JONATHAN COOMBES

-v-

THE SECRETARY OF STATE FOR CHILDREN, SCHOOLS AND FAMILIES

Application number [2009] 1447.PC

JONATHAN COOMBES

-v-

THE SECRETARY OF STATE FOR HEALTH

Application number  [2009] 1448.PVA

-Before-

Ms Melanie Lewis
(Nominated Tribunal Judge)
Mrs Carol Caporn
Mr Paul Thompson

APPLICATION

Heard 29 May 2009 – on the papers. 

1.	On 1 April 2009 the Applicant appealed under Section 4(1) (a) of the Protection of Children Act 1999 against the decision of the Secretary of State for Children, School and Families to include him in the List under Section 1 of the Protection of Children Act 1999 (the “POCA” List) and also appealed under Section 86 (1) of the Care Standards Act 2000 against the decision of the Secretary of State for Health to include him in the List under Section 81 of the 2000 Act (the “POVA” List). 

Preliminary Matters

2.	By Order dated 16 March 2009 H H J Pearl, Principal Judge refused to strike out the application, albeit the appeal was forwarded 6 days late.  Neither party in the appeal sought an oral hearing. On 24 April 2008 the Applicant was convicted by Swindon Crown Court of the statutory rape of a female child under 13 years old and sexual activity with the same female child including penetration on 9 January 2008. He was sentenced to 24 months detention in a Young Offenders Institution and placed on the Sex Offenders Register for 10 years. Paragraph 6 of the order dated 16th March 2009 states ‘The Appellant is therefore guilty of misconduct within Section 4 (3) of the Protection of Children Act 1999 by virtue of Section 4 (4) of that Act. ‘Paragraph 7 clarified that the only issue for us to decide therefore was ‘unsuitability’ (Section 4 (3) (b)). This was a matter to be tested by evidence presented to the Tribunal. 
 The Evidence

3. 	There was limited evidence presented to the Tribunal, which including the standard appeal forms ran to 79 pages. We read the sentencing remarks of Recorder Pringle. Some additional information about the offence came from a newspaper report. The other evidence was set out in the Appellant’s observations re: his inclusion on the List and the Respondent’s response to the appeal. 

Facts

4.	The material facts found by the Tribunal on the limited evidence before it are as follows:-

5.	On 24 April 2008 the Appellant was sentenced on his guilty plea to two  offences, one of statutory rape and one of sexual activity with a child. He was    sentenced to 2 years imprisonment. The Recorder described the offence as ‘very serious indeed’. 

6.	The child has not been identified in any papers that we have read. We have therefore not considered it necessary to make an order prohibiting publication of any information likely to lead members of the public to identify the child. 

7.	The sentencing remarks make it clear that the Prosecution had put their case on the basis that the appellant ‘did not actively groom this girl in any true sense and that what took place was effectively consensual. Those are very important features.’ The Recorder took as his starting point that the starting point for statutory rape on a girl under 13 was a range of 8 to 13 years. This case was ‘very different’ for a number of reasons. The Appellant at the time of the offence was only 19 and the age difference between him and the girl concerned was therefore much smaller. It was accepted that she had passed herself off as being 14 years old whereas in fact she was only 12 years old at the date of the offence. 

8.	The Recorder referred to the pre-sentence report, which we have not had the opportunity of seeing. He stated ‘There are some concerns in that report but I think they are rather exaggerated. It would be in your interests, very much, Mr Coombes, when you are in custody to take any advantage of any courses that you could go on and I am sure you will. This case is a tragedy. You have a huge amount of support both from your family and friends. You are thought extremely highly of by many people and I hope that when you are released from your sentence you will get your life back on track and fulfil the hopes of all those who care for you.’

9.	The length of sentence means that the Appellant will remain on the Sex Offenders Register for 10 years.  The Judge did not make an order under section 28 Criminal Justice and Court Service Act 2000 disqualifying the Appellant from working with children ‘because it was abundantly clear that through this Scouting activity he was someone who was fully trusted’. 

