Rutter, R (on the application of) v General Teaching Council for England [2008] EWHC 133 (Admin)

[2008] EWHC 133 (Admin)Case No CO/1683/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 1 February 2008
Before
MR JUSTICE MUNBY
Between
R (MARTIN RICHARD RUTTER)ClaimantTHE GENERAL TEACHING COUNCIL FOR ENGLANDDefendant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
The Claimant appeared in person for in personMr Peter Oldham (instructed by Angela Mitchell, The General Teaching Council for England) for the DefendantHearing Hearing date: 15 January 2008

Judgmen

[1]The Claimant, a teacher, seeks judicial review to challenge the decision of his professional disciplinary body, the General Teaching Council for England (the Council), to issue a notice of investigation on 11 November 2005 purportedly pursuant to Rule 9 of the Council’s Disciplinary Procedure Rules 2004.[2]The Claimant issued his proceedings just outside time on 14 February 2006, though it should be pointed out that he had communicated with the Administrative Court by letter dated 20 January 2006 to which the court did not respond (stating that he had not made an application in proper form) until 10 February 2006. The Council filed an acknowledgement of service and summary grounds of defence on 20 March 2006. Permission was granted – over six months later! – by Burton J on 4 October 2006. The statement which Burton J had ordered the Claimant to file within 14 days was filed in time, in the form of a letter dated 13 October 2006. The hearing of the substantive application took place before me – over 15 months later! – on 15 January 2008.

The statutory framework

[3]The Council was established by the Teaching and Higher Education Act 1998. Its disciplinary functions are imposed on it and regulated by the General Teaching Council for England (Disciplinary Functions) Regulations 2001, SI 2001/1268.[4]Regulation 3 requires the Council to establish one or more Investigating Committees, whose functions, so far as material for present purposes, are twofold: i) under Regulation 3(2)(a) to carry out such investigations as they see fit in cases where it is alleged that a registered teacher – and the Claimant is a registered teacher – is guilty of unacceptable professional conduct or serious professional incompetence and it appears that he may be so guilty; and ii) to decide in the light of their investigations whether (Regulation 3(2)(b)(i)) the teacher has a case to answer in relation to unacceptable professional conduct and the case should be referred for determination by a Professional Conduct Committee, or (Regulation 3(2)(b)(ii)) a case to answer in relation to serious professional incompetence and the case should be referred for determination by a Professional Competence Committee, or (Regulation 3(2)(b)(iii)) no case to answer and the case should be discontinued, or (Regulation 3(2)(b)(iv)) the case should be discontinued on other grounds.[5]Regulations 5 and 6 respectively require the Council to establish one or more Professional Conduct Committees and one or more Professional Competence Committees. Their functions (Regulations 5(2) and 6(2)) are to determine cases referred to them by an Investigating Committee.[6]Regulation 10 governs proceedings before an Investigating Committee. So far as material for present purposes it provides as follows:
“(1) Where an Investigating Committee decide to carry out an investigation in relation to a registered teacher, they shall at such stage in the investigation as they consider appropriate— (a) inform the teacher of the nature of the allegation or case against him; (b) afford him an opportunity to submit evidence and make representations in writing; and (c) consider such evidence and representations and any other evidence and material available to them. (2) An Investigating Committee may decide to discontinue an investigation at any time before a case is referred for determination by a Professional Conduct Committee or a Professional Competence Committee. (3) When their investigation is complete the Investigating Committee shall take one of the following steps— (a) refer the case for determination by a Professional Conduct Committee; (b) refer the case for determination by a Professional Competence Committee; (c) discontinue the case. … (6) The Council may make such other provision as to the procedure to be followed by an Investigating Committee in connection with their Investigations and other proceedings as they see fit, and may from time to time revise any rules of procedure made under this paragraph.”
[7]I should also mention Regulations 12, 13 and 15. Regulation 12 provides that:
“A registered teacher is entitled to appear and make oral representations, and to be represented by any person whom he desires to represent him, at any hearing of a Committee at which his case is considered.”
Regulation 13 provides that:
“A Committee may require any person to attend and give evidence or to produce documents or other material evidence at any hearing.”
Regulation 15 provides that:
“A Committee may require any witness at a hearing to give evidence on oath or affirmation and for that purpose there may be administered an oath or affirmation in due form.”
[8]In accordance with Regulation 10(6), the Council has made certain rules. The rules in force at the material time were the Disciplinary Procedure Rules 2004 (they have since been replaced in relation to applications and referrals received by the Council after 1 January 2006 by the Disciplinary Procedure Rules 2006).[9]Rule 9 of the Disciplinary Procedure Rules 2004 provides so far as material as follows:
“(1) Where a case is to be referred to an Investigating Committee, the Registrar shall send, normally not more than 4 weeks from the date of receiving the allegation or information giving rise to the action, a Notice of Investigation to the teacher by first class post or recorded delivery. (2) The Notice of Investigation shall – (a) set out the matters referred to the Council, enclosing copies of relevant documentation including details of any relevant criminal conviction obtained from a relevant police force; (b) inform the teacher of the date the Investigating Committee is to meet to consider the case and of the identity of the Members of that Committee; (c) invite the teacher to make written representations regarding the matters referred to in paragraphs (a) and (b) and provide, normally within 4 weeks from receipt of the notice, any evidence which the teacher wishes to provide …” (a) set out the matters referred to the Council, enclosing copies of relevant documentation including details of any relevant criminal conviction obtained from a relevant police force; (b) inform the teacher of the date the Investigating Committee is to meet to consider the case and of the identity of the Members of that Committee; (c) invite the teacher to make written representations regarding the matters referred to in paragraphs (a) and (b) and provide, normally within 4 weeks from receipt of the notice, any evidence which the teacher wishes to provide …”
[10]Rule 9(1) has to be read in the context of Rule 3(1)(d)(ii) which provides as follows:
“Before a case, alleging unacceptable professional conduct which is received by the Council from a person other than the employer, agent or former employer or agent of a teacher, is referred to an Investigating Committee for investigation under rule 2, the Registrar shall forthwith … where the employer or agent reports that they have ceased to use the services of the teacher, or that they might have ceased to use the services of the teacher had the teacher not ceased to provide those services, following an investigation – (i) send a Notice of Investigation in accordance with rule 9 (notices), and (ii) treat the date the report was received as the date the allegation was received.”

