Examination of Witnesses (Questions 20-35)|
17 JUNE 2009
Q20 Chairman: That doesn't exist
Amanda Brown: It does exist, but
there are so many different documents and so many layers of different
documents: you have national guidance, you have local authority
guidance, you may have clusters of local authorities with different
guidance, and then you will have maybe a school-level child protection
scheme and policy. It would be very useful if there was one placea
guide that a head teacher can pull off the shelf immediately if
there is a problem.
Q21 Annette Brooke: Obviously
there are a lot of players in this. You have explained to us how
complicated it is if the parent goes to the police, but is there
a case for clarifying who has the lead role when it is clearlylet
us saya serious child protection issue? Should it not now
be the local safeguarding board that takes it on? I say that because,
while we are referring to local authorities, that is probably
fairly straightforward with maintained schools, but a foundation
school or an independent school might not necessarily accept the
same leadership from the local authority. I just wonder who should
really be getting a grip on a case locally, having the lead role
and making sure that everything follows through properly on a
complaint that is clearly serious has to be fully investigated.
Amanda Brown: First, local authorities
do have the responsibility for child protection within their whole
area, even if the school is an independent school. Although that
does not always happenagain this is an issue of the disparity
between what should happen and what does happenthey do
have the technical responsibility for it. Local safeguarding boards
have a very important role to play to ensure that everybody is
doing their own part of that process. There are different agencies
with different roles in the process, so the local safeguarding
board can check that everybody is doing what they are supposed
to be doing, rather than doing the work itself. Because there
are those different procedures, it is right for the police and
the social services to take their responsibility. We would like
to see the school, perhaps with the local authority, given a little
more scope at head teacher level to undertake its role, without
the matter necessarily leaving the school. Obviously, there are
contractual disciplinary issues that need to be taken into account.
Every teacher in a maintained school will have a contract of employment
with a local authority, so the disciplinary process will be within
that context. They clearly have to keep that role, but you are
right to say that the local safeguarding board should have an
oversight of everything as it happens.
Michael Barnes: It is not an issue
of leadership, but one of competence. The real problem is that,
when it comes down to a formal investigation by an employer, the
investigative officers are not well placed or well trained to
carry out an independent investigation. There are lots of reasons
for that, one of which is that in a sense, the process has already
been hijackedI think you will understand what I mean by
that. First, in many cases, there is likely to be a police investigation,
and obviously that has to take priority. Secondly, there is likely
to be a child protection investigation, and that will invariably
start with a strategy meeting. At that meeting, guilt is very
often attributed, even though not all the evidence is available
and the person may not even know what they are accused of. The
die is cast from that point. Employers need the confidence to
obtain complete, independent scrutiny of all the facts and to
act independently, regardless of previous inputs.
Q22 Mr Chaytor: Let us pursue
the question of independent investigators. Where do they come
from? What sorts of people are appointed as independent investigators?
Is it the case that they have only 10 days to carry out the investigation
before reporting to the employer?
Michael Barnes: The answer to
that is no. Arrangements vary across the country, and that is
part of the difficulty. An independent investigator might be appointed
simply because the case involves the line manager, head teacher
or whatever. As has been suggested, a case might be farmed out
to an independent agency, child protection group or body of that
sort. What is clear is that there is a great deal of confusion
about the specific role of the independent investigator. I will
give one illustration. In order for someone to demonstrate that
they are an independent investigator, they are required to look
at all the evidence that supports the allegation, alongside all
the evidence that runs contrary to it. In my experience, it is
rare for that second phase to actually take place. The train of
thought is to look at evidence in order to find fault, which is
Q23 Mr Chaytor: What could be
done to strengthen the nature of the investigation or the capacity
of the investigators?
Michael Barnes: We need to reassert
the independence of that role. That is the first thing. There
needs to be a specific code of practice that relates to investigative
practice. Many people only deal with this a few times in their
career. They learn as they go along and often, although not always,
fundamental mistakes are made. Such mistakes are very difficult
to recover from, so there needs to be an independent code of practice.
There also needs to be wider recognition that on occasion, false,
unsubstantiated or misleading allegationswhatever you want
to call themwill occur. If we can accept both of those
things, and admit in the same sentence that both false and true
allegations are madeand if professionals can do the samewe
will get a shift towards a more balanced view of the whole issue.
