Wealleans v Secretary of State

The Applicant appeals pursuant to Section 144 of the Education Act 2002 (the 200 Act) against the direction made against him by the Secretary of State on the 22^nd July 2009 under Section 142 of 2002 Act on the grounds that the Applicant is unsuitable to work with children.

From the time of the Tribunal decision in respect of the Respondent’s application to strike the appeal out it was clear that one of the matters under consideration was the possibility of varying the Secretary of State’s direction so as to enable the Applicant to engage in teaching activity subject to conditions. This matter was raised again at the hearing and the parties were subsequently directed to file supplementary skeleton arguments on the effect of ss35 and 36 of the Criminal Justice and Courts Services Act 2000 upon the practicality of imposition of conditions under Section 142 of the Education Act 2002 and upon the power of the Tribunal to amend the basis of listing from unsuitability to another ground.

Section 142 (1) (a) provides that the Secretary of State may direct that a person may not carry out work to which Section 142 applies. Section 142 applies to provision of education at a school and elsewhere. Section 142 (4) of the 2002 Act provides that a direction may be given in respect of a person only the specified grounds. These are:-

In this case the Respondent relies on Section 142 (4) (b), namely that the Appellant is unsuitable to work with children. Section 144 (1) (a) provides that a person in respect of whom the direction has been given under Section 142 may appeal to this Tribunal against the decision to give that direction.

Regulation 12 (1) of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 also provides that an appeal against such a direction may be brought to the Tribunal by a person in respect of whom a direction has been given under Section 142 of the Act. By Regulation 12 (2) no appeal may be brought on the grounds of information or evidence referred to in Regulation 9 (2) unless that information or evidence has been brought to the attention of the Secretary of State under Regulation 9.

Regulation 13 (2) provides that the Tribunal shall not, in exercising its powers under Regulation 13, consider any information relevant to the decision to give a direction which the Secretary of State did not have at the time the decision was made, or evidence of a material change of circumstances of the person concerned, occurring since the decision to give a direction was made.

The parties were agreed that the approach to be taken by the Tribunal is more akin to a redetermination than a review. The Tribunal must make its own judgment in respect of the statutory question, recognising that pursuant to Regulation 13 it must not consider material which was not available to the Secretary of State unless such material is no more than more detailed evidence of the factual background. New evidence is not admissible. We have adopted the approach in Secretary of State v Norford [2010] UKUT 248

Guidance as to the approach was also given in FH v Secretary of State [2005] 552.PT when it was stated that the Tribunal should decide whether:-

“The restriction is an appropriate measure to ensure, so far as possible, that children will be properly protected and that reasonable parents and other interested parties will not have their confidence in the education system diminished in the future.”

Regulation 12(3) also applies to this appeal. There can be no challenge to the conviction for murder as part of these proceedings. It is right to point out that Mr Wealleans does not in any event seek to go behind his conviction.

The relevant provisions of the Act and Regulations have been repealed under the Safeguard of Vulnerable Groups Act 2006. However, the Safeguarding Vulnerable Groups Act 2006 (Commencement No. 6, Transitional Provisions and Savings) Order 2009 provides that the provisions of the Act and Regulation remain in force for Appellants who have an appeal pending against such a direction.

By section 35(1) and 35(4)(b) of the Criminal Justice and Courts Services Act 2000 (“the 2000 Act”), a person disqualified from working with children by virtue of being subject to a direction under section 142 of the Education Act 2002 (“the 2002 Act”) given on the grounds that he is unsuitable to work with children commits an offence if he knowingly applies for, offers to do, accepts or does any work in a regulated position. By s.35(2) of the 2000 Act, persons offering such a person work in a regulated position commit an offence.

The term “regulated position” is widely defined in s.36 and includes, by s.36(1)(a) and (2)(d), “a position whose normal duties include work in” “an educational institution”. Of the grounds for making a direction under s.142(4) of the 2002 Act, a direction on the ground of unsuitability is the only relevant disqualification for the purposes of the offence in s.35 of the 2000 Act. It is therefore not possible to impose conditions which permit a person subject to a direction on the ground of unsuitability under the 2002 Act to do such work.

Regulation 13(1) of The Education (Prohibition from Teaching or Working with Children) Regulations 2003 (2003/1184), made under the 2002 Act empowers the Tribunal “to revoke or vary the direction” on appeal. The Tribunal has power on appeal, if appropriate, to substitute the basis of a barring decision. See MC v SoS [2007] 1193.PT; [2008] 1472.PT (Deputy Principal Judge Simon Oliver, Chairman)

The applicant, Gareth Wealleans, is a serving prisoner. He was convicted of murdering his 63 year old landlord at Newcastle Crown Court on 27 November 1999 when he was a young man of 22. The motive for the murder was never explained. Mr Wealleans alleged that there had been an intruder who had killed the landlord, however the jury rejected the suggestion. The prosecution did not put forward a motive. Mr Wealleans was sentenced to life imprisonment.

