Wallace v Secretary of State for Education [2017] EWHC 109 (Admin)

Case No CO/2970/2016

[2017] EWHC 109 (Admin)

Venue IN THE BIRMINGHAM CIVIL JUSTICE CENTRE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Birmingham Civil Justice Centre, Bull St, Birmingham, B4 6DS

Date 27/01/2017

Before

THE HON. MR. JUSTICE HOLGATE

Between

GREG WALLACEAppellant

SECRETARY OF STATE FOR EDUCATIONRespondent

Andrew Faux (instructed by The Reflective Practice) for Appellant

Rory Dunlop (instructed by the Government Legal Department) for Respondent

Hearing Hearing date: 13 December 2016

Judgment

Mr Justice Holgate :

Factual background

[1]The Appellant, Mr Greg Wallace, appeals under Regulation 17 of the Teachers’ Disciplinary (England) Regulations 2012 (SI 2012 No. 560 – “the 2012 Regulations”) against a decision of the Respondent, the Secretary of State for Education, dated 25 May 2016 that a prohibition order be made under section 141B of the Education Act 2002 (“the 2002 Act”). The order imposes an indefinite prohibition on the Appellant from teaching in any school, sixth form college, relevant youth accommodation or children’s home in England. The Respondent also decided to allow the Appellant to make a subsequent application under Regulation 16 for the order to be reviewed, rather than to deny any such opportunity altogether. However, the prohibition order must last for a minimum period of 2 years before any review may be sought. Regulation 8(3) of the 2012 Regulations provides that a prohibition order may not allow for any application for a review to be made earlier than two years from the date on which the order takes effect.

[2]Between July 1999 and March 2004 the Appellant had been the company secretary of a specialist ICT company, C2 Technology Limited (“C2”). The Appellant was in a sexual relationship with TZ, the director of that company, prior to 2008, thereafter they remained friends until 2012 going on holidays together, and from 2012 onwards they were in a sexual relationship again. The Appellant was also involved with TZ through a business called Effective Marketing, an internet service to which teachers and schools could subscribe for a fee.

[3]In 2007 the London Fields Primary School was placed in special measures because of poor performance and the Governing Body was removed. In 2008 the Appellant was the head teacher of Woodberry Down Primary School. On 25 July 2008 the two schools formed a “Federation” known as the Best Start Federation (“BSF”). The Appellant became the Executive Principal of the BSF. The relationships referred to in paragraph 2 above were not disclosed by the Appellant to the BSF during the material period.

[4]In June 2009 the Appellant became the Executive Principal of another underperforming school, Mandeville Primary School. That school joined the BSF. In February 2011 the Appellant became the Executive Headteacher of Whitmore Primary School. That school joined the BSF in September 2011. A fifth underperforming school, Burbage Primary School, joined the BSF on 1 September 2011.

[5]By this stage the Appellant had become a “Super head” with a considerable reputation for successfully raising standards in failing schools. He was seen as an inspirational educator, both for his pupils and his colleagues. Plainly, he was in a very influential position.

[6]The five schools in the BSF paid to C2 between them sums totalling £1.073m over the period 2008 to 2013. In 2013 one particular invoice was picked up in an internal audit by the London Borough of Hackney (“LBH”), the local education authority. On 16 April 2013 the Council’s Audit and Anti-Fraud Division (“AAFD”) visited the five schools and removed documents relating to their finances. C2 controlled access to the email accounts of the schools’ staff and Governors. The company denied AAFD access to those emails. On 17 April 2013 the Appellant contacted TZ who helped him to “clear down” email accounts in order to avoid emails being seen at that stage by the AAFD.

[7]On 14 June 2013 the Appellant was interviewed by the AAFD. On 23 July 2013 he was suspended and told not to access his email account. He did, however, access that account and delete emails.

[8]On 16 August 2013 the AAFD completed their report in which they concluded that there had been “major mistakes in the management and governance arrangements” at the BSF in contravention of Hackney’s Financial Procedure Manual for Schools. On 15 October 2013 AAFD issued an addendum report dealing with the outcome of its further investigation as a result of obtaining from the BSF’s IT supplier emails to which C2 had refused access. These emails gave an insight into the relationship between the Appellant and TZ and the way in which the Appellant had assisted TZ and C2 to win service level agreements from the BSF schools in preference to a former contractor.

[9]On 18 December 2013 the Hackney Learning Trust held a disciplinary hearing in respect of the Appellant. He did not attend. By a letter dated 20 December 2013 the Trust informed the Appellant of its decision to dismiss him summarily for serious professional misconduct. They said (inter alia) that there had been little or no reasonable explanation as to why the Appellant had not included governors of schools in the process of awarding valuable contracts to one contractor, the Appellant had misused his official position to enable C2 to compete unfairly, and he had pursued malicious and vexatious grievances against certain individuals in order to delay and frustrate the disciplinary investigation. The disciplinary panel concluded that at that stage the Appellant had demonstrated a failure to understand the seriousness of his misconduct or to show insight. But it is significant that by the time of her decision letter nearly 18 months later, the Respondent found that the Appellant had fully acknowledged his errors and had “shown great insight into his actions.”

[10]In a letter to the Trust dated 8 February 2014 the Appellant announced that he would not appeal against the decision to dismiss him. Subsequently he continued to work in the teaching profession. The Respondent’s decision letter of 25 May 2016 stated that the Appellant had taken on a valuable role in the Harris Federation and played a significant part in turning around failing schools so that there had been a substantial improvement both in pupils’ attainments and the schools’ OFSTED ratings.

[11]The matter was reported to the National College for Teaching and Leadership (“NCTL”). The NCTL is an Executive Agency of the Respondent. It exercises a number of functions on behalf of the Secretary of State, including her responsibilities in Part 8 of the Education Act 2002 for dealing with misconduct by teachers. Mr. Rory Dunlop, who appeared on behalf of the Respondent, submitted that Parliament’s intention in 2011 when enacting the present statutory scheme, was to replace the former General Teaching Council for England with a regime which would be democratically accountable through ministerial responsibility to Parliament (see paragraph 47 of the Respondent’s skeleton). Mr. Andrew Faux, who appeared on behalf of the Appellant, agreed with that submission.

[12]Following an investigation, it was found that the Appellant had a case to answer in respect of eight allegations which were referred by the relevant department within the NCTL to a professional conduct panel (“PCP”) to consider the case and to make a report to the Respondent under the 2012 Regulations. The PCP dealt with the matter at a hearing which began on 16 May 2016. On 18 May 2016 the PCP announced which of the allegations it found to be proven and proceeded to hear evidence and submissions on sanction. The panel recommended to the Respondent that no prohibition order be imposed. However, in her decision letter dated 25 May 2016 the official acting on behalf of the Respondent disagreed with that recommendation and decided that a prohibition order should be imposed allowing for a review after a minimum period of 2 years. The order was subsequently served on the Appellant and it appears that it came in to effect on 2 June 2016. Since that date the Appellant has been unable to carry out any “teaching work” in England. He may not apply for the order to be reviewed until June 2018.

Legal framework

[13]Section 7 of the Education Act 2011 (“the 2011 Act”) provided for the abolition of the General Teaching Council for England. Section 8 enacted a new statutory code for dealing with misconduct by teachers in England, by inserting sections 141A to 141E and schedule 11A into the 2002 Act. The new scheme came into force on 1 April 2012.

[14]Section 141B provides (in so far as material): “141B Investigation of disciplinary cases by Secretary of State(1) The Secretary of State may investigate a case where an allegation is referred to the Secretary of State that a person to whom this section applies— (a) may be guilty of unacceptable professional conduct or conduct that may bring the teaching profession into disrepute, or (b) has been convicted (at any time) of a relevant offence.

(2) Where the Secretary of State finds on an investigation of a case under subsection (1) that there is a case to answer, the Secretary of State must decide whether to make a prohibition order in respect of the person.

(3) Schedule 11A (regulations about decisions under subsection (2)) has effect.

(4) In this section— A “prohibition order” means an order prohibiting the person to whom it relates from carrying out teaching work ……” “Teaching work” is defined in section 141A(2) and in regulations made thereunder. A “prohibition order” means an order prohibiting the person to whom it relates from carrying out teaching work

[15]Paragraph 1 of schedule 11A requires the Respondent to make regulations in accordance with the provisions of the schedule. The relevant regulations are the 2012 Regulations.

[16]Paragraph 2 of schedule 11A requires the regulations to make provision about the procedure to be followed by the Respondent in reaching a decision under section 141B(2). Under paragraph 4(2) the regulations may deal with the time at which a prohibition order is to take effect, allowing a person to apply to the Respondent to set aside a prohibition order made against him, the minimum period for which an order must be in effect before any such application may be made, and the procedure for making that application.

