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
		5 October 2012

1. MR JUSTICE IRWIN: This is an appeal by the claimant, Nicola Webster, of a decision dated 5 August 2011 of the Professional Conduct Committee of the General Teaching Council. The Professional Conduct Committee ("PCC") found the appellant guilty of unacceptable professional conduct contravening section 8(1) of Schedule II to the Teaching and Higher Education Act 1998. The appeal is lodged pursuant to regulation 24 of the General Teaching Council for England (Disciplinary Functions) Regulations 2001. The appellant has until recently represented herself and it seems to be the case, I am sure as a function of that, that there is a need for an extension of time for the appeal. I grant that extension.
2. I repeat my gratitude to both counsel who have addressed me in this case. My compliments go particularly, if Mr Dunlop will forgive me, to Mr O'Mahony. I make no distinction as to the quality of representation, but

Mr O'Mahony has been acting pro bono with no fee. That is in the best traditions of the Bar and should be commended.

3. The appellant was a young newly qualified teacher at the relevant period, in the Abbey School, Faversham in Kent. In early 2008 a 17-year-old girl pupil, Pupil A, as we have called her and I shall call her, was studying at the school. In very short form the misconduct alleged against the appellant, and found proved by the PCC, was that she had allowed herself to get into an inappropriate relationship with Pupil A. On Sunday, 16 March 2008, another teacher at the school, a Mrs Goss, alleged that she saw the appellant in Whitstable being kissed by Pupil A or kissing her (it is phrased both ways), holding hands and going to a public house in Whitstable.
4. She described those events in ways of which I will give more detail later in this judgment. She described what she saw as being inappropriate behaviour between the two, by which she clearly meant a sexual or intimate relationship.
5. Mrs Goss is, although a relatively junior teacher with three years post qualification at the time, a rather older woman in her 40s. She was Pupil A's English teacher, at that stage teaching her at AS level. She having seen what she saw, wrote a letter which was dated 16 March, although in fact it was handed into the school on Monday, 17 March, the day following the events in Whitstable. I will look more closely at what she said later in this judgment.
6. The letter stimulated the first investigation within the school. The police were informed. They were content for school staff to investigate. The school spoke to the student, who denied any sexual or intimate relationship with the appellant, but also denied being present at the scene where she was observed by Mrs Goss.
7. The school spoke to the appellant, who denied that there was anything sexual, or indeed anything improper, in the relationship with Pupil A. She described informal relationships between herself and Pupil A and other sixth form or more senior students. She suggested that the meeting at the sea front in Whitstable, followed by the trip to the public house, was an accidental meeting. She described how Pupil A was with other pupils and on her account there was a group of more senior students from the school in the public house with her. She denied that she was kissed or kissed Pupil A. On her account Pupil A saw Mrs Goss arriving at the public house and then reacted to that arrival by fleeing to the ladies' toilets in the pub. On the account given by the appellant that was, putting it as neutrally as I can, because of a poor relationship between Pupil A and Mrs Goss.
8. In her statement given at this stage the appellant accused Mrs Goss of a vendetta against Pupil A and expressed herself as now feeling "personally attacked by my colleague". There was of course a direct conflict between the account of events already crystallised from the appellant, and that of Mrs Goss.
9. On Mrs Goss's account, which is uncontradicted by any other evidence, the school appears not to have gone back to her to present to her what others had said, or check the details, or reaffirm what Mrs Goss was saying. The school investigation concluded by Wednesday, 19 March. The school decided that the allegation was "unsubstantiated". Following the result of the interview with the student, the school related that view to the police and specifically to the relevant representative of the Public Protection Unit within the police. Following that contact, the police decided that there was no need for a referral to them of what had been reported, but suggested that what did need to happen was "a boundaries talk" with the appellant.
10. Pupil A never returned to the school as a pupil. It is unclear from the papers as to whether Pupil A actually came into the school on the Monday, but certainly as a response to this whole affair she ceased her studies short of the AS exams by some weeks. She later returned to work with the appellant in the sports centre. That was in May 2008, some two months after the events in Whitstable and of the following week.
11. The evidence before the PCC made it clear that the sports centre is on the same site as the school, but is not part of the school. It is not clear to me whether the sports centre is used by the school, but that is not material for present purposes. So when Pupil A returned to work as a trampoline coach in the sports centre she was not returning as a pupil. She was returning to the same site. She did work with the appellant, and the appellant remained teaching at the school through and into the middle, and indeed the latter end, of 2008.
12. I shall summarise what appears to have happened next in a very short form. Matters did not die away. Other allegations from others were made. There is no need to trace the history of all that since the only importance, for present purposes, is that the affair did not die away. In February 2009 there was an anonymous letter to the head teacher of the school raising similar allegations about the appellant. On 6 February 2009 another teacher within the physical education department at the school, Miss Skelcher, raised concerns, or allegations, and the deputy head of the school, a Mr Hatt, was delegated or charged with investigating the matter further.
13. On 23 February 2009, the appellant resigned from her post whilst the second school investigation was ongoing. At this stage, again putting the matter shortly, the appellant alleged that she was facing lies told by Miss Skelcher in order to get her, the appellant, out of the school.
14. From that point matters proceeded at a rather magisterial pace until the PCC sat in June 2011 to hear the evidence and then, as I have indicated, they reached their decision and announced it on 5 August 2011.
15. Summarising the important evidence they had before them: they had a statement from Pupil A, but no oral evidence from her. The statement consisted of a denial of any inappropriate relationship, certainly any sexual or intimate relationship, with the appellant. But as before, there was some content of her statement which was, on any view, untrue.
16. There was live evidence before the PCC from Mrs Goss, from Mr Hatt, from Miss Skelcher, from the appellant and in fact from some others, but those four were perhaps the most important and central witnesses to give evidence to the PCC.
17. I have been reminded by Mr O'Mahony for the appellant that the proper approach on the part of the PCC, or indeed on the part of this court when examining what was done by the PCC, and when considering allegations of a serious nature, is a rigorous one. Although it is accepted by all that it is the civil standard of proof, that is to say probability and no more, which applies. I have been asked to bear in mind the remarks of Lord Hoffmann in the case of In re D (Secretary of State for Northern Ireland intervening) [2008] UKHL 33. Those remarks are sufficiently encapsulated within the headnote, and the relevant part of that reads:

"The balance of probabilities simply meant that the court was satisfied an event had occurred if the court considered that, on the evidence, the occurrence of the event was more likely than not; that in some contexts a court or Tribunal might have to look at the facts more critically or anxiously than in others before it could be satisfied to the requisite civil standard of a balance of probabilities, but the standard itself was finite and unvarying; that situations which might make such heightened examination necessary might be in the inherent unlikelihood of the occurrence taking place, the seriousness of the allegations to be proved, or the seriousness of the consequences which could follow from acceptance of proof of the relevant fact; that all those situations required the application of good sense and appropriately careful consideration on the part of the decision-makers, but they did not require a different standard of proof or a specially cogent standard of evidence before being satisfied of the matter which had to be established."

I do bear in mind that point. It seems to me apt to this case, apt to the functions of the PCC, and therefore apt for me to bear in mind when reviewing what they did.

Ten particulars of the allegation were made to the PCC, four were found to be proved and six unproved. I put the matter that way because there is a temptation in such cases to treat the particulars as the allegation. Here the allegation was "Engaged in an inappropriate relationship with Pupil A, between February 2008 and the Spring Term 2009. Namely that you:..." and then there follows the ten specifics or particulars said to make out the overall allegation. It is important that in considering such a charge a professional body such as the PCC does focus on the overall charge: of course looking for particulars, but looking at them together not, to use the vernacular, "salami sliced", one divided from the other.

The four proved particulars are as follows:

"Engaged in social networking with Pupil A via Facebook" (with particulars given)

"In March 2008 walked hand-in-hand and kissed Pupil A in Whitstable" (with particulars given)

"In March 2008 went into a public house with Pupil A in Whitstable" (with particulars given)

Lastly:

"Allowed yourself to be photographed with Pupil A in a manner which suggested that you were in a relationship with each other".

Also with particulars given.

Mr O'Mahony makes two linked points when attacking the findings under those heads: firstly, that "inappropriate relationship" did not mean a sexual or intimate relationship, that it must be taken to mean an inappropriately close or friendly relationship with the pupil, but not to mean anything beyond that; secondly, he says if contrary to his first argument the PCC was deciding that this was an inappropriate relationship in the sense of a sexual or intimate relationship between these two, there was insufficient evidence to make out that allegation.

In order to test these propositions I need to consider carefully what it was that was in evidence, and what it was that the PCC were accepting. It seems to me that sufficient detail of what was involved in the allegations was given by the PCC in the summary of what they found. I begin with an allegation that they did not find proved and this is a point derived from submissions from Mr Dunlop. The first allegation was that the appellant "Shared your one bedroomed flat with Pupil A". The conclusion of the PCC was as follows:

"We are not satisfied that this fact is proven. The Committee accepted the evidence of Rachel Skelcher that Pupil A had visited Ms Webster's house on more than one occasion between the end of January 2009 and early February 2009. However, we did not find that the evidence presented was sufficient to prove that Ms Webster was sharing her one bedroomed flat with Pupil A."

