PATRICK WOOD
v
SECRETARY OF STATE 
[2010] 1704.PT
DECISION

Panel			Judge Nancy Hillier
			Ms Bez Chatfield (Specialist Member)
			Mr Paul Thompson (Specialist Member)

Hearing held in London on 18, 19 and 21 June 2012.
Mr Wood was represented by Mr Gold
The Secretary of State was represented by Miss Olley of Counsel
We heard the evidence of Mr Tom Squire, a practitioner at The Lucy Faithfull Foundation and Sir Roger Singleton, Chair of the Independent Safeguarding Authority on behalf of the Secretary of State and Mr Wood and Mr Barham, Head Teacher and Ms Tyler on his behalf.

APPEAL

1.	The appellant appeals under s.144 of the Education Act 2002 and Regulation 12 (1) of the Education (Prohibition from Teaching or working with Children) Regulations 2003 against the direction of the Secretary of State, communicated to him on 6th October 2009, that Mr Wood should be barred from employment to which section 142 of the Education Act 2002 refers on the grounds of his unsuitability to work with children.

PRELIMINARY ISSUES

2.	Mr Gold made an application at the start of the first day of the hearing for the panel to admit evidence brought to the hearing by his client. This evidence related to the potential issue of the date on which Mr Wood had decided to retire from teaching in England and to return to China to work. Mr Wood left the S school shortly after the allegations made against him and Mr Squire appeared to draw an adverse inference from this in his risk assessment. The matter was one which was therefore before the Secretary of State at the time of the determination.
3.	We considered the application and applied the overriding objective to deal with matters fairly and justly. We accepted that Mr Wood had brought the evidence with him from Hong Kong and had only recently met with his lawyer and brought it to his attention. We concluded that the evidence was potentially relevant and that there was no prejudice to the Respondent of admitting the documents as there was time for Miss Olley to consider them before cross examining Mr Wood. We decided that they were unlikely to contain material which we should not consider, and this was confirmed when the documents were admitted.   

LAW

4.	The right of appeal is found in section 144(1)(b) of the Education Act 2002. Mr Wood asks the FTT to revoke the direction under section 144(2). Regulation 13 of the Education (Prohibition from Teaching or working with Children) Regulations 2003 provides:(1) Where on an appeal under regulation 12 the First-tier Tribunal considers that the direction is not appropriate it may order the Secretary of State to revoke or vary the direction. (2) The First-tier Tribunal shall not, in exercising its powers under this regulation, consider– 
(a) any information relevant to the decision to give a direction or not to revoke or vary a direction which the Secretary of State did not have at the time the decision was made…

5.	On appeal the burden of showing that the decision was appropriate rests on the Respondent and the standard of proof to be applied by the Tribunal is the civil standard of the balance of probabilities.
6.	The Tribunal’s jurisdiction under regulation 13 was considered by Collins J in Secretary of State for Children, Schools and Families v Philliskirk [2008] EWHC 2838 (Admin). He makes it clear that the Tribunal should exercise its own independent judgment ,by looking at the material that was before the Secretary of State and deciding, on that material, whether in its judgment the listing was or was not appropriate. That judgment must be exercised only upon the material that was before the Secretary of State.

7.	Mr Justice Collins proposed at [21]) a two-stage test for the Tribunal to apply in appeals under regulation 13:
•	Is there sufficient evidence to enable a determination to be made?
•	Was the determination or direction an appropriate or proportionate response in all the circumstances? In determining the proportionality of the decision the Tribunal must determine whether it was no more than necessary to achieve the legitimate aim of protecting children and struck a ‘fair balance’ between the rights of the individual and the wider public interest. 

