BP v Secretary Of State for Children, Schools and Families [2007] EWCST 1128(PVA) (24 July 2008)

BP
Appellant
-v-

THE SECRETARY OF STATE 
FOR CHILDREN, SCHOOLS AND FAMILIES
Respondent
[2007] 1127.PC
[2007] 1128.PVA

Before:
Mrs. Carolyn Singleton (Chairman)
Mr. Ron Radley
Mr. John Williams

DECISION

Heard on 7th, 8th and 9th July 2008 at the Asylum and Immigration Appeals Tribunal, Birmingham.

Representation

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

Appeal

1. This appeal lay against the decision of the Secretary of State to place the Appellant on the Protection of Children Act list (PoCA list) on 14/08/2007. As a result of that listing, the Appellant was also placed on the Protection of Vulnerable Adults list (PoVA list) and the education list (commonly called List 99) which prohibits him from working with children in schools or further education establishments.

2. BP appealed against his listing to this tribunal on 19/09/2007. Application was made by the Respondent for the appeals to be struck out. That application was opposed by the Appellant and, at a hearing on 1st February 2008, the application was dismissed. 

3. Various directions hearings took place concerning the filing of relevant documents and, at one such hearing on 24th June 2008, His Honour Judge David Pearl made a Restricted Reporting Order under Regulation 18(1) in relation to the Appellant, any vulnerable adults or children and any of the Appellant’s witnesses. That Order remained in force.

The Law

4. Appeals to the Tribunal against inclusion on the PoCA and PoVA lists are governed by s.4 of the Protection of Children Act 1999 and s.86 of the Care Standards Act 2000 respectively. Sections 4(3) and 86(3) (combined) state that :
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 ( a vulnerable adult); and
(b) that the individual is unsuitable to work with (children) (vulnerable adults),
 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; or otherwise it shall dismiss the appeal or direct the individual’s inclusion in the list.

4. Thus there are three elements that the Tribunal has to consider in relation to these appeals. Firstly, there is whether or not the Appellant has been guilty of misconduct. Secondly, whether that misconduct has harmed or placed at risk of harm a child or vulnerable adult. Thirdly, whether the Appellant is unsuitable to work with children or vulnerable adults. If the Tribunal is not satisfied, on the balance of probabilities, on any of these elements, it must allow the appeal . Otherwise it must dismiss the appeal. There is no discretion. 

5. In this case the Respondent’s evidence was in respect of children. . As a matter of law, if the Tribunal is satisfied in respect of children, for the purposes of the PoVA listing the elements of misconduct that harmed a child or put a child at risk of harm are deemed to be proved. It is not necessary for the Respondent to prove misconduct that harmed or risked harm to a vulnerable adult. However, the question of unsuitability in respect of the PoVA listing must be considered separately.

Background to the case

6. BP was a leader within the Scout movement from 1993 until 2004 when he resigned. Following his resignation he continued to be involved with the Scouts as a musical director of shows.

7. On 31/10/2006 BP was convicted at Birmingham Crown Court of two offences of making an indecent photograph or pseudo photograph of children contrary to s.1(a) Protection of Children Act 1999 1978, having entered guilty pleas to those matters. He was fined and placed on the Sex Offenders Register. 

8. The Tribunal had the benefit of reading the transcript of the criminal proceedings which was at Tab 29 of the evidence bundle. BP had been convicted of two level one images, although the original indictment had other images of a more serious level on it. The two images of which the Appellant was convicted are described in the transcript. One photograph found in the Appellant’s computer is described as a girl “not in any sense undressed but she is in a highly provocative posture, with her legs apart”. The other image, found on a floppy disk “shows a boy on his back with his legs apart, naked and his genitals fully exposed.”

Case for the Respondent.

9. Only one witness gave evidence for the Respondent. This was BM, a police officer with the West Midlands Police Force, who is a forensic computer analyst. She gave evidence that on 21/10/2005 she attended BP’s home address. Items seized included a Microstar tower computer and a number of floppy disks. Forensic examination of the computer revealed a number of images contrary to The Protection of Children Act 1978. Forensic examination of the items seized revealed 223 indecent images of children, all of them level one. In addition, one level four and one level five image were located .There was a high incidence of thumbnail images. Many of the images, but not those that were the subject of the convictions were deleted files in unallocated space on the Appellant’s computer. It had not been possible to establish from which sites these images had been downloaded as the Appellant had installed a program called “Webroot Washer” which removed forensic traces of internet activity, or perhaps more accurately in this case, which removed most traces of internet activity. However, as the Appellant had not used the ‘bleach’ facility within Webroot Washer, some evidence was left, but this could not be assigned to any particular date. In addition there were in excess of 3500 still and moving images of underage girls and boys in gymnastic wear or swimwear.

