HC/0184/2012

DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
ON AN APPEAL

Hearing and Decision 

1. This appeal does not succeed. I confirm the decision of the First-tier Tribunal (Health, Education and Social Care Chamber) sitting at North Shields and made on 3rd November 2011 under references [2010] 1705 & 1908 PT, refusing an appeal in respect of a direction of 7th October 2009 by the Secretary of State to bar MB (the appellant teacher) from work to which section 142 of the Education Act 2002 applies and a refusal by the Secretary of State on 2nd June 2011 to revoke the bar. Until further direction or decision by a competent court or body, MB remains barred from work to which section 142 of the Education Act 2002 applies.

2. In summary, section 142 applies to involvement in education, or contact with children requested or consented to by an employer. The Secretary of State’s direction was based on section 142(4)(b) grounds: “on the grounds that the person is unsuitable to work with children”.

3. I held an oral hearing of this appeal in London on 6th August 2013. The appellant teacher attended in person and was represented by Mr Philip Engelman of counsel, instructed by the Northumbria University Student Law Office. The Secretary of State was represented by Ms Galina Ward of counsel, instructed by the Treasury Solicitor.  Both counsel appeared below and also at the earlier hearing before me of the application for permission to appeal, and I am grateful to them for their assistance.

Section 142

4. So far as is relevant to this case, section 142 of the Education Act 2002 provides as follows:

142(1) The Secretary of State, in relation to England …, may direct that a person –
(a)	may not carry out work to which this section applies;
(b)	may carry out work to which this section applies only in circumstances specified in a direction;
(c)	may carry out work to which this section applies only if conditions specified in the direction are satisfied

(2) This section applies to –
(a)	providing education at a school;
(b)	providing education at a further education institution
(c)	providing education under a contract of employment or for services where the other party to the contract is a local education authority or a person exercising a function relating to the provision of education on behalf of a local education authority, and
(d)	taking part in the management of an independent school
…

       (4) A direction under this section may be given in respect of a person only –
    (a)	on the grounds that the person is included (otherwise than provisionally) in the list kept under section 1 of the Protection of Children Act 1999 (list of individuals considered unsuitable to work with children),
    (b)	on the grounds that the person is unsuitable to work with children,
    (c)	on grounds relating to the person’s misconduct,
    (d)	on grounds relating to a person’s health, or
    	…
5. Breach of a section 142 direction is a criminal offence carrying a possible sentence of imprisonment.

Background and Procedure

6. I set out such factual background as is necessary to understand my decision. The First-tier Tribunal did not accept that MB was a reliable witness but the starting point for what follows is his own account to the First-tier Tribunal. 

7. MB is a man who was born in about 1975. He qualified as a school teacher in September 1998 and taught at the relevant school, becoming head of history in 2002. He was also a school hockey coach. In 2002 MB offered to show a group of immediately former pupils, including girl A, who was then 15 or 16, around a nearby city, having sought advice from his union and informed his head teacher (the head teacher had no recollection of this). In the event only girl A turned up to meet him there. A friendship developed, which he told the head teacher about (the head teacher accepts this). There were rumours at school about this relationship and he was the subject of verbal abuse. He admitted to having had sexual intercourse with girl A on one occasion (but the First-tier Tribunal found evidence to support its own conclusion that this must have happened on several occasions). In February 2003 girl A moved into his house for a short period but their relationship deteriorated and he told her to leave and had his locks changed.

8. In May 2005 MB began to receive anonymous calls and texts to his personal mobile phone. He heard from a colleague that it might be a pupil at the school, girl B. He gave the caller the number of a different mobile phone that he used to organise a boys hockey team. From paragraph 43 of its decision the First-tier Tribunal dealt with differing accounts from MB of how he came to do this. He did not report this to the (new) head teacher because there was tension between them following an earlier complaint that MB had made about the head’s teaching. He did tell colleagues. At some stage he confirmed that it was in fact girl B (it is not clear from the First-tier Tribunal decision when this was except that she was still a pupil at the time). He received a sexually explicit text from her and asked to meet her at school, but she had taken her last exam and said that she had now left the school. They met at a shopping centre at 11 o’clock one night. He agreed to give her a lift home. While she was in his car she agreed when he said she must stop contacting him. On the way home she said that she had forgotten her keys and could not stay in her house. He stopped the car and she put her hand on his knee and (unwanted and uninvited) tried to kiss him. He drove her to his own house so that she could use his toilet (he stayed in the car and gave her the keys to the house) and then drove her back to her friend’s house, near where he had met her. The First-tier Tribunal found that “the only reasonable conclusion on the evidence is that she was taken to his home to further the relationship with [him]” (paragraph 51) There were further exchanges of texts in subsequent days (the number and length is disputed) and when she continued to send him suggestive texts he told his union representative. Shortly afterwards he was suspended from employment as a teacher. 

9. As a result of allegations made in respect of girls A and B MB was prosecuted for offences relating to inappropriate sexual relations with them and was acquitted by a jury on 7th December 2006. There were also disciplinary proceedings and employment tribunal proceedings.

10. The Secretary of State made the decisions to which I have referred in paragraph 1 above. The appellant appealed against each of these decisions and on 12th July 2011 First-tier Tribunal Judge Hillier directed that the two appeals be heard together by the First-tier Tribunal. The First-tier Tribunal panel, presided over by Judge John Aitken, the Deputy President of the HESC chamber, heard the appeals and on 3rd November 2011 confirmed the decisions that had been made by the Secretary of State.