The factual background

[11]I can summarise the relevant events as follows: i) May 2004: The Claimant resigned from the X school. ii) 30 June 2004: The Y school withdrew its offer of employment to the Claimant and referred the question of why he had resigned from the X school to the DfES. iii) 10 March 2005: The DfES decided that it was not appropriate for the Secretary of State to consider the case and decided to forward it to the Council. iv) 11 March 2005: The Council received the papers from the DfES. v) 25 April 2005: The Council wrote to the relevant local education authority requesting further information. vi) 28 April 2005: The Council received a telephone call from the local education authority stating that it would not be able to forward he requested information until the end of May. (In fact it did not respond until 24 June 2005 – see below.) vii) 28 April 2005: The Council wrote to the Claimant, confirming that it had received the report from the DfES. For present purposes the important parts of the letter read as follows:
“The Council may need to make further enquiries about the circumstances of your employer ceasing to use your services with other agencies before issuing a Notice of Investigation, which will set out the allegations made about you and attach copies of all the relevant information … I will write to you again on 26 May 2005 to update you on the consideration of your case.”
It is common ground that no such letter was written. viii) 24 June 2005: The Council received the local education authority’s response and the same day wrote to the X school requesting further information. ix) 30 June 2005: The Council received the requested information from the X school. x) August 2006: Having heard nothing from the Council since its letter of 28 April 2005, the Claimant destroyed relevant documents. xi) 11 November 2005: The Council sent the Claimant a Notice of Investigation informing him that the matter would now be referred to an Investigating Committee scheduled to meet on 18 January 2006. The Notice stated that:
“The matters referred to the Council for investigation relate to your resignation from [X] school in circumstances which it is alleged, may have led to your employer ceasing to use your services because of misconduct.”
The Notice then set out “the particulars of the alleged misconduct”, being matters some of which were alleged to have occurred in 2002 and 2003. xii) 16 November 2005: The Claimant wrote to the Council setting out his contention that the Notice of Investigation was out of time. xiii) 5 December 2005: The Claimant wrote to the Chief Executive of the Council appealing the decision to issue the Notice of Investigation. xiv) 15 December 2005: The Claimant wrote to the Council saying that:
“On 28th April 2005 I was informed I would hear by 26th May 2005 of any GTC investigation. At that point I believed the issue was finished with and in the summer I destroyed all the documents in my possession that related to the issue. I regret therefore that I am unable to submit any documents apart from the ones attached.” xv) 19 December 2005: The Chief Executive of the Council wrote to the Claimant acknowledging his “legitimate expectation that your case should have been prepared and presented for further consideration in an efficient and timely way and your frustration at this not having been done” but in effect declining to withdraw the Notice of Investigation. The letter concluded: “I should make it clear that the decision as to how to proceed with the allegations made against you rests not with me but with the members of the Investigating Committee.” xvi) 18 January 2006: An Investigating Committee met and decided to proceed with an investigation despite the Claimant’s contention that the Notice of Investigation had been issued late. xvii) 19 January 2006: The Claimant was informed of the Council’s decision by e-mail: “After considering the evidence the Committee decided that here was a prima facie case of unacceptable professional conduct to answer and that your case should be referred to a Professional Conduct Committee.”
[12]The Claimant issued his Form N461, as I have already said, on 14 February 2006.

