Mr Shaun Devlin

Profession: Social worker

Registration Number: SW24627

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 11/12/2018 End: 17:00 11/12/2018

Location: Health and Care Professions Tribunal Service (HCPTS), 405 Kennington Road

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

On 16 February 2018, at North Tyneside Magistrates' Court you were convicted of four counts of:

1. Making indecent photographs or pseudo photograph of child contrary to sections 1(1)(a) and 6 of the Protection of Children Act 1978.

2. By reason of your conviction as set out at paragraph 1 your fitness to practise is impaired.

Finding

Preliminary Matters

Service

1. The Panel has been convened to undertake the final hearing of the HCPC’s allegation that the fitness to practise of the Registrant, Mr Shaun Devlin, is impaired by reason of a conviction.

2. The Registrant has neither attended the hearing nor been represented at it.

3. The Panel was satisfied that the notice of hearing was sent by both post and email to the Registrant on 6 September 2018. The letter sent by post was sent to the address provided by the Registrant to the HCPC for registration purposes and the Panel was satisfied that this constituted good service of the notice of hearing.

Proceeding in the Absence of the Registrant

4. On behalf of the HCPC, Ms Manning-Rees invited the Panel to proceed with the hearing in the absence of the Registrant. An email from the Registrant dated 30 October 2018, referencing today’s hearing, stated that he would not be attending in person and that he would not be represented. The Registrant did not request an adjournment, nor did he indicate a wish to be represented in these proceedings.

5. The Panel accepted the advice it received from the Legal Assessor concerning the approach the Panel should take when making its decision on this issue, including the guidance as to the factors it should consider in the cases of R v Jones (Anthony) [2004] 1AC 1HL and GMC v Adeogba and GMC v Visvardis [2016] EWCA Civ 162. The Panel also heeded the advice contained in the HCPTS Practice Note “Proceeding in the Absence of a Registrant”. Applying that guidance, the Panel was careful to remember that its discretion must be exercised with the utmost care and caution and with the fairness of the hearing at the forefront of its mind.

6. Having carefully considered the matter, the Panel concluded that the Registrant had voluntarily waived his right to attend and determined that the hearing should proceed in the Registrant’s absence. In exercising its discretion as to whether to proceed, the Panel took into account that:

• the Registrant has stated he will not attend the hearing or be represented and has submitted a written statement.

• there has been no application by the Registrant for an adjournment of his final hearing and no suggestion that the Registrant would be likely to attend on a future date if the hearing did not proceed today.

• the Registrant sent an email to the HCPC dated 19 March 2018 in which he stated, “I agree that my registration should continue to be suspended and I will not be undertaking any future employment within social work. I will be making arrangements to send my registration card back to yourselves.” The Panel inferred from this that the Registrant no longer wished to maintain his HCPC registration and would be unlikely to attend on a future date.

• there is a public interest in dealing with cases such as this with reasonable expedition.

7. The Panel accepted that the Registrant may be disadvantaged to some degree by his absence but concluded that the clear public interest in the case proceeding outweighed any disadvantage arising from the Registrant’s absence.


Background

8. The Registrant had been employed as a Social Worker by Durham County Council (Durham CC) since 2002. On 24 May 2017, Durham CC was advised by Northumbria Police that the Registrant was interviewed and admitted to accessing the “dark web” to access indecent images of children, which he stated he had done on a regular basis. It is said that he did this at his home address and via his mobile phone; he did not use any Durham CC equipment to view such images. The Registrant was subsequently prosecuted for, and convicted of, criminal offences.

9. When the Registrant appeared at the North Tyneside Magistrates’ Court on 16 February 2018, he pleaded guilty. On 16 March 2018, the Registrant was sentenced, for each of four charges, to a Community Order for three years, with the sentences to run concurrently, and was made the subject of an electronically monitored curfew for six months. He was also made the subject of a Sexual Harm Prevention Order for five years.