Mr Wealleans tried to appeal his conviction, without the benefit of legal representation, and when the single judge rejected the application he did not pursue it. He did apply to the High Court for a minimum term to be set under the Criminal Justice Act 2003 and the matter was considered by Silber J in 2008. A minimum tariff of 13 years was set and Mr Wealleans will be entitled to apply for release on licence in less than a year from now.

Mr Wealleans behaviour whilst in prison has been exemplary. He was employed as a learning support assistant teaching adult literacy and numeracy at the education department at HMP Dovegate, and was in effect a tutor there for a number of months. Later, at HMP Lindholme he became the Toe by Toe teaching co-ordinator and has qualified as a Teaching Assistant for adults through City College Manchester. Mr Wealleans has not received any negative behaviour warning nor has he any adjudication record throughout the twelve years he has been a serving prisoner. He has recently been moved to an open prison. Mr Wealleans would like to obtain further educational qualifications and would hope to work in the adult education system when he is released from prison.

Believing himself to be on List 99 and/or the PoCA and PoVA lists Mr Wealleans wrote to the Safeguarding Operations Unit in August 2008 to “seek clearance to enter the teaching profession”. On 22^nd July 2009 a letter was sent on behalf of the Secretary of State for Children, Schools and Families indicating that having considered the information before him the Secretary of State had decided to bar Mr Wealleans from employment to which section 142 of the Education Act 2002 applies on the grounds of his unsuitability to work with children. It was recognised that Mr Wealleans was not in employment. The direction was made “to prevent the possibility of you taking up such employment in the future”.

On 17^th October 2009 the applicant appealed against the decision. The respondent responded on 27^th November 2009 and invited the Tribunal to strike out the appeal on the basis that there was no reasonable prospect of the appeal succeeding. Following a consideration of that application and the applicant’s response to it the Tribunal refused the application at a paper hearing on 18^th January 2010. The matter was then listed for an oral hearing on 26^th August 2010.

The evidence we considered was contained in the 68 page bundle provided to us plus a full copy of the letter of 22^nd July 2009 from Mr Alderson to Mr Wealleans. Part of the bundle contained evidence submitted on behalf of the Appellant which post dated the decision. This comprised a record from the Parole Board dated 1^st February 2010 and a letter recording the outcome of the parole board review. Mr Ozin submitted that this was new evidence and was therefore inadmissible. Mr Knight submitted that the documents were providing extra detail about previously known facts.

The tribunal concluded that the majority of these documents contained new evidence which was not before the Secretary of State because they were dealing with the programme for rehabilitation between March 2010 and March 2011 and they were therefore inadmissible. We therefore did not include consideration of this material in our deliberations.

We took into account the submissions made by both Counsel at the hearing, the skeleton arguments they provided at the hearing and the addendum skeleton arguments which they submitted between the hearing and our deliberations.

Mr Ozin submitted that the question of whether the Secretary of State’s decision was appropriate had to be viewed in the context of the purpose of restricting a person’s employment, which was two fold, protecting children and maintaining public confidence. He cited CN v Secretary of State [2004] 398.PC/399.PVA; FH v Secretary of State [2005] 0552 PT; Mason v Secretary of State (2001) 00788; Secretary of State for Children, Schools and Families v BP [2009] EWHC 866 (Admin); and Secretary of State v Norford, on this point.

Further, he submitted that a person may be unsuitable to work with a protected group where public confidence would be undermined by disreputable facts known about them which do not demonstrate that they pose a risk of harm to that group. In this respect he cited the dicta of Munby J in Secretary of State for Children, Schools and Families v BP [2009] EWHC 866 (Admin) [24]

“[T]his does not mean, of course, that the Tribunal is simply to pander to the unreasoned baying of the mob; but it does mean that it is entitled to have regard to matters which are likely to be of concern to ordinary sensible people”.

Mr Ozin also reiterated the response provided in a letter dated 27 November 2009 in which the Respondent gave reasons for opposing the appeal:

Mr Ozin did acknowledge the Applicant’s present exemplary conduct, but urged caution as to the future. He stated “it is difficult to be confident that he poses no appreciable risk of re-offending or future unsuitable conduct where the offending was extreme, unexplained, out of character, concealed in a devious and protracted fashion, and he subsequently showed no remorse. The risk of re-offending or future unsuitable conduct is relevant both to the issue of protecting children and that of maintaining public confidence.” He also reminded the Tribunal that the controlled environment of a prison insulates the Applicant from the challenges and stresses to which he will be subject upon his release.

