Dr Stephen Jones v Professional Conduct Committee of the Teaching Regulation Authority [2019] EWHC 3151 (Admin)

In Dr Stephen Jones v Professional Conduct Committee of the Teaching Regulation Authority [2019] EWHC 3151 (Admin), Mr Justice Cavanagh dismissed a statutory appeal brought by Dr Jones against a decision by the Secretary of State for Education to impose a prohibition order barring him indefinitely from teaching, without provision for review.

Dr Jones had been dismissed for gross misconduct by St Columba’s College, St Albans, in July 2015 following findings that he had failed to maintain proper professional boundaries with three male pupils aged 14 to 16. A Professional Conduct Panel convened by the Teaching Regulation Agency held a five-day hearing in March 2019 and found numerous allegations proved. The Panel found that Dr Jones had developed an inappropriately close relationship with Pupil A, including taking him on foreign holidays and trips without proper disclosure to the school or parents, buying high-value gifts, communicating excessively by phone and text, arranging counselling without parental consent or safeguarding checks, and maintaining contact in breach of his suspension conditions. Similar boundary failures were found in relation to Pupils B and C, including the provision of alcohol on an unauthorised trip to the New Forest. The Panel made findings of dishonesty, though it did not find a sexual motive. The Panel recommended a prohibition order without review, which the Secretary of State adopted on 2 April 2019 acting through the Chief Executive of the TRA.

Dr Jones, by then living in Canada, did not attend the hearing. Three days before it began, his solicitors applied for an adjournment on the ground that the College had not fully complied with disclosure directions. The Panel refused. The Panel then proceeded in Dr Jones’s absence. Shortly before the close of the TRA’s case, on the afternoon of the final day, Dr Jones applied to give evidence by Skype and to file three further witness statements. The Panel refused that application also.

Dr Jones advanced five substantive grounds of appeal to the Administrative Court. First, he contended that the Panel had erred in law by applying the provisions of a non-statutory document issued by the TRA, “Teacher Misconduct: disciplinary procedures for the teaching profession”, which he argued the Secretary of State had no lawful power to publish. Second, he argued that the Panel breached his right under regulation 9 of the Teachers’ Disciplinary (England) Regulations 2012 and his right to a fair hearing under Article 6 of the European Convention on Human Rights by declining his late application to give evidence by Skype. Third, he argued the Panel erred in refusing the adjournment sought on disclosure grounds. Fourth, he submitted the Panel erred in refusing to admit late witness statements from himself and the College’s former Nurse Manager. Fifth, he contended that these errors vitiated the Secretary of State’s final decision to impose the prohibition order. A sixth ground, concerning the independence of the Panel, was withdrawn.

Mr Justice Cavanagh held that the Secretary of State acted lawfully in issuing the TRA Procedures Document. Paragraph 2(1) of Schedule 11A to the Education Act 2002 required the Secretary of State to make regulations about the procedure to be followed in reaching disciplinary decisions. The Secretary of State had done so by making the 2012 Regulations, which set out the general four-stage structure and basic procedural requirements such as entitlement to a hearing, power to compel witnesses, and conduct of hearings in public. Paragraph 6(1)(c) of Schedule 11A specifically authorised delegation of functions to persons specified in the regulations. The judge concluded that, even absent express statutory authorisation, the Secretary of State possessed a common law or “third source” power to issue detailed procedural guidance and directions for the Panels. Such a power was ancillary to the statutory function of setting up the Panels, was for the public benefit, was for an identifiably governmental purpose, and amounted to something that could be done by a natural person. It was analogous to the residual ministerial power recognised in Shrewsbury and Atcham BC v Secretary of State [2008] 3 All ER 548. The judge rejected the submission that paragraph 2(1) of Schedule 11A meant that statute had “occupied the field” such that all procedural rules must be contained in a statutory instrument. The position was distinguishable from cases such as Attorney General v De Keyser’s Royal Hotel [1920] AC 508 and R (Fire Brigades Union) v Secretary of State [1995] 2 AC 513, in which the Government had sought to use prerogative powers to side-step protections granted by statute. Here, the TRA Procedures Document did not cut across or conflict with the 2012 Regulations but complemented them. In any event, even if the Document had been ultra vires, the Panel’s decisions on the procedural issues would have been the same, as they were based on general principles of fairness and the interests of justice.

