BAD LAW GOOD RESULT OR GOOD LAW BAD RESULT?

Auriol Grey shouted and waved at Celia Ward.  That sentence could be the first line in a novel.  If it were it could be a description of two friends one of whom is trying to  attract the attention of the other.  But it wasn`t the first line in a novel but probably the last words that the latter heard before she was knocked off her bike and killed by a car on 20 October 2020. Auriol Grey was not the driver; she was just a pedestrian using the pavement for its natural purpose, walking, and was fearful of a cyclist approaching her on a collision course.  She was before a jury charged with causing the death of that cyclist.  After a retrial Grey was found guilty of manslaughter.  The judge`s sentencing remarks, the official record apparently still to be published, have been widely reported albeit probably in truncated form.  What we do know is that the offender is 49 and suffers with cerebral palsy.  It seems that in this very sad case the propensity for judges to do all they can to avoid sentences of immediate custody has been ignored or actively avoided.  She has been jailed for three years.  In 2021 50% of prison sentences given to women were for 6 months or less. Women were sent to prison on 4,932 occasions in the year to March 2022 – either on remand or to serve a sentence. In the year to March 2022 there were 1,513 recalls of women to custody. Women serving sentences of less than 12 months account for just under half (44%) of all recalls.  CPS guidance on manslaughter is available here.  I have been unable to source the numbers of women convicted of manslaughter  involving a stranger but excluding those in a domestic context  I would be surprised if  the number reached double figures annually. Whilst acknowledging the offender`s disabilities Judge Sean Enright was quoted as saying, "It does not reduce your understanding of right or wrong." The trial was told that police could not "categorically" state whether the pavement was a shared cycleway. Cambridgeshire County Council subsequently reiterated that and said it would review the location, but in his sentencing remarks Judge Sean Enright said it was a shared cycleway.  It is not difficult to appreciate that the first jury could not agree a verdict. With all that has been written since it is arguable that this jury might have been misdirected by remarks quoted (and others?) above.  What I find incredible is that immediate custody was imposed.  What effect on the offender or wider public has this achieved?  It wreaks of "setting an example".  But an example of what?  Who has not been disturbed or worse by a cyclist riding towards one on the pavement?  I most certainly have on multiple occasions and I too have sworn and waved my arm at that anti social behaviour.  This woman should not be in jail for a moment longer than it takes an appeal for her immediate release to be approved by the Appeal Court on four counts.  

1. Was her conviction safe?
2. Was the custodial outcome appropriate?
3. If 2.  is ratified is the length of custody appropriate?  
4. If 2. is ratified is a suspended sentence appropriate? 

The police as usual are unhelpful and take whatever position fits what their PR advisors advise. After this trial Detective Sergeant Mark Dollard called the case, "difficult and tragic, I am pleased with the verdict and hope it is a stark reminder to all road users to take care and be considerate of each other." Readers will form their own opinion of those remarks.  Personally I need some fresh air. 

ADDENDUM 7th March 2.30pm

This is what the judge told the defendant:

You have been convicted of manslaughter after a re-trial. You gave no evidence at trial one or two. In broad terms, the issue at trial was whether what took place might have been an accident, self-defence or unlawful violence. You were convicted unanimously by the jury.

Most of what took place was captured on camera footage. You were walking on the pavement. You resented the presence of an oncoming cyclist. The footage shows you shouting aggressively and waving your left arm. You do not stop, slow down or move to one side. You are territorial about the pavement and not worried for your own safety. After careful thought, I concluded these actions are not explained by your disabilities.

The court heard evidence from a number of witnesses, and I found William Walker to be reliable and thoughtful. He is a cyclist and driver. He said that you and Mrs Ward appeared to have come to a halt in front of each other and you made a lateral sweeping movement with your left arm which was directed at Mrs Ward. He said “it either made contact or she recoiled and fell”.  She  fell into the busy ring road where she was killed by a passing car driven by Carla Money.

This was, I think, a shared path for cyclists and pedestrians that allowed them to go around the busy ring road. The vital point is this: I am sure you knew cyclists used that path and you were not taken by surprise or in fear for your safety. The path at the point of collision 2.4 metres wide.

I have considered the evidence about eyesight and the CCTV footage and visual impairment was not a factor in this incident.

You and Mrs Ward both welcomed the safety of the pavement. She because she was an elderly cyclist and you because of your disabilities. Consideration for other road users is the lesson of this tragic case. We are all road users, whether as motorists, cyclists or on foot.

I have been referred to the guidelines on unlawful act manslaughter issued by the Sentencing Council and have heard submissions from both parties.

In terms of the guidance, looking at these matters in the round, culpability C is made out, but towards the lower end of the scale.

A starting point of four years seems just, based on my finding that the sweep of your arm was an intentional act but being reckless as to whether harm would be caused.

I reject the submission that this is best framed in terms of category D for reasons I have indicated.

Aggravating factors

The vulnerability of Mrs Ward who was on a bike.

The effect on Mrs Carla Money (in so far as her first statement extends). Her enduring distress is entirely foreseeable.

Matters reducing seriousness and personal mitigation

You offered assistance at the scene, but you were turned away by others.  But, on the other hand,  you then left before police arrived and  went off to do shopping. You were evasive when police traced you and told lies in interview.

You have no convictions or cautions or reprimands. You are 49 years old. This stands to your credit.

Your medical history and significant disabilities would have crushed many but you have endured all that in a commendable way. Until now have demonstrated a  positive lifestyle and I have no doubt that over the years you have endured all kinds of difficulties when going around the town centre which may have made you angry on this occasion. In any event, your prior good character stands to your credit.

Is there a mental disorder bearing on these issues? I do not think so.

As to learning difficulties, there are none. Much was made  in cross examination of what witnesses referred to as a  “childlike face”. In fact you went to a mainstream school and denied in interview having any impairment of intellect. That is not decisive, in my view and I put it to one side. Both experts suggested that the childhood surgery resulted in “a degree of cognitive impairment”.  (In my view, these difficulties do not bear on your understanding of what is right and wrong and what is appropriate or not). I should say that I saw the video your police interviews, I read the character statements detailing your lifestyle. I have also read the  pre-sentence report and medical evidence and have learned as much about you as I can.

Remorse. There has not been a word about remorse from you until the pre-sentence report was prepared, and here there is a reference to remorse which has never been passed on to the Ward family. In this regard I accept your counsel’s explanation that this may be a function of your disabilities and do not hold it against you.

There has been a delay in getting this case to trial. This is a mitigating factor I must take into account in your favour.

I also take into account the particular difficulties, occasioned by your disabilities, that you will face in prison and when you emerge.

Balancing all these considerations, the proper sentence is three years imprisonment.

FURTHER ADDENDUM 8th March 

The Law  as told to the jury by the judge

Burden of proof

The prosecution must prove that the defendant is guilty. She does not have to prove her innocence.

Standard of proof

The prosecution proves the defendant's guilt by making you sure of it. Nothing less than that will do.

Manslaughter

A person commits manslaughter is he/she does an unlawful act that a sane and reasonable person would realise would inevitably expose another person to the risk of some harm ( and that other person dies as a result).

If you concluded that what took place was or may have been an accident, then you will find the defendant not guilty.

If you were sure that what took place was not an accident but found that defendant was or may have been acting in self-defence, then you will find her not guilty.

2

WHAT IS SELF DEFENCE?

In summary

1. A person who thinks she is under threat may use force to defend herself and, as long as she uses reasonable force she will be acting in lawful self-defence.

2. It is for the Crown to prove, that the defendant was not acting in self-defence.

3 It is a two stage test.

Stage 1 – did she feel under threat (subjective)

4. You must first ask did she honestly believe that it was necessary to use force to defend herself? She is not deprived of this defence simply because she was mistaken about the need to use force.

If you are sure that she did not believe it was necessary to use force, then self-defence fails, and the force used would be unlawful.

If she may have believed it was necessary to use force, go on to the second stage.

Stage 2 – reasonable force (objective).

5. You must then decide whether the type and amount of force she used was reasonable. A person who is under threat may react on the spur of the moment and cannot be expected to work out exactly how much force she needs to use and everyone has a degree of latitude in that situation. If the reality is that she used no more force than she instinctively thought necessary, that would be good evidence that the force used was reasonable and therefore lawful.

3

6. If you conclude the defendant was or may have been acting in lawful self-defence you must find her not guilty and that is the end of the case, and you will go no further.

7. However, if she used force out of all proportion to the situation she faced, then the force used would not be reasonable and her actions would be unlawful.

8. If you reject self-defence, it means you have found that she used unlawful force.

You will then ask: would a sane and reasonable person realise that in doing what she did, would inevitably expose another person to the risk of some harm?

If yes, verdict guilty.

If no, verdict not guilty.

4

ROUTE TO VERDICT

(After you have had a full discussion about the issues you will need to make decisions, and if you follow this route to verdict it will help you return a verdict which in accordance with the law)

Q 1 Was what took place or may it have been an accident?

If so, your verdict is not guilty. Go no further.

If not, go to Q2.

Q 2 Did she believe, or may she have believed it was necessary to use force to defend herself?

If not, self-defence fails and you will go straight to Q4.

If yes, go to Q3.

Q3 Was the force that she used reasonable or may it have been reasonable?

If yes, verdict not guilty. Go no further.

If no, self-defence fails. Go to Q4.

Q4 Would a sane and reasonable person realise that doing what she did, would inevitably expose Mrs Ward to some harm?

If yes, verdict guilty. Go no further.

If no, verdict not guilty.

5

THE DEFENDANT’S SILENCE AT TRIAL

The defendant has chosen not to give evidence in support of her defence.

A warning

You must remember that the defendant has a perfect right not to give evidence and to require the prosecution to prove its case. You cannot jump to the conclusion that her silence proves the case against her. It does not. The burden remains on the prosecution to prove its case so that you are sure.

How may the defendant’s silence be relevant to the case?

There is no evidence before you to contradict or undermine the evidence for the prosecution save for what the defendant said in interview. You will appreciate those answers carry less weight than sworn evidence because they were not given on oath and were not tested in cross examination.

What point do the prosecution make?

The prosecution argue that the reason why the defendant has remained silent is that she has no answer to the prosecution case or none that would stand up to examination.

What do you need to be satisfied of before accepting that argument?

You should only act on that argument if you regard the Prosecution case as sufficiently strong to require an answer from her, and you are sure that the only sensible explanation for her silence is her awareness that she has no answer, or none that would bear examination.

6

GOOD CHARACTER

The defendant has no criminal convictions, cautions or reprimands and you have heard evidence about her character from three witnesses.

1 This is a factor which you should take into account when deciding whether you believe what she said in interview.

2. The fact that she is of good character means that she has no known propensity to commit offences and is therefore less likely to have committed this offence.

These are matters to which you should have regard in the defendant's favour.

EXPERT EVIDENCE

Experts are entitled to give their opinion evidence on matters outside the knowledge of lay people.

None of the expert evidence is in dispute and there is no rational basis to depart from it.

But remember, the experts see their part of the case only. You try the case on all the evidence.

UNANIMOUS VERDICT

You must return a unanimous verdict. If you have heard about majority verdicts, put them out of your mind. If there comes a time when I can accept a majority verdict, I will bring you back into court and give you a further direction

 

FURTHER & PROBABLY FINAL ADDENDUM 23rd May 2023

 

Contrary to my expectations the Court of Appeal refused leave to appeal against sentence.  This case is becoming a travesty of much that is wrong with our justice system such as it is still designated.  For comment in greater detail please read my post of the above date which can be speedily accessed here.

I TOO HAVE BEEN CANCELLED

Writers of all kinds high and low, full of sense or nonsense and judicial office holders of all kinds appear to be high on the target list of those who operate and/or support what`s now commonly termed cancel culture.  Of the former the person with the highest profile is probably J. K. Rowling because she dared to say what others have feared to publicly admit that there are two sexes and that so called trans women have the potential in some cases to be an actual physical danger to women notwithstanding the fact that in essence they are in opposition to what she and others consider  the fruits of  the women`s liberation movement.  At the opposite end perhaps of this literary spectrum has been the recent announcement by Puffin, publishers of the works of Roald Dhal, a notorious antisemite and world famous author of children`s books, that some of his language is now unfit for young human consumption.  Cloud-Men have become Cloud-People in "James and the Giant Peach". In The Witches, there are no longer any old hags – only old crows. These are just two of the hundreds of changes that have been made to the author’s stories. To the criticism from many quarters the publisher replied by saying that  it had taken such actions so that  (Dahl) “can continue to be enjoyed by all today”.  An extreme result of similar perverted thinking was that the outstanding author Salmon Rushdie had his life almost cancelled by his fanatical Islamist assailant`s dogmatic beliefs. The common factor between Puffin and him was that authors` words must not be heard; they must be muted by killing the author or substituted by what a publisher considers "acceptable".  

