Publishing of adverse findings can be a sufficiently serious sanction

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

In May 2016, ‘Superhead’ teacher Greg Wallace was found to be guilty of unacceptable professional conduct (UPC) by a professional conduct panel (PCP) of the National College of Teaching and Leadership (NCTL).  The allegations were that he had breached financial governance standards thereby failing to ensure the appropriate use of public funds, failed to declare a conflict of interest and disclosed confidential information to an individual in the course of a competitive bidding process.

Despite finding that the allegations proven amounted to UPC, the PCP decided not to make a recommendation to the Secretary of State for Education (SoS) that a prohibition order preventing him from teaching should be made.  This was due to the dedicated and devoted work Mr Wallace had carried out in the teaching profession, positive testimonials and a high level of remorse/insight shown. They stated that;

"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…….

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……."

Having considered the PCP’s decision, the SoS disagreed.  She considered that the Panel had taken insufficient account of the public interest considerations in this case, and that there was a real risk that public confidence in the profession would be undermined if a prohibition order was not made.  The SoS considered that the Panel had afforded too much weight to mitigating factors and decided to prohibit Greg Wallace from teaching, with the possibility of review in 2 years.

Intending to appeal this decision, Mr Wallace first made an application to the High Court under Part 52.19 of the Civil Procedure Rules for a costs cap to ensure that he could freely pursue his appeal. This was granted; see our summary at https://www.kingsleynapley.co.uk/comment/blogs/regulatory-blog/how-to-limit-your-costs-when-appealing-against-a-decision-of-a-regulatory-tribunal

The Substantive Appeal

A number of grounds of appeal were brought on behalf of Mr Wallace;

1. That the procedure operated by the Respondent under the legislation[1] (namely that having decided to pursue a case, they also made the ultimate decision on outcome) is not compliant with Article 6(1) of the ECHR as the decision-maker is not independent of the prosecutor;
2. That the Court should disagree on the merits with the Respondent’s conclusion and hold it to be ‘wrong’ under CPR 52.11;
3. That the decision of the Respondent was ‘wrong’ in that she failed to consider the publication of the Panel’s conclusion on UPC as a sanction in itself, and that that may have been sufficient;
4. That the Respondent failed to consider ‘proportionality’ properly, such that the prohibition order was disproportionate; and
5. The Respondent failed to give adequate reasons for her decision.

Decision

1. This ground of appeal was rejected; Parliament had decided that the SoS is responsible initially for investigating whether an allegation may amount to misconduct and determining if there is a case to answer. Thereafter an independent process is interposed whereby the PCP decide whether the allegations are factually proved and amount to UPC under the statutory scheme.  It is only if the PCP decide that the allegations are made out, and constitute UPC, that the SoS has any further involvement, and at that stage she cannot interfere with the Panel’s findings on UPC and is solely responsible for deciding which of the sanctions to impose [58]. In any event a short answer to Ground 1 is that, irrespective of whether the ultimate decision made at the NCTL was independent, Article 6(1) is satisfied by the existence of a right of appeal (Le Compte, Van Leuven and De Meyere v Belgium (1981) 4 EHRR) [61].

2. This ground was also rejected; it would not be proper for the Judge to allow the appeal simply because he/she disagrees on the merits with some aspects of the Respondent’s reasoning or the final outcome (see R (Lonnie v NCTL [2014] EWHC 4351).  The position may be different where there was a challenge to correct errors relating to findings of primary fact (as in O v Secretary of State for Education [2014] EWHC 22) rather than challenging matters of professional or expert judgement [71]. This has been even more recently reaffirmed in the unreported case of Kingston v Secretary of State for Education, QBD.

3. Holgate J found that the ‘unusual feature’ of the disciplinary scheme introduced by the 2011 Act and the 2012 Regulations was that where UPC has been established there are only two sanctions available to the Respondent; a prohibition order or to make no order but to publish her decision (which would include details of the UPC found proved). It was held that there were two important consequences of that feature; firstly, that publishing findings of this nature are highly likely to affect a teacher’s professional reputation and, to some extent, employment prospects and that this should be regarded as a ‘considerable sanction’ in itself.  Secondly, the proper application of a proportionality test may affect the outcome of many cases dealt with under the 2012 Regulations.

The Court did not suggest that in every case where a Panel upholds an allegation, the Respondent is obliged to consider the weight to be given to the sanction of publishing adverse findings. For example, there may be some cases where the conduct is so serious and there is no significant counterbalancing factor, that it is obvious that only a prohibition order would suffice[79-80].

It was therefore held that;

In my judgement, 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’. 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. [82]

Ground 3 was therefore upheld.

4. 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 amounted to serious irregularities rendering the Respondent’s decision ‘unjust’ and ‘wrong’.  This was distinguishable from the situation in the Lonnie case where the Court was being asked simply to disagree with the SoS’s conclusion on sanction. [93]

5. It was not necessary to consider this ground, given the above findings, however Holgate J stated that he would view the reasoning given by the Respondent as legally inadequate as there is substantial doubt as to where she took into account matters that she ought to.

Outcome

In the circumstances of the case, it was decided that there was ‘a combination of exceptional features’ which led the Court to deal with the matter itself rather than remitting it to the Respondent for further redetermination;

1. The PCP found that although some of the conduct of the Appellant was objectively dishonest, it was not subjectively so.  In addition it fell at the lower end of the scale of severity which might justify a prohibition order
2. The Respondent had accepted that PCP’s view that there was an unusually significant public interest in the Appellant being allowed to continue in his exceptional teaching work
3. The arguments were finely balanced and no more limited order could be made under the statutory scheme
4. When considering public confidence in the profession, one must assume that the member of the public would be well informed as to the specific attributes of the case (and in this case they would be aware of the successes of the teacher)
5. There were a number of personal mitigating circumstances.

In light of the above, the Court decided, applying the proportionality test, that the formal publication of the findings of misconduct, with the detrimental effects they are likely to have on the Appellant’s career, represents the least intrusive measure to be adopted.  The appeal was therefore allowed.

Although this case is relatively specific to the regulatory regime relating to teachers in England, it does act as a reminder that the principle of proportionality must always be at the centre of all decisions as to sanction in regulatory proceedings.  It must also feature heavily in the written determination to ensure that its centrality to the decision making process is recorded for all to see.