AH v Secretary of State [2009] UKFTT 176 (HESC)

FTT-HESC
AH v Secretary of State
[2009] UKFTT 176 (HESC) · 2009-07-31
[1]AH -v- Secretary of State [2008] 1241.PC -before- His Honour Judge David Pearl Mrs Susan Howell Ms Judith Wade Introduction This is an appeal brought by Mr AH against the decision of the Secretary of State to confirm his name both on the PoCA list and the PoVA list. The letter of confirmation is dated 12 th November 2007.[2]Mr AH was born on the 20 th September 1938. He was ordained as a member of the clergy of the Church of England in 1977. His licence came to an end in 2005 and it has not been renewed.[3]At the hearing of the appeal before us, Mr Richard Egleton of Counsel represented the Appellant, and Ms Kate Olley of Counsel represented the Respondent. The Appeal application form had not ticked the box in relation to the PoVA listing, but Ms Olley did not take issue with this, and it was agreed that there was an effective appeal in relation both to the PoCA and the PoVA listing.[4]The referral to the Secretary of State was made on 1 st November 2006 by the Diocese of Oxford. The referral letter is signed by the Bishop of Buckingham and states "We consider that Mr AH qualifies for inclusion as an individual who retired in circumstances such that we would have dismissed him or considered dismissing him if he had not retired."[5]As Mr Egleton, Counsel on behalf of AH correctly submitted, this letter is a reference to section 2(2)(b) of the Protection of Children Act 1999, being one of the entry conditions required by s 2(1)(a) of the Act. Mr Egleton submitted, as a preliminary issue, that the entry condition of s 2(1)(a) had not been satisfied, and that as the initial referral was not within the terms of the Act, the PoCA listing, and as a consequence the PoVA listing as well, should not have been made.[6]In support of the submission, Mr Egleton referred to the terms of the letter which states:
"In brief, Mr AH was charged in 1997 with indecent assault against a minor. The case was discontinued by the CPS before it went to court. In 2001 there was a further episode of sexual grooming in relation to a young adult with whom Mr AH was in a position of trust. Because of these concerns, we referred Mr AH to the Lucy Faithfull Foundation for an assessment."
A copy of the report was enclosed with this letter.[7]Mr Egleton's submission is an attempt to challenge the vires of the reference. We cannot accept this submission. Such a challenge is not within the jurisdiction of the Tribunal.[8]The law is now well settled. There are only three matters that the Tribunal must consider in relation to this appeal. First, we must decide whether or not the Applicant is guilty of misconduct. Secondly, did this misconduct harm or place at risk of harm a child or vulnerable adult? Thirdly, but only if we are satisfied as to the first two conditions, is the Appellant unsuitable to work with children and/or vulnerable adults. The Respondent carries the burden of proof on the balance of probability. In Secretary of State v Sini [2009] 1 All ER 1025 , Golding J (as he then was) in approving the approach taken by this Tribunal said that on a true construction of the legislation (in that case s 86(3) Care Standards Act 2000, but the wording is the same as the Protection of Children Act 1999) there was no restriction on the allegations of misconduct which could be considered by the Tribunal. Accordingly, as this Tribunal is not restricted to considering only the details of the alleged misconduct which constituted the basis of the original referral, it necessarily follows that it has no jurisdiction to consider whether the initial referral was or was not within the terms of the Protection of Children Act. The approach to the contrary in Reece v Secretary of State [2003] 129.PC is not binding on us, is obiter (as the Tribunal in that case held that the referral was lawful), and of course was decided prior to the High Court decision in Secretary of State v Sini [2009] 1 All ER 1025 . The allegations of misconduct (REC).[9]The first allegation of misconduct concerns allegations of inappropriate behaviour with respect to REC, who made an allegation in 1997 that the Appellant had indecently assaulted him in 1990 when he was a teenager. The Appellant was subsequently charged with this offence but the proceedings were discontinued before going to court. The Notice of Discontinuance is dated 16 th January 1998.[10]The Tribunal heard evidence from REC, who is the subject of this first allegation of misconduct. REC is now aged 35, but at the time of the incident he was a school boy in Year 11. The Tribunal also had the benefit of reading the witness statement prepared by REC on 22 nd July 1997 for the criminal proceedings.