[17]Paragraph 5(1) requires the regulations to confer a right of appeal to the High Court against the making of a prohibition order. However, by paragraph 5(3) no further appeal may lie from any such decision by the High Court. The effect of paragraph 5(4) is that no appeal lies from the making of an interim prohibition order (an order made pending the Respondent’s final decision under section 141B(2)). Where a prohibition order contains a provision allowing an application to be made to set the order aside, it does not appear that there is a right of appeal against a decision refusing any such application. Thus, regulation 17 of the 2012 Regulations confers a right of appeal only in respect of the making of a prohibition order under section 141B(2). The regulation provides:

“A person in relation to whom a prohibition order is made may appeal to the High Court within 28 days of the date on which notice of the order is served on that person.”

[18]Regulation 3 of the 2012 regulations defines what is, and what is not, to be treated as “teaching work.”

[19]Regulation 4 provides that in making any decision under the 2012 Regulations regard may be had to any failure by a teacher to comply with the personal and professional conduct standards set out in Part Two of “Teachers’ Standards” published by the Respondent in July 2011. Part Two states that “a teacher is expected to demonstrate consistently high standards of personal and professional conduct.” A number of principles are set out as defining “the behaviour and attitudes which set the required standard for conduct throughout a teacher’s career.” The first principle states that “teachers uphold public trust in the profession and maintain high standards of ethics and behaviour, within and outside school by .… at all times observing proper boundaries appropriate to a teacher’s professional position …”. The second principle states that “Teachers must have proper and professional regard for the ethos, policies and practices of the school in which they teach …”. The third principle states that “Teachers must have an understanding of, and always act within, the statutory frameworks which set out their professional duties and responsibilities.” I accept Mr Dunlop’s submission that adherence to these principles is even more important in the case of a teacher undertaking a leadership role, especially a head teacher.

[20]Regulation 5 requires the Respondent to take specific actions when she considers that a teacher either(a) may be guilty of “unacceptable professional conduct” or “conduct that may bring the teaching profession into disrepute”; or

(b) has been convicted of a relevant offence (the same misconduct as is referred to in section 141B(1) of the 2002 Act). In summary, she must inform the teacher of the allegation and give the teacher the opportunity to submit evidence, make representations and to comment on other relevant evidence. The Respondent must then consider the relevant materials and decide whether the case should be discontinued or considered by a PCP.

[21]Under regulation 6, where the Respondent considers that a case should be considered by a PCP, she must appoint a panel comprising at least three persons and including at least one or more teachers (or persons who have been teachers in the previous 5 years) and one or more other persons.

[22]Regulation 7 provides for the role of a PCP:

“7. Proceedings of a professional conduct panel (1) A professional conduct panel must consider cases referred to it by the Secretary of State in accordance with paragraphs (2) to (5) and regulations 9 to 11. ... (4) Where the professional conduct panel does not find the case proved, the Secretary of State must at the request of the teacher publish a statement to that effect. (5) Where a professional conduct panel finds the teacher — (a) to have been guilty of unacceptable professional conduct or conduct that may bring the teaching profession into disrepute; or (b) to have been convicted (at any time) of a relevant offence, the panel must make a recommendation to the Secretary of State as to whether a prohibition order should be made.”

A PCP may not determine a case without a hearing, unless the teacher concerned makes a written request that no hearing be held (regulation 7(2) and (3)). Regulation 9 entitles a teacher to appear at a hearing, to make oral representations and to be represented by any person. The general principle is that hearings must be held in public, save in the circumstances provided for in regulation 11.

[23]Regulation 8 sets out the decision-making functions of the Respondent:

“8. Decision of the Secretary of State (1) The Secretary of State must consider any recommendation made by a professional conduct panel before deciding whether to make a prohibition order. (2) Where the Secretary of State decides to make a prohibition order, the Secretary of State must decide— (a) whether an application may be made for a review of the order under regulation 16; and (b) if the Secretary of State decides such an application may be made, the minimum period before the end of which no such application may be made. (3) The minimum period under paragraph (2) must not be less than two years from the date on which the prohibition order takes effect. (4) … (5) The decision of the Secretary of State following the determination of a professional conduct panel must be published.”

[24]Regulation 16 lays down the procedure to be followed where a teacher makes an application to set aside a prohibition order in accordance with its terms. Under Regulation 16(4) the Respondent must decide whether the application should be allowed, or instead referred to a PCP to consider whether to recommend that the application be allowed. In the latter case the Respondent must consider any recommendation made by the panel before deciding whether to set aside the prohibition order (regulation 16(7)). Where the Respondent refuses an application to set aside, she must specify the period (being not less than a year) which must elapse before any further regulation 16 application may be made (regulation 16(5) and (6)).

[25]The NCTL has published guidance on behalf of the Respondent entitled “Teacher misconduct: the prohibition of teachers – Advice on factors relating to decisions leading to the prohibition of teachers from the teaching profession” (“the Advice”).

[26]The Advice provides as follows:

“8. Decisions on prohibition Once a senior official from the NCTL has received a recommendation on prohibition from a panel they will, within two working days wherever possible, make a decision on whether to impose a prohibition order. The decision will take account of the panel’s recommendations and will be notified to the teacher concerned in writing before it is made public.”

Mr. Dunlop told the Court that the normal practice followed by the NCTL is that the senior official will be supplied solely with the report of the PCP. That official is not supplied with the written evidence, documents, or submissions before the PCP or with a transcript of the hearing conducted by the PCP. Once a senior official from the NCTL has received a recommendation on prohibition from a panel they will, within two working days wherever possible, make a decision on whether to impose a prohibition order. The decision will take account of the panel’s recommendations and will be notified to the teacher concerned in writing before it is made public.”

[27]Neither the 2002 Act nor the 2012 Regulations make provision as to the grounds of appeal or the powers of the High Court on an appeal. However, it is common ground that the relevant parts of the Civil Procedure Rules which are applicable to such appeals provide as follows:

“52.10 Appeal court’s powers (1) In relation to an appeal the appeal court has all the powers of the lower court. (2) The appeal court has power to – (a) affirm, set aside or vary any order or judgment made or given by the lower court; (b) refer any claim or issue for determination by the lower court; (c) order a new trial or hearing; (d) make orders for the payment of interest; (e) make a costs order. (3) …. (4) The appeal court may exercise its powers in relation to the whole or part of an order of the lower court... 52.11 Hearing of appeals (3) The appeal court will allow an appeal where the decision of the lower court was – (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court...”

[28]Thus, the question on an appeal is whether the Respondent’s decision was ‘wrong’ or ‘unjust because of a serious procedural or other irregularity in the proceedings below’. The appeal is by way of re-hearing (see O v Secretary of State for Education

[2014] EWHC 22 (Admin)

at paragraphs 54-58 and R (Lonnie) v National College for Teaching and Leadership

[2014] EWHC 4351 (Admin)

at paragraphs 17-22). I gratefully adopt the analysis in those two cases as to the approach to be taken by the Court in an appeal under Regulation 17. But I note that the appeal in the present case, like that in Lonnie and unlike that in O, does not involve any challenge by the Appellant to the findings of fact made by the PCP.

Proceedings Before the Professional Conduct Panel

[29]The matter was reported to the NCTL who gave the Appellant notice of a hearing before a PCP, to consider eight allegations. The first four allegations related to allegations of unacceptable professional conduct or conduct that may bring the teaching profession into disrepute:- “1. Breached financial governance standards in place to ensure the appropriate use and best value of public money regarding the procurement and contracting with a firm, C2 Technology Ltd, in respect to ICT arrangements within the schools in the BSF, to which a sum in excess of £1.073 million was paid over a 5 year period between 2008 and 2013 without written quotations or governors’ approval. 2. Did not declare in writing to the Best Start Federation before 2012 the conflict of interest he had in respect of C2 Technology Ltd, the principal director and shareholder of which, Individual TZ, was known to him by means of a close personal relationship, such conflict of interest being established by the fact that:a. He was appointed as the registered Company Secretary of C2 Technology Ltd over a 5 year period between 27 July 1999 and 25 March 2004; and/or

b. His relationship with Individual TZ was at times of a sexual nature including during a period before 2008 and from Summer 2012 onwards; and/or

c. He invited Individual TZ to submit invoices for work done at BSF, including by e-mailing in January 2009 stating “I am going to fwd newsletters. Obviously you don’t really have to do it now. And you shd charge for last week and this because some of it is research time. I have got loads of things for you to look into and you can list them all on the invoice”; and/or

d. He recommended to the Governing Body in April 2011 that C2 Technology Ltd be used to fit out a new ICT suite at Whitmore School and did not specifically make a declaration of interest when doing so on that occasion; and/or

e. He received the sum of £4,000.00 in June 2011 from Individual TZ in respect of the Effective Marking joint venture he operated with them, the arrangements for which required Individual TZ invoicing for services rendered by him. 3. Disclosed confidential information to Individual TZ in respect to the tendering bids offered to BSF by competitors of C2 Technology Ltd in April 2009 in that he: a. Blind copied TZ into an e-mail he sent to a competitor firm regarding the tender; b. Forwarded the SLA proposal of a competitor firm to TZ before he was required to submit his own proposal on behalf of C2 Technology Ltd; c. Advised TZ in respect of amendments to be made to the C2 Technology Ltd proposal before it was submitted; d. Blind copied TZ into e-mails between him and colleagues in respect to the choice between C2 Technology Ltd and the competitor firm; e. Blind copied TZ into an e-mail he sent to the competitor firm informing them they had lost the ICT contract;

f. Forwarded the response of the competitor firm to TZ after they had lost the ICT contract. 4. Received assistance from Individual TZ as to the creation of “new cleared down accounts” in respect of e-mails for himself, and the heads of schools within BSF at Whitmore, London Fields, Burbage and Mandeville, at around 08:00 hours on 17 April 2013, the day immediately following the visits made to those schools by the Audit and Anti-Fraud Division of the London Borough of Hackney on 16 April 2013 and subsequently deleted a significant number of e-mails.”

