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
		02/02/2018

MRS JUSTICE LAMBERT :

1. Mr Zia was employed as a mathematics teacher at the Icknield High School in Luton between 1^st July 2013 and his resignation in March 2016. He appeals under regulation 17 of the Teachers' Disciplinary (England) Regulations 2012 from the prohibition order made by the Second Respondent, the Secretary of State for Education ("the Secretary of State"), on 30^th May 2017 following a hearing before the Professional Conduct Panel of the National Council for Teaching and Leadership ("the PCP") on 25^th May 2017. The effect of the prohibition order is to prevent Mr Zia from teaching indefinitely in any school, sixth form college, relevant youth accommodation or children's home in England. The order was however made subject to the appellant's right to seek a review under regulation 16 after a minimum period of 2 years rather than denying the appellant the opportunity of teaching ever again in the future. The First Respondent is an executive agency of the Department of Education and its officials act on behalf of the Secretary of State. It was not therefore separately represented in the appeal.

Proceedings before the PCP

2. At the outset of the hearing before the PCP on 25^th May 2017, Mr Zia admitted the factual allegations in their entirety and admitted that he was guilty of unacceptable professional conduct and conduct that may bring the teaching profession into disrepute.
3. Although the admitted facts included Mr Zia's failure to improve his attendance record at the school, being late for work on approximately 13 occasions and being absent from a CPD session on one occasion, the case against him before the PCP focussed centrally upon the extra-curricular teaching sessions which he organised. The sessions took place on Saturdays between August and November 2015 in the Tokko Centre in Luton. They were attended exclusively by male, Muslim, pupils. They included lessons in English and Mathematics in addition to training in wrestling which was given by Mr Zia and another man, who was identified to the PCP only as "Individual A". The PCP was shown a short clip of video footage of the wrestling tuition which had been taken by one of the students on his mobile phone in which Individual A was lying on his back with a teenage student directly on top of him whilst he demonstrated a wrestling manoeuvre to the student group and Mr Zia provided a commentary from the side. Individual A was not trained to teach wrestling. Mr Zia admitted that, on one occasion, Mr Zia encouraged two students to settle a grievance between them by wrestling each other. He also admitted to having no personal injury liability insurance in the event of one of the students sustaining injury during the wrestling sessions. The students, who were all teenage boys, paid between £15 and £20 for each teaching session. On some occasions, Mr Zia would give the boys a lift home in his car, a practice which he continued even after receiving a written management instruction not to do so in September 2015. Mr Zia admitted to the PCP that, although unaware of this at the time, he did not have insurance in the event of a road traffic accident. The students communicated with Mr Zia via the social networking site, WhatsApp. Screen shots were available to the PCP which showed that, at least on those available to the Panel, Mr Zia was identified by the contact alias of "Uncle Saleem". On some of those screen shots which were available to the PCP, Mr Zia addressed the students as "bro".
4. Mr Zia admitted that he had not informed the school authorities of the Saturday training sessions; that he had not communicated with the parents of all of the students involved in the sessions; that he had not obtained the parents' written consent for the sessions nor informed them that the sessions were not affiliated with the school and that he had not informed those parents who were aware of the teaching sessions that the sessions included physical training in wrestling.
5. According to the investigation papers in the hearing bundle, the Saturday sessions came to light in around mid-November 2015 when a female pupil reported to the school authorities that Mr Zia was communicating with a group of students via WhatsApp. A fuller picture of the sessions and the relationship between Mr Zia and the boys then emerged as the investigation progressed. Some of the pupils interviewed were supportive of Mr Zia, describing him as "the best teacher in the school", as "amazing" and "such a good role model" with "the perfect lifestyle". The view of those who undertook that investigation was that the admiration of some of the students of Mr Zia came close to hero worship. The existence of the WhatsApp communications was kept quiet by the students (although not necessarily at the instigation of Mr Zia); and following matters becoming public, the communications were deleted (although again not necessarily at Mr Zia's instigation). Mr Zia was suspended by the school on 20^th November 2016 and resigned on 30^th March 2016 before the school disciplinary hearing took place.
