Wallace v Secretary of State for Education

On an appeal against a teacher prohibition order, the High Court should respect the judgment entrusted to the Secretary of State. It should not substitute its preferred sanction merely because it disagrees on the merits.

Where publication of adverse misconduct findings is a realistic lesser sanction, the decision-maker must assess it expressly. Proportionality requires consideration of whether that measure would achieve the relevant objectives without unacceptable compromise, followed by an assessment of fair balance. Relevant interests may include a positive public interest in retaining an exceptional teacher. Public confidence is assessed from the perspective of the ordinary intelligent and reasonably informed citizen.

The appellant appealed under regulation 17 of the Teachers’ Disciplinary (England) Regulations 2012 against the Secretary of State’s decision to prohibit him indefinitely from teaching, subject to review after two years. A professional conduct panel had found serious misconduct but rejected allegations of subjective dishonesty. It recommended no prohibition order because of mitigation, insight and an unusually significant public interest in retaining the appellant’s exceptional teaching contribution.

The issues included the disciplinary scheme’s compatibility with article 6(1), the High Court’s appellate approach, whether publication of the misconduct findings was a material alternative sanction, and whether the Secretary of State had applied a proper proportionality assessment.

1. Appeal allowed on grounds 3 and 4. The prohibition decision was set aside. The court exercised its powers under CPR 52.10 and determined that no prohibition order should be made.

2. The statutory scheme divided responsibility between the professional conduct panel and the Secretary of State. The panel’s findings as to whether allegations were proved and amounted to misconduct bound the Secretary of State. Once misconduct was established, however, regulation 8 made the panel’s recommendation on sanction non-binding. The Secretary of State alone determined whether to impose a prohibition order: paras [50]–[53], [64].

3. The appellant had not demonstrated a want of independence contrary to article 6(1). In any event, the regulation 17 appeal formed an intrinsic part of the overall disciplinary scheme and satisfied article 6(1). The High Court should not prefer the panel’s view of sanction to the Secretary of State’s, nor allow an appeal merely because the judge would have reached a different merits conclusion: paras [57]–[67], [71].

4. The scheme provided only two outcomes after misconduct was established: a prohibition order or refusal accompanied by publication of the adverse findings. Publication can itself be a considerable sanction because of its effects upon professional reputation and employment. In this borderline case the panel had expressly regarded publication as sufficient. It was therefore an obviously material consideration which the Secretary of State had to address and weigh: paras [78]–[82].

5. A simple balance between the interests of the public and the teacher did not satisfy proportionality. The decision-maker had to ask whether publication could achieve the relevant objectives without unacceptably compromising them, and whether a fair balance had been struck in light of the consequences. Public interests could point both ways, including an exceptional positive interest in retaining a teacher. Public confidence had to be assessed from the standpoint of the ordinary intelligent and reasonably informed citizen: paras [86], [90]–[93].

6. The Secretary of State had neither assessed publication as the less intrusive measure nor applied the proper proportionality test. Those serious irregularities made the decision unjust and wrong under CPR 52.11(3). On the exceptional accepted facts, publication adequately maintained public confidence without unacceptably compromising the public interest in retaining the appellant’s contribution. A prohibition order was disproportionate: paras [93], [95]–[96].

This was a statutory appeal to the High Court under regulation 17 of the Teachers’ Disciplinary (England) Regulations 2012 from the Secretary of State’s administrative decision to impose a prohibition order. No prior court judgment is stated.