In November 2022 a Professional Conduct Panel of the Teaching Regulation Agency made findings that Mr Malcolm Drakes, an executive headteacher at Broadford Primary School during the academic year 2017/2018, was guilty of unacceptable professional conduct and/or conduct that may bring the profession into disrepute. A Prohibition Order was imposed. He challenged that decision and was eventually successful in returning to teaching.

Allegations

It was alleged that Mr Drakes had in respect of Key Stage 2 assessments:

1. Caused and/or permitted and/or failed to prevent maladministration including by:
a. on 14 May 2018, in relation to English Spelling, Punctuation and Grammar tests he:

i. excessively assisted pupils;
ii. indicated to pupils during tests that the answer they had provided was right and / or that they should review answers which were incorrect;
iii. allowed other staff members to excessively assist pupils.

b. between 15 May 2018 and 17 May 2018, in relation to Maths Paper 3 (Reasoning) tests he:

i. excessively assisted and/or allowed other staff members to excessively assist.

2. His conduct as may be proven at allegation 1 above, lacked integrity and / or was dishonest in that he was seeking to unfairly improve assessment outcomes for one or more pupils.

Hearing in August 2023

Mr Drakes appealed the decision and by consent on 7 June 2023, the case was remitted to a differently constituted Professional Conduct Panel to make a fresh recommendation as to whether a Prohibition Order should be made. This hearing was convened in August 2023.

The factual findings of the first Panel bound the new Professional Conduct Panel. However, the decision on a recommendation to impose a prohibition order did not bind the new Panel.

Mr Drakes accepted the facts of the allegations and that that his actions were dishonest.

He had assisted pupils at the Key stage 2 assessments by giving hints in spelling assessments, for example.

This conduct inflated the results. However, when it was discovered that pupils had been assisted with the assessments, the results were annulled. This put pupils at a disadvantage, but it was conceded, not a long-term disadvantage, as the pupils would be assessed once they started secondary school. In addition to the disadvantage to the pupils, the school would also have a negative marker.

Legal arguments

At the hearing, counsel for Mr Drakes argued that the legislation under s141B of the Education Act 2002 did not allow for findings on both unacceptable professional conduct and conduct that may bring the profession into disrepute. The Panel was bound by the use of the word ‘or’ in the legislation. However, the Panel was not persuaded by this argument saying ‘the panel also determined that s141B did not explicitly prohibit both allegations being made against a teacher. Were that to have been the intention behind the drafting, then parliament would, and could, have simply made this with the addition of, for example, ‘either.’

There were also submissions made regarding the relevant Advice to teachers, ‘Teacher Misconduct: The Prohibition of Teachers’ document. Counsel for Mr Drake submitted it was the one in force at the time of the allegations, (the 2015 Advice) whilst Counsel for the Teaching Regulation Agency submitted it was the one at the time of the hearing, (the 2022 version). It was decided that the relevant Advice was the one in force at the time, the 2015 Advice. The Panel stated, ‘[i]t appeared to the panel that it would be unfair to any teacher for the applicable Advice to be anything other than the one in place at the time of the alleged conduct.’

Decision on unacceptable professional conduct and/or conduct that may bring the profession into disrepute.

The panel was satisfied that in relation to the facts found proved the conduct of Mr Drakes, involved breaches of the Teachers’ Standards.

The way he conducted the assessments was ‘completely inappropriate’ and that the proven conduct was dishonest on more than one occasion. In the panel’s view, such repetition of behaviour increases the seriousness of the same especially considering the consequential impact on pupils.’

The Panel therefore considered that conduct of Mr Drakes amounted to misconduct which was serious and ‘fell significantly short of the standards expected of the profession.’

There was therefore a finding that Mr Drakes’ conduct amounted to unacceptable professional conduct and/or conduct that may bring the profession into disrepute.

Recommendation to the Secretary of State.

In making the decision on whether to make a recommendation of a Prohibition Order to the Secretary of State, the panel considered the Advice (2015) and the following parts to be relevant:

protection of pupils;
the maintenance of public confidence in the profession; declaring and upholding proper standards of conduct; and the interest of retaining the teacher in the profession.

