England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		The Court House Oxford Row Leeds LS1 3BG
		14th February 2014

Judge Clive Heaton QC :

1. The Appellant Adam Walker, acting in person, appeals against a decision of the Secretary of State for Education (SSE) made on 20^th June 2013 to impose a prohibition order upon him with no possibility of review. The SSE, represented by Mr Dunlop resists the appeal.

The background to the SSE decision

2. On the 23^rd April 2011 the Appellant, a schoolteacher, attended a St Georges Day parade organised by the English Cultural Society which concluded at the Green Tree public house in Tudhoe.
3. Three boys aged 12, 11 and 10 at the time had been playing on a bouncy castle which had been provided as part of the entertainment for the day. They had been chased off by a third party who had told them they were too old to play upon it. The boys had moved away and started to play on their bicycles in the car park. They then sat on the wall of the car park. The Appellant was nearby removing bunting from his car, a black Land Rover Discovery. He was using a folding type Stanley knife to assist him in the task
4. At the Appellant's sentencing before the Crown Court the prosecution accepted that at least two of the boys I have referred to then directed verbal abuse toward the Appellant who they thought was seeking to move them on out of the car park. Having issued that abuse the three boys then jumped onto their bicycles and made off. The Appellant's response to this chain of events was to get into his car and follow the boys. He has described himself as feeling provoked and frustrated by the boys abuse.
5. The three boys cycled together and the Appellant followed them closely in his car. In his sentencing remarks in the Crown Court the Judge described what followed in this way:

"This was a crazy thing to do. You obviously had a rush of blood to the head. I accept that to some extent you were provoked by these boys but they were only boys. They were only children and what you did was extremely dangerous. You set off after them in your vehicle and drove so close to them that had any of them come off their bikes accidentally the chances are you would have not been able to stop. You might have injured them. You might even have killed them. That is why you are charged with dangerous driving and no doubt why you pleaded guilty to it…"

6. The boys came to a halt, abandoned their bicycles and ran off. The Appellant got out of his car and slashed the tyres of the bicycles with the Stanley knife he had been using earlier.
7. The incident did not finish there. The Appellant then turned to one of the boys. He had the Stanley knife in his hand still. He shouted and swore at the boy. The Appellant in the hearing before me was anxious to emphasise that he had not threatened the boy, but accepted that his behaviour was threatening. The boy said to the police afterwards that he had never been as frightened in his life as he was at that moment.
8. The incident was witnessed, the Appellant was recognised, and the matter reported to the police. The police having received a report went to look for him. They found the Appellant at the Green Tree later that day and arrested him. He asserted at the time of his arrest that he had been in the pub all day and denied any involvement in the incident.
9. The Appellant was interviewed by the police the next day. He again denied any involvement in the incident asserting that it was a case of mistaken identity. The Stanley knife had been found in the car. When asked by the police if there would be any trace of the slashed tyres upon it he said that he had used the knife to slash a tyre on his wife's car.
10. The Appellant was charged. He pleaded guilty at an early stage to having a bladed article and three counts of damage to the tyres. He pleaded guilty at a later stage to a s4 Public Order Act offence as an alternative to affray, and to dangerous driving.
11. The sentencing Judge remarked that there were a number of good reports about the Appellant before him. He described him on what he had seen as a man who is greatly respected.
12. Ultimately on 7^th September 2012 the Appellant was sentenced to 18 months imprisonment suspended for the offences of dangerous driving and having a bladed article, with other sentences in respect of the other matters and consequential orders.
13. The Appellant was a school teacher. By a letter of the 11^th April 2013 he was notified that proceedings were to be taken against him by his regulatory body in order to investigate whether he was guilty of relevant offences, and whether if so he should be made the subject of an order prohibiting him from teaching, otherwise a prohibition order. That letter directed the Appellant to the relevant web site for further information in relation to the proceedings. The guidance sets out that the aims of the disciplinary process are to protect pupils and maintain public confidence in the profession.
14. The matter was heard by a professional conduct panel on the 19^th June 2013. The panel had the power to recommend the making of a prohibition order; that is an order preventing the Appellant from teaching. However, the panel could also recommend a review period for that order. If such was provided for once the review period had expired the Appellant could apply for a review with the objective of having the prohibition lifted.
15. The panel's decision document is at 205 in the Court bundle. The panel's recommendation to the SSE can be found at 213 onward. The recommendation was that there should be a prohibition order, but that there should be a review period of two years.
16. The regulatory process from that point is that the recommendation of the panel goes to a decision maker nominated by the SSE. The decision maker in this case was Mr Alan Meryick an official in the Department acting on behalf of the SSE under the principles in Carltona Ltd v. Commissioners of Works.
17. Mr Meryick issued his decision on the following day the 20^th June 2013. Mr Meryick determined that there should be a prohibition order, but that there should not be a review period. His reasons are set out at page 215 of the bundle. It is that decision against which Mr Walker appeals to me.