6. Notice of the date of the PCP hearing and the allegations was communicated to Mr Zia by a letter from the NCTL of 28^th March 2017. The letter informed Mr Zia that he should send any documents that he wished to rely on, or statements from any witnesses whom he wished to call, at least four weeks before the hearing with the threat of adjournment in the event of non-compliance. The letter strongly advised Mr Zia to read the guidance note on the relevant disciplinary procedures and a link to the website was provided. On 17^th May 2017, Mr Zia was sent a further letter, this time enclosing a paginated copy of the hearing bundle; again, the relevant web link was provided together with a list of the various guidance documents which could be found there. This guidance included the document, "The prohibition of teachers: advice on factors relating to decisions leading to the prohibition of teachers from the teaching profession".
7. Mr Zia had union representation in the preparation for the hearing of the PCP on 25^th May 2017 and was represented by Counsel at the hearing, although it appears that he met her for the first time on the morning of 25^th May 2017.
8. Proceedings were formally opened by the PCP Chair who informed the parties that, if either side wished an adjournment of the proceedings, an application should be made so that this could be considered. Mr Zia's Counsel, having already obtained behind the scenes a short delay of 30 minutes to the start of proceedings, was granted a further 15 minutes to take instructions. However, after that further short adjournment, Counsel then stated that she was able to proceed and that there were no further applications which she wished to make. Before the charges were read out and admissions made, the Panel Chair informed the parties that the procedure to be followed was intended to ensure that both parties had every opportunity to draw the Panel's attention to all relevant information, that evidence relating to personal and mitigating circumstances was not generally considered until the Panel had formally adjudicated on the facts and on misconduct and that Mr Zia should therefore reserve mitigation evidence until later in the hearing. The case was opened relatively briefly and, perhaps not surprisingly, the PCP then found proven, consistent with the admissions which had been made by Mr Zia, both the facts and unacceptable professional conduct and conduct likely to bring the profession into disrepute.
9. In the PCP's determination on misconduct, two critical issues were at the fore: safeguarding and the maintenance of professional boundaries. The PCP recorded "With regard to safeguarding, the Panel was concerned to note that Mr Zia admits that individual A was not qualified to teach wrestling, nor was there any public liability insurance in place. Furthermore, Mr Zia allowed individual A to instruct pupils without supervision. In addition, despite having been instructed not to transport pupils in his car, Mr Zia admits that he did so. Furthermore he did so without valid insurance to drive, although he states that he did not appreciate this at the time". As to the maintenance of boundaries, the PCP recorded that: "Mr Zia failed to maintain appropriate boundaries as illustrated by the extract from social media communications".
10. Following the announcement of the Panel's determination on misconduct, the PCP moved on to the final stage of proceedings in which it considered whether a prohibition order should be recommended. Mr Zia's Counsel was asked whether there were any additional documents or witnesses that she wished to bring to the Panel's attention for the purpose of this stage of the PCP's inquiry. She said that there was to be no further evidence beyond calling Mr Zia himself.
11. Two statements from Mr Zia dated 12^th September 2016 and 10^th May 2017 relevant to mitigation were already included in the hearing bundle. In those statements Mr Zia emphasised his poor relationship with his Head of Department. He said that he felt undervalued by him. He commented upon the hostility of some colleagues who, despite his excellent results and the numerous positive feedback reports from parents, had sought only to undermine him by pointing out his flaws. The statements described his sense of isolation and loneliness in a professional environment which did not recognise his outstanding achievements. Mr Zia said that he had become demoralised which had, in turn, led to a downward spiral of poor attendance and poor compliance with management instruction.