[11]The family of REC and the family of AH were close. The C family had moved down to the area in 1989 from the north and they became close to the H family. They met socially and went on holiday together. REC became friendly with AH's daughter, DH. It would appear that the C family started going to the church where AH was vicar very soon after they arrived in the area. REC became a drummer in the church youth band, and therefore he used to stay in the vicarage after music practice on the Saturday evening, rather than be driven home late on Saturday night only to have to come back again in the morning.[12]REC gave evidence, both in his witness statement, and in his oral evidence before us, of an indecent assault upon him by AH. He provided a picture of the background in the vicarage in the following way. He said that AH's banter was often loaded with sexual innuendo, with double meanings, although he accepted that his mother appreciated AH's humour. He said that as a 15-16 year old boy at the time, he found it interesting because his own family was rather prudish. He said that he often saw AH walking around naked in the house, upstairs. REC said that when the day's work was done, AH would go back to the vicarage and take off his clothes. When cross-examined on this aspect of the evidence, REC limited the taking off of clothes to the period immediately before bedtime.[13]REC said that over a period of weeks and months, an increasing intimacy developed between them which on occasions led to them lying on the bed discussing sexual matters. He would become naked with AH. He remembers having an erection on several occasions, although he has no recollection of AH having an erection. The witness statement prepared for the criminal proceedings however states that AH would have an erection. REC said in evidence that he never ejaculated, but he did say that on one occasion he had "pre-liquid" and AH gave him a tissue to wipe himself. The banter included phrases such as "Go on big boy" to encourage him to undress. He said that there was a process of AH encouraging him to become naked. It would happen for about 30 minutes when his wife was downstairs and his daughters were preparing for bed or had gone to bed in adjacent rooms. REC agreed that the bedroom doors were usually open.[14]On one particular occasion, REC said that AH showed him a tin in the bedside cabinet which contained old but unused condoms. He said that AH would talk to him about sexual relations with his wife.[15]He gave one instance of when he was staying in the vicarage with a friend of his (SG). He said that when he and SG were getting changed to go to bed, AH sat down naked on the bed. He said that it was SG's reaction that made him (REC) feel uncomfortable, and made him aware that AH's behaviour was not proper.[16]We gained an impression from REC's evidence to us that at that time, he was going through an intense period in his life. In his own words he said:
"I was already aware of what I now know is the beginning of a homosexual life. Then I could not give it a name. I was innocent from sexual exposure. I was curious. Probably I was confused."
He said in reply to a question from the panel that he felt safe with AH, yet at liberty to explore his sexuality with him.[17]REC told us that at that time his relationship with his own father, on an emotional level, was non-existent. It would seem that REC used to ask AH questions of a sexual nature rather than to ask his own mother or father.[18]It is common ground that there came a time when AH commented to REC about the appearance of his (REC's) foreskin, and that AH told him that it may require medical intervention, by way of circumcision. He said that this was necessary because he would be able to enjoy sexual relations in a manner that would not otherwise be possible. At that stage, on the evidence, it would seem that AH did not touch REC.[19]REC told us in evidence that AH asked for permission for him (AH) to talk with a doctor, a member of the church music group but not his own GP, about this situation. REC gave AH his permission.[20]In written evidence, the doctor said he was surprised that AH had seen REC's penis but felt that as the families were close it was understandable. This doctor told AH that REC must go to see his own doctor.[21]This in fact is what happened, although there was some confusion as to whether REC was taken there by his own father or by AH. Although initially REC thought he was taken by his own father, he agreed eventually with the suggestion put to him by Mr Egleton that he was taken to the doctor by AH. He did in fact then undergo a circumcision.[22]The criminal proceedings arose out of an incident in AH's study. REC could not remember whether this was before or after he had been to see the doctor. On this evening, according to the account as described in evidence by REC, he was sleeping in the study, and AH came into the study and pulled down the sheets and touched his penis. The witness statement prepared for the criminal proceedings says:
"My penis was flaccid and [AH] pulled my foreskin back and felt around the general area inspecting my penis."
