AJ (2)
-v-
Secretary of State
[2009] 1527. PC
[2009] 1528. PVA

-before-

His Honour Judge David Pearl
His Honour Judge Phillip Sycamore
Ms Caroline Joffe
Introduction

1.	The Appellant in this case appeals from the decision taken by the Secretary of State on 12th June 2006 to confirm his name on both the PoCA list as unsuitable to work with children and the PoVA list as unsuitable to work with vulnerable adults. 
2.	The appeals came before the Care Standards Tribunal, and by a decision dated 28th February 2008, the Tribunal allowed both appeals [2006] 767.PC; [2006] 768.PVA. 
3.	The Secretary of State appealed that decision by way of a statutory appeal to the High Court then available to him. By a decision dated 29th February 2009, the High Court (Pitchford J) allowed the appeal and remitted the matter for a re-hearing before a freshly constituted Tribunal. Pitchford J’s judgement is at [2009] EWHC 524 (Admin). 
4.	We heard the case over five days from 26th – 30th October 2009 when the Appellant appeared in person, and the Secretary of State was represented by Mr Phillip Coppel QC.

Jurisdiction

5.	The relevant provisions of the Protection of Children Act 1999 have now been repealed as from 12th October 2009 by the Safeguarding Vulnerable Groups Act 2006 s 63(1) and schedule 10. 
6.	There are however transitional provisions as set out by the Safeguarding Vulnerable Groups Act 2006 (Commencement No 6, Transitional Provisions and Savings) Order 2009 [SI 2009 No 2611]. Articles 5 to 7 of that Order provides for savings in relation to individuals who immediately before 12th October 2009 are still subject to the old barring regimes. The Order states that where a person has not been included in the children’s barred list by that date (or where a person has been included in that list under the provisions of the Transitional Provisions Order 2008 [SI 2008 No 473] but no final decision has been taken in their inclusion), then the old barring provisions will continue to apply instead of section 3 of the Safeguarding Vulnerable Groups Act 2006, up until one of the events as set out in Articles 5(5), 6(5) or 7(4) occurs.
7.	The events as set out in these Articles, in summary, are that (i) the person is removed from the former list, or (ii) is included in the new barred list, or (iii) where the Independent Safeguarding Authority decides not remove the person from the old list. Mr Coppel in his outline opening skeleton argument put the position of jurisdiction succinctly as follows: “For the purposes of determining an outstanding appeal under s 4 of the Act, article 5 of [the 2009 Order] provides that, despite that repeal, the provisions of the Act continue to have effect in relation to a person who, immediately before 12th October 2009, was both included in the List and had not been dealt with under the newly-established children’s barred list.” We agree with Mr Coppel’s analysis of the transitional position, as did the Appellant.
8.	The previous decision of the Tribunal was quashed by the High Court, and the effect of that decision was that the Appellant’s name was restored onto the PoCA and PoVA lists. Mr Coppel confirmed to us that none of the events as set out in paragraph 7 above has occurred. In other words, the Independent Safeguarding Authority has taken no action at all in relation to the Appellant in this case.
9.	The decision of the High Court was to quash the previous decision of this Tribunal and to remit the matter for a hearing before a freshly constituted Tribunal. 
10.	Pursuant to paragraph 6 of the Senior President’s Practice Statement (Composition of Tribunals) dated 15th December 2008, the President of the Health Education and Social Care Chamber of the First Tier Tribunal (of which Care Standards is a part) directed on 24th June 2009 that the new panel was to comprise two judges and one other member who has substantial experience of educational, child care, health or social care matters. This direction was communicated to both parties.
11.	We have approached this appeal by way of a rehearing, and although we have of course read the earlier decision (which is a matter of public record), we have considered only the evidence which has been presented to us by way of oral and documentary evidence.
12.	The documentary evidence comprises the statements and documents filed in connection with the previous hearing before the Tribunal other than those statements and documents that have been removed pursuant to paragraph 1 of the Direction dated 3rd June 2009, and additional material filed pursuant to paragraph 2 of that Direction.
13.	As we indicated, the Tribunal has read the decision of the first Tribunal and the decision of the High Court as both decisions are a matter of public record and are available on public websites. The approach that has been adopted, as recently approved by this Tribunal in JF v Secretary of State [2008] 1276 PVA is that in a rehearing it does not consider the oral evidence that was presented to the Tribunal on the earlier occasion, and in consequence a transcript of the earlier hearing has not been ordered to be made available [Direction of the Tribunal dated 27th July 2009].

Burden and Standard of Proof

14.	The burden of proof rests with the Respondent to satisfy us that the Appellant was guilty of misconduct which harmed a child or placed a child at risk of harm, and that the Appellant is unsuitable to work with children and with vulnerable adults. 
15.	The standard of proof is the civil standard of the balance of probabilities. We apply the standard of proof as set out in the speeches of the House of Lords in Re B (Children) [2008] UKHL. Lord Hoffman said “…There is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not.” Baroness Hale, said: “Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are something to be taken into account, where relevant, in deciding where the truth lies.” Although Lord Hoffman and Baroness Hale were considering Care proceedings in Re B (Children), their comments, in our view, are applicable to the issues that we have to decide in PoCA, PoVA and List 99 appeals. 
16.	We accept Mr Coppel’s description of the object of the list in his outline opening skeleton argument that “the list is not punitive. It is not disciplinary. Still less is it intended to shame or stigmatise a person.” The overriding purpose of the list is a safeguarding provision; to lessen the potential risk of harm to children by preventing those who are guilty of misconduct that harmed a child or placed a child at risk of harm and who are in consequence deemed unsuitable to work with children, from being in a position to have extended unsupervised contact with children. Nonetheless, the allegations in this case are serious; and the consequences for the Appellant are also serious.
17.	Baroness Hale said in R (Wright) and others v Secretary of State for Health [2009] UKHL 3 at para 36: “The scope of the ban is very wide, bearing in mind that the worker is placed on both the POVA and POCA lists. The ban is also likely to have an effect in practice going beyond its effect in law. Even though the lists are not made public, the fact is likely to get about and the stigma will be considerable.”  
18.	Lord Hope, when citing Baroness Hale’s remarks, made much the same observations but in a different context, in R (on the application of L)(FC) v Commissioner of Police of the Metropolis [2009] UKSC 3: “[She] is entitled also to have her good name and reputation protected…As Baroness Hale said…the fact a person has been excluded from employment is likely to get about and, if it does, the stigma will be considerable.”
19.	The list has very serious consequences for an individual whose name is confirmed on the list [and that is why the House of Lords in Wright decided that both article 6 and Article 8 of the EConHR are engaged], and this Tribunal has had sufficient experience, in dealing with these appeals over the last decade, of witnessing the consequences for individuals whose names have been confirmed on the list. 
20.	Our view of the seriousness of the consequences, however, does not affect our approach when applying the standard of proof; namely the civil standard of the balance of probabilities.