[30]The second set of allegations, 5 to 7, alleged that the matters falling within allegations 2 to 4 amounted in each instance to dishonesty on the Appellant’s part. Page 9 of the Advice indicates that where “dishonesty” is established, especially where there have been serious consequences and/or it has been repeated and/or covered up, such misconduct is sufficient to justify a prohibition order, depending on the circumstances of the case, and any mitigating or other factors pointing against that conclusion.

[31]It is common ground that the two stage test for dishonesty set out in R v Ghosh

[1981] 1 QB 1053

, 1064 D-E was applicable. Thus, an allegation of dishonesty would not be made out unless both of two tests were met to the PCP’s satisfaction:(1) whether according to the ordinary standards of reasonable and honest people what was done by the Appellant was dishonest, and if so,

(2) whether the Appellant must himself have realised that what he was doing was dishonest by those standards. Consequently, if in relation to a particular allegation the first test was not made out, that allegation would have to be rejected and the PCP would not need to move on to consider the second test. Even if the PCP found the first test (“the objective test”) to be satisfied, the allegation would still have to be rejected if the PCP decided that the second test (“the subjective test”) was not satisfied.

[32]Allegations 5 to 7 were as follows:

“5. His conduct in regard to the circumstances set out in allegation 2 was dishonest in that he authorised/permitted/encouraged and/or allowed significant public money to be spent for the personal gain of Individual TZ with whom he had a close personal relationship. 6. His conduct in regard to the circumstances set out in allegation 3 was dishonest in that he disclosed/conspired and/or assisted Individual TZ, with whom he had a close personal relationship both prior to 2008 and during the period Summer 2012 onward, to obtain a competitive advantage by means of information to which he should not have had access for his own personal gain. 7. His conduct in regard to the circumstances set out in allegation 4 was dishonest in that he sought to frustrate/conceal and/or dispose of information contained in school e-mail accounts which might have assisted and/or revealed to authorities his conduct as alleged at allegations 1 to 3.”

[33]By an agreed statement of facts, the Appellant admitted allegations 1 to 4. He denied allegations 5-7 but admitted that the conduct dealt with in allegation 6 would be regarded as objectively dishonest, that is dishonest by the standards of reasonable and honest people.

[34]The hearing before the PCP began on 16 May 2016. The lead investigator of AAF gave evidence and so did the Appellant and Mr Britt, the Executive principal for the Harris Primary Academies, for whom the Appellant had been working.

[35]On 18 May 2014 the panel announced its decision on the facts. They found allegations 1 to 4 proven, but allegations 5 to 7 not proven. In summary, the PCP concluded that:(i) In the context of the “frantic pace” at which the BSF had been developing, “the pressurised environment and workload placed on [the Appellant] at the time” and his “one-dimensional focus on education”, the Appellant’s conduct in allegation 2 (i.e. not making declarations of interest) was careless, but should not be regarded as dishonest under the first test in Ghosh;

(ii) The conduct in allegation 3 (i.e. disclosing confidential information to TZ when he was a bidder) was dishonest by the standards of ordinary and reasonable people and teachers but the Appellant did not appreciate that at the time. Thus, the panel found that only the first test and not the second test in Ghosh was satisfied. The PCP concluded that “as a pure educationalist with a passionate interest in improving learning, Mr Wallace was so entirely focussed on that end that he simply did not appreciate that actions, which he saw as achieving the best outcome for pupils at the school, would, or could be regarded by others as being dishonest.”

(iii) Part of the conduct in allegation 4 (deleting of emails, but not the creation of “cleared down” email accounts) was dishonest by the standards of ordinary and reasonable people and teachers, but the Appellant did not appreciate that at the time. Here again, the panel found that only the first test and not the second test in Ghosh was satisfied. The PCP’s “considered finding” was that the emails had been deleted “not out of a desire to frustrate, conceal or dispose of information which might assist the authorities, nor with any awareness that the emails might assist the authorities, but with the sole intention of protecting colleagues and preserving the momentum towards improving learning outcomes which he had generated through his involvement.”

[36]The PCP’s overall conclusion was that the facts proven under allegations 1 to 4 amounted to unacceptable professional conduct and conduct that might bring the profession into disrepute. The PCP specifically concluded that:- “the findings of misconduct are serious and the conduct displayed would likely have a negative impact on the status of Mr Wallace as a teacher, potentially damaging the public perception.” After reading out its conclusions, the hearing moved on to the subject of mitigation. The Appellant gave evidence again, as did two witnesses on his behalf. After hearing submissions and legal advice, the panel recommended that the Appellant should not be made subject to a prohibition order.

[37]The section of the PCP’s report headed “Panel’s recommendation to the Secretary of State” was detailed and carefully reasoned. It began as follows:- “Given the panel’s findings in respect of unacceptable professional conduct and conduct that may bring the profession into disrepute, it is necessary for the panel to go on to consider whether it would be appropriate to recommend the imposition of a prohibition order by the Secretary of State. In considering whether to recommend to the Secretary of State that a prohibition order should be made, the panel has to consider whether it is an appropriate and proportionate measure, and whether it is in the public interest to do so. Prohibition orders should not be given in order to be punitive, or to show that blame has been apportioned, although they are likely to have punitive effect.”

[38]The PCP first addressed public interest considerations which told in favour of the imposition of a prohibition order:- “The panel has considered the particular public interest considerations set out in the Advice and having done so has found the maintenance of public confidence in the profession and declaring and upholding proper standards of conduct to be relevant in this case. In light of the panel’s findings against Mr Wallace, which involved, amongst other things, non-compliance with financial procedures, failing to declare a conflict of interest, and disclosing confidential information to a bidder regarding rival bids, there is a public interest consideration in ensuring that effective financial management of schools is maintained. Similarly, the panel considers that public confidence in the profession could be weakened if conduct such as that found against Mr Wallace were not treated with the utmost seriousness when regulating the conduct of the profession. Notwithstanding the clear public interest considerations that were present, the panel considered carefully whether or not it would be proportionate to impose a prohibition order taking into account the effect that this would have on Mr Wallace. In carrying out the balancing exercise, the panel has considered the public interest considerations both in favour of and against prohibition, as well as the interests of Mr Wallace. The panel took further account of the Advice, which suggests that a prohibition order may be appropriate if certain behaviours of a teacher have been proven. The relevant behaviour in this case was a serious departure from the personal and professional conduct elements of the Teachers’ Standards.”

[39]In the second part of their conclusions the PCP considered the personal mitigating features of the Appellant’s case:- “Even though there were behaviours that would point to a prohibition order being appropriate, the panel went on to consider whether or not there were sufficient mitigating factors to militate against a prohibition order being an appropriate and proportionate measure to impose, particularly taking into account the nature and severity of the behaviour in this case. Mr Wallace has a previous good history and the panel accepts that his actions were not consistent with his character as a whole. Whilst, in light of the panel’s findings, there is no evidence to suggest that the actions were not deliberate, it is also clear to the panel that those actions were wholly motivated by a desire to improve educational outcomes. Mr Wallace has not sought to blame others and has accepted his responsibility, yet the panel do consider that there was an element of duress brought about by a combination of his own natural enthusiasm and others outside of the federation encouraging him to take on responsibility for more schools in order to address poor achievement levels in the local area. Whilst this was not entirely outside Mr Wallace’s control, the breadth of responsibility on his shoulders beyond his key focus on improving learning outcomes, and an apparent lack of supporting infrastructure, appeared to impact on his attention to the detail of some procedural requirements. Mr Wallace has fully acknowledged his mistakes and has shown great insight, clearly explaining to the panel in oral evidence how he will seek to avoid making similar errors again by improving his own practice, undertaking training as appropriate and by ensuring that, in so far as he takes on leadership responsibilities in future, he has in place around him sufficient support to ensure that the procedural requirements are met and he can focus on his undoubtedly exceptional talent as an educator.”