The Panel considered that Mr Drakes had shown insight and that looking forward, there was evidence of his subsequent conduct of SATs tests which assured the panel that it was not necessary to protect pupils from a repetition of the previous conduct.

The panel was of the view that there was a strong public interest consideration in declaring proper standards of conduct in the profession as the conduct was outside that which could ‘reasonably be tolerated.’

However, the panel decided that there was a ‘strong public interest consideration in retaining Mr Drakes in the profession, since he is able to make a valuable contribution to the profession in the future.’

Although there were aggravating features which the Panel considered to be relevant;

serious departure from the personal and professional conduct elements of the Teachers’ Standards;

misconduct seriously affecting the education and/or well-being of pupils…;

abuse of position or trust (particularly involving vulnerable pupils) or violation of the rights of pupils; and

dishonesty especially where there have been serious consequences and/or it has been repeated and/or covered up.

The Panel considered the mitigating features:

There was seemingly some antagonism between the staff and some of the pupils, which went against the culture of the school. Mr Drakes also learned that three children with problems were to sit their tests with two others which he described would be like ‘putting five sticks of dynamite together in a room.’ This was the reason he decided to stay for the assessment.

Although, Mr Drakes’ actions were dishonest, the Panel considered that he had acted out of a

‘misguided attempt to address the unfairness for the vulnerable pupils that he perceived had been created by the actions of year 6 staff.’

There was evidence that Mr Drakes was a ‘strong, and to some people inspiring, leader and executive headteacher.’

The Panel received many positive testimonies. Mr Drakes had a ‘previous exemplary history. The Panel considered that Mr Drakes had developed considerable insight. He had deeply reflected upon his actions and his management style at the time. The Panel was satisfied that Mr Drakes was aware of the consequences of his actions on the pupils, his colleagues, himself and his family. He had put in place appropriate processes and procedures during

SATs testing subsequent to the incidents. The Panel therefore concluded that the risk of repetition was negligible.’

The Panel also stated that ‘[i]t was apparent to the panel that he had been humbled by what has happened and that he has learned to check his thinking with others, so that he will be much more explicit about the need to challenge him and each other.’

Mr Drakes also demonstrated significant remorse regarding the impact his behaviour had on colleagues, the pupils and the reputation of the school.

In all the circumstances the Panel considered there to be a positive interest in retaining Mr Drakes in the profession which outweighed the adverse public interest considerations against it.

The Panel’s findings on recommendation of a Prohibition Order

The Panel stated that ‘applying the standard of the ordinary intelligent citizen, the recommendation of no prohibition order would be both a proportionate and an appropriate response. Having considered the mitigating factors that were present, the degree of insight exhibited and Mr Drakes’ exceptional contribution to teaching and education, the panel determined that a recommendation for a prohibition order would not be appropriate in this case.

The Panel considered that the publication of the findings of unacceptable professional conduct and/or conduct that may bring the profession into disrepute was sufficient.

Decision of the Secretary of State

In coming to the decision on whether to impose a Prohibition Order, the Secretary of State stated, I have considered the overall aim of a prohibition order which is to protect pupils and to maintain public confidence in the profession. I have considered the extent to which a prohibition order in this case would achieve that aim taking into account the impact that it will have on the individual teacher. I have also asked myself, whether a less intrusive measure, such as the published finding of unacceptable professional conduct and conduct likely to bring the profession into disrepute, would itself be sufficient to achieve the overall aim.

The Secretary of State considered the Panel’s findings of the lack of risk to pupils and their education, and the insight and remorse shown by Mr Drakes. He was mindful of the need to maintain confidence in the profession, particularly in light of the finding of dishonesty and the impact it would have on the reputation of the profession. This had to be balanced by the impact a Prohibition Order would have on Mr Drakes.

The Secretary of State placed considerable weight on the findings of the Panel and concluded

‘a prohibition order is not proportionate or in the public interest. I consider that the publication of the findings made would be sufficient to send an appropriate message to the teacher as to the standards of behaviour that were not acceptable and that the publication would meet the public interest requirement of declaring proper standards of the profession.’

Mr Drakes therefore did not receive a Prohibition Order and is able to return to his chosen profession, in teaching.