FH v Secretary of State for Education [2005] EWCST 552 (PT) (7 February 2006)
FH

-v-

The Secretary of State for Education and Skills

Application No.  [2005] 552.PT

Before:
Mr John Reddish (Chairman)
Dr Sati Ariyanayagam
Mr David Griffiths

Hearing date:  19 January 2006

Appeal
On 8 September 2005 the appellant appealed, under section 144 of the Education Act 2002 and regulation 12(1) of the Education (Prohibition from Teaching or Working with Children) Regulations 2003, against the direction of the Secretary of State, given on 10 June 2005 under section 142 of the 2002 Act, that she may not carry out work to which that section applies.

Hearing
In her initial application form the appellant requested that the hearing of her appeal “not be oral”.  In his response to the appeal, the Treasury Solicitor, acting on behalf of the Secretary of State, objected to a “paper hearing” on the ground that there were “a number of unclear factual evidential issues” which needed to be put to the appellant.
On 16 November 2005 the President directed that, having regard to the issues to be determined, there should be an oral hearing.
On 18 November 2005 the appellant asked the President to vary his directions.  She said that she wanted the hearing to be dealt with on the papers only on the grounds (i) that, since she would be representing herself, she would be more fairly and impartially treated on paper; (ii) that her medical condition would make it impossible for her to attend a hearing and (iii) that the written evidence was perfectly clear and would not be added to at an oral hearing.
The Treasury Solicitor then said that, after further consideration, the Secretary of State was content for the matter to be dealt with on the papers only.
On 22 November 2005 the President amended his order and directed that the appeal should be dealt with on the basis of the documents and witness statements submitted by the parties.
Accordingly, the Tribunal heard no oral evidence or submissions but considered all of the witness statements and papers submitted by the parties save for the documents exhibited by the appellant to her statement and submissions which came into being after 10 June 2005 and were therefore not available to the Secretary of State when she made her decision.

Representations
On 16 January 2006 the appellant presented a written “skeleton argument” on her own behalf.  On 17 January 2006 Ms Lisa Busch, counsel instructed by the Treasury Solicitor, presented a written “skeleton argument” on behalf of the Secretary of State.  The Tribunal received and gave careful consideration to both of these written submissions.

Facts
The material facts found by the Tribunal were as follows:

1.	On 1 December 2001 the appellant commenced employment as an Advanced Skills Teacher of English based at F School.  From 1 September 1998, she had been employed at F School as Head of English and Media Studies.

2.	In her letter of appointment dated 26 April 2003 the local education authority drew the appellant’s attention to the code of conduct “intended to help staff minimise the risk of being accused of improper conduct towards the young people with whom they come into contact during their work … contained in the Schools’ Personnel Handbook” and suggested that, if she had any doubts about the advice contained in this document, she should consult her head teacher.

3.	At paragraph 1.7(a) of the code of conduct the following guidance was given:
“As a general principle … employees must not make unnecessary comments to and/or about pupils which could be construed to have sexual connotation”.

4.	In their Personnel Handbook the education authority also gave examples of “behaviour that could lead to summary dismissal”.  These included: “any sexual approach or response to a pupil or the development of an intimate relationship with a pupil, whatever the provocation”.

5.	During the course of the summer term 2003, G was a pupil in the appellant’s Year 11 English class. G was born in February 1987 and was therefore 16 years old.  G completed his GCSE examinations at the end of that school term and was due to start his A-level courses at F School in September 2003.

6.	On 10 July 2003 the appellant sent an email to G.  The “subject” given to this electronic communication by the appellant was: “Hot, horny and waiting for it”.  The appellant concluded her remarks, which were not concerned with academic matters or any other matters which might have been an appropriate subject for discussion between a pupil and his teacher, with the words: “Gagging 4 it!!!!! So give in and give it to me.  Love you, love you, love you”.

7.	On 14 July 2003 the appellant sent a further email to G in a similar vein, referring to him as her “sexy clinginess” and saying that, having not seen him for 46 hours, she could not wait to see him again.

8.	On 16 July 2003 the appellant again communicated with G by email. Her communication contained further observations similar to those in her previous emails.  She referred to G’s “desk in the corner where you used to sit in class … in front of me where I sat when you were confessing your lustful illicit thoughts (ooooh yeah) and of course the swivel chair itself …”.

9.	On 17 July 2003 the appellant sent another email to G in which she expressed her love for him and made a series of sexually provocative observations.  On the same day G sent an email to the appellant in which he referred to the fact that his mother had become distressed when she had realised that he had been “lying for weeks” about his movements.  G also expressed his own distress arising from the current situation and asked the appellant to “make it better”.

10.	On 18 July 2003 the appellant sent an email to G in which she reminded him that she loved him and was missing him.

11.	On 19 July 2003 the appellant received a telephone call from G’s father.  During her conversation with G’s father the appellant promised to bring her relationship with G to an end forthwith.  The appellant then drafted a letter to G’s parents. She said that she would like to offer her “apologies for the distress caused by the situation which had arisen” between herself and G. The appellant added:
“While I should have had the foresight to prevent it occurring in the first place, the fact is that the situation arose from a friendship and shared interests, and only recently developed out of school, into something more.
However, you should know that we have ended the relationship following your advice to G …
Obviously, although the relationship has ended, you still must have concerns about G and I being in the same school environment.  I want the best for G and, like him, would wish him to stay at [F School]. As it is obviously not viable for us both to be at F, I intend to look for another post at a different school …. I would hope to be away from F by the end of the Autumn term, if not by half term.  In the meantime, I will arrange for a colleague to teach the ‘AS’ Literature course which G will be attending …”. 

