Henderson, R (on the application of) v General Teaching Council for England [2012] EWHC 1505 (Admin)

Case No CO/8710/2011[2012] EWHC 1505 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Birmingham Civil Justice Centre
Priory Courts
33 Bull Street
Venue Birmingham B4 6DSDate Thursday, 1st March 2012
B e f o r e:
MR JUSTICE BEATSON
Between
THE QUEEN ON THE APPLICATION OF HENDERSONClaimantv
Between
GENERAL TEACHING COUNCIL FOR ENGLANDDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr A Faux (instructed by National Association of Headteachers) appeared for ClaimantMiss S Knight (Solicitor-Advocate)(instructed by Bevan Britton Solicitors) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE BEATSON: This is an appeal pursuant to paragraph 6 of Schedule 2 to the Teaching Higher Education Act 1998 ("the 1998 Act").[2]The appellant, Jamie Henderson, a former headteacher of Cranberry Primary School in Islington appeals against the prohibition order imposed by a Professional Conduct Committee of the General Teaching Council for England on 24 August 2011 for unacceptable professional conduct. The order struck the appellant off the teaching register maintained by the Council pursuant to the 1998 Act. Its effect is that he is not entitled to work as a teacher and may not apply for permission to reregister for a period of 2 years.[3]No issue is taken with the Professional Conduct Committee's findings of fact, the appeal is against the penalty which is said to be excessive in all the circumstances of this case.[4]I have been assisted by the oral and written submissions of Mr Faux, on behalf of the appellant, and Miss Knight, on behalf of the General Teaching Council, which I shall refer to as "the Council".[5]Mr Faux also raised the question of the scope of these proceedings, contending that in the light of the decision of the Court of Appeal in R (on the application of) Kaur v Institute of Legal Executives Appeal Tribunal [2011] EWCA Civ 1168, because three members of the Professional Conduct Committee were members of the General Teaching Council, the Committee was not or did not appear to be an independent and impartial Tribunal. There was no suggestion of actual bias, only of apparent bias. I say "apparent bias" using "bias" in the legal sense of the word. It was submitted that the Committee's apparent bias could only be cured by a rehearing (see the decision of the Quarter Session in Tehran v UK Central Council for Nursing Midwifery and Health Visiting [2001] SC 581. The question of whether there was also a breach of Article 6 of the European Convention was raised in Mr Faux's written submissions but not developed and it was common ground that the material is not in front of this court in these proceedings to explore that question.[6]As to the scope of an appeal of this sort, absent any question of bias (see the passage from the judgment of Laws LJ in Raschid v GMC [2007] EWCA Civ 46, set out in the R (on the application of) Smith v General Teaching Council [2007] EWHC 1675 (Admin), at paragraph 7). Laws LJ stated that the court's role goes beyond that in classic judicial review situations and in correcting material errors of fact and law "it will exercise a judgment" but that is "distinctly and firmly a secondary judgment as to the applicability of the principles to the facts of the case."[7]On the assumption that the appeal succeeded Mr Faux invited the court to dispose of the matter rather than to remit it to a different Committee because of the impending abolition of the Council on 31st March and its replacement by a new regulatory body, The Teaching Agency. If this matter is remitted back to the Council, the Council will not be able to hear it but it would be considered by the new agency. Mr Faux invites me to dispose of the matter and determine the matter in part because he submitted that the New Agency would not have the breadth of sanctions that the General Council has.[8]Miss Knight observed that if the appellant succeeds, the case could be remitted. If so, it would be heard by the new regulator and the appellant would take his chance. But for reasons which I will explain it was broadly common ground that although approaching the matter from different perspectives the appropriate thing in these unusual circumstances would be for this court to determine the matter.