The law to be applied

21.	Section 4(3) of the Protection of Children Act 1999 provides:
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 a child or placed a 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.

22.	 Section 86)(3) of the Care Standards Act 2000 has similar wording in relation to the vulnerable adults list. 
23.	The law is now well settled. As the Tribunal said in AH v Secretary of State [2009] UKFTT 176: “There are only three matters that the Tribunal must consider... First, we must decide whether or not the Applicant is guilty of misconduct. Secondly, did this misconduct harm or place at risk of harm a child or vulnerable adult? Thirdly, but only if we are satisfied as to the first two conditions, is the Appellant unsuitable to work with children and/or vulnerable adults. The Respondent carries the burden of proof on the balance of probabilities. In Secretary of State v Sini [2009] 1 All ER 1025, Goldring J (as he then was) in approving the approach taken by this Tribunal said that on a true construction of the legislation (in that case s 86(3) Care Standards Act 2000, but the wording is the same as the Protection of Children Act 1999) there was no restriction on the allegations of misconduct which could be considered by the Tribunal. Accordingly, as this Tribunal is not restricted to considering only the details of the alleged misconduct which constituted the basis of the original referral, it necessarily follows that it has no jurisdiction to consider whether the initial referral was or was not within the terms of the Protection of Children Act.” This is the approach that we apply.

The particulars of misconduct

24.	The particulars of the misconduct are set out in Mr Coppel’s outline opening skeleton argument as follows:

First particular of misconduct: 
The Appellant, in the course of his being an Instructor in the Sea Cadets, showed R L, a 13 year-old Sea Cadet in his charge, pictures of human sexual penetration. 

Second particular of misconduct: 
The Appellant, in the course of his being an Instructor in the Sea Cadets, permitted R L, a 13 year-old Sea Cadet in his charge, to consume alcohol. 

Third particular of misconduct: 
The Appellant, in the course of his being an Instructor in the Sea Cadets and without invitation or cause, placed his hand inside the sleeping bag of R L, a 13 year-old Sea Cadet in his charge, and touched his penis as he did so. 

Fourth particular of misconduct: 
The Appellant, in the course of his being an Instructor in the Sea Cadets, permitted R L, a 15 year-old Sea Cadet in his charge, to consume alcohol. 

Fifth particular of misconduct: 
The Appellant, in the course of his being an Instructor in the Sea Cadets and without invitation or cause, masturbated J B, a 13 year-old Sea Cadet in his charge, causing him to ejaculate. 

Sixth particular of misconduct: 
The Appellant, in the course of his being an Instructor in the Sea Cadets and without invitation or cause, placed the hand of J B, a 13 year-old Sea Cadet in his charge, on the Appellant’s penis. 

Seventh particular of Misconduct:
The Appellant, in the course of his being an Instructor in the Sea Cadets, permitted J B, a 13 year old Sea Cadet, in his charge, to consume alcohol.

Eighth particular of misconduct: 
The Appellant, in the course of his being an Instructor in the Sea Cadets and without invitation or cause, placed his hand on the penis of D S, a 13 year-old Sea Cadet in his charge, leaving it there for a period of upwards of one minute. 

Ninth particular of misconduct: 
The Appellant, in the course of his being an Instructor in the Sea Cadets and without invitation or cause, pulled down the shorts of D S, a 13 year-old Sea Cadet in his charge, and kissed his penis. 

Tenth particular of misconduct: 
The Appellant, in the course of his being an Instructor in the Sea Cadets, permitted D S, a 13 year-old Sea Cadet in his charge, to consume alcohol. 

25.	There are further allegations as set out in statements from and evidence we heard from Royal Navy ratings. The Respondent does not rely on this evidence as specific evidence of misconduct, but as evidence first, to provide “similar fact evidence” to corroborate the evidence as set out in the particulars of misconduct that involve sexual assaults, and secondly, as evidence relating to the Appellant’s unsuitability to work with children and vulnerable adults.
26.	Thus the Respondent submits that, on the civil standard of proof and in relation to each of the ten particularised instances of misconduct, the conduct complained of did take place.
27.	The Respondent submits further that each of those instances of misconduct harmed a child or placed a child at risk of harm, and that by reason of that misconduct, and also by reason of the misconduct described in the statements of the Royal Navy ratings, the Appellant is unsuitable to work with children and vulnerable adults. 