12.	The appellant did not send this letter to G’s parents.  However, she left the draft in a file on the portable computer made available to her by the school for her own use.

13.	On or about 21 July 2003 the appellant handed the portable computer to a member of the school’s IT department for investigation and repair.  The employee who examined the files stored on the computer’s hard disc saw the draft letter prepared by the appellant on 19 July 2003 and drew the attention of Mr H, the school’s Network Manager, to it.  Mr H assumed that the matter there referred to was being dealt with by the Head Teacher and took no further steps at that stage.  However, he retained files from the computer used by the appellant “in a secure area of the network”.

14.	On 22 July 2003 G sent an email to the appellant in which he repeatedly expressed his love for her.

15.	On 23 July 2003 G sent an email to the appellant in which he referred to falling asleep in her arms and arranged to meet her on the following day.

16.	During August 2003 the appellant and G exchanged emails in which they referred, in explicit terms, to their sexual relationship.

17.	On 21 August 2003 Mr H informed the Head Teacher and the Deputy Head Teacher of what he had seen on the computer used by the appellant.  He also conducted a more detailed investigation of that computer and found, in the temporary internet files, the emails that had passed between the appellant and G.

18.	On 2 September 2003, G had a conversation with a police officer during which he admitted that he was having a sexual relationship with the appellant and said that they had been engaging in sexual activity for “a month at most, the end of study leave, after my exams”.  G also said that he had stayed overnight with the appellant at her mother’s house “once or twice”.  The police officer made notes of the conversation, which G endorsed as an accurate record.

19.	On 3 September 2003 the appellant’s employers suspended her from her duties.

20.	After the end of the summer holidays, in September 2003, G returned to F School.

21.	G’s father made a statement to the police on 8 September 2003. He said, inter alia, that:

In July 2003 he had become concerned because G was frequently away from home.  He felt that “he had probably found himself a girlfriend and wanted to keep it a secret”.

On 19 July 2003, having retrieved the last telephone number called by G, he had telephoned that number and had spoken to the appellant.  He had told her that “it had to stop straight away” and she had agreed.

He had also told the appellant that, if he reported what had happened, she would be put on List 99 and would not work at a school again.

The appellant had told him that she would “get a job elsewhere” but that that would not be possible until the October half term.

He had told the appellant that G was “besotted with her” and that she would therefore have to ignore the attempts he would probably make to contact her again and she had agreed.

On 27 July 2003 G had admitted to him that he had spent that day with the appellant at a shopping complex and had begged him not to report the matter to the local education authority.

Throughout the summer holidays G had disappeared “for days on end” leading him and his wife to suspect that G was spending time with the appellant.

22.	On 8 September 2003 G’s mother also made a statement to the police in which she said, inter alia, that:

She had noticed a change in her son’s behaviour after the start of the school term in April 2003.

When she had challenged G about his strange behaviour he had told her it was a private matter.

She had seen a photograph of G and the appellant embracing at a school function but, when she confronted G with her suspicion that his relationship with his teacher might be inappropriate, he expressed surprise and said that the appellant would find it funny that his mother had had such suspicions.

On 17 July 2003 she had discovered that G had lied to her about his whereabouts.

On 18 July 2003 she had told G that “this thing” with the appellant had to stop but he had rejected that suggestion and had indicated to her he was “sure they would not be found out”.

On 24 August 2003 G had admitted to his maternal aunt that “the relationship with his English teacher was still going on”.

On 29 August 2003 G had admitted to her that he had seen the appellant “a few times” and had received an expensive gift from her following his success in his GCSE examinations.

23.	On 10 September 2003 Mr H made a statement to the police in which he described all of the relevant actions that he had taken in relation to the computer used by the appellant.

24.	In October 2003 the Crown Prosecution Service decided not to institute any criminal proceedings against the appellant.

25.	On 14 November 2003 the appellant attended an “investigative meeting” convened by her employers at a local Community Learning Centre.  Ms C, the Acting Head Teacher of the school, attended on behalf of the governing body, advised by Ms EC, a personnel officer of the local education authority.  On 20 November 2003 Ms C sent the appellant a written record of the meeting.  Ms C recorded, inter alia, that the appellant had

said that her relationship with G was purely a friendship and that there had never been a sexual relationship;

been unable to explain why G had told the police that he did have a sexual relationship with her;

denied that G had ever been to her mother’s house;

admitted to having strong feelings for, and a sexual attraction to, G;

explained that, at the time when she was engaging in email correspondence with G, she did not believe that he was a pupil of the school any longer and thought that he was moving on to study at a college;

explained that, after she had drafted the letter of 19 July 2003, she had found out later, in her conversations with G’s parents, that G intended to go to a college;

described how she had had “a nervous breakdown” in July 2002, had divorced her husband and distanced herself from her friends and had been prescribed anti-depressant medication, which she later stopped taking without seeking medical advice, resulting in “an increasing feeling of unreality”; and

assured Ms C her that her relationship with G had come to an end.

26.	At the conclusion of the meeting on 14 November 2003, Ms C read out a statement informing the appellant that, while she remained suspended, she must not meet or have any contact with G and that it would be a “serious disciplinary offence in itself” if she were to disregard that instruction.