[40]In the third part of their conclusions the PCP addressed public interest considerations which told against the imposition of a prohibition order:- “The panel acknowledges that Mr Wallace’s wrongdoing has already had a traumatic impact on his career. Nevertheless, the panel heard evidence that, since resigning as executive principal at BSF, Mr Wallace has taken on a valuable role within the Harris Federation, playing a significant part in turning around failing schools with the result that a substantial improvement has been seen in children’s attainment and in the schools’ OFSTED ratings. The fact that he has made such a significant contribution since his resignation reinforces the panel’s perception that Mr Wallace is motivated wholly by a desire to improve the educational development of children in challenging areas. The panel has seen written evidence from a number of witnesses testifying to the excellent work of Mr Wallace and his inspirational abilities in improving the teaching of children. The panel heard from Witness C, whose statement is at page 638 of the bundle. As assistant principal of Harris Primary Academy Philip Lane, where Mr Wallace currently works, Witness C described Mr Wallace as putting ‘the same dedication, passion and relentless drive at squeezing the best out of staff around him into also pushing the best out of the children he teaches’. Witness C described the result of this work; ‘this high quality bespoke approach has meant that children who had no chance of leaving Year 6 secondary ready are now confident, motivated and increasingly independent learners’. Witness C praises Mr Wallace for helping him to develop his leadership skills and states ‘I owe my current success to Greg and the time and effort he put into developing me as a teacher and leader’, concluding ‘The ability to motivate and inspire adults, as well as children, is a rare gift. The English education system would be losing one of its best assets if Greg were to be prohibited from teaching’. In oral evidence, Witness C provided the panel with an animated and enthusiastic account of a class taught by Mr Wallace which clearly inspired the children involved. The panel heard similar praise from Witness D, headteacher at Concordia Academy in Romford, who had worked with Mr Wallace both within the Harris Federation and in Hackney. Witness D stated ‘Greg’s impact in Hackney is well documented, but it is worth remembering that he not only took on the most challenging schools in the borough but also succeeded in turning them into successful schools. In the time I worked with him there I only saw a professional totally committed to improving these schools’. Witness D stated ‘his passion for the profession, his unwavering dedication and his sheer expertise set him apart, and he must be allowed to continue and build upon the excellent work he had done’. Witness D stated in oral evidence that Mr Wallace was ‘forward thinking’ in his approach to mathematics teaching, having already started to implement effective teaching practices before they became part of the current national drive. Amongst other testimonies, the panel were also provided with a reference from Individual D, primary director of the Harris Federation, who stated of Mr Wallace, ‘although he has not held a management position with us, his ability to teach children is remarkable and goes well beyond ‘outstanding’. In his work for the Federation, he has had a significant and very positive impact on the education of the children in our primary academies’. An array of testimonies on a similar vein were provided to the panel, including from a number of teachers whose approach has been influenced by Mr Wallace’s inspirational example.”

[41]Finally, the PCP drew their conclusions together as follows:- “The panel was left in no doubt that Mr Wallace has exceptional abilities as an educator and has inspired many other teachers and children to improve their abilities and skills. The panel has found Mr Wallace guilty of unacceptable professional conduct and conduct that may bring the profession into disrepute. These are by their very nature serious findings, albeit at the lower end of the scale of severity. However, having reviewed all the evidence, taking into account the insight shown by Mr Wallace, and having regard to what the panel assesses to be an unusually significant public interest in Mr Wallace being allowed to continue his exceptional work, the panel consider that the findings of unacceptable professional conduct and conduct that may bring the profession into disrepute are in themselves sufficient in this case to address the matter. The panel is not of the view that prohibition is a proportionate and appropriate response to Mr Wallace’s misconduct. For all the reasons set out above, the panel has determined that a recommendation for a prohibition order will not be appropriate in this case.” (emphasis added)

The Secretary of State’s decision

[42]A senior official within NCTL reviewed the PCP’s recommendation. Because she decided to disagree with the PCP’s recommendation on sanction, and did so in relatively brief terms, it is important to set out her reasons for deciding to impose a prohibition order in full:- “I have considered very carefully the findings and recommendations of the panel in this case. I have noted where the panel has made findings of fact, and where the panel has made no such findings I have put these from my mind. The panel finds Mr Wallace guilty of unacceptable professional conduct and conduct that may bring the profession into disrepute. I have considered the particular public interest considerations, and I agree with the panel that the maintenance of public confidence in the profession and declaring and upholding proper standards of conduct are relevant in this case. I note that the panel’s findings against Mr Wallace involved, amongst other things, non compliance with financial procedures, failing to declare a conflict of interest, and disclosing confidential information to a bidder regarding rival bids. There is a public interest consideration in ensuring that effective financial management of schools is maintained. I note that the panel took further account of the Advice, which suggests that a prohibition order may be appropriate if certain behaviours of a teacher have been proven. In this case, I agree with the panel that the relevant behaviour is: a serious departure from the personal and professional conduct elements of the Teachers’ Standards. I have noted the panel’s consideration of the public interest in this case, and that the panel has considered the public interest both in favour of and against prohibition, as well as the interests of Mr Wallace. I note that the panel considered the factors to mitigate against a prohibition order being appropriate and proportionate. Mr Wallace has a previous good history. There is no evidence to suggest his actions were not deliberate, although I note the panel found it clear to them that those actions were wholly motivated by a desire to improve educational outcomes. I am also mindful of the fact that the panel do consider that there was an element of duress, brought about by a combination of his own natural enthusiasm and others outside of the federation, encouraging him to take on responsibility for more schools in order to address poor achievement levels in the local area. Mr Wallace has fully acknowledged his mistakes and has shown insight into his behaviour. Having found Mr Wallace guilty of unacceptable professional conduct and conduct that may bring the profession into disrepute, the panel has acknowledged that these are by their very nature serious findings. However, I note the panel considers these to be at the lower end of the scale of severity. The panel is not of the view that prohibition is a proportionate and appropriate response to Mr Wallace’s misconduct I differ in my view from that of the panel. The panel concluded that the unusually significant public interest in Mr Wallace being allowed to continue his work, outweighs the public interest considerations in this case. I believe that the panel has not taken sufficient account of the public concern that would arise, and that public confidence in the profession could be seriously weakened, if the conduct found proved in this case was not treated with the utmost seriousness. I consider that the panel has given undue weight to the testimonies of the excellent work of Mr Wallace. For the reasons set out above, my view is that prohibition is both proportionate and appropriate.”

[43]The Respondent did, however, decide to include a provision for review of the order after the minimum period of 2 years, saying:- “I now turn to the matter of a review period. The panel has argued that they were left in no doubt that Mr Wallace has exceptional abilities as an educator and has inspired many teachers and children. Mr Wallace has not sought to blame others and the panel considers he has shown great insight into his actions. I consider that it would be against the public interest to deprive the profession permanently of a teacher who is held in such high regard. I consider that Mr Wallace should have the opportunity to re-enter the profession in the future, having reflected on his actions. I consider a review period of two years to be both proportionate and appropriate in this case.”

The grounds of appeal

[44]In summary the Appellant’s grounds were as follows:-(1) The procedure operated by the Respondent under the 2002 Act and the 2012 Regulations is not compliant with

Article 6(1) of the ECHR

in that the decision-maker is not independent of the prosecutor. Compliance with Article 6(1) is not achieved unless either (a) the Respondent is obliged to defer to the conclusions of the PCP, or (b) the right of appeal is to the High Court exercising “full jurisdiction”. The latter would require the appeal to be a “re-hearing” in which the High Court defers to the views of the PCP as an expert panel, but not to those of the Secretary of State;

(2) On the material before it, the Court should disagree on the merits with the Respondent’s conclusion on the appropriate sanction and thus hold it to be “wrong” under CPR 52.11(3);

(3) The Respondent’s decision was “wrong” in that she failed to consider the publication of the PCP’s conclusion on misconduct as a sanction, and the sufficiency of such a sanction;

(4) The Respondent failed to consider “proportionality” properly. Furthermore, the imposition of a prohibition order in this case was disproportionate. Consequently, the decision was “unjust” or “wrong”;

(5) The Respondent failed to give adequate reasons for her decision. As I have noted, this is not a case in which the Court is asked to modify or reverse any findings of fact by the PCP.

Ground 1

[45]

Article 6(1) of the ECHR

provides (inter alia) that in the determination of his civil rights, everyone is entitled to a fair and public hearing by an independent and impartial tribunal. The Appellant’s written submissions under this ground were somewhat cursory and were not sufficiently developed at the hearing. The Respondent chose to say very little in reply.