The argument of the Appellant

18. Mr Walker was unrepresented before me but had the benefit of a McKenzie friend. I invited the McKenzie friend to sit on the "front row" with Mr Walker and Counsel so that he could best assist. Mr Walker did ask if I would hear the McKenzie friend but having taken Mr Walker through the relevant guidance that application was not persisted with. I did however allow Mr Walker an opportunity to confer with his McKenzie friend outside court before he brought his submissions to an end, and again over the short adjournment after Mr Dunlop had outlined the case of the SSE.
19. At the conclusion of Mr Walker's case I invited him to confirm or correct my summary of his arguments so that I could be sure that I understood what his case was. Mr Walker confirmed that his case could be summarised under the following headings:

(i) That he accepted that a prohibition from teaching was appropriate. His issue was with the lack of a review

(ii) That the decision of the SSE not to provide for a review was out of kilter with other disciplinary decisions made. In particular to go from a decision of the panel for the minimum period of prohibition before review to no review at all, effectively the maximum sentence, before the decision maker was exceptional and, as he described it in submissions, from one extreme to another.

(iii) The decision not to provide for a review was out of kilter with all other decisions made in respect of his conduct by other organisations including those with safeguarding responsibilities

(iv) That there had been improper interference in the decision-making process by the SSE, Mr Michael Gove, personally

(v) That there had been procedural irregularity as the decision maker had taken into account matters he should not have in particular:

(a) The "threatening behaviour" of the Appellant during the incident I have described above and

(b) The effect of the Appellant's conduct on the standing of the profession

20. Mr Walker began with the issue of the length of the prohibition. He refered initially to the decision maker's response to other panel decisions. As Mr Walker put it to me in only 3 cases had the decision of the decision maker differed from the panel, and only one of those had resulted in no review period. It is right to say that at this point in an attempt to assist Mr Dunlop pointed out that this was a misreading of the statistics. There were other cases where a prohibition without review had been imposed by the decision maker. He had referred to 4 such cases in his skeleton and a further case where the decision maker had imposed a prohibition where the panel had not (para 40(2))
21. Mr Walker took me through the other disciplinary cases in respect of which there are summaries in the bundle. His point was that in the cases to which he referred the findings of the panel could be seen to be significantly worse than those made against him. They included direct violence toward children by a teacher and sexually inappropriate behaviour by a teacher toward a pupil. Yet those persons were permitted a period of review. The decision made in his case, he said, was significantly more draconian than in these cases.
22. Mr Walker then went on to point out that the decision of the SSE was also (on his case) out of step with the approach of others with safeguarding responsibilities to the material incident. He drew the Court's attention to:

(i) The observations of the sentencing Judge that he hoped that he would keep his job (although it is to be noted that this was not his teaching job but his political employment from which he had been suspended).

(ii) The probation service, qualified to conduct risk assessment, had not identified him as a risk

(iii) He works with children in a martial arts club. The association regulating that club had only recommended a 6 month suspension

(iv) The parents at the martial arts club where he works had given him positive references

(v) The Disclosure and Barring Service had recommend no action

(vi) He was continued in his political employment

(vii) He continued on in the Residents Association, indeed he was given glowing references by it

