QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
33 Bull Street
Birmingham B4 6DS
B e f o r e :
|THE QUEEN ON THE APPLICATION OF HENDERSON||Claimant|
|GENERAL TEACHING COUNCIL FOR ENGLAND||Defendant|
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Miss S Knight (Solicitor-Advocate) (instructed by Bevan Britton Solicitors) appeared on behalf of the Defendant
Crown Copyright ©
".—(1) The Council must include on a Committee—
(a)one or more lay members; and
(b)one or more registered teacher members.
(c) if none of the lay members or registered teacher members is a Council member one or more Council members."
The 2011 amendment came into effect on 23 November 2011, after the determination of the appellant's case. The amendment removed the obligation for there to be a member of the Council on each Professional Conduct Committee.
"Hearing Committee members are obliged to exercise their own judgment in making decisions since they are acting in a judicial capacity within a framework set out by the Council."
The guidance also states that in considering the application of a sanction a Committee must decide whether a sanction needs to be applied with respect to the teacher's registration and the "interests of the public, the profession and the teacher need to be weighed in this decision."
"The primary purpose of sanctions is not to be punitive but to protect the interest of the public although they may have a punitive effect."
As to the public interest, the guidance states:
"There is clear judicial authority that the definition of the public interest in the context of professional regulation includes:
(a) the protection of members of the public;
(b) the maintenance of public confidence in the profession; and.
(c) declaring and upholding proper standards of conduct and competence."
A subheading in this section is "Proportionality". The first paragraph states:
"In deciding what sanctions to impose the Committee should apply the principle of proportionality weighing the public interest (as defined above) against the interests of the teacher. In addition, they will need to consider any mitigation in relation to the seriousness of the behaviour in question."
In the section on 1(11) "General Considerations Relating to Prohibition Orders" it is stated:
"Prohibition from the register is appropriate where this is the only means of protecting pupils and maintaining public confidence in the teaching profession. However, Committees should not feel it necessary to prohibit a teacher in order to satisfy public demand for blame and punishment."
I pause to emphasise this last sentence because it does not sit comfortably and indeed is inconsistent with Miss Knight's submissions that part of the purpose of a sanction is to send a message out that certain conduct is unacceptable on a zero tolerance basis. That may be the effect of particularly serious misconduct but the main considerations in the guidance as they are in the statute is protecting pupils and maintaining public confidence in the teaching profession.
"This sanction is likely to be appropriate when the behaviour is fundamentally incompatible with being a registered teacher and involves any of the following (this list is not exhaustive)."
The penultimate factor listed is "persistent lack of insight into seriousness of actions or consequences". Two other factors which are relevant in the present context are "Serious Departure from the Code of Conduct" and "Evidence of Harmful Deep-seated Personality or Attitudinal Problems". I refer to these because in his submissions Mr Faux, to some extent, ran the lack of insight factor into the deep seated personality factor. I will return to these when considering the decision of the Committee.
"The main consideration for the Committee... is to be satisfied that the protection of pupils and that the teacher has recognised that steps need to be taken and not the form in which this may be expressed."
That is said after a paragraph in which it is said that the expectation of a teacher able to stand back and accept that with hindsight they should have behaved differently and will take steps to prevent a recurrence is an important factor in a hearing.
"Despite a number of us trying to offer him the support he had offered us he withdrew and began not to contact us."
"... the focus must be calibrated to the matters under consideration. With professional disciplinary tribunals issues of professional judgment may be at the heart of the case. Raschid [I interpose that is a reference to Raschid and Fatnani v General Medical Council  1 WLR 1460] was an appeal on sanction and in my view professional judgment is especially important in that type of case."
Notwithstanding the theoretical difficulty that I have identified, I am assisted by that and to that extent the judgment that this court will exercise has to be regarded as in a sense as a secondary judgment.
"I suspect although it is entirely a matter for you, of course, the more serious matter may be the recruitment issue."
"Mr Henderson has shown remorse and insight".
But in the section on prohibition order, it stated:
"Mr Henderson showed a lack of insight into the implications of his actions on his professional role as a headteacher."
"That can in some circumstances mean that the Committee did not have to act in as draconian a way as others."
That is a very moderate, measured, careful and accurate submission but where the only point made is that admission after advice was given and it was so as not to put the witnesses through misery. The implication of Mr Faux's submission to me is that an absent party who admits misconduct and offers an apology per se has insight. I do not consider that a tenable submission.
"I think it is important to note that the nature of the published decisions are principally informative of the public of the fact of a finding of misconduct and of the penalty imposed and broad facts of the case. They do not set out in any detail at all the factual background of either the offending or of the teacher in question or important questions as to the remorse, if any, shown for the offence, the full circumstances of it and whether or not the offending conduct has been admitted."
In paragraph 20 he stated as to sanctions:
"It is true that in other cases other defendants have received lesser penalties. But, as counsel for the General Teaching Council points out, these decisions of previous committees are not meant to be precedents nor are they meant to fetter further committees. Each committee is chosen and selected for its expertise and understanding of the problems of the teaching profession. On this particular committee there were experienced teaching members who are well placed to judge the seriousness of professional misconduct on the part of one of their colleagues."
I respectfully agree.