Smith, R (on the application of) v General Teaching Council for England [2007] EWHC 1675 (Admin)

Case No CO/10770/2006[2007] EWHC 1675 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 8 June 2007
Strand
London WC2
B E F O R E:
MR JUSTICE McCOMBE
Between
THE QUEEN ON THE APPLICATION OF JACQUELINE SMITHClaimant-v-
Between
GENERAL TEACHING COUNCIL FOR ENGLANDDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
The Claimant appeared in person for in personMiss McCormack appeared for Defendant
J U D G M E N T
[1]MR JUSTICE McCOMBE: This is a statutory appeal by Mrs Jacqueline Smith against a decision made on 15 November 2006 by the Professional Conduct Committee of the General Teaching Council of England. By that decision the committee found established against Mrs Smith that she was guilty of "unacceptable professional misconduct" as a teacher and issued a prohibition order under the Teaching and Higher Education Act 1988, the effect of which is that Mrs Smith ceased to be eligible for registration as a teacher under the Act and is accordingly disentitled to work as a teacher during the order's operation. The committee decided that Mrs Smith will be entitled to file for restoration to the registrar after the expiry of a period of two years.[2]The proceedings before the committee arose out of Mrs Smith's application for a post as a mathematics teacher at a school called Holloway School at Hilldrop Road, London N7. The relevant vacancy was advertised by the school in June 2003. On or about 28 June 2003 Mrs Smith sent a completed application form and a personal statement in the form of a letter signed by her to the employing school authority. The application contained two passages which gave rise to the disciplinary charges preferred against Mrs Smith. The first is to be found in the application form itself and the second is to be found in the letter. In the form there is a section in which the applicant is invited to list his or her education qualifications and training. Mrs Smith listed her school qualifications and went on to write:
"University of East London degree in Maths (BSC) July 1998. Degree in Business Studies July 1997. HND in Business Studies July 1995."
[3]In the letter to which I have referred signed by her there appeared the following sentence:
"I am a mathematics graduate and I have been teaching in the mathematics department at Bishop Challoner School since January 2002."
Mrs Smith has always accepted that she wrote the application form in her own hand. She noted that the initials were not in the following form: capital B capital S small c ("B.Sc."). She says that she had intended to write in the relevant passage in the form the letters in capitals "MSC", being initial letters of elements of mathematics that she had studied as part of her Business Studies degree involving mathematics, statistics and computing. She denied therefore at the hearing before the relevant conduct committee that the entry was false. As for the letter, she admitted that the sentence had been written but she denied that it was false. She said at the hearing that it was a letter that had been drafted for her by her course mentor who had adapted a misstatement of her degree qualification previously issued by her university. At all material times it was accepted that she does not have and never has had a degree in mathematics properly so called.[4]The committee's conclusion on these facts was that the making of the statements complained of constituted unacceptable professional conduct. In the relevant passage of the decision they said:
"As regards the facts of the case as set out in the notice of proceedings dated 23 March 2006 we have found these proved. Mrs Smith has accepted that she included the statement that she had a 'degree in mathematics BSc' in her application form dated 28 June 2003 and that in support of that application she stated 'I am a mathematics graduate', both of those statements being factually inaccurate. We believe the facts are established on this basis alone. In the light of Mrs Smith's arguments however we would also wish to indicate our conclusion that the statements are so clear and unambiguous that we do not accept that they can in any way be described as mistaken or accidental."
[5]The gist of Mrs Smith's case before the committee had been that she intended to write the letters "MSC" in the form and that in the supporting letter constituting her personal statement it was a document that had been put together in haste with the assistance of her course mentor, which she had signed, but which, in the hurry to adduce her application, had not been given the care and attention that the document properly required. She therefore argued that the errors were mistaken or accidental.[6]The committee heard evidence from Mrs Smith who read to them a written statement in relation to the circumstances of the case. She was questioned by way of supplemental questions from the solicitor who represented her at the time. She was also asked questions by the presenting officer of the prosecuting authority before the committee and answered further questions from the committee itself.[7]The question that arises on the present appeal is whether the committee was correct in reaching the conclusion it did on the evidence before it, or at least has not been shown to have committed any material error of fact in assessing the matters that it had before it. I have been referred in the course of argument today to the case in parallel jurisdiction concerning the General Medical Council in Raschid v General Medical Council [2007] EWCA Civ 46. In the judgment of Lord Justice Laws, the passage given in summary as to the approach of the court in such cases is in the following terms:
"These strands in the learning" - (that is the materials put before the court -) "as it seems to me, constitute the essential approach to be applied by the High Court on a section 40 appeal. The approach they commend does not emasculate the High Court's role in section 40 appeals: the High Court will correct material errors of fact and of course law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case."
[8]Clearly as counsel for the General Teaching Council accepts, the hearing before me is one of rehearing and therefore I am not confined simply to discerning errors of law as on judicial review. I have to decide whether the appellant has shown there has been any material error of fact made by the committee on the material before it. Seen in that light, one has to approach the decision made by the tribunal on the question of their finding of unacceptable professional conduct. It is clear, as Mrs Smith accepts, that the statements in the two documents presented to Holloway School were inaccurate. The committee decided that the facts were established on the basis of those misstatements alone.[9]The other arguments raised by Mrs Smith were considered as to what she intended to do in filling out the form and what she would wish to do had she been able to take more time and consideration of her application. However having heard her evidence, given, on oath as it was, and her questioning by counsel and the committee itself, it found that the statements were so clear and unambiguous that they could not be described as mistaken or accidental. It seems to me, looking at the words of the documents themselves, that the meaning of them is entirely clear. In both cases the statements represent to the uninformed reader that Mrs Smith was telling that reader that she has a degree in mathematics, and, in the one case, it is a Bachelor of Science degree. That is the ordinary meaning of the relevant passage.[10]The question is whether the tribunal or the committee was, in some way, in error, or can be shown to have been in error on the evidence before it, in finding that that error was not mistaken or accidental. Given the plain meaning of the words which they found them to be, and which I agree was the plain meaning, I find it impossible to say that the committee was wrong in reaching the conclusion that it did in paragraph 1 of its written decision.[11]Accordingly the appeal against the finding of unacceptable professional conduct is dismissed.[12]I turn to the question of penalty. On that question, Mrs Smith submits that the sanction was excessive. She has pointed me to the fact that she had had an unblemished record to the date of the proceedings. She had had no criminal convictions. She had worked hard and had been a good citizen, living in the London area for 18 years without any blemish on her character. Also there had been no apparent criticisms of the standard of her teaching services. She submits, in the light of all that, that the penalty of prohibition was excessive and that a lesser penalty of suspension or reprimand or the like would have been appropriate.[13]In support of that submission she has procured the production of the public announcements of a series of decisions made by the Council in more or less similar cases. She has referred to five of those, two of which covered cases where an applicant for a post appears to have made a false statement in a job application. She points out that in those two cases - in Smith and another called Zaranko - the penalty was the one I have indicated. She submits understandably that that suggests that one standard is being applied to one set of teachers in trouble and another standard to others. It is important however to look at the two things: the nature of the decision-making process of the committee in deciding on penalty and also the nature of the announcements on which reliance is placed.[14]Turning to the decision-making process first, I have been referred to two documents.