23. And so having argued that the decision in his case was both out of step with other decisions in respect of teachers and out of step with views of responsible bodies in respect of him Mr Walker asked rhetorically why was he treated so exceptionally (as he would have it) by the SSE? His answer to that question, as framed by him, is simple. The SSE interfered in his case because of Mr Walker's political opinions and had ensued that he was permanently dismissed.
24. The roots of Mr Walker's case on this head lie in a previous disciplinary matter. Mr Walker had been disciplined on an earlier occasion under the previous disciplinary regime. Under that procedure a teacher would be subject to discipline by way of a panel appointed by the General Teaching Council (GTC). Mr Walker had been found to be using a computer inappropriately. It was however the manner of use that had attracted the attention of Mr Gove Mr Walker said.
25. Mr Walker is an active member of the BNP. The GTC panel had found Mr Walker not to be guilty of racial intolerance. Mr Gove, then as now SSE, had described that decision later in Parliament as "quite wrong" (387). Mr Walker made the point that Mr Gove was not in a position to know whether the decision was right or not as he had not been at the panel. Later Mr Gove had said that intended to change the law so as to permit schools to dismiss members of the BNP. In expressing those views Mr Gove was simply repeating that which Mr David Cameron, at the time Leader of the Opposition, had said before the last General Election (394).
26. Mr Walker said that Mr Gove had mounted a campaign against the GTC. He described SSE subsequent decision to abolish the GTC as "controversial and irrelevant". He told me that it was his belief that Mr Gove had taken this action as he was frustrated at his inability to introduce a change to the law to bar "BNP schoolteachers" as he put it.
27. Mr Walker pointed to other figures in the public eye who were also seeking to bar schoolteachers who were BNP members. He points to a letter to the Guardian of June 2009 from Members of the GTC council expressing similar views (400).
28. It was Mr Walker's view that the SSE expected the panel to make a prohibition order without opportunity for review. When it did not do so the SSE ignored the panel's decision, Mr Walker says, and barred him for life anyway. By his actions, Mr Walker said, the SSE had displayed contempt for the investigatory and judicial process. By making comments about him in public he had prejudiced Mr Walker's position. Ultimately the SSE had improperly confused the operation of a regulatory body with his elected political office Mr Walker argued.
29. In response to submissions from the SSE Mr Walker made it clear that he was not saying that Mr Gove had acted toward him in any way out of revenge but rather out of political bias. "He wants me banned" he said.
30. This court should come to the view Mr Walker said, that it was inherently likely that Mr Gove would have spoken to Mr Meryick about the decision. Thus his case was that Mr Gove had directly intervened.
31. Mr Walker also pointed out that in his view Mr Gove was ill placed to criticise others for loss of temper. He drew the Court's attention to reports of an incident in Parliament where it was suggested that the SSE had lost his own temper (431, 437-8). Mr Gove, Mr Walker said, makes emotional decisions.
32. Mr Walker then turned to two points arsing from the decision of Mr Meryick. Mr Meryick had said in his decision that

"…Mr Walker's convictions involved threatening behaviour…." (215).

Mr Walker told me that in the criminal hearing there had been careful discussion as to whether he had actually threatened in particular the child toward the end of the incident. Mr Walker accepted then and accepts now that he swore at the child but not that he threatened him. Mr Walker says that he accepts that his behaviour might have been perceived as threatening but was not intended to be so. Thus he says Mr Meryick was wrong in his reasons to say as he did that the Applicant's conduct included threatening behaviour.

33. Moreover Mr Walker argues that as the panel had not mentioned the threatening behaviour in its decision Mr Meryick was not entitled to take it into account even if it could properly be described as such.
34. Turning then to his second head under the topic Mr Walker said that Mr Meryick was not entitled to take into account the alleged damage his behaviour might have done to the standing of the teaching profession. Mr Walker based his argument on the proposition that he had never been notified that this would be a relevant consideration at all it and it was not considered by the panel. In those circumstances it was wrong and unfair for Mr Meryick to bring it into account in his decision making process.
35. In response to Mr Dunlop's submissions that the Appellant even now did not understand the seriousness of what he did that day Mr Walker told me he regretted what had happened. There was no intent to endanger life he said, it had happened through lack of thought. Furthermore, he told me that this was a rush of blood to the head, a spur of the moment event, rather than anything that had been considered or carried on over a period of time. Thereafter his took advice as to how to conduct his criminal case and had followed that advice.
36. In respect of provocation of teachers by children the situation was quite different in a school environment. There was support available there.

The argument of the SSE

37. Mr Dunlop on behalf of the SSE had prepared a detailed skeleton argument. It is there to be read and for reasons which will become apparent I do not intend to set them out in detail here. In oral submissions he made the following points:

(i) That the SSE as the elected authority has a democratic accountability which the Court does not. Therefore the SSE is entitled to a Margin of Appreciation in his decision making process

(ii) That the SSE had redesigned the disciplinary process in respect of teachers because of concerns as to the effectiveness of the GTC

(iii) That Mr Walker's pre-occupation even now with the proposition that he did not directly threaten the child shows a real lack of insight into the impact of his conduct

(iv) That a previous good record could not save someone who behaved as badly as the Appellant had that day and who had then lied about it. In fact this Appellant did not have a good record in any event, he had received a warning from a previous panel

(v) So far as the decision maker was concerned he had looked at nothing the panel did not have