10. From the remarks of the sentencing judge in the Crown Court it is clear that the images were not only still images but also films, of which a number were Category A, the most serious level of image. The judge described a specifically aggravating factor to be the fact that the children were very young, between three and eight years old and their obvious vulnerability. It is also apparent from the remarks of the sentencing judge that the Registrant had been accessing the material over a lengthy period of time, between 2014 – 2017.

11. The Panel received a bundle of documents from the HCPC, comprising a Case Summary, the Notice of Hearing and Exhibits which ran to 35 pages. The Registrant had submitted a further written statement on 30 October 2018 for the purposes of this hearing.


Decision on Facts and Grounds

12. The Panel heard and accepted the advice of the Legal Assessor. The Panel has been provided with a copy of a Certificate of Conviction from the Crown Court dated 29 March 2018, and it has also been provided with a certified copy of the transcript of the sentencing hearing on 16 March 2018. On the basis of these documents, which the Panel determined to be reliable evidence of the convictions, the Panel finds that the HCPC has discharged the burden of proving that the convictions were recorded against the Registrant. This has not been disputed by the Registrant; he has, in fact, communicated with the HCPC, referencing his conviction. The Panel therefore found the facts of the charges proved.

13. No separate consideration arises in relation to the ground as it is the fact of the conviction.


Decision on Impairment

14. The Panel has taken into account the HCPTS Practice Notes “Conviction and Caution Allegations” and “Finding that Fitness to Practise is ‘Impaired’”. It also heard and accepted the advice of the Legal Assessor.

15. The Panel’s task is to determine whether the Registrant’s fitness to practise is impaired, based upon the nature, circumstances and gravity of the offences concerned. The Panel recognised that there is no burden or standard of proof at this stage and that this is a matter for the Panel’s independent judgment. There is no statutory definition of fitness to practise; the HCPC, however, has defined fitness to practise as a registrant’s suitability to remain on the Register without restriction. The Panel’s duty is not only to protect service users but also to maintain public confidence in the profession and the regulatory process, which includes the declaring and upholding of proper standards of conduct and behaviour.

16. Although panels cannot re-try criminal cases, they may have regard to whether a Registrant pleaded guilty to the offence and, if so, at what stage in the proceedings. A guilty plea entered at the first reasonable opportunity is indicative of a greater insight on the part of a registrant than one entered at the last moment.

17. Whether fitness to practise is impaired has to be assessed at today’s date. The Panel’s task is not to “punish for past misdoings”, but it does need to take account of past acts or omissions in determining whether the Registrant’s fitness to practise is impaired. As required, the Panel considered the matter from the perspective of both the personal and public component.

18. So far as the personal component is concerned, the Panel acknowledged that the hard drive and mobile phone on which the images were found were personal items and had no connection with the Registrant’s employment. The sentencing judge described the Registrant as being remorseful, appreciating the seriousness of his actions and having insight into the suffering that those images of sexual abuse reflect. The Panel, however, agreed with the sentencing judge’s comment that the offences were very serious.

19. The Panel concluded that the offences are inherently serious; there were a significant number of both still and moving images; some were of the most serious category; and, given the period during which the images were accessed, reflected a sustained and determined course of offending. The Panel took into account the sentencing judge’s comment that the Registrant had pleaded guilty at the first opportunity, has voluntarily sought help from Stop It Now and has taken steps to address his offending behaviour. The Panel also bore in mind the Registrant’s engagement in the HCPC’s fitness to practise process, and the account given by the Registrant of how he views his offending in the context of his professional work and the reputation of his profession. The Registrant stated, “I acknowledge the harm done to the reputation of my profession & I am truly sorry about that. If in my recovery & undertaking of community punishment order I can help other offenders appreciate the level of harm & abuse that involvement in the dark side of the internet can cause then maybe some good may arise from my life.” This leads the Panel to conclude that he has demonstrated some insight. The Panel bore in mind, however, the advice it received that insight and remediation demonstrated by a registrant in such a serious case as this, could carry less weight.