The Claimant’s complaints

[13]The Claimant seeks a quashing order to quash the decision of the Council to issue a Notice of Investigation on 11 November 2005.[14]The Claimant, who has acted throughout in person, puts his case on two distinct grounds: i) First, that the Notice of Investigation should, in accordance with Rule 9(1), have been sent to him within not more than four weeks from the date when the Council received the allegation, and was accordingly sent very substantially out of time. ii) Second, that the letter of 28 April 2005 had led him to believe that any investigation would be notified by 26 May 2005 and that, having heard nothing from the Council, he assumed that the matter was not being pursued and destroyed his documents.[15]When giving permission on 4 October 2006, Burton J directed the Claimant within 14 days to file and serve a statement particularising which documents (or class of documents) he destroyed in summer 2005 as referred to in his letter of 15 December 2005.[16]By letter dated 13 October 2006 the Claimant gave the following particulars:
“I destroyed all the documents pertaining to the two disciplinary hearings that I had at [X school], though copies of these are held by the General Teaching Council having been obtained from the school’s files. I destroyed all the documents pertaining to the proposed disciplinary hearing that precipitated my resignation from [X school]. Copies of those documents initially prepared by the school are held by the General Teaching Council having been obtained from the school’s files. However there were also statements that I had obtained from the other adult present in the class room at the time of the incident, and from the other teaching staff involved in the lesson. I no longer have the means to interview these persons, not to obtain new statements. Further there were statements from, and notes from meetings with, students at the school, which I was planning to use in my defence to show that the incident was not unusual, but that the senior management’s response was. If I had not come to an out of court settlement with the school concerning this matter I was preparing a case for constructive dismissal on grounds of discrimination.”
[17]The Claimant elaborated upon that somewhat in the course of his oral submissions. He referred in particular to a witness MB, a student at the time at X school who had since left. MB had not made a statement, but had indicated to the Claimant both his willingness to make a statement and what it was that he would say. The Claimant had made notes of what MB would say, these notes being amongst the documents he had destroyed. He had tried to trace MB but, he told me, without success. He told me that X school, whom he had approached, did not have an address for MB at which it had been possible to contact him. He also suggested, though for reasons which he did not really explain and which in any event were not particularly convincing, that the Council itself should have obtained a statement from MB, his point being that if it had he would not now be in the position in which he finds himself. He complains that the Council did not investigate the matter properly – did not, for example, track down MB – merely, as he put it, reading the file after sitting on it for some time.[18]Although in his Form N461 the Claimant had expressly disavowed any reliance upon the Human Rights Act 1998, in his skeleton argument, and without objection from the Council’s counsel, Mr Peter Oldham, he claimed that the matters complained of contravened what he called “the rules of natural justice as enshrined in” Article 6 of the Convention.

