England and Wales High Court (Administrative Court) Decisions

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

		Civil Justice Centre, 1 Bridge Street West Manchester M60 9DJ
		16/02/2017

Mr Justice Kerr:

Introduction

1. This case is about an internationally renowned and talented double bass player who, unfortunately, is also a convicted sex offender. He committed three offences against two young women and a 17 year old girl, in 1985, 1988 and 1994 respectively. He pleaded guilty to the three offences on 11 November 2014, at Liverpool Crown Court. Macduff J sentenced him to three months' imprisonment, suspended for two years, with a 240 hours' unpaid work requirement.
2. The case raises two issues: whether the current legislative provisions conferring power on the respondent (the Secretary of State) to prohibit teachers from teaching on the ground of misconduct, apply to conduct committed in 1985, long before the present provisions entered into force; and secondly, if the answer is yes, whether the Secretary of State's decision to prohibit the appellant from teaching, was wrong and should be set aside.
3. As a result of the convictions, Mr McTier was made subject to notification requirements under the Sexual Offences Act 2003 for seven years, until late 2021. The National College for Teaching and Leadership (the NCTL) referred his case to a professional conduct panel in 2015. He admitted the convictions and sentence. In June 2016 the panel decided not to recommend to the Secretary of State that Mr McTier should be prohibited from teaching.
4. In the written decision dated 1 July 2016 against which he now appeals, the Secretary of State, acting through an official, disagreed with the panel's recommendation and decided that Mr McTier should be prohibited indefinitely from teaching in any school, sixth form college, academy, children's home or relevant youth accommodation in England, and should not be allowed to seek a review of that decision for five years, until July 2021.
5. The three female victims of the sex offences are referred to in the papers as pupils A, B and C. I shall refer to them as students A, B and C. They are entitled to the protection of anonymity. The court takes this opportunity to reaffirm the requirement that their identities must not be published; and neither must any written or electronic material be published which could lead to their identities being revealed.
6. The appeal was brought under regulation 17 of the Teachers' Disciplinary (England) Regulations 2012 (the 2012 Regulations). The appeal proceeded as a rehearing, without dissent from either party, as provided by CPR 52.11(1)(b). Since no disputes of fact arose before the panel and no oral evidence was heard before it, this is in practice no different from a review.
7. If the Secretary of State had power to make the decision challenged, the question for me then is whether the decision of the Secretary of State was "wrong" (CPR 52.11(3)(a)). A procedural irregularity is not suggested. I will defer, as appropriate, to the professional judgment of the panel and the Secretary of State, in line with the approach commended by Mr Stephen Morris QC sitting as a deputy judge of this court (as he then was) in O v Secretary of State for Education [2014] EWHC 22 (Admin) at paragraphs 54-57.

The Facts

8. Mr McTier was born on 21 November 1954. He is therefore now aged 62. During his career he has taught at various musical institutions in this country and abroad. His students include successful professional double bass players who perform worldwide. The Secretary of State has statutory responsibility for education in England. The NCTL is an executive agency of the Department for Education. Its professional conduct panel acts on the Secretary of State's behalf in matters of alleged misconduct by teachers.
9. In 1985, Mr McTier was aged 30 or 31. He was teaching at the Purcell School of Music (the PSM) in Harrow. One of the students there was student C, born on 15 January 1968. Then aged 17, she was studying the double bass. She attended Mr McTier's home in 1985 for a two hour lesson. The lesson lasted five hours. He prepared food for himself and student C. He drank wine; she drank non-alcoholic drinks. He persuaded her to sit with him on the sofa; told her his wife did not understand him; and put his arm around her back, resting it on her shoulder without her consent for about 20 minutes.
10. After she realised that she had missed the last tube, he offered her the spare bedroom. She went upstairs. After she emerged from the bathroom, Mr McTier attempted to touch her breasts, without warning. She rebuffed him, slept in the spare bedroom and left the next morning. Later, she confronted him angrily, warning him not to do such a thing again. She continued to be taught by him at another music college and subsequently became a member of a BBC orchestra.
11. About two or three years later in 1988, Mr McTier, aged 34, was a visiting double bass teacher at the Royal College of Music (RCM) providing master classes. Among his students was student A, then aged 22. She attended his home for a private lesson on 10 March 1988. No one else was present at the address. He offered student A a glass of wine, which she accepted. She sat next to him on a sofa at his invitation.
12. He put his arm over her back and touched her breast over her clothing, without warning. Student A immediately left his home. Later, he was an examiner at her final recital on 24 March 1988. The exact timing of these events in 1988 is not clear, since police records did not tally with Mr McTier's recollection, set out in a statement of agreed facts. The discrepancies are immaterial.
13. About six years after that, in 1994, Mr McTier was aged 40. He was then teaching at the Royal Northern College of Music (RNCM). One of his students was student B, then aged 21. She was in the process of applying to join the RNCM. On one occasion, she drove Mr McTier to his accommodation after a private double bass lesson at the RNCM. On arrival, she accepted his offer to come inside to collect some CDs.
14. Once inside, she accepted a small glass of wine and they listened to music sitting on the sofa. Mr McTier then told her that he found her attractive and, without warning, touched her breast over her clothing with his hand. Student B immediately left. Her application to join the RNCM was successful and he continued to teach her there.
15. The prosecution's written opening at the subsequent criminal trial added an allegation that he tried to kiss her and that she turned her head away. This is not replicated in the agreed statement of facts used by the NCTL. Other aggravating features in the aftermath of the offence are also omitted from the agreed statement of facts.
16. Certain further allegations against Mr McTier were also included in the Crown's subsequent case against him. They were not the subject of separate counts on the indictment but were relied upon as establishing a "propensity" to commit offences of this type. They are not mentioned in the agreed statement of facts used by the NCTL.
17. Some 19 years later, Mr McTier was arrested on 10 May 2013 and interviewed about allegations made by student B. He provided a prepared statement denying any sexual assault on her or other inappropriate conduct, and then answered "no comment" to further questions, probably on legal advice.
18. He was arrested again on 22 August 2013 and asked about allegations made by students A and C, and others. He repeated his denials, including denying any sexual offences committed against students A and C. He was charged with offences relating to students A, B and C. There were two counts of attempting indecently to assault student C; one count of indecently assaulting student A; and one of indecently assaulting student B.
19. The case was prepared for a contested trial. It is not clear whether other counts, not proceeded with, were on the indictment. At some stage, Mr McTier pleaded guilty to three of those offences. He was convicted of only one of the two counts relating to student C. For his guilty pleas, he was given "substantial credit" by the sentencing judge, Mr Justice Macduff. The judge's sentencing remarks were among the papers subsequently considered by the panel of the NCTL.
20. Apart from giving credit for the guilty pleas, the judge professed himself "satisfied that you do not pose a risk for the future". He noted the breach of trust and the adverse effect on the career and confidence of one of the victims; on the other hand, he accepted that Mr McTier was "clearly remorseful". He drew back from a sentence of immediate custody, suspending the three month prison sentence for two years, with an unpaid work requirement of 240 hours. That sentence was passed in respect of each of the three offences, to run concurrently. The consequent notification period on the sex offenders' register was seven years.
21. In September 2015, the Disclosure & Barring Service wrote to Mr McTier accepting that it was not appropriate to include him in the "Children Barred List"; nor in the "Adults' Barred List".
22. In October 2015, the NCTL published non-statutory guidance entitled "Teacher Misconduct: the Prohibition of Teachers". Much of the guidance was devoted to paraphrasing the relevant statutory provisions, to which I am coming. The purposes of a prohibition order were expressed as the protection of pupils and other members of the public, the maintenance of public confidence in the teaching profession and the declaring and upholding of proper standards of conduct.
23. Professional conduct panels appointed by the Secretary of State to advise her, were encouraged to "apply the principle of proportionality, weighing the public interest considerations … against those of the teacher. This will include consideration of any mitigation in relation to the seriousness of the behaviour in question."
24. A non-exhaustive list of factors relevant to whether a prohibition order would be appropriate was set out in bullet points. Among then, not surprisingly, were "abuse of position or trust… or violation of the rights of pupils"; and "sexual misconduct e.g. involving actions that were sexually motivated or of a sexual nature and/or that use or exploit the trust, knowledge or influence derived from the individual's professional position".
25. On 2 November 2015, in anticipation of the proceedings before a panel of the NCTL, Mr McTier wrote to the NCTL enclosing Mr Justice Macduff's sentencing remarks and stating that "I have no intention of teaching in any UK educational institution in the future…". Following its initial investigation, the NCTL notified Mr McTier by letter of 10 December 2015 of its decision to refer the matter to a professional conduct hearing. The allegations against him consisted of the criminal convictions and sentence. On 18 January 2016 Mr McTier signed a document admitting the allegations.
26. On 14 March 2016, Mr McTier signed the agreed statement of facts to which I have already referred. During March and April 2016, with help from his solicitor, he was able to assemble an array of written testimonials from fellow musicians and former students, some of whom had gone on to become distinguished performers, from around the world. These testified eloquently to his talents as a teacher and musician. They included mention of work in which he was engaged, teaching young female musicians among others, without raising any concerns. These written testimonials were made available to the panel.
27. It was agreed that an oral hearing was unnecessary as there were no disputed issues of fact. The presenting officer from the NCTL produced written submissions dated 8 April 2016. They included at paragraph 7:-

