RT v Secretary of State [2010] UKFTT 599 (HESC)

FTT-HESC

RT v Secretary of State

[2010] UKFTT 599 (HESC) · 2010-12-06

[1]This is an appeal by Mr. R. T. under Section 4 of the Protection of Children Act 1999 against his inclusion in the list of persons considered unsuitable to work with children kept by the Secretary of State pursuant to Section 1 of that Act. He also appeals against his inclusion on the list of those unsuitable to work with vulnerable adults kept by the Secretary of State for Health pursuant to Section 81 of the Care Standards Act 2000. Preliminary Matters

[2]On the 20 th May, 2010 Tribunal Judge Goldthorpe made a Restricted Reporting Order under Rule 14 (1) (b) of the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (hereinafter called “the Rules”) 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 identity any service user or any member of the Appellant’s family. At the hearing the Tribunal determined that the Restricted Reporting Order should remain in force until further order. Evidence

[3]The Appellant is an ordained priest and in 1989 was appointed the Director of Communications for the Diocese of Oxford.

[4]On the 21 st June, 2005 the house in which the Appellant was living in Abingdon, Oxfordshire was searched by the police on suspicion that the Appellant had received, by computer, indecent images of children. This followed information given to the police by the authorities in Finland, who had obtained the Appellant’s name from internet records.

[5]The police removed from the Abingdon house various computer related items.

[6]One of the police officers who were involved in the investigation was Mr. Anthony Parry-Jones, who submitted a witness statement in these proceedings, dated the 11 th October 2010, and also gave oral evidence at the hearing. Mr. Parry-Jones stated that from August 2003 to April 2010 he had been employed within the Hi-Tech Crime Unit of Thames Valley Police, where his duties had included securing evidence from computers and associated storage devices. Mr. Parry-Jones stated that he had been involved in investigating RT, including attending the initial search of the premises in Abingdon, analysing the computer related items, as well as assisting in the interviewing of RT and subsequently preparing reports and witness statements.

[7]Mr. Parry-Jones had also signed a witness statement dated the 9 th November, 2005 as part of the criminal prosecution of the Appellant. In that statement he gave details of the items that had been taken from the Abingdon property. These included two loose hard drives found on their own, as well as what was described as a “Sempron tower unit”, together with two loose hard drives which had been taken out of the computer. Also removed were a number of floppy disks.

[8]Mr. Parry-Jones gave evidence of the forensic process that he had undertaken in order to determine how RT had used the computers and in particular to ascertain the images which he had viewed. At paragraphs 4 and 5 of his witness statement dated the 11 th October, 2010 Mr. Parry-Jones stated as follows:- “4. In total, 142 indecent images of children were found on the items seized from (RT). These were categorised according to their level of severity, using the levels established by the Sentencing Advisory Panel and used in the case of R v Oliver, Hartrey and Baldwin. The criteria for these levels at the time, (the criteria has since been slightly modified), were as follows:- Level 1: Images depicting erotic posing with no sexual activity; Level 2: Sexual activity between children, or solo masturbation by a child; Level 3: Non penetrative sexual activity between adults and children; Level 4: Penetrative sexual activity between children and adults; Level 5: Sadism or bestiality 5. The images were mainly levels 1 and 2 with three being level 4 and three level 5. The images were found on the hard drives of a number of computers, as well as on a floppy disk. It was not generally possible to specifically determine the exact series of actions which led to each image being present: this is not unusual, as computers do not generally keep a complete, permanent and unambiguous trail of user activity.”

[9]Mr. Parry-Jones explained during the course of his evidence what his investigations had shown in relation to the way in which the Appellant was accessing indecent images of children. It was said the Appellant had used chat programmes which enabled users to chat textually with other users in “chat rooms” and also to send and receive files, such as pictures. Mr. Parry-Jones stated that he found that the Appellant had set the Recycle Bin feature on the computer as a location from which files would be selected to be sent out, and in which files received would be stored 21 of the indecent images of children were found in the Recycle Bin. It was also said by Mr. Parry-Jones that the Appellant had been in the habit of searching for pictures of “boy” and also opening movies whose names suggested a sexual interest in children. In some cases Mr. Parry-Jones stated that the Appellant was making copies of the movie files that he had difficulty in viewing in order to look at them with a different programme.

[10]It was also stated by Mr. Parry-Jones that he had found traces of news groups being accessed whose names were indicative of a sexual interest in children. It also appeared that the Appellant had downloaded a picture of an unknown boy from the internet and used that as an identity with which to chat under the name of “Matt Symonds” on the internet.

[11]At the hearing Mr. Parry-Jones said that there was evidence of images being viewed by the Appellant on the evening before the Abingdon address had been searched, with the latest images having been viewed at 9.30pm on the 20 th June, 2005. Mr. Parry-Jones also referred to the contents of a number of floppy disks which contained stories involving children engaged in sexual activity which had been created and last accessed in December, 2003. There were also similar stories which went back to April/October 1999 which did not appear to have been accessed since that date.

[12]In terms of where in the Abingdon house the various items had been found, Mr. Parry-Jones accepted when questioned by the Appellant about the loose hard drives, that one had been found in a waste basket in the Appellant’s study and that there was evidence of an attempt having been made to delete the images. Mr. Parry-Jones accepted that it had required someone with a reasonably high level of expertise in order to determine what images had been on that hard drive. The computer which the Appellant had still been using at the time the police visited on the 21 st June, 2005 still had many indecent images on it ranging from Level 2 through to Level 4.

[13]At paragraph 13 of his witness statement of the 11 th October, 2010 Mr. Parry-Jones stated as follows:- “In summary, the evidence found consisted of actual indecent images of children, the impersonation of a boy in a chat room, opening files suggesting sexual activity with young boys, using news groups with similar connotations and using the Recycle Bin to store and send the files, the latter being indicative of a possible attempt to hide the user’s intention.”

