Andrew Bruce v Secretary of State for Education

A statutory appeal from a teacher prohibition order is ordinarily a review, but may proceed as a rehearing-type appeal where the interests of justice require. Such an appeal permits a more interventionist re-analysis of the evidence, while remaining bounded by the grounds of appeal and recognising the primary tribunal’s advantage in assessing live witnesses.

Professional regulatory proceedings are civil, not criminal. Criminal evidential rules do not apply directly, although fairness may require comparable safeguards. Hearsay may be admitted where the applicable rules permit it and admission is fair and reasonably relevant. A regulatory panel is more proactive than a criminal trial judge, particularly with an unrepresented party, but is not thereby inquisitorial in the full sense.

The appellant, a retired teacher, brought a statutory appeal under Schedule 11A to the Education Act 2002 against the Secretary of State’s permanent prohibition order. The order followed a Professional Conduct Panel’s findings that he had engaged in inappropriate conduct towards three pupils in 2004, 2015 and 2016, including conduct found to be sexually motivated.

The appeal challenged the admission of hearsay evidence concerning alleged similar conduct and advice in 1990, the Panel’s handling of evidence and procedure, its fact-finding and reasons, the effect of delay, and its inference of sexual motivation. The central issues were whether the Panel’s decision was wrong or unjust because of a serious procedural or other irregularity, and whether the prohibition order was consequently unlawful.

1. Appeal dismissed. The appeal was properly treated as a rehearing-type appeal because the interests of justice required it. The distinction from a review was real, but the High Court remained concerned with whether the decision was wrong or unjust, was confined by the grounds of appeal, and had to give appropriate weight to the Panel’s assessment of witnesses.
2. Professional disciplinary proceedings are not criminal proceedings. Criminal rules concerning hearsay, bad character and duplicity do not apply directly, although common-law and Convention fairness may require comparable safeguards. Under the Teacher Misconduct Disciplinary Procedures (2018), evidence could be admitted only where it was fair and reasonably relevant.
3. The 1990 material was hearsay but was tendered principally to establish that advice or guidance had been given, not to prove the truth of the underlying allegations. It was therefore fair to admit it, particularly because the appellant could respond to it, the material was relevant to allegation 2, and the Panel gave appropriate cautionary directions. The Panel’s rejection of allegation 2 demonstrated that it could distinguish between allegations and assess the evidence independently.
4. A regulatory panel’s duty to adopt an investigative approach did not make it inquisitorial in the full sense. It could assist an unrepresented party, clarify evidence and ask questions, but was not required to investigate independently, obtain medical records or develop evidence not advanced by the parties.
5. The Panel’s treatment of good character, delay, credibility, inconsistencies and the absence of incriminating material was not materially erroneous. Its reasons, read with the legal adviser’s directions and the underlying evidence, sufficiently explained the findings. The civil standard remained the balance of probabilities; seriousness and consequences did not raise that standard, although inherent probabilities remained relevant.
6. The Panel was entitled to infer sexual motivation from the proved conduct. The absence of a Lucas direction was immaterial. The conduct towards Pupil D was plainly of a sexual nature, and the circumstances of the other proved conduct supported the inference of sexual motivation. The permanent prohibition order was proportionate and not wrong or unjust.

The appeal was dismissed, with no order for costs.

High Court (Administrative Court): statutory appeal against the Secretary of State’s prohibition order dismissed. No order for costs.