A new frontier in the boundary between professional and private life – solicitors’ undertakings
High Court holds that reasoning of Professional Conduct Panel of Teaching Agency (now NCTL) was adequate, however examples of where witnesses were found to be credible or incredible, may be useful.
Judgement date: 17 January 2014
A teacher, O, appealed against a Prohibition Order made on 7 March 2013 by the Secretary of State for Education under s141B of the Education Act 2002, which prohibited her indefinitely from teaching and barred her from seeking restoration of her eligibility to teach.
The Prohibition Order was made on the recommendation of a Professional Conduct Panel (the Panel) of the Teaching Agency (which has now merged with the National College for School Leadership to form the National College for Teaching and Leadership (NCTL)).
O faced a hearing in March 2013, at which the Panel found that she had been guilty of unacceptable professional conduct and of conduct that might bring the teaching profession into disrepute. The findings of fact upon which these judgements were made related to O’s behaviour between 2007 and 2010, whilst working as a French teacher at a School anonymised for the purposes of this hearing (the School).
In summary it was alleged that O had started an inappropriate relationship with Pupil A in 2007 (when Pupil A was 15/16), which had started during a school trip to France. It was alleged that there were a number of incidents between O and Pupil A, including a number of occasions where they went to a store cupboard and hugged, kissed and were sexually intimate. O denied that these encounters took place, essentially claiming that Pupil A is an attention seeker with a known history of making up stories.
It was further alleged that O had an inappropriate relationship with another pupil, Pupil B, by communicating with her personally by email, MSN and on music websites and that she had failed to report a safeguarding matter relating to Pupil B, thereby failing to follow appropriate safeguarding procedures.
Between May 2009 and May 2010 a police investigation took place in relation to these matters, however a decision was taken by the CPS not to charge O as there were ‘serious credibility issues’. The police officer in charge of the investigation wished to appeal this decision as she indicated that she believed Pupil A’s account. Nonetheless, no criminal charges were brought.
The School carried out their own investigation, which resulted in O’s dismissal on the basis that O had formed inappropriate relationships with Pupil A and B, even if not proved to have been sexual in nature.
The matter then ultimately came before the Teaching Agency, as it then was, in March 2013. O chose not to physically attend the hearing (it was said that she could not face coming to the same building that the hearing was going to be taking place in) and it was decided that she would engage in the hearing by means of telephone-link. She was assisted by a solicitor, KL, who was acting by way of the legal help scheme. Pupil A gave evidence via video-link, and she was questioned by the Presenting Officer, KL and the Panel. The Panel did not hear directly from Pupil B. The Panel found all the particulars except one proven. They found Pupil A to be a credible witness, whose evidence was consistent and her answers open and honest. Conversely they were not satisfied that the evidence and version of events which O gave to the School, Police and to the Panel had been consistent and found that her answers were not given openly and fully.
On behalf of O it was argued that;
i. The decision was wrong on the facts: Pupil A’s account was not consistent and was littered with numerous inconsistencies;
ii. The reasons given by the Panel were inadequate: the Panel gave no reasons for finding that Pupil A’s account was consistent and why they found O’s evidence inconsistent;
iii. There had been a breach of Article 6 ECHR and the principal of equality of arms: the Teaching Agency should have obtained further information that was available from the Police
The question for the Court was whether the Decision was ‘wrong’ or ‘unjust because of a serious irregularity’.
Having considered number of authorities including English v Emery Reimbold & Strick Ltd  EWCA Civ 605, Mubarak v General Medical Council  EWHC 2830 (Admin), Re F (Children)  EWCA Civ 828 and Cheatle v General Medical Council  EWHC 645 (Admin) the Court gave a helpful synopsis of the approach of the appellate court in such matters, namely that they will be reluctant to interfere with findings of fact made by the lower courts, that demeanour is not necessarily a good or the best test of credibility but that it is a significant factor, and that the starting point is that the lower court is in a better position to assess credibility and reliability of witnesses. If there was thought to be a tension between the cases of Mubarak v General Medical Council and Cheatle v General Medical Council as to the approach on appeal to findings of fact, the Court adopted the ‘more interventionist approach indicated by Cheatle’. 