[46]In February 2015 the NCTL issued a guide to the operation of the scheme. When a case is received by the College it carries out an initial check as to whether the matters raised involve “serious misconduct”. If not, the NCTL may decide to take no further action. But if further action is justified, NCTL makes an assessment to see whether the case is potentially serious enough to result in a prohibition order. If not the NCTL will decide not to carry out a formal investigation. But where a formal investigation is considered to be appropriate, the NCTL may decide to give instructions to an external lawyer for that purpose. Mr Dunlop explained that that course was taken in the present case. The results of the investigation are then reported back to the NCTL. An official belonging to the College’s Determination Panel decides whether there is a case to answer. If there is, the matter is referred by the NCTL under regulations 5(4) to a PCP.

[47]The NCTL is responsible for selecting a PCP comprising at least 3 members. I was told that there is a pool of about 90 persons from which the College may draw in order to constitute a panel to deal with a specific case (or cases). In addition, the NCTL will appoint a legal adviser for that particular panel, who will be a different person to any lawyer previously involved in the investigation. The legal adviser is external and not a member of the Department’s staff. He or she will advise the panel on questions of law or procedure or mixed law and fact. The adviser may also remind the members of the panel of the evidence, ask questions of witnesses and others in order to clarify the evidence or issues, and help the PCP formulate and record their reasons for their decision. However, the adviser does not participate in the reaching of the decision.

[48]The NCTL will appoint a “presenting officer” to put forward its case to the panel. In the present proceedings the College appointed an external lawyer. Typically, that lawyer will have been previously instructed by the NCTL to conduct the investigation. At this stage there therefore remains a clear separation between on the one hand the investigation and prosecution of a case (on the instructions of the NCTL) and on the other the composition of the PCP, the conduct of the hearing and the preparation of the panel’s findings and recommendation. Indeed, Mr Faux accepted on behalf of the Appellant that under the scheme, the PCP is independent of NCTL’s involvement in a case and to that extent, at least, Article 6 is satisfied.

[49]The nub of Mr Faux’s argument hinges on what happens after the PCP has reached its conclusions. The PCP’s report is sent to a “senior official” in the NCTL for a decision to be taken on behalf of the Respondent as to what action should be taken under regulation 8 and section 141B(2). Mr Faux simply submits that because that person is an official of the NCTL and because officials of that agency are also responsible for the initial investigation, the decision that there is a case to answer and the pursuit of that case before the PCP, the ultimate decision-maker is not independent for the purposes of Article 6(1).

[50]At this point it is necessary to return to the statutory scheme. As Mr Dunlop pointed out in his submissions, the scheme created by the amendments introduced by the 2011 Act is unusual. It splits the decision-making between two tiers. The first tier, the PCP, is responsible for deciding whether or not relevant allegations against a teacher are proved. If they conclude that they are not, that is the end of the case. The Respondent has no power to review findings by a PCP that there was no unacceptable professional conduct, or no conduct bringing the profession into disrepute, or no relevant conviction. The Respondent has no power to substitute different findings or conclusions on those matters. Likewise, where a PCP concludes that there was misconduct within the ambit of section 141B(1), the Respondent is not entitled to take a different view.

[51]The Respondent accepted through her counsel, and I agree, that she has no power to interfere with any of the findings made by a PCP in reaching their conclusions as to the extent to which an allegation of misconduct within section 141B(1) is, or is not, made out. So, in the present case the Respondent was bound by the PCP’s conclusions accepting allegations (1) to (4) but rejecting the allegations of dishonesty ((5) to (7)), and also bound by the findings upon which those conclusions were based. Indeed, the practice followed to date of supplying the senior official who makes the decision under regulation 8 with nothing more than the report of the PCP, is consistent with that understanding. If, contrary to my view, the decision-maker in the NCTL has the power to alter any of the findings made by the PCP, he or she would generally need to examine the evidence before the PCP relevant to a particular finding before deciding to disagree with it or materially alter it. But, as I have said, given the Respondent’s clear stance in this appeal and the views I have reached on the construction of the legislation, that issue does not arise.

[52]The second stage of the decision-making process only arises if the PCP decides that one or more allegations of misconduct falling within section 141B(1) of the 2002 Act is made out. At that point the PCP has to consider whether or not to recommend that a prohibition order is made and, if so, whether a provision for review should be included (and on what terms). Regulation 8(1) obliges the Respondent to consider the PCP’s recommendations on the “prohibition order issue”, or the “sanction issue”, but it is plain from the legislation that the decision on this subject is for the Respondent alone. She is not bound to follow the recommendations made by the PCP. So the Respondent is entitled to accept or reject a recommendation that a prohibition order either is made, or is not made.

[53]Because in this second stage, the legislation ascribes different functions to the PCP (of recommending) and to the Respondent (of determining), there is nothing in the statutory scheme which treats the Respondent as bound by any part of the PCP’s reasoning on the “sanctions issue” leading up to its recommendation. So it would appear that the Respondent is not restricted simply to deciding how much weight should be given to the conclusions on reasons set out in the PCP’s report on the “sanctions issue”. She may decide to disagree with, for example, factual conclusions drawn by the PCP when dealing with that separate issue. However, that legal freedom may also give rise to an issue in a future case as to whether the Respondent needs access to more material from the PCP hearing than the panel’s report where she is minded to alter a factual conclusion of that kind. But that issue does not arise for decision in this case, because the Respondent did not disagree with any factual findings in the “sanctions” part of the PCP’s report. Instead, the Respondent simply decided to give different weights to the factors identified in that report.

[54]Accordingly, any issue as to whether the process lacks independence for the purposes of Article 6(1) is confined to the “sanctions” part of the decision. It has not been suggested that the PCP lacks independence and therefore, on the argument I have heard, that issue does not arise in relation to the earlier stage in which the PCP finds facts and reaches conclusions on whether misconduct falling within section 141B(1) has occurred. That is an independent determination of that part of the case, which cannot be altered by the NCTL acting on behalf of the Respondent.

[55]Pages 9 to 11 of the NCTL’s Advice document sets out factors which are considered to affect a decision on whether or not to impose a prohibition order. Much of the Advice is concerned with identifying public interest considerations which need to be protected, or factors which go to the seriousness of the misconduct and hence the strength of the justification for imposing a prohibition order. Page 10 of the Advice states that in deciding on whether a prohibition order should be recommended, a PCP should apply the principle of proportionality, weighing the public interest considerations against those of the teacher, which will include personal mitigation. Mr Faux points out that such mitigation often attracts less weight given that the object of disciplinary proceedings is the protection of the public rather than punishment (see Sir Thomas Bingham MR in Bolton v Law Society

[1994] 1 WLR 512

, 519).

[56]On the legal analysis by both counsel in this case, the seriousness of the misconduct for the purposes of deciding what sanction should be imposed will be influenced largely by the findings of the independent PCP in the first part of their report dealing with whether the allegations of misconduct have been made out, factual findings with which the Respondent could not interfere. In most cases the degree of seriousness of the misconduct will be self-evident from those findings. The second part dealing with the “sanctions issue” will largely be concerned with how much weight to give to that misconduct as compared with the personal circumstances of the teacher. In many, if not most, cases before the NCTL it follows that the central issue when considering sanctions will be the weight to be given to the misconduct proved and whether it is so serious as to justify a prohibition order. By contrast the present case is unusual, as Mr Dunlop accepted, because of the strong public interest considerations which have been identified in favour of allowing the Appellant to continue teaching.

[57]The Appellant has failed to demonstrated a lack of independence on the part of the senior official of the NCTL who takes the final decision under section 141B(2) and regulation 8. Indeed, as I pointed out in paragraph 49 above, Mr Faux baldly asserted this argument simply on the basis that officials who are responsible for the investigation for the decision that there is a case to answer and the senior official who takes the final decision are all employed by NCTL. He sought to draw an analogy with the case of R (Kaur) v Institute of Legal Executives Appeal Tribunal

[2011] EWCA Civ 1168

;

[2012] 1 All ER 1435

. But that decision dealt with a very different situation where the vice identified by the court was the inclusion of members of the Institute’s Council on its disciplinary tribunal and appeal tribunal. Council members were also responsible for representing the members of the Institute and for governing and protecting its interests. That was all in the context of self-regulation by a professional body (see paragraphs 45 to 51).

[58]The scheme in the present case has nothing to do with self-regulation at all. Here Parliament has decided that the Secretary of State is responsible initially for investigating whether an allegation may amount to misconduct falling within section 141B(1) and determining whether there is a case to answer. Thereafter, an independent process is interposed whereby the PCP decides whether the allegations are factually proven and amount to relevant misconduct under the statutory scheme. It is only if the PCP decides that the allegations are made out and constitute relevant misconduct that the Secretary of State has any further involvement, and at that stage she cannot interfere with the PCP’s findings on misconduct and is solely responsible for deciding which of two sanctions to impose (see paragraph 78 below). The decision in Kaur is of no assistance.

