R v National College For Teaching And Leadership (2014) EWHC 4351 (admin)
In 2009 Mr Lonnie worked as a teacher at Wilds school, a residential school that caters for pupils with a range of behavioural issues. On 6 May 2009 Mr Lonnie had an altercation with a pupil he had sent out of his class which culminated in him head-butting the pupil. The pupil received a chipped tooth and some bleeding. Mr Lonnie was prosecuted for assault and accepted he had used excessive force. In due course he received a caution and, after a considerable delay, his case was referred to the NCTL.
His case was heard by an NCTL Professional Conduct Panel in May 2014, some five years after the event. He accepted his conduct amounted to unacceptable professional conduct and conduct which might bring the profession into disrepute. After reviewing his case, however, the panel decided not to recommend a prohibition order. The Secretary of State rejected this recommendation and issued such an order with the possibility of review after two years. In doing so the Secretary of State commented that in her view the panel had not sufficiently balanced the mitigation with the level of violence used. Mr Lonnie appealed that outcome.
The court analysed the NCTL framework as laid down by the Education Act 2011. Unlike its predecessor, the General Teaching Council, it is clear that the ultimate responsibility for making a prohibition order rests with the Secretary of State. This is the only form of sanction open to her. In coming to this decision,
“She is required to consider the recommendation of a professional conduct panel…but it is a consideration of the recommendation which is required. The regulations do not stipulate to follow the recommendation save in exceptional circumstances, or any language such as that.”
As for the role of the court on an appeal, it was accepted that part 52.11 Civil Procedure Rules applied. An appeal was by way of rehearing, and the decision could be overturned if it was (a) wrong, or (b) unjust because of a serious procedural irregularity. In considering this threshold, the judge emphasised that it was not for him to remake the decision of the Secretary of State. Indeed, he noted that,
“If it were left purely up to me, I can see force in the argument that where a man behaved in a particular way in 2009 and is only proceeded against in 2014, and where there is at least some evidence that he had been unable to pursue his profession as a teacher in the interim, then to impose a prohibition order on him is perhaps less than appropriate.”
Nonetheless, he could not say that the decision was wrong. He had to accord respect to the Secretary of State’s professional judgment. He also relied on the well established principles in Gupta v General Medical Council (2001) UKPC 61, namely importance which must be attached to supporting the public interest, and the reputation of the profession.
This case is perhaps of limited assistance to regulatory proceedings more widely. It does, however, shine a light of the unusual way in which NCTL cases operate.
Perhaps as a result of a perceived lack of confidence in the General Teaching Council, the ultimate decision regarding a prohibition order now resides in the Secretary of State’s hands alone. In other regulatory proceedings, the court gives great respect to the professional judgment of a panel regarding sanction. It also respects the fact the panel is in the best position to consider issues such as insight since it has heard the evidence live. With NCTL proceedings, it is difficult to see how these arguments can lend themselves in favour of supporting a decision on sanction by the Secretary of State. On the contrary, it may properly be said that they argue against supporting such a decision when, as here, it runs contrary to the panel’s recommendation.
The judgment in this case does not attempt to grapple with that issue. On the basis of this reasoning, it appears the court is happy to give discretion and respect to a decision on sanction even when this is contrary to the professional judgment of the panel which considered the case. It remains to be seen if that can really remain a tenable position.