[14]On the 3 rd October, 2005 the Appellant was arrested on suspicion of making and possessing indecent images of children. He was interviewed by the officer in the case, PC Smallbone, with Mr. Parry-Jones also being present as was the Appellant’s solicitor. The case summary of the interview prepared by Thames Valley Police states that during the interview the Appellant said that he had become addicted to adult pornography while undertaking research into sexuality within the church carried out for the purposes of his employment. He had admitted to downloading adult pornography but stated that he had never intentionally downloaded indecent images of children. He had also stated that he used chat rooms to speak to unidentified people and that these chats would normally be centred around sexuality. He realised he had become addicted to pornography around mid 2004.

[15]During the course of the interview, the transcript indicates that the Appellant was asked questions about movies found on his computers with titles suggesting indecency involving children. The Appellant is asked why he let people send these movies to him to which he replies “because I was addicted. I got myself into a mess.” Later in the same interview it was stated by one of the officers that the Appellant knew at the time that people were sending him indecent images of children to which the Appellant is recorded as having responded “I didn’t know until I managed to open it.”

[16]Included within questions the Appellant was asked at the police interview were questions relating to what was described as “a pro OPS drive” which was said to have been created on the 29 th April, 1999 and last written on the 25 th October, 1999, containing pictures of young children. The Appellant stated that he had no idea where it had come from.

[17]On the 8 th September, 2006 the Appellant was convicted at the Crown Court, Oxford, on his plea of guilty, of 10 counts of downloading indecent images of children and two counts of possessing indecent images of children. Included within the Tribunal’s papers was a document prepared by the Appellant’s solicitors for the proceedings in the Crown Court setting out the basis of the Appellant’s plea of guilty which reads as follows:- “For the reasons set out in his police interview (RT) developed an addiction to homosexual pornography. He sets his computer so that he could receive such material from others. He accepts that the indecent images were also sent to him and that he made no attempt to change the settings on his computer so that they continued to appear on his computer. He accepts that he is guilty of making the images found on his hard drives IDL/1 and 16. He further accepts possession of the images found on the disk IDL/8.”

[18]A pre-sentence report was prepared by Belinda Wilson of the National Probation Service, dated the 13 th October 2005. The report records The Appellant stating that in his role as Communications Director for the Oxford Diocese he had been asked to head up a project to debate the whole issue of the viability of appointing homosexual men to high positions in the church. The Appellant had made a decision to explore the internet more fully in respect of all aspects of homosexuality as a way of familiarising himself with the whole issue. The Appellant is then said to have told Ms. Wilson that this began to have meaning for him in respect of his own childhood and early teenage experiences of tentative homosexual experiences at school. The Appellant had subsequently become involved in the publicity surrounding the church’s decision to appoint a homosexual priest as Bishop of Reading which had placed a lot of pressure on him. At the time the Appellant stated that he was living on his own in tied Church accommodation in Abingdon, with his wife and teenage children living in the family home in Somerset. The decision to withdraw the Bishop of Reading’s appointment was stated to have left the Appellant feeling that there had been a complete betrayal. The Appellant had then begun to feel depressed and detached from reality.

[19]Ms. Wilson states that the Appellant stated that he had become increasingly obsessed with online sexual activity and that he was indulging in erotic conversations with gay men and receiving adult pornography, which initially were mainly gay photographs and the occasional video. By the time of his arrest in 2005 the images being sent to him at his request also contained images of the abuse of young boys and were clearly illegal. Ms. Wilson then went on to state in her report as follows:- “Although maintaining these images were sent to him without permission, he describes finding them highly arousing; a reaction which he found both terrifying and exciting. He states that he would masturbate and ejaculate whilst viewing on line. He began relating it back to advances made to him at school and ruminating what might have happened at the time had he not rejected those approaches, through fear and a profound belief that such behaviour was evil. He tells me that he was fully aware that it was abusive to both children and adults and at times he would question the world of deviant homosexuality and why he was trying to defend it. “It felt ghastly, like an illness”. At interview (RT) was forthcoming and talkative and although there were elements of minimisation, he mainly accepted full responsibility for his behaviour. His victim empathy in relation to the children was relatively good, but it was clear that although he knew child pornography on line was illegal, he genuinely appeared to make little connection emotionally with the fact that his viewing of such abusive images was fuelling a very lucrative industry which had the abuse of children at its core or if he did, his prurient curiosity overrode any compunction he may have had.”

[20]Ms. Wilson went on to state that the Appellant strongly denied any sexual interest in children and that during their interview there had been no apparent cognitive distortions in relation to children. Ms. Wilson then went on to state as follows:- “In my opinion he currently presents no immediate significant risk of committing a hands on sexual offence, however given the nature of the illegal material viewed and his fixated unhealthy interest in that material, there has to be some concern that unless he receives treatment his on line illegal viewing could resume/escalate as a reaction to external stress factors.”

[21]On the 30 th October, 2006 the Appellant was sentenced in the Oxford Crown Court and given a community sentence for three years, with a condition he participate in the Thames Valley Sex Offenders Project and attended appointments with the probation services for a period of three years. The sentence was handed down by His Honour Judge Hall after having heard the prosecution set out the facts of the case and a speech in mitigation from the Appellant’s counsel. The Court also had before it a number of character references for the Appellant. Included within the information presented to the Court was a report from Beaumont Stevenson, a group analysis psychotherapist, that report being dated the 26 th September, 2005.