The background 

28.	 The Appellant was born in October 1961, and he joined the navy when he was 16 years of age. In 1997 he became the Chief Instructor for the Royal Navy in Submarine Escape and Rescue and it is clear from the appraisal reports that we have seen about him that he has become a leading specialist in this field.  
29.	Since March 2009 he has been the Command Warrant Officer for the Submarine Service. He states in his statement dated 6th September 2009 that he is “the senior non-commissioned officer within the submarine service and one of the 4 equal senior non-commissioned officers of the Naval Service.” His responsibility is for the Welfare and Moral Component of Operational Capability within the Submarine Service.
30.	The Appellant’s qualifications are not disputed by Mr Coppel. Indeed, in his closing submissions Mr Coppel states: “No-one disputes the impressive skill and expertise of the Appellant in relation to submarine escape techniques. No-one disputes the danger involved and the courage required in the Appellant’s occupation. It is not for a moment suggested that in any of these matters the Appellant should do other than command respect.” This is a statement of which we entirely agree.
31.	The events with which we are concerned commenced in 1997. The Appellant states in his statement, and on which he gave evidence, that in the winter of that year he met the Commanding Officer of the local Sea Cadets, and he was asked if he would come and help at the Sea Cadets, which he had done before in the 1980’s prior to going to sea.
32.	What then occurred is summarised by Pitchford J at paras  6, 7 and 8 of his judgement: “On 6th October 2000, he was arrested following an allegation of sexual assault by one of the male Sea Cadets. Also between September and December 2000, AJ was subject of an investigation, by the Royal Navy, into allegations of sexual misconduct towards ratings, taking place in an entirely different context…On 6th December 2000, charges of indecent assault were made against AJ concerning three males under the age of 16. A trial took place at the Crown Court on 15th April 2002…AJ was found not guilty of the charges which related to the complainants JB and RL; but the jury was unable to reach a decision concerning the witness [DS]. A retrial was ordered which was held on 1st September 2002. The jury returned verdicts of not guilty in respect of the charges concerning [DS]…[N]o trial of the ratings’ complaints ever took place”.

Fifth, sixth, and seventh allegations of misconduct: JB, the complainant.