[9]I turn to the legal framework. By section 1(2) of the 1998 Act the principal aims of the General Teaching Council for England are(a) to contribute to improving the standards of teaching and quality of learning and(b) to maintain and improve standards of professional conduct among teachers in the interest of the public. The General Teaching Council Disciplinary Functions Regulations 2001 SI 2001 No 1268, as amended by the General Teaching Council for England Disciplinary Functions (Amendment) Regulations 2011 No 2785 provide for investigating Committees to investigate allegations that a registered teacher is guilty of unacceptable professional conduct or serious professional incompetence and to decide whether a teacher whose case is investigated has a case to answer. If so, that case is referred for determination to a Professional Conduct Committee (see regulation 3), where an Investigating Committee so decides the Professional Conduct Committee will determine the matter. Where the Professional Conduct Committee finds a teacher to be guilty of unacceptable professional conduct, to have been convicted of a relevant offence, or to be guilty of serious professional incompetence, it has to consider whether to make a disciplinary order in relation to the teacher and, if it does, what form of disciplinary order (see Regulation 52(b) and (c)). Regulation 18 makes provision for the Committee to make a conditional registration order, a suspension order and a prohibition order. In the case of prohibition order the minimum period (see regulation 18(4)) before the end of which a person may apply for permission to re-register is 2 years from the date on which the order takes effect.[10]As Mr Faux observed in the course of his submissions, although the language is unusual a prohibition order is in effect a striking-off order.[11]Membership of Professional Conduct Committees is governed by Regulation 8. Prior to the 2011 amendment, it provided:
".—(1) The Council must include on a Committee— (a)one or more lay members; and (b)one or more registered teacher members. (c) if none of the lay members or registered teacher members is a Council member one or more Council members."
The 2011 amendment came into effect on 23 November 2011, after the determination of the appellant's case. The amendment removed the obligation for there to be a member of the Council on each Professional Conduct Committee.[12]The General Council has developed guidance for Committees when considering what sanction to impose on a registered teacher following a finding of inter alia unacceptable professional conduct. The guidance states inter alia:
"Hearing Committee members are obliged to exercise their own judgment in making decisions since they are acting in a judicial capacity within a framework set out by the Council."
The guidance also states that in considering the application of a sanction a Committee must decide whether a sanction needs to be applied with respect to the teacher's registration and the "interests of the public, the profession and the teacher need to be weighed in this decision."[13]Section 1(3) is headed "The purpose of sanctions." It states:
"The primary purpose of sanctions is not to be punitive but to protect the interest of the public although they may have a punitive effect."
As to the public interest, the guidance states:
"There is clear judicial authority that the definition of the public interest in the context of professional regulation includes: (a) the protection of members of the public; (b) the maintenance of public confidence in the profession; and. (c) declaring and upholding proper standards of conduct and competence."
A subheading in this section is "Proportionality". The first paragraph states:
"In deciding what sanctions to impose the Committee should apply the principle of proportionality weighing the public interest (as defined above) against the interests of the teacher. In addition, they will need to consider any mitigation in relation to the seriousness of the behaviour in question."
In the section on 1(11) "General Considerations Relating to Prohibition Orders" it is stated:
"Prohibition from the register is appropriate where this is the only means of protecting pupils and maintaining public confidence in the teaching profession. However, Committees should not feel it necessary to prohibit a teacher in order to satisfy public demand for blame and punishment."
I pause to emphasise this last sentence because it does not sit comfortably and indeed is inconsistent with Miss Knight's submissions that part of the purpose of a sanction is to send a message out that certain conduct is unacceptable on a zero tolerance basis. That may be the effect of particularly serious misconduct but the main considerations in the guidance as they are in the statute is protecting pupils and maintaining public confidence in the teaching profession.[14]The guidance then sets out criteria and factors to be taken into account in the case of each of the sanctions. It is not necessary to set out those concerning reprimands and suspension orders, save to say that one of the relevant factors in considering whether to reprimand is stated to be insight into failings and in relation to suspension order, the guidance states that suspension may be appropriate when some or all of a number of factors are apparent, the list not being exhaustive. The last of those factors is that "the Committee is satisfied teacher has insight and does not pose a significant risk of repeating behaviour."[15]In the case of a prohibition order, the most serious sanction, paragraph 118 states:
"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)."
