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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Johnston v Secretary of State for Education [2016] EWHC 1871 (Admin) (13 July 2016) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2016/1871.html Cite as: [2017] ELR 163, [2016] EWHC 1871 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		13 July 2016

1. MR JUSTICE HOLMAN: This is a statutory appeal by a teacher  to the High Court, pursuant to regulation 17 of the Teachers' Disciplinary (England) Regulations 2012, SI [2012], no.560.
2. The appeal is brought against the making of a prohibition order by the Secretary of State for Education. However, the procedure and mechanism provided by those regulations is for a Professional Conduct Panel appointed by the Secretary of State to determine the facts of the case concerned and to make a recommendation to the Secretary of State as to whether a prohibition order should be made.
3. In this case the Panel made a number of findings of fact adverse to the teacher, as I will later explain, and recommended to the Secretary of State that a prohibition order should be made. The Secretary of State accepted and agreed with that recommendation and did make a prohibition order. The Panel had in fact recommended that the period before there could be a review of the prohibition order should be one of 2 years. The Secretary of State considered that that was too short a period and her own decision was that there could be no application to set aside the prohibition order until 4 years had elapsed at the earliest from the date of the order.
4. There is in fact no appeal in this case against the sanction itself, serious though it is, if the findings of the Panel as to the facts stand. In other words, it is accepted that if the teacher did do or fail to do the things which she is alleged to have done, or to have failed to do, then the prohibition order was a proportionate and lawful sanction.
5. The challenge is to the findings themselves, as appears very clearly from section 5 of the appellant's notice filed on 23 February 2016. She says in section 5: "I wish to challenge all findings of a Panel which were made against me (...)." The findings are then set out in appropriate summary form.
6. The appellant is now aged 60, and was aged 57 at the date of the matters in issue. She had been a teacher for many years and was able to produce impeccable references as to her teaching capabilities. This case involves events exclusively on two dates, being the 29 and 31 January 2014. There is no doubt that on each of those dates she was faced with difficult and challenging behaviour in the classroom. It is the utmost professional, as well as private, tragedy for her, and indeed her family, that her behaviour as a teacher on those two days fell below acceptable standards. I do approach this appeal with considerable feelings of sympathy for the appellant, that her otherwise exemplary career as a teacher has effectively ended in this way; and with the utmost sympathy for her family who have obviously been deeply affected as a result.
7. The essential factual circumstances were that at the material time the appellant had very recently begun working as a supply teacher in a school in Kent. Her task was to teach young and very demanding special needs children around the age of 5. She had, however, many years' experience as a special needs teacher and was fully qualified by training and experience for that demanding role.
8. There was installed in the classroom a CCTV camera which, as she knew, made a complete recording of the classroom throughout the teaching day. That CCTV material was viewed very shortly after the events in question and led to an investigation, and ultimately to the hearing before the Panel.
9. At that hearing, the only oral evidence was given by the appellant herself and also by the headteacher of the school concerned. However, the headteacher had not personally witnessed any of the events concerned. She herself had merely viewed the CCTV material.
10. The appellant teacher strongly denied, or in one case gave an explanation for, the events concerned. The evidence against her consisted solely, but I have to say vividly, of the CCTV material.
11. As well as hearing the evidence from the appellant, the Panel clearly viewed that material, and indeed in an early part of their reasons they say that they had "carefully and repeatedly viewed the CCTV recording."
12. Of course, the Panel is a specialist panel, and in so far as they make professional judgments as to whether any act or omission was appropriate or inappropriate, I must, and do, pay considerable weight to their professional judgment.
13. On the essential factual issue of whether or not any particular incident occurred, I myself have today viewed the material parts of the CCTV recordings several times, publicly, here in the courtroom. I hope that all present will accept that by viewing and viewing again, and scrolling backwards, assisted by the appellant's husband with his lap-top, I have conscientiously endeavoured to make myself as clear as possible as to what the CCTV recordings reveal. I have not done that privately, in my own room, but entirely here in the court room for all to see, including members of the public and the press.
14. Since the primary evidence against the appellant is exclusively that CCTV material, I am in fact in as good a position to assess and make a judgment as to what did or did not happen, as a matter of fact, as was the Panel. They reached their decisions on the appropriate standard of the balance of probabilities. That is an important point, for it was not necessary for them to be sure that any given incident happened. They were required only to be satisfied on the balance of probability that it happened.
15. In so far as this is an appeal against the findings of fact, it seems to me that the essential question for me on this appeal, having myself viewed the CCTV material as I have described, is whether it was open to the Panel to reach the conclusions that they did on the basis of that material.
16. If I were to feel that any one or more of the conclusions is not justified on viewing the CCTV material, then I would hold it to be wrong and I would, as a minimum, strike out that particular finding and, if it impacted at all on sanction, allow this appeal and remit the whole matter for redetermination of the sanction.
17. Mr Carl Fender has appeared today on behalf of the appellant. I would wish to pay a sincere tribute to the cogent and balanced way in which he has argued her case. No one could have put it better, either by his written material or by his oral submissions today. Essentially, his submissions can be divided into two broad categories. First, that when the CCTV material is viewed, it simply does not justify or support the findings made. Secondly, that in any event, the findings of the Panel are insufficiently reasoned in that they do not record with any particularity the evidence that the appellant herself had given to them, and their analysis of that evidence and how it impacted on their findings.
18. I have to say, however, that save in relation to one allegation, namely allegation 2(d), to which I will refer below, it does not seem to me that there can be any real substance in that reasons-based challenge.
19. The Panel knew perfectly well that in the case of behaviour directly alleged against her, in particular on 29 January 2014, the appellant's case was that she simply denied doing what she was alleged to have done; and was saying, in effect, that what one sees on the CCTV recording had been misunderstood or misinterpreted.
20. In effect, the decision of the Panel on those allegations was that they could see it for themselves in the CCTV recordings and they were satisfied on the balance of probabilities that what they saw amounted to the allegations charged.
21. In relation to the more serious of the allegations on 31 January 2014, which relate to an omission or failure by the appellant to take action when the other teaching assistants were acting inappropriately, the Panel knew perfectly well that her essential defence was that she had not seen, and was not aware of, the matters referred to.
22. Again, the essential decision of the Panel, having viewed the CCTV material, was to the effect that she must have seen and must have been aware of the matters in question. It does not seem to me that, in relation to any of those matters, the Panel were under any obligation further to elaborate their reasons. With that background, I now come to the specific allegations.
23. The first two related to 29 January 2014. One of the small group of pupils under the charge of the appellant was a boy known as Pupil A, who was then aged 5. He is autistic and clearly has learning difficulties, and can clearly be seen to display behaviour which would be challenging to any teacher.
24. It was alleged and found proved on a balance of probability that in a short period of about a minute, between recording times 10.40.33 and 10.41.15, the appellant struck Pupil A and also caused him to fall on to the floor by pushing him off his chair. So far as the reasons of the Panel were concerned, they said:

"We have carefully and repeatedly viewed the CCTV recording of the alleged 'strike'... and are satisfied on the balance of probabilities that [the appellant] did strike Pupil A at the relevant time. We note particularly that [the appellant] is seen to raise her hand at the relevant time and very shortly thereafter, with [the appellant's] hand in shot and very close to Pupil A's head, Pupil A's head/upper body is seen to jerk to the side.

On the basis of the CCTV footage, ... we reject [the appellant's] suggestion that she did not strike Pupil A at the relevant time. Clearly the conduct of [the appellant] in this instance was inappropriate in the circumstances."

25. I have myself now viewed that short part of the CCTV recording several times, both in normal speed and also very markedly slowed down by use of an 'app' on the appellant's husband's lap-top. In other words, I have been able to view it both in "real time" and also on a frame-by-frame basis.
26. There is no doubt, as Mr Fender has submitted, that Pupil A was being very challenging at the time, sitting on a small child's chair at a low table. There is what I will call a "struggle" between him and the appellant, in which the appellant is trying to keep his hands and arms under control.
27. It is perfectly true, as Mr Fender says, that the positioning and relationship between the CCTV camera, the appellant, and Pupil A is such that the view to the left-hand side of the appellant, where Pupil A was sitting, is to some extent obscured. It happens that the appellant is left-handed and so her left arm and hand are her dominant ones.
28. One can, in my view, clearly see her left arm raised above her left shoulder, with her hand in a position behind and to the left of her own head. One can clearly also see that arm swing down very rapidly in the direction of the head and face of Pupil A. One can, in my view, clearly see, as the Panel said, the head and/or upper body of Pupil A jerk to the side.
29. I accept that one cannot see with complete clarity everything that is happening, precisely because it is obscured by the appellant's own head and body. Speaking personally, I would be very far from sure (if that was the required standard of proof) whether there was any actual physical contact between the appellant's hand and the face or body of Pupil A.
30. Speaking personally, I agree with the Panel, on the balance of probabilities, that her hand did strike Pupil A. It is possible that Pupil A flinched and jerked his head as an instinctive reaction as the hand came down towards it, and possible that as a result there was no actual physical contact between the hand and his body or face. But even if that occurred, the motion or action of the appellant was, in my view on a balance of probabilities, clearly a striking action, which would in itself be inappropriate conduct on the part of a teacher.
31. The appellant gave evidence that, a few seconds earlier, Pupil A had in fact bitten the back of her hand and that her subsequent hand and arm movements were themselves merely an instinctive reaction to being bitten. One can see in the CCTV that Pupil A's mouth appears to be very close to the hand of the appellant.
32. Further, she herself had made an entry in the log book in relation to this pupil, albeit timed at 10.00am, that he had "Kicked and scratched [her] drawing blood on her left hand."
33. It may be that it was an instinctive reaction by her to pull her hand and arm away and upwards having, as she claims, been bitten or scratched by him. The gravamen of this charge, however, is not that her hand or arm got raised upwards, but, rather, that it then very clearly got rapidly moved down in a striking motion in the direction of his head.
34. Having, as I have said, viewed that part of the CCTV now several times, I am unable to conclude that there was any material error by the Panel in their findings in relation to that allegation. They are the primary decision-making body. The issue for me is not whether I am positively satisfied that they were right, but, rather, whether I am satisfied that they were wrong. As it happens, I have to record that on the balance of probabilities, I am positively satisfied that they were right. So the challenge to that finding must fail.
35. The second finding, in relation to 29 January 2014, was as follows:

"We have carefully and repeatedly viewed the CCTV recording of the alleged 'push'... and are satisfied on the balance of probabilities that [the appellant] did push Pupil A off his chair, thus causing him to fall to the floor at the relevant time. We note particularly that [the appellant] is seen to lift his leg and tip the chair, causing him to fall to the floor. On the basis of the CCTV footage ... we reject [the appellant's] suggestion that she did not cause him to fall to the floor as a result of a push. Clearly, the conduct of [the appellant] in this instance was inappropriate in the circumstances."

36. Again, I, too, have viewed several times, both at normal speed and in slow motion, the CCTV recording of this incident which followed within less than half a minute of the incident of the strike.
37. The case of the appellant was, and is, that she herself did not cause him to fall to the floor. She said in her oral evidence that she had told him to go and sit on floor and that:

"He refused to go, he just sat on there, and he just defiantly refused to move. So I went to the chair, and I said: 'Go and sit on the floor'. And at that point, I raised my voice, and he got up and he scuttled over and sat on the floor. I did not tip him on to the floor. I did not throw him on to the floor."

38. In an answer, merely a few lines of transcript later, she said again:"... then he ... scuttled over to the floor."
39. The appellant's account, therefore, is that she did tell him to sit on the floor and that, after initial defiance, he had simply "got up and scuttled over" and sat on the floor.
40. The way Mr Fender put it today was that there had been"a clumsy transition by Pupil A from chair to floor."
41. Mr Fender correctly pointed out that there had been no apparent reaction from the teaching assistant, who was sitting at the table and very close indeed to this incident at the time of it, nor any subsequent report or complaint from her about it. That is true.
42. Again, however, I regret to have to say that my own clear impression, having, as I say, now viewed the relevant part of the CCTV recording several times, is that it was not at all a case of this small boy, of his own volition, getting up and scuttling over and sitting on the floor. Rather, exactly as the Panel described, there was, I regret, a clear pushing by the appellant of Pupil A off his chair and, at the same time, a tipping of the chair so that he ended up on the floor. Far from considering that the Panel were wrong in their findings on that matter, I regret to have to say that I consider that they were right.
43. The remainder of the allegations related to events two days later on 31 January 2014. The allegations relate to two distinct matters. The first matter was that one of the teaching assistants tied the shoelaces of Pupil A together so that he was, as it were, 'hobbled'.
44. It is indeed admitted that the CCTV evidence clearly shows one of the teaching assistants doing that at about 10.22.10, and admitted that Pupil A's shoelaces remained tied together for about two hours.
45. The first allegation in time was at 2(a), namely that the appellant "Allowed and/or took no action to prevent a teaching assistant under her supervision from tying together Pupil A's shoelaces."
46. The Panel found that allegation not proven. They said:

"On the balance of probabilities we find this particular not proved. We are satisfied on the balance of probabilities that, due to the positions in the room of the teaching assistant and Pupil A in relation to [the appellant], she would not have been aware at the time that the teaching assistant was tying together Pupil A's shoelaces."

47. It is indeed apparent from viewing the CCTV that at the precise moment when the teaching assistant is seen tying together the shoelaces, the appellant, although very close, was looking in an opposite direction and concentrating on an activity with other pupils.
48. There is, of course, no appeal from that finding that an allegation had not been proved, but I do record that I agree also with the finding of the Panel in that regard. I, too, would not be at all satisfied, even on a balance of probabilities, that the appellant saw or had any awareness of the shoelaces actually being tied together at the time when they were.
49. It is, however, important to stress that the very fact that the Panel did find that allegation not proved indicates their own capacity carefully to review the CCTV material in relation to each of these allegations, and to discriminate between that on which they were satisfied that it was proved and that on which they were not satisfied that it was proved.
50. The thrust of the other allegations in relation to the shoelaces was that the appellant both failed herself to untie the shoelaces and/or failed to instruct a teaching assistant to untie the shoelaces. Her essential defence to that was, and is, that at no stage during the long period when the shoelaces were tied together had she observed, or appreciated, or been aware, that the shoelaces were tied together.
51. The essential question was and is whether that can possibly be true, having regard to the extent of opportunities for to her observe Pupil A during that period and her interaction with him.
52. The findings of the Panel on these two aspects were as follows:

"We are satisfied on the balance of probabilities that [the appellant] should have taken steps to untie Pupil A's shoelaces and failed to do so.