On the substance of the procedural decisions, the judge emphasised that the appeal was by way of review under CPR 52.21, not a rehearing, and that the appellate court would only interfere with a panel’s exercise of procedural discretion if it exceeded the generous ambit within which reasonable disagreement was impossible or was plainly wrong. The Panel had not erred in refusing to permit Dr Jones to give evidence by Skype. Regulation 9 of the 2012 Regulations, headed “Entitlement to appear and be represented at hearings”, could not be interpreted to mean that a hearing could never proceed in a teacher’s absence, as that would permit a teacher to block proceedings indefinitely. The Panel had correctly directed itself that the discretion to proceed in the absence of the teacher was severely constrained and could only be exercised in rare and exceptional circumstances with the utmost care and caution, applying the approach set out in R v Jones [2003] 1 AC 1. The Panel took proper account of all relevant factors, including that Dr Jones had made clear through his solicitors that he did not intend to attend, that there was no indication an adjournment would result in his attendance, that the proceedings had commenced in 2015, that ten witnesses were due to give evidence, and that the Panel had the benefit of written submissions previously filed by Dr Jones. The decision was well within the reasonable scope of the Panel’s powers and there was no breach of Article 6. The late application for Skype evidence was made after the TRA had closed its case and all eleven witnesses had given evidence. The Panel was entitled to refuse it on grounds of fairness to the TRA and because new points could not be put to witnesses who had already departed.

The judge rejected the adjournment ground. The Panel had found, on evidence from the College’s Human Resources Manager, that archived emails from former staff members could not be disclosed because they were encrypted and the only person with the password, a former Head of IT who was subject to a police investigation, said he could not remember it. An IT expert advised that the emails could not be accessed by commercially available means. The Panel was entitled to conclude that there was no realistic prospect of obtaining disclosure even if the hearing were adjourned. Whether inaccessible documents in a party’s system were “held” was a semantic point; the practical reality was that disclosure was impossible. The decision was within the Panel’s reasonable discretion and involved no breach of Article 6.

The judge likewise rejected the challenge to the refusal to admit the late witness statements from Dr Jones and Ms O’Sullivan, the former Nurse Manager. Dr Jones had been given ample opportunity to file evidence in a timely manner but had failed to meet even the final deadline set on the penultimate day of the hearing. The Panel was entitled to take the view that admitting new matters at such a late stage would be unfair to the TRA and other witnesses and might necessitate recalling witnesses. The judge had read both statements and found that neither raised important new issues of fact; both were largely comment and Ms O’Sullivan had no direct involvement in the events giving rise to the allegations. The Panel gave sufficient reasons for its decision and there was no breach of Article 6.

In short, the Panel acted lawfully and within its powers at all stages, applied correct legal principles, reached decisions that were within the generous ambit of its discretion, and the Secretary of State’s decision to impose a prohibition order without review was lawful.

General Medical Council v Hayat [2018] EWCA Civ 2796
Jones [2002] UKHL 5; [2002] 2 Cr App R 9; [2003] 1 AC 1
R (Miller) v Secretary of State for Exiting the EU [2018] AC 61
R (Miller) v Prime Minister [2019] 3 WLR 589
R v Secretary of State for Health, ex p C [2000] 1 ECR 471
Atcham BC v Secretary of State [2008] 3 All ER 548
R(W) v Health Secretary [2016] 1 WLR 698
General Medical Council v Adeogba [2016] 1 WLR 3867
Attorney General v de Keyser’s Royal Hotel Ltd [1920] AC 508