18. In the course of giving evidence to the PCC this appellant had denied that there were individual visits by Pupil A to her flat. Mr O'Mahony asks me to consider what the finding of the Committee means as to the credibility of the appellant. Bluntly, she denied something which they found was true. And it follows that the PCC concluded on this allegation, before we come to any other, that the appellant was not always a truthful witness when she gave her evidence to them.
19. They were in a position to assess all of the key witnesses before them at the invitation of Mr O'Mahony, repeated in his closing submissions. I have read the transcripts of all those witnesses' evidence. It is clear that there were many successful challenges to the accuracy, and potentially the veracity, of the evidence of Rachel Skelcher. It is clear that there were such challenges to the evidence of the appellant, and that at least on some occasions, although by no means all, the PCC rejected the accuracy and the veracity of her evidence, as I have just made clear. It seems to me that the evidence of Mr Hatt was of lesser importance, because he was a direct witness to none of the primary facts that founded the allegations. However, in respect of the evidence of Mrs Goss, the PCC not only listened to her evidence-in-chief, not only read her statement, not only listened to cross-examination, but themselves asked a significant number of questions directly of her after the legal representatives had concluded. It is clear that the PCC, having made an assessment of her, concluded that she was a truthful and accurate witness. Therefore, when they came to reach the conclusions they have there is no basis, in my view, for saying that they approached the evidence wrongly, that they were deprived of evidence that they should have heard to reach proper conclusions, and that they were not best positioned to assess the witnesses both by the content of what they said and by the demeanour with which they gave evidence to the hearing. It is following on that process that in respect of the first particular of the charge they concluded they could not rely on the evidence of the appellant herself.

I deal next with the proved allegation of social networking with Pupil A. The findings here read as follows:

"We are satisfied that this fact is proven. Ms Webster admits that she became Facebook friends with Pupil A. She does not recall whether this was before or after Pupil A had left the school. Pupil A confirms that she may have added Ms Webster as a friend on Facebook on the lead up to the School ski trip in February 2009... [reference for the statement is given] We also heard evidence from Miss Skelcher that she had viewed Ms Webster's Facebook site and was able to see that she and Pupil A were friends. Mr Hatt provided evidence relating to interviews with sixth formers at the School which includes evidence from Pupil D that she had seen pictures of Pupil A and Ms Webster on Facebook after the February 2008 ski trip."

Pausing there, it seems likely that the first date is wrong. If that is wrong please correct me. They recited February 2009, but it should be February 2008.

"In the circumstances we are satisfied on the balance of probabilities that there is sufficient evidence for this fact to be proved and that Miss Webster has therefore engaged in an inappropriate relationship with pupil A."

Before passing comment on that I will move to the next allegation, in the order which I will take them:

"j) Allowed yourself to be photographed with Pupil A in a manner which suggested that you were in a relationship with each other".

The Committee found as follows:

"We are satisfied that this fact is proven. We carefully considered the photographs in the case papers and in particular noted those at white pages 60 to 62, where Pupil A and Ms Webster are posed cheek to cheek. The Committee considers these photographs to be inappropriate and suggestive that Pupil A and Ms Webster were in a relationship together. Ms Webster has therefore engaged in an inappropriate relationship with Pupil A."

It seems clear to me that those two allegations on their own did not carry this Committee through to their final conclusion. However, it also seems to me that it would have been open to the Committee, on the basis of those two findings with those particulars, to conclude that this was an inappropriately close relationship. Indeed in my view it would have been open to them to conclude that this was probably a sexual or intimate relationship, really on the basis of the photographs and the level of contact between these two.

The other two allegations, although they are framed separately really come together, rely on the evidence of Mrs Goss. Under the particular (f), that is to say "In March 2008 walked hand in hand and kissed Pupil A in Whitstable" the Committee found as follows:

"We have found this fact is proven on the balance of probabilities. We found Mrs Goss to be a credible witness who provided balanced evidence which we have accepted. Ms Webster gave evidence that she went to Whitstable with a friend and that Pupil A was with her boyfriend when they had a chance meeting. She stated that she may have greeted Pupil A in a 'friendly manner. Mrs Goss provided evidence that she had watched Pupil A and Ms Webster for 45 minutes and confirmed that there was no one else with them during this time. The Committee has concluded that on 16th March 2008 Ms Webster and Pupil A did walk hand in hand and that Ms Webster kissed Pupil A approximately 3 times whilst in Whitstable. Ms Webster has therefore engaged in an inappropriate relationship with Pupil A."

In fact, as Mr O'Mahony has pointed out, Mrs Goss's evidence was that it was Pupil A who kissed Miss Webster twice and possibly three times, although in what I find to be the careful way in which she gave her evidence, Mrs Goss was at pains to say the third episode might not have been a kiss but might have been whispering in the ear.