BACKGROUND

8.	Mr Wood qualified as a teacher in 1965 and taught in England and in China until his retirement. As a result of allegations of sexual and physical misconduct made against him he was referred to the Secretary of State in September 2003. In 2005 he was informed that he would not be listed. In 2008, as part of the Historic cases Review his case was reconsidered and the department sought further information from the police and an assessment from the Lucy Faithfull Foundation. In October 2010 the Secretary of State directed that Mr Wood be barred under section 142 of the Education Act. Mr Wood appealed to the FTT on 15 January 2010 but the appeal was stayed pending his (unsuccessful) application for the decision to be Judicially reviewed. Following the conclusion of those proceedings in December 2011 the matter was listed for hearing in the FTT.
9.	The Respondent sought a finding that at the time of the decision on 6 October 2009 there was sufficient material before the Secretary of State, based on the information relating to allegations of indecent assault made against the appellant, to make findings on a balance of probabilities that Mr Wood had sexually assaulted 3 pupils and as a result of that he posed a sexual risk to boys and should be placed on List 99. The evidence relied on was of two separate instances of allegations made against Mr Wood and an assessment of risk made of him by Mr Tom Squire of the Lucy Faithfull foundation. 
10.	The first in time of those allegations was in respect of KC, a pupil at the T school, and the appellant’s step son. The allegation was of sexual abuse by indecent bodily contact over clothing and of kissing inappropriately on the mouth both at home and at school between January 1973 and December 1975. The allegation was made in February 2002 to the police, when KC was an adult. 
11.	The second allegations were made by 2 boys, TB and AC at a different school, the S school, in February 2000 and involved both physical and sexual allegations, the latter being hugging in a sexual manner. Mr Wood accepted a caution in respect of common assault in respect of both boys.
12.	The Appellant denied the sexual allegations. He conceded that if the panel found that there was sufficient evidence to show to the relevant standard that the sexual misconduct was proved it was sufficient to support a bar under s.142. The Respondent conceded through the evidence of Sir Roger Singleton that without those findings there were insufficient grounds for a bar. 

ISSUES

13.	The factual matters for determination were therefore:
•	Was there sufficient evidence to show on a balance of probabilities that Mr Wood sexually abused KC between1973 and 1975? 
•	Was there sufficient evidence to show on a balance of probabilities that Mr Wood sexually assaulted TB?
•	Was there sufficient evidence to show on a balance of probabilities that Mr Wood sexually assaulted AC?
•	Did the evidence as a whole support the conclusion that Mr Wood was a risk to boys and was therefore unsuitable to work with children?

EVIDENCE

AC and TB allegations.

14.	The sole evidence of these allegations is contained in brief hand written  social work strategy meeting notes and the police Lotus summary. The video interviews, pocket book entries, interview tapes and any statements were not before the Secretary of State or us.
15.	The allegations made by AC and TB originated from a report to TB’s mother. She consulted a professional who was involved with the family due to T’s diagnosis of ADHD and the matter was taken forward. The  social work evidence appears to suggest that TB initially made the allegation at home on a Tuesday evening. There was a referral to social services on the 16 February 2002 and the recording of their initial strategy discussion the following day states “T disclosed to his mother on the evening of Tuesday (illegible) That (sic) a teacher at the School has touched him in an inappropriate manner. It has also transpired that his teacher may also have touched AC in an inappropriate manner. T’s mother has also highlighted an issue of T being invited to the teachers home as a reward for good behaviour, this invitation has not been taken up…..Information was provided that other boys seemed to be aware of this. These episodes of touching only take place when T is alone with the teacher.”
16.	The police Lotus notes of this meeting record that T’s mother had told the ADHD professional that a teacher “had been inappropriately touching his (T’s) bottom, and that he has done it to another child, AC.”
17.	A later, undated, interim strategy minute records that a joint visit had been undertaken by police and social worker to interview the boys, apparently together and apparently in the presence of one or more adults. It commences “Disclosure by T and A of inappropriate touching and physical chastisement” and records the joint visit from the social workers’ point of view as follows: ”T stated that he has been put over Mr Wood’s knee, smacked on the bottom with a hand, ruler or stick. This has happened several times. A also stated that he has witnessed this and it has happened to him. The boys said that this has happened to them either together or separately. Also T said Mr Wood has cuddled him by pulling him into his private parts. Additionally it was stated by T that Mr Wood offered money of £10. T admitted on one occasion taking £5. He said he didn’t know why he was offered the money. These events have taken place since Christmas and up til he disclosed these events. Mr Wood invited him to his home during the half term period. He later phoned Mrs Wood  and apologised for not speaking to her first. Mother didn’t think it was very appropriate. Mr Wood has quite often given him a lift home from school. Mr Wood has told T he was taking antidepressants – parents didn’t feel that the information he was telling T was appropriate….Both boys made clear complaints about Mr Wood conduct. Both appeared genuinely distressed about the situation. It also been stated that A’s older brother S who has now left the school is aware of previous concern about Mr Wood” 
18.	The police Lotus notes record that: “The allegation is that Mr Wood has both boys in his office. They help him after school and during. He cuddles them and pulls them towards his groin. He puts them over his knee and smacks them with his hand, a plastic ruler or a stick. He tells them personal things about himself ie that he is taking anti depressants. He has given T lifts home and has invited him to stay at his home for half term. Both wish to make formal allegations of assault. They have agreed to be interviewed on video. There are clear allegations of Physical and Indecent assaults here.”
19.	The school notes of the later meeting indicate that it took place on 28 February. It records “Also AC’s brother (an ex pupil of the school) recalls Mr Wood behaving in a similar fashion when he was at the school and the police may pursue this line of enquiry”
20.	The plan was that SC was to be seen “regarding his knowledge of past allegations against Mr Wood” and the boys were to be video interviewed. The summary of their interviews is “Disclosures from both boys that Mr Wood smacked their bottoms and pulled them and held them close so that his genitals were touching theirs or their bodies.”
21.	Mr Wood was not charged with an offence. He was arrested for offences of indecent assault but the CPS advised that the appropriate charge was assault by beating and a caution for that offence was accepted by Mr Wood and was administered. The police evidence was somewhat unclear as to the cautions, but it was agreed that there was one caution in respect of each boy in respect of common assault and that Mr Wood denied any form of indecency. The police information records “It was alleged by the injured party, a 12 year old boy that Mr Wood touched him in an indecent manner by holding the injured party to his body allowing Mr Wood’s genitals to touch the injured party’s chest, stomach and genital area. Both parties were fully clothed and the incident could not be proven. Therefore, Mr Wood was cautioned for common assault.” In a letter sent to the Historical Review of List 99 cases enquiry the Police Force solicitor described the cautions as regarding “physical contact of an indecent nature”  pointing out that it was not felt that any offence of indecency could be proved in court.