12. In his oral evidence to the PCP, Mr Zia described himself as enthusiastic, able to inspire students and said that one of his greatest qualities was his easy ability to communicate with students. He said that he had used the word "bro" as a form of address in his text messages to the students to encourage familiarity and that his role was more like "an older brother driving them", rather than being "on the other side". He said that this approach had been reflected in his teaching style but that if he were allowed to return to teaching he would be less of an older brother and adopt more of a "parenting side, as a normal teacher".
13. Critically, so far as his appeal is concerned, Mr Zia then told the PCP that he knew that he was held in very high regard by parents and fellow teachers. He said that he had been given immensely rewarding feedback for his ability to motivate and inspire students to take learning out of the class room and develop an independent habit of study. He was asked to provide concrete examples of instances in which his teaching skills had been the subject of favourable comment and was then asked by the Panel Chair why statements from colleagues and parents reflecting the positive feedback were not before the PCP to substantiate his assertions. Mr Zia's response was ".. that's a great question. I'd be happy to do that". He went on to say however that since leaving the school he had not felt comfortable approaching colleagues or parents for testimonial evidence as his reputation had been called into question by the school. He had, he said, avoided communication with a lot of the students for the sake of the investigation.
14. No adjournment of proceedings was sought by Mr Zia or on his behalf following the PCP querying the absence of independent testimonial evidence from colleagues and parents.
15. A recommendation was made by the PCP to the Secretary of State which was set out in the decision letter from the Secretary of State of 26^th May 2017. The PCP recorded that the factual findings raised very serious concerns over pupil safety and security and that Mr Zia had failed to maintain appropriate professional boundaries. As such, there was a strong public interest in the imposition of a prohibition order to maintain pupil safety, to declare and uphold proper standards and to maintain public confidence in the profession. The PCP recorded that it had taken into account the public interest in permitting a teacher who is able to make a valuable contribution to the profession continuing to teach and Mr Zia's unblemished professional record before, however having weighed Mr Zia's own interests and the public interest, the balance favoured a prohibition order being imposed with provision of a review period after the minimum period of two years. The PCP recorded that in reaching its decision it had taken into account Mr Zia's evidence that he was a good teacher who had had positive feedback from parents and colleagues but also noted the absence of independent evidence in support; that the PCP had explored with Mr Zia the issue of proper boundaries between teachers and pupils but was not convinced by Mr Zia's responses that he had a clear understanding of the appropriate boundaries; that Mr Zia had limited insight and had not persuaded the PCP that he would be able to work effectively within the ethos of school life in the future.
16. The Secretary of State's decision reflected the recommendation of the PCP. A prohibition order was necessary in the public interest and was proportionate. The factors which weighed in the balance included Mr Zia's limited insight and the associated risk of repetition of his behaviour, his repeated failure to observe instructions and comply with management instructions. The Secretary of State's decision recorded that less weight should be attached to Mr Zia's potential contribution to the profession, however, as the panel had limited independent evidence before it relating to his teaching. The Secretary of State recorded that a 2 year prohibition order, with a 2 year review period from teaching reflected the seriousness of the PCP findings and was a proportionate response taking into account the ingredients of the public interest. It noted that a 2 year prohibition order, with a 2 year review period before a right to seek review was the minimum period of a prohibition order under the regulations.