Q24 Mr Chaytor: To pursue that
point, perhaps I could ask Paul the question about anonymity,
which can be quite controversial. Is it realistic to argue the
case for anonymity up to the point of conviction, rather than
the point of charging? Is it realistic, feasible or practical
to do so?
Paul Kaufman: Some participants
in the court process are entitled to anonymity as matters stand.
Teachers are not entitled to it, but it is something that can
be practically achieved; it has been achieved in other areas.
Q25 Mr Chaytor: What is the difference
Paul Kaufman: I support teachers
being granted anonymity. As I said, complainants in, for example,
rape cases are entitled to anonymity. There is no practical obstacle
to ensuring anonymity throughout a judicial process.
Q26 Mr Chaytor: Picking up the
point that was made earlier about the rumour mill going into overdrive
shortly after an incidentwas it Julian's point? Isn't that
in conflict what with Paul said about the practical possibilities
of achieving anonymity?
Julian Stanley: Anonymity is something
people would desire. Whether it is possible to achieve, given
the nature of schools, is potentially more difficult, but does
that not again come back to how the matter is handled at the beginning
of the process, and how it is being established? In a sense, from
a lot of things that we heard today from unions, Teacher Support
Network, and the experience of councillors, teachers and the people
who have been through the process, to whom I have spoken, we know
that things escalate quickly. What we are arguing for is almost
a kind of calming-down process to be instilled in the police,
with the powers that they have, and in training for head teachers
and local authorities, to be able to investigate more thoroughly
and appropriately at the beginning to avoid it getting out of
hand. I agree, however, that once an investigation started, it
would be difficult to maintain anonymity in a school environment,
where things spread quite quickly.
Chris Keates: There are two aspects,
David, to the question you raised. A suspension, with someone
being out of school, won't stop that rumour mill, and neither
will anonymity. Anonymity was a big issue for us when investigations
were taking months, and in some cases even years, before anything
was done. The work that the DCSF did on the cases that we provided
to them showed that the longer the investigation took, the more
likely the case was to get into the media arena. Since investigations
have been tightened up in the beginning, fewer cases have been
exposed in the media, but that danger remains. Anonymity, from
our point of view, is always about media exposure, which is a
problem if there is a rumour mill in schools. Once you have been
in the local press, you don't stand a chance, whatever the outcome
is. That is the first aspectanonymity. However, most teachers
say to us, and our evidence shows, that the biggest issue now
for teachers is the soft informationhow it is recorded
and passed on in CRB checks. That is now blighting careers, whatever
Chairman: Chris, there is a section on
that next, so don't go there because we are dealing with it.
Q27 Mr Chaytor: You brought up
the issue of suspension. The guidance says that suspension should
be considered where there is concern that a child is at risk of
significant harm. Is that threshold always applied, or is suspension
used too easily in cases where there are no grounds for leaving
the principle behind?
Chris Keates: Our view is that
it is used too easily, particularly if you go back to the point
that was made earlier. In those cases, we are talking about perhaps
one incident of physical abuse, not about serious cases of potential
sexual abuse. From working with our members, our evidence is that
the outcome is still the same even though there might now be a
greater period of reflection rather than a knee-jerk reaction.
It is only recentlywe have had two cases involving two
local authoritiesthat not only has there been a suspension
from the school, but there has been an attempt to ban those people
from using public services, such as swimming pools, libraries
and so on, because they were suspended from school. That is clearly
an outrageous reaction, which undermines the idea of people being
innocent until proven guilty. Fortunately, we have only had those
two cases. I hope that practice does not spread. In law, suspension
is a neutral act, but it is not viewed as that by either anybody
who knows somebody who has been suspended, or the person who is
subject to the suspension. The longer the suspension, the greater
the effect it has on health, well-being, family life and potential
to return to their career, whatever the outcome of the investigation.
Amanda Brown: I agree with all
of that completely. On top of that, the current guidance is that
while someone is suspended, they should be told who they can contact
at the school, who their contact person at the local authority
is, how they are expected to deal with the fact that they may
well bump into either pupils or colleagues from school and how
that should be worked. They are supposed to be supported through
that and given advice on any other counselling they may require
by their employer. That does not happen. Often, they are told
they can have absolutely no contact with anyone at the school
and must not speak to their friends. We have teachers who are
married to other staff members who are told they cannot have any
contact with people from the school. Obviously, that is completely
ludicrous. There will also be teachers with children at the school.
