McTier v Secretary of State for Education

Current statutory powers to prohibit teachers for misconduct may apply to conduct committed before the relevant legislation came into force, particularly where earlier regimes already regulated comparable misconduct. The court must assess the degree of retrospectivity and any unfairness.

On an appeal by rehearing, a decision is not wrong merely because the court would have reached a different conclusion. Nevertheless, considerable professional deference does not prevent the court setting aside a disproportionately harsh or inadequately reasoned decision. The decision-maker must engage with material mitigation, risk, lapse of time, practical effect and proportionality. A prohibition order must serve a protective and regulatory purpose, rather than operate as punishment.

The appellant, a professional double bass player and teacher, had pleaded guilty to three sexual offences committed against students in 1985, 1988 and 1994. A professional conduct panel recommended that no prohibition order be imposed. The Secretary of State disagreed and prohibited him indefinitely from teaching in specified English institutions, with a five-year period before review.

The appeal under regulation 17 of the Teachers’ Disciplinary (England) Regulations 2012 proceeded as a rehearing. The central questions were whether the Secretary of State had power under sections 141A and 141B of the Education Act 2002 to act by reference to historic conduct, and whether her decision was wrong under CPR 52.11(3)(a).

1. Power to prohibit. The Secretary of State had power to impose a prohibition order. The present statutory scheme could apply to misconduct committed before its commencement. The retrospectivity was weak rather than strong: it adjusted a sanctions regime applying to conduct already subject to broadly similar regulation, rather than retrospectively removing vested rights.
2. The successive statutory regimes showed an incremental expansion and continuation of protection against teacher misconduct. Applying Antonelli v Secretary of State for Trade and Industry [1998] QB 948 and the approach in L’Office Chérifien des Phosphates v Yamashita-Shinnihon Steamship Co. Ltd [1994] AC 486, there was no sufficient unfairness in applying the current regime to earlier conduct. The use of the present tense in section 141A did not prevent that construction.
3. Appellate standard. The Secretary of State and the panel had the primary judgment. The court should show considerable deference and should not substitute its view merely because it would have reached another conclusion. However, the statutory appeal standard of whether the decision was “wrong” was not identical to Wednesbury review. A disproportionately harsh decision could be set aside.
4. The Secretary of State’s reasons were materially defective. They relied principally on the seriousness of the convictions and the fact that the appellant remained subject to notification requirements. Treating the notification requirements as a reason requiring prohibition risked double counting and confused a protective measure with increased seriousness. The decision did not adequately address the different ages of the students, the absence of further offending, the sentencing judge’s assessment of future risk, the passage of time, the practical effect of the order, or whether the order was protective rather than punitive.
5. The decision was therefore flawed and wrong within CPR 52.11. It was set aside. The matter was remitted to the Secretary of State for a fresh decision in light of the judgment and the panel’s recommendation.

• Professional conduct panel: recommended that no prohibition order be imposed.
• Secretary of State for Education: rejected the recommendation and imposed an indefinite prohibition order, with review unavailable for five years.
• High Court (Administrative Court): allowed the appeal, set aside the decision and remitted the matter for reconsideration.