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Teachers Defence Service represents teachers in Teaching Regulatory Agency for England (TRA) Professional Conduct Inquiries.

Below we summarise the main elements of the case of: CAROLINE ANN REILLY v (a) TEACHING REGULATION AGENCY (b) SECRETARY OF STATE FOR EDUCATION [2020] EWHC 1188 (Admin). This case is relevant to England but may be of interest to teachers across the UK.

Summary

Ms Reilly was a head teacher who had been in a relationship with a man convicted of making and processing indecent images of children. She was dismissed from her post for failing to declare her relationship. On behalf of the Secretary of State the matter was investigated by Teaching Regulation Authority and referred to a Panel who recommended a Prohibition Order with a provision for review after two years.

Ms Reilly appealed the decision on the grounds that the case should not have proceeded in her absence and that the decision was wrong.

In dismissing the appeal, the Judge criticised the complex drafting of the allegations and the drafting of the reasons for the decision of the Panel. However, he considered the decision to proceed in absence was correct as the appellant had not given sufficient reason as to why she could not attend and that the findings based on the facts proved were correctly reasoned and the Prohibition Order was appropriate.

Case Digest

The appellant was dismissed from her employment as a head teacher following allegations made of her failure to disclose to the school that she was in a relationship with Mr A. 

In February 2009, Mr A had been arrested on suspicion of making and processing indecent images of children. In January 2010 he was convicted of those offences. The disciplinary allegations against the appellant were that by failing to disclose her relationship with Mr A, following his conviction for making and possessing indecent images of children, she had (a) failed to disclose information and material which risked putting the school in breach of its obligation to safeguard the welfare of its pupils; and (b) was guilty of professional misconduct in that the failure to disclose was inconsistent with her contractual obligations to act honestly and with integrity, and to act consistently with the requirement to maintain the relationship of trust and confidence between her and her employer.

Under section 141D of the Education Act 2002 the School provided information to the Secretary of State about the appellant’s misconduct. The Secretary of State having considered the matter in accordance with the 2012 Regulations referred it to a Professional Conduct Panel. The appellant did not attend the hearing. The proceedings were completed within two days; the Professional Conduct Panel made a recommendation to the Secretary of State that a Prohibition Order should be made with a provision for review after two years.

The appellant appealed on two grounds, firstly, that the hearing in January 2019 ought not to have gone ahead in her absence; second that the decision to make the Prohibition Order was wrong.

In considering the decision of the Panel to proceed in the absence of the appellant, Mr Justice Swift was advised of the correspondence that had taken place between the RTA and the appellant. Essentially the appellant had stated that she was unfit through ill health to attend the hearing but declined to provide any medical evidence in support [paragraphs 8-9].

The Panel was satisfied that,  ‘Ms Reilly had been given proper notice of the hearing in accordance with regulation 19 of the 2012 Regulations, there was no evidence to explain why Ms Reilly was unfit to attend the hearing, it is only in rare and exceptional circumstances that a decision should be taken in favour of the hearing taking place, it already had a detailed witness statement from Ms Reilly in response to the allegations; it was due to hear evidence from two witnesses who could be asked questions, that the hearing had been adjourned on earlier occasions, the Panel was not persuaded that an adjournment would result in the teacher attending at a later date’ and concluded that ‘on balance the hearing should proceed today.’ [paragraph 10].

Mr Justice Swift considered that the Panel’s reasons for this decision as set out in the Decision document were a little hard to follow  He struggled to see the source for the Panel’s self-direction that it should proceed in the absence of a teacher “only in rare and exceptional circumstances”. He suggested that the Panel’s reasons may come from the cases of General Medical Council v Hayat [2018] EWCA Civ 2796 and General Medical Council v Adeogba [2016] 1 WLR 3867 but they had no stated as much. [paragraph 11]. 

However, the issue for Mr Justice Swift was whether the conclusion reached by the Panel was wrong. When an appeal is directed to a decision taken in the exercise of a discretion, such as a decision on an application to adjourn, an appeal court should not intervene unless the course taken by the first instance decision maker lay beyond the area of judgment reasonably available to it [paragraph 12].

