England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		31 October 2008

1. MR JUSTICE COLLINS: This is an appeal by the Secretary of State against the decision of the Care Standards Tribunal dated 20 May 2008, whereby it allowed the respondent's appeal against a decision to place him on what is known as "List 99" under section 142 of the Education Act 2002. That section provides, under the heading "Prohibition from teaching, etc", that the Secretary of State may direct that a person may not act as a teacher or may only act as a teacher subject to compliance with conditions which are specified in a direction. Section 142(2) extends to providing education at effectively any school or further education institution.
2. The grounds upon which a prohibition direction can be given are set out in section 142(4). It is material to note that it provides:

"A direction under this section may be given in respect of a person only—

...

(b) on the grounds that the person is unsuitable to work with children,

(c) on grounds relating to the person's misconduct.

..."

3. The distinction between those two is of some importance in the context of this case. A direction based on unsuitability is much more serious than that relating to misconduct. Unsuitability means that the individual is precluded from teaching for a period of at least ten years, as I understand it, whereas misconduct means that at any time the individual can apply for the matter to be reconsidered if there has been a change of circumstances or if there is fresh material which was not taken into account by the Secretary of State when he made the original direction.
4. Rights of appeal are given by section 144. An appeal goes to the Tribunal established under section 9 of the Protection of Children Act 1999, which is the Care Standards Tribunal. Section 144(4) provides that the Secretary of State may by regulations:

"(b) prescribe circumstances in which the Tribunal shall allow an appeal under this section;

(c) prescribe the powers available to the Tribunal on allowing an appeal under this section;

..."

The regulations prescribe the manner in which the Tribunal should act and the powers that it should exercise in relation to an appeal.

5. The relevant regulations are the Education (Prohibition from Teaching or Working with Children) Regulations 2003 (2003 No. 1184). For the purposes of this case, the relevant regulation is regulation 13, which provides by paragraph (1):

"(1) Where on an appeal under regulation 12 [this being the regulation under which this appeal is brought] the Tribunal considers that the direction is not appropriate it may order the Secretary of State to revoke or vary the direction."

6. Under regulation 13(2), which relates to a List 99 appeal, there is this provision, and it is a provision upon which the appellant Secretary of State particularly relies:

"(2) The Tribunal shall not, in exercising its powers under this regulation, consider -

(a) any information relevant to the decision to give a direction or not to revoke or vary a direction which the Secretary of State did not have at the time the decision was made; or

(b) any evidence of a material change of circumstances of the person concerned occurring since the decision to give a direction or not to revoke or vary a direction was given."