[22]In his report Mr. Beaumont Stevenson indicated that he had seen the Appellant on 13 occasions since the 5 th July, 2005. During the initial session with the Appellant, Mr Stevenson had become concerned that the Appellant was at very high risk of committing suicide. However that risk had lessened as the Appellant had become more involved in the therapy. In terms of what was considered to be the cause of the Appellant’s behaviour in looking at internet pornography, it was stated in Mr. Stevenson’s report that the Appellant had begun looking at such pornography when he came under institutional pressure as Communications Officer for the Diocese of Oxford. This had included being in the front line in dealing with the publicity regarding the nomination of a gay priest as Bishop elect of Reading. In addition the Appellant had been living away from his family. Despite the pressure he had been under the Appellant had not at that point sought any counselling for himself. He had started viewing internet pornography as a release. Mr. Stevenson commented that during the therapy sessions the Appellant had been co-operative and very forthcoming about his feelings and motivations. Mr. Stevenson stated:- “Since being in therapy, he said he had not had the slightest interest in looking at porn. Having also received the emotional support provided by therapy and being able to use it, I think it would be highly unlikely that the behaviour would be repeated. He has learnt how to use therapy to unload feelings of stress before they build up to dangerous levels, and has also become aware of indicators of stress within himself.”

[23]Included within the sentencing remarks made by His Honour Judge Hull was the following:- “The Court of Appeal in giving their guidelines in this area have recognised that, because under the first heading that I have outlined, the nearer the person who views the images is to the source material, the more serious it is. It is quite clear in your case that you are a million miles away from the source of the material, and that you allowed, in quite an active way, material to be downloaded on to your computer, some of which was of a very serious nature. I simply do not know, turning to the second category, how far your sensibilities have been blunted, but I have not an inkling, not a suspicion, that your behaviour has been warped in a way which might have lead to any physical abuse of any child.”

[24]The Appellant had been assessed prior to sentencing by the Thames Valley Project (“TVP”) for sex offenders as being suitable for treatment. The reason for such an assessment was set out in a report dated the 20 th September, 2006. The project was described as offering a comprehensive cognitive behavioural treatment programme for perpetrators of sexual abuse. Work to be undertaken in the programme was described as follows:- “Treatment will require the perpetrator to undertake a specially designed pre-group work and psychometric testing. This is followed by full time attendance at a two week intensive Foundation treatment group designed to assist perpetrators to recognise the deliberate nature of their abuse. A semi-intensive group work phase follows covering victim empathy and life skills, which lasts for twelve week. Subsequent Relapse Prevention group for six months develops the perpetrators ability to manage a range of thoughts, feelings and behaviours in a comprehensive Relapse Prevention Plan. Total group work programme time is a 160 hours. Psychometric testing is used pre and post treatment to measure the perpetrators deviancy profile and to evaluate clinical change.” Finding the Appellant suitable to undertake a sex offender group work programme, the facilitators of the programme in their assessment report stressed the importance of the Appellant developing an understanding of the factors that had contributed to his sexually abusive behaviour and for him to acquire coping strategies to deal with them effectively, in order to reduce his risk of future reoffending.

[25]As part of the Thames Valley Programme the Appellant was asked at the outset to complete a number of psychometric questionnaires. In one of the questionnaires the Appellant was asked, “what, if any, was the specific category of child pornography which you preferred?” to which the Appellant is recorded as having responded:- “My offence was that I did not stop my computer from receiving illegal pornography. I did not seek it out and I destroyed what I was sent. However, because I had viewed the images before destroying them I pleaded guilty. I had become addicted to erotic gay conversations, rather than images so have had difficulty with this questionnaire.”

[26]As part of the TVP a contact log was kept by the project managers of the Appellant’s participation in the project; the contact log covering the period from the 30 th October, 2006 through to the 2 nd April, 2007. The log contained comments of views that the Appellant had expressed in sessions for example on the 18 th December, 2006 there is an entry which states as follows:- “(RT) appeared to be actively listening to the group members feeding back. He made a number of relevant observations, however, I am concerned that he will take every opportunity to diminish his and the other group members offending and undermine the impact of internet sex offending on his/their victims. He was very quick to jump on the band wagon when one group member stated that they did not believe that their behaviour was damaging to their victims. The issue of victim empathy was discussed and the huge importance and significance of this area was raised. Group members were informed that this is a very important piece of work that we will come back to, during the victim empathy module. I am left feeling uncertain about what (RT) is really taking away from these sessions. He is desperately looking for an excuse for his behaviour and is constantly trying to deflect and diminish his level of responsibility. We need to monitor him.”

[27]However in a later entry dated the 15 th February, 2007 it was recorded in the contact log as follows:- “Good work from (RT). Good perspective taking skills and for the first time accepting full responsibility – stated “I am the abuser”.”

[28]A ‘progress in treatment summary’ was prepared following the Appellant’s completion of the TVP, which he had attended from November, 2006 to March, 2007. The summary completed by Probation Officer, Mr. B. Morris, was stated to be based on the Appellant’s work in completing the treatment, taken together with his pre-sentence report and case records. It was stated that a static risk assessment using Risk Matrix 2000 was completed on the Appellant and based on that instrument the Appellant resembled the group of people labelled as low risk of sexual re-conviction.

[29]On the 15 th September, 2008 the Appellant was given notice of a penalty imposed under the Clergy Discipline Measures 2003 by the Bishop of Oxford, following a complaint lodged by the Archdeacon of Berkshire, and the Appellant’s conviction in criminal proceedings. At paragraph 3 of the notice it was stated as follows:- “In the circumstances I have concluded that it would be inappropriate to impose any greater penalty than inhibition under Section 24 (1) (b) of the Clergy Discipline Measure 2003, for a period co-extensive with the period of probation imposed by Judge Hall, that is to say, until the 30 th October, 2009.”

