Austin, R (on the application of) v The Teaching Agency [2012] EWHC 254 (Admin)

Case No CO/6728/2011[2012] EWHC 254 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT SITTING AT BIRMINGHAM
Priory Courts
33 Bull Street
Venue Birmingham West MidlandsDate Friday, 26th October 2012
England
B4 6DS
B e f o r e:
MR JUSTICE SILBER
Between
THE QUEEN ON THE APPLICATION OF AUSTINClaimantv
Between
THE TEACHING AGENCYDefendant
Tape Transcript 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)
The Claimant appeared in Person for in personMr R Dunlop (instructed by The Teaching Agency) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE SILBER: Mr David William Austin appeals against the decision of the General Teaching Council for England Professional Conduct Committee, dated 27th May 2011, by which it decided that the appellant had been guilty of unacceptable professional conduct. It imposed a 2-year suspension order. The General Teaching Council for England has now been abolished, and its relevant functions have been taken over by the Teaching Agency which is the respondent in this appeal.[2]The background to this case is that the appellant had been a teacher for a number of years and at the time with which the complaint is concerned, he was registered with an agency called The Faith Education Ltd of Birmingham. He worked as a supply teacher for that agency in Witton Middle School in Droitwich and Ridgewood High School in Stourbridge. Both those schools asked the agency not to send him again.[3]On 1st March 2010 the appellant went to both of those schools to complain about this fact. It is the allegations relating to the appellant's behaviour at each of these schools on that occasion which gave rise to the proceedings at the Professional Conduct Committee (“PCC”). The allegations that were made against him were that whilst registered with the agency, the appellant on 1st March 2010 went to Witton Middle School in Droitwich, a school where he had previously worked as an agency supply teacher between the 27th and 29th January 2010, without an appointment and acted:(a) in a threatening manner towards Mrs Louise Thompson on the school premises by being confrontational, angry and persisting and seeking an explanation for feedback to Faith Education;(b) in an inappropriate manner by remaining outside the school during the school hours and approaching two members of staff to tell them about his situation and his thoughts about the school; and that he acted(c) in a threatening manner towards Mrs Louise Thompson, outside the school by calling out to her in an abusive and menacing manner.[4]The second series of allegations relate to the fact that on the same day, 1st March 2010, the appellant went to Ridgewood High School in Stourbridge, a school where he had previously worked as an agency supply worker on 22nd February 2010 and 24th February 2010, without an appointment and that he then:(a) acted in an inappropriate manner by arguing with and demanding an explanation from Glen Pickan, for the school's cancellation of his services;(b) acted in an inappropriate manner by referring to the teachers at the school as "stupid" and generally making derogatory remarks about the maths department.(c) acted in an inappropriate manner by demanding the school pay him a sum of £100 for cancelling his service; and that he(d) acted in an inappropriate manner towards Mrs Major, by shouting and calling her a liar in the presence of students.[5]The allegations were disputed. A hearing took place and at the outset of it, the appellant made an application to present his case by way of projector without having to speak because he believed that the PCC would be biased against him if they heard his accent. The application was refused but he duly presented his case orally. He was not represented and he has in fact not been represented today. I think it is fair to say, he is, as one might expect from an experienced teacher, a coherent speaker who can present arguments clearly and in a comprehensible manner.[6]Evidence at the hearing was given in a number of forms. Firstly, there had been a bundle of documents presented to the PCC, including those produced by the appellant, which were handed at the start of the hearing. The Committee members confirmed they had read the documents in advance. The presenting officer explained some of the facts. Witnesses were called and evidence was given first by Mr David McColl, who is the headteacher of the Witton Midland School, and by Miss Louise Major, who had been the deputy head, both of those witnesses were cross-examined by the appellant and questioned by the Committee.[7]The appellant then gave his evidence drawing his attention to documents in his possession and making his contentions. He was cross-examined by the presenting officer and questioned by the Committee. Both parties then summed-up their cases. The Committee then announced its decision and they found all the allegations proven. They noted the claimant’s behaviour was threatening to Mrs Thomas and that it was inappropriate for the appellant to speak to people in the way that he did at Witton Middle School. They accepted Mrs Thompson' account that that the appellant was still abusive and menacing when she went outside.[8]As to the events at Ringwood High School, they accepted the evidence that was given by the representatives of the school and they noted that the claimant accepted that he may have used the word "liar" and it is possible that students were present when a conversation was taking place. The PCC then concluded:
"We are satisfied in acting as he did Mr Austin's conduct fell short of the standard expected of a registered teacher and was behaviour which involved a breach of standards, a propriety expected of a profession. The public and the pupils are entitled to expect teachers to act in a way that does not bring the profession into disrepute. His behaviour to colleges was totally unacceptable for anybody let alone a professional teacher. Accordingly his conduct amounted to unacceptable professional conduct."