10.	The only other background evidence to the offence is contained in a newspaper report, which we assume was written by a court reporter. We note that the Appellant visibly showed his distress when he was sentenced. The grounds of appeal refer to the pair meeting on a web site and ‘eventually’ meeting. The newspaper report states that there was communication by text message, email and phone for approximately 5 months but we have no detail as to how frequent that communication was or the content of it. 

11.	The Appellant and the girl met on two occasions. On the second occasion the Appellant had unprotected sex with the girl. The newspaper report refers to the girl telling her friends about the activity, at which point they encouraged her to see the school nurse. We conclude that is the way this matter came to light and how child protection proceedings were initiated. There was no evidence that Social Services were involved or that the girl showed any marked distress. The newspaper report goes on to say that the Appellant was ‘shocked and stunned’ when it was the police who told him the girl was only 12. 

12.	The newspaper report refers to Counsel for the Defence’s plea in mitigation, where it  was stated that ‘a friend’s statement particularly sticks out in one’s mind is that of a friend who said that she is known for her own mind and would be used to saying no to things. She planned to have sex with a boy whether it was him or not. He blames only himself and has to take the consequences.’ The Defence also produced images of the 12 year old’s Facebook profile, a social networking website, which show that she continued to be dishonest about her age to others. 

13.	Other detail about the offence is contained within the Respondent’s response. On the day of the offence the Appellant drove his father’s car and met the girl at a pre-arranged location. He drove her to a quiet place and instigated sexual activity. He reclined the car seats, undid the girl’s trouser buttons and asked her to allow him to lie on top of her and/or lie on top of her. He inserted his fingers into her vagina and then penetrated her with his penis. It was stated that the girl did not expressly indicate lack of consent although she says that she expressed her discomfort with the situation. It is not clear where that information comes from or how or why the girl expressed her discomfort. 

14.	We have read three references, which the Appellant submitted in connection with this appeal but from the dates on them, we assume are the same ones that were before the court when it passed sentence. One is from a Scout leader who had known the Appellant for 12 years both as a friend and Scout leader. He says it has been a privilege to see the Appellant grow and develop into a fine young man. There is a second reference from an assistant Scout leader which also spoke warmly of the Appellant’s skills. Neither makes any reference to the offence so they are of limited value.  The third reference also dated February 2008 was from a family friend who had known the Appellant for 18 years. He referred to the Appellant coming from a stable, loving and caring family who had always supported him in his endeavours. We have no other detail about the Appellant’s family background. We have no evidence about the Appellant’s education or career plans save in the sentencing remarks, there is a reference to the Appellant’s plans to go to college to study civil engineering being stopped by the sentence. 

15.	On 22 August 2008, the Scout Association confirmed that, despite the fact that the Judge had not imposed a disqualification order on the Appellant, they remained ‘of the view that the Appellant was unsuitable for work with children’. 

Submissions

16.	The grounds of appeal appear to have been written by the Appellant’s solicitor. They refer to the elements of the offence. The Appellant believed the girl was 14 or older. He accepted that on the second occasion he had met her they had had consensual sex in the way described. He had never been before the courts before and the 2 year sentence he received reflected his guilty plea, degree of leniency and he relied upon the fact that the Judge declined to make an order preventing him from working with children in the future as he didn’t feel he was a risk to children. He therefore didn’t feel he should remain on the POCA/POVA list.

17.	The Respondent in his reasons for opposing the appeal emphasised that even if the girl had been 14, she was not capable of giving consent in law. Further, the Appellant had expressed no remorse. He did not give any assurance that he would not offend again or that he would learn from his experience. Suitability to work with children was a wider issue than risk. 

The Law 

18.	The burden of proof is upon the Respondents to a balance of probabilities. They rely on the offence and the Appellant’s lack of response to establishing his suitability to work with children and vulnerable adults in the light of that conviction.  

19.	We have been guided in this area by the observations made by the tribunal in the case of Mairs v Secretary of State [2004] 269 P.C.  Unsuitability must be judged by the Tribunal at the date of the hearing.  The judgment will involve consideration of the character, disposition, capacity and ability of the individual concerned, including his or her ability to act properly in potentially difficult or frustrating circumstances.  The judgment will inevitably be, at least in part, by way of deduction from past performance, including (but not limited to) the nature and extent of the misconduct, admitted or proved in the course of the proceedings, which harmed a child or placed a child at risk of harm.  