[30]Following the Bishop of Oxford’s penalty of inhibition a referral was then made by the Diocese of Oxford to the Secretary of State. On the 15 th January, 2009 the Respondent wrote to the Diocese of Oxford indicating that a decision had been taken to place the Appellant provisionally on the Protection of Children Act List, (“the PoCA list”), following which the Appellant was invited to submit any written observations in relation to his provisional listing. On the 15 th June, 2009 solicitors acting for the Appellant wrote to the Respondent with observations/representations from the Appellant to his provisional listing, together with a number of documents, including medical reports and personal testimonies.

[31]The observations/representations gave the background to the offences for which the Appellant had been convicted, including the events surrounding the appointment of an openly homosexual Bishop and the Appellant’s descent into depression when the Bishop was not consecrated. The observations also commented on the Appellant’s programme of discussions on homosexuality through the church and the research that the Appellant was said to be carrying out. A number of other stressful events were mentioned in which the Appellant had been involved as a result of his position as Director of Communications, including the Newbury Rail Crash and the death of Dr. Kelly. It was then stated as follows:- “Further his family life was under strain with anxiety over the health of his children and the weekend commute from Abingdon. By late 2004 he was unable to function properly. His research foundered. His use of the internet resulted in the transmission to him of illegal images which he never solicited, and which he attempted to destroy.”

[32]Included within the documents submitted by the Appellant’s solicitors was a report from Ms. Jenny Roxburgh dated the 21 st May, 2009. In that report Ms. Roxburgh set out her qualifications and experience which included having joined the Gracewell Institute, a residential treatment assessment facility for perpetrators of sexual abuse in 1993 as Senior Therapist and then as Therapy Team Manager. Ms. Roxburgh stated that she specialised in individual and group therapy with sex offenders and that she had undertaken risk assessments in criminal and child care proceedings. After the closure of the Gracewell Institute she had worked as a therapist with its successor, the Lucy Faithful Foundation. As an independent consultant she undertook risk assessments and individualised intervention programmes as well as giving training and consultancy to professionals working in child protection, criminal justice and the health services. Ms. Roxburgh had been requested by the Appellant’s solicitor to undertake a risk assessment of the Appellant to ascertain what risk, if any, he was to children and young people.

[33]In her report Ms. Roxburgh indicated that she had interviewed the Appellant on the 5 th and 7 th May 2009, as well as reading various background information with which she had been supplied. On the first day of the interview, Ms. Roxburgh indicated in her report that the Appellant had been asked about his understanding concerning the behaviours and attitudes which led to his offending. At paragraphs 19 and 20 of her report Ms. Roxburgh stated as follows:- “19. (RT) sought to explain his viewing of child abuse imagery and perceptive and abusive “chat room” conversations as a result of:- - repressed homosexually; - suppressed adolescent experimentation; arrested sexual development leading to the need for fantasy re-enactment about his own adolescent homosexual orientation; - work-based research into homosexuality; - stress of various kinds. He reports being depressed and under work-related stress at the time. 20. (RT) insisted for most of the assessment that children who featured in the imagery and in the chat room conversations were not objects of sexual attraction so much as representations of himself as a child and adolescent. He insisted he had been engaged in sexual exploration about himself. This appeared to be a well developed and established distorted perspective of his offending, which is unhelpful.”

[34]Ms. Roxburgh also noted that the Appellant maintained that the whole process of his increased immersion in illegal internet activity was exacerbated and accelerated due to pressure surrounding the demotion of the Bishop of Reading, because of his homosexual orientation. Ms. Roxburgh described the strands of this argument as appearing to be tenuous, complicated and cumbersome. At paragraph 26 of her report Ms. Roxburgh stated as follows:- “26. Homosexuality is not linked to child abuse any more than heterosexuality is. Being attracted to pubescent or pre-pubescent boys is not a variation on the theme of homosexuality. The sexual attractions and sexual stimuli are different; the emotional motivations are different. The power differentials are different. Attraction to child abuse imagery implies an abandoning of any sense of empathy for children. Such misperceptions about his behaviour and motivations must be considered as risk factors as they essentially rationalise the behaviour.”

[35]On the second day of his interview Ms. Roxburgh stated that the Appellant’s distorted and self deceiving explanations were challenged and that the Appellant had revised his perceptions, acknowledging the speciousness of his arguments and how it was linked to a wish to sanitise his illegal behaviour. The Appellant was asked about the Thames Valley Programme on which he had participated and included within the responses recorded by Ms. Roxburgh, was the following which was set out at paragraph 64 of her report:- “Asked whether he had used the excuse of exploring his own sexuality and the church’s prejudice against homosexuality as excuses for his offending when speaking with his wife, he conceded he had done so. He added that it was only in this assessment that such distorted attitudes had been challenged. This is not in fact the case, as these matters appeared to have been challenged during the Programme.”

[36]At paragraphs 105 to 126 of her report Ms. Roxburgh set out her evaluation of the risk that she considered the Appellant posed. Paragraphs 124 to 126 of her report reading as follows:- “124. My main concern about (RT) is his continued use of distorted explanations for his offending, as outlined in paragraphs 111 and 112 above. Risk of re-offending is more effectively reduced if the person does not have in place a belief system that seeks to sanitise; or partly justify the behaviour.125. (RT) still has Probation Supervision which he says he finds helpful. I understand that this will continue until August 2009. It would in my opinion be useful for his Probation Officer to see this report and for (RT) to work with his Probation Officer to ensure that he rectifies this self deception and avoids using any further – either publicly or privately – these excuses. I am of the opinion that (RT) has sufficiently strong personal resources and self discipline to try to make these changes. He recognises himself the need to alter such attitudes.

126. Taking into consideration all the information from this assessment and from background documents, I am of the opinion that (RT’s) risk of Internet re-offending is low and his direct risk to children is low.”

