Teachers : (Professional Misconduct) Appeals against findings of fact

Teachers : (Professional Misconduct) Appeals against findings of fact

Cases of serious teacher misconduct are dealt with by the National College for Teaching and Leadership (NCTL). This is when a teacher’s behaviour is considered to be fundamentally incompatible with being a teacher ( as a result of being guilty of unacceptable professional conduct, conduct that may bring the profession into disrepute, or certain types of criminal conviction.), and could lead to them being prohibited from teaching. If a case is investigated by the NCTL and is referred to a Professional Conduct Panel there will be a formal hearing. The hearing falls into two sections: First, whether the allegations have been proved (fact finding) and if so those facts amount to unacceptable professional conduct, conduct that may bring the profession into disrepute or conviction, at any time, of a relevant offence; If this has been a negative decision for the teacher the case moves to the second stage to decide whether or not the panel should recommend to the Secretary of State that a prohibition order is made. This is a lifetime ban. However, the panel can recommend the minimum time to elapse before a prohibition order can be reviewed.

Should a teacher find that the decision of the Professional Conduct Panel results in a prohibition order there is a right of appeal to the High Court under Regulation 17 of the Teachers’ Disciplinary (England) Regulations 2012 and Order 52 of the Civil Procedure Rules.

In the recent case of R (O) v Secretary of State for Education and National College for Teaching and Leadership [2014] EWHC 22 (Admin) Stephen Morris QC (sitting as a Deputy High Court Judge) has provided a very useful summary of the various principles and approaches to be applied when there is an appeal to the High Court against the findings of fact the Professional Conduct Panel made.

The facts:

The Teaching Agency (now the National College for Teaching and Leadership) imposed a prohibition order on the appellant preventing her from teaching. This sanction arose from findings of 2 allegations of inappropriate conduct with pupils; 1 allegation of failure to follow safeguarding instructions (this was admitted); and 1 allegation of failure to follow reasonable management instructions (this was admitted). As a result the panel found her guilty of unacceptable professional conduct, and of conduct that might bring the teaching profession into disrepute. The appellant appealed against the panel’s findings of fact in relation to allegations 1 and 2, that it had failed to give sufficient reasons, and that it had breached Art 6 ECHR by failing to obtain additional material form the police and disclose it to her. The judge carefully analysed all of the evidence that was before the panel and had a written transcript of the hearing. The appeal was dismissed.

Held:
(1) The appeal under reg 17 of the Teachers’ Disciplinary (England) Regulations 2012 was by way of a re-hearing rather than a review.

(2) On an appeal against findings of fact the approach required the court to decide whether the decision below could be said to be wrong;

(3) On questions of primary fact (rather than professional judgment) although the lower court or tribunal was the primary decision maker, the High Court would correct material errors of fact, for example, insufficient evidence and mistake.

(4) Where findings of fact rested on evaluating the relevant weight of witness evidence the correct approach was;

(a) the appellate court would be reluctant to interfere with the findings of fact made below;
(b) witness demeanour is a significant factor;
(c) the starting point is that the lower court is in a better position to assess the credibility and reliability of witnesses;
(d) the appellate court would reach a different conclusion if the circumstances justified it as demeanour is not conclusive, and it may be that the advantage of having seen and heard the witnesses is not sufficient to explain or justify the conclusion of the court below:
(e) There will always be inconsistencies of detail in the evidence of witnesses. The task is to consider whether the core allegations are true:
(f) The more interventionist approach in Cheatle v General Medical Council [2009] EWHC 645 (Admin) would be preferred to the decision in Mubarak v General Medical Council [2008] EWHC 2830 (Admin)

(5) There is a general duty upon a judicial decision maker to give reasons for the decision it has reached. The judge must explain why he has reached his decision.

(6) The rationale for the duty to give reasons is twofold: first, to enable the parties, and in particular the losing party, to know why they have won or lost and to allow the losing party to consider whether to appeal; and secondly, to concentrate the mind of the decision maker.

(7) It is not necessary to deal with every argument nor to explain in great detail every factor in the judge’s reasoning. It is sufficient that what the judge says shows the parties, and if need be, an appeal court, the basis on which he has acted. It is not necessary to deal with each and every inconsistency or conflict of evidence specifically.

(8) The extent of the duty depends on the subject matter; and no hard and fast rules can be laid down. It will depend on the facts and issues of each case. For example, in a case which turns on competing expert evidence, the judge must enter upon the issues canvassed and explain why he prefers one case over the other.

(9) The adequacy of the reasons should take account of the knowledge, on the part of those to whom it is addressed, of the submissions and evidence before the decision maker.

(10) Where there was competing accounts of two witnesses on a dispute of fact the panel should explain why one account was preferred to another, albeit that the description could be brief and depended on the circumstances.

(11) An appeal on the basis of inadequate reasoning would be allowed only if, even with the benefit of knowledge of the evidence and the submissions made below it was not possible for the appeal court to understand why the judge below had reached the decision appealed. In this case the panel’s reasons were adequate.

(12) The civil standard of proof applied. It was not the case that the more serious the allegations the higher the standard of proof required.

(13) The panel’s conclusion on the facts of allegation 1 was justified and the decision of the panel was not wrong.

(14) There was no breach of the appellant’s Article 6 rights. She could have obtained the information from the police herself.

If a teacher is considering a High Court appeal it would be sensible to take legal advice before lodging the appeal. Based on a review of the evidence and the case transcript, a lawyer will be able to assess and advise you on the strength of your case taking into account the helpful check-list afforded by the above case. For more information on how Education Law Barristers can assist teachers in regulatory cases, contact us on: 0845 652 0451