The Council’s evidence

[19]The Council has filed evidence setting out the sequence of events as I have summarised them. The following explanation for the further delay from 30 June 2005 (when the information requested was received from the X school) until 11 November 2005 (when the Notice of Investigation was sent) was provided:
“A response was received from [X school] on 30th June 2005. Shortly after that, the case should have been ready for scheduling for an Investigation Committee. The way scheduling works is as follows: Once the Team dealing with the case has considered the information received and are satisfied that there were no more documents which the Investigating Committee might require, the matter is ready to schedule for an Investigating Committee meeting. The relevant team notify the Team Leader of the case, who then schedules it to be considered at the next available Investigating Committee meeting. In the case of Mr Rutter, taking into account the school summer holidays (which are excluded for the purposes of the Defendant’s business – due to the difficulty in having teacher members available during the major school holiday periods) and cases already scheduled for Investigating Committee meetings, the earliest possible Committee meeting at which this case could have been considered was that of 8th November 2005. The case was not, however, identified as being available for scheduling until 20th October 2005. This unfortunate element of delay may have been caused by the fact that this was one of the Investigating Team’s more complex cases, with information coming from more than one employer and there not being a straightforward allegation of unacceptable professional conduct immediately identifiable from the information received. The Team had also been subject to staff changes during this period which affected responsibility for the administration of Mr Rutter’s case. The case was then scheduled for the next available Investigating Committee which, taking into account the capacity of Committee meetings (ie the December 2005 meeting was already full), response times, and Christmas and New Year holidays, was on 18th January 2006. The Notice was issued to the Claimant for this meeting on 11th November 2005, more than 7 weeks before it was due to take place.”
[20]The Council’s witness statement continued as follows:
“The Council recognises that, if possible, an allegation of unacceptable professional conduct should be referred to an Investigating Committee rapidly, but unfortunately (as in this case), that is not always possible for reasons outside or largely outside the Defendant’s control. The previous version of the Disciplinary Procedure Rules (1 June 2004) which applied at the time of receipt of the Claimant’s case, referred to a Notice of Investigation being sent to the teacher, normally not more than 4 weeks from the date of receiving the allegation. However, in practice this would be very much the exception rather than the norm. Without checking each individual casefile it is impossible to give an exact record of the relevant time-scales for issuing a Notice during the relevant period. Records of when a case was considered by an Investigating Committee are easier to access and, as a Notice of Investigation is usually issued 7 weeks before an Investigating Committee meeting, it is possible to give an indication of the timescales involved in considering cases, at the time that the Claimant’s case was received. In the period between 01/01/05 – 30/06/05, the Council received 62 conduct cases that were subsequently considered at an Investigating Committee meeting. The average length of time for these cases to be considered at an Investigating Committee from the date of receipt by the Council was 29 weeks. Therefore, the average length of time from receipt to issuing a Notice of Investigation would have been about 22 weeks. Due to ongoing concerns about the volume and complexity of referrals at the investigating stage, when the revised Disciplinary Procedure Rules came into effect (January 2006), references to time-scales for the issuing of a Notice of Investigation were removed.”
The Council is to be commended for its frankness, but the picture this evidence reveals is not a happy one.[21]The Council’s evidence does not explain why no letter was sent to the Claimant either on 26 May 2005 or, indeed, thereafter to tell him what was happening – even if only to tell him that matters were taking longer than had been anticipated. All that is said is that “It was my intention to write to him on this date to update him on the enquiries which we were making. Unfortunately because of the circumstances outlined in the chronology … above this did not occur.”

The hearing

[22]The hearing took place before me on 15 January 2008. The Claimant appeared in person. He addressed me with good humour, courtesy, clarity and conciseness, having correctly identified and helpfully concentrating on the real issues in the case. The Council was represented by Mr Oldham. At the end of the hearing I reserved judgment.