There is no suggestion that Duncan McTier lacked an understanding of the issues, facts or consequences. He no longer works as a teacher; has accepted responsibility for their actions [sic] and has co-operated with the [NCTL].

28. Mr McTier's solicitors also provided written representations, dated 26 June 2016. They emphasised the historic nature of the offences; that Mr McTier was working overseas; that he is high demand when in this country; that a ban on teaching here would amount to further punishment and would deprive his British students of the benefit of his tuition. They relied on the content of the written testimonial letters.
29. The decision against which Mr McTier now appeals was then issued on 1 July 2016, signed by the decision maker, Mr Alan Meyrick, on behalf of the Secretary of State. The composite decision document comprised the panel's detailed written decision with its reasoning and recommendation, followed by, within the same document, the much briefer decision and reasons made on behalf of the Secretary of State at the end of the document.
30. In that document, after various statements about the background and preliminary matters which I need not go into, the panel summarised the evidence and findings of fact, which were in accordance with the statement of agreed facts. The panel noted the adverse features of the case: breach of the high standards to be expected of teachers, the treating of pupils badly, failing to safeguard their well being and observe boundaries. It noted that the convictions all related to "pupils aged 17 and over"; and that the offences had attracted a sentence of imprisonment, albeit suspended.
31. They noted the mitigation alluded to by the sentencing judge and the historic nature of the offences; but nevertheless found them "relevant to Mr McTier's ongoing suitability to teach". They considered the question whether a prohibition order would be "an appropriate and proportionate measure, and whether it is in the public interest to do so" i.e. to make such an order. Taking account of the judge's view that Mr McTier did not pose a risk for the future, the panel concluded that "the public interest consideration of the protection of pupils and the public" was not relevant in this case.
32. After referring at some length to the guidance I have mentioned, and balancing the adverse features against the mitigating factors, the panel went on to consider its decision. In conclusion, it stated that it had "seen no evidence to suggest that any similar concerns or incidents have occurred since that date [1994] or to suggest that Mr McTier poses a continuing risk". The panel then referred to the testimonials in support of Mr McTier's "good character, his abilities as a teacher, his integrity and professionalism".
33. They quoted from some of them, commenting that they found them "convincing and persuasive". They referred to the remorse to which the sentencing judge had drawn attention. Finally, they stated the conclusion that a prohibition order would not be a proportionate and appropriate response. They therefore recommended that no such order be imposed.
34. The decision maker on behalf of the Secretary of State, Mr Meyrick, begged to differ. He briefly repeated some of the background facts and features of the case, mainly in the form of bullet points. He went on to state:-

I have also taken into account the need to balance the public interest with the interests of the individual teacher, Mr McTier. I have also taken into account the need to be proportionate. I have also given very careful consideration to the need to maintain public confidence in the profession.

I have given careful consideration to the recommendation of the panel, noting their comments on the case and on the comments made by the judge. I have also noted the elements of mitigation considered.

I have also given particular consideration to the time factors of this case and to the comments made in respect of risk of harm.