The treatment of the judiciary of the words they utter in a professional or private manner, certainly in the case of magistrates, falls within that black to white spectrum where even that phrase itself is regarded by some as suspect.  I have recently commented on the remarks of District Judge (MC) Stephen Leake. We will probably never know if or what "advice" he has been given or if any at all by judicial authorities. This is a classic mirror image of cancel culture insofar as any comment is kept secret and out of the public domain.  Last week Just Stop Oil offenders were praised by District Judge (MC) Wilkinson as he sentenced them.  I, along with some other commentators, have questioned the appropriateness of these remarks.  Once more any official response is cancelled at least to us the public.  Instances as above have been reported in the press; often the local press but old fashioned press reporting is a dying occupation thus denying a wider  public of what they have a right to know. However much as judicial authorities mouth the slogan that magistrates are members of the judiciary their treatment by said authorities is far from equal with their seniors when they are thought to have transgressed.  Unlike their seniors such deviations whether in the courtroom or without are displayed in a public place albeit in an edited form such as has put  Dr Ian Haffenden JP in an unenviable position.  He was not cancelled but put in the spotlight: to every action there is an equal and opposite reaction to quote a rather clever fellow called Isaac Newton. 

To be cancelled has this week become for me something personal.  Yesterday Blogspot, the hosts of this site on which I have commented for 10 years, informed me that a post of 09/04/2019  "MEANS FORM MEANS NOTHING"  had been reported to them as it "was flagged to us for review. We have determined that it violates our guidelines and deleted the post."  I had been cancelled almost four years after publication of the supposedly offending material.  After I objected to this action the post was re-instated.  If any reader agrees with the objector perhaps he/she should delete this address from bookmarks.  

DAME ALISON SAUNDERS: THE PROCESS STINKS

Admission:- I am not a major fan of the honours system but...........at the age of 83 my late mother was awarded MBE for services to the community.  She ran her local Citizens` Advice Bureau for over twenty years.  She was immensely proud of these three letters and was known to occasionally let others be aware of her pride.  She thoroughly deserved that royal recognition and others who have been similarly awarded are likewise held in high regard in their communities and rightly so.  However, when the prime ministers responsible for the recommendations of the highest public awards do so in act akin to the showering of confetti at a bridal party the smugness and aloofness of their position should be intolerable. It isn`t. Twice yearly undeserving gong seekers are bestowed with their lifelong dream irrespective of their worthiness. From failed politicians and former MPs being given a meal ticket until death in the House of Lords to those who have been miserable failures in their often public positions the tale seems endless. In the recent so called honours list no recipient has least deserved this form of recognition than Alison Saunders; recently retired head of the CPS. I first posted on her 13th April 2015;  10th October 2016 was her next appearance followed by 10th October 2017 . Under her so called leadership rape prosecutions fell apart owing directly to police and CPS failures to disclose evidence to the defence that might have assisted in defence counsel arguing their clients` innocence. She had succumbed to the "rape lobby" in their spurious arguments that far too many men were "getting away with it" and was determined to increase the conviction rate by whatever means were within her power. Between 2014 and 2016 disclosure errors in such trials increased by 70%. She failed three times to convict defendants accused of female genital mutilation. Of sinister import under Operation Elveden 34 journalists were arrested and 29 charged with making payments to public officials.  Many were on bail for years in a legal limbo while CPS tried to build a valid case.  None was convicted. There was a similar scandal under Operation Yewtree concerning historical sexual abuse claims later dismissed. Her period in office was nothing short of a shambles.  In any non civil service employment she would have been fired for incompetence but in our society where feather bedded  politicians and senior civil servants looking at their own futures behave as their Victorian forefathers did such direct actions are few and very far between. The current suggestions by Dominic Cummings, number one advisor to the prime minister, seeking weirdos out of the box to advise Tory policy might not be to everyone`s taste but they are a straightforward reaction to the very situation that allowed Saunders to keep her job.  But the fact that she has been made Dame Alison in the new years honours list is a scandal too far. Tax payers have funded her pension pot of £1.8 million while she has walked into a six figure figure salary at Linklaters. The whole process stinks.  

MEANS FORM MEANS NOTHING

Talking to an old friend from my court some weeks ago she remarked that compared to her early days on the bench in the 1980s rarely had she had sex workers before her in recent years. Changes in many attitudes in the last thirty years have certainly been enlightening and generally for the public good.

Magistrates, however, still hear from many fellow citizens about those slices of the bread of life that are obscured in wrappers .

I well remember that such was the case of Geoff M. He was twenty two years old, evenly tanned, well built and had, according to both my female middle aged colleagues, the looks of a man who could do certain things to the female body.The lady to my left referred to him as a Richard Gere lookalike in the film American Gigolo. We noted that he lived at the most expensive block in the most expensive road in the most expensive suburb of town. Magistrates must have local knowledge to function efficiently. That being said he was before us on a charge of affray to which he had pleaded guilty. We decided to fine him and accordingly looked at the means form he had filled in. His occupation was described as "escort agency services" and his income £450 per week. When our sitting was over we remarked that it was the first time any of us had had a gigolo.....to coin a phrase.....and that at £450 per week he was either just a part timer, wasn`t very good at his job or he`d lied on his means form as I suspect is the norm for very many defendants.

PROHIBITION UK STYLE

From their very inception I was concerned at the implications of that wonderful, so they said, innovation; the ASBO.  Having to impose such I did my judicial duty but without enthusiasm. ASBO was but the first of many so called exclusion notices. For the last ten years constables have had the authority to issue a written exclusion notice to anyone considered to represent a "risk of disorder", even if they are not drunk or have committed no offence. The aim is to enable the police to stop violence escalating by immediately removing potential troublemakers from the scene. As a matter of interest David Davis, the shadow home secretary at the time,  said the Conservatives would consider backing the proposals but said Labour "has form for making headline-grabbing announcements only to fail to follow them up"; another politician`s words coming back to haunt him.......as if they care; it`s happening all the time. Soon to follow was the CRASBO; criminal anti-social behaviour order.  I sat on the very first hearing in this country where such was brought.  It was a shambles and we threw it out.  Notices can be issued to those whose presence "is likely, in all the circumstances, to cause or contribute to the occurrence or continuance in that locality of alcohol-related crime or disorder". Magistrates' courts are able to issue civil orders banning persistent drunks and binge drinkers from all pubs and clubs in designated areas for up to two years and  operate on a similar basis to Asbos which have been condemned by a European human rights group  These were designated Drinking Banning Orders with criminal sanctions if breached.  Their effect was to displace the offence to another locality or to set up an order for him/her to fail when such orders referred to the whole county or even the whole country. And these orders sometimes without due process don`t stop.  Domestic Violence Protection Notices allow police to exclude a householder from his/her own home on the say so of a senior officer. 

Nationwide it seems there has been a steady increase in begging whether through increased poverty and/or straightened circumstances owing to addiction(s). The problem local authorities have is, of course, what to do about it. Leamington Magistrates Court on behalf of the local council has issued one such vagrant with the ubiquitous CRASBO.  This will solve nothing except that the offender will be before another court sooner or later on a criminal charge for which he will probably be imprisoned.

This little story is typical of so much that this and previous governments do in order to paper over deep problems in our society.  Today`s announcement by the Home Secretary that she seeks to introduce new legislation on banning knives is just another pathetic attempt to remedy what are thought to be intractable problems.  They are not. They require only honesty, money and a sincere wish to get to grip with one of society`s problems.  If that requires authoritarian means so be it I say. 

PS Last month on 21st June I predicted legislation on knives by the new Justice Secretary.  I didn`t think it would come so soon. Seems I had the wrong department in mind but the right idea. 

PILLAR OF JUSTICE HAS NO SUPPORT

Commentators of late have been suggesting that the great British public has turned a political corner and would welcome tax increases in order to improve funding for public services. With regard to NHS or social care they would appear to be inviting hell and damnation if there were the slightest hint that just perhaps individual contributions from those with the means available might be a better way out of this financial mess. That a right wing DUP orders Tories to retain benefits to pensioners whose financial position is such that they could happily forgo such largesse, a political position that the Left would have occupied a couple of decades ago,  indicates the paradoxical political world we inhabit.  And so it is with the emasculation of everything associated however remotely with out legal and justice system.

It is estimated that addiction is responsible for about 70% of acquisitive and/or violent crime.  Therefore one would have thought that the intelligent answer to that would be to be "tough on crime and tough on the causes of crime" (Tony Blair 1993)  But nay.  Since then we have endured tinkering........no other word seems more appropriate......with the justice system with platitudes and inefficiencies disguised as policy from the MOJ and Home Office. As examples just a few cases this week from magistrates courts illustrate what is really happening below the headlines of murder and terrorism; criminal activity which I would argue affect us all more than those aforesaid headline grabbers.  Please spend a moment or two perusing these four cases of criminal activity driven by addiction. These cases are replicated in every magistrates` court every day of the year. 

And what are we offered?  Court closures by the hundred and severe restrictions on the availability of legal aid even for the poorest in society. And yet, as I wrote Wednesday June 28th the CPS Inspector`s report when noting that absentee defendants are "the biggest single reason why first hearings were ineffective" did not even mention court closures as a possible reason. 

This is the Alice in Wonderland political world that appears to be the norm.  No wonder younger voters with no memories of the Cuba crisis where MAD policy prevented war, the three day weeks  and work by candlelight in the 1970s voted for a would be demagogue who offered a financial holy grail. MOJ and Home Office policies are a microcosm of all that`s wrong in this country financially, practically, morally and socially. There is nothing other than self serving preservation and limited horizons driving many parliamentarians despite that they protest too much.  They voted in their arrogance to hold a referendum without any caveats on requiring a minimum turn out or majority and I write as a Brexiteer.  By those very actions they have produced the biggest crisis since 1956 another date that means nothing to young voters. In its present form the Tory Party has outlived its usefulness where an incompetent Home Secretary with as much appeal as a rotten tomato was chosen as kingpin in order to prevent those more competent to succeed. She failed dismally with appointments to chair the inquiry into child abuse and her appointee into Grenfell has admitted within 24 hours that he will be unable to satisfy the reasonable requirements of residents. The buck has stopped right in her kitchen where she seems to be cladded to withstand the heat.

A country must be supported by a pillar of justice that is respected by all and funded to that end.  That requirement has been forgotten and/or ignored for years.

JUSTICE UNBALANCED

That our courts system is probably near melt down will not be news to any whose knowledge is gained from first hand experience.  From 2010 when the provision of legal aid began to be  strained through a sieve and the closure of magistrates` courts became government policy enthusiastically put into practice by Kenneth Clarke and those who succeeded him there can be little doubt that the concept of the state offering justice for all and a level playing field between accuser and accused has been well and truly abandoned.  Now that the number jugglers are controlling policy government attitude seems to be to drive down costs irrespective of the effects on the lives of ordinary citizens caught up and entangled in the legal labyrinth which begins with police and ends in sentence.  It is therefore hardly surprising that magistrates` courts have seen increasing numbers of so called McKenzie friends attempting to do on the cheap what was previously the responsibility of state funded legally qualified practitioners. I posted my misgivings 4th October 2016 and earlier.  Considering that even a police caution never mind a minor criminal conviction can play havoc with someone`s career or travel prospects some might express surprise that such a situation has come to pass.  On one hand any criticism of a "free at point of use"  NHS invites outrage whilst on the other we have consciously arrived at a point where only a small percentage of defendants can afford to pay for professional legal expertise to navigate the maze of the criminal law.  It is indeed a travesty of justice. Even Corbyn and his Marxist ranting has not broached the topic.  The Tories hope that their core followers are just not interested.

In November 2015 The Rt Hon The Lord Thomas of Cwmgiedd Lord Chief Justice of England and Wales gave a lecture entitled "The Centrality of Justice, its contribution to society and its delivery".  I have copied it in its entirety. I think it`s worth a few minutes reading time.