The first issue

[23]The Claimant comments that the entire process from an early stage was characterised by delay on the part of the Council. For example, it took the Council from 11 March 2005 to 25 April 2005 – some six weeks – to make enquiries of the local education authority, and there were then the significant delays, for which the Council alone is to blame, from 30 June 2005 to 11 November 2005. More specifically, however, he complains about the Council’s failure to comply with the time limit in Rule 9(1). He says that even assuming (which he does not necessarily accept) that the use of the word “normally” in Rule 9(1) permits the Council some degree of flexibility, he has two grounds of legitimate complaint: i) First, it is clear on the Council’s own evidence that the Council was simply not complying with Rule 9(1) in any meaningful way – notices were not “normally” being sent out within four weeks. As the Council accepts, compliance with the four week period was “very much the exception rather than the norm”, “the average length of time from receipt to issuing a Notice of Investigation [being] about 22 weeks”. ii) Secondly, and whatever may have been the prevailing practice – the “normal” practice – the delay in his case was wholly unacceptable. If time ran from 11 March 2005, when the Council received the papers from the DfES, then the Claimant had to wait for precisely eight months for what should have followed in four weeks. Even if, taking a possible view of the effect of Rule 3(1)(d)(ii), time ran only from 30 June 2005, when the requested information was received from the X school, it still took the Council some 4½ months – to be precise, 19 weeks – to send out the notice. The Claimant puts the point very pithily. “To exceed this by several months is not the sort of flexibility the word “normally” can be reasonably expected to imply. This case is not haggling over a few days delay, but months.”[24]Mr Oldham first submits that the Rules do not impose any obligations to the Claimant. They are not, he says, an instrument which may form the basis of a judicial review claim of the kind being pursued by the Claimant because, he asserts, they are not legislation and not intended to have the effect of legislation. They were made by the Council pursuant to the very broad and permissive powers conferred upon it by the Regulations. So no doubt they were, but I do not see how this leads to the conclusion for which Mr Oldham contends.[25]The Rules are published by a public body, in exercise of powers conferred upon it by a statutory instrument which is itself authorised by statute, as a definitive statement of how it operates the disciplinary powers vested in it by that statute. I cannot see any reason why, in these circumstances, a breach of the Rules, a failure by the Council to observe the Rules, which it has publicly proclaimed as the basis upon which it, a public body, will exercise the public powers conferred upon it by statute, should not in an otherwise appropriate case form the basis of an application for judicial review. After all, as I observed during the hearing, in R v General Council of the Bar ex p Percival [1991] 1 QB 212, the Bar Council was held to be amenable to judicial review for alleged failure to comply with its own Professional Conduct Committee Rules (annexed to the Code of Conduct for the Bar of England and Wales) even though at that time neither the Code of Conduct nor the Professional Conduct Committee Rules had any kind of statutory underpinning at all. The present case, it might be thought, is a fortiori. Furthermore, Regulation 10(6) refers to the rule-making power as being to make provision “as to the procedure to be followed by an Investigating Committee”. I doubt that Parliament, when it approved that Regulation, thought it was conferring on the Council power to make provision as to the procedure to be followed or not at the whim of the Investigating Committee.[26]More compelling is Mr Oldham’s other submission, which is that the insertion of the word “normally” shows that there is no rule that the Notice must be sent within four weeks. On the contrary, he says, it shows that flexibility was deliberately built into Rule 9(1). So whether or not his first submission is correct, Mr Oldham says that on this ground alone the first part of the Claimant’s case must fail. Even if Rule 9(1) amounted to an obligation to the Claimant, there was, says Mr Oldham, no breach of the obligation.[27]In this context Mr Oldham points to the very wide discretion conferred on the Investigating Committee by Regulation 10(1) – “they shall at such stage in the investigation as they consider appropriate … inform the teacher of the nature of the allegation or case against him” (emphasis added). Of course the Council accepts that it is important to proceed with due despatch and, Mr Oldham accepts, in such a way that fairness is not undermined. But, he says, Rule 9(1) must be read against that statutory background, which shows that Rule 9(1) was not meant to and does not impose an absolute deadline for notification. Regulation 10(1) recognises, as he observes, that the point at which the Council is properly able to tell a teacher about allegations may vary depending on the point at which it has sufficient information to make the position tolerably clear to the teacher.[28]Building on this submission, and pointing to the Council’s evidence, Mr Oldham further submits that there was proper reason, or at the very least a reasonable explanation, for the Notice being sent in this case when it was. It is important, he says, for the Notice not to be sent out until such time as the Council has been able to investigate matters with the different interested parties, has been able to collate the documentation and is in a position fully to understand the allegations being made. Indeed, he says, for the Council to act precipitately or prematurely might prejudice the teacher’s interests, because documents which subsequently came in might put a different, and innocent, light on the allegations made.[29]In any event, says Mr Oldham, mere delay is not of itself a reason to grant the Claimant relief. The Council’s regulatory function, he says, means that it is clearly entitled, and may be obliged, to consider the allegations made against him even if (which of course is denied) the Notice was, as Mr Oldham puts it, “late” (quotation marks in original). So the complaint, even if (which is denied) there is any merit in it, is of a formal nature only and does not merit a judicial review challenge. The effect of the kind of breach of which the Claimant complains cannot be to prevent the Council carrying out its disciplinary functions against the Claimant. The remedy sought by the Claimant would not, says Mr Oldham, be commensurate with any alleged fault on the Council’s part. The justice and merits of the case, he submits, do not even suggest, let alone require, that the Council’s important disciplinary functions, which it conducts in the public interest, should be entirely halted.[30]I agree, and in substance for the reasons given by Mr Oldham, that there has not here been any actionable breach of Rule 9(1).[31]Both the terms of Regulation 10(1) and the insertion of the word “normally” in Rule 9(1) indicate quite clearly that flexibility is built into Rule 9(1). Moreover, the opening words of Rule 9(1) indicate that the trigger for the obligation to send a Notice of Investigation is the decision to refer the case to an Investigating Committee and that, in a case of difficulty or complexity, may not be a decision that can sensibly or appropriately be taken within four weeks of receiving the allegation. Hence, and in recognition of this reality, the qualification reflected in the word “normally”. After all, and for all the reasons given by Mr Oldham, the very serious decision to refer a teacher to an Investigating Committee with a view to possible reference of the case on to a Professional Conduct Committee is not one to be taken lightly. In particular, it is not one to be taken, it might be thought, until the Council, as Mr Oldham puts it, has been able to investigate matters with the different interested parties, has been able to collate the documentation and is in a position fully to understand the allegations being made.[32]Now this does not necessarily meet the Claimant’s real point which is that, whatever degree of flexibility is built into Rule 9(1), and whatever justification the Council had for delaying in sending him a Notice of Investigation before 30 June 2005, there is nothing to excuse the very considerable delay which ensued thereafter before the Notice of Investigation was finally sent on 11 November 2005.[33]I have been troubled by this point because I cannot help thinking that the Council’s explanations, frank though they may be, are pretty threadbare. (In saying this I am acutely conscious of the fact that I am sitting as a judge in a court which has inflicted the best part of two further years delay on the parties, a topic to which I must return in due course.) But I have concluded that Rule 9(1), properly read in the context of the statutory scheme as a whole and, in particular in the context of Regulation 10(1), is not a rule breach of which carries with it as an automatic result the invalidation of a subsequent Notice of Investigation.[34]Once upon a time the question was posed in terms of an asserted dichotomy between provisions compliance with which is mandatory and provisions that are merely directory. That is no longer treated as being the true or indeed a particularly helpful distinction: see London and Clydesdale Estates Ltd v Aberdeen District Council [1980] 1 WLR 182 at pages 188-190 per Lord Hailsham of St Marylebone LC. The task for the court, as Lord Hailsham explained, is to decide in the particular case what the legal consequence of non-compliance is, viewed in the light of a concrete state of facts and a continuing chain of events.[35]Applying that approach, I conclude that Rule 9(1) is not a provision breach of which will necessarily and in all circumstances have the consequences for which the Claimant contends. It is, in the final analysis, a matter of fact and degree. There will come a point at which the failure to comply with Rule 9(1), where the length of delay, is such as to invalidate any subsequent Notice of Investigation. That I accept. But in the particular circumstances of this case I cannot accept that that point had been reached by 11 November 2005. I am very conscious of what I have already described as the pretty threadbare nature of the Council’s explanations, and I cannot help thinking that not very much further delay on the part of the Council might well have brought matters to the point at which it would no longer have been lawful to send the Claimant a Notice of Investigation. But that point had not been reached on 11 November 2005.[36]Accordingly, in my judgment, the Notice of investigation was not invalidated by reason of any failure to comply with Rule 9(1).