27.	On 26 November 2003 Ms C interviewed G’s parents and made notes of what was said.  She noted, inter alia, that G’s mother told her that:

G had admitted, in her presence, that he and the appellant had had a sexual relationship.

G and the appellant had frequent contact, spending evenings and weekends together.

G “had never talked about going elsewhere for the 6th Form” and was adamant that he wanted to stay at F School.

G had asked her not to give evidence against the appellant “because he thought their relationship would affect her job”.

28.	Ms C noted, inter alia, that G’s father told her that:

After the investigative meeting on 14 November 2003, G did not meet with the appellant until 23 November 2003 but then did so in a clandestine manner.

In his view, the appellant was “extremely manipulative and dangerous to youngsters”, citing a document written by the appellant in which she appeared to have laid the blame on G for the situation in which she found herself.

G had declined to consider going to another school or college to take his A levels.

When G became involved with the appellant, his behaviour changed completely and he became hostile and rude to his parents.

G had “been distressed at the name calling from other pupils” who were aware of the situation.

29.	On 21 and 22 December 2003 G’s father wrote to the local education authority enclosing copies of documents (theatre tickets, a card and a sheet from a writing pad) which, he said, suggested a continuing relationship between G and the appellant.

30.	In January 2004 G’s father informed the education authority that G had admitted to him that he had met with the appellant on 23 and 30 November 2003, and on 6, 14 and 20 December 2003.

31.	Also in January 2004 Ms P made a written statement, confirming an earlier oral report to Mr B, the new Acting Head Teacher of the school, that she had seen the appellant walking hand in hand with G in a shopping complex on 29 December 2003.  In her written statement Ms P gave the date of her observation as 29 January 2004.

32.	On 19th January 2004 the appellant attended a further “investigative meeting” with Mr B, who was assisted by Ms EC.  After the meeting Mr B sent the appellant a written record of the discussions that had taken place.  He recorded, inter alia, that the appellant had:

said that she could not comment on the allegations made by G’s father;

denied meeting G as alleged by his father;

denied meeting G during the Christmas holidays;

asked about the leaving date for Year 11 students and had said that this was “crucial to her defence” because she “believed that, as he [G] was no longer a student of the school” her “relationship with him during that period was acceptable”; and

mentioned possible resignation because “the whole process was having a detrimental effect” upon her mental health and she did not think that she would be “well enough to attend a hearing”.

33.	 On 23 January 2004 Mr B informed the appellant in writing that the school did not accept her assertion that she did not have an inappropriate sexual relationship with G and proposed “to convene a Panel of Governors to consider a recommendation that she should cease to work at the school on grounds of gross misconduct”.

34.	On 31 March 2004 Mrs S, a teacher at the school, reported in writing that she had seen the appellant and G walking together, holding hands outside a shopping centre on 27 March 2004.

35.	On 2 April 2004 G’s mother told the Deputy Head Teacher of the school that

She was not surprised that G had been seen with the appellant.

She was convinced that the relationship between G and the appellant had been continuing since the previous summer despite the appellant’s claims to the contrary.

G had spent several evenings away from home and when challenged about where he had been had responded by saying: “where do you think?”

G had specifically admitted to her on two occasions that he was still seeing the appellant

G was in daily contact with the appellant by email.

36.	In April 2004 Ms K, the new Head Teacher of the school, prepared a document entitled “Management Statement of Case” in anticipation of a “dismissal hearing”. She summarised all of the matters relied upon in support of her conclusion that she could “no longer have trust and confidence in [the appellant] as an employee of the school” and produced, as appendices lettered A to S, the documents to which she referred.

37.	On 3 May 2004 the appellant resigned from her position at the school with effect from 7 May 2004.  In her letter of resignation the appellant complained that credence had been given to G’s parents, whose “fabrications” had, she said, been “accepted throughout this investigation” and further complained that her “query regarding when a pupil is deemed to have left school at the end of Year 11” had not been “clarified”.

38.	On 23 May 2004 G’s parents wrote to the local education authority.  They reported that G was “intoxicated” by the appellant and was spending “every minute of his spare time with her”.  They also indicated their wish that every possible action be taken to ensure that the appellant would never be allowed to teach vulnerable pupils again.

39.	On 4 June 2004 the local education authority informed the appellant that they would be forwarding details of her case to “the DfES teachers’ misconduct team” who would determine her suitability to continue in teaching.

40.	On 7 February 2005 an official in the Children’s Safeguarding Operations Unit (List 99) wrote to the appellant informing her that her case had come to the notice of the Secretary of State and that, in light of the information that she had received, the Secretary of State had to consider whether to take action under section 142 of the 2002 Act.  The official invited the appellant to make representations about the matter.

41.	In response to this letter, the appellant provided the Secretary of State with detail representations and evidence, including an outline of her teaching career, a “personal statement to counter allegation of inappropriate relationship”, an extract from a letter she had received from G’s father, a written statement by G, copies of six professional references, copies of several professional assessments of her skills, copies of four unsolicited commendations from colleagues, copies of three commendatory letters from parents of pupils whom she had taught and copies of five supportive letters from pupils.

42.	In her “personal statement” the appellant made, inter alia, the following observations:

G was not “deemed to be still a pupil” at the school: her relationship with him “began in July, after he had left F School and after all his exams were finished”.