[37]On the 6 th October, 2009 the Respondent wrote to the Appellant after having considered the available information and stated that a decision had been taken to confirm the Appellant’s inclusion on the PoCA list. The letter also stated that the Secretary of State for Health had considered the information and had decided to confirm the Appellant’s inclusion on the Protection of Vulnerable Adults (“PoVA”) list.

[38]On the 22 nd December, 2009 the Appellant lodged with the Tribunal an appeal form against the Respondent’s decision to place him on both the PoCA and PoVA lists.

[39]The Appellant submitted a personal statement dated the 12 th October, 2010 in support of his appeal. Paragraph 1.1 of that statement the Appellant stated as follows:- “I want to start by offering a profound apology and by expressing both my remorse and my sorrow. That remorse and sorrow is not primarily for myself, but for those young people whose lives have been scarred by sexual and physical abuse. That I allowed abusive images to be sent to me and did not take sufficient steps to stop them amounted to a continuation of that abuse and is something that I deeply regret.”

[40]Also included within the Appellant’s personal statement was a section entitled “Background”. At paragraph 3.1 it was stated as follows:- “I will want to take the panel through the background to the offences. I believe that this will show that I developed an interest in this area with good intentions and for good and proper reasons. I believe that it will show that a combination of exceptional and extreme pressures, both personal and professional, caused an aberration of judgment and perspective which is most unlikely to be repeated.” The Appellant then set out details of his argument in support of this proposition.

[41]In relation to the offences themselves the Appellant made a number of references to support his argument that he had not attempted to store or keep images which he had been sent. He described the outline of his argument as follows:- “Outline of Argument: At no point did I actively seek or deliberately download illegal images of children. Having developed an addiction to online erotic conversations, which included adult pornography, I set my computer to receive any adult pornography files that were sent to me. However, on three occasions I was sent either individual files or “zipped” bundles of files of illegal and abusive images of children, which I opened. I did not attempt to store or keep them, and took active steps to destroy them.”

[42]The Appellant gave oral evidence at the Tribunal hearing. He apologised for what he had done and stated that it was a continued abuse of young people. He then gave details of his involvement with the church, including his appointment as Director of Communications in 1989 and his involvement with the issue of homosexuality in the church. He also set out the stress that he and his family had undergone as a result of the ill health of their children and the fact that he had remained living in Abingdon, whilst his family had moved to Somerset.

[43]The Appellant provided details as to the effect that his involvement in 2003 with the appointment of a homosexual Bishop had upon him including the withdrawal of the commission from that Bishop. He stated that he had become depressed and his behaviour had become more and more bizarre. He had become addicted to conversations on the internet and then adult gay pornography. He now had through the help of psychotherapy and his involvement in the Thames Valley Programme, a good insight into the reasons for this. A proper interest in homosexuality had become corrupted during a time of professional and personal stress.

[44]The Appellant also stated that he had not been storing images for future use .Although he accepted that he had opened images, he had not sent any abusive images to anyone. He had however set his computer to let all images come into his computer. The Appellant stated that as soon as he had received his first abusive images he should have stopped them, but he had not. He had done his best to destroy a hard drive. He also acknowledged that he had forwarding images to his Recycle bin, but said the majority of the images had been destroyed.

[45]The Appellant referred to the pre-sentence report that had been obtained, the Thames Valley Project that he had completed and the sentencing comments made by His Honour Judge Hall. The Appellant stated that he had completed his sentence over a year ago. He also commented on the significance of the inhibition that had been placed upon him in his capacity as an ordained priest and that the inhibition was now lifted.

[46]As far as current risk was concerned, the Appellant referred to the assessment of Ms. Roxburgh, which he considered had been very thorough, and in particular to her conclusions that he presented a low risk. He had been back with his family for the last four years and his children’s health had improved. He had been working delivering yachts in the Mediterranean and now felt ready to resume his ministry.

[47]On being cross- examined by Ms. Davies, the Appellant reiterated that his research into homosexuality had been corrupted as had his judgment in a number of areas. He was not attempting to minimise the seriousness of his offences.

[48]The Appellant was asked specifically about the Recycle bin on his computer and he stated that it was a place where downloaded pictures were sent at a time when he was downloading both adult and child pornography. The Recycle bin was where he went to when he wanted to open the pictures. He struggled to understand why he had set the computer to behave in that way. He accepted that in relation to the images of children that he had been sent, he had viewed them. He also acknowledged that it was possible to tell from the titles of movies that they involved indecent images of children. He accepted responsibility for the disks that were found in his house containing images of child abuse, but stated that he had no recollection of placing them there.

[49]In relation to Ms. Roxburgh’s report, the Appellant stated that he did not recall saying to her that he had spent 8 hours a week accessing child pornography, although he accepted that he had said that over time the age of the children in the images had decreased and his preferred age range was 13 to 18. He knew that the activity in which he was engaged, particularly in terms of the erotic conversations that he was having about children and adults, might lead to images being sent to him and that he was causing this to happen. He considered however that he was less culpable because he had not specifically asked to be sent images of children.

[50]The Appellant accepted that he had difficulty in separating the background to his personal situation at the time that he was downloading indecent images of children. Although during the course of the Thames Valley Programme he had acknowledged that there was no link between his work for the church and his viewing child abuse images, he accepted that two years later when he had spoken to Ms. Roxburgh he had fallen back to using similar arguments regarding the background to his offences. The Appellant stated that he took full responsibility for his actions and that he should not have allowed child pornography to come to his computer. He had not sought the material directly or downloaded it, but he accepted that his actions had led to the material coming.

[51]In answer to questions from the Tribunal panel, the Appellant stated that at one point someone had sent child pornography stories to him. He had opened one story and saved it. He did not know the content of the other story. In regard to events in 1998 and 1999, the Appellant stated that he had been browsing news groups looking at areas of social interest and homosexual experience. He was talking to people about sexual experiences. If he had been accessing disks that had been written at that time, in the period between 1999 and 2005, when the police searched his premises they would have been able to detect such usage.