The second issue

[37]The Claimant’s case is simple. Not merely was there the delay about which he complains. He was told by letter dated 28 April 2005 that the Council would write again on 26 May 2005, but in the event heard nothing until he received the notice sent to him on 11 November 2005. No attempt was made to inform him of the delays which the Council was experiencing, for example the delay in obtaining a response from the local education authority and then the further delay caused by the need to obtain information from X school, and he was, he says, unaware of it. The further delays referred to in the Council’s evidence were, he says, within the Council’s control “and in the interests of natural justice should have been overcome, or the Notice of Investigation should have not been issued.” Given the use of the word “normally” in Rule 9(1), a reasonable person who, like the Claimant, had heard nothing from the Council since 28 April 2005 could conclude by the time he destroyed the documents in August 2005, some four months later, that no Notice of Investigation would be issued.[38]In amplification and support of this submission the Claimant points to the passage in the letter dated 28 April 2005 which refers to the Council “issuing a Notice of Investigation, which will set out the allegations” (emphasis added). This, he says, read in the context of the letter as a whole, reinforces his understanding of the letter as indicating that the further letter the Council had said it would write on 26 May 2005 would contain the Notice of Investigation setting out the allegations.[39]The Claimant says that that the lapse of time, and the destruction of the documents and notes that he had gathered, means that he is unable to give a full defence to the allegations made and is therefore unable to receive a fair hearing. This, he submits, contravenes the rules of natural justice and Article 6.[40]Mr Oldham does not wish to debate the question of whether or not Article 6 applies in this context. The present case, he suggests, is not an appropriate vehicle for deciding that important question. The Council is prepared to concede, for the purposes of this hearing, that the common law provides the Claimant with the same rights as Article 6 would, if applicable. The Claimant was content to proceed on this basis, sensibly recognising that he would suffer no prejudice if I were to follow Mr Oldham’s suggestion and understandably not wishing to become embroiled in legal issues of some complexity.[41]The question, therefore, submits Mr Oldham, is whether the Council has done anything to undermine the fairness of the procedure in so material a way that it must be halted at this stage.[42]As Mr Oldham says, the letter of 28 April 2005 is central to the Claimant’s case. The Claimant’s case, says Mr Oldham, comes to this: that the letter in effect told the Claimant that he would be ‘in the clear’ if the Council had not notified him of an investigation by 26 May 2005, so that his destruction of the documents was as a result of the Council’s misrepresentation.[43]Mr Oldham submits that the letter in fact did nothing of the sort; the Claimant is reading far too much into it. The very fact that it said that the Council would write to him on 26 May 2005 “to update you on the consideration of your case” (emphasis added) shows that the Claimant could not necessarily expect a definitive decision by then. And the word “will” relied on by the Claimant is not to be read as a statement that there “will” be a Notice of Investigation, let alone a Notice of Investigation sent no later than 26 May 2005, but as being merely descriptive of what the Notice of Investigation, if one is issued, “will” contain. So, says Mr Oldham, given the terms of the letter the Claimant cannot reasonably say that he could assume that there would be no investigation if he had not had confirmation of it by 26 May 2005. On the contrary, he had been told that there would be an investigation.[44]So far as concerns the letter of 28 April 2005, I agree with Mr Oldham. The Claimant seeks to read too much into it. So, in my judgment, the Claimant would have had no complaint if he had acted as soon as 26 May 2005 had passed and had at that stage destroyed his documents.[45]But the Claimant’s case is not based solely on the terms of the letter. He relies upon the combination of the letter coupled with the fact that there was silence thereafter until August 2005, some three months or so after the identified date of 26 May 2005 had passed.[46]Mr Oldham accepts that in the face of deafening silence from the Council the Claimant was under no obligation to stir things up by writing to the Council. He was entitled to ‘let sleeping dogs lie.’ But that, says Mr Oldham, is very different from saying that he was entitled to take the active step of destroying his documents only three months later. If he did, then that is not something that can properly be laid at the door of the Council. The Claimant took that step at his own risk, because he could not reasonably, in August 2005, have taken the failure to send him an updating letter on 26 May 2005 as a signal that the investigation would not proceed and that he had no need of his papers.[47]In these circumstances, Mr Oldham submits, the Claimant’s destruction of his documents cannot be attributed to any failing on the part of the Council, and the Council cannot therefore be said to be acting in breach of natural justice (or any principle enshrined in Article 6) in continuing with the proceedings against him.[48]I agree with Mr Oldham. If the Claimant had waited longer, if the silence on the part of the Council had extended well into the new year, then it may be that he would have been justified, and without any reference back to the Council, in treating the prolonged silence as a clear indication that the Council was no longer pursuing the matter. But that stage had not been reached by August 2005. If the Claimant had written a ‘chaser’ to the Council, if he had put the Council on notice that he was treating the matter as ‘dead’, then matters might have been very different. But he did not. He merely treated three months silence from 26 May 2005 as indicative of the Council’s abandonment of the proceedings against him. That, in my judgment, was not a stance which it was reasonable for him to adopt. The Council might reasonably have been thought to be slumbering, but at that stage no more than that.