(d) as follows:

"(d) If the facts amount to Unacceptable Professional Conduct, conviction of a Relevant Offence or Serious Professional Incompetence [the committee] - (i) consider the previous history and character of the Registered Teacher and any mitigating circumstances; (ii) determine whether to make a Disciplinary Order against the Registered Teacher, and (iii) specify the terms of any Disciplinary Order."
[15]There is then a document for the guidance of committees concerning the approach to the imposition of penalties. The relevant guidance in relation to prohibition orders reads as follows at paragraph 1-18 of the publication, the Indicative Sanctions Guidance:
"1.18 Prohibition ..... This sanction is likely to be appropriate when the behaviour is fundamentally incompatible with being a registered teacher and involves any of the following (this list is not exhaustive): Serious departure from the Code of Conduct Seriously affecting the education and/or well being of pupils, either deliberately or through incompetence and particularly where there is continuing risk Abuse of position/trust (particularly involving vulnerable pupils) or violation of the rights of pupils Dishonesty (especially where persistent and covered up) Persistent lack of insight into seriousness of actions or consequences Evidence of harmful deep-seated personality or attitudinal problems."
[16]It appears from the facts of the case and from the terms of the decision itself that the committee had in mind the question of dishonesty and a lack of insight into the seriousness of the actions or consequences. The committee's decision on sanctions is in the following terms at paragraphs 2 and 3:
"2 We are satisfied that the facts we have found established do amount to unacceptable professional conduct. It is, in our view, clearly unacceptable for a teacher deliberately to make a false statement on an application form particularly when such a statement is clearly material to but not necessarily determinative of the outcome of the application. This gives rise to questions not simply of professional honesty and integrity. 3 The committee, in considering the appropriate disciplinary order to make, has fully considered the lesser sanctions of reprimand, conditional registration order and suspension. It has concluded that none of these are appropriate. This is a serious allegation and the committee, having heard Mrs Smith give her evidence, is clear that she has shown no insight whatsoever into the seriousness of the matter. It was also herself who introduced to the committee the fact that she has subsequently made a further application for a post to which she was appointed and then dismissed following that information coming to light."
[17]It appears that that last sentence is referring to an application - introduced into evidence by Mrs Smith herself at the hearing of her application - to a subsequent employer, a school in Selsdon in Surrey, in which the use of the term BSC appeared again in a form in a slightly different context. Also in that form Mrs Smith had not referred to the fact of her employment with the Holloway School where her engagement had been terminated following these incidents.[18]The committee obviously had those features in mind in making the decision that it did.[19]I turn to the question of the previous decisions of the council that have been published. I think it is important to note that the nature of the published decisions are principally informative of the public of the fact of a finding of misconduct and of the penalty imposed and broad facts of the case. They do not set out in any detail at all the factual background of either the offending or of the teacher in question or important questions as to the remorse, if any, shown for the offence, the full circumstances of it and whether or not the offending conduct has been admitted. In the present case, far from being admitted, Mrs Smith contested the charges before the committee and has contested them firmly before me today. Moreover, it seems to me that the commttee was entitled to find, as it did, that Mrs Smith was lacking in insight into the seriousness of the matter.[20]The question that therefore arises is whether the committee is shown on this appeal to have made an error in making the decision that it did in imposing a prohibition order. It is clear that the penalty it imposed was within the published guidance in respect of sanctions which the committees are urged to apply. It is true that in other cases other defendants have received lesser penalties. But, as counsel for the General Teaching Council points out, these decisions of previous committees are not meant to be precedents nor are they meant to fetter further committees. Each committee is chosen and selected for its expertise and understanding of the problems of the teaching profession. On this particular committee there were experienced teaching members who are well placed to judge the seriousness of professional misconduct on the part of one of their colleagues. Having regard to the fact that the penalty imposed was within the guidance that has been published and having regard to the matters which the committee itself set out as being determinative of the penalty it sought to impose, I find it impossible to find that it erred in any way in reaching the decision it did.[21]Accordingly the appeal against the sanction imposed is also dismissed.[22]Miss McCormack, is there any other application?[23]MISS McCORMACK: No. ---

Cited in 1 later judgment