35. Having considered all those matters, the decision maker stated that he differed from the panel's judgment and decided that in view of the seriousness of the convictions and the need to maintain public confidence in the profession, "I do not consider that whilst Mr McTier has a Sex Offenders notice he should be allowed to teach". He therefore imposed an order that Mr McTier be "prohibited from teaching indefinitely and cannot teach in any school, sixth form college, relevant youth accommodation or children's home in England". He could apply for the prohibition order to the set aside but not until 8 July 2021, five years from the date of the order.
36. Those, then, are the facts leading to Mr McTier's appeal to this court. Neither party referred, in the proceedings before the panel, to the question whether Mr McTier was a person against whom the Secretary of State had power to make a prohibition order. Although each party sought to gain forensically from the other's omission to raise the issue, it is of no significance that they did not do so. If the Secretary of State lacked the power to impose the order, Mr McTier's failure to take the point below cannot confer jurisdiction where none exists. And if, conversely, the power did exist, the Secretary of State was not wrong to take its existence as read.

Evolution of the Statutory Scheme

37. Throughout the period from 1985, when Mr McTier first offended, to the present day, statutory powers have existed enabling the Secretary of State in certain cases to prohibit teachers from teaching at certain types of institution on misconduct grounds. The coverage of the provisions has varied over time.
38. As at 1985, the Secretary of State had power by regulations to make provision for prohibiting or restricting the employment or further employment of persons as teachers, including in cases of misconduct, at maintained schools, non-maintained special schools, further education establishments provided by a local education authority and further education establishments maintained substantially by grants from local education authorities or under the 1944 Education Act: see section 27 of the Education Act 1980.
39. The power was exercised by making the Education (Teachers) Regulations 1982. Regulations 6 and 10 of those Regulations empowered the Secretary of State to prohibit the employment or continued employment of a person as a teacher at such an educational institution in a case of misconduct, whether or not evidenced by conviction of a criminal offence.
40. It is common ground that the PSM, attended by student C in 1985, was not a school to which those provisions applied at the time. It was an independent school providing secondary education, and specialising in music. It is not disputed that Mr McTier was engaged as a teacher at the PSM in 1985. If he had been convicted at the time, he could not have been barred from teaching at the PSM, or from teaching privately, but he could have been barred from teaching in the types of establishment mentioned in section 27 of the 1980 Act.
41. In the Education Reform Act 1988, section 218 replaced the old section 27 of the Education Act 1980. Section 218(6), read with subsections (10) and (11), contained similar provisions, though taking account of some changes to the types of educational institutions then in existence. The coverage of any barring order remained institutions that were either wholly or substantially state funded.
42. The rule making power under section 218 was not exercised until 1 August 1989, by which time Mr McTier had (the previous year) indecently assaulted student A. The rules were similar to those replaced and were contained in the Education (Teachers) Regulations 1989. Transitional provisions in Schedule 1 preserved pre-existing prohibition orders made under the previous legislation, but like their predecessor regulations, they said nothing about their applicability or otherwise to conduct committed before they came into effect.
43. In 1988, when Mr McTier indecently assaulted student A, it is common ground that the institution she attended, the RCM, was not one falling within the regime of the 1982 Regulations. Accordingly, Mr McTier's indecent assault on student A could have led to a barring order at the time, but such an order could only have prevented him from working at the types of institution mentioned in section 27 of the 1980 Act. It could not have prevented him from teaching at the RCM or privately. When section 218 of the 1988 Act, and the 1989 Regulations, entered into force, teaching at the RCM and private teaching could still not be prevented by the power of prohibition then in force.
44. In 1994, the year Mr McTier indecently assaulted student B, the law changed with effect from 1 March 1994. As it is not clear on what date in 1994 the indecent assault was committed, it is not clear which regime applies. Up to 28 February 1994, the law was not materially different (under the Education (Teachers) Regulations 1993) from what it had been under the 1989 Regulations. From 1 March 1994, amending regulations came into effect. They were the Education (Teachers) (Amendment) Regulations 1994, also made under section 218 of the Education Reform Act 1988.
45. The innovation was to include within regulation 7 of the 1993 regulations a new provision including employment at an independent school within the categories of "relevant employment"; which meant that a prohibition order from the Secretary of State could stop a teacher working in an independent school, as well as a maintained school.
46. All the updating regulations included transitional provision at Schedule 1, preserving the effect of prohibition orders made under past legislative regimes. None contained any provision about applicability or otherwise to conduct occurring before they entered into force.
47. It is not suggested that the RNCM, attended by student B in 1994, was an institution falling within the class of institutions covered by the then applicable regulations. Thus, it is common ground that Mr McTier's engagement to teach at the RNCM would not, of itself, have grounded a prohibition order arising from his assault on student B, had it been discovered at the time; but he could have been barred from teaching at an independent school (such as the PSM), in addition to the various types of state funded institutions.
48. After that, the Teaching and Higher Education Act 1998 created the General Teaching Council for England (GTCE). It maintained a register of teachers. A person could not be employed as a teacher in a maintained school or special school unless on the register (regulation 3 of the Teachers (Compulsory Registration) (England) Regulations 2001). A teacher could not be on the register if subject to a barring direction by the Secretary of State: section 3(3) of the 1998 Act.
49. The GTCE was also itself invested with disciplinary powers in relation to registered teachers, against whom it could make a prohibition order on misconduct grounds. The Secretary of State's power to make prohibition orders was preserved and re-enacted in successive incarnations contained in regulations made in 2000 and 2001, the detail of which I need not relate.
50. With effect from 31 March 2003, section 142 of the Education Act 2002 (the 2002 Act) replaced and updated the Secretary of State's powers to prohibit teachers from providing education at a school or further education institution or under a contract with a local education authority for supply teaching. Such a direction could be given on, among other grounds, that of misconduct.
51. Pursuant to section 142 of the 2002 Act, regulations entered into force from 1 June 2003. They were the Education (Prohibition from Teaching or Working with Children) Regulations 2003. They included provision at regulation 3(2) for continuation in force of prohibition orders made under the then 2000 Regulations. Again, there was no mention of the applicability or otherwise of the 2002 Act regime to conduct committed before it entered into force.
52. Section 142 of the 2002 Act lasted until 12 October 2009, when it was repealed by provisions in the Safeguarding Vulnerable Groups Act 2006. The specific provision for barring directions in relations to teachers was replaced by the broader "children's barred list" maintained by a body called the Independent Barring Board. The GTCE's 24 years of life ended on 1 April 2012 with the advent of the Education Act 2011 (the 2011 Act). From that date, the provisions I am directly concerned with entered into force. They are sections 141A through to 141H of the 2002 Act, inserted into it by section 8 of the 2011 Act (and since modified, but not materially). The same day, new regulations of concern in this case entered into force. They are the Teacher's Disciplinary (England) Regulations 2012 (the 2012 Regulations).
53. I come at last to the content of the provisions directly in issue, having placed them in their historical context. I was not referred to any parliamentary or other preparatory material. But it is plain that the new provisions in the 2002 Act, and the 2012 Regulations, were enacted as a package.
54. The 2002 Act contains the bare bones of the current scheme for the issuing of prohibition orders against teachers by the Secretary of State. The 2012 Regulations create a new procedural regime, whereby a professional conduct panel considers the case and makes recommendations to the Secretary of State, who then decides whether to make a prohibition order. The panel acts on behalf of the Secretary of State, but its composition must include one or more current or former (in the previous five years) teachers (regulation 6).
55. Where a person "has been convicted (at any time) of a relevant offence" (section 141B(1)(b)), the Secretary of State may investigate if the person is one to whom section 141B applies. It does apply if that person "is employed or engaged to carry out teaching work at" a school, sixth form college, 16-19 academy, relevant youth accommodation in England or a children's home in England (see section 141A(1)). If the Secretary of State so decides, she may make a "prohibition order" against the teacher. A prohibition order is (see section141B(4)): "an order prohibiting the person to whom it relates from carrying out teaching work".
56. What is "teaching work"? Section 141A(2) refers the bemused reader back to section 141A(1), which refers to "regulations under this section". When you look across to the 2012 Regulations the answer turns out to be (under regulation 3) planning and preparing lessons and courses for pupils; delivering lessons to pupils; assessing the development, progress and attainment of pupils; and reporting on the development, progress and attainment of pupils. By regulation 3(2) "delivering" lessons includes delivery through distance learning or computer aided techniques.
57. Who is a pupil? The answer is unclear. Is it confined to a "pupil" at a school, sixth form college, youth accommodation or a children's home in England? The guidance to which I have referred suggests that it is. It states (at paragraph 4) that a "prohibition order means that the person concerned is not allowed to undertake unsupervised teaching work in schools or the other settings set out above" i.e. schools, including academies, maintained schools, non-maintained schools, special schools, independent schools, sixth form colleges, relevant youth accommodation and children's homes (see paragraph 2 of the guidance).
58. There is no definition of "pupil" in the 2002 Act or the 2012 Regulations. But the general interpretation provision, section 212 of the 2002 Act, refers across to the Education Act 1996 and states that provisions including sections 141A and 141B are to be construed as if those provisions were contained in that Act (section 212 (2)).
59. Sure enough, the 1996 Act provides in section 3(1) that a pupil means a person for whom education is being provided at a school, subject to certain exceptions that do not assist. A "school", however, in the 2002 Act is only one of the types of educational institutional at which a teacher may be barred from teaching. He or she may also be barred from teaching at, for example, a 16-19 academy, which by section 4(1B) of the 1996 Act "is not a school".
60. Mr Moffett, for the Secretary of State, invited me to read into regulation 3 of the 2012 Regulations, an implied limitation whereby the "pupils" there mentioned for the purpose of defining "teaching work" must be read as being confined to pupils at an institution described in regulation 2. That would mean the guidance is correct. He relied on section 11 of the Interpretation Act 1978, stating that where an Act confers powers to make subordinate legislation, expressions used in that legislation have, unless the contrary intention appears, the meaning which they have in the Act.
61. Mr Moffett's construction is not assured by section 11 of the Interpretation Act. There is a patchwork quilt of overlapping definitions that are only partly consistent with each other. It would have been simple for the Secretary of State to have expressly confined the definition of "teaching work" rather than by a process of reading down the definition. Furthermore, it is not obvious why the public interest in protecting children against being taught by teachers who have committed misconduct, should not apply to private tuition as well as tuition at an institution.

