England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/05/2016

HHJ Molyneux:

1. This is an appeal by Mr Robin Zebaida against a decision on the 11^th of January 2016 of the Secretary of State for Education to make a prohibition order prohibiting him from teaching indefinitely.
2. The Appellant is a concert pianist. Between 1998 and 2013 he worked as a free lance Music Examiner, for the Associated Board of the Royal Schools.
3. In 2000 the Appellant worked as a part time music teacher at the Oratory school in London for one term.
4. On the 24^th of November 2012, he intentionally touched a 15 year old child, in a sexual manner whilst she was at his flat with her mother. On the 11^th of January 2013 the child, during a counselling session, made an allegation against the Appellant.
5. On the 29^th of November 2013 the Appellant was convicted of the offence of sexual assault, intentionally touching a female contrary to section 3 of the Sexual Offences Act 2003. He was sentenced to a conditional discharge order of 2 years, issued with a sex offenders' notice for 2 years and ordered to pay a victim surcharge.
6. The Judge noted that the aggravating features of the offence included an element of breach of trust and the fact that the victim was a child at the time. The Judge also noted that the appellant was otherwise a man of good character. His conduct was not in any sense premeditated or engineered and it would have been wrong to say that he had set up any meeting for the purpose of assaulting the child. The Judge considered the offence to have been a grave misjudgement on the spur of the moment which was entirely out of character but which took advantage of the vulnerability of the child.
7. In February 2014 the Disclosure and Barring Service decided not to include the Appellant on the Children's or Adults Barred list. The Disclosure Barring Services passed the information that it held to the National College for Teaching and Leadership ("NCTL") who also investigated the matter.
8. On the 18^th of December 2014 the NCTL wrote to the Appellant informing him that there was to be a hearing before a professional conduct panel on the 14^th of April 2015 to consider the following allegation :

"The Panel will hear an allegation that you are guilty of unacceptable professional conduct and/or conduct that may bring the profession into disrepute in that on the 29^th of November 2013 at Isleworth Crown Court you were convicted of the offence of sexual assault, intentionally touching a female, no penetration on the 24^th of November 2012 contrary to section 3 of the Sexual Offences Act 2003."

9. On the 14th of April, a professional conduct panel of the NCTL convened to consider the allegation. The Appellant was requested to consider whether he wished to make representations upon whether the NCTL had jurisdiction to hear the case. The Appellant's representative indicated that it was not his intention to contest jurisdiction as the Appellant accepted that he had taught in the past. The Appellant subsequently challenged the jurisdiction of the panel and the hearing was resumed on the 6^th of January 2016. On that occasion the Appellant provided additional witness evidence and set out his reasons for contesting jurisdiction. The Appellant considered that he did not have sufficient time during the first day of the hearing to seek advice from his representative as to whether he then wished to contest jurisdiction. The Appellant's representative indicated in his witness statement that the NCTL does not have jurisdiction in this matter as the total sum of any teaching undertaken by the Appellant was for one term some 15 years ago and the Appellant considered that the regulations apply only to those presently teaching. The Appellant considered, therefore, that the panel had no authority to hear allegations about a teacher not currently teaching.
10. On the 6^th of January 2016, the NCTL panel concluded:

i) That it did have jurisdiction to hear the complaint as the appellant was "a teacher" for the purposes of Section 141 A of the Education Act 2002 and Regulation 2 of the Teachers Disciplinary (England) Regulations 2012.

ii) That the allegation was proven. The Appellant had been found guilty of the offence alleged. The Certificate of Conviction was conclusive proof of this. Such a conviction amounted to unacceptable professional conduct and conduct that may bring the profession into disrepute.

iii) The panel recommended that the Secretary of State impose a prohibition order and that such an order should be reviewable after a period of 2 years.

11. The Secretary of State considered the recommendation and agreed that the Appellant should be the subject of a prohibition order. However, she concluded that a review period was not appropriate. She stated:

"I differ in my view from that of the panel. Mr Zebaida has received a serious conviction for a sexual assault on a person who was just over the age of 15 at the time. I believe that the panel has not taken sufficient account of the public concern that would arise were he to be able to seek to apply for a review period."