7. Clearly 13(2)(b) creates no obvious problem because a material change of circumstance, if it exists, is something that would have to be considered by the Secretary of State, and his decision based upon the information available as a result of that alleged change of circumstance would lead to a further decision, and that further decision could be appealed. The problem arises (or can arise) under 13(2)(a) because on one view the words "any information relevant to the decision" is very wide indeed, and so could include virtually anything that was put before the Tribunal -- in the form perhaps of mitigation; in the form even of the evidence given by an appellant that he wishes to raise matters in mitigation, which although not on one view within the scope of what one would expect to be regarded as fresh information or in other circumstances fresh evidence, but which were not directly before the Secretary of State. The other problem is this: if the Tribunal, having seen and heard the appellant, forms the view that the appeal should be allowed, what is it to do? If it might be fresh information or regarded as fresh information, one view of the regulation requires the matter to be reconsidered by the Secretary of State, but clearly if the Secretary of State maintains his view, notwithstanding that the Tribunal has said that, in its view, the appeal should be allowed, one has the absurd position that an appeal would then follow and the decision would automatically be that the appeal would be allowed. It would be a waste of everyone's time and money for the matter to go back in that sort of case. However, if that is what the regulation on its true construction requires, I suppose so be it. However, Miss Olley does recognise that a line has to be drawn somewhere, and a degree of practical sense must be injected into the procedure. We must see, therefore, what the circumstances of this case were.
8. The respondent was a teacher. His main area was the teaching of German, and he accompanied a school trip to Germany. On the way back from the trip, he sat at the back of the coach next to a 16 year-old pupil, H. She made advances to him, indicating that she (although she did not use these words) had a crush on him as a teacher. Unfortunately, instead of making clear immediately that her actions were inappropriate, he allowed the advances to be made, and indeed reciprocated, and there was a degree of what one could crudely describe as groping between them. When they got home, he says that he appreciated that he should not have done what he did or allowed it to happen. Nonetheless, she made further advances, and foolishly, wrongly and indeed criminally he allowed himself to go to her home and further activity took place, but it did not involve any intercourse and it did not go beyond what I suppose could be described as heavy petting. He realised when that had happened that he had done wrong. He appreciated that it should not have happened, and he himself reported it to his headmaster. Indeed the police were informed, and it was indicated that he had committed an offence under section 16 of the Sexual Offences Act, namely engaging in sexual activity other than sexual intercourse with a person under 18 when in a position of trust. He clearly was guilty of that offence. He recognised that, and he accepted a caution for it.
9. I should say that H refused to co-operate. She indicated that she accepted that she had made the original advances. She was fond of the respondent, and she would not support or give evidence against him in any prosecution. In the result, therefore, he could not have been prosecuted for the offence in question. But, as I have said, he recognised his guilt and he acted responsibly, both in letting his headmaster know what had happened and in accepting a caution for the conduct which he had indulged in. That led the Secretary of State to consider what action should be taken against him, and clearly it was appropriate that that consideration should be given.
10. The Secretary of State had before him a report signed by Professor Grubin, who is a professor of forensic psychiatry, and Shelagh Scott, who is a senior practitioner in what is called Barnardo's Mosaic, which presumably means she has some expertise in and concern with the care of children.
11. The report is lengthy. It makes clear that it was accepted that the respondent was remorseful, was aware that he had done wrong, and was consumed by shame and guilt. It was accepted that all this was genuine, and he recognised clearly, and indeed his actions confirmed this, that he had done wrong. The concern expressed by the professor was set out in paragraphs 33 and onwards of the report, which relates to an interview that was held between the respondent and the authors of the report. What is said is this:

"33. [The respondent's] presentation at interview was of a serious, articulate young man who, despite his obvious discomfort in describing his actions, appeared to be reflective, open, and honest. He acknowledged that what had taken place was wrong and he accepted responsibility for it, but he was honest in expressing his confusion about why it was wrong in the specific circumstances."

12. He went on to say that he was not sure whether he wanted to resume a teaching career, but he did not consider himself a danger to children. He was particularly concerned about being prevented from coaching children's teams were he to be placed on List 99. There was a psychometric assessment carried out, and certain matters were found which showed, as it was put, a discontented self-image, a degree of interpersonal ambivalence and sensitivity to rejection and disapproval, and insecurity in relationships. There was no indication of any severe personality disorder. There was also an indication, according to the report, of a slight tendency to present himself in a favourable light. It is perhaps not altogether surprising that one of the effects of what has happened has been to bring to an end his relationship with his wife, although that relationship was by no means entirely solid at the time that all this happened: indeed, that may well have been, according to the assessment, one of the matters that contributed to the actions of the respondent on this occasion.
13. The report at paragraph 40 states:

"On a measure of general attitudes towards adult sexual contact with children [the respondent's] responses did not indicate distorted thinking or emotional congruence (over-identification) with children, suggesting that he was able to recognise such contact as being the responsibility of the adult and is wrong and potentially harmful."

It is important to note that he is said to have been able to recognise such contact as being the responsibility of the adult. So that clearly was before the Secretary of State. That is important in the context of the matters relied on by Miss Olley in this appeal.