“As regards the continuation of education into the Sixth Form, G had been clear” with her “that he had no intention of attending [F School] and, therefore”, she was “led to believe that he would have no further connection with the school”.

Even if “the school was expecting G to attend … as a member of the Sixth Form”, she was “aware that many pupils who declare their intentions to stay on, do not attend finally”

If she had believed that G was to attend the same school, “the relationship would never have developed at that time”.

The language contained in the emails she had sent to G during July and August 2003 “in a private situation” was “of nobody else’s concern” and she did not expect her “private conversations or lifestyle choices” to be a matter for investigation, as they fell outside the “remit of the school and outside the remit of G being a pupil at the school, as they were conducted some time after the end of G’s GCSE exams, and after his status would be considered as being that of ‘pupil’”.

She had been in G’s company on 27 March 2004, as she had arranged to meet him in a public place to tell him that she proposed to move away and that, once the investigation was over, he could contact her again if he wished.

The dates that G’s father had given as dates upon which G had spent time with her were “not factual”.

She and G had continued to be in a relationship since she had resigned from her position at the school and their relationship (which was, she said, “neither illegal, subversive, offensive or a matter for anyone else’s judgment”) was continuing “as a serious commitment between equals”.

43.	In G’s statement, submitted by the appellant, he asserted that his relationship with the appellant did not start until after he had left school and said:
“When my relationship with [the appellant] started to develop in the summer holiday, I knew that I would not be able to go back to F School and she could no longer be my teacher. I did not particularly want to leave F School, but I was so happy with [the appellant] and it was much easier for me to go elsewhere than for her to leave … . I was intent on attending H College, until the allegation had been made against [the appellant].  When that happened, it didn’t seem like it would make any difference what I did, as I knew [the appellant] would not wish to return, so I went back to F where I knew I had a place.”

44.	G also asserted, in his statement, that he had lied to the police when he told them that he was in a sexual relationship with the appellant and he did so “more to anger [his] parents than anything”.

45.	On 16 February 2005 and again on 29 April 2005, the Head Teacher of the independent school where the appellant commenced employment in September 2004 wrote to the Children’s Safeguarding Operations Unit.  She described the appellant as an outstanding and inspirational teacher and suggested that it would be “a huge loss to the teaching profession” if she were not allowed to continue with her vocation.

46.	On 10 June 2005 an official in the Children’s Safeguarding Operations Unit (List 99) wrote to the appellant informing her that the Secretary of State had carefully considered all of the information put before her and had decided to bar the appellant from carrying out work to which section 142 of the 2002 Act applies on the grounds of her misconduct. In this letter the matters which the Secretary of State had taken into account in reaching her decision, including the appellant’s representations and the supportive testimonials upon which the appellant relied were noted.  The official then said:

“The Secretary of State has considered the nature and content of the emails exchanged between yourself and the pupil only a short period of time after he had left the school and concludes these suggest there may have been some element of inappropriateness in the relationship prior to the pupil leaving school. She also notes that you were in contact with the pupil between his return to the school in September 2003 and your resignation in May 2004 despite the direction of the school and the wishes of the pupil’s parents.

[The] Secretary of State has noted that you have been a teacher for more than 10 years and she is not aware of any previous concerns or complaints about your conduct with male pupils. However, she considers your conduct on this occasion not only fell far below the high standards expected of members of the teaching profession but also constituted an abuse of the position of trust you held as a teacher …”.

47.	On 28 November 2005, in response to a direction made by the President on 16 November 2005, counsel for the Secretary of State submitted the “Particulars of Misconduct” alleged against the appellant.  She recorded that:

“The misconduct alleged against the Applicant in the present case is that she engaged in behaviour that involved a breach of trust and a breach of the standards of propriety expected of her profession and that involved an abuse of her professional position, in that in or around mid-2003 she engaged in a sexual or otherwise inappropriate relationship with a sixteen year-old pupil at the school where she was employed as a teacher, teaching, among other pupils, G, and/or in that she subsequently continued to remain in such a relationship with G thereafter, while he continued to be a pupil at the school and she continued to be employed as a teacher there.”

Counsel also recited the matters relied upon by the Secretary of State, including the appellant’s failure to resign from her post until May 2004, her failure to demonstrate any remorse with respect to her conduct, her reliance upon “an argument to the effect that her relationship with G did not commence until after G had finished his GCSEs and was no longer a “pupil” at the school and her failure to acknowledge that her conduct with respect to G was wrong.

The law

48.	 Section 142(1)(a) of the Education Act 2002 provides that the Secretary of State, in relation to England, may direct that a person may not carry out work to which section 142 applies. This is the process widely referred to, for obscure historical reasons, as “placing a teacher’s name on List 99”.  Section 142 applies to the provision of education at a school and elsewhere.  

49.	Section 142(4) of the 2002 Act provides that a direction may be given in respect of a person only on the specified grounds.  These are
(a)	grounds that the person is included in the list kept under section 1 of the Protection of Children Act 1999;
(b)	grounds that the person is unsuitable to work with children;
(c)	grounds relating to the person’s misconduct;
(d)	grounds relating to the person’s health; and
(e)	in the case of a person taking part in the management of an independent school, grounds relating to the person’s professional incompetence.
Thus, the Secretary of State must be satisfied that at least one of the specified grounds exists before he or she can exercise the statutory discretion provided for in section 142(1).