The statement goes on to say "He clearly touched me without warning and I am certain that this happened as I recoiled from this and pushed him away and said that I was 'fine thank you'. I was crying and upset by this as it was unprovoked, unnecessary and without warning."[23]AH acknowledges that he conducted this manual examination, although his description of the event differs in detail from that given to us by REC. He stated that he conducted the manual examination before consulting the doctor in the community. We accept the chronology as put forward by AH as being the more likely sequence of events.[24]REC said that he felt invaded and assaulted, and we agree that if this incident occurred, and AH acknowledges of course that it did, then REC could have felt upset and alarmed. He said that this incident had a profound effect on him and we can well understand this. At that point he saw AH in a different light. He continued to stay overnight in the vicarage until August 1990, although he told us in evidence that he took steps to avoid AH. He did not tell his parents about this incident until he was 21.[25]REC spent a gap year in Latin America in 1992/93 and on a Disciple Course he discussed the whole issue of dealing with his homosexuality and the incident which we have described and his feelings about all of it with his group leader (Ms Torrez). He told us that he felt that AH had taken his trust as his vicar to a level of improper behaviour, and he dealt with this emotional turmoil with his group leader. She helped him write a letter to send to AH, which he hoped would help repair his emotional turmoil. He said that he received a reply, and, after reading it several times, he did what AH asked him to do, namely to destroy the letter. The witness statement prepared for the criminal hearing says that the letter from AH admitted full responsibility for what he had done, acknowledging a sense of guilt.[26]He last saw AH in the summer of 1993 when he visited AH. He said in evidence that AH asked him if he was going to press charges, but that seeing him, amounted to "closure" for him. REC then went to University in Edinburgh and he has not seen AH since. REC told us in evidence that he felt that AH had affected him emotionally. REC said that he was confused by the nature of the relationship.[27]REC said that the criminal charges were pressed by his parents, and not by him. It would seem that in 1996, REC told his parents of his sexual persuasion and his relationship with AH, and it would appear that they blamed him for their son's homosexuality.[28]We heard evidence from AH's daughter, DH who was born on 24 th April 1974 and is therefore much the same age as REC. She was a friend of REC at the time, and she said that the allegations sit uncomfortably with what she knows about her father. In her statement, DH said that she believed that if REC had been uncomfortable, he would have said something about it at the time.[29]We heard evidence also from Mrs JH, AH's wife. Mrs JH said that in theory there was "space" in the day for the incidents to have happened so far as REC was concerned, but that she did not accept that there had been any misconduct by her husband with respect to REC. Her witness statement says:
"I find any allegations made by REC utterly unbelievable."
She goes on to say that it would be quite impossible for anything to happen like that without it being known to her or their daughters:
"Ours was not the kind of house where any such thing could go on without anyone knowing about it."