33.	We have decided that the most appropriate way to analyse the evidence is to consider in the first instance, the evidence relating to the fifth, sixth and seventh allegations, all of which relate to complaints made by JB.
34.	 We have adopted this approach for two reasons; first, JB gave evidence before us and did not do so before the first Tribunal panel on the earlier occasion. Thus, we have the benefit of being able to analyse live evidence that was not before the earlier panel. Secondly, the evidence relating to the fifth, sixth and seventh allegations concern a discrete event away from the off shore yacht trips, about which the other allegations are concerned.
35.	JB was born on 3rd September 1986, and he is therefore 23 years old at the present time. He made a witness statement on 10th September 2009 concerning the events alleged to have taken place on Friday evening to Saturday morning 21st – 22nd July 2000, more than nine years ago. He states in his statement and in his evidence to us that he had made this statement without the opportunity of being able to re-read the record of the police interview taken on 2nd October 2000. 
36.	He states in his witness statement that as he was going on the Yacht early on Sunday morning, AJ had suggested to his parents that he and another boy (PH) should stay overnight at the Sea Cadets building with AJ. It would seem also  that they were going to participate in a sponsored car wash early on the Sunday morning prior to going on the Yacht trip. He said that they stayed in the smallest room. He said that his Dad dropped him off between 6.00pm and 7.00pm, and that AJ and PH were already there. He states in his statement that “As soon as I joined them, AJ got out a case of beers and we sat there having a couple of drinks.” It is alleged that AJ then phoned up for a Chinese takeaway and they went out in AJ’s car to pick it up. He said that they then went back to eat the meal and they had a few more drinks. They then went to sleep in their sleeping bags, all three of them in the small room. 
37.	JB describes in his witness statement in vivid detail what happened next; namely that he woke up in the middle of the night to find AJ masturbating him until he ejaculated; and that thirty seconds to a minute later AJ took JB’s hand and put JB’s hand on his (AJ’s) penis. 
38.	He was interviewed by the Police on 2nd October 2000. The record of that interview contains a description of what happened on the evening of 21st/22nd July 2000. His description of being masturbated until ejaculation and then having his hand being placed by AJ on to AJ’s penis is consistent with what he stated in his witness statement in 2009, except that he told the police that he woke up to find that he had ejaculated, that he cleaned himself up with a haribo bag, and that AJ took his wrist and his arm and placed his hand on his (AJ’s) penis. 
39.	In his 2000 interview, he told the police that the other boy, PH, had said to him “make sure you keep your sleeping bag zipped or sleep on your front.” He said also that after he told PH what AJ had done, PH said “apparently he has done it to R before”, but JB said that he did not know anything about that.
40.	There is another answer in the police interview which we consider to be important. He was asked at the end of the interview if there was anything else he wanted to say. JB said “I don’t know but he might have been trying to get us both drunk because he gave both me and PH and himself a few beers while we were down there and he was teaching us sort of ground wrestling…”
41.	We saw the DVD of the interview and it is our opinion that the interview was conducted professionally, and every allowance was made for the fact that JB was at that time a young teenager.
42.	JB gave evidence in the criminal trial, and we have read carefully the transcript of his evidence given at Crown Court on 17th April 2002 which describes the incident in a consistent way to that told in the police interview.
43.	The Appellant acknowledges that he gave the two boys some drink that evening, although he disputes its quantity and states that it was drink taken with the Chinese meal. At para 39 of his final submissions, the Appellant states: “At the time, the Appellant believed that there was nothing wrong with allowing a small amount of alcohol under supervision to be drunk whilst eating. It is not a belief that he continues to hold. The Appellant utterly rejects any assertion the Respondent makes that he allowed them to have a drink in order to either reduce their inhibitions or for any ulterior motive whatsoever”. However, he denies the sexual assault, and he asserts that to claim, as JB does, that such an act took place in a well lit room with someone else present is beyond credibility. 
44.	The Appellant points to three matters that in his submission must cast doubt on the veracity of the allegation. First, he points to JB’s character and background; secondly, he points also to the fact that JB attempted subsequently to in effect “blackmail” him; and thirdly, he points to the fact that the witness statement refers to the fact that AJ went sailing with the boys (including JB) on that weekend immediately after the sleepover at the unit, a fact that the documentary evidence shows did not happen. 
45.	AJ submits that it is clear from the Special Educational Needs Statement that JB  had a history of being troubled long before the criminal case began in 2002. We have looked at JB’s background, and there is no doubt that he had difficulties at his schools, that his relationship with his parents was very worrying, and that there was evidence of serious behavioural problems. Surrey Social Services Risk Assessment in February 1999 describes JB as having a “complex psychological history and evidence of past behavioural problems. His condition appears to result in his pushing people to the limits in order to induce a negative response.” The Individual Education Plan at St P School dated April 1999 states that the Neuro- Psychiatric Department at Guy’s Hospital had diagnosed JB as having “significant social impairment and significant difficulties in empathy.” That same report states that JB had been expelled from schools amidst accusations of lying and stealing. It says that he is exceptionally able (IQ above 140) and that his parents are worried that he is not working to his potential. It is reported that the parents warned the school that he can be very manipulative and plausible.
46.	We have read the documentary evidence relating to the “blackmail” incident. JB agreed in his evidence to us that he wrote out the following script: “If you want [JB] to drop the charges pressed against you, then he has a request. Get pen and paper. He wants a Nokia 8210 on Vodafone... He wants with his name on the line. The box will be wrapped so people think it is a late Christmas present. You will leave an apology note inside. If this is done, he will not attempt to phone him. You will hear from me when he gets the phone…the phone will be delivered to…Sea cadet unit by Thursday 1st Feb…Nothing is said to anyone about this phone call and it is in your best interest to do as he asks.”
47.	Apparently three unanswered phone calls were made to AJ, and JB told us that his mother found the document in his bedroom. 
48.	JB was interviewed by the Police on the 6th February 2001 about this note, in the presence of his father and under caution. He was asked why he wrote the note, and he replied: “I realised that I wouldn’t be getting anything out of it in terms of compensations and also I really wanted that phone and it was the only way I could think to get it.” He agreed that he had phoned AJ three times in the space of five minutes, that he did not speak to him, but there was an answering machine and he did not leave a message.
49.	We turn to the third matter, namely the fact that in his witness statement JB states that he went sailing with AJ from the 22nd July and that his statement refers to being put in the stern with AJ and that AJ left a couple of porn magazines on his bed. There is a letter from the leader on that occasion [MF] to AJ dated 28th July 2000 informing AJ that they had a great week’s sailing, and providing reports on KT, JW, PH, JB, and AC. These reports were written in such a way that shows that AJ could not have been in the yacht during this trip.
50.	We have taken account of all three matters when considering the evidence in relation to the fifth, sixth and seventh allegations. As to the first matter, namely the history of JB, it is indeed true that JB had a troubled past. Nonetheless, he has maintained his account of the sexual assault that took place on 21st and 22nd July 2001 throughout. We believe that it would have been difficult, if not impossible, to invent in such detail a description of the assault, and then to maintain this description during the intervening years. The description of the sexual assault is of a very different kind to all of the other difficulties which marked JB’s early years. 
51.	As to the “blackmail” script, this in our view is an example of a school boy attempt to obtain a mobile telephone that he did not have. He did not actually carry out his “blackmail” attempt, the script being found by his mother, and although it would seem he did phone AJ he did not leave any message on the answerphone. 
52.	Turning to the third matter raised by the Appellant, namely that the witness statement seems to suggest that AJ went on the sailing trip with the boys after the sleepover at the unit, we have looked at the police statement again and notice that there is no reference at all to AJ going on the sailing trip. The witness statement was written many years after the event, and it is likely that JB is confusing the dates of the sailing trips he went on. This is in our view understandable given the passage of time, and indeed in cross examination, JB said: “I do recall you (AJ) being in one sailing trip. Possible you were not there in the sailing trip in July…”
53.	We have decided that the three points raised by AJ, although of relevance when assessing the evidence, must be placed against the weight of the evidence advanced by the Respondent. In addition to the consistent nature of JB’s evidence as to the central core, the point is made by Mr Coppel that the fact that JB decided to absent himself from the earlier Tribunal proceedings, but was prepared to provide a witness statement and give evidence on this occasion, is supportive of the allegations of misconduct. Mr Coppel points to the fact that it could not have been easy for him to give evidence about this event, and be exposed to (and to know that he would be exposed to) detailed cross examination about his early life. It is pointed out also that AJ freely admits that the boys were given beer and that it should not have happened. AJ had no involvement in that sailing trip and there was no clear reason for him and the boys to be staying overnight; AJ conceded that he could have collected them in the morning to take them to the sponsored car wash. AJ decided that he and the two boys stay overnight together in the smallest room in the Sea Cadets building, and not the gymnasium, which was usually used. No other adult was present overnight in the building.
54.	PH did not give evidence before us, but we have been able to read the transcript of the criminal trials. In the first trial, PH was asked whether he woke up in the night of the incident at the unit. He replied that he was woken up about two o’clock in the morning by JB who told him that AJ had harassed him, and that he looked really scared and quite frightened. He said that AJ had gone downstairs at the time.
55.	The Secretary of State has submitted that when considering the evidence, an essential part of the manner by which he wishes to prove misconduct is similar fact evidence. It is necessary therefore to consider the other allegations of misconduct made by DS and RL.

Eighth, Ninth and Tenth particulars of misconduct: DS the complainant.