The Court helpfully summarised the approach to be adopted where challenges are brought relating to inadequate reasons [59-62]. Having considered the relevant authorities of Gupta (Prabha) v General Medical Council  UKPC 61, Mubarak v General Medical Council, Cheatle v General Medical Council and Phipps v General Medical Council  EWCA Civ 397, it was reiterated that the general duty is that the judge must explain why he has reached a decision, such that the losing party is able to know why they have lost and whether to consider an appeal. It is not necessary to deal with each and every inconsistency or conflict of evidence specifically and the extent of the duty depends on the subject matter. It was held that; ‘in my judgement, where a court decides to accept evidence of X over Y, then some explanation is required of why X has been preferred albeit that explanation can be relatively brief, and depends on the circumstances’. 
The Court also summarized the position in relation to the relevant standard of proof in the light of the decisions in Re B (Children) UKHL 35 and Re S-B (Children)  UKSC 17, where the case of Re H (Minors)  A.C. 563 was considered by the House of Lords and Supreme Court respectively [66-67]; there is only one civil standard of proof in all civil cases, and there is no heighted civil standard of proof in particular classes of case. The inherent probability or improbability of an event is a matter which can be taken into account when weighing probabilities and in deciding whether an event occurred but it is not a rule that the more serious the allegation the less likely it is to have occurred.
It was held that;
i). Having considered the evidence of Pupil A and O and their respective accounts, there was very substantial material to support the Panel’s findings in relation to Pupil A’s credibility. Whilst there may have been some differences, Pupil A’s evidence in relation to the core elements and the important detail of the six main incidents was consistent. In their Reasons the Panel had expressly noted the fact that Pupil A was prepared to give evidence and submit herself to questioning and personal stress. It had been argued by O that the fact that Pupil A gave evidence cannot be evidence of the truth of her allegations. It was held that ‘whilst this was not an overwhelming reason to conclude that Pupil A was credible, it was a legitimate factor for the Panel to have taken into account in assessing the credibility of A’s evidence’. . It was essentially O’s own fault that she could not assess the demeanour of Pupil A as she had chosen not to attend. It was not accepted that the relevance of her demeanour should be discounted or reduced because Pupil A gave evidence by video link. The Panel were entitled to find that the fact that A had given so much detail was relevant to credibility; ‘great detail may be difficult to fabricate and particular details may well be an indication of genuine recollection, rather than reconstruction’. The Panel were also entitled to find that A had no motivation to lie and that O’s evidence was not consistent, open or full.
ii). It was held that the Panel’s decision on the facts were ‘cogent and justified’. The panel took into account ‘an array of factors in deciding to accept Pupil A’s account and reject that of the appellant’. It was right to say that the Panel did not give examples of why and where it found the evidence to be consistent or inconsistent and it may have been helpful if it had done so, however, the absence of this did not mean that the reasons were inadequate in this particular case. 
iii). The Ground of Appeal relating to Article 6 was rejected; the Appellant was just as much in a position to seek any additional material from the Police as the Teaching Agency and she did not do so, nor did she raise this matter before the Panel.
The appeal was accordingly dismissed. A further contingent Ground of Appeal in relation to a disproportionate sanction was abandoned on the basis that if Particular 1 (A) was found proved, then the sanction was not disproportionate.
Over and above there being a number of helpful passages summarising important principles in the healthcare regulatory arena, this case usefully sets out what is to be expected from a panel in terms of reasoning. It endorses a common sense approach which makes it clear that whilst the requirement for detailed reasons will depend on the specific case, the key principle remains ‘does the loser know why they have lost’. In cases which turn on direct factual conflict, it may well be helpful for panels to provide specific examples of areas where they found the witnesses to be credible or incredible, but the absence of this is not necessarily fatal.
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