The Issues

62. From the parties' skeleton arguments and at the oral hearing, it became clear that I am required to decide only two issues. The first is whether Mr McTier is a "person" to whom section 141B of the 2002 Act applies. That depends whether he was at the relevant time "a person who is employed or engaged to carry out teaching work at… a school in England…" (section 141A(1)(a)). The second issue I must decide is whether, if he is such a person, the Secretary of State's decision was "wrong" within the meaning of CPR 52.11 (3)(a).
63. The following matters were common ground. It was agreed that unless Mr McTier is a "person" falling within the words of section 141A(1)(a), the decision to prohibit him from teaching is a nullity and cannot stand. It is agreed that he is a person who "has been convicted (at any time) of a relevant offence" within section 141 B(1)(b) of the 2002 Act. It is also agreed that Mr McTier was in 1985 engaged to teach at the PSM, and that the character of PSM at the time was such that it was "a school in England" within what is now section 141A(1)(a).

The first issue

64. The first issue therefore turns on whether it is permissible to interpret the words "person who is employed or engaged to carry out teaching work at… a school in England" as including Mr McTier's engagement to teach at the PSM in 1985, at the time he attempted indecently to assault student C.
65. Ms O'Rourke QC, for Mr McTier, submitted that it was not permissible to construe the words "is employed or engaged…" as embracing that engagement some 30 years prior to the referral of the matter to the NCTL. Mr Moffett, by contrast, submitted that those words did include any employment or engagement to teach in a school in England, however long ago, without any temporal limit.
66. In support of Mr McTier's position, Ms O'Rourke made the following main points:-

(1) although Mr McTier accepts that student C was in 1985 a "pupil" within the meaning of what became the 2012 Regulations, students A and B were not in, respectively, 1988 and 1994, pupils within that later definition, being well over compulsory school age.

(2) Although the PSM in 1985 was a "school" within what later became the meaning of that word within the 2012 Regulations, the RCM in 1988 and the RNCM in 1994 were not schools within that provision; they were further education institutions providing specialist tertiary education.

(3) The amendments made in the 2011 Act to the 2002 Act should be taken to have effect in relation to conduct occurring on or after the commencement date of the "parent Act", namely 1 April 2003. It would not be sensible or appropriate to construe those 2012 amendments as applying to acts already committed before the instrument being amended, the 2002 Act, was passed or even contemplated.