Those are clear examples of how ridiculous that is, but it is
also ridiculous that somebody who has been suspended for a particular
issue should be told "You must have no contact." The
impact on their mental health and feelings is that they have been
isolated from everybody, they are considered a complete danger
and must not be allowed out. When we are talking about allegations
of which 95% are false, that is a significant impact on their
mental health state and it is very unfair. That is partly to do
with what is in the policies and procedures, but it is also to
do with people not understanding how the process should be implemented.
Julian Stanley: I spoke to a teacher
and a head teacher who had been through these processes recently.
They mirrored the comments from those who have called the Teacher
Support Network during these processes. What they all talked about
was the fact that during suspension they were not allowed to consider
alternative types of work. Some of them had worked in schools
where theoretically, they could have gone into local authorities
and advised on policy, done other kinds of work, or been given
things to do at home. That would have enabled them to have a sense
that they were not guilty at the start, they were still going
through a process and they were still professionals who might
return to work. What should happen if you are suspended is critical,
because, as stated, it is meant to be a neutral act. It is not
viewed that way. To get back into work afterwards is particularly
difficult. We would like to see the guidance improved by referring
people onnot only to their unions, but for emotional support.
You do have to work through a complex set of feelings and deal
with your local communities, as well as the ramifications of being
taken out of the school environment.
Q28 Mr Timpson: May I return to
the issue we touched on briefly at the start, about the recording
of allegations? We have received written evidence that falls on
both sides of the argument as to whether all allegationsunsubstantiated
or notshould be recorded. You heard earlier from the Chair
that the NSPCC takes the view that all allegations should be recorded,
regardless of whether they have been proved or not, whereas the
NGA takes the view that if an allegation has not been proved or
is false, that should be the end of the matter. There is a wider
debate about databases and what should be recorded, but in terms
of information that is recorded about allegationsis there
a justification for unsubstantiated allegations to be recorded
and if so, why? Secondly, while you are thinking about that, if
recordings of allegations are to be deleted, who should make that
decision and at what stage of the process should that happen?
Chris Keates: Particularly in
the current climate in which we all work, and thinking about how
issues work generally and how things are investigated under normal
disciplinary procedures, you might have a disciplinary procedure,
go through the process and find there was no case to answer. You
would still have a record of that disciplinary procedure. It is
difficult to argue that you would have no record at all. More
important from NASUWT's point of view, is how these issues are
recorded and, subsequently, how that information is usedwhen
it is passed on, when it is not appropriate to pass it on and
who is making that decision. A lot of work needs to be done on
consistency of reporting in the various authoritiesparticularly
in police authorities. In our evidence, we find the police are
reluctant to say, "There is no case to answer." They
will say, "There is not enough evidence to proceed,"
but that is actually much more pejorative in terms of being passed
on than recording there is no case to answer. The Home Office
has done a lot of work on this, but at the moment it is down to
the discretion of police authorities, although there is guidance
across all police authorities. We think the key is how something
is recorded, how the investigation is put out, and what the outcome
There must be consistency about these recordings at school level,
local authority level, in police authorities and in social services
andvery importantabout what then gets passed on
for CRB checks. The climate in schools at the moment is such that
if your enhanced disclosure does not come back completely clear,
people won't take the risk of appointing you. If you are a teacher
who has had an allegation made against you and you have been exonerated,
that information is passed on, and your career will still be blighted.
The focus should not be on whether information should be recorded,
but how it is recorded and how and what is passed on.
Amanda Brown: May I add to that?
The Committee has a real opportunity now to deal with that problem.
We have not talked so much about the reference materialthe
DCSF guidance on what should be passed on in references. There
are two issues. One is about what should be passed on in references
to new employers, and that comes direct from school, which again
is about what information is kept. A real opportunity has been
provided by the introduction of the Independent Safeguarding Authority,
which has been set up as an independent body to consider whether
or not people are safe to work with children. It will look at
everything on the police recordconviction and soft information,
whether that is the "brown envelope" information that
people don't even know about, or otherwise disclosed soft information.