AC and TB additional evidence

22.	The Secretary of State had a copy of a tutor group behaviour note written on March 29 by Mr H which recorded TB’s behaviour. It states “T had previously been involved in throwing AC’s bag in the Prep room after running around the laboratory for 1 minute.” and describes TB’s misconduct in the group resulting in him being sent to the Deputy Headmaster. It would seem that on the same day TB left school without permission and went home. He alleged to his mother that the teacher had kicked him and said “Now you can do to me what you have done to Mr Wood”.  Mr H denied the allegation and was reportedly “dumbstruck”.  It is stated that at the time staff were unaware of the allegations and had been told that Mr Wood was off work through stress.

23.	Mr Barham wrote to the investigating officer on the following day, repeating his concern about TB’s reliability and truthfulness. He stated “I would like to draw to your attention 2 other instances of T’s allegations against my teaching staff.”  He describes an allegation made by T that a teacher, Mr Bu, had thrown him against a wall and physically thrown him out of the classroom. The teacher had admitted pushing T against a wall but no other manhandling. The Deputy Head had investigated and had reported that T had said “I’m going to get him done”. Mr Barham’s oral evidence was that there were other concerns about Mr Bu which when taken with this admitted conduct had led to him dismissing Mr Bu.
24.	Mr Barham recorded that the Deputy Head had spoken to TB’s father who had agreed that the other incidents alleged by TB cast doubt on how seriously the allegations should be taken. The Deputy Head had reported that on occasions TB “seems to be on another planet” and that he appeared to be using the allegations as a “power trip”, and Mr Barham had concluded “...this latest incident again casts severe doubts on the credibility of allegations made by TB”.
25.	In a letter sent in March 2009 in respect of the review Mr Barham stated “TB was permanently excluded for making three serious, but scurrilous allegations which could have led to such staff being suspended and their careers ruined. Mr Wood was one of the members of staff. It was agreed by the Governors’ disciplinary panel that T was a danger to staff because of his propensity to make allegations against staff.”