The CCTV evidence is clear that for approximately 2 hours, Pupil A's shoelaces are tied up and throughout that period he moves around with some discomfort, falling over on a number of occasions.

The shoelaces are finally untied by one of the teaching assistants. We are satisfied that it is beyond belief that [the appellant] was not aware that Pupil A's laces were tied up for that period and therefore reject [the appellant's] evidence in this regard.

She was with him alone for around 30 minutes while his laces were tied together. We find that it was inappropriate for Pupil A's laces to be tied together and for [the appellant] to take no steps to untie them ... For similar reasons, as laid out above, we find [the allegation that she failed to instruct a teaching assistant to untie them] proved.

[The appellant] clearly failed to instruct her teaching assistant to untie Pupil A's shoelaces during the relevant period. If she had given such an instruction, they would have been untied.

It is of course [the appellant's] evidence that she was not aware that Pupil A's laces were tied together. We reject that evidence in the light of what we see on the CCTV footage and Pupil A's actions and movements in the room during the relevant period, in the presence of [the appellant]."

53. The CCTV recording of that morning lasts for two or more hours. It has not been practicable or possible for me during this hearing, which was confined to less than a court day (an earlier case having taken the first hour of the day), for me to view the whole two hours, or more, of that CCTV.
54. In his skeleton argument for today, Mr Jonathan Moffett, who appears on behalf of the Secretary of State, identified at paragraph 47 fourteen moments, or points, in the CCTV recording, when he says:"It is highly likely that the appellant would have noticed that Pupil A's shoelaces were tied together."
55. In order to save some time today (and I note that, as I now speak, it is 5.30pm) I asked Mr Moffett over the lunch adjournment to select and identify his five most obvious instances of when he says the appellant must have noticed that the shoelaces were tied together. He did so, and I have now viewed those points on the CCTV recording several times.
56. The first point identified by Mr Moffett is at 10.25, when Pupil A moves from the left-hand side of the room, as one views the CCTV, to the right-hand side of the room. He does walk in an awkward way, right past the appellant and very close to her. My own assessment is that on that particular occasion she appears to have been fully occupied in activity with other pupils and certainly shows no sign of noticing Pupil A walk past her at all.
57. The next point relied upon by Mr Moffett is around 10.35 on the CCTV. At this point, Pupil A is clearly seen hobbling. The appellant can clearly be seen looking at him and indeed taking his hand.
58. The next point identified by Mr Moffett is at 10.38 and 10.39 on the CCTV recording. At 10.38, Pupil A, having his laces tied together, falls over. At 10.39.37-40, the appellant takes him by the hand and looks directly at him.
59. The next point relied upon by Mr Moffett is at 11.25.30. At this part of the morning, the only people in the room are the appellant and Pupil A. He is clearly seen stumbling across the room.
60. Finally, at 12.01.45, the appellant herself helps him walk, in a hobbling manner, across the room.
61. The Panel did not precisely identify in their reasons the points in the CCTV recording which satisfied them that the appellant was aware for an appreciable period of time that morning that his laces had been tied up. They merely say that:

"It is beyond belief that the appellant was not aware ..." and that "we reject [her] evidence in the light of what we see on the CCTV footage and Pupil A's actions and movements in the room during the relevant period in the presence of [the appellant]."

62. So, we do not know which points in particular of the CCTV recording most impacted upon the Panel when they reached the decision that they did. I agree with Mr Fender that it would have been preferable if their reasons had been fuller and they had precisely identified the point or points in the CCTV recording that led them to those conclusions.
63. Nevertheless, having seen the CCTV myself, and in particular the passages highlighted by Mr Moffett which I have described, I have to record that I personally am satisfied, at least to a balance of probability, that this appellant must have observed, become aware, and appreciated during the course of that morning that this small boy's shoelaces had been tied together. She would, frankly, have to have been completely "blind" to what was going on close to her, in her classroom, not to have done so. It is not in issue that she herself did not untie the shoelaces, nor instruct either of the teaching assistants to do so. I regret that, in my view, the challenge to those findings in relation to the shoelaces must fail.
64. The next allegation was that on 31 January 2014 the appellant allowed and took no action to prevent teaching assistants under her supervision from manhandling Pupil A.
65. Again, it is not in issue that there were three occasions that morning during which one or other or both of the two teaching assistance in the classroom did "manhandle" Pupil A in inappropriate ways.
66. The case of the appellant was that she was only aware of the third of these occasions. It occurred towards the end of the morning, and she had decided that rather than say or do anything at the time, she would raise it with the teaching assistant concerned at lunchtime.
67. The gravamen of the charge is, however, that she must have been aware of one or both of the earlier incidents, and that if she had taken timely action to reprove the teaching assistant, or assistants, then further episodes of manhandling would not have occurred.
68. The finding of the Panel was as follows:

"On the balance of probabilities, we find this allegation proved. It is clear from the CCTV footage that Pupil A is manhandled by teaching assistants at various times during the relevant period on the relevant day and [the appellant] makes no effort to prevent these events from occurring or being repeated.

For example, Pupil A is at one time spun on his back by the feet, on another occasion is carried across the room and on another occasion is roughly returned to the classroom from the sensory room. The inaction of [the appellant] was inappropriate in all of the circumstances."

69. Those three occasions instanced by the Panel occurred as follows:
70. First, at 10.22, immediately after a teaching assistant wearing a white scarf had tied the shoelaces of Pupil A together, she did clearly manhandle Pupil A in an inappropriate way from the right-hand side of the room, as one views the CCTV, towards the left-hand side of the room. In the process, she and Pupil A passed very close in front of the appellant.
71. It is said by Mr Moffett that the Panel were clearly entitled to conclude that on that occasion the appellant must have seen and been aware of what was happening, and I agree.
72. The next episode occurred at 10.41, and this is what the Panel described as Pupil A being "spun on his back by the feet." This episode is very clearly visible on the CCTV and was, frankly, a very serious episode of badly treating a vulnerable 5 year old pupil.
73. The teaching assistant wearing a white scarf does handle him very roughly, he ends up on the floor, and can indeed be described as having been "spun on his back by the feet". The other teaching assistant, wearing a striped blouse, does indeed get involved in the fracas also. But what is of significance is that the appellant herself then crossed the room and, herself, held Pupil A.
74. I do not say, nor is it alleged, that the appellant, herself, held Pupil A or "manhandled him" herself in any inappropriate manner at this point. But I agree with Mr Moffett that it is very clear on a balance of probabilities that at that point the appellant must have been aware of part, if not all, of the episode of serious manhandling of Pupil A by the teaching assistants.
75. The third episode occurred at 11.22.19. Prior to this, all the pupils had, for a period, been out of the classroom and apparently in the adjacent sensory room. The appellant was still in the classroom. When the door was opened, one of the teaching assistants effectively "threw" Pupil A through the door and into the room. This is what the Panel described as his being "roughly returned to the classroom."
76. This was clearly in full view of the appellant, who must have appreciated the inappropriateness of what was done. She, herself, does not deny that in relation to this particular episode, but she says, as I have already described, that she decided to take no action until the end of the morning.
77. I regret to say that, having myself viewed the CCTV, it does seem to me that the Panel were fully justified in making the findings that they did, in that the appellant must have been aware of the manhandling; in particular, that which occurred at 10.41, when Pupil A was badly treated by the teaching assistants and she appears to have done nothing to stop subsequent ill-treatment.
78. The final matter found proved, and against which the appellant appeals, is rather different. This was allegation 2(d). It relates to exclusion of Pupil A from classroom activities. The allegation found proved was that the appellant had:"Inappropriately excluded and/or allowed Pupil A to be excluded from classroom activities on one or more occasions."
79. The finding of the Panel was as follows:

"We find this particular proved on the balance of probabilities. We find that Pupil A was inappropriately excluded from classroom activities on more than one occasion, including for 30 minutes on the floor, while other activities continued for the other children, 15 minutes, while the other children ate their snack and while in the corner after being pushed off his chair by [the appellant].

All of these exclusions were without justification in their duration and were therefore inappropriate."

80. It is to be noted that there was no adverse finding against the exclusions as such, but only in relation to their duration. This might have required me to view the CCTV for an aggregate further 45 minutes. Realistically, there was no time available today in which to do that.
81. As I understand it, it is not in issue or challenged that that there were, at least, the two periods of exclusion for 30 and 15 minutes respectively. The gravamen of the finding was that periods of exclusion of that duration were "without justification" and "therefore inappropriate."
82. The appellant had given quite considerable evidence about this aspect of the case, now to be found at pages 88 and 89 of the verbatim transcript of the hearing, bundle pages 191 and 192.
83. She was asked why she had not reintegrated Pupil A into the classroom activity and replied:

"Because he was noisy ... [one of the teaching assistants] was shouting at him. He was snarling, and at that point I did not feel that it was safe for the other children for him to be around."