(4) Two cases to which I was referred - Zebaida v Secretary of State for Education [2016] EWHC 1181 (Admin), [2016] ELR 321 (HHJ Molyneux) and Alsaifi v Secretary of State for Education [2016] EWHC 1519 (Admin) (Andrews J) - were not of assistance to the court since they dealt with different facts in which the alleged misconduct had occurred relatively recently, when referral to the NCTL took place, and when the decisions of the Secretary of State were made.

(5) Neither case was factually similar to this one, where the only conceivable foundation for the Secretary of State's power to make the prohibition order derived from events in 1985 and the proposition that the PSM was in 1985 a "school in England" within section 141A(1) of the amended 2002 Act.

(6) Applying the principles derived from Secretary of State for Social Secruity v Tunnicliffe [1991] 2 All ER 712, per Staughton LJ at 724f-g; L'Office Chérifien des Phosphates v Yamashita-Shinnihon Steamship Co. Ltd [1994] AC 486, HL, per Lord Mustill at 524-5; and Antonelli v Secretary of State for Trade and Industry [1998] QB 948, CA, per Beldam LJ at 957-9, the purpose of protecting children and prevention of misconduct by teachers was not sufficient to reach the conclusion that the provisions in question should be construed as applying to conduct committed long before they were contemplated, let alone enacted.

(7) There was in 1985, and is now, no clear definition of who is a "teacher". During the era of the GTCE, it was clear whether a person was a teacher or not from the requirement that he or she be on the register. There is no longer any register; nor was there in 1985. The legislative history in that regard does not support the degree of retroactivity contended for by the Secretary of State.

(8) As a matter of language, the use of the present tense of the verb "is" in section 141A(1) of the 2002 Act, as amended in 2012, cannot without doing violence to language be reconciled with giving to the word "is" the meaning "was 30 years ago".

(9) Parliament had not, when amending the 2002 Act, stated that the conduct alleged to be misconduct may have been committed "at any time". Yet those were the words used to describe the timing of any conviction for a relevant offence which may be the subject of misconduct proceedings. Parliament's omission of those words from the amendments in the 2011 Act may be taken to have been deliberate.

67. Mr Moffett for the Secretary of State, contended that her power to make the prohibition order in this case was established by Mr McTier's engagement in 1985 to teach at the PSM, a school in England, at the time when he attempted indecently to assault student C who, submitted Mr Moffett, was a pupil there at the time. In support of his case, he advanced the following main points:

(1) The Secretary of State accepted that neither the RCM in 1988 nor the RNCM in 1994 were schools within what became the meaning of that word in the amended 2002 Act and the 2012 Regulations. She also accepted that students A and B were both adults and not pupils within the later meaning of that word.

(2) However, there could be no temporal limit imposed in relation to when the conduct complained of had been committed, on the application of established principles of statutory interpretation.

(3) Zebaida v Secretary of State for Education and Alsaifi v Secretary of State for Education were authority in the present context for the well known proposition (derived from e.g. McCann v Wright [1955] 1 WLR 1556, 1564 per Evans LJ; and Re M (a Minor) (Care Orders: Threshold Conditions) [1994] 2 AC 424, per Lord Templeman at 438 and 440) that use of the present tense in legislation need not to be interpreted literally, if to do so would be inconsistent with the purpose of the provision.

(4) Specifically, and although the facts in Alsaifi were different, the reasoning of Andrews J at paragraphs 68-9 directly support the degree of retroactivity contended for by the Secretary of State. Andrews J reasoned that the verb "is" in section 141A means is "at a time which is relevant". She went on to state in paragraph 69 that it would be sufficient if a person had met the necessary criteria in section 141A "at the time of the conduct complained of…". The reasoning of Judge Molyneux in Zebaida at paragraphs 37-38 is to similar effect.

(5) As regards to the purpose of the legislation, namely to protect children, Andrews J reasoned in Alsaifi at paragraph 56 that "a purposive construction would embrace someone who was a teacher at the time of the conduct complained of, since it is his conduct in (or relating to) that professional role that would be the concern of the NCTL".

(6) The authorities on applicability of legislation to conduct occurring before it was enacted (Secretary of State for Social Security v Tunnicliffe, L'Office Chrifien des Phosphates v Yamashita-Shinnihon Steamship Co. Ltd and Antonelli v Secretary of State for Trade and Industry) support the proposition that Mr McTier's conduct towards student C in 1985 when he was engaged as a teacher at the PSM, is sufficient to confer the necessary power on the Secretary of State.

(7) This is so because it would not be unfair on Mr McTier to construe the provision in section 141A in that manner; and there is no indication that the legislature intended to exclude its applicability to misconduct merely because it was committed a long time ago.

(8) In particular, the applicable legislation in 1985 included a power in the Secretary of State to bar Mr McTier from teaching in a maintained school, albeit that he was then not teaching in one; and after that, successive legislative regimes applicable in 1988 and 1994 likewise rendered him amenable to barring under the then legislative regime, which was extended to independent schools from 1 March 1994.

(9) It was necessary to construe the legislation as applicable to past conduct, whenever committed, to avoid defeating the public interest in dealing with such conduct even if it were not discovered until many years after it had occurred. The passage of time should be considered at the stage of considering the appropriateness or otherwise of a prohibition order, and not as depriving the Secretary of State of the power to make one.