Introduction1
1. It is a privilege and honour to give this lecture in memory of Lord Williams of
Mostyn. It is made possible by the generosity of Farrar’s Buildings (where I was
pupil as a barrister to His Honour Judge Monro Davies QC and of which my
judicial pupil master His Honour Judge Sir Robin David QC was a door tenant). It
is a privilege, as although Lord Williams and I never practised in the same area of
the law, he was always most generous in his encouragement, wise advice and
counsel. It is an honour as Lord Williams’ career spanned both the bar (for he was
successively leader of the Wales and Chester Circuit and Chairman of the Bar) and
the House of Lords (he was successively an Undersecretary of State, Minister of
State and Deputy Leader of the House of Lords, Attorney General and Leader of
the House of Lords). More importantly he was, as Lord Falconer described in the
Dictionary of National Biography, a “committed reformer”:
He wanted to change the institutions of which he had been so successful a
member. But he never lost the support of the two institutions where he achieved
pre-eminence—the Lords and the bar.
2. It is with these words in mind that I turn to the subject this evening: explaining the
centrality of justice in our nation State and addressing the urgent need for radical
reform to safeguard and enhance that centrality though the better delivery of
justice. This is a reform that must be achieved with the support of those engaged in
1 I wish to thank Dr John Sorabji for all his help in preparing this lecture.
2
the justice system and others.
Democracy and the institutions of the state
3. It is appropriate to take democracy as my starting point. In particular it is to the
reflections of the second President of the United States, John Adams, one of the
great US Presidents and of Welsh descent.2 In a moment of pessimism, he said:
Democracy never lasts long. It soon wastes, exhausts and murders itself. There
never was a democracy yet that did not commit suicide.
4. Adams’ observation is of continuing relevance. The commitment to democracy is a
living commitment which must be secured by two pillars: the strength of its
institutional pillars (the executive, parliament and the judiciary) and the assent and
confidence in the institutions by those who are governed by them.3
5. Tonight I want to focus on one aspect of the first pillar – the judiciary and the
justice system – and its central role in our democracy.
6. The warning of Adams is equally applicable to the justice system. We all know of
the barbarity of the criminal justice system and the appalling delays and expense of
our civil justice system before the reforms of the nineteenth century. These were
good examples of how a system of justice can waste and exhaust itself. But
although we rightly pride ourselves as having one of the finest judicial systems in
the world, there are serious dangers to our system which demand reforms perhaps
as radical as those of the nineteenth century. I want therefore to look at what
reforms must be made to preserve public confidence in our system of justice and,
more importantly, to enhance it, so that Adams’ pessimism does not become a
prophecy applied to that institutional pillar of the state.
The justice system: its contribution to society
Is it simply an adjudicative service?
7. Let me first turn to say something of the centrality of justice and the nature of our
judicial system. You may wonder why I do so. There is an emerging view that our
judicial system is simply nothing more than the provider of an adjudication service
either between the citizen and the State, or between citizens. The view gains
2 Welshmen as factors in the formation and development of the US Republic – the successful prize essay at the
International Eisteddfod at the World’s Columbia Exhibition, the Chicago World Fair of 1893.
3 K. O’Regan, A Pillar of Democracy: Reflections on the Role and Work of the Constitutional Court of South Africa, 81
Fordham Law Rev. 1169 (2013).
3
currency as it is perceived that individuals, businesses, local and central government
come to the courts to use them as an adjudication service, just as they would go to a
mediator, arbitrator or ombudsman or other private provider of such services.
8. Differences, of course, do exist between the justice system and these other dispute
resolution services. The justice system would, for instance, be viewed as a state
monopoly, although it would no doubt be possible to conceive of an ombudsman
service as a monopoly provider within the ambit of its jurisdiction. Equally, the
justice system could be seen as providing an adjudicatory dispute resolution service,
unlike the more facilitative process provided by mediator. But then again,
arbitration and, to a certain degree, ombudsman services provide an adjudicatory
process. Differences, and similarities, can be multiplied.
9. If the judiciary were looked on in this way as simply a provider of adjudication
services, it would be impossible to see how the judiciary and the justice system
could be conceived as a pillar of democracy. Conceived of as a service, and one that
does no more than resolve disputes – whether civil, family, criminal, public law or
private law – there is little perhaps to differentiate it from various forms of
alternative dispute resolution. Any distinction between formal and informal justice
begins, if it is not already on this view, to be lost. Worse than that, formal justice
collapses into informal justice. Looked at this way, the fears expressed by writers
such as Professor Trevor Farrow that the common law is in danger of privatising
justice, can seem all too patent.4
The fallacy in viewing it as an adjudication service
10. The idea that the justice system does no more than provide a dispute resolution
service, that in doing so provides merely private benefits to litigating parties, is
fallacious. I agree with Chief Justice French of the High Court of Australia that
“courts are not and should not be seen to be providers of a spectrum of consensual
and non-consensual dispute resolution services”.5
4 See for instance, T. Farrow, Civil Justice, Privatization and Democracy, (2014).
5 R. French, Essential and Defining Characteristics of Courts in an Age of Institutional Change, (Supreme and Federal
Court Judges Conference, Adelaide, 21 January 2013) at 3. See
http://www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj21jan13.pdf.
Discussed in P. Spender, Wavering alternations of valour and caution: Commercial and regulatory litigation in the
French CJ High Court, (2013) 2 J. Civ. LP 111 at 116ff.
4
11. The idea is fallacious because it undermines our constitutional settlement. A
democratic state secures justice, in the widest sense, for its citizens through
representative institutions of government – Parliament and the Executive – and
through an independent judiciary and justice system. The latter ensures that those
institutions, just as much as the state’s citizens, act within the law. A consumer
service merely resolving disputes cannot play such a role. Mediation, for all its
rightly recognised virtues, cannot do so. Nor can arbitration, nor any ombudsman.
12. If we conceive of the justice system as no more than a service provider, we plant
the seeds for Professor Farrow’s feared privatisation. If the justice system is no
more than a state monopoly providing exactly the same benefits to individuals as
the London Court of International Arbitration, one of any number of mediation
services, or, for instance, the Furniture Ombudsman,6 then the next logical question
is why should the state maintain that monopoly? Its danger lies equally in the fact
that it might facilitate the false belief that the justice system is in the same category
of public services as education and the health service. It is not. It is in the same
category as Parliament and the Executive. It forms part of the institutional
framework which safeguards the rule of law and underpins democracy.
13. There is no suggestion that the justice system is to be privatised. But, as Professor
Dame Hazel Genn has cogently and forcefully argued, the suggestion is there that
the courts do no more than provide services that confer private benefits on litigants
has more than found its way into mainstream.7 The position was perhaps best
summed up in an article by Dingwall and Cloatre who concluded that:
Successive U.K. governments have decided that, although civil justice may be a
public service, it is not a public good in the sense that Lord Woolf asserted in his
first report. Although, as Lord Woolf notes, governments have been reluctant to
defend the policy in public, their communications with the Civil Justice Council
made it clear that they see the system as providing only private benefits for
individuals rather than collective benefits for the society as a whole.8
6 An independent not-for-profit organisation established in 1992. It specialises in providing Alternative
Dispute Resolution services for consumers and businesses in the retail, furniture and home improvement
sectors.
7 See for instance, H. Genn, Judging Civil Justice, (2010); H. Genn, Why the Privatisation of Civil Justice is a Rule of
Law Issue, (F.A. Mann lecture, 2012). See http://www.laws.ucl.ac.uk/wp-content/uploads/2014/08/36th-
F-A-Mann-Lecture-19.11.12-Professor-Hazel-Genn.pdf.
8 R. Dingwall & E. Cloatre, ‘Vanishing Trials?: An English perspective’, Journal of Dispute Resolution 7 (2006)
51 at 67.
5
Institutions that simply confer private benefits on individuals are not one of the
pillars of democracy and cannot safeguard the rule of law or the prosperity of our
nation state.
The true ambit of the justice system
14. Why is the justice system therefore a pillar of democracy? There are a number of
reasons. Time will permit me only to mention some of the more important: first,
the safeguarding of the rule of law, second, maintaining the certainty of the law
while allowing for its development, third, providing public access to the law, fourth,
providing openness and accountability and fifth, making decisions independently of
interests.
15. Let me say a word about each of those I have mentioned.
Safeguarding of the rule of law
16. First, the justice system safeguards the rule of law. The means by which it resolves
disputes differs qualitatively from the approaches taken by the many mechanisms of
informal justice. It does so through providing substantive justice by finding fact and
applying it to law. It provides justice according to law. It does so through a fair
process; one that guarantees equality of arms between the parties, which is neutral
as between them. This plainly has value over and above the individual case. As
Professor Fuller rightly noted the means by which the courts, through hearing and
testing evidence and reasoned argument presented by disputing parties, is a
fundamental means through which the rule of law is made real. It is of the essence
of the democratic state.9
Maintaining the certainty of the law whilst allowing for its development
17. Secondly, the provision of substantive justice is not simply an end in itself. Its reach
goes far beyond the immediate parties. In this respect, and unlike any aspect of
informal justice, it is a continuous process that affects the other pillars of
9 L. Fuller, The Forms and Limits of Adjudication, (1978) 92 Harvard Law Review 353.
6
democracy just as it does all citizens.10
18. Decisions in individual cases clarify the law where it is obscure. They provide
certainty where there has been doubt. They ensure that the norms provided by the
law truly are norms, and not mere aspirations. They transform bare rules of law into
a living framework guiding the lives of citizens, economic activity by small, medium
and multi-national corporations, and government conduct:
Protecting legal rights (in other words) has value beyond what those rights are
worth to any single (litigant).11
19. The justice system achieves this transformation in two ways. First, through what
could be described as the certain application of the law to individual cases. Through
deciding cases consistently with precedent and under the guidance of an appellate
structure, the judiciary maintains certainty in the law. Individuals, business and
government can order their affairs on a sure legal footing. The consistent
application and explication of the law enables all of us to know the legal framework
within which we live our lives.
20. Secondly, it does so through judges developing the law. Judges can do so in
appropriate cases, in accordance with established principle, as explained by Lord
Diplock in Home Office v Dorset Yacht Co. Ltd,12 and more recently elaborated by Sir
John Laws in his Hamlyn lectures,13 Substantive justice’s achievement in any one
case can result in the development of novel law. As any first year law student knows
without this common law approach there would be no Donoghue v Stephenson.14
Equally, there would be no principled – and still developing – law of restitution or
unjust enrichment. Without the court’s ability to develop the law, without its
creative function, the tort of negligence would have progressed no further than
Esher M.R.’s decision in Heaven v Plender,15 and unjust enrichment would remain
swimming in the confused and murky shallows of implied contract.
10 It does so because, in the words of James Madison, “law is . . . a rule of action”. To be effective as such
it must be known and fixed. J. Madison in A. Hamilton, J. Madison, J. Jay, The Federalist Papers (C. Kesler,
ed.) (Signet, 2003), No. 62., at 379.
11 D. Rhodes, Access to Justice (2004) at 11.
12 [1970] A.C. 1004.
13 J. Laws, The Common Law Constitution (2014).
14 [1932] A.C. 562.
15 (1882 – 83) L.R. 11 Q.B.D. 503.
7
21. Individual decisions do not therefore merely provide a service to the litigants; they
play an essential part in the maintenance and development of the law. They are a
fundamental aspect of our common law constitutional settlement, since they help
create the framework of law.16
22. The contrast with the methods of informal dispute resolution is clear. No means of
securing informal justice could legitimately play such a role. There are, of course,
limits to the justice system’s creative role. It is, broadly speaking, incremental. It is
evolutionary not revolutionary. And most importantly, it is subordinate to
Parliament, which is rightly sovereign within our constitution. Subject to these
limits, the justice system speaking through individual decisions is an institution of
the State, not a mere service provider.
23. The contrast can again be seen by reference to the impact of arbitration. Up until
1979 a substantial contribution had been made to the development of commercial
law by appeals by way of special case (in effect a case stated) from decisions of
arbitrators. A substantial amount of my own experience as a young commercial
lawyer was to request the arbitrator to state the award in the form of a special case
on a point of law; if I lost the arbitration, I could appeal to the Commercial Court.
It is undeniable that the practice, as applied not only to the maritime market but
also to the commodities market, produced far too many appeals. So in 1979 an
Arbitration Act restricted the right of appeal. That restriction is now embodied in
the Arbitration Act 1996. Many have felt that the restrictions are too tight and have
stultified the development of English commercial law. As long ago as 2004 in
delivering the Sixth Cedric Barclay Lecture, Sir Robert Finch, then the Lord Mayor,
called for a widening of the scope of appeals from commercial arbitrations as a
need to help the modernisation of English commercial law so that it kept in tune
with the developments of the commercial world. Eleven years on, the need is even
greater. One of the central defects of arbitration is that the process by which the
law is developed in a way (which I shall now turn to describe) cannot take place
within the privatised system of arbitration.
16 In the words of Lord Nicholls: “The common law is judge-made law. For centuries judges have been
charged with the responsibility of keeping this law abreast of current social conditions and expectations.
That is still the position. Continuing but limited development of the common law in this fashion is an
integral part of the constitutional function of the judiciary”. National Westminster Bank v Spectrum Plus [2005]
A.C. 680 at [32].
8
Providing public access to the law
24. A third fundamental aspect of our judicial system is that decisions are made
available to all citizens so that they can plan their lives on the basis of the law.
25. Jeremy Bentham once entertained the idea that if we could render law simple,
through codification, everyone could be their own lawyer.17 Codification would in
fact never have produced the answer he wanted; codes stand in need of
interpretation and explication just as do other forms of law. There is vastly more to
German contract law than is found in the BGB – Bürgerliches Gesetzbuch. There is
more to the US Constitution than its bare words.18
26. Bentham had two reasons for thinking that it was important that everyone could be
their own lawyer. The first reason would not be popular to some. Bentham
considered making the law simple was a means by which the necessity of resorting
to – and having to pay – lawyers could be avoided. Where legal disputes arose
everyone could be a litigant-in-person well-versed in the law, and well able to fight
their corner before the courts. The second reason was to ensure that, if the law was
well-understood by all, they could take steps to ensure that legal disputes did not
arise. It had a preventative function. Understanding the criminal law, and the penal
consequences that flow from breaching it, would play an essential role in ensuring
that society would be peaceful. Understanding the operation of contract law, the
extent of a duty of care, would enable individuals and businesses to avoid the
adverse consequences of breaches.
27. As disputes are avoided through proper planning, society’s resources can be
directed in ways which are neither “wasteful” nor “disruptive”.19 Again it is not
possible for arbitration or mediation to play such a preventive role. Resolution
reached by such methods is necessarily private as between the parties. It is not
binding either on other parties to arbitrations or mediation. It cannot clarify or
develop the law. Insofar as decisions circulate, they often circulate to a narrow
range of lawyers who may then gain special knowledge of the way in which groups
of arbitrators decide issues. It therefore lacks the features that would enable it play
the wider normative role of decisions reached in litigation before the courts.
17 J. Bentham cited in P. Schofield, Jeremy Bentham: Legislator of the world, in M. Freeman, Current Legal
Problems 1998 (1988) at 137.
18 For a discussion see A. R. Amar, America’s Unwritten Constitution (2012).
19 D v NSPCC [1987] AC 171, 232.
9
28. Ombudsmen, it might be said, may play a similar function to the courts. As an
academic in the Netherlands has pointed out, they and their decisions can both
inform and educate.20 But here too there is a problem. Ombudsman and their
decisions play this role against the background of norms established by the courts.
As with arbitration and mediation, it presupposes the framework of law provided
by the justice system.21 ADR rests upon the robust health of the justice system if it
is to play its proper role. Absent the justice system, absent ADR. And that is as true
for ombudsmen as it is for mediation, arbitration and any other form of ADR.
Providing openness and accountability
29. Fourth, it is a clear principle of the justice system that justice must be delivered
publicly and openly in a court so that what is argued and the evidence on which the
court proceeds is known. That members of the public can attend and scrutinise our
courts ensures that justice, whenever it is being carried out, is on trial. As Lord
Atkin recognised justice cannot long survive as a cloistered virtue.22 It must be
public and open, save in a very restricted number of circumstances.
30. Openness also provides for accountability in the application and development of
the law. A court is not a deliberative assembly. Not since the abolition of the Court
of Star Chamber has England and Wales had a court of policy.23 Our courts are
courts of law. This is not to say however that the law does not develop, within
established and principled boundaries, in the light of changes in social and public
policy, as I have explained. The law must evolve in order to remain relevant to
society. The extent to which the courts can and do develop the law in these ways is
necessarily a matter of debate. This must be done in a manner that is acceptable –
debate primarily between the parties but which is conducted openly so that it can
afford the opportunity for wider debate which is facilitated by journalists and court
20 M. Remac, Standards of Ombudsman Assessment: A New Normative Concept?, Utrecht Law Review Volume 9,
Issue 3 (July) 2013, 62 at 73 – 74.
21“Ultimately the collaborative paradigm falters if not grounded upon an absolute”. Professor Jeffrey
Wolfe, Across the Ripple of Time: The Future of Alternative (or, is it ‘Appropriate?’) Dispute Resolution, (2001) 36
