Acting to stop harm: the FCA and Appointed Representatives
Anwar & Ahmed v National College for Teaching and Leadership (1) The Secretary of State for Education (2)  EWHC 2507 (Admin)
In late November 2013, a letter, which later became known as the “Trojan Horse” letter, came into the possession of Birmingham City Council and was published in the media in 2014. The letter described a strategy to destabilise a number of schools in Birmingham in order to take them over and run them on strict Islamic principles. As a result of the letter OFSTED inspected a number of schools suspected of being targets of the alleged strategy, including the school formerly known as Park View School (‘Park View’).
In mid-2015 the National College for Teaching and Leadership (NCTL), which regulates teachers working in England, brought charges of unacceptable professional conduct against a number of teachers at Park View, including members of the Senior Leadership Team (SLT) and other teachers, including the Appellants, Mr Anwar and Mr Ahmed. Mr Anwar began working at Park View in 2009 and was appointed Head of Modern Languages in 2012, remaining in that role until he was suspended in November 2014. He was also a Governor of Nansen Primary School ('Nansen'), which was an Academy within the Park View Educational Trust. Mr Ahmed began working at Park View in 2008 and was appointed as Head of Personal Development in September 2013, he was suspended from duty on 29 September 2014.
The NCTL decided to bring proceedings before three separate panels; the first involving five members of the SLT (“the SLT proceedings”), the second involving the Appellants and another teacher and the third involving a further four teachers.
The specific allegations brought against the Appellants by the NCTL differed but the overarching allegation was that “On or before 31 March 2014 you agreed with others to the inclusion of an undue amount of religious influence in the education of pupils...”.
On 9 February 2016 a professional conduct panel of the NCTL determined that the Appellants were each guilty of unacceptable professional conduct. Mr Anwar was prohibited from teaching in England, subject to the right to apply for a review of that prohibition after six years and Mr Anwar was prohibited from teaching in England, subject to the right to apply for review after three years. The Appellants appealed under Regulation 17 of the Teachers' Disciplinary (England) Regulations 2012 on two grounds:
Ground 1: There was serious procedural impropriety in the Panel’s fact finding process, in particular by reason of a failure to give proper disclosure.
Ground 2: The Panel’s findings were perverse and took into account irrelevant and improper considerations.
The appeal was heard before Mr Justice Phillips on 5 July 2016, with judgment being handed down on 13 October 2016.
Mr Ahmed submitted that the NCTL should have proceeded first against the SLT as it was unfair to determine the charges against him prior to making any findings against the SLT. He claimed he had only been following their directions and instructions in the performance of his role. Counsel for Mr Anwar also criticised the NCTL’s decision to proceed first against the Appellants, separately from the SLT. He highlighted that the principle questions in both sets of proceedings were (i) whether there was an undue amount of religious influence in the schools and (ii) whether there was an improper agreement between teachers and governors in that regard. Mr Anwar's Counsel stopped short of submitting that pursuing the Appellants separately amounted to a serious procedural irregularity. The focus of his submissions was that if the NCTL decided to pursue concurrent proceedings then it was obliged to give the fullest disclosure, including material from the SLT proceedings. Only one document had been disclosed from those proceedings and it was submitted that the NCTL should have at least disclosed the following:
Counsel on behalf of the Respondents submitted that in respect of the witness statements of the SLT these were bare denials and therefore not disclosable. In relation to the expert reports, it was submitted that these were not crucial to the issue of what the Appellants did in this case and whether that evidenced a broad agreement as alleged. Further, the Appellants could have adduced their own expert evidence. Finally in relation to the emails it was submitted that the suggestion that the content meant Mr Faraz had an open mind was contradicted by Witness C’s evidence, which the Panel regarded as credible.
Mr Justice Phillips accepted that even though the NCTL was alleging an overarching conspiracy or agreement, it was not obliged to include all the teachers alleged to have been involved in one joint hearing. He did however, have considerable doubts as to the fairness of proceeding first against teachers in advance of members of the SLT. He also had doubts regarding the fairness of proceedings against Mr Anwar separately from the proceedings against Mr Faraz. Mr Justice Philips stated that it was unnecessary for him to consider whether the structure and timing of the hearings amounted to a serious procedural irregularity because he was satisfied that having chosen to pursue the Appellants separately, the NCTL was obliged to disclose material from the SLT proceedings which might assist the Appellants’ case or damage its own. In the absence of voluntary disclosure, the Panel should have directed that disclosure be given. Mr Justice Philips did not accept the submissions made by Counsel on behalf of the Respondents, commenting that the statements served by the SLT could not on any basis be regarded as mere denials and even if they had been, they were still highly relevant. For similar reasons, the expert reports served in the SLT proceedings should also have been disclosed in his view and the fact that the Appellants could have served their own expert reports did not absolve the NCTL of their disclosure obligations. Finally, in respect of the email exchanges, he criticised the submission that the Panel accepted Witness C’s evidence because it did so without sight of the email or other evidence.
Mr Justice Philips concluded that
“The failure of the NCTL to give (and of the Panel to order) the disclosure outlined above was, in my judgment, a sufficiently serious procedural irregularity to render the proceedings against the Appellants unjust. On that basis both appeals must be allowed”.
Given the decision made in respect of the first ground it was unnecessary for Mr Justice Philips to consider the second ground of the appeal.
As a result of the judgment, the Prohibition Orders against the Appellants were to be set aside and Mr Justice Philips indicated he would hear further arguments from the parties if he was invited to order a new hearing.
This case is a reminder to regulators of their on-going duty of disclosure towards registrants. This is particularly important in circumstances where there may be separate hearings dealing with matters arising from the same facts.
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