The detailed finding of the Committee is poorly expressed and relates to the original allegation, rather than the detail of the evidence from Mrs Goss. But for these purposes it cannot possibly be important whether the appellant kissed Pupil A, or whether Pupil A kissed the appellant. The picture being given by Mrs Goss was of a relationship that was closer than friendship. The particulars found by the Committee under the next particular, that is to say:

"In March 2008 went into a public house with Pupil A in Whitstable"

were as follows:

"We have found this fact is proven. We again found Mrs Goss to be a credible witness who provided balanced evidence. Ms Webster admits that she went into a public house but that she was with her friend and Pupil A was with her boyfriend. The Committee accepted the evidence of Mrs Goss and are satisfied that on the balance of probabilities, Ms Webster went into a public house in Whitstable with Pupil A. Mrs Goss provided evidence that no one else was with them when they went into the pub or while they were in the pub. Ms Webster has therefore engaged in an inappropriate relationship with Pupil A."

20. Whether one reviews the summary of the findings by the Committee, or reviews the evidence that they heard verbatim, it seems absolutely clear to me that what Mrs Goss was describing was something more than friendship. She was making a judgement, which she conveyed in the letter that she wrote straightaway and in the evidence, and at all points in between when asked; this was to her eyes something more than friendship.

The function of this court is not to rehear proceedings before a Professional Disciplinary Committee such as this. As all parties have recognised, the function of this court is to quash findings and substitute other findings, or remit the matter, only if the conclusions of the Committee are wrong. I find no basis in this case for concluding that the conclusions of the Committee are wrong. It seems to me very clear that they intended to find a sexual or intimate relationship between Pupil A and the appellant. It seems clear to me that there was sufficient basis for them to do so, taking all of these particulars together. Sensibly, it is not submitted by Mr O'Mahony if this was indeed a conclusion that there was an inappropriate relationship, in the sense of a sexual relationship between the appellant and Pupil A, that the sanction passed of two years' suspension was in any way excessive.

For all those reasons the other arguments advanced carefully and in a balanced way, on behalf of the appellant, have become academic and this appeal fails.

21. MR DUNLOP: I am grateful, my Lord. I would ask for an order that the appellant pay our costs. We are not seeking all our costs. We are only seeking my costs, that is to say the costs of counsel. I emailed my learned friend with a schedule of those costs and I can pass it up to your Lordship.
22. MR JUSTICE IRWIN: I think I have seen it. It may be simpler if you pass it up again. (same-handed) You have seen this, Mr O'Mahony?
23. MR O'MAHONY: My Lord, yes.
24. MR JUSTICE IRWIN: What would you like to say?
25. MR O'MAHONY: I sent my learned friend a schedule which was in similar terms for the purpose of a pro bono order. I cannot challenge the figures or the order.
26. MR JUSTICE IRWIN: I am afraid that is a sensible position. The respondents will have the costs to the extent of which they have asked for them, those being counsel's fees plus VAT. The grand total is £3,420. Mr O'Mahony, I know your client is working, but not as a teacher. Do you need time to pay those costs?
27. MR O'MAHONY: Yes. The appellant was unemployed for a significant period, so I do not know exactly what her financial position is, but it is poor.
28. MR JUSTICE IRWIN: Normally one would say 21 days. Do you want to take instructions as to whether you have an offer of a period?
29. MR O'MAHONY: That would be sensible. If my Lord were to rise for a few moments --
30. MR JUSTICE IRWIN: I am content to rise for five minutes, or so, while you talk, then I will come back and listen to you on that issue. I will be outside.
(Adjourned)
31. MR O'MAHONY: I am grateful for the time. My learned friend has not been able to take instructions, so he cannot consent to what I propose to him, but I ask that the order for costs not be enforced for two months. The reality is that this appellant has large debts and does not have regular work, so in terms of the costs order there would have to be some negotiation between the respondent's solicitors and her if they were to recover any money under the order in any event. Really what I am doing is asking for time for that to be done.
32. MR DUNLOP: I have not been able to take instructions, so I cannot agree to that. I do not have any submissions against the notion of an order that it be within two months, as opposed to 21 days.
33. MR JUSTICE IRWIN: If it is not to be enforced until tomorrow there has to be negotiation and 56 days is as good as any other period. Your client will understand that after 56 days if there has not been a compromise as to payment of costs then it can be enforced.
34. MR O'MAHONY: My Lord, yes.
35. MR JUSTICE IRWIN: Therefore, not to be enforced for 56 days from today. Thank you both very much.
36. MR O'MAHONY: I wonder if between you you can send a draft order to the associate.