KC

26.	A note of a telephone call made on behalf of the police in August 2004 in response to the enquiry about the allegations states “... the allegations were historical and went back 30, when Mr Wood was alleged to have abused a child. He then went on to marry the child’s mother and the abuse continued.” The source of this information is not recorded, however it would appear that the CPS case file had been destroyed and the sole source of information was the Police case review file. In March 2009 it was confirmed that the actual endorsement stated “The victim was reliable and was corroborated to a certain extent by his brother.”
27.	In response to enquiries about information relating to KC the police sent a note in May 2005 which states that KC said Mr Wood ”...used to take him into his office and indecently assault him, the abuse continued for approximately 2 years. WOOD would make K sit on his lap, K stated that WOOD had an erection when he did this. WOOD befriended K’s mother and eventually married her. He moved into the family home where the abuse continued. He would go into K’s bedroom and kiss K and touch him around his genital area whilst K lay in bed. This abuse continued for as long as K could remember. After a number of years WOOD and K’s mother separated. During the investigation K’s brother, S was also spoken to, he also state that WOOD had kissed him on an occasion, the kiss had been an open mouthed kiss. K’s mother died prior to K reporting the matter to the Police. At the time of the alleged crime K was 11 and S was 14...due to the historic nature of the allegations, possible witnesses and paperwork relating to the school were unobtainable. ...the case was discontinued by the Judge after the prosecution witnesses had given their evidence. This was based on recent case law surrounding historic allegations – owing to the fact that possible witnesses had died and paperwork had been destroyed – WOOD could not have a fair trial”.
28.	A further letter was sent in October 2008. This information includes the following:“The victim reported that it was up to him whether the victim moved to grammar School or not. The victim reported that on one occasion Mr Wood attended at his home address to give him a present and there he met his mother and befriended her and began a relationship. The victim reported that while this was going on the incidents at school continued. He then became aware that his mother and Mr Wood were to marry. They did marry and eventually Mr Wood moved in with them. The victim reported that when he went to bed Mr Wood would come into his bed and kiss him on the mouth with his mouth open. The victim also reported that he would role (sic) him onto his side, put his hand down his pyjama bottoms and touch his bottom and on occasions brush past his genitals”
29.	The only statements produced for the Case review were defence statements. These included a statement from the Headmaster of the T school recording that no complaints had been made to him or any of the teachers by KC or his mother. He praised Mr Wood as an excellent teacher and concluded “I believe these allegations made by KC to be untrue. If I had had any concerns I would have taken immediate action”. A statement from a retired teacher pointed out that “If anything untoward was going on there was a high risk of being caught”, and there were statements of praise from parents and from a former pupil. Mrs Tyler, a teacher who shared the office with Mr Wood where the assaults in school were alleged to have taken place said that she had not seen KC in the office more than any other boy and that the office “Was not private”. She attended the Tribunal and gave brief evidence confirming her statement. She agreed that on occasions the office door was closed and that it was not impossible that the allegations had occurred –“nothing is completely impossible”.

The Lucy Faithfull assessment
30.	This assessment, by Mr Tom Squire, was commissioned as part of the review. There is no letter of referral outlining what Mr Squire was to do and Mr Squire simply states that Mr Wood has been referred for assessment. Mr Squire had similar material to that supplied to Sir Roger Singleton, and he notes that in relation to KC and his brother there is no statement or any further information that provides an overall chronology of events. He states “Details of both the allegations and context are therefore vague.  For example, it is unclear when Mr Wood married KC’s mother, or whether the alleged abuse at home was contemporaneous with the alleged abuse at the T School.” and “Despite the detail provided regarding some aspects of the allegations, the lack of any statements or interview transcripts from the key individuals, other than Mr Wood’s submissions to the Department, makes it difficult to draw a definitive conclusion as to their veracity.  In particular, the information relating to KC’s allegation is especially sparse.  As previously noted, there is no information that provides an overall chronology of events.” 
31.	Of the allegations made by KC Mr Squire goes on to opine that there are number of factors which lend credibility to KC’s allegation, namely:”… that it is difficult to understand what might have motivated KC to make the allegation against Mr Wood, some twenty-five years after the alleged abuse took place, if the allegations were untrue.” Secondly in his view the facts that the CPS had thought there was sufficient evidence to prosecute implied that there was sufficient evidence, that KC gave evidence thereby demonstrating “his determination to prosecute Mr Wood.” and the fact that Mr Squire believed that the decision to stay the trial on the basis of abuse of process did not imply judicial comment on the quality of the evidence all supported KC’s veracity. Further, Mr Squire concludes that KC’s brother’s evidence was supportive and suggested that he “…believed that his brother’s allegation was credible and sound”. Mr Squire goes on to make comments about the nature of Mr Wood’s relationship with KC, SC and their mother, concluding “… although speculative on my part, the paucity of the information about Mr Wood’s marriage, the fact that he subsequently divorced KC’s mother, and his evidently poor relationship with his former step sons, all raise doubts as to the quality of his relationship with KC’s mother, and therefore his motives for marrying her.”
32.	Of the allegations made by AC and TB Mr Squire notes the views of Mr Barham, the Head Teacher, that the allegations were unsound and records that TB was excluded for making allegations against staff. Mr Squire records TB’s apparent behavioural difficulties and adds that “Pupils with such educational needs are perhaps more likely to make malicious allegations against staff, often as a means of redressing a perceived injustice” He also records the excellent references for Mr.Wood, and the fact that the CPS decision not to prosecute reflected the decision that there was “…no clear sexual behaviour was alleged by TB and AC.
33.	Against that he points to matters which in his view support the veracity of the allegations, including the fact that it is less likely that “groups” of pupils would make malicious allegations and the concerns raised by AC’s brother. Further, he prays in aid the fact that the authorities believed the boys to be credible and that the boys gave video interviews. In addition he cites the ‘undisputed’ invitation to TB of coming to his home and the fact that he had disclosed that he was taking anti depressants. 

