SW v Secretary of State [2008] EWCST 1307(PT) (21 October 2008) 
Schedule 4 cases: Protection of Children Act List and Prohibition from teaching and working in schools

SW
Appellant
v

SECRETARY OF STATE FOR CHILDREN, SCHOOLS AND FAMILIES
Respondent

[2008] 1307.PT

Before:
Mark Rowland
Linda Redford
Paul Thompson

Ms Carine Patry Hoskins of counsel, instructed by the Treasury Solicitor, appeared for the Respondent.

The Appellant appeared in person.

D E C I S I O N

1.	We dismiss this appeal.

2.	So far as is material, section 142 of the Education Act 2002 provides –

“(1) 	The Secretary of State, in relation to England, …, may direct that a person –
    (a)	may not carry out work to which this section applies;
    (b)	may carry out work to which this section applies only in circumstances specified in a direction;
    (c)	may carry out work to which this section applies only if conditions specified in the direction are satisfied.

(2)	This section applies to –
    (a)	providing education at a school;
    …

…

(4)	A direction under this section may be given in respect of a person only –
    (a)	on the grounds that the person is included (otherwise than provisionally) in the list kept under section 1 of the Protection of Children Act 1999 (list of individuals considered unsuitable to work with children),
    (b)	on the grounds that the person is unsuitable to work with children,
    (c)	on grounds relating to the person’s misconduct,
    (d)	on grounds relating to a person’s health, or
    (e)	in the case of a direction given by virtue of subsection (2)(d) [which is concerned with the management of an independent school], on grounds relating to the person’s professional incompetence (or on a ground mentioned in any of paragraphs (1) to (d)).

…

(6)	The Secretary of State, in relation to England, …, may vary or revoke a direction under this section except in a case where –
    (a)	the direction was given on grounds that a person is unsuitable to work with children, and
    (b)	the person claims that he is no longer unsuitable to work with children.

….”

The tribunal has power to revoke a direction in those cases where the Secretary of State does not (see section 144(2)).

3.	Section 144(1) provides –

“(1)	A person in respect of whom a direction has been given under section 142 may appeal to the Tribunal established under section 9 of the Protection of Children Act 1999 –
    (a)	against the decision to give the direction;
    (b)	against a decision not to vary or revoke the direction.”

4.	So far as is material, regulations 9, 12 and 13 of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 (S.I. 2003/1184, as amended), made under sections 142(7) and 144(4) of the 2002 Act, provide –

“9. - (1) Save where – 
    (a) 	a direction was given because condition A or B is satisfied, or
    (b) 	a direction was given on the grounds that a person is unsuitable to work with children and the person claims that he is no longer unsuitable to work with children,
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 paragraph (2).

(2) The grounds upon which an earlier direction may be revoked or varied under paragraph (1) are that – 
    (a) 	the Secretary of State is in possession of information relevant to the decision to give the earlier direction which he did not have at the time that the decision was made; and
    (b) 	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.

(3)	Where a direction was given because condition A is satisfied the direction shall be revoked if the name of the person concerned is removed from the list referred to in that paragraph.

(4)	Where a direction was given because condition B is satisfied the direction shall be revoked if the disqualification order ceases to have effect.

…

12. - (1) Subject to paragraphs (2) and (3) 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 – 
    (a) 	save where regulation 8 applies, against a direction given to him by the Secretary of State under section 142 of the 2002 Act; and
    (aa)	…; and
    (b) 	against a refusal by the Secretary of State to revoke or vary a direction given to him under section 142 of the 2002 Act following consideration of the information or evidence referred to in regulation 9.

(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.

(3) Where a person has been convicted of any offence involving misconduct, no finding of fact on which the conviction must be taken to have been based shall be challenged on an appeal under these Regulations.

13. - (1) 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.

(2) The Tribunal shall not, in exercising its powers under this regulation, consider – 
    (a) 	any information relevant to the decision to give a direction or not to revoke or vary a direction which the Secretary of State did not have at the time the decision was made; or
    (b) 	any evidence of a material change of circumstances of the person concerned occurring since the decision to give a direction or not to revoke or vary a direction was given.”

Conditions A and B refer to automatic bars on the grounds respectively that the person concerned is included (otherwise than provisionally) in the list kept under the Protection of Children Act 1999 or that the person has been made the subject of a disqualification order in criminal proceedings.