56.	The eighth particular of misconduct is alleged to have taken place on the Sea Lion on a sea cadets trip around the Solent on 12th – 14th March 1999. The ninth and tenth particulars are alleged to have taken place again on the Sea Lion and on a trip around the Solent some time in August 1999.
57.	Both incidents involve DS who was born on 5th January 1986, and was therefore 13 at the time. The police interviews with DS took place on 22nd November 2000 and 22nd December 2000. We have read the transcript and watched the DVD of the interviews.  
58.	It is agreed that DS has greater difficulty expressing himself than JB or indeed the other young men in his peer group, and the transcripts of the interviews demonstrate some confusion about dates and details. Nevertheless, DS makes clear allegations about two incidents of being sexually assaulted by AJ whilst on the Sea Lion. 
59.	The witness statement was signed on 11th October 2007, and he states very clearly that “things happened on two of the sailing trips I went on with [AJ] when I was thirteen years old”. 
60.	As to the first of the sailing trips, he says in his statement that for all the nights on the trip he was sleeping in the bow at the front of the boat with AJ. He says that he was woken in the night and that “AJ was on his side behind me, facing my back, with his arm over me touching me. I was wearing boxers and he had his hand under my boxers, moving his hand over my penis, masturbating me.” He states that AJ then went on to his knees beside him and gave him a “blow job” which went on for about 5 to 7 minutes.
61.	He says in his witness statement that it was the only time that something happened on that trip. He didn’t tell anyone. He says that he is one of those people who bottles things up and he didn’t trust any of the cadets like that.
62.	So far as the second incident was concerned, he says that he slept in the bow again with AJ. He said that on the second evening, he woke up and AJ’s hand was under his boxers, masturbating him. He said that AJ gave him a “blow job” for five minutes or so. Again, he said that he did not tell anyone.
63.	 In his evidence to us, he stated (in answer to questions put to him in cross examination) that he had been assaulted on the two occasions on the boat, and also that he had been assaulted whilst at the Easter Camp. 
64.	Right at the end of his evidence, when he was asked a question from one of the members of the Tribunal about the Easter Camp, he replied that he could remember one incident on the Sea Lion, definitely at the front of the boat, and one incident at the Easter Camp.
65.	Mr Coppel in his submissions to us draws attention to DS’s limited command of language and how he has been prepared to come to the Tribunal twice to give evidence about events that happened some time ago, and to be subjected to detailed cross examination by the person he has accused of violating him. Mr Coppel invites us to find that the preponderance of the evidence that has been given by DS is that there were two incidents on the Sea Lion on separate occasions and as described by him in his evidence to the Police in 2000, at Crown Court, in his witness statement for the Tribunal proceedings and his oral evidence in examination in chief and cross examination.
66.	In looking at the evidence of DS, we have arrived at the conclusion that he had been on three sailing trips in 1999 on the Sea Lion. We have looked at the log books for the TS Leopald Muller in the year 2000, and it is apparent that DS was not on board either that yacht or either of the two other yachts. The alleged sexual assaults, in our view, could not therefore have occurred in 2000. 
67.	AJ’s submission, at para 27 of his closing submissions, is as follows: “During the course of his evidence to the tribunal, DS changed his story repeatedly when recalling the number of sexual offences allegedly committed against him, stating firstly that he had been touched, then that he had been masturbated, and then had oral sex performed on him on three occasions, once at Easter Camp and twice on board the yacht Sea Lion. The veracity of DS’s evidence is totally at odds with his testimony to the Tribunal, in which he confirmed that he went sailing on the Sea Lion on two or three occasions declaring that he was sexually assaulted on board the Sea Lion on two separate occasions, then going on to confirm that only once did he sleep in the same sleeping area, the saloon, as the Appellant and that nothing happened. On the other two occasions he states that he was onboard the Sea Lion, where he shared sleeping areas with Cadet W on one occasion and RL and W on another.” We shall weigh this submission against evidence supportive of a finding of misconduct later on in our judgement.
68.	The tenth assertion in the particulars of misconduct is that DS was permitted to consume alcohol. This particular of misconduct is alleged to have taken place in mid August 1999. The Appellant made what the Respondent termed “generalised admissions as to alcohol consumption” and it is the case that it was known to be improper at that time. However, when DS was asked at the hearing if he had ever had alcohol whilst on a sailing yacht, DS replied “No”. We agree with the Appellant’s submission that this answer, given clearly and in our view truthfully, undermines that allegation of misconduct. 
69.	DS’s answer about the alcohol helps to provide us with some insight into DS. It is our view, on analysing his evidence and having had the benefit of hearing him giving evidence for a considerable period of time, that this evidence does not exhibit the signs of a tangled web of lies that the Appellant would have us believe. There is a clear and consistent account of the alleged misconduct.
70.	DS said that RL (the complainant in relation in to the first to the fourth allegations) was a close friend of his although he was not his “best friend.” In his evidence to the Crown Court he gave an impression that RL was a particular friend of his. He said he did not have a best friend but RL “was more like a best friend to me than anybody else.” DS was asked in the Crown Court whether he saw RL outside the sea cadets, and he replied “On occasions yes, but not all the time because he live[d] too far away from me and he was in [G] at that time as well. 
71.	He was asked at the Crown Court whether at the time of the interviews with the police he had known about other allegations, and he replied that he did not know of any other allegation. 
72.	He denied in answers given at the Tribunal that he had told anyone about the alleged assaults at the time. 
73.	It is AJ’s case that JB and DS made allegations and continued to make these allegations because of the way RL was treated by AJ and that RL bore a grudge against AJ. It is to the allegations of misconduct concerning RL that we must now turn.