Tulsa Law Journal 785 at 794.
22 Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322 at 335, “. . . justice is not a cloistered
virtue: she must be allowed to suffer the scrutiny and respectful…comments of ordinary men”.
23 F. W. Maitland, The Constitutional History of England, (Cambridge) (1909) at 263.
10
reporters making public the issues which are being debated.
31. That wider debate informs and is informed by public views. As is evident, they can
sometimes have a material effect on the decision on the law. Any particular
development by the courts can inform and enable public debate and discussion, and
through that political debate. The outcome of that debate can, of course, be
corrective steps by the government and Parliament. The justice system is not itself
above the law. As such, just like Parliament and the government, the justice system
is accountable through its reasoned decisions and its appellate process.24
32. Accountability goes further. In a democratic state, institutions of governance must
be accountable to its citizens. This form of accountability necessarily differs across
such states. And it differs within states depending on the pillar of government in
question. Here our Parliament is accountable via free and fair general elections now
held every five years. Our Executive is accountable through Parliament and through
the electoral process. The judiciary, in order to preserve judicial independence and
thereby the rule of law, is not directly accountable through elections, but this is not
to say that it is not democratically accountable. It is, in ways which neither
mediation nor arbitration or ombudsman could be accountable. I have already
mentioned one way: open justice. A second direct accountability comes through
direct participation of all citizens in our criminal process. Lay juries and lay
magistrates (justices of the peace) lie at the heart of our criminal justice system.
Making decisions independently of interests
33. Fifth, decisions made by the judiciary are indisputably independent. Each judge, as
you all know, takes an oath that he or she will decide all cases without fear or
favour, affection or ill will. That obligation is buttressed by the requirement that the
judge must avoid any perception of conflict of interest by any material association
with the subject matter in issue. The judge is beholden to no party for payment of
salary or for the provision of further work. The judge is in no sense beholden to a
trade organisation, an industry or a regulatory body. The judge is not therefore at
risk of “capture”. The judge is truly independent.
24 C. Turpin & A. Tomkins, British Government and Constitution, (Cambridge) (2011) at 567.
11
Conclusion
34. These five reasons are some of the main reasons why justice provided through our
judicial system is an essential feature of a democratic state: it is a manifestation of
our commitment to the rule of law; it is not an end in itself, but rather the means by
which the framework of law is clarified, developed and given normative force; it
provides the bedrock upon which all forms of ADR rest. It is thus more than the
public good argued for by Professor Dame Hazel Genn and others. It is in this way
an essential pillar of our democracy.
35. There can therefore in my view be no doubt of the centrality of the justice system
to the modern, democratic state. If the State is to carry out its core duty, of securing
justice, for its citizens through the elaboration, vindication and execution of their
and its rights and duties, it cannot but ensure that the justice system is understood
to be as important as parliament and the executive, and that it is supported
accordingly.
36. Our society rests on three pillars. Should anyone of them fall, we will all fall with it.
I have already made clear the need for radical reform. The question then becomes
how we carry out such reform to the delivery of justice so that it retains that
centrality and its vital role as a pillar of our democracy and does not fall victim to
Adams’ observation. It is to that I now turn. I do so on the assumption that proper
funds will be provided to enable reform to take place.
Reforming the delivery of justice
The principled basis on which to approach reform
37. The proper basis for reform, as a means of securing the better delivery of justice,
must be a principled one. It must be one that is predicated on the understanding
that the justice system is a pillar of democracy; that it succeeds only in so far as it
secures substantive justice and the concomitants to that, which I outlined earlier;
and that it does so consistently with a number of constitutional principles. Those
principles, which I am sure you well know, are, to name a few: the constitutional
right of access to the courts, to equality before the law, to open justice, to timely
and affordable justice, and its delivery by an independent and impartial judiciary.
These principles are the balance upon which proposed reforms must be weighed.
Let me therefore turn to some of the areas in which radical reform is essential.
12
Technology
38. Reform to the court infrastructure is essential. There is no way in which the present
system can continue. Reform is therefore predicated on the better use of modern
technology to provide the basis of a modernised infrastructure.
39. Part of this will be the increased use of technology as a means to access the court
process. However, as reform must proceed in accordance with principle it will
require steps to be taken to ensure that that is accessible. If, for instance, the means
to commence a claim is by issuing it online the technology must not simply have to
work, but it must be available to everyone in a simple enough way that it can easily
be used. We cannot, in the name of increasing access to justice, create a new barrier
to entry. Equally, if we are to move a large number of hearings online we cannot do
so at the cost of open justice. If we undermine open justice we reduce judicial
accountability and, crucially, an aspect of participatory democracy. Technology
must be a means to enhance not undermine.
Procedural reform
40. This leads me to procedural reform. I need not speak about the reforms that have
taken place in the family justice system. Further reform awaits IT. In the criminal
justice system, the steps to be taken are clearly laid out in Sir Brian Leveson’s
report; digitalisation is underway.
41. As to reform of the civil courts, I can well imagine that one not unreasonable
response to any suggestion of further procedural reform from those who practice in
the civil courts would be, as they say in America, “stop already”. Constant tinkering
undermines certainty, increases satellite litigation, and through that increases
litigation cost and delay.
42. There is, however, no alternative to further and more radical reform. That is
because technology-based reforms to administrative processes will necessarily lead
to radical procedural reform. If, for instance, the default position becomes that
claims are issued and served online, procedural rules must be made that underpins
this. But those rules, given sufficient resources and expertise, must enable
procedure properly to be simplified in a large number of areas. Anyone who doubts
this should read Lord Justice Richards’ masterly and magisterial Barnard’s Inn
13
Lecture.25
43. Could the use of technology go further than procedural reform to facilitate online
hearings and e-process? In two recent Reports both the Civil Justice Council and
JUSTICE suggest that that is so. Taken together they propose a new online court
and the introduction of a new class of quasi-judge, a Registrar. This new class of
court officer (in the United States they would describe it as a member of the
Adjunct Judiciary) would be able to carry out case management, to screen claims so
that they were allocated to an appropriate dispute resolution mechanism, amongst
other things. They would therefore have to be experienced, skilled and well-trained.
The review by Sir Michael Briggs will be considering how far such proposals can
properly be taken. For example, it will be necessary to ensure that justice remains
open and that the development and clarification of the law will take account of all
types of case. Reducing the number of claims determined by way of judgment could
reduce the courts’ ability to develop precedent. Such an approach would have
meant no Donoghue v Stephenson.
44. This is an important consideration. I have already referred to the effect of the
curtailment of appeals from arbitration. The more disputes that are and have been
determined by private forms of adjudication, the fewer opportunities the courts
have had to develop commercial law. And the consequence of this is that the law
can ossify. It cannot work itself fine; correct errors; make clear the content of
rights. Its ability to provide a sure framework for the development and carrying out
of social relations, business dealings and so on is undermined. It thus undermines
our democracy.
45. One example of how we can properly effect such reform is the approach that has
recently been taken in the Chancery Division and the Commercial Court. They have
seen the introduction of both a new Financial List and a Shorter and Flexible Trials
Procedure. I should also add that these courts together with the Technology and
Construction Court are also moving fast in the direction of electronic processing.
In all three instances it provides a model for reform.
46. The introduction of the Financial List is of particular importance, as it will provide
a more efficient and economical means to resolve financial disputes. It will thus
help to secure greater access to the courts here. Equally it will provide access to the
25 See http://www.gresham.ac.uk/sites/default/files/25jun15stephenrichards_civillitigation.docx.
14
expertise of specialist High Court judges, thus increasing access to high quality
justice. And as importantly, it will enable the development of the law through
enabling market test cases to be decided for the benefit of all. It is a reform that not
only enhances our ability to implement constitutional principle, but it is one that
enhances our ability to secure the normative value of the law. It is to be strongly
contrasted with the damaging effect of the use of arbitration in other markets to
which I have earlier referred. Perhaps the availability of a test case procedure for
the financial markets will lead to an urgent re-consideration of the test for appeals
from arbitration in other city based markets, particularly the maritime, insurance
and commodities markets, or the provision of a similar facility for important issues
in those markets.
47. The Shorter and Flexible Trials procedure is another example of principled reform.
Our historic approach to process is that it is prescriptive. Directions are made
within the boundaries set by the rules. Other jurisdictions have taken the view that
procedure should contain the option for parties to opt for greater procedural
flexibility. For instance, to agree for their claims to come to trial within a short
period of time, to agree to limit certain procedural obligations, such as the extent to
which disclosure should apply or the length of time available for trial. The aim
remains to secure substantive justice. The parties can, to a certain extent, agree to
reach that goal in different ways that previously permitted. Again, such a
development, through facilitating access to justice, is one that enhances the courts’
ability to act consistently with principle, and secure increased participation through
reducing litigation time and cost.
48. The task for both reform to the court system and the review by Sir Michael Briggs
is to consider how best to structure reform within the principles I have outlined; to
work out how far we can properly use Registrars and how far we can properly
create a multi-door courthouse that both promotes appropriate dispute resolution
whilst ensuring that the court’s adjudicatory function is enhanced rather than
undermined.
Court location
49. Another essential component of reform is the importance of local justice. The
proposals for court closures have, rightly, caused significant concern in many areas,
including Wales. As I have said on other occasions, consideration of such closures
15
can only proceed if we use modern technology to put in place a real alternative that
can produce proper local justice. I need not repeat what I have said on other
occasions, most recently in Cardiff. There is one other aspect to local justice to
which it is necessary to refer.
50. At the core of my description of the centrality of justice is the principle that the
system of justice is one of the three powers of the State. While there can be debate
about the extent to which the police and the prosecution should be organised and
be accountable on a local basis, the same is not true of our system of justice. Not
only would it be contrary to constitutional principle and the principles on which our
system of justice has been organised for many centuries, but independence of all
local interests is essential to maintain the integrity of our system of justice and as
importantly to maintain the integrity of local government and its freedom from
improper influences.
The structure of the courts
51. Our court structure is the product of the 1870s and the 1970s; the former creating
the High Court and Court of Appeal, and the latter creating the Crown Court, and
seeing the present three Divisions of the High Court come into existence through
the creation of the Family Division. More recently we have seen the creation of a
new single Family Court and the consolidation of the county courts into a single
County Court.
52. The overall structure of the civil courts has not however been subject to detailed
scrutiny to ascertain whether it remains appropriate for the 21st Century. In one
sense that this has not happened is remarkable. When the High Court was created it
was never intended that its Divisions would remain as they were. Bar the early
consolidation of the three original common law Divisions to create what is now the
Queen’s Bench Division and the reform of the Probate, Division and Admiralty
Division to create Family Division, they have. The creation of Divisions and the
power to revise them was intended to ensure that the High Court’s structure would
reflect the changing business needs of the courts.
53. That such scrutiny is long overdue is made all the more pertinent given two further
issues. First, since the introduction of the Woolf reforms, and more recently the
implementation of the Jackson and the Briggs reforms to the Chancery Division,
the boundary between the County Court and the High Court’s jurisdiction has
16
become increasingly blurred. Work that would traditionally have been reserved, due
to its complexity and financial value, is now and increasingly becoming and is the
province of the County Court. Secondly, technology. This may now enable us to
create what has been described as an online court for certain types of civil claims.
Less dramatically, although of equally far-reaching consequences, proper use of
information technology should enable us to put in place fully electronic case
management and progression systems. E-filing, e-bundles, e-issuing of claims and
so on should become the norm, as in a significant number of cases, virtual case
management and other procedural hearings.
54. I await the outcome of the review by Sir Michael Briggs, and its recommendations
as to how our civil court structure ought to be reformed in order to best enable it to
deliver justice today. Its recommendations will, of necessity, have to be tested by
reference to constitutional principle just as much as by reference to how, and the
extent to which, they will render the justice system more economical and efficient.
55. It is also necessary to give further consideration to the relationship between the
courts and the tribunals. There can be no doubt about the huge success of the
reforms to our system of tribunal and administrative justice that has been brought
about as a result of the report of Sir Andrew Leggatt. Over the period since that
report was implemented, there has been a gradual coming together of the way in
which the judges in the courts and the judges in the tribunals work. For example, a
significant amount of judicial review work is carried out in the tribunals; the way in
which courts and tribunals deal with cases has been influenced by the respective
practices. This influence will only increase as courts and tribunals share the same
buildings.
Other reforms
56. There are many other radical changes that must be made but time does not permit.
Working together
57. I must therefore turn to a further principle: to emphasise that this is not reform that
can be successfully carried out unless all those interested have a role in carrying
forward the reform.
58. For the criminal justice system to work optimally, interaction between the courts,
prisons, the Crown Prosecution Service and other such bodies needs to run as
17
efficiently as possible. If the courts are to be in a position to deliver timely justice,
cases need to come on at the right time, which requires well-briefed and wellprepared
lawyers to be present in court, witnesses to be there on time and
defendants to be present, at the right time and place. This is the approach that has
underpinned the report of Sir Brian Leveson and will under pin carrying it into
effect.
59. The same is true for both the civil and family justice systems. The courts and the
judiciary are not islands unto themselves. The delivery of timely and effective justice
requires close working between them and a host of external agencies, individuals
and legal representatives.
60. In answering the question how we ensure that we can improve the delivery of
justice we cannot therefore simply focus on the courts and judiciary. Governments
at one time talked about having joined-up policy-making. The sentiment was
undoubtedly correct: if reform is to work as well as it can, it has to be coherent
across the piece. It is no good improving one aspect of a system in order, for
instance, to improve its speed if unreformed elements mean you can never attain
that improvement.
61. The delivery of justice needs to be understood as a requiring a close working
relationship between the courts and judiciary and a number of other institutions
and individuals. Real improvement will come when all aspects of the system can
work together more effectively and efficiently. In the delivery of reform we must
retain the support of the professions and all others engaged in the system.
The anticipated benefit
62. Taken together these reforms will not simply prevent the decline and ultimate decay
of our system of justice but will improve the system’s ability to operate as a pillar of
democracy. That is why I highlight them. In doing so I realise that some may say
that it is all well and good to improve access to justice for businesses; that
improvements more urgently need to be made to improve access for the less welloff.
That is undoubtedly the case: principle requires it of us. Equality before the law
cannot simply be a matter of form. It must be made real. The justice system must
deliver for all within society. That is why the senior judiciary and I are committed to
ensuring that this latest stage of reform is carried out as carefully and in as
considered a way as possible.
18
Conclusion: the centrality of justice
63. I started this lecture with the warning given by one US President of Welsh descent
about the vitality of democracy. I should end therefore with something that has
often been attributed to his some-time friend and rival and another US President of
Welsh descent: Thomas Jefferson. He is believed to have once said that “on matters
of style, swim with the current, on matters of principle, stand like a rock”.
64. The present style, if it could be put that way, is for radical reform. Tomorrow’s
justice system will, if funds are provided for reform, undoubtedly differ in many
ways from the one I knew when I started life as a barrister. How it develops must
be shaped by matters of principle. On this we cannot move. That is the bedrock.
Those principles are: that the justice system is an indispensable pillar of our
democracy; that each of our citizens must be provided with equality before the law
secured by ready access to a fair process before the courts; that the achievement of
substantive justice through adjudication conducted by an independent and impartial
judiciary is the sine qua non of the rule of law and cannot be equated with or reduced
to a mere service akin to that providing by mediation, arbitration or any other form
of alternative dispute resolution process. If we stand by our principles we will shape
our justice system so that it can fulfil its proper role, and ensure that our
commitment to liberal democracy is never at risk of going out of style.
Please note that speeches published on this website reflect the individual judicial officeholder's personal views, unless otherwise stated. If you have any queries please contact
the Judicial Office Communications Team.