20. The Registrant has informed the HCPC that, as part of his Community Order, he has continued with his counselling and his engagement with the Lucy Faithfull Foundation. He also informed the HCPC that he no longer has an internet connection at home, which is part of a strategy towards his recovery but there is very limited information before the Panel about what progress the Registrant has made in the 9 months since he was sentenced to address his offending behaviour. In these circumstances the Panel is not able to conclude that there is at the present time anything other than a risk that the Registrant would repeat behaviour of the sort that resulted in the convictions. For these reasons, the Panel has determined that his fitness to practise is currently impaired upon consideration of the personal component.

21. So far as the public component is concerned, the Panel has made the following findings. The risk of repetition necessarily represents a risk of harm to the public. The Registrant was convicted of very serious offences. Social workers interact with members of the public, including children, when they are acutely vulnerable. Given the nature of his convictions, the Panel cannot be confident that service users would not be at risk of harm from him. A core duty of a social worker is to protect vulnerable service users from abuse, rather than support the perpetration of such abuse. The Panel is also satisfied that fair-minded members of the public would be dismayed to know that they or their children could be under the care of a social worker convicted of these offences who was practising without restriction. Furthermore, the Registrant is still subject to a Community Order, and is subject to a Sexual Harm Prevention Order for several years to come. To permit the Registrant to return to practise without restriction, with these elements of his sentence unexpired, would seriously undermine public confidence in the profession and the regulation of it. The Registrant’s convictions have inevitably brought the Social Worker profession into disrepute and the Panel would be failing to declare and uphold proper professional standards if it did not mark the matter with a finding of current impairment of fitness to practise. For these reasons the Panel has also concluded that the Registrant’s fitness to practise is currently impaired upon consideration of the public component.

22. The conclusion of the Panel, that the Registrant’s current fitness to practise is impaired upon consideration of both personal and public components, has the consequence that the Panel must consider the issue of sanction.


Decision on Sanction 

23. Ms Manning-Rees addressed the Panel in relation to sanction. She made submissions on the proper approach to the imposition of a sanction and urged the Panel to have regard to the HCPC’s Indicative Sanctions Policy.

24. Having accepted the advice of the Legal Assessor, the Panel approached its decision on sanction by accepting that a sanction is not to be imposed to punish a registrant against whom a finding has been made. A sanction is only to be imposed if it is necessary to protect the public from the risk of harm or required to maintain a proper degree of confidence in the profession and the regulation of it. As the finding that an allegation is well founded does not automatically require the imposition of a sanction, the first question to be addressed is whether the finding in this case requires the imposition of a sanction. If it does, then the available sanctions must be considered in an ascending order of seriousness until reaching one that sufficiently addresses the issues of public protection and maintains confidence. As the finding in the present case is a conviction allegation, the full sanction range up to, and including, striking-off is available. The Panel reminded itself of its duty to act proportionately.

25. The Legal Assessor also advised the Panel that where a registrant, who has been convicted of a serious criminal offence, is still serving a sentence at the time the matter is considered by a panel, normally the panel should not permit the registrant to resume unrestricted practice until that sentence has been satisfactorily completed.

26. The Panel began its consideration by identifying the aggravating and mitigating factors. The aggravating factors are those already mentioned: the very serious nature of the offending, the grave nature of the category of images involved and the lengthy period over which the behaviour was carried out. In the judgement of the Panel, the mitigating factors were the fact that the Registrant admitted the offences and demonstrated some insight; that he was remorseful and has sought professional help with regard to his behaviour.

27. The Panel took into account that the Registrant is still the subject of the concurrent three-year Community Order and will remain so until March 2021. He is also the subject of a five-year Sexual Harm Prevention Order, which will be in place until 2023.