The Judge stated that in some respects the Panel’s reasoning on the question whether or not to proceed in the appellant’s absence was defective. However, the Panel was entitled to conclude that an adjournment would not result in the appellant’s attendance on another date given the correspondence put before it. The appellant had been given more than ample opportunity to explain the circumstances of the illness that she said prevented her from attending the hearing, yet she provided no explanation. The appellant’s emails suggested she was seeking to avoid the disciplinary process rather than engage with it in the way to be expected of a qualified teacher. The Panel was entitled to conclude from those emails that the appellant was unwilling rather than unable to engage with and participate in the disciplinary process. That was sufficient for the Panel to conclude that no good reason had been shown why the hearing should be adjourned and the final paragraph of the reasoning therefore became more explicable [paragraph 13]. 

Counsel for the appellant made a further point with regard to the procedure for making the application to adjourn. It was submitted that the appellant should have been given notice of any submissions to be made to the Panel by the Presenting Officer about whether or not to allow the application to adjourn. However, the submission was rejected as in the opinion of Mr Justice Swift, the appellant was given the opportunity to take part in a hearing by phone prior to 14 January 2019 to consider her request to adjourn. She declined that opportunity [paragraph 14].

In relation to the complaint that the Prohibition Order imposed was wrong Mr Justice Swift stated that in his opinion, the formulation of the complaints and the Panel’s reasoning when addressing those complaints was over-complicated. He suggested that the true point arising from the appellant’s conduct was not complex. As head teacher of a primary school she had failed to disclose to the school’s governors the relationship she had (personal, not professional) with a person convicted of creating and possessing indecent images of children. Did that amount either to serious misconduct or conduct that might bring the teaching profession into disrepute? [paragraph 17]

As a head teacher of a primary school ought to have realised or did realise that she should have told the School’s governors about her relationship with Mr A. Despite the reservations set out above, the Judge accepted that the substance of the Panel’s conclusion, acted on by the Secretary of State, was that the appellant did realise this. That was a conclusion that the Panel was both entitled to reach and was correct to reach [paragraph 22].

With regard to the submission that the appellant did not mislead the school governor’s in her email correspondence, rather than provide any explanation for her failure to tell the school’s governors those emails, as written, only helped to make it clear that the appellant did recognise that her relationship with Mr A was a matter of concern [paragraph 23].

The Judge also considered that subjectively the appellant realised that her relationship was problematic and objectively the appellant ought, as head teacher of a primary school, to have realised her relationship with Mr A needed to be brought to the attention of the School’s governors. The Panel’s answer to that question (accepted by the Secretary of State) was yes. There was no inconsistency between the two conclusions. The respective allegations looked at the matter from different perspectives. Likewise, the Judge was also satisfied that the allegation that the appellant lacked insight focused only on whether objectively, the appellant ought to have realised she needed to disclose her relationship with Mr A to the School’s governors. It did not stray into the altogether more difficult territory [paragraph 24].

In relation to the allegation that the appellant acted dishonestly, the Judge considered that the part of the reasoning in the Decision document was the most problematic. However, what was relevant was not really whether the failure could be labelled “dishonest” but rather whether the failure was deliberate rather than merely negligent.  Thus, although this allegation was mis-formulated in that it applied an inappropriate label, and although that mis-formulation fed into the Panel’s reasoning, the Judge did not consider the Panel fell into any material error. The substantive conclusion reached was that the appellant had acted deliberately. That was a relevant aggravating feature (from a judicial perspective); and the conclusion on that matter was certainly one that the Panel was entitled to reach.

Mr Justice Swift considered two further points. The first was whether the errors he identified were such as to put the appellant at any material disadvantage: specifically, did she have a fair opportunity to understand and respond to the substance of the case against her, regardless of the precise manner in which the allegations were formulated? His conclusion was that the appellant did have a fair opportunity to respond.

He then considered whether, looked at overall, the Secretary of State was right to make the Prohibition Order he made. He was satisfied that the decision to make the Prohibition Order rested on conclusions: (a) that a reasonably competent head teacher would have disclosed a relationship with a person convicted of making images and possessing indecent images of children; and (b) that the appellant realised this but nevertheless chose not to inform the School’s governors. Based on those conclusions, and giving due allowance for the Secretary of State’s assessment of the actions necessary to maintain standards in the teaching profession and those required to maintain public confidence in the integrity of that profession, the Judge was satisfied that the Prohibition Order was correctly made.

The appeal was dismissed.

Read the full: Law Report

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