14. The relevant conclusions of the report are set out in entirely eccentric paragraph numbering in the report. At the penultimate paragraph, 58, this is said:

"This episode took place in the setting of what seems to have been significant marital difficulties, and [the respondent's] inability to address these effectively with his wife. He appears to have had some desire to end the relationship, but his passivity and guilt meant that he was unable to make this decision or take steps to implement it. In our opinion, it is in this context that he responded to [H] not as a student, or as someone to whom he had responsibility as a teacher, but instead as an adult who he perceived as meeting his current emotional needs."

15. The next paragraph is numbered 64:

"In our opinion, [the respondent's] behaviour was largely the result of emotional immaturity rather than being sexually predatory in nature. However, his uncertainty regarding why such behaviour in a teacher is wrong, and the effects it can have on the student involved, are of concern, and were he to return to teaching, work would need to be done with him on this issue at the very least. Nevertheless, in our view the risk [the respondent] poses to children is low, and regardless of the decision that he has taken about his suitability to work as a teacher, we do not believe there is any reason why he should not continue to work with children generally."

Miss Olley points out that that last sentence in context is an indication of the view that it is unnecessary that he be dealt with as unsuitable rather than on the basis of misconduct.

16. The Tribunal's proper approach has been indicated in a decision by the Tribunal itself in the case of FH v the Secretary of State [2005] 0552.PT. Having set out in that decision (which was chaired by the Chairman of the Tribunal) the relevant statutory provisions, in paragraph 55 this is said:

"Thus the Tribunal is, in this instance, confined to conducting a review of the decision made by the Secretary of State. The Tribunal is not empowered to re-hear the case or to determine the primary facts. It is required, in effect, to decide whether the Secretary of State had sufficient evidence upon which to base a determination that the specified ground relied upon existed and, further, to decide whether the direction was an appropriate or proportionate response in all of the circumstances known to the Secretary of State."

17. Then it referred to another two cases it had decided, and finally to a decision in Mason v Secretary of State [2001] 0078. It concluded in paragraph 60:

"It follows that, when considering whether a direction is or is not appropriate, the Tribunal should not proceed on the basis that the restriction was imposed as a penalty for past misconduct but should decide whether the restriction is an appropriate measure to ensure, so far as possible, that children will be properly protected and that reasonable parents and other interested parties will not have their confidence in the education system diminished in the future."

18. In a decision earlier this year, which came before Dyson LJ, sitting as a judge of this court, in Secretary of State for Children Schools & Families v JN [2008] EWHC 1199 Admin, the learned Lord Justice considered the correct approach, and having had FH cited to him (in particular paragraph 55 which I have already read), in paragraph 23 of his decision said this:

"I accept that explanation by the Tribunal. It follows that the particular views of officials or List 99 panel members are not relevant to the Tribunal's task. Nor indeed are the views of the Secretary of State determinative of the question. The Tribunal must form its own view as to whether or not, on the evidence before it, which is the same evidence as that which was before the Secretary of State, there existed sufficient grounds for the direction to be given under section 142. The Tribunal thereby decides whether the Secretary of State's decision was reasonable. It is not necessary for that purpose that the Tribunal should see the confidential advice that was given to the Secretary of State. It follows that the Tribunal had to decide whether the Secretary of State had sufficient evidence on which to base a determination that the specified ground existed. That involved a consideration and appraisal by the Tribunal of the evidence, untrammeled by the advice of the Department's officials and/or independent expert."