5.	Thus, an appeal lies against a direction made on the ground of misconduct but new information or evidence of a change of circumstances cannot be taken into account on such an appeal.  Instead, such information or evidence may form grounds for the direction being revoked by the Secretary of State.  An appeal lies against a refusal to revoke a direction and the material before the Secretary of State can be taken into account on such an appeal.

6.	The Appellant was a schoolteacher.  In 2005, he was convicted, following a plea of guilty, of an offence of battery against a minor and was sentenced to a period of community service.  On 31 May 2006, the Secretary of State informed the Appellant that it was not proposed to take any action under section 142 of the Education Act 2002, given the circumstances of that offence and two offences of driving motor vehicles with excess alcohol for which he had also been convicted, his personal circumstances and various testimonials.  However, the Appellant was told that –

“…you are warned that your behaviour on this occasion has caused great concern.  Any further misconduct on your part, which calls for action by the Secretary of State may have more grave consequences for your future career as a teacher or worker with children and young persons.”

7.	The Appellant started a new teaching job in January 2007.  On 18 March 2007, pupils saw him viewing what one of them described as “inappropriate pictures” on his computer during the course of a lesson he was covering.  One of the pupils told his parents over the following week-end and the Appellant was questioned about the use of the computer on 23 March 2007.  He admitted viewing pornographic pictures on his computer in school outside lessons but denied that the pictures he was viewing during the lesson were more than pictures of actresses.  However, the Appellant accepted in evidence before us – although he had not done so in his grounds of appeal – that a scan of the computer had revealed that the sites visited during the lesson were not that benign, although he says that he genuinely believed that they had been at the time he was questioned about them on 23 March 2007.  He was called to a disciplinary hearing, where the headteacher’s recommendation was to be that the Appellant be dismissed for gross misconduct, but he resigned with effect from 5 June 2007 before the hearing could take place.  The headteacher informed both the Secretary of State and the General Teaching Council of the circumstances in which the Appellant had ceased to be employed.  On 13 February 2008, the Secretary of State decided, on the sole ground of misconduct, to bar the Appellant from employment to which section 142 of the Education Act 2002 applies and he made a direction to that effect.

8.	The Appellant appeals on the ground that “a permanent prohibition was far too harsh”.  In his response, the Secretary of State submits that the direction was appropriate having regard particularly to the grave warning given on 31 May 2006, the serious lack of judgment involved in the Appellant being involved in gross misconduct only a year later and the serious nature of the misconduct.  He also refers to three decisions of this tribunal.

9.	In CN v Secretary of State for Health [ 2004] 398.PC/399.PVA, the tribunal emphasised the importance to be attached to public confidence.  It went on to say –

“It is our view that it is the clear intention of Parliament that the language of the Act requires us to take a broad view having regard to the degree of risk posed by the Appellant, but also to acknowledge that the public at large and those who entrust their children into the hands of professionals have a right to expect, indeed to demand, that such people who are placed in such important positions of trust working with children ‘in a child care position’ are beyond reproach.”

We agree with the Secretary of State that public confidence in the standards of teachers is important and that the need to maintain that confidence is an important consideration when making directions under section 142 of the 2002 Act.  However, CN was not in fact a case arising under section 142 of the 2002 Act and, more importantly, it involved child pornography.  Whether teachers are expected literally to be beyond any reproach at all is debatable.  The Secretary of State’s decision of 31 May 2006 in respect of the present Appellant suggests that even he does not expect that much.  The language used by the tribunal that decided CN, of which one of the members of the present tribunal was also a member, must be viewed in the context of the case.

10.	The Secretary of State also refers to Moseley v Secretary of State for Education and Skills [2002] 1.PC, where the tribunal said –

“Teachers are perceived as role models for children and trust and honesty are core values which underpin the status of teaching as a profession.”

That case is distinguishable from the present to the extent that Mrs Moseley had been convicted of sixteen offences of dishonesty and had been sentenced to eighteen months’ imprisonment, but we accept that teachers are expected to set a good example to children and that it may be necessary, in order to maintain confidence in the profession, to bar from teaching a teacher who is guilty of misconduct less serious than Mrs Moseley’s.

11.	The third case to which the Secretary of State refers is FH v Secretary of State for Education and Skills [2005] 552.PT, where the tribunal stated –

“… 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.”

We agree with that statement.  However, that case was again different from the present in that the Appellant had involved herself in an inappropriate relationship with a pupil which had, at the very least, involved her inviting the pupil to have sexual intercourse with her.

