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

An appellate court hearing a statutory disciplinary appeal may exercise a judgment going beyond conventional judicial review, while recognising the professional expertise of the disciplinary tribunal. The degree of intervention depends on the issues and the circumstances.

Sanctions in professional regulation primarily protect the public, maintain confidence in the profession and uphold proper standards. A prohibition order requires a proportionate assessment of the totality of the conduct, including its seriousness, repetition, risk, insight and relevant mitigation. A late admission and apology do not, without more, establish sufficient insight. Previous disciplinary decisions are not precedents and cannot displace a fact-specific assessment.

The claimant, a former headteacher, appealed under paragraph 6 of Schedule 2 to the Teaching Higher Education Act 1998 against a prohibition order imposed by the defendant’s Professional Conduct Committee for unacceptable professional conduct. The factual findings were accepted. The challenge concerned whether striking the claimant from the teaching register was excessive, whether the Committee had properly assessed insight and mitigation, and whether the court should remit or determine the matter.

The court also considered the scope of the statutory appeal and an argument concerning apparent bias arising from the Committee’s composition. In the unusual circumstances created by the impending abolition of the Council, the central issue was whether the court should undertake a more intrusive assessment of the sanction and, if so, whether the prohibition order should stand.

1. Appeal dismissed. The prohibition order was upheld. The court summarily assessed the defendant’s costs at £10,000.
2. The statutory appeal was not confined to identifying public-law errors. The court could exercise its own judgment on the applicability of legal principles to the facts, while giving appropriate respect to professional expertise, particularly on sanction. Because the Council was shortly to be abolished and effective remission was unavailable, a more intrusive role was appropriate. That did not make the court equally well placed as the professional tribunal.
3. The statutory and guidance framework required sanctions to be directed principally to public protection, public confidence and proper professional standards. Proportionality required the public interest to be weighed against the teacher’s interests and mitigation. A prohibition order was appropriate where conduct was fundamentally incompatible with being a registered teacher, but it was not justified merely to satisfy demands for punishment.
4. The Committee was entitled to consider the claimant’s prolonged denial of the masturbation allegations. Admission and apology through counsel, made only after robust legal advice and without the claimant attending the hearing, did not by themselves demonstrate the depth of insight required to assess future risk. The Committee’s references to remorse and insight in relation to lesser sanctions were not necessarily inconsistent with its finding of insufficient insight into the implications for the claimant’s professional role.
5. The Committee considered the guidance, the claimant’s excellent record and the testimonials. It was not required to follow the guidance, and the earlier published disciplinary decisions were inadequate for comparative purposes and did not operate as precedents. The combination of repeated misconduct, conduct occurring while children were present, reckless recruitment and vetting, delayed admission and the absence of evidence addressing underlying causes entitled the Committee to conclude that a prohibition order was proportionate.

The judgment records an appeal under paragraph 6 of Schedule 2 to the Teaching Higher Education Act 1998 from the Professional Conduct Committee’s decision of 24 August 2011. The factual findings and sanction were challenged in the Administrative Court. The appeal was dismissed and the prohibition order upheld.