Legal Framework

17. The legal framework so far as relevant to this appeal is as follows:
18. Section 8 of the Education Act 2011 amended the Education Act 2002 to include sections 141B and 141C along with Schedule 11A so as to provide the Secretary of State with the responsibility to regulate teachers' conduct and to hold a list of teachers who have been prohibited from teaching. The effect of section 141B is that the Secretary of State may investigate a case where an allegation is referred to the Secretary of State that a person to whom the section applies may be guilty of unacceptable professional conduct or conduct that may bring the teaching profession into disrepute. Where the Secretary of State finds on an investigation of a case under subsection (1) that there is a case to answer, the Secretary of State must decide whether to make a prohibition order in respect of that person.
19. Regulations made under the 2002 Act set out the action to be taken by the Secretary of State when a teacher may be guilty of unacceptable professional conduct, conduct that may bring the teaching profession in to disrepute or where a teacher has been convicted (at any time) of a criminal offence. Those regulations prescribe that the teacher must be informed of the allegations, the teacher must have the opportunity to comment and then the Secretary of State will decide whether the case should be discontinued or considered by a professional conduct panel. Regulation 7 provides that where the PCP finds the teacher to have been guilty of unacceptable professional conduct or conduct that may bring the teaching profession into disrepute the panel must make a recommendation to the Secretary of State as to whether the prohibition order should be made. If such a recommendation is made, the Secretary of State must consider and decide (regulation 8) whether an application may be made in the future for a review of the prohibition order. The minimum time period before an application for a review may be allowed is not less than two years from the date on which the prohibition order takes effect.
20. Guidance issued by the First Respondent concerning the disciplinary procedures to be followed by the PCP included guidance that in the event of facts being found proven which amount to misconduct then the PCP "will ask the presenting officer if they have any evidence to produce that would be relevant to a decision on whether to impose a prohibition order. The teacher, or teacher's representative will then be asked whether they wish to offer any mitigation, including anything not previously mentioned, which would be relevant to a decision on whether to impose a prohibition order. The presenting officer, teacher or teacher's representative may call witnesses as part of this process. The panel will then invite the presenting officer, and subsequently the teacher or the teacher's representative to make any submissions regarding the appropriateness of the imposition of a prohibition order".
21. An appeal from the Secretary of State's decision on the imposition of a prohibition order is brought under CPR Pt 52 which provides at 52.21(3) that "the appeal court will allow an appeal where the decision of the lower court was (a) wrong or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court". Mr Mehta, for the Secretary of State, submitted that my approach to this appeal should be by way of a rehearing rather than a review. He also urged me to defer to the expertise of the lower court or tribunal on issues of professional judgement, McTier v Secretary of State for Education [2017] PTSR 815 and to follow the approach of Holgate J in Wallace v Secretary of State for Education [2017] PTSR 675 and not treat a decision of the Secretary of State as "wrong" and therefore allow the appeal simply because I disagree on the merits with some aspect of the Secretary of State's reasoning or with the final outcome. The essential challenge brought by Mr Zia is one of procedural irregularity rather than an attack on factual findings or a judgement based on factual findings. However, I accept so far as it is relevant that the approach proposed by Mr Mehta is correct. I should consider all of the material which was available to the Secretary of State and determine in the light of that material whether the conclusion was wrong, exercising a secondary judgment on those matters which are within the expertise and professional judgement of the PCP and Secretary of State; I should consider, again following my consideration of all of the material available to the PCP and Secretary of State, whether there has been a serious procedural irregularity which renders the decision to impose the prohibition order unjust.

Grounds of Appeal:

22. The grounds of appeal are narrow in scope. Mr Zia does not seek to go behind the admissions of fact which he had made to the PCP nor his admission of misconduct. His complaint in this appeal is that the hearing before the PCP was procedurally unfair. He submits that the PCP should have adjourned the proceedings to enable him to obtain the evidence necessary to substantiate the assertions that he was an excellent teacher, held in high esteem by parents and colleagues, with a valuable and unique contribution to make to the profession. He submits that, without that evidence, the PCP did not have the full picture of him as a teacher or as a man and that the offending behaviour which he admitted could only be judged fairly, and considered by the PCP and the Secretary of State fairly, in the broader context of evidence of the effect on students of his enlightened teaching methods. Without such evidence, he submitted that there was a gaping void in the material before the PCP and the Secretary of State.
23. Mr Zia accepted that neither he, nor his Counsel, asked the PCP for an adjournment at any stage in order that the testimonial evidence could be obtained. Mr Zia accepts that the absence of independent corroboration of his claim to positive feedback from parents and colleagues was queried by the Panel Chair and that the "high point" of his request for an adjournment was his response "that's a great question, I'd be happy to do that". He told me that he did not go further than this however as he was tired and traumatised by the proceedings and, in any event, he did not know the importance of this evidence. He told me that he had, during the course of his suspension, been prohibited from contacting either students or colleagues at the school and in the belief that he was to make full admissions to the factual allegations and to misconduct, he had not understood the need for any evidence, by calling witnesses or deploying statement, in mitigation or within the context of a prohibition order. Mr Zia's submission was that, given the value of evidence bearing upon his qualities as a teacher, the PCP should, of their own volition, have insisted on an adjournment in order that the evidence be obtained, even in the absence of a request by Mr Zia or on his behalf.
24. Mr Zia placed reliance upon the case of Wallace in support of his argument that the decision on whether to impose a prohibition order by the Secretary of State must have been on the cusp and that if the missing evidence had been available to the PCP then, as in Wallace, the balance would have been tipped firmly in his favour by the positive public interest in permitting a really good teacher to continue to work.
25. In support of this appeal Mr Zia has obtained some statements from former students which all, in various ways, speak of Mr Zia as an inspirational teacher who has had a profound and positive effect on their development as young adults. He has also provided one testimonial from a father which describes how Mr Zia instilled a real passion for mathematics in his son and speaks of Mr Zia as an excellent communicator and a short letter from a former colleague which describes the very good relationship which Mr Zia enjoyed with his pupils. Mr Zia has also provided an email from an Education Team Recruiter which describes him as "reliable, professional and meticulous in all aspects of his work" and material relating to an education enterprise which he was involved in before he qualified as a teacher. This included the tribute from a local MP congratulating Mr Zia and his brother as "outstanding individuals from our town". It is this material, Mr Zia submits, that would have been made available to those deciding his case had there been an adjournment. It would he argued have been pivotal and if available, no prohibition order would have been made.
26. The Respondent contends that the PCP proceedings were not subject to any procedural flaw. Mr Zia had been given considerable notice of the hearing date. He had been told in March 2017 that witness statements he intended to rely upon should be sent four weeks before the hearing and that the expenses of at least two such witnesses would be borne by the prosecuting authority. Correspondence referred Mr Zia to information and guidance including that setting out the disciplinary procedures which spelled out that the issue of sanction and in particular whether a prohibition order was necessary in the public interest would be considered by the PCP as a discrete stage of the proceedings and that evidence could be deployed by either party at this stage before closing submissions were made. Mr Zia was asked on a number of occasions at preliminary stages of the hearing whether any applications, including applications for an adjournment, were to be made. No such application was made. Following his evidence to the PCP, Mr Zia had an opportunity to speak with his legal team. If more time was needed, then the PCP could have been asked to delay proceedings in order that instructions could be given. No such application was made.
27. Further, the Respondent submits, it would not have been apparent to the PCP that Mr Zia was prepared to seek testimonial evidence from any person associated with the school. His evidence to the PCP was that he was embarrassed by the charges levelled against him and his professional predicament such that he had shunned those associated with the school. In the absence therefore of an application to adjourn, the PCP could not have known whether Mr Zia would be able to overcome his embarrassment and seek testimonial evidence, let alone that he would have been able to obtain relevant evidence.
28. The Respondent raised no objection to this Court reading the new material produced by Mr Zia and taking it into account when considering his appeal. She submitted however that, had it been available to the decision maker, it would not have altered the outcome of the balancing exercise performed by the PCP and by the Secretary of State. The Respondent does not deny that Mr Zia was highly regarded by some, possibly many, students; that much was clear from the investigation papers before the PCP. What the PCP was looking for however was independent evidence of Mr Zia's qualities from a different source, colleagues and parents, and save for a single statement from a parent and the one short statement from a colleague this evidence has not been supplied by him.

My Conclusions

29. I do not accept Mr Zia's submission that the PCP should have, of its own volition, adjourned proceedings to enable him to obtain testimonial evidence nor that the PCP ought to have asked Mr Zia whether he wished for an adjournment or offered him an adjournment.

i. Mr Zia informed me, unsolicited, that he had been advised by his Union throughout his preparation for the hearing. It is common ground that he was represented by Counsel at the hearing. In the weeks before the hearing Mr Zia had been sent letters referring him to information available on the Department of Education website which explained the disciplinary procedure. This information made plain that, if misconduct was established, then the PCP was obliged to consider the possibility of imposing a prohibition order and that evidence in mitigation could be called at that stage of proceedings, including calling witnesses. It is common sense that relevant evidence would include evidence of reputation and regard within the profession and the parent community and common sense that assertions as to reputation and regard carry less weight than evidence from those who are said to hold those views. Although Mr Zia was prevented from contacting school colleagues or pupils during the course of his suspension, the suspension ended when he resigned in March 2016, over a year before the hearing before the PCP.

ii. No application for an adjournment was made on Mr Zia's behalf (save for the short delay in the start of the proceedings) although the possibility of an adjournment, upon application, was stated by the Panel Chair on two occasions during the course of the hearing. Had there been a need for an adjournment, the PCP would have been fully entitled to conclude that one would have been sought, but it was not.