34.	 Mr Squire also places into the overall balance the fact of a paucity of previous concerns as to any misbehaviour over a long teaching career and the strong support of Mr Wood by other teaching staff but concludes:  “Nevertheless, despite the above considerations, on balance my view is that the allegations against Mr Wood are unlikely to be totally fictitious in their origins.  My view in this regard is based to a significant degree on the fact that the Crown Prosecution Service, having assessed TB’s and AC’s evidence, concluded that Mr Wood’s conduct merited a formal Caution.  Mr Wood accepted the Caution and promptly resigned from his post at The S School.  If the allegations had been wholly malicious, this would be an unusual outcome.  Likewise, with respect to the allegations made by KC, the Crown Prosecution Service evidently considered his testimony sufficiently robust to seek a criminal prosecution of Mr Wood.”

Tribunal’s conclusions with Reasons

35.	We took into account the evidence contained in the bundle, the oral evidence and the written and oral submissions of both advocates. The parties agreed that the written evidence was all relevant to the decision as it related to matters before the Secretary of State at the time of the determination and both advocates and the panel took great care to ensure that the oral evidence was restricted to those matters. We considered the evidence in respect of each allegation in turn and weighed it carefully in order to ascertain whether the relevant standard was met. We applied the relevant law and considered in particular whether there was any evidence of collusion, whether there was any similarity between the allegations and whether there was any independent support for the allegations. We bore in mind that the initial referral made to the department in September 2003 resulted in a decision not to bar Mr Wood whereas the later decision took a different view, and that Sir Roger Singleton’s view in June 2009 was that this was “a difficult case” and his support for a bar was “on a fine balance". 

36.	We paid particular attention to the approach of Pitchford J in the case of Secretary of State v J [2009]EWHC 524 (Admin) where he considered an appeal from an FTT direction to remove J’s name from both List 99 and the PoCA and PoVA lists. In that case the FTT heard the direct evidence of one of the complainants, had before it transcripts of evidence given at a Crown Court Trial and video interviews. The total documentation available was in the region of 2000 pages. The similarities alleged were that there were 5 allegations of touching Sea Cadets at night, including masturbation. The appellant was in a position of authority over the sea cadets and it was said that the assaults all included direct touching of the boy’s penis, they were of similar ages and backgrounds, and the assaults were opportunistic, at night, in the vicinity of others.
37.	In that case the Secretary of State submitted that the tribunal should consider “what was the likelihood of three separate teenagers making similar but untrue allegations of assault on separate and unconnected occasions?” Further, that in assessing the similarity in the facts and the probative force of such similarity the panel should consider the likelihood of contamination, the degree of similarity and the period of time over which they were made and any other factors which may affect the credibility and reliability of the complainant. Pitchford J allowed the appeal on the basis that the tribunal had given insufficient consideration to “the significance of cross admissibility of the evidence of the principal complainants, and did not consider it.” He found that the tribunal erred in failing to consider the question of contamination and collaboration.
38.	In this case we noted that in the submission to the Secretary of state in September 2009 it was said that TB and AC Mr Wood “had cuddled each boy, pulling them into his body and his private parts.” As can be seen from the written evidence there is no direct evidence that AC actually said that this had happened to him, although the indirect summaries do appear to treat the allegations as identical. The most independent source of evidence, the video interview, are summarised in one line treating both boys the same. We also noted that a great deal of the Tom Squire assessment was quoted and relied upon.

Was there sufficient evidence to show on a balance of probabilities that Mr Wood sexually abused KC between1973 and 1975? 