84. A little later, she said:

"Well, between Pupil A and [the teaching assistant] the children themselves ... they were managing, but [the teaching assistant] and Pupil A were making a lot of noise ...."

85. Later, she said:

"As I said, I did not want to take that risk, because from the noise that was in the room, between Pupil A and [the teaching assistant] then I did not feel, rightly or wrong, I did not feel that it was safe for him to come over because I did not know what he was going to do."

86. A little later, she said:

"Perhaps ... looking back on it, perhaps I should, but at the time, it just ... I did not feel that it was safe to invite him back over because I did not know what he was going to do, because he was not calm enough. And even though he was sitting there, the noise that was coming and the snarls and everything else, I did not feel that it was safe to integrate him with the others because I did not know what he was going to do."

87. In relation to this allegation, it seems to me there is much more substance in the reasons challenge of Mr Fender. The appellant had been asked why she had kept him excluded from activities for the periods in question. She had in fact given a quite detailed explanation in the passages I have cited.
88. It is, of course, essentially a matter for the judgment of a professional panel such as this, whether acts of omission, or omissions, of a teacher are appropriate or inappropriate; but when the teacher has given a clear account and set of reasons for her acts or omissions, it does seem to me that the Panel are required to record and analyse that account and reasons, before simply jumping to their own bald conclusion that the exclusions were without justification in their duration, and inappropriate.
89. For that reason, I consider that the finding on that particular allegation is unreliable and unsafe. Mr Moffett submitted that even if that is so, there is really nothing I can or should do about it. He says that pursuant to regulation 17, this is an appeal simply from the prohibition order itself. Frankly, that particular allegation adds nothing to the making of, and the appropriateness of, the prohibition order. When the Panel came to discuss whether or not a prohibition order should be made, they focused on a number of the other allegations found proved but, indeed, made no reference at all to this particular allegation.
90. Similarly, when the Secretary of State came to give her final decisions and reasons, she simply makes no reference at all to that particular allegation. It is obvious that, compared with the other allegations found proved in this case, that one was of the least gravity.
91. Judgments may be made as to whether or not the duration of a period of exclusion was inappropriately long, but when all is said and done this particular allegation turns entirely on the difference between 15 minutes or 30 minutes, and some lesser period. On the scale of gravity, it is simply nowhere near as grave or serious as striking a 5 year old child; or tipping him out of his chair; or allowing him to be 'hobbled' in the classroom for the better part of two hours with his shoelaces tied together.
92. In other words, although I consider that the finding of the Panel on that particular allegation is insufficiently reasoned and can not be regarded as reliable or safe, it cannot possibly impact on the prohibition order that was made in this case or its duration.
93. It seems to me, however, that I have ample power under CPR part 52 rule 52.10(2)(a) to give effect to my decision in relation to that particular allegation, by varying the "order or judgment" of the Panel, in so far as it relates to that allegation.
94. It is perfectly clear from the 2012 regulations, read as a whole, that fact finding in these cases is effectively delegated by the Secretary of State to the Panel pursuant to the regulations.
95. Indeed, regulation 7(5) refers to: "Where a Professional Conduct Panel finds a teacher - (a) to have been guilty of unacceptable professional conduct ..." it must make a recommendation for the Secretary of State as to whether a prohibition order should be made. So the language of that regulation is that the Panel makes a "finding" and it is a finding in relation to "guilt".
96. I cannot accept the submission of Mr Moffett that in this situation I am powerless to make any order to give any sort of effect to my decision in relation to that allegation, simply because the underlying decision as to the prohibition order must stand unaffected.
97. I propose, therefore, to exercise my power under rule 52.10(2)(a) to vary the decision of the Panel to the extent only of deleting their finding in relation to that particular allegation; but in relation to all other grounds of appeal, and specifically to the decision to make a prohibition order in this case, I regret that this appeal must be dismissed.
98. Did you have a look at the order that I drafted?
99. MR FENDER: I did.
100. MR JUSTICE HOLMAN: Do either of you have any comments on it, so far as it