(vi) The decision maker was perfectly entitled to take the standing of the profession into account. From the outset it was made clear in the process that this was a material consideration for SSE in all cases

The Law

38. Mr Dunlop raises in his skeleton the issue of whether the right of appeal here arises against only the making of the prohibition order or whether it arises both in relation to the prohibition order and any period of review. Mr Dunlop tells me that the SSE considers that this court does have the ability to consider both the prohibition and the review period, as there are some cases where teachers wish to appeal both and it would be nonsensical for one part of the proceedings to proceed under this jurisdiction as an appeal while the other proceeded by way of judicial review.
39. Ultimately the matter was not argued before me, both parties being willing to submit to the court's jurisdiction to deal with the matter as an appeal.
40. Mr Dunlop has set out in his skeleton argument at paragraphs 21 – 26 the statutory basis and regulatory framework in respect of the schoolteachers disciplinary regime. His analysis in respect of these matters was not challenged or in issue before me and I adopt it here.
41. This is an appeal from a decision of the SSE under that regime. Neither the Education Act 2002 nor the 2012 regulations made thereunder specify a test for this Court in hearing such an appeal nor do they indentify the Court's powers on appeal. In my judgment therefore it is clear that Parliament must have been intended that this Court should apply the Civil Procedure Rules (CPR) in respect of appeals.
42. CPR 52.11 provides that an appeal court will allow an appeal where the decision of the lower court (or in this case the decision maker) was:

(a) wrong; or

(b) unjust because of some serious procedural or other irregularity in the proceedings

43. Thus the important point to be understood here is that this appeal does not proceed as rehearing of the SSE decision. CPR 52.11 provides a threshold for intervention and this court can only intervene if and when it is established that the threshold is crossed.
44. Furthermore it is to be understood that the SSE has a wide ambit of discretion in respect of such decisions. His decision could only be said to be wrong if it goes outside that wide ambit of discretion.

Discussion and conclusions

The alleged procedural irregularity

45. I turn firstly to the alleged procedural irregularities in the decision making process of Mr Meryick put before me by Mr Walker.
46. The first of these can be dealt with shortly. I have no doubt that the decision maker was entitled to refer in his reasons to the threatening behaviour of the Appellant. I say so for these reasons:

(i) The decision maker refers to the Appellant's behaviour as threatening. While arguing he did not say anything threatening and that he did not intend to be threatening even the Applicant concedes that his behaviour could have been perceived as threatening. Thus the decision maker was entitled to describe the Appellant's behaviour as he did

(ii) The Appellant could not direct me to any provision which would restrict the SSE's decision maker from giving weight to a matter not given weight, or given less weight, by the panel. In my judgment there is no such restriction upon the decision maker and he was therefore entitled to take the Appellant's threatening behaviour into account

47. The second matter relating to the reasons given by the decision maker is whether he was entitled to take into account the standing of the teaching profession in coming to his decision. In my judgment he was. My reasons are:

(i) My decision above that the decision maker was entitled to take into account matters the panel had placed less or no weight on is relevant here

(ii) The SSE makes it clear in the documentation supplied to Appellants generally and this Appellant in particular by way of direction to the internet that the effect of the conduct complained of upon the standing of the profession is a material matter which he will take into account where relevant

(iii) Thus the Appellant was on notice that the effect of his conduct upon the standing of the profession was a material consideration and the decision maker was entitled to take it into account and give it such weight as appeared to him appropriate in the proper exercise of his discretion

48. Thus in my judgment the Appellant's arguments of procedural irregularity in the reasons of the decision maker both fail.

Was the Appellant treated more harshly than others?

49. I turn now to the Appellants arguments:

(i) That he was treated by the SSE more harshly than other teachers

(ii) That he was treated more harshly by the SSE than by others who had to deal with the Appellant for his conduct, including those who had a safeguarding role

