The respondent was a warrant officer in the Royal Navy. During the periods, 1985 to 1987 and 1998 to 2000, he was also an instructor at the sea cadets. In October 2000, he was arrested following allegations of sexual assault by one of the male sea cadets. Following that complaint, many ratings were interviewed. The nature of the complaints was consistent, all alleging that the respondent had touched each individual’s penis. The respondent denied the alleged misconduct. He was the subject of an investigation conducted by the Royal Navy, in 2000, into allegations of sexual misconduct by ratings, and a report was prepared in that regard. The respondent was charged with indecent assault which concerned three male sea cadets, B, L and A who were all under 16 years old. Each alleged that whilst the respondent had been an instructor for the sea cadets, he had either touched his penis or masturbated him. Following a trial of the alleged indecent assault, the respondent was found not guilty. The appellant Secretary of State received a copy of the Royal Navy’s report in 2006. The Secretary of State confirmed that the respondent had been placed on lists preventing him from working with children, working in educational establishments or working with vulnerable adults. The respondent appealed to the Care Standards Tribunal against that decision. The tribunal’s consideration of that appeal was governed by s 4(3) of the Protection of Children Act 1999. At that hearing, the Secretary of state relied upon each complaint of misconduct made by B, L and A as supportive of the other statements and that those similarities rendered each probative of the other. He also relied upon the Royal Navy’s report to establish similar fact evidence supporting proof of the evidence of misconduct and the respondent’s unsuitability to work with children. In its decision letter, the tribunal allowed the respondent’s appeal and directed the Secretary of State to remove the respondent’s name from the lists. It found that the evidence surrounding the allegations gave cause for concern; that it was impossible to be certain of what had happened; and that the ratings’ complaints were not reliable. It therefore found that, on the balance of probabilities, it was unable to ascertain whether the allegations had been made out or not. The Secretary of State appealed against that decision.
He submitted, inter alia, that the tribunal had failed to make an assessment of whether the principal complaint, made by B, L and A, was mutually supported, and had also failed to consider whether the Royal Navy’s report provided similar fact evidence which was capable of supporting the complaints made by B, L and A.
Held: Appeal allowed
In assessing probative force, the tribunal had to consider: the risk of collaboration or contamination between witnesses; the degree of similarity of the allegations and the period of time over which they had been made by the individuals; and any factors which affected the credibility of the complainant. It was only in the most obvious of cases that the court would determine that, notwithstanding that the tribunal had properly directed itself, it had failed to apply the law.
The tribunal had been entitled to treat the Royal Navy’s report as a separate compartment of evidence since it had varied from the allegations which had been made by the cadets. The tribunal had been right not to take into account the evidence of the ratings, and once the tribunal had decided that it could not depend on that evidence, it had not been necessary for it to assess the similarities. Therefore, the tribunal had been entitled to approach the evidence as it had. However, the tribunal had not considered whether the evidence of one complainant had made the evidence of the other complainants more or less probable. That issue had properly been placed before the tribunal and the tribunal had accepted it. In pursuing its analysis of the evidence, the tribunal had forgotten to consider the cross-admissibility. It could not have had that issue in mind since there had been no attempt made by it to examine possible contamination or collaboration. In all the circumstances, the tribunal had made an error of law in its approach to assessing the evidence. The case would be remitted back to a differently constituted tribunal.