10. Further forensic examination revealed that the Appellant had searched the internet using such terms as “boys gymnastic videos”, “ ls-magazine” and “boys”. “Ls-magazine” is an on-line magazine which hosts nudity and erotic images of children.

11. The Appellant had also subscribed to a newsgroup, namely “Alt.binaries.pictures.erotica.mclt”, whose articles are concerned with indecent images of children. The term “mclt” is understood to stand for “my collection of Lolita teens”. However, no articles had been downloaded from this site.

12. BM had examined the computer for evidence of it having been “hacked” into. No such evidence was found. Indeed, the Appellant had installed programmes to prevent or reduce the chances of the browser being hijacked.

13. In cross-examination by the Appellant BM was referred to an expert report obtained by the Appellant from MJ, a digital forensic consultant, who stated that there were 70 indecent images of children. BM agreed that the number was between 70 and 223. Many questions were put to BM as to whether a virus could have been introduced that affected the hard disk, allowing extraneous material to be introduced to the computer without the Appellant’s knowledge. BM agreed that it would be possible to do it but it would be extremely difficult and, she felt, to no good purpose. Her considered opinion, based on a number of years experience, was that there was no evidence that the Appellant’s computer had been tampered with.

Case for the Appellant

14. The Appellant was at pains, both in written submissions to the Tribunal and in  oral evidence to give the background to his case. He had, for a number of years, been involved with the Scout Association, running Cub packs very successfully, increasing numbers, organizing camps and being musical director of Gang Shows. In terms of his employment, his most recent post had been as the Chief Executive Officer of a voluntary organization supporting disadvantaged people in society. Again, he had brought many talents to this role and his term of office had been very successful.

15. The Appellant told the Tribunal that, at the time in question, he had been aware of fraudulent activity involving the use of his credit card and he had requested a new card from Lloyds Bank. Much of his evidence was based on the fact that he believes his computer was hacked into and the majority of the offending material on it was introduced in this manner and without his knowledge as to how it got there.

16. As to the two offences of which he stands convicted and to which he pleaded guilty at the Crown Court, in cross-examination the Appellant claimed that he stood by the guilty pleas, at times, and, at other times, appeared to argue that the images were not, in any event, indecent or that it was, at least, a moot point. Insofar as the image of the young girl described above is concerned, the Appellant was asked whether he had had a line in his head when he downloaded it as to what was acceptable and what was not. He responded that he may have done but that he felt it was not across the line. He did not judge the image as indecent. He recalled the picture but did not recall saving it. It made him feel better when he looked at it because it is a positive picture. He thought it depressing that people saw the picture as having a sexual connotation. He commented “I pleaded guilty but it is hard for me to come to terms with it”. As to the other image described in the Crown Court proceedings, the Appellant stated that he had no idea how the image came to be on a floppy disk and suspected that it had been transferred across from the main computer whilst he was downloading Cub data. He had no recollection of saving it.

17. The question of subscribing to newsgroups was put to the Appellant. He told the Tribunal that he had no recollection of subscribing to them. He felt he could have inadvertently subscribed by clicking on a link whilst browsing the internet. He agreed that he had deliberately subscribed to newsgroups before and when asked if he had previewed the kind of postings on those newsgroups, he admitted it would be a reasonable thing to do. He was asked by counsel for the Respondent as to whether or not he had done this for the newsgroups found on his computer. He responded “I suspect it was curiosity. I would have known there was no way of downloading illegal material”. He continued “I would not be aroused by it. It’s horrid”.

18. He was asked about “ls-magazine”. He said he vaguely recalled searching for this but could not recollect what was in his mind. “Curiosity or whatever” he said. He had not been aware that it was dedicated to erotic stories about young females. When asked what he had thought it was, he replied “I don’t know”.

19. Questions relating to his possession of over 3500 images of still and moving images of children in swimming and gymnastic activities were posed.  He told the Tribunal that he had been searching for material on boys’ gymnastics because he had been trying to organize such an event for his Cub pack.

