O v Secretary of State for Education & Anor

An appeal under regulation 17 of the Teachers' Disciplinary (England) Regulations 2012 is an appeal by way of rehearing. The question is whether the decision was wrong or unjust because of a serious procedural irregularity, rather than whether it was Wednesbury unreasonable. The appellate court may correct material errors of fact, although it should recognise the tribunal's advantage in assessing witnesses. Demeanour is relevant but not conclusive, and inconsistencies should be assessed against the core allegations. A tribunal preferring one witness must give some explanation, but need not address every inconsistency. The civil standard of proof remains a single balance-of-probabilities standard. Equality of arms does not require disclosure of third-party material unavailable to both parties. A finding independently justifying a prohibition order makes other challenges academic.

A teacher appealed under regulation 17 of the Teachers' Disciplinary (England) Regulations 2012 against an indefinite prohibition order made by the Secretary of State for Education under the Education Act 2002. The order followed findings by a Professional Conduct Panel that she had engaged in an inappropriate, sexually motivated relationship with one pupil, an inappropriate relationship with another pupil, and had failed to follow safeguarding and management requirements.

The appeal challenged the findings concerning the first two pupils, the adequacy of the Panel's reasons, and alleged breach of Article 6 ECHR through inequality of arms. The central issues were the scope of the High Court's appeal jurisdiction, the treatment of credibility findings and inconsistencies, the duty to give reasons, and whether the Panel's findings were wrong or procedurally unjust.

The appeal was dismissed and the prohibition order was upheld.

1. Nature of the appeal. An appeal under regulation 17 was an appeal by way of rehearing under CPR 52.11. The applicable question was whether the Panel's decision was wrong, or unjust because of a serious procedural or other irregularity. The appeal was therefore more interventionist than judicial review and was not confined to Wednesbury unreasonableness. This approach was consistent with Burke v General Teaching Council [2009] EWHC 3138 (Admin) and Cheatle v General Medical Council [2009] EWHC 645 (Admin).
2. Credibility and fact-finding. The Court was generally reluctant to interfere with findings based on oral evidence because the Panel had seen and heard the witnesses. Demeanour was an important factor, but it was not conclusive. The Court could reach a different conclusion where the circumstances justified it. Minor inconsistencies were to be expected, and the proper question was whether the core allegations were true. Applying those principles, the Panel was entitled to prefer Pupil A's detailed and consistent evidence on the core incidents and to reject the Appellant's inconsistent and incomplete account.
3. Reasons. The Panel was required to give reasons, but the duty was flexible and context-dependent. Some explanation was required for preferring one witness over another, although it was unnecessary to address every argument or inconsistency. The reasons were adequate because, in light of the evidence and submissions, they made clear why the Appellant's account had been rejected. The Court noted that it had power to invite amplification of reasons, but that issue was unnecessary to decide because the reasons were sufficient.
4. Standard of proof. The civil standard was a single balance-of-probabilities standard. Serious allegations did not attract a heightened standard or automatically require more cogent evidence. Inherent probability could be considered when weighing evidence, but seriousness did not itself establish improbability.
5. Article 6. Equality of arms required each party to have a reasonable opportunity to present its case without disadvantage. There was no breach because the additional police material had not been before the Panel or in the possession of the Teaching Agency, and the Appellant was equally able to seek it. The challenge concerning Pupil B was academic because the finding concerning Pupil A independently justified the order. The Court observed that, had that finding failed, it would have quashed the order and remitted the case for rehearing.

• High Court (Administrative Court) — Appeal under regulation 17 of the Teachers' Disciplinary (England) Regulations 2012; appeal dismissed: [2014] EWHC 22 (Admin) .
• Secretary of State for Education — Prohibition order made on 7 March 2013 following the Panel's recommendation.
• Professional Conduct Panel — Findings announced on 6 March 2013 that the contested allegations concerning Pupil A and Pupil B were proven.