iii. Nor was there anything in the evidence available to the PCP to suggest to it that an adjournment would necessarily have borne fruit. Mr Zia's witness statements describe in detail the atmosphere of professional hostility towards him at the school, his poor relationship with his head of department and his developing sense of isolation and loneliness. Such evidence would not have suggested to the PCP that positive testimony concerning Mr Zia's teaching skills would have been readily available from colleagues. Mr Zia, in response to the Panel Chair's querying the absence of evidence from teachers and parents, qualified his immediate response by describing his embarrassment at approaching witnesses. In so doing, Mr Zia did not suggest that such embarrassment no longer existed. In his submissions on appeal Mr Zia explained that he still felt uncomfortable about approaching witnesses and the appeal statements had been obtained, not by a direct approach to witnesses, but by having set up a website to which contributions might be loaded. In short, there was nothing available to the PCP which would have suggested that an adjournment, possibly lengthy owing to the need for the same panel members to re-group, would have had any practical value.

iv. Further, I accept the Respondent's submission that it is unlikely that the statements served in conjunction with this appeal would have altered the outcome for Mr Zia. Those statements (all save for two) are from students. However, it was not in dispute before the PCP that Mr Zia had attracted a devoutly loyal following within a section of his student cohort. That, to some students, he was a charismatic figure, both because of the content of his lessons and his informality in communication, was already in evidence before the PCP in the pupil statements obtained during the investigation. The substantiating evidence that the PCP was looking for was from adults who would, against a backdrop of serious concerns over safeguarding and professional boundaries, be able to comment upon Mr Zia's qualities and insight as a teacher rather than his ability to forge close relationships with his pupils. Such evidence is not to be found in the appeal statements. Although one statement from a colleague has been provided by Mr Zia, that testimonial comments centrally upon Mr Zia's relationship with his pupils. Likewise, the additional material which Mr Zia relied upon in his appeal (concerning his entrepreneurial work before qualifying as a teacher and his professionalism as a Project Manager since the imposition of the prohibition order) add nothing relevant to the picture available to the PCP and the Secretary of State.

v. Although Mr Zia submitted that I should not, in this appeal, consider the likely impact of those statements on the balancing exercise undertaken by the PCP and the Secretary of State, I reject that submission. I am confident that I can safely and fairly do so. There is nothing in either the decision of the PCP or of the Secretary of State to suggest to me that the decision was a marginal one (such as in Wallace). The new testimonial evidence adds nothing to the body of material which was before the PCP. It would not have altered the recommendation of the PCP or the decision of the Secretary of State.

30. For these reasons I reject this ground of appeal. I do not find that there was any procedural irregularity in the proceedings before the PCP, let alone a serious procedural irregularity leading to injustice.
31. I do not understand Mr Zia to be submitting in this appeal that, given the absence of the recent evidence, the imposition of a prohibition order was disproportionate. On a number of occasions during his oral submissions to me, Mr Zia accepted that, on the basis of the material available to the PCP, he could understand why a prohibition order was recommended.
32. I agree with him. My view is that such an order was justified by what the PCP and the Secretary of State concluded to have been a serious failure to observe proper professional standards. Mr Zia's conduct exposed the students at the Saturday sessions to a clear risk of personal injury, possibly serious personal injury. Mr Zia's interaction with the students via WhatsApp justified the PCP's conclusion that Mr Zia did not have a clear idea of appropriate teacher/student boundaries. The PCP were concerned by Mr Zia's responses to questions concerning his teaching methods and his relationships with students and concluded that he still did not have full insight into the appropriate boundaries. In endorsing the need for a prohibition order the Secretary of State considered that this limited insight generated "some risk" of repetition. This was appropriate. The PCP and the Secretary of State undertook a balancing exercise which took into account the public interest, including the public interest in permitting a good teacher to continue teaching, and Mr Zia's own interests. In so doing, she imposed an order prohibiting Mr Zia's teaching with the possibility of review after the minimum period available under the Regulations. In the circumstances, I do not conclude that the decision to impose a prohibition order with a two year review was wrong.
33. Since the hearing of the appeal, Mr Zia has sent me a further letter, characteristically courteous in tone, in which he sets out the impact of the prohibition order upon him personally and professionally and urges me to take into account his view that there is nothing to be gained by the prohibition order. Whilst understanding the effect of the order on him, there is nothing in this further letter which affects my conclusion on the appeal.
34. This appeal is dismissed.