[59]It is plain that many of the authorities in the extensive jurisprudence on disciplinary regimes are highly sensitive to the statutory schemes and procedural practices involved as well as the factual circumstances of the individual case (see eg. Sadler v General Medical Council

[2003] 1 WLR 2259

;Meerabux v A.G. of Belize [2005] 2 A.C. 513;Re P (A Barrister)

[2005] 1 WLR 3019

). There have even been differences of judicial opinion in relation to the same scheme (contrast the criticisms by Lord Drummond in the Outer House of the Court of Session in paragraph 87 of Tehrani v UK Central Council for Nursing, Midwifery and Health Visiting (2001) S.C. 581 with the views of the Divisional Court in Brabazon-Drenning v UKCC for Nursing, Midwifery and Health Visiting (2001) HRLR 6 at paragraph 36 and of the Privy Council in Holmes v Royal College of Veterinary Surgeons

[2011] UKPC 48

at paragraphs 21 and 25).

[60]Accordingly, it is inappropriate to mount a challenge under Article 6(1) to the scheme operated by the Respondent by broad-brush arguments of the kind presented in the present case. This applies all the more to an appeal which can only be considered at one level, namely the High Court. Arguments of this nature require a proper analysis not only of the statutory framework, but also a full description of the process in fact operated by the Respondent and a careful analysis of relevant case law.

[61]As the Respondent submitted, a short answer to ground 1 is that, irrespective of whether the ultimate decision-maker in the NCTL is to be regarded as independent, Article 6(1) is satisfied by the existence of the right of appeal under Regulation 17 (see eg. Le Compte, Van Leuven and De Meyere v Belgium

(1981) 4 EHRR 1

; R (Thompson) v Law Society

[2004] 1 WLR 2522

). The Appellant’s argument is not improved by attempting to focus on how the nature of the “hearing” in the High Court can “cure” supposed problems in the process conducted by the Respondent. First, on the submissions presented in this case, the Appellant has failed to demonstrate that any such problems exist. Second, the appeal procedure in the High Court is not to be seen as a “cure” for, or “purge” of, any original or prior breach of Article 6(1) in the prior process of the Respondent. The existence of the appeal procedure forms an intrinsic part of the overall scheme for dealing with a disciplinary issue and prevents a breach of Article 6(1) from occurring in the first place (see Tehrani at paragraphs 50 to 59).

[62]The Appellant’s failure to identify, let alone demonstrate, a genuine procedural problem was reflected in the widely varying nature of the “cures” which Mr Faux sought to put forward, whether in respect of the process to be followed by the Respondent or the appeal process in the High Court:-(i) The Respondent was bound to follow the recommendations of the PCP on the sanction issue; or

(ii) The Respondent was bound to follow the recommendations of the PCP on sanction save in cases of “obvious error” or perversity or “exceptional circumstances” (the basis for defining which was not identified by the Appellant); or

(iii) The Respondent should show deference to the PCP and its expertise on the sanction issue; or

(iv) The High Court should show deference to the PCP on the sanction issue, but not to the Respondent; or

(v) The High Court should reverse the conclusions of the Respondent on the sanction issue if it disagrees with the Respondent’s appraisal of the merits.

[63]No authority was cited to support any of the above alternatives. Whilst they may suit this particular Appellant’s case, Mr Faux did not consider what the impact on other cases would be if the court should accept any of his alternatives, for example where the Respondent decides that the sanction recommended by a PCP would be too severe. No doubt in such circumstances the teacher concerned would argue that alternatives (i), (ii) and (iii) should not apply, but no attempt was made to justify this asymmetrical approach. The Appellant’s argument lacks coherence.

[64]In my judgement alternatives (i) to (v) are either inconsistent with, or gain no support from, the statutory scheme. They are inconsistent with the decision of William Davis J in Lonnie (see paragraphs 12, 14, 18 and 22). On the limited argument in this case I would not be prepared to accept any of them. Parliament has chosen to make the Secretary of State for Education responsible for operating a scheme which provides for investigation and proceedings in respect of cases of misconduct. At the end of that process, if a qualifying level of misconduct is established to the satisfaction of the independent PCP, the minister is responsible for determining the sanction. The PCP’s function in respect of that latter issue is limited to making a non-binding recommendation.

[65]Furthermore, I have not been shown anything on behalf of the Appellant to suggest that in relation to the “appropriate sanction” issue, a PCP has any superior level of expertise as compared with that of the Secretary of State and her officials, such that the scheme should require the latter to defer to the former, let alone be bound by the former. Important considerations include the maintenance of proper professional standards, the integrity of the profession and the confidence of the public in the teaching profession. A PCP typically comprises 3 members drawn from a pool of 90. One of the functions of the Respondent as the final decision-maker on sanctions is to provide oversight and consistency on that aspect (whilst taking into account differences between individual cases).

[66]With those considerations in mind, I see no justification for a judge of the High Court to approach an appeal under Regulation 17 with deference towards, or preference for, the views on sanction of a PCP rather than those of the Respondent.

[67]In Lonnie William Davis J dealt with an appeal where, as in this present case, no error of fact was alleged and the Secretary of State had exercised her judgment based on the facts as found by the PCP in that case (paragraph 18). In addition, there was no suggestion of any procedural or other irregularities, whether serious or otherwise (paragraph 14). The judge decided that he should stand back, take proper account of the judgment and discretion vested in the Secretary of State and should not remake her decision (paragraphs 18, 19 and 22). I agree with the approach taken by William Davis J to the circumstances of the case before him. But, in any event, having regard to well-established principles regarding decisions of judges of co-ordinate jurisdiction, including those from which no appeal is possible (see e.g. Police Authority for Huddersfield v Watson

[1947] KB 842

, 846-8), it was inappropriate for Mr Faux to seek to persuade me to disagree with that decision without putting forward any coherent, well-founded legal basis for doing so.

[68]I will return under grounds 3 and 4 below to what is accepted as having been an unusual feature of Mr Wallace’s case, namely the acknowledged and exceptionally strong public interest in his continuing to serve in the teaching profession. However, although this was alluded to in the Appellant’s arguments regarding the application of

Article 6(1) of the ECHR

, I do not think it materially affects any of the analysis set out above.

[69]For completeness I should mention that Mr Faux abandoned the argument in ground xi of the Notice of Appeal and paragraph 22 of his skeleton, that the procedure adopted by the Respondent discriminates against teachers as a group when compared with the schemes applicable to other groups of professionals, contrary to

Article 14 of the ECHR

[70]For all the above reasons I reject ground 1.

Ground 2

[71]For the reasons set out under Ground 1 above, I am not persuaded that it would be proper for the High Court on an appeal under Regulation 17 to treat the decision of the Secretary of State as “wrong” and therefore allow the appeal simply because the judge disagrees on the merits with some aspect of the Respondent’s reasoning or the final outcome (see Lonnie). The position may be different, however, where, instead of challenging matters of professional or expert judgment, the Appellant asks the High Court to correct errors relating to findings of primary fact (eg insufficient or no evidence, or mistake - see O and contrast Lonnie).

[72]Mr Faux faintly suggested that the Respondent had failed to take into account the public interest in the Appellant continuing to serve as a teacher, but that is plainly unarguable.

[73]I should deal a little further with one particular criticism made of the Respondent’s decision. In paragraph 17 of the Appellant’s skeleton (an in oral submissions) it was said that the PCP rejected the allegations of dishonesty and so the misconduct “amounted to administrative failures in the running of the schools…. As such the wrongdoing did not merit the sanction of prohibition.” From what I have seen, this appeared to be no more than ill-judged zeal on the part of the Appellant’s advocate, rather than the views actually held by the Appellant. The findings made by the PCP also point to the former rather than the latter.

[74]Mr Faux’s argument effectively disregarded the findings of the PCP. First, the PCP considered the findings of misconduct under allegations (1) to (4) to be “serious” (page 16), “that public confidence in the profession would be weakened if conduct such as that found against Mr Wallace were not treated with the utmost seriousness when regulating the conduct of the profession”, and that the misconduct “would point to a prohibition order being appropriate”. Secondly, it was therefore wrong to submit that a prohibition order was inappropriate because the PCP found the misconduct to be “at the lower end of the scale of severity”. All that the Panel meant by that phrase (at page 19) was that the misconduct was at the lower end of the range for which a prohibition order might be appropriate, not the lower end of the range covering all types of misconduct. Third, the Panel did not reject the allegations of dishonesty altogether. They acquitted the Appellant of “subjective” dishonesty (applying the second test in Ghosh) but not (in relation to allegations (6) and (7)) of conduct which reasonable and honest members of the public would consider to be dishonest (applying the “objective” test in Ghosh).

[75]Two points need to be made about this third aspect. First, if the PCP had found that there had been dishonesty satisfying both limbs of Ghosh, the Appellant’s misconduct would plainly have been treated by the PCP as significantly more serious within the range of conduct for which a prohibition order is appropriate. Second, misconduct which is dishonest in the eyes of reasonable and honest members of the public is relevant to public confidence in the integrity of the teaching profession. Ultimately, Mr Faux accepted this and withdrew any submission to the contrary.