50. I do not find comparisons drawn between the responses of other organisations to the Appellant's conduct helpful. In my judgment little weight can be placed on the response of organisations which do not have a safeguarding function. Even in respect of those who do have such a function each must have regard to the circumstances of its own organisation. Thus it does not seem to me that a helpful parallel can be drawn between the response say of the Appellant's martial arts club on the one hand the SSE on the other. They are different organisations acting under different considerations.
51. The drawing of comparisons between other cases and this case with the intention of demonstrating undue harshness of sanction as Mr Walker sought to do before me is to be treated with real caution. Mr Dunlop puts before me the observations of Beatson J in R(Henderson)-v-GTCE [2012] EWHC 1505 (Admin) at 55 onward where the point is made that decisions in other cases are not precedents but turn on their own facts. I respectfully agree. So far as the proposition of the Appellant that he has been dealt with more harshly than other teachers by the disciplinary process I do not find that argument made out on the information put before me. The core facts of each of the cases were too varied from each other and this case for that argument to succeed.
52. Nor were the statistical arguments put before me by Mr Walker persuasive. An unsuccessful respondent to a disciplinary process is entitled to a degree of consistency of sanction from the regulatory body. As Mr Dunlop pointed out one of the hoped for advantages of the revised disciplinary process (so far as the SSE is concerned) is greater consistency as the ultimate decision will be taken by one of a limited number of decision makers within the SSE rather than the members of a panel drawn from a very large pool as it had been in the days of the GTC. Ultimately Mr Walker was unable to demonstrate to me that his case had been dealt with in a way statistically out of kilter with other decisions of the decision maker.
53. In this case Mr Meryick found in his reasons that the Appellant's actions were violent, threatening, and targeted at young children. His actions were deliberate and resulted in custodial sentences. Mr Meryick further came to the view that the reputation of the profession would be seriously damaged by allowing a teacher with this combination of convictions to teach again. In my judgment he was fully entitled on the facts to come to that conclusion.
54. Did the fact that the panel had made a prohibition order with a review after 2 years in any way fetter the ability of the decision maker to come to his own conclusion that there should be no review? In my judgment not. Mr Walker was unable to put before me any argument to support the proposition that the decision maker's powers were in any way circumscribed by the decision of the panel.
55. In summary, therefore, the Appellant failed to demonstrate before me that he was dealt with more harshly than was appropriate by the decision maker's decision to prohibit him from teaching with no opportunity for review.

Did the Secretary of State intervene personally?

56. That leaves me then with the final, but perhaps most conspicuous, argument of the Appellant; that the SSE, Mr Michael Gove, personally intervened in his case, that intervention being motivated by political bias.
57. Mr Walker said on a number of occasions on this topic during the hearing that this or that matter in respect of this argument was his "belief". Courts do not conduct matters on the basis of belief, possibility or suspicion but rather on the basis of facts proved by evidence. What then is the evidence that Mr Gove intervened personally in this case?
58. Going back to Mr Walker's first disciplinary hearing there is no doubt that the decision of the GTC in his case came to the attention of the SSE. This was not, however, a case where a politician commented in a public way about an ongoing case. Here the GTC had made its decision and Mr Gove was commenting upon it later, albeit in public. To that extent it can be said that Mr Gove was aware of Mr Walker and his allegiances to the BNP and its views. That proposition went unchallenged before me.
59. Equally, it is right that Mr Walker has been able to establish before me that Mr Gove has in the past made comment that demonstrated his own disapproval of schoolteachers who expressed views consistent with those of the BNP. That proposition also went unchallenged before me.
60. It is also right as matter of fact that Mr Gove changed the disciplinary process for teachers from decision making by a GTC panel to one where a decision maker appointed by him and working in his Department takes the first instance decision following a panel recommendation.
61. However, beyond that narrow background there is simply no evidence at all here that Mr Gove intervened in Mr Walker's case. In so far as it rests on anything tangible the Appellant's case rests on his proposition that he was dealt with unfairly and the likely explanation for that is interference by Mr Gove. As is clear from the above I do not find any unfairness in the decision made by the decision maker at all. Nor do I find that the Appellant was dealt with more harshly than others in his position.
62. Moreover, I do not find that the fact that the decision maker determined a harsher sanction than the panel recommended suggests that the SSE had been involved in the process in any way. Part of the very purpose of the process is to permit departure from the panel's recommendation where the decision maker takes the view that such is appropriate.
63. The Appellant's case that Mr Gove intervened personally in his disciplinary process so to ensure that he was prohibited from teaching for life is ultimately constructed upon nothing more than suspicion and innuendo. I reject his argument as lacking any credible evidential base at all.

Decision

64. I am wholly unpersuaded by any of the arguments put before me by the Appellant. The appeal is dismissed.
65. The unsuccessful Appellant will pay the Respondent's legal costs.

Arrangements as to the assessment of costs

66. It was agreed before me that if I made an order for costs either way I should provide that the costs of the successful party should be assessed if not agreed. In respect of any assessment both sides have permission to put their representations as to costs to the costs judge in writing. Any assessment, it was again agreed, shall take place on paper to avoid the expenditure of yet further costs on attendance before the costs judge.

His Honour Judge Clive Heaton QC

14^th February 2014