THE VIRUS OF PAEDOPHILIA

I have to admit that perhaps coming from a loving and extended family and having a normal happy schooling experience the term paedophilia rarely if ever entered my lexicon of language until perhaps I became a father and laterally with the revelations of the Savile case. At my boys only grammar school we all acknowledged the senior maths teacher was effeminate but as far as I know he never at any time allowed any underlying thoughts to interfere with us or his duties.  How a situation came about in the 1970s in Rotherham where a teacher could indulge his fantasies in measuring the penises of boys in his charge and that abuse remaining secret for 40+ years is beyond the imagination of this adult. Not surprisingly the perpetrator has been struck off.  I wonder just how widespread is the virus of paedophilia?
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Mr Denis Hays:
Professional conduct
panel outcomePanel decision and reasons on behalf of the
Secretary of State for EducationMarch 2017
2ContentsA. Introduction 3
B. Allegations 4
C. Preliminary applications 5
D. Summary of evidence 9
Documents 9
Witnesses 10
E. Decision and reasons 10
Panel’s recommendation to the Secretary of State 21
Decision and reasons on behalf of the Secretary of State 24
3Professional conduct panel decision and recommendations, and decision on
behalf of the Secretary of State

Teacher:	Mr Denis Hays
Teacher ref number:	6311116
Teacher date of birth:	23 February 1945
NCTL case reference:	14641
Date of determination:	21 March 2017
Former employer:	Greasbrough Primary School, Rotherham

