be satisfied, on the balance of probabilities, that the Appellant has been guilty of misconduct. Weighing all the evidence together, the Tribunal cannot be satisfied, on the balance of probabilities that all or any of the allegations made by HT about JS took place. Some of the events described may well have occurred but the Tribunal cannot be satisfied, on balance, when they occurred or, more importantly,  that it was JS who was the perpetrator for the reasons set out above. That being the case, it follows that it is not satisfied that misconduct which harmed or placed at risk of harm a vulnerable adult is proved on the part of the Appellant. The question of suitability, therefore, has not been considered.

108. The appeal is allowed. The Tribunal directs that the name of the Appellant should be removed from the PoVA and PoCA lists forthwith.

109. This is a unanimous decision.

Carolyn Singleton (Tribunal Judge)
Bez Chatfield
Claire Trencher