39.	The evidence in respect of these allegations was extremely limited and we agree with Mr Squire’s description of it which was “sparse”. The main if not only source of information was the police case review file. There are no prosecution witness statements, transcripts of evidence and we did not hear KC’s evidence. We have concluded that even taking into account the fact that the matter was prosecuted and was not stayed on the basis of unreliable evidence there is insufficient to support a finding that it is more likely than not that Mr Wood sexually assaulted KC.

Was there sufficient evidence to show on a balance of probabilities that Mr Wood sexually assaulted TB?

40.	We carefully considered the evidence of the allegations made by TB, the evidence about his character and the fact that Mr Wood accepted a caution for physically assaulting him. In respect of the latter Mr Gold conceded that we should not look behind the caution and we have not. We have concluded that TB was a troubled boy who made several allegations against his teachers. He had been prescribed Ritalin and was not taking it consistently. We have borne in mind the fact that part of his allegation against Mr Bu was true, because the accepted physical assault by Mr Bu, coupled with earlier misconduct meant that he was sacked by Mr Barham. We rejected Ms Olley’s submission that this demonstrated that TB was a truthful boy. We found that although there was a core of truth in respect of the allegation against Mr Bu it was seriously exaggerated, and that his allegation against Mr H was demonstrably fabricated, as found by the school investigation which established that a boy TB claimed was present was elsewhere at the relevant time. This view is supported by the fact that TB alleged that the teacher had suggested that he could make an allegation against him as he had done against Mr Wood when we are satisfied on Mr Barham’s evidence that only senior staff were aware of the allegations, the remainder, including Mr H, believing Mr Wood to be off work with stress.
41.	Mr Barham believed that his views about TB and the fabrication of allegations against Mr Wood was supported by the Board of Governors who permanently excluded TB, partly as a result of the false and exaggerated allegations he had made. We were satisfied that Mr Barham had no particular friendship with Mr Wood which would influence his judgement and we were satisfied that he gave balanced evidence.
42.	The actual evidence of what TB had alleged is limited. The summary of his video interview is contained in one line and the notes taken by the police officer and the social worker who interviewed the boys are poorly recorded and frequently unclear.  The evidence of how the allegations were made is poor and the allegations are inevitably tainted by this and the cross contamination with AC’s evidence. On the basis of this and the information about TB’s lack of honesty or tendency to exaggerate we have concluded that even taking into account the fact that the investigation was taken as far as video evidence and the fact that Mr Wood accepted a caution for physically assaulting TB there is insufficient to support a finding that it is more likely than not that Mr Wood sexually assaulted TB. 

Was there sufficient evidence to show on a balance of probabilities that Mr Wood sexually assaulted AC?

43.	References to AC in the papers are very much associated with those to TB’s allegations. The only direct evidence that AC made an independent allegation of sexual assault comes from the summary of his video interview. Unfortunately that summary is extremely short and gives little detail as to what AC had himself said, instead referring to both boys. AC was part of the joint interview with TB and it is unclear whether he made a specific allegation or agreed with what TB said. We accept the evidence of Mr Barham and Mr Wood that AC was heavily influenced by TB, which is supported by the fact that when TB was removed from the school AC’s behaviour improved and he did well. On the basis of this and the paucity of the written evidence, the absence of video evidence or even a transcript or full summary of the allegations made we have concluded that even taking into account the fact that the investigation was taken as far as video evidence and the fact that Mr Wood accepted a caution for physically assaulting AC there is insufficient to support a finding that it is more likely than not that Mr Wood sexually assaulted AC. 

The fact that there are two sets of allegations

44.	We took account of the fact that there were two sets of allegations as potentially supportive of the complaints made by the three boys but were cautious that we did not follow “Meadow’s law” of building a case on suspicion. In this case we concluded that there was insufficient evidence in respect of all three boys individually that we could be satisfied on a balance of probabilities that Mr Wood had sexually abused them. We then went on to consider whether the fact of three allegations made on two occasions where cross contamination or collusion was unlikely between the historic allegations and the second allegations, and where there were alleged similarities between the complaints, was enough to prove unsuitability. We concluded that this case differed from J  because there were fewer sets of allegations, there was a very long gap between the dates of the alleged misconduct and the similarities were so limited as to be of little probative value. 

Collusion and contamination.