A. IntroductionA professional conduct panel (“the panel”) of the National College for Teaching and
Leadership (“the National College”) convened on 20 and 21 March 2017 at 53 to 55 Butts
Road, Earlsdon Park, Coventry CV1 3BH to consider the case of Mr Denis Hays.
The panel members were Ms Mary Speakman (teacher panellist – in the chair), Professor
Roger Woods (lay panellist) and Mr John Matharu (lay panellist).
The legal adviser to the panel was Mr Harry Rasmussen of Eversheds Sutherland
solicitors.
The presenting officer for the National College was Sarah Przybylska of 2 Hare Court,
instructed by Nabarro LLP solicitors.
Mr Denis Hays was not present and was not represented.
The hearing took place in public and was recorded.
4B. AllegationsThe panel considered the allegations set out in the Notice of Proceedings dated 11
October 2016.
It was alleged that Mr Denis Hays was guilty of unacceptable professional conduct and/or
conduct that may bring the profession into disrepute, in that whilst he was working as a
teacher at Greasbrough Primary School ("the School") during the 1970s, he:
1. Failed to maintain appropriate professional boundaries in that:
a. between approximately 1975 and 1977 he asked pupils to attend at his home
for the purpose of taking part in a “child development study” (“the Study”),
namely:
i. Pupil A,
ii. Pupil B,
iii. Pupil C;
b. The Study was not linked to any school, agency, or third party;
c. In relation to Pupil A, then aged approximately 11 years:
i. they attended his home on a monthly basis for approximately two years;
ii. no other adult was present during some of these visits;
iii. he asked Pupil A to undress;
iv. he took measurements of Pupil A whilst he was naked;
v. he measured Pupil A’s penis;
vi. he held Pupil A’s naked penis whilst measuring it;
d. In relation to Pupil B:
i. they attended his home on a monthly basis for approximately two years;
ii. no other adult was present during some of these visits;
iii. he asked Pupil A to undress;
iv. he took measurements of Pupil A whilst he was naked;
v. he measured Pupil A’s penis;
vi. he held Pupil A’s naked penis whilst measuring it;
5
e. In relation to Pupil C:
i. they attended his home on a monthly basis for approximately two years;
ii. no other adult was present during some of these visits;
iii. he asked Pupil A to undress;
iv. he took measurements of Pupil A whilst he was naked;
v. he measured Pupil A’s penis;
vi. he held Pupil A’s naked penis whilst measuring it;
2. His conduct as described at allegation 1 above was sexually motivated.C. Preliminary applicationsProceeding in the absenceThe panel heard an application from the presenting officer that the hearing should
proceed in Mr Hays’ absence.
The panel is satisfied that National College has complied with the service requirements of
paragraph 19.a. to 19.c. of the Teachers’ Disciplinary (England) Regulations 2012, (the
“Regulations”).
The panel is also satisfied that the Notice of Proceedings complies with paragraphs 4.11.
and 4.12. of the Teacher misconduct - Disciplinary procedures for the teaching
profession (the “Procedures”). Additionally, the panel also heard evidence that Mr Hays
has been notified of the change in the constitution of the panel, further to the National
College’s letters to Mr Hays’ representative, dated 3 March 2017 and 7 March 2017. The
presenting officer stated that in the event that the hearing proceeds in the absence of Mr
Hays, an application will be made to request that such letters are included in the hearing
bundle.
The panel has determined to exercise its discretion under paragraph 4.29. of the
Procedures to proceed with the hearing in the absence of Mr Hays.
The panel understands that its discretion to commence a hearing in the absence of the
teacher has to be exercised with the utmost care and caution, and that its discretion is a
severely constrained one.
In making its decision, the panel has noted that the teacher may waive his right to
participate in the hearing. The panel has taken account of the various factors drawn to its
6
attention from the case of R v Jones [2003] 1 AC1. The panel is satisfied that the Notice
of Proceedings was brought to the attention of Mr Hays and that Mr Hays is aware of the
proceedings. The panel noted that Mr Hays, via his professional representative, “Voice”,
has responded to the Notice of Proceedings on 20 October 2016, to confirm that he will
not be in attendance at the hearing. The panel noted that Mr Hays has provided a letter
from his GP, dated 11 March 2016, to explain that he feels unable to attend the hearing
and that he wishes to be represented. The panel considered a letter from Mr Hays’
representative, dated after his GP’s letter, of 22 February 2017, which again notified that
Mr Hays would not be in attendance at the hearing but also that he would not be
represented.
The panel considers that Mr Hays has consistently expressed the view that he does not
wish to attend the hearing. The panel noted from the papers that Mr Hays has the benefit
of representation but has expressed the intention not to be represented at the hearing.
The panel therefore considers that Mr Hays has waived his right to be present at the
hearing in the knowledge of when and where the hearing is taking place. The panel also
noted that Mr Hays has not requested that the hearing be adjourned.
The panel has had regard to the requirement that it is only in rare and exceptional
circumstances that a decision should be taken in favour of the hearing taking place. The
panel felt that there is no indication that an adjournment might result in Mr Hays attending
the hearing at a later date, and noted from Mr Hays’ GP letter which states that “he feels
unable to attend any future hearings including this [hearing]”.
The panel has had regard to the extent of the disadvantage to Mr Hays in not being able
to give his account of events at the hearing, having regard to the nature of the evidence
against him. The panel notes that it has the benefit of a witness statement from Mr Hays,
dated 20 February 2017, and further a letter from Mr Hays’ representative, dated 22
January 2016, which provides the position adopted by Mr Hays in response to the
allegations against him. The panel notes from Mr Hays’ representative’s letter, dated 22
February 2017, that Mr Hays admits allegations 1.a. to 1.e. inclusive, but denies
allegation 2. It is also noted that Mr Hays received the proposed hearing bundle from the
National College and stated that he had no objection to the content of the bundle or had
any additional documents to adduce.
In light of the documentation supplied by Mr Hays, the panel is able to ascertain his lines
of defence. The panel has his evidence addressing mitigation and would be able to take
this into account at the relevant stage should this become necessary.
The panel has noted that Pupil A will be called by the National College to give evidence,
and the panel can test that evidence by questioning Pupil A, considering such points as
are favourable to the teacher, which are available on the evidence. The panel has not
7
identified any significant gaps in the documentary evidence provided to it and should
such gaps arise during the course of the hearing, it may take this into consideration in
determining whether the hearing should be adjourned for such documents to become
available and in considering whether the presenting officer has discharged the burden of
proof.
The panel is also able to exercise vigilance in making its decision, taking into account the
degree of risk of the panel reaching the wrong decision as a result of not having heard
the teacher’s account.
The panel also notes that there is a witness present at the hearing, who is prepared to
give evidence, and that it would be inconvenient and potentially distressing for him to
return again in the case of an adjournment.
The panel has had regard to the seriousness of this case, and the potential
consequences for the teacher and has accepted that fairness to the teacher is of prime
importance. However, it considers that in light of the teacher’s waiver of his right to
appear and taking account of the inconvenience an adjournment would cause to the
witness, on balance, the public interest in this hearing proceeding within a reasonable
time is in favour of this hearing continuing today.Amending the allegationsThe panel considered an application from the presenting officer to amend the allegations,
to correct what is submitted to be a typographical error in the Notice of Proceedings,
dated 11 October 2016.
The presenting officer submitted that allegations 1.d.iii. to 1.d.vi. inclusive, and 1.e.iii to
1.e.vi. inclusive contain typographical errors, in that they mistakenly refer to “Pupil A”
throughout, as opposed to “Pupil B” and “Pupil C” respectively. The presenting officer
requested that the relevant allegations be amended to read as follows:
“d. In relation to Pupil B:
i. they attended his home on a monthly basis for approximately two years;
ii. no other adult was present during some of these visits;
iii he asked Pupil B to undress;
iv. he took measurements of Pupil B whilst he was naked;
v. he measured Pupil B’s penis;
vi. he held Pupil B’s naked penis whilst measuring it;
8
e. In relation to Pupil C:
i. they attended his home on a monthly basis for approximately two years;
ii. no other adult was present during some of these visits;
iii. he asked Pupil C to undress;
iv. he took measurements of Pupil C whilst he was naked;
v. he measured Pupil C’s penis;
vi. he held Pupil C’s naked penis whilst measuring it.”
The panel was referred to paragraph 4.56. of the Procedures, which states that the panel
has the power to amend an allegation at any stage before making its decision, where it is
in the interests of justice to do so. The panel was advised that in considering the interests
of justice it should be mindful of whether there is a risk that prejudice would be caused to
the teacher if the amendments were allowed. If such a risk exists, the panel must
consider whether it would be just to allow the application.
The panel was referred to Article 6 of the European Convention on Human Rights and
the various relevant factors that it incorporates, such as the right to be informed promptly
and in detail, of the nature and cause of the accusation against the teacher; and the right
to have adequate time and the facilities for the preparation of the teacher’s defence.
The panel was advised that, generally, an amendment will cause unfairness or prejudice
to the teacher if it changes the nature of the allegation or makes it more serious than
before, or changes the factual basis upon which the allegation is founded. Therefore, the
panel considered whether the teacher’s case would have been presented differently if the
amendment had been made at an earlier stage.
The panel took the view that the proposed amendments did not change the nature of the
allegations such that they would cause unfairness or prejudice to Mr Hays, or that they
changed the factual basis upon which the allegations are founded. The panel noted that
in his witness statement dated 20 February 2017, Mr Hays has responded to the
allegations as if the above requested amendment to the allegations had been made. It
appears that Mr Hays had spotted the typographical error contained within the Notice of
Proceedings when responding to the allegations, and has responded to what would have
been the correctly drafted allegations. Notwithstanding Mr Hays’ absence, the panel
considered that this clearly illustrates that Mr Hays would not be prejudiced by the
proposed amendment.
The panel therefore determined that the allegations should be amended in the form
requested, as set out above. In reaching this view, the panel was mindful of Mr Hays’
absence from the hearing and maintained extra vigilance when reaching its decision.
9Admissibility of additional documentsThe panel heard an application from the presenting officer for additional documents to be
admitted to the bundle, these being letters from the National College to the teacher’s
representative, dated 3 March 2017 and 7 March 2017, both of which notify the teacher
of a change in the constitution of the panel before the hearing.
The panel considered whether to exercise its discretion under paragraph 4.18. to admit
the aforementioned documents which had not been submitted to the panel and the other
party to the proceedings at least 4 weeks prior to the hearing. The panel noted that it may
admit any evidence, where it is fair to do so, which may reasonably be considered to be
relevant to the case.
The panel decided to admit the documents. The panel noted that the additional
documents do not provide additional evidence or allegations against Mr Hays and also
considered that, given the nature of the additional documents, Mr Hays and/or his
representative would already have received the additional documents. Therefore, the
panel felt that it is clear that Mr Hays is not being disadvantaged by the admission of the
additional documents. In reaching this decision, the panel maintained extra vigilance,
noting Mr Hays’ absence from the hearing.
The panel directed the additional documents be paginated sequentially to allow for
inclusion into the hearing bundle, as follows:
Letter from the National College to the teacher, dated 3 March 2017 – pages 47 to 48
Letter from the National College to the teacher, dated 7 March 2017 – pages 49 to 50D. Summary of evidenceDocumentsIn advance of the hearing, the panel received a bundle of documents which included:
Section 1: Chronology and anonymised pupil list – pages 2 to 3
Section 2: Notice of Proceedings and response – pages 5 to 11
Section 3: NCTL witness statements – pages 13 to 16
Section 4: NCTL documents – pages 18 to 31
Section 5: Teacher documents – pages 33 to 46
In addition, the panel agreed to accept the following:
Letter from the National College to the teacher, dated 3 March 2017 – pages 47 to 48
10
Letter from the National College to the teacher, dated 7 March 2017 – pages 49 to 50
The panel members confirmed that they had read all of the documents in advance of the
hearing.WitnessesThe panel heard oral evidence from Pupil A, on behalf of the National College.E. Decision and reasonsThe panel announced its decision and reasons as follows:
The panel has carefully considered the case before it and has reached a decision.
The panel confirms that it has read all the documents provided in the bundle in advance
of the hearing.
Mr Denis Hays was employed as a teacher at Greasbrough Primary School (the
“School”). During the summer of 1975, he invited two pupils from the School to his home
on the basis that they were to take part in a developmental study on a monthly basis. A
further pupil also joined in attending Mr Hays’ home for this purpose during the following
year.
On 25 March 2015, the School was contacted by the police following an intelligence
report being submitted by Pupil A, who had attended Mr Hays’ home for the purpose of
the developmental study. At the point of submitting the intelligence report, Pupil A was a
police officer. Mr Hays was consequently suspended from his position and an
investigation was commenced. Mr Hays was subsequently interviewed by South
Yorkshire Police on 8 June 2015 and declined to answer police questions in interview. A
safeguarding meeting was held on 22 June 2015, with a further investigative meeting
taking place at the School on 14 July 2015. Mr Hays was subsequently dismissed for
gross misconduct, following a disciplinary hearing on 1 October 2015.
11Findings of factOur findings of fact are as follows:
The panel has found the following particulars of the allegations against you proven, for
these reasons:1. Failed to maintain appropriate professional boundaries in that:
a. between approximately 1975 and 1977 you asked pupils to attend at your
home for the purpose of taking part in a “child development study” (“the
Study”), namely:
i. Pupil A,The panel noted that Mr Hays has admitted this allegation in the response to the Notice
of Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays had
also admitted this allegation in his witness statement, dated 20 February 2017.
The panel also heard evidence from Pupil A that he and Pupils B and C attended Mr
Hays’ home, for the purpose of assisting Mr Hays conduct a child developmental study.
Pupil A stated he and the other boys attended Mr Hays’ home for this purpose
approximately once every month. Pupil A stated that he and Pupil B were asked by Mr
Hays to attend his home on this basis, on their last day of primary school – in the summer
of 1975. Pupil A stated that Pupil C, who was an academic-year younger than Pupils A
and B, was asked to attend the Study on his last day of primary school – in the summer
of 1976.
The panel therefore found this allegation proven.ii. Pupil B,The panel noted that Mr Hays has admitted this allegation in the response to the Notice
of Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays had
also admitted this allegation in his witness statement, dated 20 February 2017.
In his live evidence, Pupil A corroborated Mr Hays’ admission of this allegation.
The panel therefore found this allegation proven.iii. Pupil C,The panel noted that Mr Hays has admitted this allegation in the response to the Notice
of Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays had
also admitted this allegation in his witness statement, dated 20 February 2017.
The panel noted that Pupil A corroborated Mr Hays’ admission of this allegation, in his
live evidence. Pupil A stated that Pupil C commenced attending the Study later than he
12
and Pupil B, albeit that the three boys stopped attending the Study at the same time
(when Pupil A turned 13 or 14).
The panel therefore found this allegation proven.
In his witness statement, dated 20 February 2017, Mr Hays stated that he met with each
of Pupil A, B and C’s parents to seek their permission for the attendance of their children
at the Study. In his live evidence, Pupil A commented that since recently speaking with
his father on this subject, whilst it was agreed by Pupil A’s father that Pupil A could
participate in the Study, Pupil A’s father was not aware that Pupil A was to be “measured”
in the manner alleged, and had he been aware, he would not have authorised his son’s
attendance at the Study.
The panel therefore finds allegation 1.a. proven.b. The Study was not linked to any school, agency, or third party;The panel noted that Mr Hays has admitted this allegation in the response to the Notice
of Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays had
also admitted this allegation in his witness statement, dated 20 February 2017.
The panel noted from Mr Hays’ witness statement, dated 20 February 2017, that he did
not notify or seek any guidance from any academic organisation in respect of the Study.