12.	Ms Patry Hoskins also relied upon another part of that decision, where the tribunal, having considered regulation 13(2), said –

“The Tribunal is, in this instance, confined to carrying out 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 on existed, and further, to decide whether the direction was an appropriate or proportionate response in all the circumstances known to the Secretary of State.”

13.	We do not entirely agree with that statement.  Although the whole statement was “accepted” by Dyson LJ in Secretary of State for Children, Schools and Families v JN [2008] EWHC 1199 (Admin), Dyson LJ was concerned only with the narrow issue whether the appellant in the case before him was entitled to see the confidential advice upon which the Secretary of State’s decision had been based.  He decided that fairness did not require that the advice be revealed and he then considered an alternative argument.  Having set out the passage from FH we have set out in the last paragraph, he said –

“I accept that explanation by the Tribunal.  It follows that the particular views of officials or List 99 panel members are not relevant to the Tribunal’s task.  Nor indeed are the views of the Secretary of State determinative of the question.  The Tribunal must form its own view as to whether or not, on the evidence before it, which is the same evidence as that which was before the Secretary of State, there existed sufficient grounds for the direction to be given under section 142.  The Tribunal thereby decides whether the Secretary of State’s decision was reasonable.  It is not necessary for that purpose that the tribunal should see the confidential advice that was given to the Secretary of State.  It follows that the tribunal had to decide whether the Secretary of State had sufficient evidence on which to base a determination that the specified ground existed.  That involved a consideration and appraisal by the Tribunal of the evidence, untrammelled by the advice of the Department’s officials and/or independent expert.”

The precise issues that had arisen in the appeal before the tribunal in that case are not revealed in Dyson LJ’s judgment.  

14.	Regulation 12 clearly confers a right of appeal to a tribunal and not merely a right to apply for a review and therefore, in our view, a tribunal is entitled to rehear the case and, in a case where there is a dispute as to the facts, make findings that are different from those made by the Secretary of State.  We find it difficult to reconcile some of the language used by the tribunal in FH and by Dyson LJ in JN with the concept of an appeal.  On an appeal, the issue is not just whether the Secretary of State’s decision was reasonable in the sense that it was one he was entitled to take but also whether it was, in the tribunal’s judgment, the right decision.   There is nothing in the legislation to suggest that the tribunal is not entitled to substitute its own judgment for that of the Secretary of State in those cases where more than one conclusion can properly be reached on any matter.  FH may have been a clear enough case where no conclusion other than the Secretary of State’s would have been reasonable.  Significantly, it was also a case determined without any oral evidence.  JN may also have been a clear case and certainly, on the appeal to the Administrative Court, it appears to have been unnecessary for Dyson LJ to consider the possibility that two views might fairly be taken of the evidence.  Moreover, the passage we have set out was strictly speaking unnecessary for his decision.  We are satisfied that this tribunal is not confined to carrying out a review.

15.	The only material limitation on the powers of the tribunal is that imposed by regulations 12(2) (which refers back to regulation 9(2)) and 13(2) of the 2003 Regulations, which, in our judgment, do not have the effect that the evidence before the tribunal is necessarily the same as that before the Secretary of State, although that may well have been the position in JN.  It is important to note that, whereas in subparagraph (b) of regulations 9(2) and 13(2) the term “evidence” is used, in subparagraph (a) the term “information” is used.  The object of the legislation appears to be to enable the Secretary of State to consider the significance of any new information or change of circumstances before a tribunal does; it is not to prevent a tribunal from receiving more detailed evidence about an issue raised in information that has previously been before the Secretary of State.  As the Secretary of State does not usually conduct interviews and even less often provides a teacher with an effective means of challenging evidence provided by others, there would be a denial of justice in many cases if there could not be a proper hearing before a tribunal, with oral evidence being given and cross-examination allowed.  Inevitably, such a process can lead to more detailed evidence being available to the tribunal than was available to the Secretary of State and, indeed, it can lead to the conclusion that “information” provided to the Secretary of State was false.  However, regulation 12(2) and 13(2) may require that any challenge to information provided to the Secretary of State by, say, an employer must be made by way of contrary information being supplied by the person in respect of whom a direction may be made before the Secretary of State makes the relevant decision.   Then, a finding that some or all of the information supplied by the employer was false would not generally be new information.  