28. The convictions and the behaviour upon which they were based are far too serious to result in no further action being taken. Mediation is not appropriate because the Registrant’s failings were neither minor nor isolated. It follows that a sanction is required. A Caution Order would neither protect the public from the risk of harm nor would it reflect the gravity of the matter. The Panel was also satisfied that a Conditions of Practice Order was not appropriate. It would not sufficiently reflect the seriousness of the Registrant’s offending, no workable conditions could be imposed and, in any event, the behaviour resulting in the convictions in this case took place outside of the workplace.

29. The Panel next considered whether the appropriate sanction should be one of suspension. A Suspension Order would protect the public for the duration of the order. However, the Panel is satisfied that, irrespective of the mitigation, the convictions are such that suspension, even for the maximum period of one year, would be insufficient to maintain public confidence or professional standards. In addition, as has already been explained, the Court Orders imposed on the Registrant as a result of his sentence will run for three and five years, and the Panel has concluded that his continued registration is incompatible with that sentence and the Court Orders.

30. Balancing all of these factors and after taking into account all the evidence before it in this case, the Panel determined that the appropriate and proportionate sanction is that of a Striking Off Order. Having regard to the matters it identified, including the deliberate and sustained course of conduct and, in particular, the effect of the Registrant’s convictions bringing the profession into disrepute by adversely affecting the public’s view of how a social worker should conduct himself, the Panel concluded that nothing less would be sufficient in this case. The Panel was clear in its view that the Registrant’s conduct and his subsequent conviction are incompatible with his remaining on the Register.

Order

The Registrar is directed to strike the name of Mr Shaun Devlin from the Register on the date this Order comes into effect.

Notes

Interim Order

1. The Panel heard an application from Ms Manning-Rees to cover the appeal period by imposing an 18 month Interim Suspension Order on the Registrant’s registration. She submitted that such an order is necessary to protect the public and is otherwise in the public interest.

2. The Panel heard and accepted the advice of the Legal Assessor. It had careful regard to Paragraphs 51-54 of the HCPC “Indicative Sanctions Policy”. The Panel also had careful regard to a document produced by the HCPC entitled “Learning points on the use of interim orders”. This makes clear that registrants should be made aware of the potential for an interim order to be imposed on their registration after a panel has made a substantive order and should be given an opportunity to make representations in respect of an interim order.

3. The Panel noted that the Registrant had been informed by the Notice of Hearing letter dated 6 September 2018 that if this Panel found proved the allegation against him and imposed a Conditions of Practice Order, a Suspension Order or a Striking Off Order, the HCPC may make an application to the Panel to impose an interim order to cover any appeal period. For the reasons set out in its earlier decision to commence the hearing in the absence of the Registrant, the Panel determined that it would also be fair, proportionate and in the interests of justice to consider Ms Manning-Rees’ application.

4. The Panel recognised that its power to impose an interim order is discretionary and that the imposition of such an order is not an automatic outcome of fitness to practise proceedings in which a Striking Off Order has been imposed, and that the Panel must take into consideration the impact of such an order on the Registrant. The Panel was, however, mindful of its findings in relation to the seriousness of this case and the risk of repetition.

5. The Panel decided to impose an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001. The Panel was satisfied that an Interim Suspension Order is necessary for the protection of the public and is otherwise in the public interest to maintain confidence in this regulatory process. The Panel has had regard to the seriousness of the facts found proved and the full reasons set out in its decision for the substantive order in reaching the decision to impose an interim order. In the circumstances, it also considered that public confidence in the profession and the regulatory process would be seriously undermined were the Registrant allowed to remain in practice during the appeal period.

6. The period of this Interim Suspension Order is for 18 months to allow for the possibility of an appeal to be made and determined.

7. If no appeal is made, then the Interim Suspension Order will be replaced by the Striking Off Order 28 days after the Registrant is sent the decision of this hearing in writing.

8. That concludes this determination.



Hearing History

History of Hearings for Mr Shaun Devlin

Date Panel Hearing type Outcomes / Status
11/12/2018 Conduct and Competence Committee Final Hearing Struck off