68. I have carefully considered the rival contentions summarised above, and I turn to my reasoning and conclusions. I begin by observing that it is a pity the legislation does not make clear on its face the extent if any of its applicability to conduct occurring before it was enacted. It would have been simple for words such as "conduct, whenever committed" to have been included, were that the intention. Nor has any extract from Hansard or any other legitimate aid to construction outside the legislation itself been cited to me. Nonetheless, it is clearly open to the court to interpret the legislation in the manner contended for by the Secretary of State, if I were to accept her submissions.
69. I do not think the recent decisions of Judge Molyneux in Zebaida and of Andrews J in Alsaifi are directly in point. In Zebaida the conduct complained of occurred long after the person concerned had ceased to be a teacher. That is not the position here. In Alsaifi the person concerned "serendipitously" happened to be engaged in qualifying teaching work at the time of the hearing before the professional conduct panel, and when the prohibition order was made; but had not been so engaged either at the time of the conduct complained of or at the time of the referral of that conduct to the NCTL: see paragraph 3 of Andrews J's judgment.
70. That said, I accept that both cases support the view that conduct committed before the relevant legislation came into force is not, in principle, to be excluded as irrelevant. But that proposition is obvious anyway. What I have to decide is whether it flows from a fair and correct reading of the provisions.
71. I bear in mind the point emphasised in Antonelli v Secretary of State for Trade and Industry: that a regulatory statute conferring power to protect the public against past conduct is very much undermined if it is only permitted to apply to conduct committed after the statute takes effect. That gets the statute off to a very slow start.
72. The case was one where the plaintiff had committed, in the USA, what in this country would be called arson, before becoming an estate agent in this country. A supervening statute enabled a public official to disqualify him. The Court of Appeal upheld the disqualification even though the arson preceded the statute. Beldam LJ commented at 959A-B that it would be "quixotic to suppose that Parliament intended that the public should be protected from the activities of a practitioner convicted a week after the Act came into force but not from those of the practitioner convicted a week before".
73. Beldam LJ made that comment after referring to the seminal speech of Lord Mustill in L'Office Chérifen, in particular at pages 524-5. At 525D, Lord Mustill endorsed Staughton LJ's proposition in Tunnicliffe, that "Parliament is presumed not to have intended to alter the law applicable to past events and transactions in a matter which is unfair to those concerned in them, unless a contrary intention appears….".
74. Lord Mustill pointed out that a court considering such an issue must examine variables such as the degree of retrospective effect contended for; the value of the rights affected and the extent to which they are diminished or extinguished by the proposed retrospective effect; the degree of clarity or otherwise of the language used, and the circumstances in which the legislation was enacted. He added that while the exercise involves looking separately at those various factors, the approach proposed "involved a single invisible question, to be answered largely as a matter of impression…" (525H-526A).
75. In this case, the form of retroactivity contended for is not the strong form where vested or accrued rights are retrospectively taken away; but a weak form involving only the application of an adjusted sanctions regime to conduct of the type which, in a broad sense, was already the subject of a similar though narrower sanctions regime at the time of the conduct complained of. The significance of the distinction between these two forms of retroactivity was emphasised in Wilson v First County trust Limited (No 2) [2004] 1 AC 816, per Lord Hope at paragraph 98, referring to R v Field [2003] 1 WLR 882.
76. In this case, I start from the position in 1985. When Mr McTier began teaching at the PSM, he was subject to the regime contained in the 1982 Regulations, as I have mentioned. Under that regime, the offence he committed could, if discovered at the time, have led to a barring order preventing him from teaching at a maintained school, even though he was not teaching at one. Thereafter, the legislative regime expanded by accretion, during the 1980s and thereafter, in the manner I have described, up to the present day.
77. The coverage of the protective regime progressively expanded as the imperative of protecting children moved up the political agenda. With each legislative change, continuity was provided for in the form of the continuing efficacy of prohibition orders imposed under the predecessor regime. Applying the reasoning in Antonelli, it cannot have been intended that each change to the legislation would require that the new provisions be applied only to conduct occurring after the change took effect.
78. The enactment of the original section 142 of the 2002 Act, effective from 1 April 2003, must in my judgment be viewed in the same way. Clearly, the replacement regime it enacted was capable of applying to conduct committed before 1 April 2003. I see no unfairness in that conclusion. Teachers, through the 1980s and since, may be taken to have been aware that they were teaching in an environment of incrementally increasing regulation and available sanctions. I conclude that Mr McTier could not have complained if he had been the subject of a prohibition order made shortly after 1 April 2003, by reference to his past conduct.
79. Nevertheless, I have had to consider carefully whether the amendments that took effect on 1 April 2012 should be interpreted in the same manner with respect to past conduct. The legislative technique used was rather different. Instead of one primary statute replacing another, or one set of regulations replacing another, the primary statute was amended by another primary statute, the 2011 Act. I therefore ask myself whether this change of technique makes any difference. There may be greater force, in this instance, in Ms O'Rourke's proposition that these amendments cannot be taken to have applied to conduct permitted before the entry into force of the primary statute that was being amended.
80. In the end, I have concluded that the different legislative technique used when making the 2012 amendments wrought by the 2011 Act, does not lead to the conclusion that they are incapable of applying to conduct before the amended instrument (which Ms O'Rourke called the parent Act), namely the 2002 Act, entered into force. The substance of the amendments, taken together with the 2012 Regulations, was a continuation of the trend towards increased coverage and sophistication of the disciplinary regime.
81. I appreciate that, according to Mr Moffett's submissions, the conduct complained of can have occurred at any time, however long ago in the past. In this case it was about 30 years before the prohibition order was made. In another case, it could be 40 or 50 years; even, in theory, before the Second World War. However, the time that elapsed between the conduct and the sanction was the amount of time it took to bring Mr McTier to justice and, thereafter, to operate the disciplinary machinery. I do not see why it is unfair on him that he does not benefit from the length of the period during which he was able to avoid prosecution.
82. In the result, I prefer the submissions of the Secretary of State on the first issue and I hold that she had the power to impose a prohibition order because Mr McTier was a "person" to whom section 141A(1) of the amended 2002 Act applied.

The second issue

83. I turn to the second issue: whether the Secretary of State's decision was wrong and should be set aside. Ms O'Rourke submitted that the decision was perverse and disproportionate. She relied on the following main points:-

(1) The recommendation of the panel should carry great weight; it is trained, has considerable expertise and must include a teacher.

(2) The decision contains no reasoning to speak of, apart from the proposition that Mr McTier ought not to be allowed to teach while on the sex offenders' register.

(3) The panel's approach was thorough and diligent. The Secretary of State's decision did not include a reasoned justification for disagreeing with the panel.

(4) The register is a different type of regulatory instrument from a prohibition order; it requires notification of the person's address, and the like.

(5) The definition of "teaching work" in regulation 3 of the 2012 Regulations is very wide. Although the Secretary of State adopts a more limited interpretation, the prohibition order may prevent Mr McTier from giving private tuition; that would be grossly disproportionate.

(6) Alternatively, if the prohibition order is limited to preventing teaching at schools and the other institutions mentioned, it would still prevent Mr McTier from providing master classes at an institution such as the PSM, either to a single student or more than one student. That, too, would be disproportionate.

(7) The decision included an incorrect use of the word "pupils"; students A and B were not pupils at all, on any view of the meaning of that word. They were young women in their early 20s who were students of music.