50.	Section 144(1)(a) of the 2002 Act provides that a person in respect of whom a direction has been given under section 142 may appeal to the Tribunal against the decision to give the direction.

51.	Regulation 12(1) of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 also provides that an appeal to the Tribunal may be brought by a person in respect of whom a direction has been given under section 142 of the 2002 Act against such a direction.  By regulation 12(2), no appeal may be brought on the ground of information or evidence referred to in regulation 9(2) unless that information or evidence has first been brought to the attention of the Secretary of State under regulation 9.

52.	Regulation 9(1) of the 2003 Regulations provides that a direction given under section 142 of the 2002 Act (“the earlier direction”) may be revoked or varied by a subsequent direction on either or both of the grounds referred to in regulation 9(2). The grounds referred to in regulation 9(2) are that the Secretary of State is in possession of information relevant to the decision to give the earlier direction which he or she did not have at the time the decision was made and that the Secretary of State is in possession of evidence of a material change of circumstances of the person concerned occurring since the earlier direction was given.

53.	Regulation 13(1) of the 2003 Regulations provides that, where on an appeal under regulation 12 the Tribunal considers that the direction is not appropriate, it may order the Secretary of State to revoke or vary the direction.

54.	Regulation 13(2) provides that the Tribunal shall not, in exercising its powers under regulation 13, consider any information relevant to the decision to give a direction which the Secretary of State did not have at the time the decision was made, or evidence of a material change of circumstances of the person concerned, occurring since the decision to give a direction was made.

55.	Thus the Tribunal is, in this instance, confined to conducting a review of the decision made by the Secretary of State.  The Tribunal is not empowered to re-hear the case or to determine the primary facts.  It is required, in effect, to decide whether the Secretary of State had sufficient evidence upon which to base a determination that the specified ground relied upon existed and, further, to decide whether the direction was an appropriate or proportionate response in all of the circumstances known to the Secretary of State.

56.	In Moseley v. Secretary of State [2002] 1 PC and in Hudson v. Secretary of State [2002] 10 PC the Tribunal held that the burden of proof lies upon the Secretary of State to satisfy the Tribunal that his or her direction was appropriate.  However, it is equally arguable that, on a proper construction of the relevant provisions, the burden of proof lies upon the appellant to show that the direction was not appropriate.  The Tribunal tended towards the latter view but, having received no arguments on the point and having had no opportunity to put the point to counsel for the Secretary of State, decided to proceed on the basis more favourable to the appellant and to assume that the Secretary of State had the burden of showing that her decision was appropriate.

57.	There are several previous decisions of the Tribunal relating to the current statutory provisions and their materially similar predecessors.  Of particular significance is the decision in Mason v. Secretary of State (2001) number 0078.  In that case the facts were very similar to those in the present case, save that the teacher was male and the 16 year-old, Year 11 pupil was female.  Counsel for the Secretary of State in that case submitted that the legislation did not set out the criteria which the Secretary of State should use in reaching his or her decision but that there were several factors (grouped under five headings) which could properly be (and were in that case) taken into account by the Secretary of State.  The Tribunal held that neither the Secretary of State nor the Tribunal should “adopt hard and fast rules which fetter discretion” but accepted that the factors suggested by counsel for the Secretary of State were “relevant and appropriate” in Mr Mason’s case.

58.	The factors suggested by counsel for the Secretary of State in Mason and accepted by the Tribunal as relevant in a case involving the formation of a relationship between a teacher and a pupil were:
(a)	the age of the pupil concerned (including whether the relationship involved criminal offences);
(b)	the proximity of the teacher/pupil relationship;
(c)	the duration, degree and nature of the relationship (including the possibility that a “true romance” could develop, where it might be appropriate to take a different, less censorious view);
(d)	whether the teacher or the pupil had instigated the initial relationship and the sexual contact that followed; and
(e)	the teacher’s remorse and/or appreciation of the potential damage to the pupil, the parents and the wider school community.

59.	Further in Mason, counsel for the Secretary of State submitted that the question whether the decision was appropriate has to be viewed in the context of the purpose of restricting a person’s employment.  He submitted that that purpose is twofold – first, the protection of children and, secondly, the maintenance of public confidence in the education system.  The Tribunal accepted that this was “the correct approach”.

60.	It follows that, when considering whether a direction is or is not appropriate, the Tribunal should not proceed on the basis that the restriction was imposed as a penalty for past misconduct but should decide whether the restriction is an appropriate measure to ensure, so far as possible, that children will be properly protected and that reasonable parents and other interested parties will not have their confidence in the education system diminished in the future.

61.	“List 99” is a confidential, not a public document and information as to whether an individual has been made the subject of a direction under section 142 of the 2002 Act is supplied only to those who have a proper interest in receiving it.

62.	The Secretary of State may, in an appropriate case, direct that a teacher may only be appointed or employed in an establishment which does not admit pupils of one gender or the other, rather than direct his or her complete exclusion from employment in all schools.  The decision of the Tribunal in Hudson v. Secretary of State [2002] 10 PC related to such a direction.  However, the facts of that case were entirely different from those in the present case.  The risks presented by the appellant had been assessed by medical advisers and found to be low and/or specific to young boys.  Accordingly, the Tribunal derived no assistance from this decision in the present case and concluded that the appellant’s reliance upon it (see below) was misplaced.