Mr Hays states that his behaviour in this regard was naïve.
The panel therefore finds this allegation proven.c. In relation to Pupil A, then aged approximately 11 years:
i. they attended your home on a monthly basis for approximately two
years;The panel noted that Mr Hays has admitted this allegation in the response to the Notice
of Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays had
also admitted this allegation in his witness statement, dated 20 February 2017.
In his live evidence, Pupil A corroborated Mr Hays’ admission of this allegation. Pupil A
confirmed that he attended Mr Hays’ home in the manner alleged from shortly after he
left primary school, in around the autumn of 1975, until he reached the age of 13 or 14.
Pupil A commented that as he entered adolescence he felt increasingly uncomfortable in
being examined and measured by Mr Hays in the manner alleged during the Study. In his
live evidence, Pupil A commented that he attended Mr Hays’ home on a monthly basis to
take part in the Study.
The panel therefore finds this allegation to be proven.
13ii. no other adult was present during some of these visits;The panel noted that Mr Hays has admitted this allegation in the response to the Notice
of Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays had
also admitted this allegation in his witness statement, dated 20 February 2017.
In his live evidence, Pupil A corroborated Mr Hays’ admission. He stated that the only
adult he and Pupils B and C saw during the evenings they attended the Study was Mr
Hays’ wife, who they only ever saw very briefly, when she was either leaving Mr Hays’
home as the pupils arrived or when she was arriving back home around the time the
pupils were leaving after the Study sessions.
The panel therefore finds this allegation proven.iii. you asked Pupil A to undress;The panel noted that Mr Hays has admitted this allegation in the response to the Notice
of Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays had
also admitted this allegation in his witness statement, dated 20 February 2017.
This was corroborated by Pupil A during his live evidence. Pupil A confirmed during his
live evidence that Mr Hays asked each of the boys to undress to allow them to be
measured. Pupil A gave a credible account illustrating how all of the boys would be
naked in the same room together with Mr Hays. Pupil A stated that Mr Hays would
conduct his measurements on one of the boys whilst the others undressed, in readiness
for them being measured in turn. The panel noted that Pupil A’s account in this regard
partially conflicted with paragraph 14 of Mr Hays’ witness statement, dated 20 February
2017. Notwithstanding this, the panel found Pupil A to be a particularly reliable witness,
and therefore accepted his evidence on this allegation.
The panel therefore finds this allegation proven.iv. you took measurements of Pupil A whilst he was naked;The panel noted that Mr Hays has admitted this allegation in the response to the Notice
of Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays had
also admitted this allegation in his witness statement, dated 20 February 2017.
This was corroborated by Pupil A when giving his live evidence. Pupil A described how
measurements of each of the boy’s various body parts were taken by Mr Hays during the
Study sessions, once every three months. Pupil A gave credible evidence that this
involved Mr Hays measuring his, Pupil B’s and Pupil C’s head, arms, legs, neck, chest
and penis, whilst the boys were naked. Mr Hays also examined the boys’ testicles.
Pupil A stated that these measurements were taken relatively quickly, with all of the boys’
measurements being completed in around 15 to 20 minutes. Pupil A stated that once the
14
measuring had been completed, he and Pupils B and C would stay at Mr Hays’ house
and socialise for around 90 minutes. Pupil A recalled on occasion watching television
with the boys and Mr Hays, after the measurements had been taken.
The panel therefore found this allegation proven.v. you measured Pupil A’s penis;The panel noted that Mr Hays has admitted this allegation in the response to the Notice
of Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays had
also admitted this allegation in his witness statement, dated 20 February 2017.
Pupil A corroborated Mr Hays’ admission in relation to this allegation. Pupil A gave
credible evidence that during the evenings on which the boys were measured, Mr Hays
measured each boy’s penis, in a non-erect state.
Pupil A commented that as part of the Study, Mr Hays wished to take measurements of
the boys’ erect penises. He stated that whilst Mr Hays placed no pressure on him to
produce an erection, on one occasion Mr Hays measured Pupil A’s erect penis.
The panel therefore finds this allegation proven.vi. you held Pupil A’s naked penis whilst measuring it,The panel noted that Mr Hays has admitted this allegation in the response to the Notice
of Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays had
also admitted this allegation in his witness statement, dated 20 February 2017.
Mr Hays’ admission was corroborated by Pupil A during his live evidence.
The panel therefore finds this allegation proven.d. In relation to Pupil B:
i. they attended your home on a monthly basis for approximately two
years;The panel noted that Mr Hays has admitted this allegation in the response to the Notice
of Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays had
also admitted this allegation in his witness statement, dated 20 February 2017.
Additionally, the panel noted that this allegation was corroborated by Pupil A during his
live evidence. Pupil A stated that he and Pupil B commenced attending the Study
together in around the autumn of 1975. They both attended Mr Hays’ home on a monthly
basis up until Pupil A turned 13 or 14, when their attendance (as well as Pupil C’s
attendance) at the Study sessions ceased.
The panel therefore finds this allegation proven.
15ii. no other adult was present during some of these visits;The panel noted that Mr Hays has admitted this allegation in the response to the Notice
of Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays had
also admitted this allegation in his witness statement, dated 20 February 2017.
Additionally, this allegation was corroborated by Pupil A, during his live evidence, as set
out in respect of allegation 1.c.ii. above.
Accordingly, the panel therefore finds this allegation proven.iii. you asked Pupil B to undress;The panel noted that Mr Hays has admitted this allegation in the response to the Notice
of Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays had
also admitted this allegation in his witness statement, dated 20 February 2017.
In his live evidence before the panel, Pupil A stated that he had been in the same room
as Pupil B when Pupil B undressed on the instruction of Mr Hays. Pupil A gave a credible
account of how each of the pupils would undress in the same room as each other, in the
presence of Mr Hays. Pupil A stated that Mr Hays would conduct his measurements on
one of the boys whilst the others undressed, in readiness for them being measured in
turn. The panel noted that Pupil A’s account in this regard partially conflicted with
paragraph 14 of Mr Hays’ witness statement, dated 20 February 2017. Notwithstanding
this, the panel found Pupil A to be a particularly reliable witness, and therefore accepted
his evidence on this allegation.
The panel therefore finds this allegation proven.iv. you took measurements of Pupil B whilst he was naked;The panel noted that Mr Hays has admitted this allegation in the response to the Notice
of Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays had
also admitted this allegation in his witness statement, dated 20 February 2017.
This was corroborated by Pupil A when giving his live evidence. Pupil A described how
measurements of each of the boy’s various body parts were taken by Mr Hays during the
Study sessions, once every three months. Pupil A gave credible evidence that this
included measuring his, Pupil B’s and Pupil C’s head, arms, legs, neck, chest and penis,
whilst the boys were naked. Mr Hays also examined the boys’ testicles.
Pupil A stated that these measurements were taken relatively quickly, with all of the boys’
measurements being completed in around 15 to 20 minutes. Pupil A stated that once the
measuring had been completed, he and Pupils B and C would stay at Mr Hays’ house
and socialise for around 90 minutes. Pupil A recalled on occasion watching television
with the boys and Mr Hays, after the measurements had been taken.
16
The panel therefore finds this allegation proven.v. you measured Pupil B’s penis;The panel noted that Mr Hays has admitted this allegation in the response to the Notice
of Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays had
also admitted this allegation in his witness statement, dated 20 February 2017.
In his live evidence before the panel, Pupil A stated that he had been in the same room
as Pupil B and C when Pupil B’s penis was measured by Mr Hays. Pupil A gave a
credible account of how he, Pupil B and Pupil C would joke with each other in relation to
the measurements taken by Mr Hays.
The panel therefore finds this allegation proven.vi. you held Pupil B’s naked penis whilst measuring it;The panel noted that Mr Hays has admitted this allegation in the response to the Notice
of Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays had
also admitted this allegation in his witness statement, dated 20 February 2017.
In his live evidence before the panel, Pupil A corroborated Mr Hays’ admission.
The panel therefore finds this allegation proven.e. In relation to Pupil C:
i. they attended your home on a monthly basis for approximately two
years;The panel noted that Mr Hays has admitted this allegation in the response to the Notice
of Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays had
also admitted this allegation in his witness statement, dated 20 February 2017.
On the evidence provided by Pupil A during the hearing, the panel considered that Pupil
C attended Mr Hays’ home for the purpose of the Study approximately once per month,
along with Pupils A and B. Pupil A stated, however, that Pupil C started attending Mr
Hays’ home for this reason after Pupils A and B, and that Pupil C began attending Mr
Hays’ home approximately one year after Pupils A and B. Pupil A confirmed during his
live evidence that he, Pupil B and Pupil C all stopped attending Mr Hays’ home at the
same time, when Pupil A reached the age of 13 or 14.
Notwithstanding that the panel noted that Pupil C may have attended Mr Hays’ home for
a total period of less than two years, it found this allegation proven. The panel found that
Pupil C did attend Mr Hays’ home on a monthly basis for an extended period of time, and
that the wording of the allegation states “approximately” two years. Furthermore, in
reaching its decision, the panel had in mind Mr Hays’ admission of this allegation.
17ii. no other adult was present during some of these visits;The panel noted that Mr Hays has admitted this allegation in the response to the Notice
of Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays had
also admitted this allegation in his witness statement, dated 20 February 2017.
Additionally, this allegation was corroborated by Pupil A, during his live evidence, as set
out in respect of allegation 1.c.ii. above.
Accordingly, the panel therefore finds this allegation proven.iii. you asked Pupil C to undress;The panel noted that Mr Hays has admitted this allegation in the response to the Notice
of Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays had
also admitted this allegation in his witness statement, dated 20 February 2017.
In his live evidence before the panel, Pupil A stated that he had been in the same room
as Pupil C when Pupil C undressed on the instruction of Mr Hays. Pupil A gave a credible
account of how each of the pupils would undress in the same room as each other, in the
presence of Mr Hays. Pupil A stated that Mr Hays would conduct his measurements on
one of the boys whilst the others undressed, in readiness for them being measured in
turn. The panel noted that Pupil A’s account in this regard partially conflicted with
paragraph 14 of Mr Hays’ witness statement, dated 20 February 2017. Notwithstanding
this, the panel found Pupil A to be a particularly reliable witness, and therefore accepted
his evidence on this allegation.
The panel therefore finds this allegation proven.iv. you took measurements of Pupil C whilst he was naked;The panel noted that Mr Hays has admitted this allegation in the response to the Notice
of Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays had
also admitted this allegation in his witness statement, dated 20 February 2017.
This was corroborated by Pupil A when giving his live evidence. Pupil A described how
measurements of each of the boy’s various body parts were taken by Mr Hays at the
Study, once every three months. Pupil A gave credible evidence that this involved Mr
Hays measuring his, Pupil B’s and Pupil C’s head, arms, legs, neck, chest and penis,
whilst the boys were naked. Mr Hays also examined the boys’ testicles.
Pupil A stated that these measurements were taken relatively quickly, with all of the boys’
measurements being completed in around 15 to 20 minutes. Pupil A stated that once the
measuring had been completed, he and Pupils B and C would stay at Mr Hays’ house
and socialise for around 90 minutes. Pupil A recalled on occasion watching television
with the boys and Mr Hays, after the measurements had been taken.
18
The panel therefore finds this allegation proven.v. you measured Pupil C’s penis;The panel noted that Mr Hays has admitted this allegation in the response to the Notice
of Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays had
also admitted this allegation in his witness statement, dated 20 February 2017.
In his live evidence before the panel, Pupil A stated that he had been in the same room
as Pupil B and C when Pupil C’s penis was measured by Mr Hays. Pupil A gave a
credible account of how he, Pupil B and Pupil C would joke with each other in relation to
the measurements taken by Mr Hays.
The panel therefore finds this allegation proven.vi. you held Pupil C’s naked penis whilst measuring it;The panel noted that Mr Hays has admitted this allegation in the response to the Notice
of Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays had
also admitted this allegation in his witness statement, dated 20 February 2017.
The panel therefore finds this allegation proven.
In light of the above, the panel also finds that Mr Hays failed to maintain appropriate
professional boundaries. The panel noted from his witness statement dated 20 February
2017, that Mr Hays admits that his behaviour as set out above, and as admitted, went
beyond acceptable professional boundaries.2. Your conduct as described at allegation 1 above was sexually motivated.The panel noted that Mr Hays has denied this allegation in his response to the Notice of
Proceedings, dated 20 October 2016 and in his witness statement, dated 20 February
2017.
Mr Hays states that in conducting the Study in the manner set out above (and as
admitted) he was motivated by nothing more than a naïve wish to obtain further
qualifications so that he could progress up the teaching pay scales and provide for his
family. Mr Hays, in his witness statement, describes how his then headteacher suggested
that he obtain a degree to increase his chances of promotion, and with this in mind, Mr
Hays decided to undertake a private study into child development, the detail of which Mr
Hays could use for any subsequent course he enrolled upon.
In his witness statement, Mr Hays describes how he did not discuss his private study with
anyone that he worked with, or anyone from any academic institute. Mr Hays describes
how he did not tell the School or the secondary school at which each of the pupils were
attending, that the Study was being undertaken. Mr Hays states that this was not done to
be secretive, but rather the thought to provide such notification never occurred to him.
19
The panel notes that from the documentation submitted on Mr Hays’ behalf that he did
not go on to undertake a further degree course, due to a change in his personal
circumstances alleviating the need for an increased income.
Notwithstanding the absence of Mr Hays at the hearing and the extra vigilance
maintained by the panel in light of this, the panel did not accept Mr Hays’ account that his
actions were not sexually motivated, and were simply naïve.
In reaching its conclusion, the panel was advised to consider whether reasonable
persons would think the actions found proven against Mr Hays could be sexual, this
being the objective test. Notwithstanding that the conduct found against Mr Hays took
place in the 1970s, the panel felt that reasonable persons would consider that Mr Hays’
actions could be sexual. The panel felt that Mr Hays’ repeated measuring and
manipulation of Pupils A, B and C’s genitals had no basis or foundation in academic
study – reflected by the fact that no academic institute was aware of or involved in the
Study. There was no need for the boys to be naked whilst their other body parts were
measured and the panel felt that the reasonable person could only conclude that Mr
Hays’ measuring of a pupil’s erect penis was sexually motivated. The panel accepted
submissions from the presenting officer that Mr Hays only appeared to select young boys
to undertake the Study, and noted that no girls were invited to participate in what was
reportedly a child developmental study.
The panel then considered whether, in all the circumstances of the conduct in the case,
Mr Hays’ purpose behind such actions was sexual, this being the subjective test. On the
balance of probabilities, the panel found that this subjective test was satisfied.
The panel noted that Mr Hays had waited until each of the pupils participating in the
Study had left the school at which he taught, and that Mr Hays did not request that the
Study be supervised by other adults. Mr Hays did not seek to cross-reference the work
undertaken during the Study with other professionals, and nor did Mr Hays ultimately go
on to use the information gained during the Study for any means to progress his career.
Pupil A gave evidence indicating that his father was not given a full account of the Study,
and he confirmed that his father would not have allowed Pupil A to attend the Study had
he known of the measurements being taken.
The panel considers that, on balance, Mr Hays was intentionally trying to keep a true
account of the Study from others in the knowledge that the Study was inappropriate. The
panel is satisfied that Mr Hays’ motivation for initiating and undertaking the Study was, at
least in part, sexual.