45.	It was common ground that there was no direct collusion between KC and the boys who made the allegations some 29 years later. 
46.	Unfortunately the same lack of collusion and contamination could not be said about the allegations made by TB and AC, who were somewhat surprisingly seen together by the police officer and social worker, possibly with other adults present, and whose evidence was thereby inevitably compromised.  It would appear that most of the guidance on Achieving Best Evidence when interviewing children was ignored, a factor which casts doubt on the reliability of the information gleaned and potentially tainted the subsequent video interviews.

Similarity between the allegations

47.	We carefully considered the evidence about possible similarities between the allegations against Mr Wood. Miss Olley submitted that these were as follows: same gender; similar age; similar location (school office);similar acts; at the lower end of the scale with clothes on; fleeting and opportunistic. She suggested that Mr Wood’s “signature” was to pull the boys into him.
48.	The person making the list 99 referral following the KC allegation stated “Police are clear that the previous allegation and caution are significant to this case, not least because the assaults were similar in nature” although the similarities are not recorded. Sir Roger Singleton recorded in June 2009 that there was “some similarity” between the 1970’s and the 2002 allegations but concluded that the similarity, the serious allegations and the support provided by SC were not “strong corroborative evidence”. 
49.	We concluded that the similarities between the allegations were very limited. The allegations were not all of fleeting touching over clothes by pulling the boys to him, since KC had made allegations of abuse in his bed at home. There was a difference between the “hugging” alleged and the ‘sitting on the knee’  or touching in bed. The similarities of age, sex and absence of masturbation/ buggary/oral sex are in our view of limited value and we agree with Sir Roger Singleton’s conclusion that they do not provide strong corroborative evidence, indeed in our assessment the evidence is weak.
50.	We took into account the Lucy Faithfull report and Mr Squire’s oral evidence. At the time of the report Mr Squire had been a practitioner at the Lucy Faithfull Foundation for about 2 years. He had been a probation officer working with convicted sex offenders and had some CBT training for working with offenders.  He had similar written information available to him as that provided to the Secretary of State. It was unfortunate that there was no face to face assessment however Mr Wood was living in Hong Kong at the time.
51.	Mr Squire said that he had no qualms about his assessment and told the panel that in his view the hallmarks of veracity in sexual abuse allegations were: the number of children making allegations (the greater the number the more likely to be true); children speaking with sexual knowledge beyond their years; children are unlikely to fabricate evidence; acrimonious relationships and consistency in making the allegation and attending criminal proceedings.  He placed particular weight on the fact that there were 2 sets of allegations: “I’d go so far as to say that if it were not for the KC allegations I would have attached less weight to the later allegations. It’s about an accumulation of credibility”
52.	We have concluded that Mr Squire placed too much reliance in this case upon the fact that the allegations were made and pursued. Many people make allegations and pursue them, but that does not mean that they are true.  Equally, prosecutions are brought on the basis that there is a case to answer and upon untested evidence and in our view Mr Squire relies too much on the fact of charge or prosecution to support veracity. These matters are of course relevant but charge / prosecution on untested evidence does not necessarily equate to proof on a balance of probabilities, which is the relevant test in this case. Mr Squire refers to allegations made by “groups” of boys being more credible, however AC and TB were the only boys to make significant allegations at the time. AC’s brother’s comments are at best unclear and do not in our view amount to significant supportive allegations.
53.	We accept that Mr Squire held concerns about the alleged invitation to Mr Wood’s home and the disclosure of information about taking antidepressants. When the latter is put into context, namely that Mr Wood was assisting TB to take his prescribed Ritalin and explaining the importance of taking medication by using the example of his own medication, it has led us to conclude that the disclosure has far less sinister overtones, and was well motivated if misguided. We were also very concerned about the amount of speculation in Mr Squire’s report and therefore in his analysis and reasoning. The suggestion that SC’s brother believed KC’s allegation to be credible and sound is pure speculation, as are the comments about the nature of the relationship between Mr Wood and KC’s mother. Further, Mr Squire’s assumptions about the “prompt” departure of Mr Wood to China are in our view misplaced. We are satisfied on the evidence that there had been a settled plan for Mr Wood to retire long before the allegations of TB and AC and that there is nothing sinister in his departure from the school to China at that time. In oral evidence Mr Squire stated that he had in fact not taken this into account. This is not in fact borne out by the references to it in his assessment, and we have concluded that in fact it did play a part in his decision making. 