Delay

[49]Apart from the two specific matters of complaint raised by the Claimant there lurks in the background to his submissions a more generalised complaint that, given all the delays and the time that has now gone by, it is no longer possible for there to be a fair trial.[50]Mr Oldham disputes that proposition and submits that it is in any event an issue properly to be dealt with by the Professional Conduct Committee rather than, in anticipation, by this court.[51]In this connection, Mr Oldham took me to Spiers v Ruddy [2007] UKPC D2, where the Judicial Committee of the Privy Council, hearing a devolution issue from Scotland, had to consider the earlier, conflicting, decisions of the Judicial Committee of the Privy Council in R v HM Advocate [2002] UKPC D3, [2004] AC 462, and of the Judicial Committee of the House of Lords in Attorney General’s Reference (No 2 of 2001) [2003] UKHL 68, [2004] 2 AC 72. The decision of a united Judicial Committee was (as Lord Bingham of Cornhill put it at para [17]) that “Attorney General’s Reference (No 2 of 2001) gives better effect than R to the Strasbourg jurisprudence.” Accordingly (see Lord Bingham at paras [4], [8], [16]), there is nothing in Article 6 to prevent a continuation of proceedings, even if they have not been concluded within a reasonable time, so long as the fairness of the trial has not been or will not be compromised. In other words, delay, even if it is such as to infringe Article 6, is no ground for stopping proceedings so long as a fair trial is still possible and there is no other compelling reason why it would be unfair to proceed.[52]The Claimant, not surprisingly, asserts that a fair trial is no longer possible.[53]There are in any event, says Mr Oldham, a number of reasons why the Claimant is not in fact at the disadvantage he feels he may be: i) He could try to contact at least some of those whose statements h no longer has. He has not, Mr Oldham says, sufficiently explained why this is not possible. ii) He can explain to the Professional Conduct Committee the difficulties he says he faces and no doubt, Mr Oldham says, the Professional Conduct Committee will take this into account in their determination. iii) Moreover, the Professional Conduct Committee has power under Regulations 13 and 14 to compel the attendance of witnesses (enlisting the assistance of the High Court in the case of recalcitrance) and to require them to give evidence on oath or affirmation. So, says Mr Oldham, the Professional Conduct Committee is in a position to remedy any disadvantage which it feels the Claimant may be at.[54]This raises the question of whether this is properly a matter for determination at this stage by the Administrative Court or whether it is not rather, as Mr Oldham submits, a matter at least in the first instance for the Professional Conduct Committee.[55]Now there may be cases where the impossibility of there being a fair trial is so clearly established that the Administrative Court can and should properly intervene in advance of a disciplinary hearing to put a summary stop to otherwise properly constituted proceedings before a disciplinary tribunal. More usually, of course, the Administrative Court is called upon to assess such issues after the event. There is sound pragmatic justification for this. Typically the judge in the Administrative Court will not have all the papers – will not have the dossier – which it is anticipated will in due course be put before the disciplinary tribunal. (That, in fact, is the situation in the present case. I have not seen the file that was put before the Investigating Committee or the file that is proposed to be put before the Professional Conduct Committee.) The disciplinary tribunal will, in contrast, have all the papers and be steeped in the case so as to be infinitely better fitted than the judge in the Administrative Court to assess whether a fair trial is possible, to assess, for instance, whether, despite the absence of particular documents or some particular witness (MB for example), a fair trial is or is not possible.[56]In the present case I am simply not in a position to assess fairly and justly whether a fair trial is or is not any longer possible. It may be that it is. But it may be that it is not. That is something which the Professional Conduct Committee will have to determine if, as I imagine he will, the Claimant wishes to pursue the point. It is not a matter for determination at this stage by the Administrative Court.[57]In the circumstances, the less I say about the question of delay the better. I propose to make only two observations.[58]In the first place, nothing I have decided and nothing I have said in this judgment is to be read as an indication of any positive finding by me that a fair trial is still possible. The Claimant’s case before me has failed on other grounds.[59]Secondly, I have to confess to some concerns about the lengthy period of time which will by then have elapsed before any hearing before the Professional Conduct Committee is likely to take place. This is a matter that first reached the Council in March 2005. It relates to events some of which date back to 2002 or 2003. It is unlikely, I imagine, that any hearing before the Professional Conduct Committee will take place before March 2008 at the earliest. I stress that a significant part of the delay has nothing to do with the Council and has, indeed, been caused by the court, a matter of very profound regret to me. But the Professional Conduct Committee will have to look at matters as they stand when the case comes before it. It seems to me that it will indeed need to give anxious consideration to the question as to whether, in all the circumstances, and bearing in mind everything that has happened, a fair trial is possible. I am not, I emphasise, suggesting, or even hinting, that a fair trial is not possible. But the question does, I suggest, merit careful consideration.