101. MR FENDER: I have no objection to the draft, save to say that I anticipate there will be a further paragraph added in respect of my learned friend's costs' application.
102. MR JUSTICE HOLMAN: Yes, that is why I said "in so far as it goes". We will come to Costs. Do you have any comment on it, as far as it goes, Mr Moffett?
103. .MOFFETT: No, my Lord. Thank you.
104. .MR JUSTICE HOLMAN: Mr Fender, would you be able, very, very kindly to type that up, or cause it to be typed up in a properly drafted out order, and lodged either with this associate or with my clerk, but either way it will come to me to check it. Tomorrow, of course, not now.
105. .MR FENDER: Yes, by 4 o'clock tomorrow?
106. .MR JUSTICE HOLMAN: Any time convenient to you.
107. .MR FENDER: I am grateful.
108. .MR JUSTICE HOLMAN: Any time, there is no urgency on this. If you are busy tomorrow and you would rather do it on Friday, it is all the same to me.
109. .MR FENDER: Thank you.
110. .MR JUSTICE HOLMAN: There is no pressure at all. Just whenever is convenient. All I mean is, I am not expecting you to do it tonight.
111. .Well, now, what about the question of costs?
112. .MR MOFFETT: There is an application for costs, my Lord.
113. .MR JUSTICE HOLMAN: Yes.
114. .MR MOFFETT: I do not know of the principles.
115. .MR JUSTICE HOLMAN: There are two issues, then. One is the principle and the other one is quantification. You will no doubt ask me to assess them.
116. .MR MOFFETT: Yes.
117. .MR JUSTICE HOLMAN: I know that a costs' schedule was lodged, and I think it has been left, I am afraid, in my clerk's room. (To counsel) Do you have a spare copy? Mr Fender, what do you say about the principle?
118. .MR FENDER: I cannot object to it.
119. .MR JUSTICE HOLMAN: I do not think you can. I am very, very sorry. I know it is an added blow, but if appeals like this are brought and they are unsuccessful, I am afraid you will have to pay the costs.
120. .Now, so far as the quantification is concerned, have you seen this schedule?
121. .MR FENDER: I have had it here (indicates).
122. .MR JUSTICE HOLMAN: How long have you had it?
123. .MR FENDER: Since Monday.
124. .MR JUSTICE HOLMAN: All right, so you have had it well within the time required by the rules. Do you wish to, it has a bottom line of -- they call it "grand total", I always dislike the word "grand" in these situations, but it has a bottom line of £8,538.00.
125. .MR FENDER: Yes.
126. .MR JUSTICE HOLMAN: Do you have any observations on the make up of that figure?
127. .MR FENDER: I do.
128. .MR JUSTICE HOLMAN: Yes.
129. .MR FENDER: There is a document, "Work Done on Documents", a separate schedule, in fact. The first observation I make is that my learned friend, I believe, it was my learned friend was instructed to advise and so, in respect of fees for counsel, there is a separate fee for advice for these documents.
130. .MR JUSTICE HOLMAN: Wait a minute. I am just looking -- is this £2,260 a schedule of work done on documents something additional, or is this merely explanatory?
131. .MR MOFFETT: It is included. The figure, my Lord, is at the top of the third page.
132. .MR JUSTICE HOLMAN: There we are: £2,260. So just hang on, just one second. Sorry, forgive me. If we just start on the first page: various lawyers are saying they did various bits of work and that generates £464.00, 2.9 hours by some fee earner at £160.00. 0.5 hours at £160.00, which gets to £80.00. Then we have letters in and out, and all of that.
133. .Then we have: "Work Done on Documents", so that is additional, is it not, to those items. They claim to have spent, in aggregate, on this:
134. .2.9 hours, 0.5 hours, 2.8 hours, 0.1 hours, 0.6 hours, 2.4 hours, 0.6 hours, and a further 13 hours' work done on documents, if I have that right. So just let me just add all that up for a moment.
135. .They reckon they spent 23 hours on this, that is before we get to Mr Moffett?
136. .MR FENDER: Yes.
137. .MR JUSTICE HOLMAN: Then we have Mr Moffett. There is a fee in for the hearing, the reasonableness of which I would not thought you could challenge, maybe you do not, and then separately there is a fee "for advice conference and documents".
138. .Well, that of course, this is a pro-forma, that is advice/conference/documents. It may be that the word "documents" should have been deleted at that point. This is probably, essentially, fee to Mr Moffett for advice.
139. .MR FENDER: Yes.
140. .MR JUSTICE HOLMAN: Yes, and your point is?
141. .MR FENDER: My point is, my Lord, that there is, I would say that within the 23 hours, that clearly there has been a considerable amount of review work done on the case.
142. .MR JUSTICE HOLMAN: Yes, that is half a week's work, is it not.
143. .MR FENDER: Yes, and I am concerned that essentially there is duplication of work in seeking counsel's advice.
144. .Now, if they want to seek counsel's advice, it seems to me that the solicitor instructing him has been saved the job, I would say, in doing the preparation work for responding to this appeal.
145. .MR JUSTICE HOLMAN: Well, I do not know about that. Remember, I was at the Bar for 24 years, and when I was very junior at the Bar, solicitors, used to arrive with suitcases full of documents and they tipped them out on the floor and said: "Well, sort them out, barrister", and we do not like cases presented to us in that way, do we.