First, Second, Third and Fourth particulars of misconduct: RL complainant

74.	RL was born on 27th November 1984. He did not give evidence before us. Attempts had been made to find out his whereabouts but they had failed. We did however have the benefit of viewing the police interview dated 11th October 2000. His mother accompanied him at this interview.
75.	He was asked whether anything happened on any of the trips which he didn’t like. His reply went as follows: “…Well yeah, the first one was a sexual assault on my person by AJ. I fell asleep after letting me look at one of his pornographic magazines…I felt his hand going down the sleeping bag towards my person. When I felt that happen, I just took a deep breath and I think he instantly knew that I was awake and pulled his hand out quick as lightning”.
76.	He explained where it happened in the boat (the Sea Lion), and that it happened any time from a year to two years ago.
77.	He said that he told three people about this; PH, JD, and DW. He said that he told them “due to the fact that we were going soon again with just AJ and another one of his naval pals. I was urging them to, like, drop hints that they didn’t want to sleep with him and they were asking me why, and I told them about it.”
78.	The first allegation of misconduct concerns the showing of a pornographic magazine by AJ to RL. The Respondent accepts that the precise date on which this misconduct is alleged to have taken place is unclear, but that it must have happened on the Sea Lion within the period October – November 1998. 
79.	RL said in his interview that AJ took the magazine from him because he (RL) had found it hidden down the side in the after cabin. He said the magazine was very explicit, that it was from Germany with shots of penetration. He said AJ took it and put it in his bag, and then he got it out and chucked it at him and said “Look at it if you want.” His evidence at the Crown Court was consistent with the interview.
80.	The Respondent submits that the evidence supports the conclusion that the Appellant supplied the magazine to RL. 
81.	The Appellant in his evidence to this Tribunal admitted that there was a pornographic magazine on the boat on that occasion, but he told us that he would not have allowed youngsters to look at such a magazine and, when he found it,  he confiscated it and placed it in his rucksack. Apparently, according to AJ, RL took it out of his rucksack and he had to confiscate it for a second time. He said that he gave RL a verbal lashing over it. He said that he was sure that the senior sailing instructor (DN) was aware that the magazine had been confiscated, and was equally aware that RL had taken it again. AJ was adamant that the magazine was not his, and he did not allow RL to read it in after cabin.
82.	The second particular of misconduct concerns the same trip, when it is alleged that AJ permitted RL to consume alcohol. RL was 13 at the time.  The Respondent has referred the Tribunal to the notes of the police interview with RL in support of this allegation. The interview however paints a different picture to that urged on us by Mr Coppel. RL says that “I mean at 13, 14 I already had facial hair growing, therefore you know, I just didn’t shave for a couple of days and Bob’s your uncle. I could go into a liquor store and buy some alcohol.” 
83.	We have read the transcript of the evidence given by DN at the Crown Court and it is the case that DN never saw AJ give alcohol to any of the cadets.
84.	There is another allegation (fourth particular) of permitting RL to consume alcohol, namely in February – March 2000, again on the Sea Lion. The Appellant says simply as to this incident that he was the skipper of another vessel, the TS Leopold Muller and RL was not on that vessel but was on the Sea Lion.
85.	We turn therefore to the third particular, which is an allegation of sexual assault on RL which is alleged to have taken place on the voyage October – November 1998.
86.	AJ makes ten points in his closing submissions in support of his denial of any sexual assault in relation to RL. They are as follows:
i.	When the Police first spoke to RL on 5th October 2000, he indicated that he knew that the Police wished to speak about the Sea Cadets. As the police had not previously provided any such information to him and they failed to ask him how he knew, the Appellant believes it is possible that he got this information from another cadet.
ii.	During this interview, RL said that he had left the Sea Cadets because he was being victimised by the Staff. Asked to name the staff he disliked he gave [other] names and it is significant that he made no mention of the Appellant.
iii.	RL said that he enjoyed sailing trips, and it seems incredible that he failed to qualify his answers by mentioning the allegation of sexual assault that the Respondent is relying upon.
iv.	Presented with another opportunity to tell Police of a sexual assault by an adult, he said only that he had been “touched up” by another cadet about two years before. RL informed the Police that this person (AI) was in the army.
v.	During the subsequent interview on 25th October 2000, RL described AI as his best mate.  It is suggested that RL deliberately lied to the Police as “he must have been fully aware at the time of his previous interview that AI was not in the army.”
vi.	AI was interviewed by the Police on 14th November 2000. AI confirmed that he and RL were best mates, and he denied that the events as described by RL had happened. The Appellant states that it is relevant to note that the record of an Interview Planning Committee involving the Police and Social Services describe RL as having an “age appropriate” sense of time.
vii.	In the police interview, RL claims that the Appellant was sleeping right next to him about half a foot apart when the alleged assault took place. On cross-examination in the Crown Court, he agreed with the Judge that he had said to CH that the Appellant had got off the bunk and touched him. The Appellant believes that these totally different versions are indicative of his predilection to lying.
viii.	At the interview, it was only when he was prompted by direct questioning that he said anything about misconduct by the Appellant. He was vague about when it occurred although he was able to give a quite detailed description of what, by comparison, were singularly inconsequential things such as type of kit bags and colour of sleeping bags.
ix.	Questioned further, and in particular why nothing was said at the time, RL replied “since that time, we had, like a silent agreement if you would, that he and I never slept in the same cabin again.” When talking to the police about the alleged incident with AI he said that there was a silent agreement in this case also.
x.	RL’s evidence throughout is riddled with inconsistencies, vagueness and unsubstantiated allegations.
87.	Mr Coppel accepts, as he must, that the non-attendance of RL means that his testimony cannot be given the same weight as that of other witnesses who have attended the Tribunal hearing. Mr Coppel states that had he attended the Tribunal to give evidence, that would have made his evidence more compelling. Mr Coppel submits that in the police interview (and we of course saw a DVD of that interview and have read the transcript) he gave a matter of fact account of what had taken place. He acknowledges that it is possible to identify occasional timing inconsistencies but that this does not materially detract from the accounts that he gave. Mr Coppel states that “he was describing in front of adults what for most adolescent boys would be a matter of very considerable embarrassment. Despite these difficulties, he gave a plain, dignified account of events described.”
88.	The Appellant submits that RL has a grudge against him, because the Appellant said that after a sailing trip in October 1999, he made it clear that he was not prepared to take RL sailing again because of his disruptive behaviour. In fact, RL did go sailing again on two occasions and in March 2000, AJ was on the trip although it is the case that he was not on the same boat as RL.
89.	On its own, and in the absence of any similar fact evidence, it is our view that the arguments advanced by the Appellant and set out in paragraph 86 above would have been sufficient to persuade us that the Respondent had not made out the case in support of the sexual assault against RL. However, the Respondent has argued that there is a similarity between the allegations of all three young men, that there is no evidence that the complainants decided to collaborate so as to concoct stories about AJ, and that there is also the evidence of the fourteen ratings dealing with complaints about AJ in training activities for submarine escape. It is to that matter that we now turn.