The penultimate factor listed is "persistent lack of insight into seriousness of actions or consequences". Two other factors which are relevant in the present context are "Serious Departure from the Code of Conduct" and "Evidence of Harmful Deep-seated Personality or Attitudinal Problems". I refer to these because in his submissions Mr Faux, to some extent, ran the lack of insight factor into the deep seated personality factor. I will return to these when considering the decision of the Committee.[16]I should finally refer briefly to what the guidance states about references and testimonials. It states that, as with other mitigating or aggravating factors these will be needed to be weighed appropriately in the consideration of the case. The focus of the guidance here is that the quantity, quality and number of references do not necessarily depend upon a standing of a teacher and they also refer to cultural reasons which are not applicable in the present case for not requesting them and the difficulties of those from overseas.[17]As to guidance on expressions of regret and apology, it is stated:
"The main consideration for the Committee... is to be satisfied that the protection of pupils and that the teacher has recognised that steps need to be taken and not the form in which this may be expressed."
That is said after a paragraph in which it is said that the expectation of a teacher able to stand back and accept that with hindsight they should have behaved differently and will take steps to prevent a recurrence is an important factor in a hearing.[18]I turn to the facts. The material facts are that the appellant, now aged 37, was appointed headmaster of Cranberry Primary School on 1st January 2005. It was a school which had previously had difficulties. It is common ground that his efforts and considerable hard work led to significant improvements and a very favourable OFSTED Report in 2010. The appellant achieved this by undertaking a very heavy workload (see the statement of Mr Miller, the headmaster of another school in Islington, paragraph 8). He often stayed at the school long after the end of the school day. The statement also refers to awareness by the appellant's friends that he was having difficulties, he was having personal relationship problems, working exceptionally late and complaining about the expectations of members of his governing body and was clearly exhausted. Mr Miller stated:
"Despite a number of us trying to offer him the support he had offered us he withdrew and began not to contact us."
[19]The facts which gave to the disciplinary proceedings by the school governors, the General Teaching Council's investigation and ultimately the Committee's deliberations and sanctions occurred in the second half of 2008. The first incident was that at about 11.30 pm on 24th July a Mr Ashard, who lived in a flat overlooking the appellant's office in the school, observed a man, who was later identified as the appellant, sitting in front of a computer masturbating. Mr Ashard informed Crime Stoppers of this incident two days later. The next event was that at approximately 6.15 pm on 24th September, ie 2 months later, Mr Ashard's partner looked out of the window and saw a man, later identified as the appellant sitting in front of a computer in his office masturbating. She called Mr Ashard, who witnessed the incident and he called the police. The police attended shortly afterwards. One of the officers attending saw that there was a sign indicating that there was an open evening taking place at the time and noticed a couple of children playing in the playground.[20]The appellant denied that he had been masturbating; he said that he had been naked because he had just had a shower after going out for a run. The police took statements from the witnesses and on 26th September took possession of a laptop and Blackberry device owned by the school which had been used by the appellant.[21]On 30th September the Chair of the school governors wrote to the appellant suspending him from duty on full pay, pending the resolution of the allegations by Mr Ashard and his partner.[22]Forensic examination of the computing equipment found large quantities of adult pornographic material on the laptop, which had been viewed on many occasions, including on 10 occasions during the school day on 4 September.[23]The appellant was interviewed on 13 November 2008 and 22 January 2009. The school's investigations brought the third matter with which he was charged to light. This concerned his recruitment of a friend as an after school drama leader in September 2008, despite knowing that there had been allegations made against the friend of inappropriate conduct with pupils which had led to the friend being suspended from his previous school.[24]Although the police investigated the matter and conducted the forensic examination, it was decided not to institute criminal proceedings and the hearing before me has been conducted on the basis that however inappropriate the appellant's conduct, it was not criminal.[25]Returning to the school's disciplinary process. A disciplinary hearing on 1 May found that the appellant was seen masturbating in his office in front of his computer by the two members of the public, on two occasions; that he had used the computer equipment to access, download and to view pornographic images and films during school hours when children were present in the building and that he had been negligent in the recruitment and vetting process of the after school drama leader. In relation to the latter, in particular he failed to carry out proper checks despite knowing that allegations had been made against the children. The finding was that he thereby put Cranberry children at risk. He was summarily dismissed.