These submissions were not supported by any current professional risk assessment evidence in respect of Mr Whealleans put forward on behalf of the Respondent.

Mr Ozin submitted that the Applicant’s declared intention of restricting his teaching assistance to adults does not mean that he would not come into contact with children and young persons. The likelihood of the use of shared facilities in the places of education in question would, he said, bring the Applicant into contact with young persons or children. As the Applicant acknowledged in his letter dated 25 August 2008 to the Safeguarding Operations Unit, there are “under 18s and vulnerable adults attending many of the institutes that [he] would like to try and gain employment in”.

In relation to public confidence it was submitted on behalf of the Secretary of State that the maintenance of public confidence “inevitably requires that a serving prisoner should be barred from carrying out the relevant work on the ground of his unsuitability to work with children. and “[t]he fact that the Applicant might subsequently cease to be a serving prisoner under the terms of a release on licence is incapable of affecting his present suitability.”

Whilst the Respondent accepted that the Tribunal may substitute the basis of a barring decision Mr Ozin submitted that the question to be determined is whether an alternative ground for a barring decision is appropriate. He summarised the analysis in MC v SoS [2007] 1193.PT; [2008] 1472.PT (Deputy Principal Judge Simon Oliver, Chairman) as follows:

On behalf of Mr Wealleans, Mr Knight submitted that section 35 (4)(b) must “contemplate the creation of a criminal offence in respect of those directions that are not subject to conditions or circumstances that would allow that employment.” He stated “to hold otherwise would be to render otiose the power of the Secretary of State or the Tribunal to impose such conditions.” He therefore argued that a direction on the basis of “unsuitability” is not to be considered in a distinct manner to any other type of direction under the 2002 Act and it requires no special treatment when assessing whether conditions may be attached to a direction of the Secretary of State or the Tribunal.

Mr Knight also submitted that as the 2000 Act is a penal statute and as such it should not be subject to any form of purposive or liberal construction, but rather should be construed strictly with any ambiguity resolved in favour of the liberty of the subject citing R (Haw) v Secretary of State for the Home Department and Metropolitan Police Commissioner [2006] EWCA Civ 532 [26 and 14] following R v Bristol Magistrates Court ex p E 3 AER 798 at 804

In respect of point (d) above in MC v SoS Mr Knight stressed that in the present case the Secretary of State was in possession of a volume of references and information about the progress Mr Wealleans has made since conviction which was noted but “it is clear that he has attached no weight at all to it as a result of the index offence.”

Mr Ozin stressed however that the capacity for remediation should not be elevated to a guiding principle for determining whether misconduct should be substituted for unsuitability. What is required is a categorisation based on objective criteria. He submitted that since MC v SoS concerned inappropriate conduct by the Appellant in relation to a child under his care the conduct in question plainly was capable of being categorised factually as misconduct. Further, he submitted that on the facts of that case the Secretary of State had paid insufficient attention to the nature of the listing.

Mr Ozin reminded the Tribunal that as a matter of principle, the categorisation cannot be based on whether the Tribunal finds the draconian consequences of an unsuitability listing attractive or unattractive. He urged us not to ‘put the cart before the horse’.

It was submitted on behalf of the Respondent that the appropriate objective criteria for distinguishing between unsuitability and misconduct cases are as follows:

Following Duffield v SoS [2008]1383.PC.there is no definition of “misconduct” in the 1999 Act and it was not qualified by any adjective: Mr Ozin stated that misconduct can be graded and need not necessarily call into question the person’s fundamental suitability to carry out work of the kind in question. “Unsuitability matters, in contrast, are matters which go to the fundamental suitability of a person to carry out work of the kind in question at all. It may arise from the severity of certain forms of misconduct or from the public confidence concerns which arise or from a mixture of the two. The reaching of the threshold of unsuitability of itself justifies the draconian consequences which follow.”

Mr Knight submitted that when considering the question of suitability, the Tribunal in Duffield listed criteria which could properly be taken into consideration:

Mr Knight submitted that these criteria reflect a proportionate and responsible approach to the question of suitability as they focus on the risk to a child and make it clear that the gravity of the offence is but one of the factors to be borne in mind. He stressed that prior to the murder Mr Whealleans was a man of good character, and whilst it is a very serious offence the conviction is nearly 12 years ago. Also, since the conviction, Mr Wealleans has completed every course made available to him in prison, some of which were to address the risk of reoffending.