The submissions made by the parties

63.	In her document entitled “Response to Secretary of State’s Resist of Appeal” and in her written “Skeleton Argument” the appellant submitted that:

(a)	a finding of misconduct had to be based upon evidence that an inappropriate relationship had occurred (i) whilst she was teaching and (ii) while the pupil was at the same school, and there was no such evidence in this case;

(b)	the emails pointed to a relationship between her and G but, as the dates upon them revealed, they only began after G had left the school;

(c)	the language used in the emails was not sufficient to lead to the conclusion that the relationship commenced before G left the school;

(d)	all of the evidence pointed to the conclusion that the relationship developed during the summer period when G was no longer a pupil at the school;

(e)	there was evidence from G that, during the summer period, he was planning to continue his education elsewhere;

(f)	although there was technically a teacher/pupil relationship between herself and G after September 2003, she was suspended from work and therefore was not teaching and did not have contact with G at that time;

(g)	the evidence of meetings between her and G (other than that relating to an admitted meeting on 27 March 2004) was clearly unreliable and should have been rejected;

(h)	since, in Mason v. Secretary of State the Tribunal accepted that there is no teacher/relationship during the summer holidays, her relationship with G should have been regarded as entirely acceptable;

(i)	the decisions of the Tribunal in NP v. Secretary of State [2004] 382 PC and JC v. Secretary of State [2004] 0355 PC show that it does not necessarily follow from a finding that a person has been guilty of misconduct which harms a child or places a child at risk of harm that that person is unsuitable to work with children and those decisions should be applied in this case;

(j)	there was no evidence that she would behave in the same way again and she would obviously not do so because her relationship with G was not “a mere fling” and had persisted;

(k)	in accordance with the decision of the Tribunal in Hudson v. Secretary of State [2002] 10 PC, she could, in the alternative, at least have been allowed to work in an all girls school.

64.	It was submitted on behalf of the Secretary of State that:

(a)	even on the basis that the appellant entered into an inappropriate relationship with G only during the summer vacation, the evidence still established that the appellant was guilty of serious misconduct warranting the issuing of a direction under section 142 of the 2002 Act not least because G returned to the school in September 2003 and the appellant continued her relationship with him and did not resign from the school until May 2004;

(b)	the decision of the Tribunal in Mason v. Secretary of State provides helpful guidance which, when applied to the similar facts of the present case, plainly indicates that the appeal should be dismissed;

(c)	the appellant had ample time and opportunity to “reflect on [her] position, seek advice, and turn away from the course on which [she] had embarked” (Mason at paragraph 15) but she did none of these things and, in particular, she did not seek the advice of anybody concerning the steps she should take in the circumstances in which she found herself;

(d)	the Secretary of State properly considered the factors set out in Mason v. Secretary of State; conducted a proper assessment of the risks and rightly concluded that the direction should be made;

(e)	the appellant’s attempted justification of her relationship with G was unsustainable, based on an irrelevant technicality and ill-judged;

(f)	other factors pointed to the conclusion that the appeal should be dismissed including (i) the fact the appellant, as G’s former teacher, exercised an inherent influence over him as a result of her status, while, on the other hand, G was in a relatively vulnerable position; (ii) the fact that the Applicant continued to remain in contact and to meet with G after she had been expressly instructed by the school to have no contact with him; (iii) the fact that the appellant at no stage showed either any understanding that her actions constituted misconduct or any remorse for her conduct;

(g)	there are “mitigating factors” which apply in the present case (including the fact that G was over the age of 16 when the relationship commenced; the fact that the appellant was not actually G’s teacher when he returned to the school in September 2003 and the fact that the appellant received a number of positive testimonials from fellow teachers, former pupils and their parents) but these mitigating factors are insufficient to outweigh the factors which warranted the issue of a direction under section 142;

(h)	the fact that the relationship between the appellant and G may be an enduring one does not count as a mitigating factor for the appellant’s benefit: rather, if and to the extent that the relationship falls within the “true romance” category identified in Mason, it remains the case that the appellant should have sought advice from the head teacher, the local education authority, or some other appropriate person or body concerning her relations with G once those had gone beyond the normal pupil-teacher relationship and it also remains the case that the appellant should have removed herself from the school at the earliest opportunity once the latter event had occurred;

(i)	with regard to the appellant’s claims concerning the significance or otherwise of the characters of G’s parents and of their response upon discovering that G was in an inappropriate relationship with the appellant, these matters did not form a “fundamental part” of the Secretary of State’s case against the appellant: on the contrary, the Secretary of State did not take into account the characters or opinions of G’s parents in making the decision but, instead, she took into account all of the information provided to her by all parties, including the factual information contained in the parents’ witness statements to the police;

(j)	with regard to the appellant’s assertion to the effect that her rights under Article 6 of the European Convention on Human Rights have been breached as a result of the present proceedings, the appellant has not identified the “civil right” which, according to her, is liable to be breached by these proceedings and, in any event, there is no scope for a claim to the effect that the proceedings are not fair since she has been given ample opportunity to put her case to both to the Secretary of State (in the form of written submissions) and to the Tribunal;

(k)	with regard to the appellant’s assertion to the effect that her rights under Article 8 of the European Convention on Human Rights have been breached as a result of the present proceedings and the claim that the Secretary of State’s reliance upon the email correspondence between herself and G amounts to a breach of her right to respect for her correspondence under that Article, the Secretary of State, in adducing that correspondence did not unlawfully interfere with the appellant’s right to respect for her correspondence. That right does not extend to protecting correspondence which ought never to have been entered into and, in the alternative, even if the Secretary of State has interfered with the appellant’s right to respect for her correspondence, that interference is plainly justified by, and proportionate to, the legitimate aim of protecting school pupils (as well as other parties affected) from the potential prejudice caused to them by virtue of the fact that they might be exposed to a risk, upon attending school, of being drawn into inappropriate relationships with their teachers.