54.	The cautions for assault demonstrate inappropriate conduct, however we have concluded on the evidence that no sexual misconduct was alleged or admitted in the course of administering the cautions, because we are satisfied that Mr Wood would not have accepted them on that basis. To speculate about sexual overtones to the admitted conduct is in our view dangerous because the allegations of TB and AC about the physical assaults contain no reference to sexual misconduct nor any link with TB’s sexual allegations in time or nature.
55.	 Mr Squire’s overall conclusions seem to rest on the basis of speculation and hypothesis. He states:”A plausible hypothesis to explain Mr Wood’s alleged behaviour is that he has an inherent sexual interest in pubescent boys, which for considerable periods of his professional career he appears to have managed within acceptable boundaries.  At times however, as evidenced by the allegations against him, Mr Wood’s conduct appears to have transgressed these boundaries.  The allegations further suggest that such transgressions occurred within the context of close teacher-pupil relationships, and individual tuition.  This hypothesis, although speculative on my part, is supported by Mr Wood’s apparently limited history of adult, sexual relationships.” 
56.	Mr Squire commented that “part of risk assessment is speculation if it can be justified.” We accept that there may be room for speculation in risk assessment but only as to the level as risk once the factual matrix is identified. Speculation as to the basic facts and what supports them could in our view be highly dangerous and is a trap which Mr Squire seems to have fallen into. What is particularly surprising is that his conclusion of a “limited history of adult sexual relationships” is not based on what Mr Wood had said, nor on any chronology. It is simply based on the fact that Mr Wood only mentions KC’s mother in his submission to the Secretary of State. Since the allegations relate to KC it is hardly surprising that he mentions her and in our view there was no reason for him to mention any other adult sexual relationships. Indeed it may have been thought inappropriate had he done so. The failure to refer to them therefore does not support Mr Squire’s hypothesis which we reject as lacking reasoned analysis and we class, along with matters referred to above, as speculation rather than considered opinion supported by facts to which weight should be attached. 
57.	We are surprised that Mr Squire does not refer to any standard of proof in his assessment and we do not place any significant weight on his conclusion that the allegations are “broadly true” because of the lack of indication as to the standard considered and the significant and serious deficiencies in his assessment techniques as identified above.
58.	We had the benefit of hearing Mr Wood’s short oral evidence. We found him to be measured and credible. We accepted his evidence that had he understood the nature and importance of the Lucy Faithfull assessment he would have tried to attend from Hong Kong. We assessed him as more sad than angry about the allegations. He described TB as a story teller rather than accuse him of lying which demonstrated to us that he remained caring even after serious allegations were made. We also took into account the fact that he had had no other allegations made against him in a long career and that his testimonial references praised him highly as a teacher and as a person of integrity.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               
59.	We also took into account the written and oral evidence from Sir Roger Singleton. He gave balanced and thoughtful evidence and it was clear that he felt that the matter was finely balanced and could see the evidential difficulties in relation to the findings sought. He had been concerned by the lack of information and officials had tried to obtain further detail without much success. He had doubts about Mr Barham’s objectivity based on the papers which we did not share having heard Mr Barham’s evidence. Sir Roger accepted that his doubts about Mr Barham had affected his view of TB’s credibility and thus his conclusions. We have placed weight on Sir Roger’s evidence and his careful consideration of the facts before him on paper and have given weight to it. We have also given weight to the fact that an earlier Secretary of State had come to a different conclusion. 
60.	We have applied the Philliskirk two-stage test and have asked ourselves:
•	Is there sufficient evidence to enable a determination to be made?
•	Was the determination or direction an appropriate or proportionate response in all the circumstances? In determining the proportionality of the decision the Tribunal must determine whether it was no more than necessary to achieve the legitimate aim of protecting children and struck a ‘fair balance’ between the rights of the individual and the wider public interest. 

61.	For the reasons discussed above we have concluded that there is insufficient evidence to support any finding of sexual misconduct by Mr Wood on the civil standard of proof and we do not find that the isolated incidents of physical abuse were sufficient to render Mr Wood unsuitable to work with children and we have therefore decided that the appeal should be allowed since the direction is not appropriate or in the public interest. 

ORDER:

Appeal Allowed. The direction dated 6 October 2009 shall be revoked and the appellant’s name removed from List 99

There shall be a Restricted Reporting Order under Rule 14(1)(b) prohibiting the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to identify any person referred to in this decision by initials.

Judge Nancy Hillier
Lead Judge Care Standards and Primary Health Lists
2 July 2012.