The Respondent submitted that being a serving prisoner convicted of murder reaches the threshold for the objective categorisation of unsuitability. That being so, Mr Ozin submitted that it is not open to the Tribunal to change the categorisation so as to avoid the draconian consequences which should follow and that “Assuming for the sake of argument that the Applicant may be capable of being an excellent teacher or may not pose a risk to pupils, that cannot override the objective categorisation of unsuitability which is based on the nature of his past conduct and its impact on public confidence.”

Further, Mr Ozin submitted that in making the assessment of whether the threshold for unsuitability is reached, questions of insight and judgement are relevant and that being a serving prisoner convicted of murder is not capable of remediation in the way that certain incidents of professional misconduct may be. He stated “There are no steps adequate to meet the reasonable concerns which arise from the conviction at least whilst the Applicant remains a serving prisoner.”

Mr Knight submitted that this assertion is flawed for two reasons. Firstly, because it ignores the roles of the Secretary of State for Justice acting through the Probation Service, the Prison Service and the independent review by the Parole Board. He reminded the Tribunal that the Parole Board is a statutory body whose primary function is to protect the public relying on R (Roberts) v Parole Board [2005] UKHL 45. The discharge of this function requires the Board to consider the potential risks posed by those convicted of criminal offences where they are eligible for release on licence or for a progressive move to open conditions. Moreover, the Parole Board is the only statutory body that exists for the making of these assessments.

Mr Knight also challenged the assertion on behalf of the Secretary of State that a conviction for murder is not capable of remediation in the way that certain incidents of professional misconduct are. He posed the question: “If one considers the Tribunal's upholding of misconduct listings in cases where, like in MC, a teacher has made unwelcome advances to a young child in his care and has, by virtue of that, placed that child at risk of harm, is it right or sensible to say that a homicide offence where the victim was not a child or vulnerable adult, is less capable of remediation”.

Mr Knight urged the Tribunal to consider that Mr Wealleans' licence will be a life licence. He will be bound (as all are in his position) to report to the Probation Service for as long as is deemed necessary (usually a period of at least 10 years). He will be required to reside at an address approved by the Probation Service and to obtain approval for any employment he undertakes. Further, Mr Wealleans will be at risk of a recall to custody if he breaches the terms of his life licence by failing to report to the Probation Service or if he demonstrates any behaviour that gives rise to cause for concern or if he commits any further criminal offences.

The purpose of restricting employment is to both protect children and to maintain public confidence. In this case the Respondent did not allege that Mr Wealleans poses a direct risk to children. The Tribunal must therefore consider public confidence or “matters which are likely to be of concern to ordinary sensible people.”

In relation to public confidence it was submitted on behalf of the Secretary of State that the maintenance of public confidence “inevitably requires that a serving prisoner should be barred from carrying out the relevant work on the ground of his unsuitability to work with children. and “[t]he fact that the Applicant might subsequently cease to be a serving prisoner under the terms of a release on licence is incapable of affecting his present suitability.”

We have concluded that each case must be considered on its own facts. There is no “inevitability” in barring, although it must be right that there is a very strong likelihood that barring would be appropriate for a serving prisoner. The fact that Mr Wealleans will probably be released from prison in the near future cannot be ignored. This case is exceptional in many ways.

Licence conditions would probably provide some restrictions on employment however we were not given any detail as to what they may be. Mr Wealleans himself recognises the concerns: “I fully understand that it is important that you ensure their safety and I will not try to pretend that the crime I was convicted of was excusable for any reason, or that it was not of the most serious nature”. He puts himself forward solely as a teacher of adults.

Having considered the matters above, the recognition displayed by Mr Wealleans and the submissions made on behalf of both parties we have concluded that ordinary sensible people would have legitimate concerns about a convicted murderer working without restriction in a school environment.

We have concluded, looking at the matter afresh and considering the factors considered by the Secretary of State, the relevant Tribunal decisions and guidance, the matters outlined above and the fact that this decision can be made on the basis of misconduct or unsuitability, that the appropriate basis of barring is on the ground of misconduct for the following reasons.

The legislative scheme contemplates that a direction on the ground of unsuitability under the 2002 Act renders the person unfit to work within an educational institution in any circumstances whereas, for example, a direction on the ground of misconduct does not. It therefore falls to the Tribunal to consider which basis of barring is appropriate in this case.