[52]The Appellant stated that after his conviction he had felt angry, but that anger had disappeared and that he now wanted to see if there was a role for him within the Church of England. He accepted that there was an issue of public confidence, but given the work that had been done since his conviction and the fact that he now had a more balanced life with his family, then the public could have confidence in him being removed from the list.

[53]The Appellant as part of the documents submitted in support of his appeal, included letters from the Dean of Saint Albans dated the 6 th April, 2006, the Bishop of Grimsby, dated the 11 th April, 2006 and a character reference from the Diocese Secretary of the Diocese of Oxford dated the 25 th October, 2005 as well as a letter from Beaumont Stevenson dated the 3 rd April, 2007.

[54]The Appellant in his closing comments to the Tribunal again said that he felt real remorse for his actions. Although the number of images that he had accessed was small he did not deny the seriousness of them. It was five years since the events had taken place and he had now completed the supervision order. The stress factors that were in place at the time he committed the offences had been resolved and he was no longer clinically depressed. He had made changes to his lifestyle and was happily involved with his wife. There was no way in which he would engage in accessing abusive internet images. The Bishop of Oxford had conducted a detailed enquiry over the course of 18 months before reaching his decision. There was a need to look forward rather than looking back and the Tribunal should consider the risk assessments that had been undertaken. The Law

[55]Section 4 (1) of the Protection of Children Act 1999 reads as follows:

“ An individual who is included (otherwise than provisionally) in the list kept by the Secretary of State under Section 1 above may appeal to the Tribunal against- (a) the decision to include him in the list; or (b) with the leave of the Tribunal, any decision of the Secretary of State not to remove him from the list under section 1(3) above.” and in terms of the Tribunal’s powers on hearing an appeal, Section 4 (3) states: “If on an appeal or determination under this section the Tribunal is not satisfied either of the following, namely- (a) that the individual was guilty of misconduct (whether or not in the course of his duties) which harmed a child or placed a child at risk of harm; and (b) that the individual is unsuitable to work with children , the Tribunal shall either allow the appeal or determine the issue in the individual’s favour and (in either case) direct his removal from the list; otherwise it shall dismiss the appeal or direct the individual’s inclusion in the list.”

TRIBUNAL’S CONCLUSIONS

[56]The issues that we need to consider in respect of this appeal are effectively in three stages. Firstly we need to determine whether the Appellant was guilty of misconduct in the terms set out in Section 4(3) above. If we are satisfied in respect of the Appellant’s misconduct, we then need to go on and consider whether the Appellant is unsuitable to work with children and then whether he is unsuitable to work with vulnerable adults.

[57]On the 8 th September, 2006 the Appellant was convicted at Oxford Crown Court, on his plea of guilty, of 10 counts of downloading indecent images of children and two counts of possessing indecent images of children. On the 30 th October, 2006 he was given a community sentence for three years with a condition that he participate in the Thames Valley Sex Offenders’ Project and attend appointments with the probation services for three years.

[58]Section 4(4) of the Protection of Children Act 1999 states as follows:

“Where an individual has been convicted of an offence involving misconduct (whether or not in the course of his employment) which harmed a child or placed a child at risk of harm, no finding of fact on which the conviction must be taken to have been based shall be challenged on an appeal or determination under this section.”

[59]The Respondent relies on the Appellant’s conviction as evidence of his misconduct. It is right that we should take into account the sentencing remarks made by His Honour Judge Hall, a transcript of which was included within the papers before us. In particular the Judge comments that the Appellant was a long way from the source of the material that he had accessed, that the Appellant had not been involved in any physical abuse of a child and that in the context of cases that came before the criminal courts, the number of images that the Appellant had viewed was very, very small. In addition the Judge commented that the Appellant had thrown away his hard disc. Having taken these comments into account, and having considered the facts on which the Appellant was convicted, we conclude that the downloading and possessing of child pornography by the Appellant does constitute serious misconduct. In the case of CN v Secretary of State [2004] 398 PC; [2004] 399 PVA, the Tribunal stated as follows:

“The children who appear on these sites are real children, and we are absolutely clear that their appearance on the sites constitutes an abuse of them by those who place them on the internet. Those who access such sites are furthering the abuse. In short, the children are at risk of harm as defined by the Children Act 1989 section 31….”

We endorse those views in the context of this case and find that the Appellant is guilty of serious misconduct which harmed a child or placed a child at risk of harm.

[60]We then move to the issue of suitability, firstly in relation to working with children. We were referred by both parties to the comments of the Tribunal in the case of Mairs [2004] 269 PC where at paragraph 11 of the decision the Tribunal stated as follows:

“11. 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 potential 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 Act; (b) the gravity of that misconduct; (c) the time that has elapsed since that misconduct; (d) the timing and 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; and (f) extenuating circumstances surrounding the misconduct. This should not be regarded as an exclusive list. The Tribunal may also have regard to other admitted, undisputed or proved past conduct of the applicant, whether good or bad.”

[61]We acknowledge that these are relevant matters to be considered in relation to this appeal. The number of indecent images of children downloaded and/or possessed by the Appellant on which he was convicted are to be found in the Indictment with reference to the particular Counts on which he was convicted, as confirmed by the certificate of conviction. The total number was 106 of which, by reference to the classification arising from the case of R and Oliver and others, 42 were at level 1, 58 at level 2, 3 at level 4 and 3 at level 5. These were all images located on the hard drives of a number of computers, as well as on a floppy disc, which were found at the premises in which the Appellant was living.