The Tribunal may have regard to:
(a)	the number of the incidents constituting the misconduct established for the purposes of section 4(3)(a) of the 1999 Act;
(b)	the gravity of that misconduct;
(c)	the time that has elapsed since that misconduct;
(d)	the timing and degree of recognition by the applicant that the conduct constituted misconduct and that it had the potential to harm a child;
(e)	the steps taken by the applicant to minimise the possibility of there being a recurrence of that or like misconduct;
(f)	extenuating circumstances surrounding the misconduct; and
(g)	other admitted, undisputed or proved past conduct of the applicant, whether good or bad.

This should not be regarded as an exclusive list.  The Tribunal may also have regard to any other relevant matter.

Conclusions and Reasons

Mis-Conduct and Harm: 

20.	Having carefully considered the evidence and submissions the Tribunal came to the following conclusions. By virtue of the conviction of the rape of a child under 13, contrary to section 5 of the Sexual Offences Act 2003 and the sexual assault of a child under 13 by penetration the misconduct that had harm to a child are established. 

Unsuitability to work which children and vulnerable adults:

21.	        We have fully taken into account the sentencing remarks and the basis on which the Recorder passed sentence. There were strong points made in mitigation and which were taken into account. We have also taken those positive factors into account when assessing suitability, subject to some qualifications which we set out below.    Nevertheless the fact that the offence attracted a 2 year sentence of imprisonment for a young man previously of good character reflects the seriousness of the offence.

20.	We have approached this case on the basis that our task is not to assess whether the Appellant is a risk to children but whether in the light of his conviction and at the date of the hearing the Appellant is suitable to work with children. 

21.	The referral in this case was made by the Scouting Association, who simply stated that the Appellant was unsuitable to work with children. They make no specific reference to the two referees who knew the Appellant directly through scouting and who spoke very positively about his work.  We would expect the Scouting Association to take a hard line in cases of this sort. The three referees speak very warmly of the Appellant but make no reference to the offence. 

22.	Save for the reference in the plea in mitigation to the Appellant accepting responsibility, we are not aware that the Appellant has ever expressed remorse for the offence. 

23. 	Whilst we accept that the Appellant believed that the girl at the time of the offence was 14 nearly 15 and that she actively led him to believe that, his actions would still have been a criminal offence.  We have taken into account that the offence was not committed with one of the young people he was working with. 

24.	Overall we are left with no sense of how this Appellant, who appeared on the view of his three referees to be a responsible young man actively in engaged in a very positive way with other young people through scouting, came to commit this offence.  This was not a chance meeting on one occasion. The Appellant had at least some opportunities during the 5 months he communicated with the girl to establish her true age circumstances and experience and to reflect on the appropriate way to respond. We would have expected the Appellant’s experience through scouting, to better equip him to understand the limits of sexual activity with young girls be they 14 or 12 years of age, even if they were forthcoming. 

25.	From the sentencing remarks there are positive points to be weighed in the Appellant’s favour but there are points which cause us concern. The Appellant appears on the evidence before us to be minimising the offence.   If the Appellant is asking us to conclude that this was a mistake for which he has now served his sentence, he has not put any evidence before us that would allow us to conclude that he has learnt from this offence. He has not established that he now has an insight into why his behaviour was wrong, or established that it would not happen again. 

26.	The Appellant might reasonably have put evidence before us as to what effect his time in the Young Offenders Institution has had on him and what he has done since his release from prison. We do not know what his future career ambitions are or whether he wishes to resume his voluntary activities with young people. The response to his appeal put him on notice about these points but he has not responded. Unsuitability must be judged in the light of all the evidence and the Appellant has not put the evidence before us that would allow us to reach a conclusion in his favour. We therefore have to conclude that he is unsuitable for work with children and vulnerable adults . 

27. 	We are further satisfied that this is a proportionate response. 

Accordingly, our decision is: 

APPEAL  DISMISSED

Ms. Melanie  Lewis
(Nominated Tribunal Judge )
Mrs. Carol Caporn  (Specialist Member)
Mr. Paul Thompson (Specialist Member) 

Date: 5th June 2009