Rutter, R (on the application of) v General Teaching Council for England

A procedural time indication qualified by “normally” allows reasonable flexibility, particularly where a disciplinary regulator must obtain information before deciding whether to refer a case for investigation. Breach does not automatically invalidate a later notice. The consequence of non-compliance depends on the facts and degree of delay. Invalidation arises only when the delay has reached a point at which issuing the notice is unlawful.

Delay does not by itself require disciplinary proceedings to be halted. The central question is whether a fair hearing remains possible. Where the disciplinary tribunal is better placed to assess the complete evidential position, that issue will ordinarily be determined by the tribunal in the first instance.

The claimant, a teacher, sought judicial review of the defendant professional regulator’s decision to issue a notice of investigation under its Disciplinary Procedure Rules 2004. He argued that the notice was substantially late under Rule 9(1), and that the defendant’s earlier correspondence and subsequent silence had led him reasonably to destroy documents needed for his defence.

He also contended that the resulting delay made a fair disciplinary hearing impossible. The issues were whether the notice was invalid because of delay, whether the defendant had acted unfairly by continuing the investigation, and whether the Administrative Court should determine the availability of a fair hearing before the Professional Conduct Committee had considered the matter.

1. The application was dismissed. There was no order as to costs.
2. The Disciplinary Procedure Rules 2004 were made by a public body under statutory powers and publicly stated how the Council would exercise its disciplinary functions. A breach could therefore, in an appropriate case, support judicial review. The Council’s rules were not merely optional administrative guidance.
3. Rule 9(1), read with regulation 10(1), did not impose an absolute four-week deadline. The word “normally” built in flexibility, and the trigger was the decision to refer the case to an Investigating Committee. That decision might reasonably require further enquiries, collation of documents and clarification of the allegations.
4. The modern question was the legal consequence of non-compliance, assessed against the concrete facts and the continuing chain of events. Rule 9(1) was not a provision whose breach automatically invalidated a subsequent notice. Invalidation could arise where the delay was sufficiently prolonged, but that threshold had not been reached by 11 November 2005, despite the Council’s inadequate explanation for part of the delay.
5. The letter of 28 April 2005 did not represent that an investigation would be abandoned unless notice was given by 26 May. Three months’ silence thereafter did not reasonably justify the claimant’s destruction of his documents. A longer period of silence, or a warning to the Council that the matter was being treated as closed, might have produced a different result.
6. Delay alone did not require disciplinary proceedings to stop if a fair hearing remained possible. The Professional Conduct Committee, having the complete dossier and power to summon witnesses and require evidence on oath, was ordinarily better placed than the Administrative Court to decide whether a fair hearing could still take place. That issue was left for the Committee, which was directed to give it anxious consideration in light of all subsequent events.

First-instance judicial review in the Administrative Court. Permission had been granted by Burton J on 4 October 2006. The substantive application was dismissed by Munby J, with no order as to costs.