[26]He appealed, denying the allegations of masturbation in his office. His appeal was dismissed on 3 July 2009. At the time that the appellant was dismissed the local authority informed the General Teaching Council of its investigation and the Council decided to conduct its own investigation. An Investigating Committee was set up and sent a notice dated 13 November 2010 to the appellant. This set out the nature of the allegations against him and invited his response. He responded on 31 January 2011. He denied the allegations of masturbation in his office but also maintained that even if they were proved, they did not amount to unacceptable professional conduct because one of the allegations concerned a day after term had ended and because his office was on the first floor, with a high degree of privacy and "geographical distance from children and staff". The appellant's submission was that the possibility of children seeing what was alleged "seems remote as to be of no significance". In those circumstances he submitted that the alleged conduct would not have constituted unacceptable professional conduct.[27]At a meeting on 2 February 2011 the Council's Investigating Committee decided to refer the appellant's case to a Professional Conduct Committee. It wrote to him in a letter dated 7 February but he did not respond to an invitation to reply to that referral. As the allegation of masturbation remained in dispute, it was necessary, as part of preparing the matter for the hearing, to locate and contact Mr Ashard and his partner, to take a further statement and to ensure that they would be available to give evidence. A letter dated 7 June notified the appellant that the hearing would be on 17 August. It was only after that notice and when counsel had been instructed that the appellant admitted all the allegations, including that concerning the masturbation in his office. Previously he had admitted the facts relating to the downloading of the pornography and the failure to carry out the appropriate procedure when recruiting the after hours leader, although he maintained that the position and procedures in relation to the latter were unclear because there were changes of procedure under consideration.[28]Once he had admitted all the allegations it was possible to draw up a statement of agreed facts, which included the masturbation incidents. That was signed on 28 July. As agreement had been reached on all material facts it was not necessary to call live witness evidence at the hearing.[29]The appellant did not attend the hearing on 17 August. Mr Fauxs, who appeared before the Committee, informed the Committee that he did not do so because he was ashamed of his actions and he conveyed the appellant's apologies to the Committee. He also made extensive submissions as to the appellant's insight into his misconduct and his excellent record and the testimonials and the OFSTED report.[30]The Committee's decision was promulgated on 24 August . The Committee found that the appellant's behaviour amounted to unacceptable professional conduct and "fell well below the standards expected of a member of the profession and particularly those expected of a headteacher." It also found that the appellant "failed to demonstrate self awareness and take responsibility for accessing help and support at a time when he was under severe stress for personal and professional reasons." Thirdly, it found that he "failed to uphold school child protection policies and procedures, failed to demonstrate integrity in the use of the school's ICT equipment and failed to maintain reasonable standard in his own behaviour that enabled him to uphold public trust and confidence in the profession."[31]In determining the sanction the Committee stated that it had regard to the Indicative Sanctions Guidance published by the Council and in particular the maintenance of public confidence in the professional and upholding proper standards of conduct. It also stated that it had sought to approach the question of sanction bearing in mind the principle of proportionality.[32]In reviewing why it had decided not to impose a lesser sanction, it stated that a reprimand was not appropriate because although the appellant had shown remorse and insight, "these are not isolated incidents which took place on school premises" and "in addition some incidents took place when the children were in school."[33]The Committee stated that the appellant's conduct in relation to the recruitment of the after school drama leader "was reckless, there being a risk that pupils could have been seriously affected." The reason that the Committee did not consider it was possible to impose a conditional registration order was that it was not possible to formulate appropriate conditions because the appellant was no longer teaching. It also considered that, in view of the nature of his actions, appropriate measures capable of addressing that behaviour could not be identified.