Secondly, she says in her statement that REC "was full of confidence and if he felt uncomfortable or unhappy about a situation he would just have got up and left."[30]Mrs JH told us that her husband did not talk about REC's requirement for medical intervention at the time, and she did not know about the operation. Our findings in relation to the allegation of misconduct (REC) and whether it harmed or placed at risk of harm a child.[31]Mr Egleton submitted that although REC was an impressive witness, we should treat his evidence with some care. He reminded us that an honest witness can be mistaken. He submitted that it is not clear why REC told Ms Torrez (the group leader) about the incident in the study, whilst not telling anyone else between 1990 and 1996.[32]Ms Olley submitted that on the basis of the evidence given by REC and even on AH's own account of the incidents which took place, there was misconduct which either harmed REC or placed him at risk of harm.[33]Ms Olley submitted that there is no dispute but that(i) AH and REC changed together alone in AH's room(ii) AH did not immediately draw a boundary line when REC exposed himself to AH in the bedroom in a naked and aroused state(iii) AH manually inspected REC's penis in the study.[34]We have considered all of the evidence that has been presented to us both orally and in writing.[35]We have decided that AH was unwise in allowing such a relaxed attitude involving an atmosphere of intimacy to develop between himself and REC, which enabled him to have sight of REC's penis, and to examine it by hand. Even on AH's own account, as given to us both in his witness statement and in evidence at the hearing, his behaviour in examining REC's penis by hand (before contacting any medical help or indeed before contacting REC's own parents) went well beyond his professional duties. In our view, this was a breach of the professional boundary and trust that one would expect from a person holding the position of a vicar with his young parishioner.[36]We were also concerned by the statement from Mrs JH that AH did not talk about REC's requirements for medical intervention, as we would have expected them to have communicated on something so out of the ordinary. It seems to us that if AH were being entirely innocent in his concern for REC he would have communicated this concern to his wife. The fact that he was secretive about it supports our view that the behaviour of AH went well beyond the boundaries that should have been in place, and strenuously observed, by a vicar who had a young man to stay in his house on many Saturday evenings. The suggestion by both AH and his wife that AH would not disclose information of a sensitive kind to his wife whilst at the same time his wife would respect the confidence of any young girls within the "church family," sits uncomfortably in this instance, with the accepted evidence that the two families were close.[37]Accordingly, and for the above reasons, we make a finding of misconduct as against AH in relation to the allegations concerning REC.[38]We are also of the view, on the basis of REC's evidence before us which we accept, that this misconduct either harmed him or placed him at risk of harm. We do not believe that he could simply "have walked away" as suggested by DH and Mrs JH. The allegation of misconduct (JE)[39]The second allegation of inappropriate behaviour arises from a referral by Cliff College to the Bishop of Buckingham made in August 2001, when concerns were raised by the College that AH was placing emotional pressure on a young man, then aged 21 years (JE), who was a part time student at the College on a Diploma course, as evidenced by text messages and emails.[40]JE had been living with AH's family for the previous two years, and he had been working in the Appellant's parish primarily as a youth worker.[41]Mrs JH said that her daughter JD met JE at a Christian festival and introduced him to AH and other family members as someone needing advice and indeed in need of a home. After discussion within the family, he was invited to spend a holiday with them. Soon afterwards, he was invited to live with them, and, in return for board and lodging, he carried out some children's youth work in the parish.[42]He spent two years with the family, spending holidays with them, being treated as a family member, choosing to move with the family when they moved house, and being financially supported, including the payment of the College fees at Cliff College. Mrs JH said that he was treated as part of the family.[43]A very strong emotional bond seems to have developed between AH and JE and it is clear to us that AH identified with JE because they shared similar backgrounds, and because of the sympathy that AH had towards JE as a result of AH's own troubled early life that he deals with at length in his written statement. There was also a complex set of relationships between JE and the daughters in the family. He was dating JD during this period.[44]We did not hear any evidence from or receive a witness statement from JE. We heard evidence from Mrs SG who in 2001 was employed at Cliff College as a full time lecturer and tutor, and from Mr IW who was the course leader at the relevant time at the college.[45]Ms SG wrote to the Bishop of Buckingham on 1 st August 2001 to report her concerns about the Appellant's relationship with JE. She said in evidence:
"As the course unfolded and JE came back on subsequent visits to the college, he began to talk about his background and asked advice about how to deal with the situation."