16.	Ms Patry Hoskins accepted that it could not have been the intention of the legislature that a tribunal could never have regard to new evidence.  We agree with her that it is a matter of judgment whether more detailed evidence received at a hearing before a tribunal amounts to new information for the purposes of regulation 13(2)(a).  In practice, a tribunal will no doubt be influenced by whether or not the Secretary of State considers that the evidence raises a new issue and indicates that he wishes the tribunal to ignore that part of the evidence so that, if the appeal is dismissed on the evidence previously before the Secretary of State, he can consider the new evidence himself and decide whether to revoke or vary the direction under regulation 9(2)(a).  Indeed, in the present case, those instructing Ms Patry Hoskins wrote to the tribunal before the hearing, observing that the Appellant had not provided a witness statement and reserving “our right to ask for a short adjournment if any new facts arise which the Respondent was unaware of”.  Had new evidence relating to the circumstances of the misconduct arisen, we would certainly have given those representing the Secretary of State some time to consider whether the evidence amounted to new information for the purposes of regulation 13(2)(a) and, if not, how to respond to it.

17.	In fact, we did not hear much detailed evidence in this case because, after we had considered the above points as preliminary issues arising out of a note submitted by Ms Patry Hoskins on the legal framework relevant to the appeal, the Appellant addressed us and told us that he accepted that it was right that he should be barred for a period of time.  He confirmed that his only challenge to the Secretary of State’s decision was that it was, as he submitted, a permanent bar, rather than one for a specific period of, say, one year or perhaps two years.

18.	We do not consider it right to characterise directions under section 142 of the 2002 Act as “permanent”: such directions are merely indefinite (save inasmuch as regulation 9(4) of the 2003 Regulations may require a direction to be revoked on an ascertainable date in the future) because it is open to a person to apply for a direction to be revoked under regulation 9 (subject to the limitations imposed by regulation 9(1)(a) and (b)).  There are obvious reasons why directions under section 142(4)(a), (b), (d) or (e) should be indefinite but it is less obvious why a direction under section 142(4)(c), made solely on the ground of misconduct, should always be indefinite.  Although, as we have said, it is important that parents and other members of the general public have confidence in teachers, there are cases involving misconduct where that confidence can properly be maintained through barring for a limited period and it would be possible to fix that period when the direction is given.

19.	However, it seems to us that the scheme of the legislation requires that a direction under section 142(4)(c), like directions on other grounds, should be indefinite in the first instance, with the person in respect of whom the direction is made being left to apply for it to be revoked or varied if he or she so wishes to do so after a period of time.  It is noteworthy that, while most disciplinary rules made by professions make separate provision for suspension for a limited term as an alternative to removal from the professional register or equivalent document, no such distinction is drawn here.  However, the more important consideration is that Parliament is likely to have intended that, in order to maintain public confidence in those working in education, the Secretary of State should be entitled to require that not only has there been a lapse of time before a person guilty of misconduct returns to such work but also that, during that period, the person has maintained appropriate standards of conduct.  That can be ascertained only at the end of the period.  Evidence that a person has been of good character (in the broadest sense) for a period of, say, two years since the direction was made can be evidence of a material change of circumstances within regulation 9(2)(b) and can therefore be grounds for revoking the direction.  Equally, then, it must be evidence within regulation 13(2)(b) that cannot be taken into account by a tribunal hearing an appeal against the original direction.

20.	It follows that, as we consider that the Appellant is right to concede that a direction barring him from working in education was appropriate in this case, we must dismiss this appeal and leave the Appellant to make an application to the Secretary of State for the revocation or variation of the direction if he wishes to do so in due course.  We express no view as to whether, or when, such an application should be successful.

21.	We make two general observations.  First, it is apparent that this appeal might have been avoided had the Secretary of State made clear that the lapse of a period of time without further incidents of misconduct could amount to a material change of circumstances entitling the Appellant to apply for the direction being revoked.  It might be appropriate to include information to that effect when making directions in misconduct cases, other than the most serious.  Secondly, there is now some overlap between the functions of the Secretary of State and those of the General Teaching Council.  We understand that the Secretary of State tends to take the lead in cases where there are child protection concerns.  Where it is ultimately decided that the only possible ground for a direction under section 142 in respect of a teacher is misconduct, the Secretary of State might consider whether, at least in less serious cases, it would be appropriate not to make a direction under section 142 but to leave the matter to be dealt with by the General Teaching Council, whose procedures and powers may be rather more suitable for dealing with simple misconduct cases than his own.

22.	Our decision is unanimous. Appeal Dismissed.

Mark Rowland
Linda Redford
Paul Thompson