When technology glitches do not amount to a procedural irregularity

9 June 2021

As the world has made technological advances and more of us are working from home than ever before, we are all too familiar with computer problems whilst at work. However, whilst in some instances such glitches may give rise to a legitimate cause of action, the High Court determined that this will not always be the case.

Background:

Between 18 and 22 November 2019, a Professional Conduct Panel (“the Panel”) of the Teaching Regulation Authority (“TRA”) convened to consider a case brought against teacher Jonathan Ullmer (“Mr U”). The allegations before the Panel summarily involved his alleged inappropriate relationship with a pupil between 1990 and 1993. The Panel ultimately recommended that Mr U be subject to a Prohibition Order to prevent him from teaching without a period of review, which was subsequently issued by the Secretary of State for Education.

As per standard process, throughout the substantive hearing, a dedicated recorder was present in the room, and operated by the independent Legal Advisor to the Panel, to record the proceedings. The recording data was stored (successfully) on a removable SD card within the recorder. Following the hearing, the TRA followed its standard process in that the SD card was removed from the recording device and placed into a standard issue Department for Education (“DfE”) laptop. The relevant official uploaded the data files from the SD card to the case file. It appeared that the upload had completed successfully. The official then proceeded, as is usual practice, to delete the recording from the SD card.

On 9 January 2020, Mr U filed a statutory appeal pursuant to Regulation 17 of the Teachers' Disciplinary (England) Regulations 2012 (“the 2012 Regulations”) under Civil Procedure Rules (“CPR”) Part 52. Upon receipt of notice of Mr U’s appeal, the TRA sought to retrieve the audio recording of the substantive hearing, at which time it was discovered that the recording had not actually been uploaded to the case file.

The submissions:

Mr U had seven grounds of appeal.

On 27 August 2020, he sought to amend his application to add a new Ground 1A i.e. that the destruction of the audio amounted to such a serious procedural irregularity and that the appeal ought to be allowed on this basis alone.

The appeal was heard on 6 May 2021 before Lady Justice Steyn. The crux of Ground 1A was that the absence of a transcript of the Panel proceedings meant that the Court could not fairly fulfil its appellate function, in that it could not properly scrutinise the Panel’s findings. The preferred relief was for the Panel decision of 22 November 2019 to be quashed and the matter be reheard before the High Court to ensure that the scheme as a whole complied with Article 6 of the European Convention on Human Rights. In this vein, Mr U sought to rely on a number of precedent cases where a rehearing had been granted instead of a review, such as O v Secretary of State for Education and National College for Teaching and Leadership, Lonnie and Wallace v Secretary of State for Education, and  Zia v National College for Teaching and Leadership and Secretary of State for Education.

Before the High Court, Mr U’s counsel acknowledged that the transcript of the substantive TRA hearing was unnecessary to enable pursuit of five of his grounds. However, he submitted that the Court did require the transcript to consider three of his other grounds, specifically Grounds 2, 3 and 6. These focussed on the Panel’s decision to find the evidence of the pupil ‘compelling’.

The Secretary of State asked that permission to allow amendment of the appeal to include Ground 1A be refused because it did not have a real prospect of success under CPR 52.17. It was also submitted that Mr U had failed to demonstrate the need for a rehearing in the interests of justice. It was strenuously rejected that the loss of the audio recording amounted to an irregularity at all, taking into account the fact that the Panel had already delivered its full decision by the time that the audio was destroyed. Additionally, it was submitted that the Court should not determine the question as to whether Mr U’s appeal ought to proceed as a rehearing or a review.

The decision:

CPR 52.21 provides:

(1) Every appeal will be limited to a review of the decision of the lower court unless –

(a) a practice direction makes different provision for a particular category of appeal; or

(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.

(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.

Practice Direction 52D lists statutory appeals from other professional regulatory bodies which are to be heard by way of rehearing, but appeals from the Secretary of State for Education pursuant to Regulation 17 of the 2012 Regulations are not included in the list.

Lady Justice Steyn acknowledged that there are conflicting authorities of the High Court as to whether regulatory appeals with respect to teachers ought to proceed by way of review or rehearing. She upheld the reasoning of Lang J in Brittain at [23], Cavanagh J in Jones at [57] and Ouseley J in Duncan at [4] that the appeal ought to proceed by way of a rehearing to ensure that the statutory scheme complied with Article 6.

Although she granted Mr U’s request to amend his grounds of appeal to include Ground 1A, Lady Justice Steyn rejected his submission that the loss of the audio constituted a serious procedural irregularity within the meaning of CPR 52.21(3) and was required to enable the Court to engage in a broader form of examination of the case. 

With reference to Grounds 2 and 3, which referred to the weight given by the Panel to the evidence, Lady Justice Steyn confirmed that these are matters for the Panel and the High Court does not have authority to substitute its rationale in this regard for that of regulatory Panels.

Commentary:

Whilst it is of course customary to defer to the Rules specific to the respective regulatory body when dealing with a regulatory case, careful regard needs to be given to the CPR when it comes to appeals. CPR 52 and its Practice Direction are incredibly proscriptive with reference to the regulators that are able to lodge appeals with the High Court and the relief available i.e. rehearing or review.

FURTHER INFORMATION

If you have any questions or concerns about the content covered in this blog, please contact  Shannett Thompson or a member of the Regulatory team.

 

ABOUT THE AUTHORS

Shannett Thompson is a Partner in the Regulatory Team having trained in the NHS and commenced her career exclusively defending doctors. She provides regulatory advice predominantly in the health and social care and education sectors. Shannett has vast experience advising  regulated individuals,  businesses such as clinics and care homes and students in respect of disciplinary investigations. She is a member of the private prosecutions team providing advice to individuals, business and charities in respect of prosecutions were traditional agencies are unwilling or unable to act. In addition Shannett has built up a significant niche in advising investors and businesses in the cannabis sector.

 

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