19. I confess that I have some slight concern about the language there used. Of course, it is right that the Tribunal is reviewing the Secretary of State's decision, and clearly if it was not a reasonable decision, then the Tribunal will interfere. But, as it seems to me, the Tribunal has its own independent judgment to exercise. It looks at the material that was before the Secretary of State and it decides, on that material, whether in its judgment the relevant prohibition or the relevant sanction was or was not one which ought to have been, in its view, imposed. It may be that one can say, if one is talking in strict judicial review terms, that the decision of the Secretary of State was reasonable in the sense that it is one which was open to him. But that would mean, if that is the narrow basis upon which the Tribunal approaches the matter, that it is disabled from exercising its own judgment. It is the exercise of its own judgment that is important. But, as the regulation makes clear, that judgment must be exercised upon and only upon the material that was before the Secretary of State. So with that slight qualification, I accept the approach that Dyson LJ has indicated based upon the decision of the Tribunal in FH.
20. I should say that Miss Olley has submitted that the Tribunal failed to take account of the fact that this was a finely balanced decision and the Secretary of State has specifically decided to impose a misconduct rather than an unsuitability bar. The Tribunal directed itself in paragraph 19 of its decision entirely correctly, stating as follows:

"Thus the Tribunal is, in this instance, confined to conducting a review of the decision made by the Secretary of State. The Tribunal is not empowered to re-hear the case or to determine the primary facts. It is required, in effect, to decide whether the Secretary of State had sufficient evidence upon which to base a determination that the specified ground relied upon existed and, further, to decide whether the direction was an appropriate or proportionate response in all of the circumstances known to the Secretary of State."

21. The word of course is "appropriate" in the regulations, but "proportionate" is an understandable word to use inasmuch as clearly the individual's human rights are in issue because his ability to earn his living in his chosen profession is affected. There are, as that indicates, two stages. First, was there sufficient evidence to enable a determination to be made? There is no issue but that that clearly is the situation here. Secondly, was the particular determination or the particular direction an appropriate or proportionate response in all the circumstances? It is at that stage that the Tribunal has to exercise its own judgment based upon the material.
22. There is nothing, so far as I can see, in the Tribunal's determination that suggests that it was unaware of or failed to take account of the fact that the Secretary of State had decided on misconduct rather than unsuitability. That was the matter that was before the Tribunal. So I see no conceivable error of law based upon an alleged failure to appreciate that distinction.
23. The paragraph upon which Miss Olley particularly relies in submitting that the Tribunal was in breach of Regulation 13(2) and took account of information which was not before the Secretary of State is in paragraph 29. That reads as follows:

"With respect to his insight and empathy with the student he said that he would like to think that he was empathetic [I interpolate that the respondent gave oral evidence before the trial so they were able to form a view of him]. He said he should have been the one in charge and realised that while students will confide in teachers, it is not appropriate for teachers to confide in pupils. He said he was 'deeply troubled' by the effect the incident might have had on the student concerned. He also understood the public confidence issue but considered that he had been completely honest and co-operative with the investigation. He had been punished and would never do anything like it again."