She told us that JE had shown her text messages at the end of May 2001 from AH which she considered to be inappropriate and sexual in tone; full of xxx's., saying things like 'I can't sleep' 'I miss you' etc. She saved the messages on to the phone memory. She said in evidence that she was convinced that AH was harassing JE. We have not seen the text messages, because the phone was sent to the Bishop by Mrs SG, and it is no longer available.[46]There were also a number of emails from AH to JE and vice versa that we have seen in the documentation. The first email from JE to AH: (undated but almost certainly just prior to 13 th July 2001) says "…I have decided to move on. This does not mean that I am running away from the H family. I am just having to go out into the world and learn for myself. I know this isn't going to be easy for you, but I did not know of any other way of doing this."[47]The reply is dated 13 th July 2001 and ends "let me end by simply saying that I love you and always will. X." The email contains the following sentence:
"…the unique relationship that you and I have developed goes very deep as far as I am concerned…"
[48]On 15 th July 2001, AH sent a further email, which ends:
"I remain committed to you in every way and my love and affection for you remains as ever."
[49]He emailed again on 16 th July 2001, 17 th July 2001 and 18 th July 2001. The 17 th July email says "As I said before I do not know because you never tell me, how important our relationship is to you but you know that it means a very great deal to me and I do not want to lose it or see it damaged…Whilst I have been deeply hurt by the way things have happened I want to underline as strongly as I can that it makes absolutely no difference whatsoever to the way I feel about you."[50]AH wrote an email to Mrs SG on 18 th July 2001 about JE which was replied to by Mrs SG which states, in terms, "his decision to move on…seems very natural as he is an adult with skills and experience which should earn him a salary where he can be independent. He has given two years service, and it is right that he would want to move on to full time work in the field." AH replied saying that his concern was not with JE's decision to move on but with the way in which this decision came about.[51]On 1 st August 2001, Mrs SG wrote to the Bishop of Buckingham enclosing copies of these emails, and JE's mobile phone, which the letter says contains more than 70 text messages sent by AH to JE "most of which are inappropriately affectionate, many are sent perhaps more than once in one day."[52]In her evidence to us, Mrs SG said that she felt that at the time, AH's attitude towards JE was obsessive, and that he was receiving texts all the time that he did not want. The College gave him another phone to use on 20 th July 2001 when JE gave his own phone to Mrs SG.[53]Mrs SG told us that she thought JE, because of his background, to be emotionally vulnerable. Mrs JH in her witness statement said that JE "had a very disturbed and unhappy background." Mrs SG did not consider that there was any sexual grooming going on, but that JE was being subjected to emotional bullying.[54]JE seems to have moved on. Although JE failed his examination at the college, he had formed an attachment with a girl studying at the college, and they married the following year. Mrs SG attended the wedding, and although she has not seen them since, she did know that they had children and lived somewhere in the North of England.[55]The relationship between JE and JD seems to have come to an end on June 9 th 2001 when JE attended the wedding of the other daughter (DH). The emails seem to have commenced after this date.[56]We heard evidence from Mr IW who was the course leader at that time at the college. He said that he first met JE in Oct 2000, which was the first teaching week. The second teaching week was in February and the third week was in April/May 2001. He said that he thought JE although 21 to be immature for his age.[57]It was Mr IW who went with JE to the vicarage on 31 st July (when the family was away) to collect his belongings. Our findings in relation to the allegation of misconduct (JE) and whether it harmed or placed at risk of harm a child or vulnerable person.[58]We did not hear any evidence from JE and we do not have the benefit of a witness statement from him. To that extent all of the evidence regarding this matter is largely circumstantial.[59]We are told by Mr IW that he was immature for his age, and by Mrs SG that he was young for his age. We are told that he had a disturbed background and that he suffered from dyxlexia. However, we agree entirely with Mr Egleton who submitted that JE does not fall within the definition of a vulnerable adult under section 80(6) of the Care Standards Act 2000. He was not a child, as he was 21 at the time of the emails and texts. He was not a vulnerable adult as defined in the legislation. There is no basis therefore that the test as laid down in either the Protection of Children Act 1999 or the Care Standards Act 2000 is satisfied with regard to JE.