The panel therefore finds this allegation proven.Findings as to unacceptable professional conduct and/or conduct that
may bring the profession into disreputeHaving found each of the allegations to have been proven, the panel has gone on to
consider whether the facts of those proven allegations amount to unacceptable
professional conduct and/or conduct that may bring the profession into disrepute.
20
In doing so, the panel has had regard to the document Teacher misconduct: The
prohibition of teachers, which the panel refers to as “the Advice”.
The panel is satisfied that the conduct of Mr Hays in relation to the facts found proven,
involved breaches of the Teachers’ Standards. The panel considers that by reference to
Part Two, Mr Hays is in breach of the following standards: Teachers uphold public trust in the profession and maintain high standards of
ethics and behaviour, within and outside school, by:o treating pupils with dignity, building relationships rooted in mutual respect, and
at all times observing proper boundaries appropriate to a teacher’s
professional position;o having regard for the need to safeguard pupils’ well-being, in accordance with
statutory provisions; ando showing respect for the rights of others.
With regard to showing respect for the rights of others, the panel considered that Mr
Hays’ conduct in measuring and holding each boy’s genitals represented a failure to
appreciate their rights as individuals to be free from such molestation.
The panel is satisfied that the conduct of Mr Hays fell significantly short of the standards
expected of the profession.
The panel has also considered whether Mr Hays’ conduct displayed behaviours
associated with any of the offences listed on pages 8 and 9 of the Advice. The panel has
found that the offence of sexual activity is relevant. The panel found that Mr Hays’
behaviour in measuring and holding the boys’ genitals without convincing evidence to the
contrary, could clearly be associated with an offence of sexual activity. The Advice
indicates that where behaviours associated with an offence of sexual activity exist, a
panel is likely to conclude that an individual’s conduct would amount to unacceptable
professional conduct.
The panel notes that the allegations took place outside of the education setting. The
panel did not find, on the evidence, that the allegations found proven affected the manner
in which Mr Hays fulfils his teaching role. In this regard, it was noted that Pupil A, during
his live evidence, found Mr Hays to be a good teacher whom he respected. However,
the panel determined that the behaviour found proven against Mr Hays clearly may lead
to pupils being exposed to or influenced by such behaviour in a harmful way. The panel
accepted submissions from the presenting officer that Mr Hays targeted boys who had
just left the primary school at which he taught. Pupils A, B and C were each asked by Mr
Hays to attend the Study on their final day of primary school. In light of this, the panel
considered that there was clear potential for Mr Hays to target boys whom he taught at
the School.
21
Accordingly, the panel is satisfied that Mr Hays is guilty of unacceptable professional
conduct.
The panel has taken into account how the teaching profession is viewed by others and
considered the influence that teachers may have on pupils, parents and others in the
community. The panel has taken account of the uniquely influential role that teachers can
hold in pupils’ lives and that pupils must be able to view teachers as role models in the
way they behave. The panel considered that the misconduct found against Mr Hays is
serious, and that the conduct displayed would have a negative impact on Mr Hays’ status
as a teacher, and would damage the public perception of the profession.
The panel therefore finds that Mr Hays’ actions constitute conduct that may bring the
profession into disrepute.
Having found the facts of the allegations against Mr Hays proven, the panel further finds
that Mr Hays’ conduct amounts to both unacceptable professional conduct and conduct
that may bring the profession into disrepute.Panel’s recommendation to the Secretary of StateGiven the panel’s findings in respect of unacceptable professional conduct and conduct
that may bring the profession into disrepute, it is necessary for the panel to go on to
consider whether it would be appropriate to recommend the imposition of a prohibition
order by the Secretary of State.
In considering whether to recommend to the Secretary of State that a prohibition order
should be made, the panel has considered whether it is an appropriate and proportionate
measure, and whether it is in the public interest to do so. The panel understands that
prohibition orders should not be given in order to be punitive, or to show that blame has
been apportioned, although they are likely to have punitive effect.
The panel has considered the particular public interest considerations set out in the
Advice and having done so has found a number of them to be relevant in this case,
namely: the protection of pupils and the protection of other members of the public; the
maintenance of public confidence in the profession; declaring and upholding proper
standards of conduct; and the interest of retaining the teacher in the profession.
In light of the panel’s findings against Mr Hays, which involved the systematic and
repeated measurement and handling of Pupils A, B and C’s genitals, there is a strong
public interest consideration in respect of the protection of pupils and other members of
the public. The findings against Mr Hays are serious, and indicate that Mr Hays’ sexually
motivated behaviour was targeted at young boys who he had, up until very shortly before
their involvement in the Study, previously taught. The panel acknowledged that, due to
his age and the unlikelihood of Mr Hays returning to teaching, there is a reduced risk of
harm to pupils and protection of the public. Nevertheless, the panel felt that in the event
22
that Mr Hays had the opportunity to teach again he could pose a risk to pupils of his and
other schools.
The panel considers that public confidence in the profession could be seriously
weakened if conduct such as that found against Mr Hays were not treated with the
utmost seriousness when regulating the conduct of the profession. The panel felt that the
public should, quite rightly, expect that teachers could not permissibly demonstrate the
type of conduct found proven against Mr Hays, and that the regulator should be seen to
be treating such conduct with the utmost seriousness.
Additionally, the panel considered that a strong public interest consideration in declaring
proper standards of conduct in the profession was also present, as the conduct found
against Mr Hays was clearly outside that which could reasonably be tolerated by the
profession.
The panel considered the public interest consideration in retaining Mr Hays in the
profession, since, as per the letter from Mr Hays’ representative, dated 22 January 2016,
Mr Hays has reportedly taught at the School for 46 years without any other complaint.
The panel accepted this and felt that Mr Hays is clearly an experienced educator. The
panel also felt, however, that Mr Hays has shown a limited understanding of the
implications of his behaviour – merely describing his admitted conduct as naïve and
regrettable. Additionally, the panel has seen no references or statements from third
parties attesting to the abilities of Mr Hays as a teacher.
In view of the clear public interest considerations that were present, the panel considered
carefully whether or not it would be proportionate to impose a prohibition order taking into
account the effect that this would have on Mr Hays.
In carrying out the balancing exercise the panel has considered the public interest
considerations both in favour of and against prohibition as well as the interests of Mr
Hays. The panel took further account of the Advice, which suggests that a prohibition
order may be appropriate if certain behaviours of a teacher have been proven. In the list
of such behaviours, the panel considered the following to be relevant in this case: serious departure from the personal and professional conduct elements of the
Teachers’ Standards; misconduct seriously affecting the education and/or well-being of pupils, and
particularly where there is a continuing risk; abuse of position or trust (particularly involving vulnerable pupils) or violation of the
rights of pupils; sexual misconduct, e.g. involving actions that were sexually motivated or of a
sexual nature and/or that use or exploit the trust, knowledge or influence derived
from the individual’s professional position;
23
Notwithstanding that there were behaviours that would point to a prohibition order being
appropriate, the panel went on to consider whether or not there were sufficient mitigating
factors to militate against a prohibition order being an appropriate and proportionate
measure to impose, particularly taking into account the nature and severity of the
behaviour in this case.
The panel considers that Mr Hays’ actions were deliberate and that Mr Hays was not
acting under duress. The panel gave consideration to Mr Hays’ submissions that, save
for this matter, he had undertaken a long career at the School – which exceeded 46
years, and has received no other complaints. Notwithstanding this, the panel found it
noteworthy that despite Mr Hays’ long-standing period of working at the School without
complaint, he has presented no character references from colleagues or third parties,
supporting his ability as a teacher or his good character.
The panel first considered whether it would be proportionate to conclude this case with
no recommendation of prohibition, considering whether the publication of the findings
made by the panel is sufficient.
The panel is of the view that in applying the standard of the ordinary intelligent citizen, it
would be inappropriate to recommend that no prohibition order be imposed. The panel
considered that merely recommending the publication of adverse findings against Mr
Hays would unacceptably compromise the public interest considerations present in this
case. This is notwithstanding the severity of the consequences for Mr Hays when faced
with prohibition. The panel felt that in meeting the public interest considerations relevant
to this matter, it was necessary, proportionate and appropriate to recommend that a
prohibition order be made against Mr Hays.
The panel has decided that the public interest considerations outweigh the interests of Mr
Hays in this case. The panel felt that the seriousness of the conduct found against Mr
Hays along with the limited mitigation offered in his support, was a significant factor in
forming that opinion. Accordingly, the panel makes a recommendation to the Secretary of
State that a prohibition order should be imposed with immediate effect.
The panel went on to consider whether or not it would be appropriate to decide to
recommend that a review period of the order should be considered. The panel was
mindful that the Advice states that a prohibition order applies for life, but there may be
circumstances in any given case that may make it appropriate to allow a teacher to apply
to have the prohibition order reviewed after a specified period of time that may not be
less than 2 years.
The Advice indicates that there are behaviours that, if proven, would militate against a
review period being recommended. One such behaviour is serious sexual misconduct,
for example, where the act was sexually motivated and resulted in or had the potential to
result in, harm to a person or persons, particularly where the individual has used their
professional position to influence or exploit a person or persons.
24
The panel considers that Mr Hays’ proven conduct was sexually motivated, for the
reasons set out above. It considers that his actions had the potential to harm the pupils
involved in the Study. The panel also felt from Pupil A’s live evidence, that Mr Hays relied
upon his status as a respected and trusted teacher in order to have the boys participate
in the study; it was noted that Pupil A had felt keen to please Mr Hays. The panel
therefore felt that Mr Hays had exploited his position in conducting his sexually motivated
behaviour.
The panel does not consider that Mr Hays has shown any real insight into his behaviour.
He does not appear to have acknowledged the potential impact that his behaviour could
have had on the pupils involved in the Study, but rather simply describes his conduct as
naïve. In a letter from Mr Hays’ representative to the National College, dated 22 January
2016, it is said that Mr Hays had reflected on his experience and learned where he went
wrong. The letter goes on to state that Mr Hays should have protected himself and the
pupils by having another adult present. The panel considers that Mr Hays does not grasp
the seriousness of his conduct, its potential impact on the pupils involved, or its negative
impact upon the reputation of the profession, which, in any event would not be
ameliorated merely by the presence of another adult.
The panel felt the findings indicated a situation in which a review period would not be
appropriate and as such decided that it would be proportionate in all the circumstances
for the prohibition order to be recommended without provisions for a review period.Decision and reasons on behalf of the Secretary of StateI have given very careful consideration to this case and to the recommendation made by
the panel in respect of both sanction and review.
In considering the case I have also taken into consideration the advice that is published
by the Secretary of State concerning the prohibition of teachers.
I have also had due regard to the fact that in this case the teacher has admitted the
allegations. I have also balanced the historic nature of these allegations with the
seriousness of the behaviours.
In this case the panel has found that Mr Hays is in breach of the following standards: Teachers uphold public trust in the profession and maintain high standards of
ethics and behaviour, within and outside school, by:o treating pupils with dignity, building relationships rooted in mutual respect, and
at all times observing proper boundaries appropriate to a teacher’s
professional position;o having regard for the need to safeguard pupils’ well-being, in accordance with
statutory provisions; and
25o showing respect for the rights of others.
With regard to showing respect for the rights of others, the panel considered that Mr
Hays’ conduct in measuring and holding each boy’s genitals represented a failure to
appreciate their rights as individuals to be free from such molestation.
The panel is satisfied that the conduct of Mr Hays fell significantly short of the standards
expected of the profession.
The panel has also considered whether Mr Hays’ conduct displayed behaviours
associated with any of the offences listed on pages 8 and 9 of the Advice. The panel has
found that the offence of sexual activity is relevant. The panel found that Mr Hays’
behaviour in measuring and holding the boys’ genitals without convincing evidence to the
contrary, could clearly be associated with an offence of sexual activity. The Advice
indicates that where behaviours associated with an offence of sexual activity exist, a
panel is likely to conclude that an individual’s conduct would amount to unacceptable
professional conduct.
The panel in this case has found both unacceptable professional conduct and conduct
that may bring the profession into disrepute. Having found that the panel has
recommended to me that Mr Hays should be prohibited from teaching. The panel
considered the following to be relevant in this case: serious departure from the personal and professional conduct elements of the
Teachers’ Standards; misconduct seriously affecting the education and/or well-being of pupils, and
particularly where there is a continuing risk; abuse of position or trust (particularly involving vulnerable pupils) or violation of the
rights of pupils; sexual misconduct, e.g. involving actions that were sexually motivated or of a
sexual nature and/or that use or exploit the trust, knowledge or influence derived
from the individual’s professional position.
In considering whether or not to impose a prohibition order on Mr Hays I have weighed
the various elements of the public interest alongside the interests of the teacher. I have
also recognised that a prohibition order should not be imposed as a punitive measure
even though it may have a punitive effect.
In considering whether to impose a prohibition order I have considered the option that a
publicly declared finding of unacceptable professional conduct or conduct that may bring
the profession into disrepute may, in some cases, be a proportionate outcome to a case.
In this case I have also had to consider the fact that these allegations relate to
behaviours that are historic. Nonetheless I have had to also take into account the very
26
serious nature of the behaviours. The panel state that “Mr Hays had exploited his position
in conducting his sexually motivated behaviour.”
For these reasons I am accepting the recommendation of the panel and am imposing a
prohibition order on Mr Hays. In my judgement and having weighed all the issues and
considered the published advice I consider that to be proportionate and in the public
interest.
I have gone on to consider the matter of a review period. In considering this I have noted
the panel’s comments on the degree of insight and remorse shown by Mr Hays. The
panel are clear that Mr Hays has shown only limited insight.
I have taken particular account of the panel’s comment that “Mr Hays does not grasp the
seriousness of his conduct, its potential impact on the pupils involved, or its negative
impact upon the reputation of the profession, which, in any event would not be
ameliorated merely by the presence of another adult.”
In my view it is therefore proportionate and in the public interest that the prohibition order
should be imposed with no opportunity for review.This means that Mr Denis Hays is prohibited from teaching indefinitely and cannot
teach in any school, sixth form college, relevant youth accommodation or
children’s home in England. Furthermore, in view of the seriousness of the allegations
found proved against him, I have decided that Mr Denis Hays shall not be entitled to
apply for restoration of his eligibility to teach.
This order takes effect from the date on which it is served on the teacher.
Mr Denis Hays has a right of appeal to the Queen’s Bench Division of the High Court
within 28 days from the date he is given notice of this order.Decision maker: Alan Meyrick
Date: 23 March 2017This decision is taken by the decision maker named above on behalf of the Secretary of
State.