146. .So, they had to do work on the documents, but it does seem -- what are we talking about here, is this Government Legal Service, yes.
147. .MR MOFFETT: Yes.
148. .MR JUSTICE HOLMAN: I mean, half a week's work just dealing with responding to this appeal.
149. .MR FENDER: Yes.
150. .MR JUSTICE HOLMAN: Does seem a lot of work.
151. .MR FENDER: Yes, I mean, my Lord --
152. .MR JUSTICE HOLMAN: We are not talking about the work in the case as a whole, we are just talking about the work on this appeal.
153. .Who prepared the transcripts?
154. .MR FENDER: I do not know the answer to that, my Lord. I assume that they must have asked the transcribing service to produce them.
155. .MR JUSTICE HOLMAN: Yes, maybe they are automatically transcribed. Anyway, of course, they had to be obtained.
156. .MR FENDER: Yes.
157. .MR JUSTICE HOLMAN: The reasons themselves will have been produced by the Panel, typed up, and it does not take very long to read the reasons.
158. .MR FENDER: No.
159. .MR JUSTICE HOLMAN: I have, sort of, got to the end of this case, today with not much more than an hour's advance preparation yesterday. Of course, I was aided by two skeleton arguments and Mr Moffett had to draft it, but --
160. .MR FENDER: -- very short grounds of appeal, an application notice.
161. .MR JUSTICE HOLMAN: Your point is, this does seem really over the top. You are not challenging Mr Moffett's fee for today, I would not imagine. It looks to me actually rather modest, but that is the fee.
162. .MR FENDER: Yes. No, I am not, I am not challenging that.
163. .MR JUSTICE HOLMAN: No. Are you challenging, as such, his additional fee for work prior to today? He, of course, will have to have viewed the video.
164. .He was not involved at the hearing below, so he has come in from scratch. I have not viewed the video from start to finish, as you all know, but he will have to have done and I imagine did do, possibly more than once, in order to prepare all those points in his skeleton argument. So he would have to have done quite a lot of work.
165. .MR FENDER: Yes.
166. .MR JUSTICE HOLMAN: Are you challenging his amount there?
167. .MR FENDER: No.
168. .MR JUSTICE HOLMAN: No, so, what you are saying is that this £4,638.00 --
169. .MR FENDER: -- which is the GLS.
170. .MR JUSTICE HOLMAN: The Government Legal Department's charges for 23 hours, given also that Mr Moffett was beavering away, really does seem rather over the top and what would you suggest might be a more appropriate --
171. .MR FENDER: -- I would suggest £6,500.00, or a reduction.
172. .MR JUSTICE HOLMAN: No, I am talking about, what reduction in the £4,638.00?
173. .MR FENDER: I am curious --
174. .MR JUSTICE HOLMAN: -- I should not have thought we could do more than halve it, could we?
175. .MR FENDER: I would submit that -- of course we do not have before us the amount of correspondence for attendance on our client's and on the opponent's --
176. .MR JUSTICE HOLMAN: -- what were you going to suggest to me, you said a figure just then?
177. .MR FENDER: The figure I had in mind was a reduction of £2,000 off the bill.
178. .MR JUSTICE HOLMAN: Yes, well, I am not disagreeing with you. As a matter of fact, I was going to take just a small number of hundreds more off.
179. .MR FENDER: If there is a door opening for me, my Lord.
180. .MR JUSTICE HOLMAN: There is a door opening. I think this does seem rather excessive by the Government Legal Department, given that they have Mr Moffett. I would reduce their £4,638.00, forgetting about the £38.00, to £2,300.00, which is half. So, if you add £2,300.00 and the amounts for Mr Moffett, we get to £6,200.00, which is in fact slightly less than the figure you first thought of.
181. .So, I am going to make an order that the appellant must pay the costs of the defendant or respondent of, and incidental to, this appeal, summarily assessed in the sum of £6,200.00 inclusive of any VAT.
182. .Could you put all that in the order? Is there anything else, Mr Fender, that now arises?
183. .MR FENDER: I have nothing further to raise, thank you.
184. .MR JUSTICE HOLMAN: Anything else, Mr Moffett?
185. .MR MOFFETT: No, my Lord, thank you.
186. .MR JUSTICE HOLMAN: I am very, very sorry to have kept everybody so late and in particular, the court staff, but thank you all for your patience and attendance during the course of the day.
187. .Although I have now said it several times, I do have considerable sympathy for the appellant. I could not possibly survive five minutes in a classroom like that with difficult children like that but I am not a teacher, I am afraid she is, and one of the things teachers have to do is learn to control their own emotions and reactions; but I do feel incredibly sympathetic and I am so, so sorry that her career has ended in this way, because it is effectively over now, she could not come back, I would not have thought. So, I am very, very sorry but thank you very much for coming. Thank you all very much.