[60]In any event, even at its highest, we cannot make a finding that the exchange of emails amounted to anything more than, with the benefit of hindsight, a "stupidly unwise" (as stated by AH) attempt by AH at that time to find out exactly what JE intended to do. It did not amount to sexual grooming. We agree with Mr Egleton that although the emails were overly affectionate, in context, they were an attempt by AH to ascertain why JE wished to break with the AH family after two years when he had been housed, sheltered and provided for by them.[61]Accordingly, it is our finding that the evidence in relation to JE is only relevant in so far as it impacts on questions of "suitability", in other words, as Mr Egleton put it, "to bolster the Secretary of State's case in respect of REC". Suitability[62]We turn now to consider the question of "suitability." We adopt the approach that has been applied by the Tribunal on many occasions. It was expressed by the Tribunal in Mairs v Secertary of State [2004] 2369 PC as follows: the Tribunal may have regard to(a) the number of incidents constituting the misconduct(b) the gravity of that misconduct(c) the time that has elapsed since the misconduct(d) the timing and degree of recognition by the applicant that the conduct constituted misconduct and that it had the potential to harm(e) the steps taken by the applicant to minimise the possibility of there being a recurrence of that or like misconduct; and(f) extenuating circumstances surrounding the misconduct.[63]This approach was most recently supported by the High Court (Bean J) in The Queen on the Application of Secretary of State for Health v M [2009] EWHC 1279 (Admin) .[64]It must be borne in mind that when considering suitability, there is one additional issue that needs to be considered; that of public confidence. In the recent High Court decision of Secretary of State for Children Schools and Families v BP [2009] EWHC 866 (Admin) , Munby J cited with approval the jurisprudence of the Tribunal in CN v Serertary of State [2004] 398.PC ; MB v Secretary of State [2005] 512.PC ; and David Sladdin v Secretary of State [2007] 1180.PC . Munby J said that the Tribunal "is plainly right…in stressing the vital importance of the issue of public confidence. This does not mean, of course, that the Tribunal is simply to pander to the unreasoned baying of the mob, but it does mean it is entitled to have regard to matters which are likely to be of concern to ordinary sensible people."[65]In order to arrive at our conclusion we were helped by the expert evidence both in Reports and oral evidence by Dr Judith Earnshaw, a Senior Clinical Therapist, of the Lucy Faithfull Foundation and by Mr Gerard Szary, of the Centre for Psychological Therapy instructed by the Appellant.[66]Dr Earnshaw's Report is based on two three-hour interviews with AH. Mr Szary, together with Dr Michael Christopher and Mrs Anne Szary, of the Centre for Psychological Therapy, adopted a different approach and in particular administered a range of psychometric tests.[67]In fact, the experts met together before the hearing and were able to agree to the following: AH displays a level of risk to adolescent and young adult males in the context of the family home and a close relationship There is a lack of insight into this behaviour There is lack of forethought and awareness of consequences for others Intervention which could demonstrate change is needed There needs to be some evidence of self motivated change There is a need for a plan of safe practice to which AH has contributed The plan of safe practice needs the full support of all involved If permission to officiate were granted, it would need to be adjusted to fit with the plan of safe practice. There was a difference of opinion on only two matters. First, Dr Earnshaw said in her Report and in her oral evidence that the therapeutic intervention was necessary prior to removal from the lists. Mr Szary had a different view, in that he would favour removal from the list prior to therapeutic intervention. Secondly, as we understand it, Mr Szary submitted to us that a Plan of Safe Practice was a sufficient control in itself. This was not the position of Dr Earnshaw.[68]Mr Szary accepted that the behaviour of AH in relation to both incidents raised questionable behaviour which was ill advised in the circumstances. He also accepted that "risk" was only one aspect of suitability.