The Committee then gave its determination of the sanction. They explained they first considered whether they could close the case without making a disciplinary order but decided that would not be appropriate in view of the seriousness of the conduct in question. They then moved on to considering whether to impose a reprimand, but decided this would not have been appropriate. They noted that the appellant:
"... has not provided any evidence of insight into his behaviour or what we consider genuine expressions of regret. We have considered whether to impose a conditional registration order but have decided that the conduct in question was too serious for this outcome. In addition, we are not satisfied that it would be possible to formulate appropriate and practical considerations."
They then stated that:
"We accept that these events occurred on one day albeit in two different schools. However the behaviour was serious in nature, so serious that one school thought it necessary to call the police. The Committee is of the view the suspension of Mr Austin's registration for the period of 2 years is appropriate to declare and uphold proper standards of conduct behaviour and to maintain public confidence in the profession."
[9]Notice of the decision was served on the appellant in a letter dated 3rd June and he filed his appeal on 14th July 2011. It is appropriate to bear in mind that the role of this court is as set out in CPR 52.11(3) which states that. "The appeal court will allow an appeal where the decision of the lower court was (a) wrong or unjust because of a serious professional procedural or other irregularity in the proceedings in the lower court."[10]The provisions relating to the disciplinary hearing are set out in Schedule 2 Paragraph 2 of the Teaching and Higher Education Act 1998. They state that that there can be an appeal and, in paragraph 6 Schedule 22(2):
"On such an appeal a court may make any order which appears appropriate. No appeal shall allow for any decision of the court on such an appeal."
[11]The regulation at the date of the decision, the General Teaching Council or England Disciplinary Function Regulations 2001, were still in force. Regulation 5(2) (b) of the 2001 Regulations imposed a duty on the PCC to make a disciplinary order when they found a teacher guilty of unacceptable professional conduct and they considered that a disciplinary order should be made. Regulation 18 made further provision for the kinds of disciplinary orders that could be made and included the orders that were made in this case.[12]As I explained earlier, the General Teaching Council was abolished by section 7 of the Education Act 2011 but section 10(4) of that Act provided that suspension orders still in force on 1st April 2012 should continue to the end of the suspension order specified in the order. It was also provided that the regulations to which I have referred in paragraph 6 of Schedule 2 would continue to apply.[13]The appellant has formulated clear grounds of appeal in which he makes five points. But before dealing with those I ought to explain that he repeatedly stated that he considered the approach and conclusions of the Committee to be absurd and he totally disagrees with them. I will bear that submission in mind.[14]His first submission is that due to the delicate nature of some documentary material in his original defence, a request was made for the case to be heard by heterosexual males and the Committee has constantly failed to ignore his request with at least the majority of the Committee that made the decision under review being female. Indeed there were two members of the three member Panel were females. He then contends this introduces the possibility of bias and sexual discrimination. It is said by Mr Rory Dunlop, counsel for the respondent, that there is no record of the appellant having applied to the Committee to recuse itself because it was not made up of heterosexual males but even if such an application was made and refused, in my view, it does not constitute an error of law.[15]The test that has to be applied in a case of this sort was set out by the House of Lords in Magill v Porter [2000] 2 AC 357, at paragraph 103, which states that the issue is whether a fair minded and informed observer, having considered the facts, would have considered that there was a real possibility that the Committee was biased against the appellant just because it was not made exclusively of heterosexual males.[16]Having read the evidence and the allegations, I have come to the clear conclusion that this case falls a long way short of constituting a case of apparent bias. There is no evidence at all of actual bias and therefore I am unable to accept this ground of complaint.[17]The second ground of appeal is the Committee has not taken into account the level of provocation incurred as a consequence of the appellant's placements at the two schools because he remained at least dismayed his first-class performance, during which pupils were taught rather than entertained, was recognised by an effective dismissal.[18]The Committee could only make its decisions on the evidence before it. It is noteworthy that they did not in their decision regard anything that had happened adverse to the appellant in the past as being relevant. Their task was to look at the actual facts alleged and to reach conclusions. It is noteworthy that in reaching their decision, they focussed entirely on the facts concerned and were, as I have explained, concerned about whether the fact that the appellant had not provided any evidence of insight or what they considered genuine expressions of regret.[19]Again, I do not think that there is anything in this point which shows that the Committee was wrong. I will of course return at the end to look at not having looked at the individual complaints, to look at the cumulative effect of all the points that are made. I also bear in mind that the Committee noted in its findings that no reference or testimonials had been provided. The appellant complained that this confirms that no allowance was made for lack of representation because no request for references were made. He says that there is an abundance of positive remarks concerning his passionate and professional approach to teaching over a quarter of a century and that references could have been readily available.