Conclusion

[60]Accordingly, the Claimant’s application for judicial review fails and must be dismissed.

Costs

[61]At the end of the hearing the Claimant and the Council each indicated that they were not seeking an order as to costs even in the event of success. Both parties were content that, whatever the outcome, there should be no order as to costs.

Order

[62]I will therefore dismiss the application for judicial review. There will be no order as to costs.

The Court’s delays

[63]These were professional disciplinary proceedings where the Claimant’s complaint was, in essence, of delay on the part of the Defendant. As will be apparent from the chronology I set out earlier, some of the events relied on to found the disciplinary proceedings dated back to 2002 and 2003. The disciplinary process itself, from the point where the case was referred to the Council down to the point where the Investigating Committee decided to refer the matter to a Professional Conduct Committee, had lasted from 11 March 2005 to 18 January 2006.[64]The N461 was issued on 14 February 2006. Permission was not granted until 4 October 2006. The substantive hearing did not take place until 15 January 2008, almost two years after the claim was first brought.[65]These seeming delays by the Administrative Court caused me no little concern. I made enquiries as to how this had come about. Both the litigants and the public generally are entitled to know what I discovered. I set out verbatim the memorandum I have received from the Administrative Court Office:
“Regrettably the papers were not submitted promptly to a single judge for consideration. During the spring and summer of 2006 the daily average of cases awaiting allocation was over 330 and the average waiting time for decision on paper was approximately 3 months. However, this case should have been identified as one which should not have suffered delay within the Administrative Court Office – raising as it did an assertion of delay against the defendant. The case was not allocated before the commencement of the Long Vacation. It was sent, with an apology for the delay, to Burton J on 21 September. Burton J granted permission, on 4 October 2006, but did not direct expedition. The claimant was notified on 30 October that he had failed to pay the fee (due by 13 October) to pursue the substantive application. He paid the fee on 6 November and the case entered the Warned List on 13 November 2006. Without a direction for expedition, the case took its place in the queue (over 600 cases awaited fixing). There is no record of any contact from claimant or defendant until the defendant’s solicitors enquired on 26 July 2007 as to when the case was to be heard. I directed that the List office proceed to fix the case. The hearing date of 15 January 2008 was fixed on 2 August and confirmed by letter dated 20 August. Neither party sought an earlier hearing. Although the Office did not meet its internal target of papers being ready for allocation to a judge within 2 months of receipt and must accept blame for not ensuring that the papers were submitted to a judge before the Long Vacation 2006, most of the delay in this case is due to lack of judicial resources – initially to consider the paper application and, after the grant of permission, to consider the substantive hearing.”
[66]The picture this reveals is deeply disquieting, indeed a matter of very great concern to me. Delays of this kind are wholly unacceptable.