24. One asks oneself: what information is there contained which was not before the Secretary of State? The information before the Secretary of State was largely that contained in the report, to which I have already referred. He had indicated, and indeed the report had confirmed, that he appreciated that he had done wrong, that he had been completely honest and co-operative, that he had been punished, and that he had indicated that he would not do it again. So there is nothing new in any of that.
25. He said that he would like to think that he was empathetic. Well, I suppose on one view that could be something new, but in reality it seems to me that it is simply consistent with his reaction, which is set out in the report of Professor Grubin.
26. I have already noted that the professor's report indicated that he was able to recognise that the adult was responsible, and that the contact such as he had indulged in was wrong and potentially harmful. That is effectively what paragraph 29 is confirming. Again, as it seems to me, on any sensible approach to the question as to whether there is fresh information, that is in reality nothing fresh. That was simply a slight clarification of what was already available to the Secretary of State.
27. Accordingly, it is difficult to see, in my view, that there is in reality any fresh information which was relied on in the circumstances, and it must be borne in mind that the right of appeal to this court is based only upon an error of law.
28. The appellant's major point is that the professor's report indicated that there should be some work (that means presumably some sort of psychiatric work) to be done with him on the issue as to his appreciation and full understanding why such behaviour in a teacher was wrong. It is plain that he recognised that it was wrong, and it is clear that it is accepted that he recognised that it was wrong. Recognition that it was wrong is what is primarily material in considering whether there is in reality a risk that it might happen again. As it seems to me, the Tribunal was entitled to form its judgment that the lack of risk was such that it meant that no sanction was in the circumstances required. It directed itself that it had to have regard to the question of public confidence in the system, and again it decided that, on that basis too, there was no need for the direction to continue.
29. Any sexual involvement between a teacher and a pupil is something which has to be taken seriously and dealt with in a manner which indicates to all concerned that it is recognised that it is unacceptable, and that no teacher who has engaged in such conduct will be permitted to continue in teaching if any risk of repetition occurs. But it is important to bear in mind that this is not a punishment for past misconduct; it is for the protection of pupils. In the circumstances of this case, as it seems to me, the judgment exercised by the Tribunal was one which they were entitled to exercise in the way that they did.
30. In reality, this appeal is no more than an attempt to overturn a decision which the Secretary of State feels, on its facts, was one which was inappropriate because it did not accord with the view that he had formed. But that is what the Tribunal is there for -- to form its own judgment, and that it has done. In those circumstances, this appeal is dismissed.
31. Now, Mr Philliskirk, it is common in the Tribunal that these cases are dealt with by initials rather than by full name. I would think probably in a case such as this that was an appropriate course to adopt because it would be or could be damaging to you if your full name is given. Any observations?
32. MEMBER OF THE PRESS: My Lord, I believe the Tribunal's findings have been published on the web.
33. MR JUSTICE COLLINS: Has his name been given?
34. MEMBER OF THE PRESS: Yes. The only name not given obviously is that of the pupil, but the name of the school and the name of the appellant --
35. MR JUSTICE COLLINS: Actually the pupil's name was in the Tribunal's decision. She was named.
36. MEMBER OF THE PRESS: I think it was only given as H.
37. MISS OLLEY: If I can assist, there is a provision for the Tribunal to make a restricted reporting order, and one was made in respect of the appeal, but I do not have any objection to the course proposed by your Lordship.
38. MR JUSTICE COLLINS: But if it has already been published, I think frankly there is no point.
39. MISS OLLEY: It has.
40. MR JUSTICE COLLINS: Normally it is public, but we have to have a strong ground for refusing to allow publication, and I think probably in the light of what I am told about the Tribunal, it would be wrong. All I can say is that I would hope that the press would show concern and might regard it as unnecessary. That is a matter for your judgment, I think.
41. MEMBER OF THE PRESS: My Lord, I am grateful.
42. MR JUSTICE COLLINS: I will not make any direct order. There is no point in it since it is on the Tribunal website.
43. RESPONDENT: I was not very happy about that.
44. MR JUSTICE COLLINS: I am sure you were not, but I am afraid I cannot undo that.
45. Now, so far as costs are concerned, you are entitled, if you wish, to claim the costs that you have incurred in coming along today and in whatever steps you have taken. The amount that I can award is very limited. I cannot remember what the limits are directly. Have you had fares and so on getting here today?
46. RESPONDENT: Just train tickets.
47. MR JUSTICE COLLINS: And have you had any copying charges or anything like that?
48. RESPONDENT: No.
49. MR JUSTICE COLLINS: So essentially it will just be the train fares, will it?
50. RESPONDENT: Yes.
51. MR JUSTICE COLLINS: How much are those?
52. RESPONDENT: £76 for the day, and when I came in September, it was --
53. MR JUSTICE COLLINS: I cannot award the costs before the Tribunal; it is only of the hearing.
54. RESPONDENT: Only for this one?
55. MR JUSTICE COLLINS: You have been to court before?
56. RESPONDENT: I had to come in September about the postponement, the stay of execution.
57. MR JUSTICE COLLINS: Right, and how much was that?
58. RESPONDENT: I think it was about £85. I have actually lost that train ticket, so I probably could not claim that.
59. MR JUSTICE COLLINS: So the total is about £160. Sounds reasonable to me. I will make an order that the Secretary of State pays you £160, to reimburse you for those costs. Thank you.