[34]As to suspension, the Committee referred to the references and testimonials and the content of the OFSTED report which was submitted. It recognised the appellant's contribution during his 10 years as a headteacher and throughout his teaching career. It did not however consider that a suspension order was appropriate because it was not satisfied that the appellant "did not pose a significant risk of repeated behaviour". It stated that it had seen "no evidence that he has taken steps to address the underlying factors which give rise to this unfortunate cause of events."[35]The factors referred to in considering the lesser sanctions led the Committee to conclude that a prohibition order was proportionate. The Committee found that the appellant's conduct constituted "a serious departure from several requirements of the code of conduct and had the potential of seriously affecting pupils." It also took into account that until shortly before the hearing the appellant consistently denied masturbating in his office in front of the computer, despite what the Committee described "as overwhelming evidence to the contrary." It stated that the appellant "showed a lack of insight into the implications of his actions on his professional role as a headteacher."[36]I turn to the consideration of the submissions and the background. I first deal with the scope of these proceedings. In R (on the application of Smith) v General Teaching Council [2007] EWHC 1675 (Admin) at 8, the Council accepted that the hearing of an appeal against the determination of a Professional Conduct Committee was "one of rehearing" and that this court is not confined simply to discerning errors of law or other public law flaws as on judicial review. That case, unlike this, concerned whether the Committee had made a material error of fact. In Khan v Solicitors Regulatory Authority [2010] EWHC 155 (Admin), it was argued during the course of the hearing (see paragraph 27) that although the Solicitors Disciplinary Tribunal was a Tribunal particularly well placed to assess what measures are required to deal with a solicitor who has committed a disciplinary offence and to protect the public interest, if the High Court, after paying appropriate respect to the sentencing decision of the Tribunal, is satisfied that the sentence was "clearly inappropriate" the court will intervene.[37]The decision in Khan's case was of a Divisional Court, the lead judgment was given by Elias LJ. He stated that he had not reached a concluded view on this question because it only arose in the course of argument and did not strictly arise on the facts of that case. He however considered that whether one called the hearing "a review" or "a rehearing", the position is that, as with many appeals of this kind "one gives appropriate deference to the decisions of the expert professional body where matters of expertise are properly engaged". He however stated that in other sayings, and it would depend on the facts and to what extent the findings of facts had resulted from an investigation or interview carried out by a professional governing body, the court may feel it is in as good a position as the Panel to weigh up the relevant considerations.[38]In this case it is submitted on behalf of the appellant that while the court is reluctant to interfere with a decision of a professional disciplinary body the presence of three members of the Council on this Profession Conduct Committee has given to apparent bias in the light of the decision in Kaur's case. That is only cured if the right of appeal to this court is by way of rehearing rather than a more limited appeal. Mr Faux accepted that the rehearing had to be on the basis of the papers before me.[39]Miss Knight's written submissions maintain that there are distinctions between this case and the position of the Council and the position of ILEX in Kaur's case, in that here the Council is a statutory body created for regulation and this is a statutory appeal. The charge against Mrs Kaur was of conduct unbefitting to ILEX or likely to bring ILEX into disrepute. Rix LJ considered that that underlined the interest of ILEX and its governing body in upholding its professional standards. Here the charge and finding was of unacceptable professional conduct below the standards expected of a member of the teaching profession. It is not necessary, in the light of the way that it was agreed I should approach this case for me to make a ruling on this. But the thrust of the reasoning in Kaur's case was the importance of proper separation of Disciplinary Panels from those concerned with overall governance of an organisation (see Rix LJ at 52) and it was the decision in Kaur's case that led to the decision to amend regulation 8.[40]Whether or not Kaur's case is distinguishable on grounds suggested by Miss Knight, whether or not the constitution of the Professional Conduct Committee and the appellant's case was tainted by apparently bias, in the light of the impending abolition of the Council, the inability of the court to remit the matter for rehearing by a newly constituted Committee on the same basis as it was originally heard, I accept that in the highly unusual circumstances of this case, it is appropriate for the court to assume a more intrusive role than would be appropriate in a normal case. That however is not to say that the court is as well placed as a Tribunal of professionals to decide on what amounts to an appropriate sentence. The court however has to do its best.[41]One possible difficulty is that if the Committee's decision is tainted by apparent bias, it might be difficult, as a matter of principle, for the court in considering an appeal, whether it is as a review or a rehearing to take account of the Committee's expertise. But Mr Fauxs accepted that if, as he wished, the court was to rehear the matter, it is appropriate to have regard to that professional expertise and he pointed me to the decision of Cranston J in Cheatle v GMC [2009] EWHC 645 (Admin), where at paragraph 15 his Lordship stated that in considering whether the decision of a disciplinary body (there the GMC's Fitness to Practise) is wrong:
"... the focus must be calibrated to the matters under consideration. With professional disciplinary tribunals issues of professional judgment may be at the heart of the case. Raschid [I interpose that is a reference to Raschid and Fatnani v General Medical Council [2007] 1 WLR 1460] was an appeal on sanction and in my view professional judgment is especially important in that type of case."
Notwithstanding the theoretical difficulty that I have identified, I am assisted by that and to that extent the judgment that this court will exercise has to be regarded as in a sense as a secondary judgment.[42]I turn to the substantial grounds. I have identified six grounds of challenge advanced on behalf of the appellant. The first is that the decision was a disproportionate response to the appellant's wrongdoing. In relation to the downloading of pornography and the masturbation, it is said that the appellant was behaving lawfully, albeit not in a manner that was "appropriate within the school ground". In relation to the engagement of the friend to carry out work for the school without the appropriate checks, Mr Faux's written grounds submit that the appellant was not responsible for the subsequent recruitment of that individual and no evidence had been adduced to demonstrate that any child was harmed as a result of the recruitment.[43]Mr Faux had however in his submissions to the Committee said that, after referring to the salacious headline being all about the pornography and masturbation that:
"I suspect although it is entirely a matter for you, of course, the more serious matter may be the recruitment issue."
[44]The second ground was that the Committee erred in its approach to insight. It wrongly gave weight to the appellant's denial of the masturbation over the period and his history of denial in respect of that and equated that denial with "lack of insight". It was submitted that the appellant had admitted all the other factual matters and that showed insight and that the Committee had failed to give adequate weight to the insight demonstrated by the applicant by his admission that he was guilty of unacceptable professional conduct. In his oral submissions Mr Faux's submitted that the time at which these admissions were made was relied on wrongly. These proceedings were not analogous to criminal proceedings where a person is given maximum credit for a guilty plea at the first opportunity and gradually reducing the amount of credit for later pleas. Because here, where what was at issue was the public interest and the safety of the public and the reputation of the profession what was necessary was the insight at the date when the Committee was considering its decision.[45]Thirdly, it was submitted that the Committee did not follow the guidance in the indicative sanctions guidance in not giving sufficient weight to the appellant's very successful career as a headteacher, with a history of very high achievement. He had gone off the rails and behaved very poorly within the school but, submitted Mr Faux, there was evidence before the Committee that the behaviours were as a result of external pressures and the failure to maintain a proper work life balance rather than the result of any type of deep seated attitudinal issue that the indicative sanctions guide indicates may lead to prohibition.[46]In his written submissions this reason is rolled up with a ground that was advanced more separately at the oral hearing, which is that the approach of the Committee is not consistent with earlier decisions of the Council and shown on the Council's website which demonstrate that viewing of pornography on school premises or failure to follow proper recruitment practices as being "fundamentally incompatible with administration as a teacher."[47]Finally, the written submissions argue that the reasons given for prohibition were inadequate and the decision is scant, but Mr Faux did not pursue that ground at the oral hearing. He did not formally abandon it but he was right not to pursue it formally. It will be seen from the remain of this judgment that I consider that the Committee's reasons were full and enabled the appellant and anybody else reading them to understand the reason on which the Committee proceeded.[48]The Committee's reasons were, as my summary of them earlier in this judgment shows closely linked to matters in the guidance. They went through the lesser sanctions and they explained why they were not appropriate or practical. Practicality refers to the conditional order.[49]I deal first with insight. The Committee did not equate denial with lack of insight. It took into account that over some 3 years the appellant had many formal opportunities to admit the masturbation charge but did not. It was entitled to take that into account. Lack of insight is one of the factors. In the context of a prohibition order, what the guidance refers to is a persistence lack of insight into seriousness of actions or consequences. That is a separate and different factor to "evidence of harmful deep seated personality or attitudinal problems". The decision does not rely on the latter factor.[50]Mr Faux submitted that the Committee's treatment of insight is inconsistent because in the section of its consideration of a reprimand it was stated that:
"Mr Henderson has shown remorse and insight"
. But in the section on prohibition order, it stated:
"Mr Henderson showed a lack of insight into the implications of his actions on his professional role as a headteacher."
[51]These two sections of the decision do not sit comfortably with each other. But I do not consider that they are necessarily inconsistent. It may well be that the appellant ought to show some insight as to the inappropriateness of the conduct in downloading and accessing pornography on the school computer in school hours. But what the later section is referring to is insight in particular in relation to his role as a headteacher.[52]It is important that the appellant did not attend the hearing and the Committee were unable to ask questions or to assess the questions designed to assess the indepths of his insight. The fact that an admission is made and an apology offered through counsel does not in itself show appropriate insight, particularly when the admission came, as this did, only after the individual received robust advice from counsel. Obviously, there is some credit to be given for this. But it would not be real to regard that sort of admission and apology as showing the same insight as an early unpressured one, unless there was some further explanation to show that that this was so. All that the Committee had were Mr Faux's submissions. They were powerful submissions. They were so power that in response that Miss Knight referred to them as "giving evidence". But that is a problem with the case.[53]Leaving aside whether Mr Faux is making submissions or giving evidence, his speech to the Committee relies solely on the admission by the appellant that he had done wrong. Mr Faux stated that that was the first step towards not repeating the misconduct. Then he said:
"That can in some circumstances mean that the Committee did not have to act in as draconian a way as others."
That is a very moderate, measured, careful and accurate submission but where the only point made is that admission after advice was given and it was so as not to put the witnesses through misery. The implication of Mr Faux's submission to me is that an absent party who admits misconduct and offers an apology per se has insight. I do not consider that a tenable submission.[54]There was no other evidence before the Committee as to the appellant's insight. There was his friend and fellow headmaster's statement. There was his statement. There was no medical evidence. In those circumstances it was not clear to the Committee, and the Committee was entitled to regard it as not clear, as to what the basis was upon which the appellant was motivated to make the admission that he made. Accordingly, I reject Mr Faux's criticisms of the Committee's treatment of lack of insight.[55]As to the submissions that the Committee did not follow the guidance and did not give sufficient credit for the positive references and very positive record the Committee did consider the guidance that the structure of the decision shows that they did. They were not obliged to follow the guidance, the guidance itself states that that is the position.[56]As to the references, the Committee clearly took those into account and in the light of the purpose of the regulatory screen to maintain and improve standards of professional conduct among teachers in the interest of the public and the approach taken in Bolton v Law Society [1993] EWCA Civ 32 at 16 and Gupta v General Medical Council [2001] UKPC 61 at 21, which applied the Bolton approach to other regulatory contexts, I do not consider that it can be said that insufficient weight was given to what is it accepted was a glowing record. If this court is asked to remake the decision de novo, I observe that it is a personal tragedy that somebody with such a strong record should have come to this end. But that the concatenation of circumstances in the month of September 2008 and the way the appellant handled the the accusations about masturbation do suggest that the criteria for a prohibition order were met.[57]As to the remaining grounds, the summaries posted on the General Council's website do show that the mere involvement in sexual activity or downloading pornography is not a ground for prohibition. Mr Faux pointed me in particular to the PCC's decision dated 3 December 2007. I do not identify either the teacher or the school involved. But the fact is that these summaries of these cases which are even by headnote standards very inadequate are of little use to a court trying to evaluate what must ultimately be a highly fact specific exercise. Miss Knight was able to point me to numbers of cases in which there were periods of prohibition, some for periods of 5 years, but I do not consider it necessary to say more about these. In my judgment the matter was put extremely clearly by McCombe J in R (Smith) v General Teaching Council [2007] EWCA 1675 (Admin). At 19 he stated:
"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 paragraph 20 he stated as to sanctions:
"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."