12. On the 11^th of February 2016 the Appellant appealed to the High Court against the Secretary of State's decision.
13. The appeal centres on three key issues namely:

i) The jurisdiction of the Respondent to make the prohibition order

ii) The finding that the Appellant's behaviour constituted unprofessional conduct or conduct that may bring the teaching profession into disrepute.

iii) The appropriateness and proportionality of the sanction.

Legal Background

14. Section 141 A of the Education Act 2002, as amended, ("the 2002 Act") is entitled "Teachers to whom sections 141 B to 141 E apply" and provides:

i) Sections 141 B to 141 E apply to a person who is employed or engaged to carry out teaching work at

a) A school in England

b) A sixth form college in England

A 16-19 academy

c) Relevant youth accommodation in England

d) Children's home in England

15. Section 141 B of the 2002 Act provides:

"Investigation of disciplinary cases by the Secretary of State

i) The Secretary of State may investigate a case where an allegation is referred to the Secretary of State that a person to whom this section applies:

a) May be guilty of unacceptable professional conduct or conduct that may bring the teaching profession into disrepute or

b) Has been convicted (at any time) of a relevant offence

ii) Where the Secretary of State finds on an investigation of a case under sub-section one that there is a case to answer, the Secretary of State must decide whether to make a prohibition order in respect of the person"

Question 1: does the Respondent have the jurisdiction to make the prohibition order?

16. It is common ground that the Appellant at the time of the offence of which he was convicted, the investigation was begun and the panel decision was made was not employed or engaged as a teacher. The only relevant work he had done was part time work for one term some twelve years prior to the misconduct and fourteen years prior to the first day of the final hearing. The Appellant asserts that he does not intend ever to work as a teacher again.
17. Section 141 A of the 2002 Act reads that it applies to a person who "Is employed or engaged to carry out teaching work". The Respondent accepts that the Secretary of State has jurisdiction only if the proper interpretation of the statute is that it should be read "Is or has been employed…".

The Argument

18. The Appellant does not contend that a teacher has to be currently employed at the date of the decision or investigation of the conduct. The Appellant states, however, that the use of the present tense can not be disregarded. The Appellant argues that the person who is employed has to be employed either at the time of the conduct complained of or at the time when the allegation is referred to the Secretary of State.
19. The Respondent argues that the literal interpretation ignores the mischief which the regulatory process is designed to address and would be inconsistent with the legislative purpose which must be to protect the public (and in particular children) and to ensure that teachers who have been convicted of relevant offences can be investigated and where necessary prohibited from teaching.
20. The Respondent refers to sections 141 D and 141 E of the Act which are said to provide further support for this construction. These sections require an employer (in the case of s141 D) or agent (in the case of s141 E) to consider making a referral to the Secretary of State in circumstances where a relevant employer has ceased to use the services of a teacher because the teacher has been guilty of serious misconduct or where a relevant employer might have ceased to use the services of the teacher had the teacher not ceased to provide them. These sections plainly provide for circumstances in which a referral can be made, even though the teacher is no longer a teacher.
21. Section 141 B provides that the Secretary of State may investigate a case where an allegation is referred to the Secretary of State that a person has been convicted (at any time) of a relevant offence.

Law

22. Both parties drew the attention of the Court to the decision in Re M (a Minor) (Care Orders) [1994] 2 AC 424. Here the House of Lords considered the use of the present tense in section 31 of the Children Act 1989.
23. That section allowed the court to make a care order if the child "Is suffering or is likely to suffer significant harm". By the time of the hearing the child was in safe care and was not suffering. The House of Lords ruled that not withstanding the use of the word "Is" the statute did not require evidence of significant harm at the time of the court's decision but that the section was concerned with whether there had been significant harm at the point at which the proceedings were commenced.
24. In giving his judgement Lord Templemann observed

"This appeal is an illustration of the tyranny of language and the importance of ascertaining and giving effect to the intentions of parliament by construing a statue in accordance with the spirit rather than by the letter of the Act."