[62]We were provided with a document prepared by the solicitors who represented the Appellant in the Crown Court proceedings in which they set out the basis on which the Appellant pleaded guilty. In particular, he accepted that indecent images were sent to him and that he had set his computer to receive such images. He accepted that he was guilty of making the images found on his hard drives and on a floppy disc.

[63]We had the benefit of a written witness statement from Mr Parry-Jones, as well as hearing him give oral evidence. We were impressed with his knowledge and experience of securing evidence from computers and associated storage devices. At the time of the seizure of computer equipment from the Appellant’s home at Abingdon, Mr Parry- Jones was employed within the High Tech Crime Unit of Thames Valley Police. We accept his evidence regarding the way in which the Appellant acquired the indecent images of children and we are satisfied that the Appellant sought out indecent images of children, in particular that he set his computer to receive indecent images including those of children and that he then stored images using the Recycle Bin. He also opened movie files with titles that suggested they would contain sexual activity with young boys and used newsgroups with similar connotations.

[64]Ms Roxburgh in her report at paragraph 5, sets out what she was told by the Appellant regarding his use of the internet, as follows:

“(RT)” has been a long- term user of the Internet, since 1984-85. He said he started accessing Internet pornography in 2003. This began with adult homosexual pornography and using chat rooms for erotic homosexual conversations. Over time, he gravitated to viewing child abuse imagery of boys and participating in stories and erotic conversations about children engaged in sexual activity.”

[65]The Appellant’s home was searched on the 21 st June, 2005 and there is no evidence that he has viewed indecent images of children on the internet since then. Ms Roxburgh considered this matter in her report. Ms Roxburgh has lengthy experience of working with sex offenders and has worked for both the Gracewell Institute and the Lucy Faithfull Foundation. We accept that she has considerable expertise in this field and we attach significant weight to her report in this case and her findings. At paragraph 119 of her report she states as follows:

“119. Were (RT) continuing to use Indecent imagery for sexual stimulation, then his involvement with children or young people might be considered a concern. However in my opinion from this assessment is that (RT) is unlikely to have any current attachment to such imagery and is no longer engaged in illegal Internet usage.”

[66]As part of his sentence the Appellant was required to undertake treatment at the Thames Valley Project (“TVP”) for sex offenders. The Appellant duly attended the programme, which lasted twice a week from November 2006 until March 2007. Although we were not shown any final report from the programme, we did see copies of the questionnaires completed by the Appellant and the Case Record Contact Log kept by those running the programme. It is apparent from those documents that the Appellant had considerable difficulty in taking responsibility for his actions and in demonstrating that he fully understand the impact of internet sex offending on his victims. However we acknowledge that towards the end of the Programme the Appellant was starting to take some responsibility for his actions and acknowledging his role as an abuser.

[67]The Programme concluded in March 2007, there was then a period of just over 2 years before the Appellant saw Ms Roxburgh in May 2009. When the Appellant gave evidence at the Tribunal hearing, he explained the changes that had taken place in his life since his conviction, in particular that he was enjoying his work and was happily engaged with his wife. The stress factors that had existed when he was accessing indecent images of children no longer existed.

[68]We were concerned therefore that on the first day of his interview with Ms Roxburgh, the Appellant again sought to explain the behaviour for which he was convicted with reference to the stress that he was experiencing at the time. At paragraph 24 of her report Ms Roxburgh stated as follows:

“24. (RT) maintained that the whole process of his increasing immersion in illegal Internet activity was exacerbated and accelerated when he became under immense pressure after the newly appointed Bishop of Reading had to be demoted because of his homosexual orientation.”

Ms Roxburgh’s views on the rationale put forward by the Appellant are set out at paragraph 25 of her report:

“25. The strands of this argument appear tenuous, complicated and cumbersome. It may have provided RT with both a private and public explanation for the gravitation into sexual deviancy. It is a distorted rationalisation that at the time allowed him to continue to give himself permission to access child abuse material; placing some responsibility onto the Church for its stance against homosexuality. RT’ appears to have identified himself as a fellow victim of the Church’s prejudice against homosexuality. This sense of victimisation and anger appear to have been used to overcome inhibitions against illegal Internet activity. This was a self deception facilitated by telling himself his illegal Internet activity was about suppressed adolescent homosexuality, rather than about deviant sexual arousal.”

[69]We acknowledge that on the second day of his interview with Ms Roxburgh, the Appellant, when challenged by Ms Roxburgh, accepted that the views he had expressed on the previous day were distorted and erroneous perspectives. However it is of concern that notwithstanding that the Appellant had completed the programme with Thames Valley Project, he was expressing these views at all.

[70]Indeed it was not only in his interview with Ms Roxburgh that the Appellant sought to introduce his work with the church and the stress that caused, to explain his illegal activities, but also in these proceedings. In his witness statement, whilst expressing remorse for his actions, he argued that his work with the church in regard to homosexuality had become corrupted and this, coupled with various pressures he was under at the time led to him becoming addicted to erotic online conversations that included adult pornography. He also argued that he had not actively or deliberately sought illegal images of children.

[71]When the Appellant gave oral evidence, whilst again apologizing for his actions, he again provided a detailed chronology of his work for the church, including on the issue of homosexuality and the pressures he was placed under. Although he stated that this was being provided as background information, in our view it was presented in such a way to try and explain the reasons behind his viewing indecent images of children, an explanation rejected by Ms Roxburgh. We are therefore not convinced on the balance of probabilities that the Appellant has fully come to terms with his role in the abuse of the children in the images he viewed. In particular he has not completely acknowledged actively seeking out the material for his sexual gratification. In many ways his evidence portrayed himself as the victim and gave scant acknowledgement of the abuse suffered by the children involved. Although the Appellant expressed remorse, in view of the excuses that he continued to make for his behaviour, we were not convinced that such remorse was completely genuine.