Conclusions with reasons

65.	The Tribunal was satisfied that the Secretary of State had ample evidence upon which to base her conclusion that the appellant had engaged in behaviour that involved a breach of trust, a breach of the standards of propriety expected of her profession and an abuse of her professional position.

66.	More specifically, the Secretary of State had ample evidence upon which to base her conclusions that, in mid-2003, the appellant engaged in a sexual or otherwise inappropriate relationship with G, a sixteen year-old pupil at the school where she was employed as a teacher and that the appellant subsequently remained in such a relationship with G, while he continued to be a pupil at the school and she continued to be employed as a teacher there.

67.	The Secretary of State therefore had a proper basis for her decision that one of the specified statutory grounds existed for the exercise of the statutory discretion provided for in section 142(1) of the 2002 Act (i.e. grounds relating to the appellant’s misconduct).

68.	The reliable evidence available to the Secretary of State consisted of the emails that passed between the appellant and G; the draft letter admittedly prepared by the appellant on 19 July 2003; the recorded admissions made by G on 2 September 2003; the statements of G’s parents (in so far as they consisted of factual observations and reports of admissions rather than speculations or suppositions); the records made by Ms C and Mr B of the appellant’s responses to their questions (which responses were wholly inconsistent with other evidence) and the admissions made by the appellant.

69.	The emails that passed between the appellant and G between 10 and 18 July 2003 showed that the appellant had acted in clear breach of the general principle set out in the relevant code of conduct and had made “unnecessary comments to a pupil which could be construed to have sexual connotation”.  The emails also showed that the appellant had indulged in behaviour that she knew or ought to have known was wrong and could lead to summary dismissal in that she had made a “sexual approach or response to a pupil” and had promoted the “development of an intimate relationship with a pupil”.

70.	The email sent by the appellant on 10 July contained an unequivocal invitation to G to put aside his inhibitions and to have sexual intercourse with her.  Whether such intercourse had already taken place before that date or did not take place until later was scarcely relevant.  That communication to a young man who was clearly still part of the school community at the time it was made, was itself manifestly improper and plainly constituted misconduct by a teacher.

71.	The reasonable inference to be drawn from the email sent by the appellant on 16 July 2003 was that there had previously been some form of consensual impropriety involving her and G in a classroom at the school.

72.	The emails that passed between the appellant and G in August 2003 represented the clearest possible evidence that they were heavily engaged in a sexual relationship at that time.

73.	The appellant did not deny that she had formed a sexual relationship with G but contended throughout that he was not a pupil at the school when she did so.  However, the Secretary of State was fully entitled to reject the appellant’s assertions that her admitted behaviour did not amount to misconduct and that her liaison with G should have been regarded as acceptable. Her case was, at best, based upon an irrelevant technicality.  While G may, for certain purposes, have been treated as having left the school in July 2003, he continued to attend the school during that month.  Even after he had completed all of his examinations, G remained a pupil of the school since he was planning to return in September 2003 as a member of Year 12.

74.	The draft letter admittedly prepared by the appellant on 19 July 2003 was very significant evidence in that it showed that, at that time:

the appellant recognised the impropriety implicit in her relationship with G;

the appellant was well aware that G would be returning to the school in September 2003 to attend, amongst others, an “‘AS’ Literature course” taught by her; and

the appellant was aware of the appropriate action to be taken by a teacher who becomes romantically involved with a pupil in his or her school i.e. that he or she should take immediate steps to find employment elsewhere.

75.	The appellant’s substantially unexplained decision not to send the letter that she had drafted but, instead, to ignore the guidance of which she was aware; to defy G’s parents; to pursue the improper relationship and to dissemble when challenged, also amounted to misconduct.

76.	The records of the interviews conducted by Ms C and Ms EC constituted, either on their own or when compared with other records of interviews, compelling evidence of the appellant’s mendacity and of her misconduct in persistently breaching the injunction not to contact G during her period of suspension and before her resignation.  They also exposed the appellant’s false denials and assertions.  This misconduct was arguably more serious than the initial misconduct in that it involved deliberate dishonesty rather than reckless rejection of appropriate inhibitions in circumstances of emotional turmoil.

77.	The appellant’s submission to the effect that a finding of misconduct had to be based upon evidence that an inappropriate relationship had occurred whilst she was teaching and whilst the pupil was at the same school was misconceived.  The Secretary of State was not so limited.

78.	The Tribunal rejected the appellant’s submission based upon the decision in Mason v. Secretary of State since it involved a misunderstanding and/or misinterpretation of that decision.  The Tribunal in that case did not hold that there is no teacher/relationship during the summer holidays.  It commented that “even if pupil X was no longer part of the school community during the summer 1999 holidays the position had clearly changed by September 1999 when she enrolled at P College [on the same site as Mr Mason’s school]”.  The Tribunal later said that “even if we accept that technically there was no teacher/pupil relationship during the summer holidays the position had clearly changed by September 1999”.  The Tribunal in that case also “took into account that the sexual part of the relationship began in August 1999 when there may have been some doubt in Mr Mason’s mind whether or not a pupil/teacher relationship existed”.  The Tribunal dismissed Mr Mason’s appeal.  In any event, the evidence in this case established that G was “part of the school community” throughout.