(8) The offences themselves were opportunistic rather than premeditated. There had been no repetition in the 22 years since 1994. Only one victim was a child, and nearly an adult. The students continued to be taught by Mr McTier after the offences.

(9) While there was admittedly a serious abuse of trust, the degree of unwanted touching was limited and not persisted in after the victims made clear it was unwelcome. Consumption of wine was a common feature. The sentencing judge had accepted the absence of any risk of recurrence, not surprisingly in view of the 20 year period between the last offence and sentence, and the testimonials provided by Mr McTier.

(10) While the matter was prepared for a contested trial, the counts on the indictment were not all proceeded with and the credit for guilty plea given by the sentencing judge was substantial. Moreover, he accepted that Mr McTier's remorse at the offences was genuine.

84. For the Secretary of State, Mr Moffett made the following main points in defence of the decision:

(1) It is not enough for the court to disagree with the decision; it has to be wrong in the recognised sense of being flawed in some way; the matter is primarily for the judgement of the Secretary of State. She is not bound to accept the panel's recommendation.

(2) The panel and the Secretary of State agreed that several factors mentioned in the guidance, pointing in the direction of a prohibition order, were present: a serious departure from the required standard of conduct affecting the educational wellbeing of pupils; abuse of a position of trust and violation of pupil's rights; sexual misconduct; and the commission of serious criminal offences crossing the custody threshold.

(3) While it was not suggested that students A and B were "pupils" in the statutory sense, student C was. The reference to "pupils" in the decision should be understood as helping define those who undertake teaching work and thus can be subject to a prohibition order.

(4) The width of the prohibition order made was correctly identified in the decision by the Secretary of State. The order made does not prevent Mr McTier from giving private tuition; it only prevents him from teaching at a school, sixth form college, relevant youth accommodation or a children's home in England.

(5) One of the victims was a schoolgirl. The offence against her was especially serious and occurred because she was attending the school where Mr McTier was engaged to teach.

(6) The three offences over nine years represented a consistent pattern of offending behaviour. The facts of the offences were similar. It was not offending committed during a momentary lapse of reason.

(7) The abuse of trust was especially serious because Mr McTier took advantage of his position to gain unsupervised access to the victims. There is no good explanation of why the offences were committed. The sentencing judge did not explain why he accepted that there was no risk of the offending being repeated.

(8) Mr McTier denied the offences when interviewed by the police. The case had to be prepared for a contested trial. Despite the judge giving him substantial credit for his guilty pleas, they had to be seen in that context.

(9) While Mr Moffett accepted that the reasoning in the decision document is a bit thin, no "reasons" challenge was brought and the reasoning was not, in any case, so deficient as to render the decision flawed.

85. I turn to consider my reasoning and conclusion. I start with a slightly unusual feature of this appellate jurisdiction. CPR 52.10(1) refers to the appeal court having "all the powers of the lower court". As Collins J pointed out in Brown v Secretary of State for Education [2015] EWHC 643 (Admin), at paragraphs 19-20, the Secretary of State is not a court. Nevertheless, it is accepted that CPR 52 applies and she is effectively treated as a court. Ms O'Rourke was right to point out that the language of CPR 52.10 does not comfortably sit with the statutory scheme in this appeal.
86. I fully recognise that the primary judgment is one for the Secretary of State and, before that, the panel; and that a decision is not wrong merely because the panel's recommendation is not accepted; still less, merely because the court would itself have reached a conclusion different to that of the decision maker.
87. I accept, furthermore, that the court should be slow to require reasoning in written decisions of this kind which descends into great detail. The reasons must be sufficient to demonstrate a fair and rational consideration of the issues, but they need not be discursive. It would be wrong for the court to give encouragement to "defensive" decision writing.
88. The degree of deference to the judgement of the Secretary of State, even in a case where the decision maker ventures to differ from the panel's recommendation, should be considerable; but it is not identical to the Wednesbury standard that is applied in judicial review cases. It is possible for the decision to be "wrong" in a case where it might survive a challenge founded on classic public law principles.
89. Thus if the judge is persuaded that the decision is disproportionately harsh, even according considerable deference to the professional judgement of the decision maker, the court can set it aside. Accordingly, the well known proposition in judicial review proceedings, that the weight to be attached to a particular material factor is for the decision maker and not the court, must be appropriately qualified in this appellate jurisdiction.
90. I come back to the decision itself. It is clear that the decision maker, Mr Meyrick, had in mind what the panel had found, and its recommendation, whether or not (which is not clear) he had read all the documents in the case. He refers to having given "very careful consideration to this case and to the recommendation of the panel".
91. He correctly summarised the features of the case, in bullet points, which according to the guidance pointed in the direction of a prohibition order being appropriate. These were obvious: abuse of trust, violation of the dignity of the students concerned, sexual misconduct, commission of criminal offences crossing the custody threshold, and the need to uphold the public interest and confidence in the teaching profession.
92. I accept that the reference to "pupils" was misplaced in so far as it referred to students A and B. The panel had used the same terminology, no doubt borrowing it from the guidance. The panel was clearly aware of the underlying agreed facts: that student A was 22 when indecently assaulted in 1988, and student B was aged 21 when indecently assaulted in 1994. In its narrative, the panel recorded that "the convictions all related to pupils aged 17 and over". Accepting, as I do, that the decision maker had carefully read the document containing the panel's recommendation (if not the underlying documents in the case), he was at least aware that all the "pupils" as they were called, were aged 17 or above.
93. In the decision, the decision maker then refers to the need to balance the public interest against that of Mr McTier and "the need to be proportionate". He referred to the need to maintain public confidence in the profession, to the panel's comments on the case and the comments made by Macduff J, the sentencing judge. He went on to say that he had "also noted the elements of mitigation considered". I take that to mean the mitigating factors considered by the panel. He went on to say he had given "particular consideration to the time factors of this case and to the comments made in respect of risk of harm".
94. Having stated all those matters, he went on to record that he nevertheless differed in his judgement from that of the panel. He gave two reasons for doing so. The first was that the seriousness of the convictions, such that they led to a custodial (albeit suspended) sentence, "is relevant". One must, I think, interpret "relevant" in that context as meaning something close to decisive or, at least, of great weight. The second reason was that:-

…in considering the need to maintain public confidence in the profession, I do not consider that whilst Mr McTier has a Sex Offenders notice he should be allowed to teach.