I respectfully agree.[58]In conclusion, although each of these counts of misconduct was undoubtedly serious, it is conceivable that had the appellant only been charged with one of them, the Committee might not have made a prohibition order. It is also conceivable that had he give evidence or there been some other material before the Committee from which it could find that he had "taken steps to address the underlying factors", which in the Committee's words gave arise to the unfortunate course of events, it might have been possible not to make a prohibition order. But having regard to the indicative guidelines the Committee was entitled to take account of the fact that these matters were not isolated and to look at the totality of the conduct.[59]Notwithstanding the attractive way Mr Faux has put the appellant's case, I have concluded that this appeal must be dismissed.

MR JUSTICE BEATSON: Are there any other applications?

[61]MISS KNIGHT: My Lord, I would like to make an application for costs. Our schedule was submitted to court yesterday and served and we have agreed those subject of course to you considering them today and by way of summary assessment.

MR JUSTICE BEATSON: Yes? You cannot resist a costs order.

[63]MR FAUX: No. I do not take issue with the charging rates and the times which are both very modest, if I can comment in that way. But I do ask you to consider carefully where the overall justice is in this appeal because it has been conducted carefully on behalf or Mr Henderson. A decision following the GTC's approach in response to the Kaur judgment.[64]MR JUSTICE BEATSON: It did not go flat out on compliance, you did not make this the next Pinochet case.[65]MR FAUX: Exactly. We could have pushed it and pushed it and created a lot of noise and ended up with a remitted case costing both parties more money. We chose not to do that. We asked you to make a pragmatic decision which I think overall has saved everybody a lot of time and effort.[66]MR JUSTICE BEATSON: I have your point. Before I say anything I better hear Miss Knight.[67]MISS KNIGHT: My Lord, the fact of the matter is that there was quite a lot of consideration about the Kaur issue, if I can call it and that has been costly to the GTCE but in fact has not formed part of the submissions that have been made to you today. As my friend has already said, I am uncomfortable with having to argue my own costs here but they are modest --[68]MR JUSTICE BEATSON: You know it is the whole consequence of this way of doing costs. They are modest in total. There is no objection to the amount. That is not what Mr Faux is saying. He knows that this is a bottom dollar production. All he is saying is that he wants me to take a little bit off because he could have made your life more difficult.[69]MISS KNIGHT: My Lord I would object to that on the basis that I have made his life a lot more easy by preparing all the bundles which is the appellant's role. Sorry my Lord.[70]MR JUSTICE BEATSON: Summary assessment of costs is a very rough exercise. I am going to summarily -- I have some sympathy for Mr Faux and had I been a jury I think he might have had me, but it is slightly illogical to give him a discount for not being difficult. I am going to summarily assess the costs at £10,000 round.[71]MISS KNIGHT: I am grateful.[72]MR JUSTICE BEATSON: Could I leave it to the two of you to draw up the order in the usual way? I will send my clerk in so he can give you his email address.

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