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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Alsaifi v Secretary of State for Education [2019] EWHC 1413 (QB) (06 June 2019) URL: http://www.bailii.org/ew/cases/EWHC/QB/2019/1413.html Cite as: [2019] EWHC 1413 (QB), [2020] ELR 1 |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
SITTING AS A DEPUTY JUDGE OF THE HIGH COURT
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TARIQ ALSAIFI |
Claimant |
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- and - |
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SECRETARY OF STATE FOR EDUCATION |
Defendant |
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MS CHRISTINA MICHALOS QC
(instructed by GOVERNMENT LEGAL SERVICES) for the Defendant
Hearing dates: 1st and 2nd May 2019
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Crown Copyright ©
ANTHONY METZER QC:
Background
"What makes this case particularly troublesome is that the Appellant's behaviour and his failure to observe the appropriate boundaries between himself and a learner in his class (even if, as he says, he believed the learner to be an adult) is undoubtedly conduct of a type that would trigger alarms in the minds of those who are concerned to protect sixth-formers or teenagers that he might be teaching in future".
The Claims
"The 'cavalier' actions of the Secretary of State for Education have allowed the former Newcastle College tutor to successfully appeal his ban."
"A lecturer who made 'sexual' advances on a pupil has had a lifetime teaching ban overturned – on a legal technicality.
Tariq Alsaifi was suspended from Newcastle College in 2013 when a number of accusations emerged around his behaviour towards a particular pupil.
Alsaifi, 41, was observed holding and rubbing the hand of a teenaged student – who he also invited to lunch and sent several emails to from his personal account.
The actions left the teen "upset" and feeling uncomfortable at being in the same room as Alsaifi, who was 38 at the time.
A disciplinary panel concluded earlier this year that, while there was no evidence of "serious sexual misconduct", the teacher's actions were wholly inappropriate and banned him from the classroom.
However, the decision has now been quashed on appeal.
A High Court judge ruled that under current legislation the victim could not be classed as a pupil, as she only studied part-time. Therefore, the panel had no jurisdiction to review the case or make any decision in the first place."
The Honourable Mrs Justice Andrews DBE accepted the panel's findings in relation to Alsaifi's conduct, but ruled his ban should be nullified.
Justice Andrews said:
"I am satisfied that there is no substance in any of the Grounds of Appeal raised by the Appellant apart from the legal point he has taken objecting to the power of the National College for Teaching and Leadership (NCTL) to carry out the investigation and to the power of the Secretary of State to make the order.
He only needs to succeed on one ground in order to succeed in his appeal. As the Secretary of State had no power to investigate the matter, the fact the process adopted was conspicuously fair and the fact that if the NCTL had been empowered to refer the matter to the panel, its findings would have been unimpeachable, are of no consequence.
The proceedings were a nullity; the panel had no power to make any findings about the Appellant's conduct, or to recommend a Prohibition Order in this case, and the Secretary of State had no power to make one."
Justice Andrews reserved particular criticism for the Secretary of State who she said had behaved in a "cavalier" way.
Justice Andrews said:
"The court's disapprobation of the Secretary of State's cavalier attitude to the rules of civil procedure, particularly in a case where the opposing party is representing himself, needs to be marked in a way that will discourage repetition. I will therefore direct that the Secretary of State shall bear her own costs of the appeal to this court in any event, irrespective of the outcome of any further appeal.""
"An NCTL spokesperson said: "We are disappointed with the High Court's judgment. Nothing is more important than the safety and welfare of children and that is why we insist on the highest possible standards of personal and professional conduct from all teachers and school staff.
We are confident that the policy and procedures in place to regulate the teaching professional are robust and ensure the just and efficient handling of all cases of teaching misconduct. Each case referred to a Professional Conduct Panel is considered in line with the legislation and supporting advice and the circumstances surrounding each individual case."
The Proceedings
Meaning
"…that in the Claimant's capacity as a teacher of a teenage girl/pupil he behaved inappropriate towards her by making sexual advances; that these involved holding and rubbing her hand, inviting her to lunch, and sending her several emails from his personal account; his conduct and actions made the teenage girl upset within the classroom and feeling uncomfortable at being in the same room; he thereby conducted himself in a way that merited his indefinite prohibition from teaching; the Claimant's inappropriate actions towards the teenage girl/pupil made her a victim; the Claimant's success in his appeal is a disappointing one because he might not meet the required standards by NCTL toward the safety and welfare of children."