The Tribunal has the power to substitute the basis of a barring decision. We have considered the case of MC v SoS [2007] and the dicta of Deputy Principal Judge Simon Oliver, Chairman as applicable to this case. Firstly, there is no statutory definition of misconduct or unsuitability and we have therefore given them their ordinary meaning. Secondly, we have concluded that Parliament intended that there should be a distinction between barring directions on the ground of unsuitability and barring directions on the ground of misconduct because of the two draconian consequences that follow from the former but not the latter: first, the restriction from reviewing the decision for 10 years; and, secondly, the more extensive restrictions on work imposed by s.35 of the 2000 Act. We accept Mr Knight’s submissions that we can impose conditions on the unsuitability direction, however we have concluded that such conditions would be meaningless given the more extensive restrictions imposed by the 2000 Act.

A relevant basis for substituting the ground of the direction from unsuitability to misconduct is where the Secretary of State has paid insufficient attention to the nature of the listing and the draconian consequences which follow from a barring direction on the ground of unsuitability. We have therefore considered the reasons given by the Secretary of State in the decision letter.

In the decision letter dated 22^nd July 2009 Mr Wealleans was informed that the following were taken into account in reaching a decision:

It is not possible or appropriate for us to analyse the decision made by the Secretary of State. There is, in any event, no analysis behind the decision, any indication given to the various factors or any indication that consideration was given to the alternative listing of misconduct contained in the letter. Mr Wealleans does not put himself forward as a teacher of children.

MC v SoS also concludes that an Appellant’s capacity for remediation is a relevant factor militating in favour of a direction on the ground of misconduct. We do not accept that Mr Wealleans position is incapable of remediation. He can’t change the fact that he has been convicted of murder, however the information we have before us suggests that since that time he has done everything in his power to rehabilitate himself and to educate himself in a manner which enables him to help some of the most disadvantaged in society. He has been supported throughout this process by the prison authorities. To disregard this information, which was available to the Secretary of State, would in our view be plainly wrong and we have weighed it into the balance whilst exercising our discretion.

We also considered the decision in of Osliffe v SoS (2005) 550 PT. In that case, the Care Standards Tribunal upheld a barring direction on the ground of misconduct in relation to a conviction for manslaughter. This is a short decision in which there is no in depth analysis of the correct ground, on the facts, for the barring decision, however the appropriateness of misconduct as opposed to unsuitability on those facts was unchallenged. Mr Ozin also drew our attention to DAS v SoS [2006] 796.PT, where the Tribunal upheld a barring direction on the ground of unsuitability where a teacher had roughly handled his own twin babies but was otherwise an excellent teacher on the ground that it was “more to do with judgement, responsibility and insight” however this decision was of less relevance to the case we have to decide since there was an obvious direct risk to children. Further, we have not been provided with information concerning Mr Wealleans current risk assessment, acceptance of responsibility or insight, indeed the admission of evidence containing some relevant material was opposed by the Respondent.

We have taken great care not to “put the cart before the horse” by making our decision based on the consequences of it, however we have borne the consequences in mind as a relevant factor.

We have taken the guidance given in Duffield v SoS [2008]1383.PC. into account. There is no definition of “misconduct” in the 1999 Act and it was not qualified by any adjective. The Tribunal in Duffield listed criteria which can properly be taken into consideration including:

Prior to the murder Mr Whealleans was a man of good character, and his conduct since that time has been exemplary. The offence is of the utmost seriousness, however we have concluded that the fact that it is a conviction for murder does not automatically result in the categorisation of unsuitability. We have taken into account that this is not a case where the Respondent alleges any direct risk to a child. The barring is on the basis of public confidence based on the seriousness of the crime. The period of 12 years in prison without cause for any concern or reprimand must be highly unusual, especially since Mr Wealleans has completed every course made available to him in prison, some of which were to address the risk of reoffending. The degree of support given in the references available to the Secretary of State is outstanding. When all these factors are weighed we have concluded that misconduct is the appropriate basis for barring.

We have concluded that there is a need to reflect Mr Wealleans position in the barring, by ensuring that he is engaged in the provision of education to adults aged 18 or above. Further, in order to reflect the need to maintain public confidence in the education system we have concluded that his employment should be outside normal school hours or during vacation periods in order to minimise his contact with children in a school environment. We recognise that there will be no restrictions on Mr Wealleans’ contact with children in general life, nor is there any evidence based risk which would require such a restriction, however we have concluded that public confidence in the education system would be undermined if a recently released convicted murderer were to be teaching in such premises during the normal school day, albeit that he would be teaching adults. Finally, Mr Wealleans made it clear that he did not seek to work as a teaching assistant outside the prison environment until he is released on licence and we have concluded that it is appropriate to reflect his concession in the barring direction.