The evidence of the ratings.

90.	The Royal Navy Special Investigation Branch investigation involved interviews with a large number of ratings who had attended training at the Submarine Escape Tank Training (SETT) in the Tower on various dates in 2000 when AJ was the Chief Instructor. The type of training involved confidence training, “dry runs”, quality control exercises, rush escapes, and meter lock drill. 
91.	The investigation arose out of a complaint made by JW. He has signed a witness statement for this hearing dated 26th August 2009 and he gave evidence to us. He states in his statement and he repeated to us that in preparing the witness statement he had not re-read the statement that he made at the time, but he has simply put down things as he now recalls them. 
92.	JW presented as a very plausible witness with a clear sense of what is right and what is wrong. In his witness statement he describes how during the “dry run” exercise, whilst wearing a plastic suit, he felt AJ’s hand pressing against the plastic suit in the location of his crotch. He states: “Although in the plastic suit, I distinctly felt his hand placed flat in the location of my crotch. It was definitely pressing against me although not with any great force. It gave me a shock so I missed most of what he was saying, I could not believe it happened.” He says in his statement that at one point AJ moved his hand from his crotch in order to point to some apparatus, and he then moved it straight back.  He says that he could not think of a valid reason why AJ had put his hand there because throughout the time he (JW) was holding firmly on to the ladder. 
93.	After he got out of his plastic suit, he spoke to the instructor who was in charge of the theory side of the training (AL). He said that he wanted to make a complaint, and later that day two plain clothes officers came to see him and take a written statement. 
94.	AL gave evidence to us at the hearing and he confirmed that a complaint had been made by JW, and that JW was removed from the building. AL confirmed in his evidence to us that there was no reason for AJ to have placed his hand in the vicinity of a trainee’s crotch during the “dry run” procedures.
95.	There are a number of uncertainties about whether the “hatch door” was open or closed, but in his evidence to us he made it clear that he could not say for definite whether the hatch was open or closed. AJ’s colleague, AL, told us that the hatch is kept open for the dry run, and it may be that JW was mistaken in his recollection on that matter. 
96.	The other rating who gave evidence to us was AP, who had attended confidence training in February 2000. He explained that he was helped in his breathing techniques, and that AJ “gradually moved his hand lower down and inside the top of my swimming trunks.” He said that he attended training sessions three times a week, and after the first time AJ touched him, it happened nearly every time after that and that sometimes when AJ had put his hand under his swimming trunks, his little finger would come out and make contact with his penis.
97.	We have seen the statements given by the other ratings at the time. For example, DAD in May/June 2000 said that during the dry run, AJ placed his hand on his (DAD’s) testicles as if he was playing with and stroking them. PRJ states that in the dry run training 5-9 June 2000, AJ placed his hand on his groin where it stayed for 1 to 1.5 minutes, and PRJ said that during his dry run training (8th and 9th June 2000) AJ cupped his penis and testicles with his right hand and stroked them for approximately two minutes. JSP and PSM made similar statement in relation to the “dry run”. There are also complaints connected with the 9 meter lock exercise, the quality control exercise, and the rush escape (for example BM in the rush escape in June 2000: AJ pressed his right hand on to his groin with his fingers on his penis).
98.	AJ’s explanation is that some of the events described could have been accidental, that in others the ratings misinterpreted what had happened, that they had a faulty memory, that the description was inaccurate, and that in the rush escape in particular there is such a melee of events that there was bound to have been physical contact but that it was not in any way sexual.
99.	The Respondent invites this Tribunal to reject the contention made by the Appellant that all Royal Navy ratings, in the accounts given in their witness statements, and in the case of two of them, the accounts given under oath to us, had misinterpreted what was no more than necessary physical manhandling that was part of the training process. Further, the Respondent invites the Tribunal to accept the essential elements of the accounts given; namely, that the Appellant, uninvited and without excuse, manually contacted each of the rating's genitals in a manner and for a duration that was inconsistent with inadvertence.
100.	Mr Coppel states, therefore, and asks us to find that on the basis that the incidents involving the Royal Navy ratings occurred in broadly the manner described in their witness statements, they make it significantly more likely that the events described by RL, JB and DS are neither invented nor inaccurately described. 
101.	The Appellant was removed from the procedure as soon as the allegations were made and, as a result of the whole investigation the process in the tower changed. The Navy Prosecuting Authority did not pursue the matter for four reasons 
•    demonstration training included contact which might be misconstrued; 
•    A number of trainees were aware of rumours concerning AJ both before and/or after their training and that raises the obvious issue of whether this knowledge may have created in their minds an expectation which was not true. In other words, the complainants interpreted AJ's conduct that was consistent with what they had been told to expect and had disregarded an innocent explanation;
•    Until JW made his complaint in August 2000, none of the other trainees had made a complaint at the time; 
•    Apart from the complainants, there is a large number of other trainees (perhaps hundreds) who have been instructed by AJ without complaint.
102.	We have considered carefully the evidence involving the navy ratings, and reflected on the decision taken by the Navy Prosecuting Authority. Our conclusion on this evidence is that JW’s complaint, given immediately to AL has the ring of truth to it, and we reject the suggestion that the contact was accidental. We were impressed by his evidence. Likewise, in relation to AP, we have formed the view that he was a credible witness who made it absolutely clear to us that the touching could not have happened inadvertedly. 
103.	There is no reason why JW and AP should come to the tribunal and lie. Their accounts are clear and totally consistent with what they said in 2000. We accept their evidence.