[69]It is important to emphasise that this Tribunal is a specialist Tribunal that over the years has considered many cases where it has had to decide on the sensitive question of suitability. It is of course always helped by the input of expert Reports, but it must arrive at its own decision based on its own analysis of the issues as set out in the quotation in Mairs, and consider issues of public confidence which in some contexts may be more important than a finding of an absence of risk.[70]The point was made by the Upper Tribunal when refusing permission to appeal in the case of Secretary of State for Children Schools and Families v Norton (C/1417/2009). The Upper Tribunal Judge said "It is right for Tribunals to subject expert evidence to appropriate scrutiny and only to accept it when it finds that it is sound."[71]We have decided in the context of this case that the issues involving JE do not "bolster" the case of unsuitability when considering what happened in relation to REC. We agree entirely with Mr Egleton who submitted that they are not equivalent cases. There is a difference of age and build, the events are separated by 8 years, the two men have different sexual orientations, there was substantial financial support of JE but none in relation to REC, and they had very different personalities and academic attainments.[72]In any event, as we have already indicated, even at its highest, we have not made a finding that his behaviour with regard to JE amounted to misconduct. It did not amount to sexual grooming, and this is accepted by Dr Earnshaw.[73]When considering the "checklist" as set out in Mairs, we make the following findings: (a). number of incidents . There is only one incident, and notwithstanding the publicity that attached to the criminal proceedings, no other complainant came forward. JE did not give evidence, he was not a "vulnerable adult", and even if he were, we do not find that AH's behaviour constituted "misconduct". In our view it was no more than "stupidly unwise." (b) gravity of misconduct . We have decided that the Appellant was guilty of misconduct in relation to REC, but we have to say we do not consider that this behaviour constituted grave and serious misconduct. He crossed a line that people would consider should exist in a relationship between a young parishioner and parish priest, but in our view by only a small margin. (c ) time that has elapsed . Considerable time has of course elapsed since the events involving REC. (d) timing and degree of recognition by the applicant that the conduct constituted misconduct . The Church authorities in this case did not take any steps in this matter until well after the events became known, and therefore it could be argued that if the Church authorities at the time did not consider the matter sufficient to constitute misconduct, AH cannot be criticised for not dealing with the issues. (e) steps taken to minimise possibility of a recurrence . AH's life is of course very different now to what it was in the 1990's. He is no longer a vicar, he no longer lives in a vicarage, and he simply wishes to be able to officiate on occasion at weddings and services when allowed so to do by the Church authorities. That in itself illustrates that when assessing risk, there is little likelihood of a recurrence. In addition, AH told us in evidence that he was prepared both to undergo therapy (although there are issues of cost), and to accept a Plan of Safe Practice that would be put in place. (f) extenuating circumstances surrounding the misconduct . There are no matters of relevance here. (g) public confidence . It is our view that, in the context of the present case, public confidence is not an issue of concern. AH is now retired, and he will only be able to officiate if given permission by the Church authorities. He has the support of his own vicar (Rev K), who attended the Tribunal proceedings, and we accept that he is very much part of his local Church community.[74]So far as the evidence of the experts was concerned, we do not think that there is a real difference of view. A Plan of Safe Practice is advised by both experts. Bearing in mind our findings in the paragraph above, we have decided that the Church authorities and AH should welcome the observations of the experts relating to clearly thought out and supportive courses of action. But we do not consider that this course of action need be undertaken prior to removal from the lists. Whether permission to officiate is granted by the Church prior to the introduction of a Plan of Safe Practice and indeed prior to therapy and counselling, as envisaged in paragraph 119 of the Dr Earnshaw's report, are matters for the Church authorities. APPEALS ALLOWED, THE RESPONDENT IS DIRECTED TO REMOVE THE APPELLANT FROM THE PoCA LIST AND THE PoVA LIST. His Honour Judge David Pearl (Principal Judge, Care Standards) Mrs Susan Howell (specialist member) Ms Judith Wade (specialist member) 30 th July 2009.