79.	There was force in the appellant’s submission that the evidence of a meeting between her and G on 29 December 2003 was clearly unreliable and should have been rejected.  However, the Secretary of State had other reliable evidence of meetings between the appellant and G in November and December 2003.

80.	The Tribunal was satisfied that the Secretary of State’s direction to the effect that the appellant be excluded completely from employment as a teacher was appropriate and proportionate in all of the circumstances known to her.

81.	In Moseley v. Secretary of State [2002] 1 PC the Tribunal observed that 
“The role of a teacher in society is an important one and parents and the general public expect and are entitled to expect high standards from teachers.  A teacher is placed by the parents of the children in a position of trust and responsibility and a teacher must be able to demonstrate those qualities not only in their professional spheres of work as a teacher but also in their personal conduct.  Teachers are perceived as role models for children and trust and honesty are core values which underpin the status of teaching as a profession.”
The Tribunal adopted these observations as apposite in the different circumstances of the present case.

82.	The Tribunal concluded that the evidence available in June 2005 showed that, while the appellant probably posed little physical risk to children in the future, her conduct had fallen so far below the standards to be expected of her that there was a real risk that public confidence in the education system would be seriously undermined if she were permitted carry out work in provision of education.  Further, if the appellant were permitted to teach children, in the frame of mind she displayed in 2003-4 and continued to display until June 2005, those children would be presented with a wholly unacceptable role model.  The appellant persistently displayed a profound lack of objective judgment, a marked inability to recognise the reality of her position, a considerable capacity for self-deception and a propensity to lie and dissemble, both deliberately and recklessly.

83.	The Tribunal was satisfied that the Secretary of State properly considered the factors regarded as relevant in Mason v. Secretary of State in so far as they related to the particular facts before her in this case; conducted a proper assessment of the risks and rightly concluded that the direction should be made.

84.	Due weight was given by the Secretary of State to the “mitigating factors” and to the substantial number of unsolicited, positive testimonials received by the appellant from fellow teachers, former pupils and their parents.  The appellant’s undoubted talents and qualities were, however, rightly found to be outweighed by demerits of her case.

85.	The Secretary of State did accept that the relationship in this case probably fell within the “true romance” category and that it might therefore be possible for her to take a different, more sympathetic view of the circumstances.  However, she rightly concluded that the appellant should have sought advice from her head teacher, the local education authority or elsewhere concerning her relations with G once those had gone beyond the normal pupil-teacher relationship but did not do so.  The Secretary of State further rightly concluded that the appellant should have removed herself from the school at the earliest opportunity once the relationship had started but she did not.  On the contrary, the appellant tried to preserve her position in the school by pretending that the relationship had never been sexual and that it had come to an end, while at the same time maintaining it in a clandestine manner.

86.	The appellant correctly noted that, in the decisions in NP v. Secretary of State and JC v. Secretary of State, the Tribunal said (following the earlier decision of the Tribunal in the case of Angella Mairs v. Secretary of State [2004] 0269 PC) that it does not necessarily follow from a finding that a person has been guilty of misconduct which harms a child or places a child at risk of harm that that person is unsuitable to work with children.  However, the appellant wrongly contended that those decisions have a bearing upon her case.  All of those decisions were concerned with the proof of both misconduct and unsuitability before a person’s name can be lawfully included in the list kept under section 1 of the Protection of Children Act 1999.  This case involves a different statute and different considerations.  Interesting points involving the cited cases might have arisen if the Secretary of State had given her direction on the grounds that the appellant was unsuitable to work with children but she did not.

87.	The Secretary of State rightly rejected the alternative suggestion that the appellant might be limited to working in an all girls’ school and rightly declined to be guided by the precedent apparently set in the case of Mr Hudson.  His case was entirely different.  He had imported and retained indecent and obscene photographs of boys but had never indulged in any indecent activity with pupils.  The risk of him doing so with boys was found to be “small but real”.  Further, in this case, the equally if not more significant misconduct of the appellant was her false denial of the nature of the relationship in November 2003; her persistent flouting of properly imposed restrictions and her attempts to maintain secrecy by deception and falsehood in the period from December 2003 to April 2004.  Accordingly, there was no proper basis in her case for drawing a distinction and allowing her to work with girls though not with boys.

88.	It was not clear whether the appellant was persisting with her arguments based upon the European Convention on Human Rights.  In any event the Tribunal had difficulty in discerning any validity in such arguments.  At no stage was the appellant deprived of a fair hearing.  In so far as the appellant was contending that the Secretary of State should have had respect for her private correspondence and should not therefore have accepted her emails as evidence against her, the contention was met by the general principle that confidentiality cannot be invoked to prevent exposure of iniquity and by the proposition, advanced by counsel for the Secretary of State, that any interference with the appellant’s right to respect for her correspondence was plainly justified by, and proportionate to, the legitimate aim of protecting school pupils and other affected parties from potential harm.

89.	The Tribunal therefore decided to dismiss the appeal.

90.	The decision of the Tribunal was unanimous.

Order

Appeal dismissed 

Signed

John Reddish Chairman
Sati Ariyanayagam
David Griffiths
7 February 2006