95. He went on to note the seven year duration of that notice starting in 2014, and decided "that Mr McTier should be prohibited from teaching" and that the review period should be five years, to coincide with the remaining five years of the seven year notification requirements imposed under the Sexual Offences Act 2003.
96. Mr Moffett accepted in oral argument that the latter point (that five years on the sex offenders' register had still to elapse) was not one to which great weight should be accorded. It was invoked by the decision maker to determine the period (which cannot be less than two years) that must expire before review of the prohibition order can be sought. But it was also invoked as a basis for maintaining public confidence in the profession: Mr Meyrick did not consider it appropriate that Mr McTier should be allowed to teach while on the sex offenders' register.
97. I have difficulty with the proposition that public confidence in the teaching profession necessarily required a person whose name is on the sex offenders' register to be prohibited from teaching by virtue of that fact. Mr McTier's appearance on the register and the duration of that, is a consequence of the convictions, ordained by statute. It is a protective measure, not one that increases the seriousness of the offences.
98. The seriousness of the offences, indeed, is relied upon by the decision maker as the only other basis, to judge from the written decision, for disagreeing with the panel's recommendation. There is, in a sense, a form of "double counting" in then praying in aid an automatic consequence of the convictions as an additional reason for imposing the prohibition order.
99. My difficulties with the decision do not end there. I am concerned that the decision maker appears to have approached the case on the basis that all three victims were "pupils", in some undefined sense. There is an absence of clarity about what the decision maker meant by pupils. It is not clear that he had in mind the ages of students A and B, which were not specifically stated in the panel's narrative leading to its recommendation.
100. I also have doubts about the correctness of the interpretation of "teaching work" adopted in the guidance, and by the Secretary of State, confining it to work of the kind identified in regulation 3 of the 2012 Regulations, where that work is carried out in one of the institutions specified in regulation 2. It is not clear that the concept of a pupil should be narrowed in that way. It may be that Mr Moffett's arguments are correct, but the Education Act 1996 speaks to the issue with a forked tongue, as I have indicated.
101. I do not think it would be appropriate for me to decide the issue of interpretation which I have highlighted. It arose only obliquely, not as a ground of challenge in its own right. I therefore did not hear the fullest of argument on the issue. Unsurprisingly, Mr McTier did not contend that the Secretary of State had misdirected herself in law as to the scope of the prohibition order made. It would not have been in his interest to do so.
102. If the Secretary of State's interpretation is correct, a prohibition order does not prevent a teacher from giving private tuition to the very class of persons (principally, vulnerable children) whom the legislation was intended to protect against misbehaving teachers. That would undermine the protection afforded by the provisions. If, on the other hand, the Secretary of State's interpretation is incorrect, a prohibition order would (or should, though this one did not purport to do so) prevent the giving of private tuition falling within the wide definition of "teaching work" found in regulation 3, read without any implied limitation to schools and the other institutions mentioned in regulation 2.
103. On that interpretation, a prohibition order is a more draconian instrument than the guidance states and more draconian indeed than the Secretary of State intended this one to be. There may be a mismatch between the scope of the order made in this case, and the statutory meaning of a prohibition order. On the wide interpretation, as Ms O'Rourke says, it would prevent Mr McTier from giving private tuition, though this order is not framed in such a way as to do so.
104. The order does, however, on either interpretation, undoubtedly prevent him from giving tuition, for example, in the form of a master class, to one or more music students, in the setting of a school, sixth form college or academy. He would have to hold the master class outside such a setting to avoid a breach of the order. If the latter is acceptable, why is the former unacceptable? The decision document does not address this point.
105. Nor does the decision document address the points emphasised by Mr McTier in his written representations to the panel: that the risk of harm through repetition of offending was, as the sentencing judge accepted, absent. In the decision, it is stated that misconduct which seriously affects education or the wellbeing of pupils may lead to a prohibition order "particularly where there is a continuing risk". Later in the decision, Mr Meyrick says he has given particular consideration to "the comments made in respect of risk of harm".
106. But he does not say what, if any, assistance he derives from having given particular consideration to the comments made in respect of risk of harm. Does he agree with the sentencing judge that the risk of harm through repetition is absent, but discounts the significance of that absence of risk? Or does he disagree with that proposition from the sentencing judge and, if so, on what evidence? As Ms O'Rourke pointed out, there was no evidence of further offending after 1994.
107. The same problem arises in relation to his consideration of the "time factors of this case", to which Mr Meyrick said he had given particular consideration. I do not know the product of that consideration. Did he regard the effluxion of time since 1994 as significant? I do not know. As is well known, merely saying you have taken something into account in making a decision is not the same as properly evaluating that which is said to have been taken into account.
108. The decision, finally, does not address the question whether a prohibition order would have any practical impact in this case. There was uncontested evidence before the panel, emphasised in Mr McTier's written representations to it, that he teaches only privately in this country and, in so far as he teaches at institutions, only overseas. There was no evidence before the panel or the Secretary of State that he had recently taught in a school or other regulation 2 institution in this country, or that he intended to do so or was likely to do so in the future. On the Secretary of State's narrow interpretation of the prohibition against "teaching work" (if correct), it is difficult to see how the prohibition order made would have any practical effect.
109. In sum, the apparent absence of a properly thought through process of reasoning, the Secretary of State's acceptance that the order does not prevent Mr McTier from teaching young women privately in his home, and the omission of the decision to address the points I have mentioned, taken together, render the decision defective and, indeed, raise a possible inference that the purpose of the prohibition order is punitive rather than protective, contrary to the requirement in the guidance to avoid making prohibition orders as a punitive measure.
110. For those reasons, I am satisfied that the decision is flawed, and "wrong" within CPR 52.11, and that it must be set aside. I have considered carefully whether any decision other than one to accept the panel's recommendation is lawfully open to the Secretary of State.
111. After much reflection, I have decided that it would not be appropriate for me to take it upon myself to decide the outcome of the appeal. I am not completely sure that there is only one possible lawful outcome, though the force of the panel's reasoning is very considerable indeed. I will therefore remit the matter back for a fresh decision to be made in the light of this judgment and in the light of the panel's recommendation.
112. For those reasons, and to that extent, the appeal is allowed. I will hear counsel or consider brief written submissions on any consequential matters, if they cannot be agreed. I conclude by expressing my thanks to counsel for their helpful written and oral submissions.