[76]For all these reasons I reject ground 2.

Grounds 3 and 4

[77]It is convenient to take these two grounds together.

[78]Mr Dunlop rightly identified a second unusual feature of the disciplinary scheme introduced by the 2011 Act and the 2012 Regulations. Where misconduct falling within section 141B(1) is established, there are only two sanctions available to the Respondent. She may make a permanent prohibition order so as to prevent the teacher from carrying out any “teaching work” (with or without a provision allowing an application to set aside). Alternatively, she may refuse to make such an order, but in that event she must publish her decision (regulation 8(5)) which will include details of the findings of misconduct proved. The legislative scheme does not provide for any other sanction between these two alternatives. This scheme is unlike many others which provide for a range of sanctions running from reprimand or admonishment, through the imposition of conditions on practice, or suspension, to removal of the right to practice or work in a profession.

[79]In my judgment there are at least two important consequences of this unusual feature of the scheme for dealing with the misconduct of teachers. First, it is undoubtedly relevant for the decision-maker to take into account and weigh the lesser sanction of a public finding of misconduct. In Spencer v General Osteopathic Council

[2012] EWHC 3147 (Admin)

Irwin J (as he then was) pointed out at paragraphs 23 and 25 that a formal published report of misconduct or unacceptable professional conduct conveys some moral blameworthiness and opprobrium to the ordinary citizen. Publishing findings of this nature are highly likely to affect a teacher’s professional reputation and, to some extent, employment prospects. This should be regarded as a “considerable sanction” in itself. Second, the proper application of a proportionality test may affect the outcome of many cases dealt with under the 2012 Regulations. No doubt it is for this very reason that the advice published by NCTL on the operation of the scheme acknowledges that the proportionality of imposing a prohibition order should be addressed (see paragraph 85 below).

[80]I do not suggest that in every case where a PCP upholds an allegation of misconduct, the Respondent is obliged to consider the weight to be given to the sanction of publishing adverse findings of misconduct. For example, there may be some cases where the conduct is so serious, or the conduct is serious and there is no significant counterbalancing factor, that it is obvious that only a prohibition order would suffice. But here the PCP expressly stated that in their view, in the particular circumstances of this case, the publication of the findings of misconduct would be a sufficient sanction. That was therefore a matter which the Respondent had to address expressly in her decision.

[81]The Respondent did not disagree with the PCP’s findings on the factors to be taken into account when determining the appropriate sanction, but did disagree on the weight to be attached to certain matters. Thus, both PCP and the Respondent proceeded on this basis that the misconduct was at the lower end of the scale of severity covering behaviour for which a prohibition order might be appropriate. The Respondent did not disagree with the PCP’s findings on the circumstances amounting to personal mitigation, or the “unusually significant public interest” in the Appellant being allowed to continue to teach. The Respondent explicitly stated that “it would be against the public interest to deprive the profession permanently of a teacher who is held in such high regard” and judged that the minimum interval of 2 years before a review may take place would be appropriate. No lesser prohibition may be imposed. Furthermore, Mr Dunlop said in his submissions on behalf of the Respondent that the degree of public interest in retaining the Appellant as a teacher makes this a rare type of case.

[82]Accordingly, in the light of the Respondent’s own findings in the decision letter, it is apparent that this case was considered to be on the cusp or the threshold for imposing a prohibition order. In my judgment, it follows from all these circumstances that the alternative sanction that the adverse findings of misconduct should be published was an “obviously material” consideration which the Respondent was explicitly required to take into account and weigh (see e.g. Re Findlay

[1985] AC 318

, 333-4; R (Faraday Development Ltd) v West Berkshire District Council

[2016] EWHC 2166 (Admin)

at paragraphs 132-134). It is also plain from the decision letter that the Secretary of State did not take into account and weigh this alternative before reaching the decision to impose the far more serious sanction of a prohibition order. I therefore uphold ground 3.

[83]The fact that, according to the Respondent’s findings, this case was to be regarded as a finely balanced, or threshold, case for the purposes of deciding whether a prohibition order should be imposed is also relevant to the contention under ground 4 that the Respondent failed to apply the correct test for proportionality.

[84]The criticism begins with the principle set out in Bolton v Law Society

[1994] 1 WLR 512

that because professional disciplinary proceedings are concerned primarily with the public interest in maintaining professional standards and the reputation of the profession rather than punishment, personal mitigation generally has a lesser effect or weight than would otherwise be the case. However, the public interest in retaining a person who is able to make a valuable contribution to a profession, can be a factor carrying substantial weight against prohibiting him or her from working in that profession (see e.g. Bijl v General Medical Council

[2001] UKPC 42

at paragraphs 13-14 and Council for the Regulation of Healthcare Professionals v General Medical Council

[2005] EWHC 579 (Admin)

at paragraphs 13-14).

[85]Pages 9 to 11 of the NCTL’s Advice on prohibition orders, deals with the question of whether such an order is appropriate. Most of the text deals with the objectives of prohibition orders and the types of conduct for which they should be considered. There is one rather terse paragraph in the Advice in which the central issue of proportionality is considered alongside mitigation:- “In deciding whether or not the recommendation of a prohibition order is appropriate, professional conduct panels should apply the principle of proportionality, weighing the public interest considerations (as above) against those of the teacher. This will include consideration of any mitigation in relation to the seriousness of the behaviour in question.” As Mr Faux rightly pointed out, those “public interest considerations” are set out on page 10 and are said to include the protection of pupils and other members of the public, the maintenance of public confidence in the profession, and declaring and upholding proper standards of conduct. Those are considerations which might be relied upon in order to justify the making of a prohibition order.

[86]I accept Mr Faux’s submission that the Advice does not contain any proper explanation of the “proportionality principle”. Indeed, it rather misleadingly implies that the exercise merely involves weighing public interest conditions against those of the teacher, implying(a) a simple balancing exercise and

(b) that there are no public interest considerations which may tell in favour of a person continuing to teach. That possibility is not addressed. In some cases this might make no difference to the outcome, for example, where the misconduct is at the more serious end of the scale and there are no mitigating circumstances at all, or relatively little weight attaches to any mitigation (bearing in mind the approach in Bolton v Law Society). But in other cases, such as the present one, there is a substantial, or even exceptional, public interest in retaining the teacher in the profession, notwithstanding his serious misconduct. The Advice does not deal with circumstances in which there is a “positive” public interest in retaining a teacher. The evidence in the present case in support of this factor was powerful, even when expressed in summary form in the PCP’s report (see paragraph 40 above). Furthermore, the Respondent did not have regard to the detailed evidence which was before the PCP, some of which has been shown to the Court. A proper application of the proportionality principle was crucial to the decision-making process in the present case, especially given the availability of only two alternative sanctions, the more serious of which prohibits participation in most types of teaching work and not simply from being a head teacher.

[87]The PCP had the benefit of a direction from its legal adviser which essentially accorded with the submissions made by Mr Faux on behalf of the Appellant. The adviser specifically told the PCP that they should consider first the possibility of imposing the least serious sanction so as to ensure that the determination arrived at would be “proportionate”. He also advised that the panel should weigh the broader public interest, including the arguments in favour of retaining Mr Wallace as a teacher. For the reasons set out below, I do not consider that that went far enough, but it was certainly better than the guidance given in the NCTL’s Advice document. The senior official of the NCTL who took the decision in this case did not even have access to either Mr Faux’s submissions or the direction of the legal adviser to the PCP.

[88]In his skeleton Mr Faux said that to be proportionate the sanction should do no more than was necessary to serve the public interest in the case. Unfortunately, he did not cite to the Court any authority to support this formulation. He merely relied upon a pithy statement by Lord Diplock in R v Goldstein

[1983] 1 WLR 151

that “a steam hammer should not be used to crack a nut, if a nut cracker would do” (page 155). Of course, that remark merely gave an extreme example, which involved an absurdly excessive amount of force in order to achieve the defined objective.

[89]The case law shows that the “least intrusive means” test may be appropriate in certain specific contexts (e.g. Samaroo v Secretary of State for the Home Department [2001] UKHRR 1150) but not in others (see e.g. R (Clays Lane Housing) v Housing Corporation

[2005] 1 WLR 2229

at paragraph 28). The only authority supplied by the Appellant in response to the Court’s question about this issue (Giele v GMC

[2006] 1 WLR 942

) does not assist. The Appellant’s argument was not developed and failed to demonstrate that the “least intrusive means” test is appropriate in the present type of case. The Respondent did not cite any authorities on the correct approach to proportionality.

[90]In many fields the “least intrusive means” test is inappropriate and in such circumstances the Supreme Court has laid down a test of general application, namely whether a less intrusive measure could have been used without unacceptably compromising the achievement of the relevant objective(s), and whether having regard to these matters and the severity of the consequences for the individual, a fair balance has been struck between the rights of the individual and the interests of the public. (Bank Mellat v Her Majesty’s Treasury (No. 2)

[2014] AC 700

at paragraphs 20 and 74-5).