[20]To my mind, the absence of a request for references does not show that the decision was wrong because this was a case where the Committee was absolutely focussing on one day and drawing conclusions in relation not only to the appellant's behaviour on that occasion, but also to the way he dealt with it at the hearing and his general approach to what had happened. Thus I do not think that this point shows that the decision wrong. The fourth point that is made by the claimant is that the Committee regretted the role of the agency which was the reporting body in this affair and was in effect the appellant's employer. He says that an agency such as the Faith Agency would be keen to remind a client that any number of potentially superior casual staff can be provided rather than lose the contract to another agency. He explained in his experience schools readily and perhaps with complicity fall for the sales technician as he has often taught classes, experience of a dozen supply teachers within a term which has drastic consequences for the children's education.[21]It must not be forgotten that this Committee reached its conclusion not on the basis of what the agency said but on the basis of the evidence given at the hearing and how those witnesses emerged not only after giving evidence in-chief but also after they had been cross-examined by the appellant and questioned by the Panel. So with reasons I do not think there is any valid point that can be made on this. At the end of the day I have to look back when deciding whether the appellant could successfully appeal against the finding that his conduct amounted to unacceptable professional conduct to look at all the issues.[22]I have considered all these matters with care, both before and during the hearing, but I have come to the conclusion that there is nothing in the way the Committee dealt with it to show that it was wrong or unjust in the way that that would have to be established before the appeal could be allowed. Thus, I reject the claimant’s appeal against the finding that his conduct amounted to unacceptable professional conduct.[23]This therefore means that I have to go on to consider whether his appeal against the sanction should be allowed. The appellant has sought to challenge that and the way he put it was that he relied on the fact that the school tried to involve the police, who did not consider the matter of sufficient gravity to attend and he says that the findings that were made do not merit the imposed sanction. He says that the way in which he dealt with two schools was "assertive" in precisely the way an experienced and traditional and conscientious teacher would act in the circumstances. He added that the findings of fact that the appellant was "abusive" when he was worst accused one adult of lying and another of spite, do not justify the imposed sanction which must represent a defamation of character as well as being ridiculously disproportionate. He says that he regards the sentence that was imposed as being absurd.[24]It is necessary to bear in mind the purpose of the disciplinary proceedings. These were considered by Hickinbottom J in the case of Patricia Davies v General Teaching Council for England [2010] EWCA 2075 (Admin), where he stated at paragraph 48 and 49:
"The primary objective of imposing a sanction on a professional is to maintain the standing of the profession to which he or she belongs and the confidence of the public in that profession, although the need to protect individual pupils in terms of ensuring no repetition is also a purpose (Bolton v The Law Society [1994] 1 WLR 512 especially at pages 518 to 519, Raschid & Fatnani cited above at [18], and Cheatle v The General Medical Council [2009] EWHC 645 (Admin) at [33]). The impact of a sanction on the teacher is also relevant, because the PCC can only impose a sanction that is proportionate. But, as the primary objectives concern the wider public interest, the impact of a sanction on a teacher has been said not to be 'a primary consideration'(Cheatle at [38] and [40]). Those principles are broadly reflected in the respondent 'Indicative Sanctions Guidance (especially at paragraph 1.3), which were expressly referred to in the PCC' decision (legal advice section, paragraph 8)."
Hickinbottom J proceeded to say in paragraph 49:
"...the PCC is a professional disciplinary tribunal whose professional judgment (especially with regard to sanctions) is worthy of considerable respect. This court is, therefore, slow to interfere with a sanction imposed by the PCC, and will do so only where the panel's decision is clearly inappropriate."
[25]The allegations which were made against the appellant were serious. He entered school premises without permission and threatened and abused other teachers in a public place. It is noteworthy, and a matter of substantial importance, that they found that he had not provided any evidence of insight into his behaviour or what they considered to be general expressions of regret. This indicated a matter of some gravity because the purpose of the sanction was to maintain the standing of the profession to which the appellant belonged.[26]A further aggravating feature was that there were two schools involved and I come to the conclusion that it cannot be said that decision of the sanction that was imposed was wrong. In reaching that conclusion I have taken account of all the points that have been put forward with admirable skill by the appellant but, at the end of the day, I have come to the clear conclusion that this appeal must be dismissed.[27]Thank you very much.[28]MR DUNLOP: I am very grateful my Lord. I have just one minor correction and an application. The minor correction was that I think you said the notice of appeal was filed on 14th July. As you may be aware, that was the basis on which His Honour Judge McKenna found it was outside jurisdiction and then subsequently that was retracted.

MR JUSTICE SILBER: I did not deal --

[30]MR DUNLOP: All I was going to say was that the suggested direction at some point on or before 14th July. I think the reason that order was revoked was there was some doubt --[31]MR JUSTICE SILBER: I notice that you had made a point that this appeal was made too late. I did not think it appropriate to rely or consider that point. This was far too important a case for it to be decided whether a notice was on time. It makes no difference.