[72]In looking at the issue of the Appellant’s suitability to work with children, we take the view that there are two questions that we need to consider, firstly what risk does the Appellant pose and secondly what impact would there be on public confidence if the Appellant were to be removed from the PoCA list.

[73]Miss Davies in her submissions indicated that she was not seeking to challenge Ms Roxburgh’s findings. At paragraph 126 of her report Ms Roxburgh stated as follows:

“126. Taking into consideration all the information from this assessment and from background documents, I am of the opinion that Mr Thomas risk of Internet re-offending is low and his direct risk to children is low.”

However Miss Davies also referred to paragraph 124 of the same report which reads as follows:

“124. My main concern about RT is his continued use of distorted explanations for his offending, as outlined in paragraphs 111 and 112 above. Risk of re-offending is more effectively reduced if the person does not have in place a belief system that seeks to sanitise; or to partly justify the behaviour.”

Whilst Ms Roxburgh considered that by the end of her interview with the Appellant he was reaching some genuine understanding regarding his behaviour, we are concerned that during the course of these proceedings, the belief system to which Ms Roxburgh referred has re-emerged and to that extent increases the risk of the Appellant re-offending. In taking account of the sentencing judge’s comments and Ms Roxburgh’s findings, we accept that the Appellant’s direct risk to children is low. However as far as his risk of Internet re-offending is concerned that presents as a slightly higher risk, for the reasons set out at paragraph 124 of Ms Roxburgh’s report.

[74]As far as public confidence is concerned, we were referred by Miss Davies to two particular cases, MB V Secretary of State for Health [2005] 512; PC; [2005] 513 PVA and the High Court decision in Secretary of State for Children, Schools and Families v BP [2009] EWHAC 866 Admin. In the BP case at paragraph 24 Mr

Justice Munby stated as follows:

“No-one has really questioned the Tribunal’s jurisprudence as set out in these authorities, though at one stage during his oral submissions BP did ask rhetorically why the Tribunal should have to consider public confidence, adding words to the effect, why can’t the Department take a lead and say that someone is not in fact a risk although the public may think they are? The answer to that is two fold. In the first place, the issue in a case such as this is, as we have seen, suitability rather than risk. Secondly, however the Tribunal in my judgment is plainly right and for the reasons that it has given, 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 that it is entitled to have regard to matters which are likely to be of concern to ordinary sensible people. For my part I would not wish to question the Tribunal’s jurisprudence. In my judgment it is quite plainly correct.”

[75]We accept that some members of the public may take the view that someone who has been convicted of the type of offences that the Appellant has, should remain on the PoCA list. However where a person has served their sentence and has undergone a successful period of treatment, there are circumstances where public confidence could be maintained if such a person was to be removed from the PoCA list. In this case the Appellant did complete a period of treatment with the Thames Valley Project which at the time appeared to have been successful. However for the reasons already stated since completing that treatment we are of the view that the Appellant has reverted to adopting what Ms Roxburgh describes as, “..elaborate and distorted explanations about his offending..”. We do not therefore consider that the Appellant’s rehabilitation can be said to be complete.

[76]In terms of public confidence we also have concerns about some of the comments that the Appellant made to Ms Roxburgh regarding his interest in children. For example at paragraph 48 of her report Ms Roxburgh states as follows:

“48 “Clearly I have an attraction to young men- all my fantasies have been about 15-17 year olds. It was not just about exploring my own sexuality: I am clearly attracted to young men”

. It was pointed out that 15 and 16 year olds are still children, not men, and he had previously stated that his age range included younger boys of 12-13 years old.”

[77]We fail to see how the public can have confidence in the Appellant being removed from the PoCA list, where the Appellant expresses sentiments as set out above in circumstances where in our view his rehabilitation following his conviction is incomplete.

[78]The issue of suitability is more than simply the question of risk, although that is clearly a factor. We have taken into account the sentencing remarks of His Honour Judge Hall, the decision of the Bishop of Oxford in regard to the Clergy Discipline Measure 2003 and the various letters of support produced by the Appellant. Whilst we do not find the Appellant to be at high risk of Internet re-offending, some risk in our view remains. In addition, for the reasons stated, we do not consider that public confidence in the PoCA list would be maintained, if the Appellant were to be removed from that list. Accordingly we find that the Appellant is unsuitable to work with children.

[79]As far as working with vulnerable adults is concerned, we were referred by Miss Davies to a number of authorities, including MB V Secretary of State for Health [2005] 512; PC; [2005] 513 PVA where the Tribunal stated at paragraphs 28-29 as follows: "28 It is of course essential that those who are considered unsuitable to work with children are not given positions of trust in relation to vulnerable adults. This is not to say that we consider a vulnerable adult would be at risk of harm by MB. But the law does not require such evidence. It is sufficient to satisfy the test in s 86(3)(b) read with s 92(4) of the Care Standards Act 2000 that she is unsuitable to work with vulnerable adults by virtue of the misconduct which placed a child at risk of harm. We believe that public confidence in the provision of services to vulnerable adults would be undermined if it became known that MB was employed to work with vulnerable adults, given the fact that she was prohibited from working with children. 29. We do not consider that it will always inevitably follow that an appeal under s 86 will be bound to fail in the event of an appeal under s 4 being dismissed. As always in this area, context will be all important. But as in the case of CN [2004] 399.PVA, [2004] EWCST 398(PC) (a speech and language therapist), we have formed the view that the continuation of her name on the PoCA list makes her unsuitable to work with vulnerable adults. Having considered all the circumstances of this case, in particular the misconduct of which we have the Appellant guilty, we conclude that he is not suitable to work with vulnerable adults.

[80]. Accordingly, it is our unanimous decision that both appeals be dismissed. Tribunal Judge Stewart Hunter Ms . Margaret Diamond Mr Ray Winn 6 December 2010