The authority will consider whether or not there is sufficient
information to say someone is unsafe. If so, it won't register
them as able to join the work force. We think the missed opportunity
is that the time to take away the unfairness is when employersjust
at the point where they are deciding whether they are going to
appoint someone to a postsee that disclosure and that soft
information. They see the information the police have disclosed,
because they feel they need to just in case it might be relevant,
and it says, "An allegation was made. Insufficient evidence:
no further action taken." That is factually correct. However,
it leads everybody to read between the lines that this person
is guilty of an offence. If only the Independent Safeguarding
Authority sees that, it can say, "Actually, there is nothing
here. We will investigate this, find out what the person has to
say about it and decide whether or not we think they are safe."
If they are safe, we say that information should no longer be
disclosed to an employer, because it has no relevance, no weight.
The only weight it would have, if disclosed, is entirely disproportionate
because it allows the head teacher to think, "If I'm choosing
between these two people, do I choose the person who has nothing
on their disclosure, or the person whose disclosure says, `Well,
just perhaps', because an allegation was made?" The Government
and Home Office have said that they still want employers to see
the full disclosure, despite the Independent Safeguarding Authority's
deciding on barring. Their justification for that is that it is
only right that a head teacher should see whether someone has
a conviction, such as dangerous driving, if they are going to
drive the school minibus, for example. We have absolutely no objection
to employers seeing convictions. Our real objection is to the
soft, unproven, potentially malicious allegations that have been
made. Since that information will, from October, already have
been through a process where an independent government body has
looked at it and decided someone is safe, we see absolutely no
justification for that being passed on to the employer. That is
a real change that could happen now, and could really change the
position not only for teachers but for everybody who has to be
registered with the Independent Safeguarding Authority, which
is something like 11 million workers in the UK in the health sector,
local government and across the board. That is something that
could be done now to completely change the picture.
Q29 Mr Timpson: Does everyone
agree with Amanda's viewcorrect me, Amanda, if I have got
your interpretation wrongthat the ISA should in effect
be the final decision makers of what should be on this CRB enhanced
check supplementary information, where it is relevant to child
protection? If not, how would we ensure that the police's use
of terminology currently on those CRB checks is phrased in a manner
that is not loaded in the way that Chris has suggested it is,
and as it would appear at face value to be to me too?
Chris Keates: I think that Amanda
has identified a potential way of stopping information doing the
rounds when there is no substance to it. However, that still does
not remove the need for consistency of reporting, because you
could still get a problem with the ISA and the information that
is going to it. I certainly think the idea is worth exploring,
but I still think that the fundamental issue is how things are
recorded, what is recorded, who has access to it and where it
is passed on. The key areawhere we get most problemsis
what is kept on police files where there have been investigations.
Q30 Mr Timpson: Is this another
area that would need more robust guidance?
Chris Keates: We have been campaigning
for this for a long time. [Interruption.] Sorry, we are
so passionate about this particular issue. How this information
is recorded and what gets passed on by the police is absolutely
Julian Stanley: I think that it
is worthy of much further investigation. As Chris and Amanda correctly
said, there is the whole business of who records what and what
is finally decided. Consistency is all. A lot of teachers who
talk to the support lines that we operate talk about the fact
that they want to know what is going to be on their records and
they want to be able to have some input into that process if they
have been found to be innocent, because that is critical for their
Amanda Brown: That is a really
important point, because quite often we have had members who have
not actually appreciated what is on their record. We now have
to advise peoplein fact, we have to think about whether
we advise themthat if they are thinking of changing from
one post to another, they should think about seeking information
from the police, using a data subject access request, to ask what
is on their record first. That is because sometimes people won't
know that it has been reported that an investigation has been
carried out. They have not even appreciated that, because it has
been dealt with at such a low level in school, but it has still
Julian Stanley: I heard of a particular
case where the police recorded stuff but people did not find out
until much, much later when they applied for a new job. That was
over something that was not significant in relation to their ability
to carry out the work, which raises a big concern. We are all
in agreement that we need some kind of criminal record checking,
but there is this business of the lack of transparency about what
is recorded by the police.
Amanda Brown: We had a case where
Chairman: Amanda, you must be brief,
as Paul has been waiting.
Amanda Brown: I'm sorry. The person
was unable to get another job as a teacher. However, he was accepted
in the Metropolitan police. That is the effect of having that
information disclosed; you cannot work as a teacher, but you can
get a job in the police.
Q31 Chairman: The report goes
back to the chief constable in each area, doesn't it?