[91]Those tests have not been applied by the Respondent in this case (nor any form of “necessity” test). The decision-maker simply said that the PCP had not given sufficient weight to the public concern that would arise, and the weakening of public confidence in the profession, if the Appellant’s misconduct was not treated with “the utmost seriousness”. However, after having decided to impose a prohibition order, the Respondent went on to conclude that the public should not be deprived permanently of a teacher with such “exceptional qualities” (which is the effect of a prohibition order) and so the Appellant “should have the opportunity to re-enter the profession in the future, having reflected on his actions”. Taking her reasoning as a whole, I conclude that the Respondent did not make any proper proportionality assessment, but instead carried out a simple balancing exercise. As the Bank Mellat decision shows, something more than that is required in cases of this kind.

[92]According to the PCP and the Respondent, the “relevant objectives”, or public interests, in the present case included not only the maintenance of proper standards and public confidence in the teaching profession, but also enabling the Appellant’s exceptional contribution to education in relation to schools, pupils, the profession and its work to be retained. The proportionality assessment also needed to deal with the availability of only two different sanctions in the context of this case, namely the PCP’s findings that the misconduct was at the lower end of the scale of severity for the imposition of a prohibition order. The necessity for such an order, as compared with the effect of a formal publication of the adverse findings, was not assessed (ground 3), bearing in mind also that the public interest considerations in this case pointed both in favour of and against the imposition of a prohibition order and that it was expected that a prohibition order could be of a relatively short duration in any event. Issues regarding public concern about misconduct and public confidence in the profession should have been assessed by reference to the standard of the “ordinary intelligent citizen” (see Irwin J in Spencer), in other words a citizen who appreciates the seriousness of the alternative sanction of “publication of adverse findings”, as well as the other issues involved in the case (see also Kerr J in Shaw v General Osteopathic Council

[2015] EWHC 2721 (Admin)

). Furthermore, the suggestion that a minimum period of 2 years’ prohibition from all forms of teaching was appropriate so that the Appellant may “reflect on his actions” was pointless, given the clear findings of the PCP that the Appellant has acquired “great insight” into his wrongdoing and identified how to avoid such conduct in future (see paragraph 39 above).

[93]For these reasons I uphold ground 4 in addition to ground 3. The failure to assess the weight to be attached to the sanction of publicising the misconduct and the failure to apply any proper proportionality test when deciding to impose a prohibition order amount to serious irregularities rendering the Respondent’s decision “unjust” and also “wrong” (CPR 52.11(3)). It should be noted that these flaws in the decision-making process were not relied upon in Lonnie. There, it was not suggested that the Secretary of State had failed to apply any proportionality test or had applied the wrong approach to proportionality. Instead, the court was simply asked to disagree with the Secretary of State’s conclusion on the sanction to be applied (see paragraphs 16 to 19).

Ground 5

[94]Because I have upheld grounds 3 and 4 it is unnecessary for me to consider ground 5, save for one point. If I am wrong in concluding that the decision letter reveals a failure on the part of the Respondent to take into account the alternative sanction and to apply the correct proportionality test, I would nevertheless consider that the reasoning given by the Respondent is legally inadequate because(a) there is at least a “substantial doubt” as to whether she took those matters into account (South Bucks District Council v Porter (No. 2)

[2004] 1 WLR 1953

, 1964) and

(b) the Appellant has not been given a reasoned decision which applies those factors to his case (see R (Kaftan) v GMC

[2009] EWHC 3585 (Admin)

Conclusions

[95]For the above reasons the appeal must be allowed on grounds 3 and 4 and the decision of the Respondent imposing a prohibition order must be set aside. However, there has been no discussion in this case as to the legal basis upon which the NCTL’s Advice requires a proportionality test to be applied. This may be because

Article 8 of the ECHR

is engaged. If that is so, then it could be said that the Court should follow the approach laid down in Belfast City Council v Miss Behavin’ Limited

[2007] 1 WLR 1420

and decide for itself whether the imposition of a prohibition order was disproportionate in the circumstances of the case, allowing such deference as is appropriate for the reasons actually given by the decision-maker. These issues have not been canvassed in the present appeal and therefore consideration of them, and any related matters, must await another case. Whether a case should be remitted to the Respondent for a fresh determination would generally depend upon the particular circumstances of that case, although in many instances there might be an expectation that the matter would be remitted for redetermination in response to the PCP’s previous report and recommendation.

[96]However, in this appeal I have reached the clear conclusion that there is a combination of exceptional features which should lead the Court to deal with the matter itself under CPR 52.10 rather than remit it to the Respondent for a redetermination, because (in summary):-(i) The PCP’s findings, by which the Respondent was bound, were that (a) although some of the conduct would be regarded objectively as dishonest, all of the allegations of dishonesty failed because there was no subjective dishonesty on the part of the Appellant himself and (b) the misconduct, although very serious, fell at the lower end of the scale of severity which might justify a prohibition order. It was not suggested in argument by either party that the Court should depart from any of the findings made by the PCP, nor was it suggested that there was insufficient material before the Court for the matter to be determined now, or that any issue needed to be investigated further;

(ii) The Respondent has accepted the PCP’s view that there is an unusually significant public interest in the Appellant being allowed to continue his teaching work because of the exceptionally valuable contribution he has made to turning around failing schools, raising the attainment levels of pupils and improving the performance of colleagues. The Respondent considers that (a) it would be against the public interest to deprive the profession permanently of a teacher held in such high regard and (b) the minimum review period of 2 years would be appropriate in this case, even after allowing for the factor which was thought to weigh in favour of a prohibition order, namely taking “sufficient account of the public concern that would arise, and public confidence in the teaching profession could be seriously weakened, if the conduct found proved in this case was not treated with the utmost seriousness”;

(iii) For these reasons, it is plain that on the approach taken by the Respondent, the arguments for and against a prohibition order were finely balanced (ie. on the cusp between the sanction of publicising the misconduct and imposing a prohibition order) and the circumstances of this case were, as the Respondent’s counsel accepted, exceptional or rare. It is also relevant that the prohibition order bans the Appellant from all forms of teaching work. It is not suggested that a more limited order could be made prohibiting the Appellant from carrying out only certain types of work to which the proven misconduct could be relevant;

(iv) It was found by the PCP that the Appellant has shown “great insight” into his misconduct and demonstrated how that would be avoided in future. The Respondent accepted those findings, but then failed to explain how prohibiting the Appellant from teaching for a period of at least 2 years, so that he might “reflect on his actions”, might produce any material change or serve any useful purpose. The Respondent did not suggest that the Appellant had failed to show sufficient insight, or that the period of two years would allow even greater insight to be obtained which would materially facilitate his future application for the order to be set aside. This point made in the decision letter was entirely hollow;

(v) Public concern about the misconduct in this case and maintaining public confidence in the teaching profession should be assessed by reference to the established standard of the “ordinary intelligent citizen”. Such a citizen should be assumed to be reasonably well-informed about the issues raised by the case. “Public confidence in the profession” should not be assessed by talking into account the perceptions of someone who is ill-informed or uninformed. Accordingly, the ordinary intelligent citizen would well understand the points set out by the PCP, including the acknowledged public interest in retaining the Appellant in the teaching profession. That person would also appreciate that only two sanctions are available, that the option of publicising the misconduct proven would itself amount to a “considerable sanction” and that the Respondent’s reasoning shows that the case is on the borderline;

(vi) The PCP also found that there were a number of personal mitigating circumstances, notably the Appellant’s previous good history and the fact that his misconduct was out of character, the Appellant had been under great pressure to take on more responsibilities to improve the standards of failing schools in his area but had lacked sufficient support, and had been solely motivated to improve educational outcomes. These conclusions have been accepted by the Respondent, but they are in any event binding on the Respondent because they were derived from the PCP’s earlier reasoning which rejected certain allegations of dishonesty. For example, the PCP had referred to the “frantic pace” at which the BSF had been developing, the pressurised environment and workload placed on [the Appellant]” and “his one-dimensional focus on education” and improving learning. The “ordinary intelligent citizen” would also appreciate the significance of these points;

(vii) Turning to the proportionality test, and applying the considerations set out above, I have reached the clear conclusion that in this case, which the NCTL has treated as borderline, the formal publication of the findings of misconduct, with the detrimental effects they are likely to have on the Appellant’s career, represents a “less intrusive measure” which could and should have been adopted by the Respondent, because the public interest in maintaining the Appellant’s exceptional contribution to education would be satisfied without “unacceptably compromising” the maintenance of public confidence in the teaching profession. In this particular case the striking of a “fair balance” between these two aspects of the public interest and the Appellant’s position would inevitably result in this outcome.

Cited in 11 later judgments

and 2 more of the most senior