20. The Appellant was asked why he had searched for boy-related websites. He explained that he had been feeling a bit down and had been looking for something positive. He remembered the boys in his Cub packs as being a positive thing in his life. He denied deliberately seeking out images of boys with sexual overtones to make himself feel better but in response to the question “Was there a sexual or close to sexual interest?” he replied “With hindsight it was an odd thing to do. I am embarrassed and annoyed about it. I feel stupid now”. He confirmed that there had been no deliberate attempt on his part to access indecent images but he had taken far more risks than he should have done. He described himself to the Tribunal as a bit of a risk-taker. His standpoint is that he did not see the images as sexual. He agreed that his behaviour at the time had been impacted by events.

21. He told the Tribunal that he felt that he has an emotional congruence with children. If a child is upset, so is he. If a child is happy he is happy also. In cross-examination he recognized his misjudgement but did not see it as misconduct. He said that he had accessed two sites in the belief that they were charitable and that the payments he made were donations.

22. When asked if there may have been a subliminal attraction to the children depicted, he responded that it was part of the emotional congruence he felt. In some ways it helped him to improve his own positive attitude. “Perks you up when you feel low?” asked counsel for the Respondent. The Appellant replied “Yes”. He agreed that as a coping mechanism it is not a very good one but said “What’s inappropriate? Inappropriate for whom?”

23. In his final submission the Appellant addressed the Tribunal at length, setting out his own view of the effect of Operation Ore, the attitude of the police and society in general to the protection of children. As to the computer evidence he accepted that he had downloaded a few images which “have been portrayed as indecent”. He had no idea that the image of the girl was indecent and would have not downloaded it had he been aware of the “singular stringency of UK law on indecency”. His vagueness as to the image on the floppy disk was not deliberate. He accepted that he had strayed into a part of the internet on occasion during a particular part of his life but this was purely curiosity with regard to newsgroups.

24. The Appellant addressed the Tribunal on the specific aspects of s.4 Protection of Children Act 1999 and s.86 Care Standards Act 2000 questioning whether it can be proved that a child was harmed or placed at risk of harm. His argument was that viewing an indecent picture of a child does not cause harm. Storing such a picture on a personal computer does no harm or risk of harm to that child. He also raised the question of the age of the photographs concerned, arguing that only if the photograph is current could one definitely assume harm to a child. He also asked the Tribunal to consider that harm can only be attributable to that child if clearly the photograph would be viewed as indecent within the child’s own culture. He raised this because the image involving the young girl was, he said, of a young model, likely to be European and suggesting that her pose would not be provocative where she lives.

25. In his submission the Appellant explored the question of negligible risk, discrimination, the perpetrator’s awareness of harm, accidental harm and the inclusion of a child in the harm, arguing in this last case that a photograph is not a child. The Appellant feels very strongly that previous cases have assumed harm or potential harm out of a concern to link an offence of “making indecent images” to “misconduct which causes harm to a child” without a thorough analysis. He suggested that these arguments are rather rushed or designed for “a Bloody Assizes” rather than a fair tribunal and he produced matrices which, he said, can be used in future tribunal hearings. 

26. Finally, the Appellant referred to the transcript of the Crown Court proceedings raising the fact that Judge Maxwell did not make a prevention or disqualification order and stating that, in his view, the Judge and the prosecuting counsel considered it questionable as to whether possession of a level one indecent image of a child fell into the category of harming a child.

27. Throughout the hearing the Appellant stressed his suitability to work with children and vulnerable adults. He pointed out that there had never been any suggestion that he had harmed a vulnerable adult or placed one at risk of harm. He told the Tribunal that he had worked with adults, not all of whom had been vulnerable. They were disadvantaged, some having had a stroke, some were depressed and some had learning difficulties. When asked whether he hoped to work in that field in the future, he replied “That is my personal mission. It’s why I am here on this Earth…..to balance the world”.

Character witnesses

29. The bundle of evidence contained a number of character references for the Appellant, all of which were carefully read by the Tribunal. In addition two people attended the hearing to give oral evidence.

30. JA told the Tribunal that she had known the Appellant for a number of years through their mutual involvement in the Scout Association. She spoke of the Appellant in the highest possible terms. She told the Tribunal that, whilst she was not aware of the full facts, she knew he was not guilty of the things that had come out of the case. “He’s been involved in no wrongdoing”.