"…That in the Claimant's capacity as a teacher of a teenage girl, a pupil, he behaved inappropriately towards her by making sexual advances; that these involved holding and rubbing her hand, inviting her to lunch, and sending her several emails from his personal account; his conduct and actions made the teenage girl upset within the classroom and feeling uncomfortable at being in the same room; his conduct was so serious that it merited his indefinite prohibition from teaching; the Claimant's success in his appeal was disappointing because the original decision to ban the Claimant from teaching was the right one; by his conduct the Claimant had demonstrated he posed a risk to the safety and welfare of the [school] children he taught."
"The Claimant's success in his appeal was disappointing because the original decision to ban the Claimant from teaching was the right one; by his conduct the Claimant had demonstrated he posed a risk to the safety and welfare of the [school] children he taught."
a) Press office comments such as that set out in the words complained are reactive and issued in response to a specific journalistic enquiry and are not proactively volunteered;
b) Press statement of this type arrives following a process involving up to four stages dependent upon whether the Defendant has won or lost and are then amended after judgment in light of advice received and if necessary a response is drafted to a specific enquiry before being approved by special advisors if necessary;
c) The statement sets out the official position of the Department for Education and is not, nor is it intended to reflect, the individual opinions of any particular press officer (even if they held that belief);
d) The comment was stated to be a general one aimed conveying the disappointment at the outcome of the case with the purpose to reassure the public of the NCTL and the Department for Education's commitment to protecting those in education and did not intend to be a comment on the specific facts of this case;
e) Media responses of this nature seek to meet the duty of transparency to the public and help with accountability.
(3) Over-elaborate analysis is best avoided.
(7) In delimiting the range of permissible defamatory meanings, the Court should rule out any meaning which "can only emerge as the produce of some strange, or false, or utterly unreasonable interpretation".
(8) It follows that "it is not enough to say that by some person or another the words might be understood in the defamatory state".
(9) It is necessary to take into account the context in which it appeared.
a) The starting point is that the source material should not be looked at in blinkers as if the rest of the article did not exist: Alsaifi v Trinity Mirror [2017] EWHC 1444 per Warby J at Paragraph 65;
b) However, if the article read as a whole does not bear a defamatory meaning, the Claimant may not artificially select only the source material in order to assert a defamatory meaning which in context the words do not bear: Monks v Warwick District Council [2009] EWHC 959 (QB) at Paragraph 12 to 14;
c) The source cannot be held responsible for inaccuracy, spin or additional material added by the media publisher which alters the meaning of the source material to make it defamatory (or more seriously defamatory) than it was in isolation: Alsaifi v Trinity Mirror [2017] EWHC 1444 supra per Mr Justice Warby at Paragraph 65 and Economou v de Freitas [2017] EM.L.R.4 for Warby J at Paragraph 17;
d) The source is entitled to assume that the source material will appear in the context of an account that is fair and accurate; Alsaifi v Trinity Mirror supra per Warby J at Paragraph 65;
e) If the account is not "fair and accurate" then the effect is to give source material a defamatory meaning that it would not otherwise bear, the source should not be held liable first because he is not liable for the media publishers inaccuracy which is beyond his control; secondly because a person cannot be held liable for republication he did not intend, authorise or foresee and thirdly as it would be contrary to Article 10 of the European Convention on Human Rights for a party who makes a non-defamatory press statement on a matter of public interest, for example a court decision to be held liable as a result of legal failings by the media in the reporting of that statement.
Serious Harm
Qualified Privilege
a) The NCTL was the regulator for the teaching profession and was responsible for the quality teaching profession by ensuring that in cases of serious professional misconduct, teachers are prohibited from teaching;
b) Allegations of professional misconduct by teachers and the processes for investigating, dealing with and disciplining teachers accused of misconduct particularly as against pupils are a matter of public interest;
c) The NCTL had been criticised by Mrs Justice Andrews directly and the effect of her judgment was that the Prohibition Order had been made when there was no jurisdiction to make it; had to be set aside and that the Claimant's behaviour was undoubtedly conduct of a time triggering alarms in the minds of those who were concerned to protect sixth-formers or teenagers that he might be teaching in future.