Our findings

104.	We turn therefore to set out our findings. We have read carefully the decision of Pitchford J in Secretary of State v J [2009] EWHC 524 (Admin), and in particular paragraph 37. Pitchford J said the following: “In assessing the probative force of the evidence, the tribunal of fact will need to consider at least three things. Firstly, the risk of collaboration or contamination between the witnesses. If there was such a risk, then the probative force of the observation that they make similar complaints, may be lost. Secondly, the degree of similarity between the allegations and the period of time over which those allegations were made. The more similar the allegations made by individuals who had not collaborated, the more improbable it is that those allegations are untrue. Thirdly, any other factors which may affect the credibility and reliability of the complainant. It may be that a witness is so unreliable that nothing said by the witness should be treated as probative of anything.”
105.	Looking at the risk of collaboration or contamination, we consider first the allegations made by JB. It is apparent from the evidence that JB had been warned by PH and told to keep his sleeping bag zipped or sleep on his front. After telling PH what had happened, he was told by PH that he (AJ) had done it to before to RL. 
106.	DS was a friend of RL, although it is unclear to us how close they were as friends. RL was known to JB. 
107.	The Appellant asserts that their evidence is contaminated, that RL has a grudge against AJ; and that JB and DS are in effect supporting RL by making these essentially false allegations. In contrast, the Respondent asks the question: What is the likelihood of three separate teenagers making similar but untrue allegations of sexual misconduct on separate and unconnected occasions? The Respondent submits also that the evidence from the ratings is capable of supporting the evidence of the three complainants.
108.	We have decided as a matter of fact that there is a mutually supporting quality to the evidence of the three complainants. We have decided that there is no evidence whatsoever that RL had a grudge against AJ, or that the allegation was invented by RL to get his own back on AJ. Such a suggestion is mere speculation. There is also in our view no basis at all for asserting that JB and DS made allegations against AJ, either or both for their own advantage or so as to support RL.  
109.	Thus, applying the approach as set out by Pitchford J we have decided that the Appellant has not demonstrated to us that there has been any collaboration or that their evidence is contaminated. 
110.	We are fortified in our view as expressed above by our consideration of the evidence of the ratings. We have already stated that we find the evidence as contained in the witness statements of the ratings plausible, and that the Respondent has satisfied us on a balance of probabilities that these incidents occurred. Although we are here dealing with slightly older boys, in a different context, it is our decision that the sexual interference with these boys corroborates the allegations made by the younger boys as to what happened to them. In the context of what is alleged by RL in particular, this finding tips the balance of probabilities in favour of the Respondent when set against the submissions made by the Appellant and set out in paragraph 86 above of our judgement.
111.	Accordingly, we find, on the balance of probabilities, that the Appellant was guilty of misconduct in relation to the third, fifth, sixth, eighth, and ninth particulars of misconduct. (the allegations of sexual misconduct in respect of RL, JB, and DS).
112.	So far as the other allegations are concerned, the Appellant admitted the seventh particular (alcohol given to JB)
113.	We have decided that the other allegations relating to alcohol and giving a youngster an explicit pornographic magazine to read are not proven to the requisite standard of proof (the first, second, fourth and tenth particulars).

Did the misconduct harm or place at risk of harm a child or vulnerable adult?
114.	It is common ground that if we found the allegations of sexual misconduct proved, it would necessarily follow that the misconduct would harm or place at risk of harm a child. 
115.	So far as the allegation in relation to the provision of alcohol is concerned, it is our view that providing two young boys with alcohol in the circumstances of this case, placed those boys at risk of harm. 
Is the Appellant unsuitable to work with children?
116.	It is common ground also that in relation to the sexual misconduct, this inevitably makes the Appellant unsuitable to work with children.
117.	So far as his unsuitability to work with children as a result of the alcohol finding is concerned, we accept that there will be cases where providing alcohol to a youngster does not make them unsuitable to work with children. Context is of course of importance in answering this question. It is our view, in the context of what occurred on that evening at the Sea Cadet unit, that giving alcohol to two young sea cadets, does make him unsuitable to work with children.

Is the Appellant unsuitable to work with vulnerable adults?
118.	Here again, it is common ground that positive findings in relation to the sexual misconduct would make the Appellant unsuitable to work with vulnerable adults. The evidence of the ratings which we have found probative is supportive of this conclusion.  The Appellant was in a position of authority in that setting, the interference was opportunistic, and there was a clear breach of trust. 
119.	In CN v Secretary of State [2005] 398.PC, the Tribunal said: “We do not think that a person who remains on the PoCA list [for the reasons in that case, which involved downloading pornographic material]…should be removed from the PoVA list. Society has a legitimate interest in ensuring that those who are considered unsuitable to work with children are not given positions of trust in relation to vulnerable adults. This is not to say that we consider that a vulnerable adult would be at risk of harm by Mr CN. But the Act does not require such evidence, and it is sufficient to satisfy the test in section 86(3)(b) read with section 92(4) of the Care Standards Act 2000 that he is unsuitable to work with vulnerable adults by virtue of the misconduct which placed a child at risk of harm…We do not wish to say that it will always inevitably follow that an appeal under section 86 will be bound to fail in the event of the appeal under s 4 of the Protection of Children Act being dismissed. Each case will be decided on its own facts, and context will be all important.”
120.	That is the approach which we apply to this case. In the context of this case, it inevitably follows in our view that the appeal in relation to PoVA should fail.

ACCORDINGLY, BOTH APPEALS ARE DISMISSED.

His Honour Judge David Pearl
His Honour Judge Phillip Sycamore
Ms Caroline Joffe
12th November 2009