31. CP spoke glowingly of the Appellant’s qualities and her belief in his innocence.

Decision

32. Misconduct

The Appellant has been convicted of two offences, the circumstances of which are outlined earlier in this decision. He argues that it was misjudgement not misconduct. The Tribunal is in no doubt that the convictions amount to misconduct.

33.Harm to a child or risk of harm

The Act does not say that the harm has to be direct. The Tribunal rejects the argument proposed by the Appellant that a photograph is not a child and, therefore, there can be no harm. It is mindful of the comments of colleagues in the case of CN v Secretary of State:

“The children who appear on these sites are real children, and we are absolutely clear that their appearance on the sites constitutes an abuse of them by those who place them on the internet. Those who access such sites are furthering the abuse. In short, the children are at risk of harm….”

The Tribunal considers that the market is created and sustained by people accessing such websites. His argument that no harm is created by the mere making of two level one images is totally rejected.

34. Unsuitability to work with children 

The first two elements of the test are satisfied and the Tribunal then went on to consider the question of unsuitability, firstly with regard to working with children.
In doing so, the Tribunal did not consider that it was bound only to look at the Appellant’s convictions. In Q v Secretary of State the Tribunal commented that it “did not accept that only the pictures which formed the basis of the appellant’s conviction could be considered”. The panel took the view that the underlying circumstances should be considered in order to get a full picture. The Tribunal was not satisfied, on balance, that the Appellant accepted, in full measure, responsibility for his misconduct. The scheduled evidence in the bundle appeared to be various attempts by the Appellant to explain that he had pleaded guilty to two offences when, in fact, he felt he should not have. His oral evidence was inconsistent. In cross- examination he stated that he stood by his guilty pleas but then went on to state that it was not misconduct, it was misjudgment.. The Appellant cannot have it both ways. The facts are that he is convicted of those offences and the Tribunal cannot go behind those convictions to revisit the facts.

35. The Tribunal rejects, on the balance of probabilities, the Appellant’s proposition that his computer has been hacked into and much of the indecent material introduced in that way. Regardless of the material which he disputes was his responsibility, he has displayed an interest, particularly in young boys, which, in the view of the Tribunal goes beyond the merely professional. The fact that he has in excess of 3000 images of young children, admittedly none of them indecent, is something which sits uneasily with the Tribunal. That, coupled with the emotional congruence with children that the Appellant describes is something which indicates an inability to remain professionally detached. In fact it indicates rather the reverse. That, in addition to his convictions is something which must impact on public confidence. In CN v Secretary of State the Tribunal stated “We cannot underestimate the importance we attach to public confidence. When the Tribunal considers the question of unsuitability, it must look at the factual situation in the widest possible context”.

36. In the case of BP, he shows a lack of insight both as to what he has done and the impact on the children in question. That lack of insight is a cause for concern. He does, however, seem to accept that his internet browsing operated as a comfort mechanism and that, with the benefit of hindsight, it is neither an appropriate nor effective way of coping.

37. The Tribunal was mindful of the fact that the Crown Court proceedings did not result in a prohibition or disqualification order. However, the transcript of those proceedings was carefully read. The test which the Tribunal applies is a much broader one than that available to His Honour Judge Maxwell. The fact that those options were not available to the Crown Court because of the stringent test which has to be 

applied in those proceedings does not mean that the Tribunal cannot find that the Appellant is unsuitable to work with children.

38. For all the reasons set out above, the Tribunal considered that the Appellant is unsuitable to work with children. His name should remain on the PoCA list.

38.Unsuitability to work with Vulnerable Adults

The Tribunal considered that the Appellant had demonstrated an unhealthy interest in children. As stated above, that interest goes far beyond the professional. However, the Tribunal did not consider, on balance, that the Appellant is a risk to vulnerable adults or unsuitable to work with them. What evidence there is goes to his interest in children alone and the Tribunal did not consider there was reason to believe that that was likely to extend to vulnerable adults.

39. The Tribunal acknowledged that the Appellant clearly had qualities which enabled him to be a very successful and inspirational organizer and that those qualities could easily transfer to dealing with the adult population. Indeed, his last post had demonstrated that.

40. On balance, the Tribunal did not consider the Appellant is unsuitable to work with vulnerable adults. His name should be removed from the PoVA register forthwith.

APPEAL [2007]1127.PC	DISMISSED
APPEAL [2007]1128.PVA	ALLOWED

41. This is a unanimous decision

Mrs. Carolyn Singleton
Mr. Ron Radley
Mr. John Williams
24 July 2008