Paul Kaufman: Yes. I wanted to
identify the practical problem that has been touched on, which
is that the teacher won't know what is on the CRB report, perhaps
until they apply for another post, which might not be until, say,
10 years after the investigation. By that time, the solicitor's
file is likely to have been destroyedyou only have to retain
such a file for seven yearsand the court transcript may
also have been destroyed. So, in those circumstances, it is extremely
difficult for a teacher who has faced a serious allegation to
Chairman: We are biting into the next
session, so please answer very quickly.
Michael Barnes: In fairness to
the police, they receive police intelligence, they make an assessment
of that intelligence and they have a very good system for graduating
that intelligence. The problem has occurred because issues that
previously would not have appeared on an enhanced CRB now routinely
do appear because of the Huntley situationSoham. It may
not be an issue for this Committee, but there needs to be an appeal
process against information that is put on to the CRB, because
at the present time it is entirely a matter for the chief constable.
He has to make a judgment as to whether it is relevant and proportionate.
If he believes that it is, he has a legal duty to disclose that
information. In fairness to chief constables, as was said recently
in the Court of Appeal, this is an issue for Parliament. It requires
a change of law for the position to be changed.
Chairman: That is a really good point.
Paul, we missed something didn't we?
Q32 Paul Holmes: On powers of
arrest, Paul, you submitted some evidence suggesting that the
police are too quick to arrest peoplefor example, if a
teacher goes to give a statement voluntarily and is arrested.
Do you want to elaborate on that?
Paul Kaufman: The police don't
necessarily appreciate the awful situation that a teacher will
find themselves in having been the subject of a false allegation.
Sometimes, the police simply don't appreciate the impact of arresting
someone. It is something they do routinely in relation to other
suspects, and they don't differentiate teachers from members of
the public generally. Teachers are particularly vulnerable because
they are asked on a regular basis to deal, in effect, with policing
in schools, where they have to restrain pupils who are increasingly
ready to use violence. In addition, some pupils don't believe
that they can be touched by a teacher, and therefore assume that
a teacher who has physically intervened has committed an offence,
so teachers are frequently falsely accused of assault when they
have in fact intervened.
Q33 Paul Holmes: Constituents
come to me when they have been arrested, perhaps after a neighbour
dispute, and feel very aggrieved. They say, "It wasn't me,
it was them, so why did they arrest me?" Can you really treat
teachers differently to anyone else?
Paul Kaufman: Yes. If the police
were arrested every time a member of the public complained that
they had been assaulted by a police officer, the police would
be up in arms. It is now an occupational hazard for teachers,
who are expected to intervene in difficult situations for health
and safety reasons and so on, to be accused of using force by
pupils and parents who are under the misapprehension that teachers
are not allowed to
Q34 Paul Holmes: The NASUWT took
a case to judicial review, and the police, just before it went
to review, backed down and said, "Yes, this was an unlawful
arrest." What will happen from there? Has that set a precedent?
Chris Keates: No, it is influential
rather than precedential because it didn't get into the High Court.
We have taken two successful cases, and yesterday we had another
one that we are going to take to review as well, because this
is happening so frequently. It is a simple matter of the police
being trained to apply the provisions of the Police and Criminal
Evidence Act 1984 in relation to teachers and, I would say, generally,
in relation to members of the public, although we only know about
this in terms of teachers. The provisions are there and are absolutely
clear, but they are not being applied. People are going in voluntarily
and co-operating, and are then finding themselves being arrested
and having their DNA taken. There is a real issue about the training
of the police in these circumstances. I don't think it needs new
legislation; it needs proper application of existing legislation
in relation to teachers and other public servants.
Q35 Paul Holmes: So, you are talking
about code G of the 1984 Act, which says that the police must
have reasonable grounds to believe that the person's arrest is
necessary? Are you saying that they are clearly overstepping that?
Chris Keates: We have won two
caseswell, they have settled, as you saidwhich indicates
to me that they recognised that they have breached that and were
going to lose if they got to the High Court. As I said, we had
another case yesterday with the West Midlands police, so that
is two with them. The other case was with the Lanarkshire police.
Chairman: Well, an Assistant Chief Constable
will be sitting in your seat in a minute, Chris, so we will ask
him. This has been a rapid session and you have been absolutely
fantastic. I think we have the information we wanted. We will
write this short report up. If you could maintain your contact
with the Committee, we hope to make it a good, short, sharp report
that will help you to make a difference on the basis of the facts
that we have been discovering. Thank you very much.
2 Note by witness: The key is how something
is recorded, what is recorded and what is passed on. Back