25. Lord Nolan commented that Parliament cannot have intended that temporary measures taken to protect the child from immediate harm should prevent the court from regarding the child as one who is suffering or likely to suffer harm.
26. The decision in Re M is a clear example of the application of common sense to the interpretation of statute. It would make no sense for it to be necessary for a child to continue to suffer in order that the court have jurisdiction to hear the case. Equally it is not suggested that the decision in Re M has the effect that if a child had suffered harm in the past but had ceased to do so or to be likely to do so before the proceedings had been commenced the proceedings would still have been appropriate.
27. Both parties also referred to the decision in White v White 1983 WL 215608.
28. A decree absolute had been granted on the 24^th of April 1981. On the 18^th of May 1981 the respondent's husband left the matrimonial home. On the 14^th of October 1982 the former wife sought an injunction restraining the respondent from, among other things, assaulting or interfering with her. A literal construction of the Domestic Violence and Matrimonial Proceedings Act provided that it applied only to a man and woman who were parties to a marriage or who are at the moment of the application or hearing actually living with each other in the same house hold.
29. Lord Justice Cumming-Bruce stated

"However, having regard to the mischief at which the statute was directed, the court had little difficulty in determining that a literal construction does not give effect to the intention of parliament, for such a construction would have the effect that the very persons whom the act was designed to provide an urgent and practical remedy would, in the nature of things, usually be unable to invoke the jurisdiction."

30. The Respondent says that the analogy must apply here; otherwise the purpose of the legislation, being to protect children, would be undermined.
31. The Appellant says that this is no authority for the Respondent's case that the present tense can be ignored. The decision in White v White is specific to the facts of that case and whether parties to a marriage could include a former marriage. It cannot be read to state that "once married always married" or, by analogy, "once a teacher always a teacher".

Discussion and Conclusion On Question One

32. The protection of children must be at the heart of the education system. Those employed or engaged to teach children must deserve their trust and that of their parents and carers. It is a high degree of trust and it is vital to the maintenance of it that there is rigorous regulation of all who teach.
33. Rules of statutory interpretation provide that legislation be construed with common sense. Whilst the literal meaning of the words is important an absurd result or one contrary to the intention of Parliament should be avoided.
34. A person who is employed or engaged in teaching work who may be guilty of unprofessional conduct, conduct that may bring the teaching profession into disrepute or have been convicted at any time of a relevant offence may be referred to the Secretary of State for investigation. The Secretary of State, having followed proper procedures, may decide to issue a Prohibition Order.
35. An employer who ceases to use the services of a teacher because of serious misconduct (or might have done so had the teacher not ceased to provide those services) must consider whether information should be provided to the Secretary of State. Such a teacher is employed or engaged in teaching work at the time of the conduct or at the time that it comes to light. Common sense requires that the Secretary of State may consider the case, whether or not the person is still employed or engaged as a teacher at the time of the referral.
36. In their decision letter dated January 2016 the Panel noted what they described as "ambiguity" in the legislation. It is clear from their full and carefully worded decision that they heard argument and gave consideration to the point in time to which the phrase "is employed" relates. They balanced competing views but concluded that they did have jurisdiction as to conclude otherwise:

"Would allow those with serious allegations against them to seek to escape the potential consequences of their actions, by resigning or by drifting in and out of the profession."

37. That is not so. A common sense and plain reading of the legislation allows for referral to the Secretary of State of a person who is employed or engaged in teaching (whenever the conduct giving rise to concern takes place) or who was so employed or engaged at the time the conduct complained of takes place or comes to light. That is what the words say and what the principle in Re M enables. The outcome feared by the Respondent does not arise. The legislation, as worded, enables the regulation of teachers.
38. The legislation, as worded, does not allow for the referral of a person who is not employed as a teacher either at the time of the conduct or at the time of the referral. If Parliament has intended s141A to a person who "is or has been employed" then it could easily have drafted the section to say so.
39. Having answered question one in favour of the Appellant it is not necessary to consider questions 2 or 3. The appeal is allowed.