Mahzia `Pepe’ Hart v Secretary of State for Education & Anor

On an appeal by way of review from a professional conduct decision, the court should exercise caution before interfering with findings of fact or evaluative judgments by a specialist tribunal. Intervention is justified only for an error of principle or where the decision falls outside the range of decisions reasonably open to the tribunal.

A prohibition order against a teacher must be necessary and proportionate, but the decision-maker need not apply mechanically the four-stage structure in Bank Mellat. Repeated bullying, intimidation and inappropriate conduct by a head teacher towards staff may be grave misconduct warranting prohibition, even where child safeguarding is not directly engaged.

The appellant, formerly a head teacher, appealed under regulation 17 of the Teachers’ Disciplinary (England) Regulations 2012 against a prohibition order imposed by the Secretary of State following a professional conduct panel’s findings of repeated bullying, intimidation, mocking and inappropriate comments towards staff.

She challenged the refusal to stay the proceedings pending related High Court litigation, the conduct of the hearing and disclosure, the panel’s assessment of the evidence, and the proportionality of the prohibition order. The central issues were the proper scope of review, procedural fairness, the treatment of witness reliability, and whether prohibition was necessary and proportionate.

1. The appeal was by way of review pursuant to CPR rule 52.21(1). The consequences of a prohibition order and reputational harm did not, without more, require a rehearing. The court could intervene in findings of fact or evaluative judgments only for an error of principle or where the conclusion fell outside the range reasonably open to the specialist panel.

2. The refusal to stay the professional conduct proceedings pending the High Court conspiracy proceedings was not procedurally unfair. The issues overlapped only partly. The High Court would not be bound or inhibited by the panel’s factual findings, and no issue estoppel arose. The High Court proceedings were not imminent and would not have determined the misconduct allegations or sanction in any event.

3. The late identification schedule, unused material and absence of a revised notice after withdrawn allegations did not render the hearing unfair. The appellant had long known the substance of the allegations and could not show that earlier disclosure would have materially changed the conduct of her defence.

4. Fairness did not require provision of an audio recording before closing submissions. The appellant and her representative had attended the hearing, taken notes and had access to the written evidence. The refusal to provide the recordings was over-cautious, but it did not make the proceedings unfair.

5. The panel was entitled to accept different parts of a witness’s evidence while rejecting others. Witness reliability is not an all-or-nothing question. The panel appropriately considered contemporaneous documents, objective facts, the possibility of exaggeration or false memory, and the effects of delay.

6. The panel and Secretary of State had applied the correct requirement that prohibition be necessary and proportionate. A formal four-stage application of Bank Mellat was unnecessary. The relevant balancing exercise included the gravity and duration of the misconduct, risk of repetition, the appellant’s interests, professional standards and the public benefit of retaining her skills.

7. Repeated bullying and intimidation by a head teacher towards several staff members over a number of years could constitute grave misconduct even without safeguarding concerns involving children. The absence of remorse or insight and the resulting risk of recurrence were powerful factors. The prohibition order was within the range of decisions reasonably open to the decision-makers.

8. The appeal was dismissed.

• Professional conduct panel: found a number of allegations proved, concluded that they amounted to unacceptable professional conduct and conduct liable to bring the profession into disrepute, and recommended a prohibition order reviewable after two years.
• Secretary of State: adopted the panel’s recommendation and imposed the prohibition order on 21 November 2022.
• High Court (Administrative Court): dismissed the appeal by way of review.