11. The First-tier Tribunal decided to take no account of the statements made by the two girls (which I have not read). However, it found (paragraph 38 of its written statement of reasons) that:

“MB was manipulating those he sought advice from in order to meet a former pupil [girl A] by herself and claim should the need arise that he had some form of “legitimate authority” to do so … For the avoidance of doubt we consider that this process began whilst [girl A] was undoubtedly a pupil and in a position of trust with regard to [MB]. Behaviour of this type in respect of those in which a person has a position of trust is commonly termed “grooming”.

12. The First-tier Tribunal was stuck by the apparent failure of MB to learn lessons from the relationship with girl A (and of a subsequent allegation in November 2004 in relation to pupil C – see paragraph 48 of the First-tier Tribunal statement) that could have saved him from the problems with girl B.

13. On 21st December 2011 Judge Hillier refused the appellant permission to appeal to the Upper Tribunal and the appellant made a further application direct to the Upper Tribunal.

14. Five grounds of appeal were settled by Mr Engelman and I take them from the typed application of 14th November 2011 that bears his name (pages 10 to 15 of the Upper Tribunal file). They were:

(i)	What is the ambit of the First-tier Tribunal’s powers in respect of appeals to them and in particular how should regulations 12(1) and 13(2) of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 be interpreted?

(ii)	Given the First-tier Tribunal finding that the first decision letter [7th October 2009] was wrong, was it entitled as a matter of law to do anything but allow the appeal against it and hold that the second decision letter [2nd June 2011] must fall with the first?

(iii)	If the Tribunal were enabled to uphold the first decision letter were they able to uphold the second decision letter given either the terms of the second decision letter or given that the Secretary of State’s only witness [Mr S] accepted that there had not been an inappropriate relationship with [either girl] whilst either was a pupil at the school?

(iv)	Was the First-tier Tribunal right to hold that article 8(2) of the ECHR provides justification for the Secretary of State’s interference in [the private life of the appellant and girl A]. Can the alleged inappropriateness of his conduct towards [girl A] after she ceased to be a pupil be ascertained as being in breach of the law and/or is it sufficient that inappropriateness be measured against “the usual social norms”?

(v)	The Tribunal’s decision was perverse.

15. On 19th January 2012, based on consideration of the papers alone, Upper Tribunal Judge Rowland refused permission to appeal on grounds (1), (ii) and (iii), but granted permission on grounds (iv) and (v). The appellant exercised his right to request reconsideration at an oral hearing of the application for the appeal to be based also on the first three grounds.  On 16th May 2012 Judge Rowland directed that reconsideration be dealt with as a preliminary matter at a separate hearing. This took place before me on 6th August 2012, and on 29th November 2012 I refused permission in relation to the first three grounds of appeal.

16. I followed and applied my own decision in Secretary of State for Education v JN [2010] UKUT 248 (AAC); [2011] AACR 10; (c 1417 2009). That decided that within the limitations of what it can properly take into account, the First-tier Tribunal is under a duty to make its own findings of fact and its own decision in respect of the statutory questions (paragraphs 17 to 28) and that although regulations prevent the tribunal from taking account of “information” not before the Secretary of State at the time of the decision, they give it a general power to admit “evidence”. In that case a trial transcript would be “evidence” of “information” that was already before the Secretary of State (who knew that there had been a trial, and knew the result) and would be admissible at the new tribunal hearing to which the appeal had been referred (paragraphs 29 to 35). I pointed out that the decision in JN was not appealed and has not been challenged or queried by any other court or tribunal and, where it has been considered, has been accepted as correct. It also has whatever extra status is conferred by being reported as a decision commanding the broad assent of the judges of the Administrative Appeals Chamber of the Upper Tribunal. There is no prospect of the Upper Tribunal now finding that JN was wrongly decided or departing from it. I particularly rejected the suggestion made by Mr Engelman that the First-tier Tribunal could not make decisions contrary to the evidence called on behalf of the Secretary of State. I also pointed out that in the present appeal the First-tier Tribunal did not have before it any information or evidence which had not been before the Secretary of State.

17. I mean no discourtesy to Mr Engelman if I point out that during oral argument at the hearing of the substantive appeal to the Upper Tribunal he sometimes appeared to be trying to circumvent my ruling at the permission stage by referring to the Upper Tribunal having to consider what the Secretary of State had decided. In fact, of course, this is an appeal against the decision of the First-tier Tribunal, which stands in the place of the Secretary of State for these purposes. The issue is whether the decision of the First-tier Tribunal involved the making of any error of law such that a remedy should be granted.

The Decision Letters

18. The letter of 7th October 2009, running to four pages, included the following statements:

(a)	that the Secretary of State had taken into account all of the available information following the allegations that MB “engaged in inappropriate and sexual activity” with two 16 year old females whilst they were pupils and he was in a position of trust as a teacher

(b)	following a “robust disciplinary process” MB’s employer had found that the above was true in respect of girl A, and that in respect of girl B he had failed to report to the head teacher or senior management that he was engaged in texting her, or that he had accepted sexually explicit texts from her, or that she had made sexual advances to him, or that he had met her in his car late one evening and taken her to his home whilst she was a pupil in full knowledge that this was breach of professional guidance and conduct.

19. After hearing evidence from one of the Secretary of State’s officials, the First-tier Tribunal accepted that the disciplinary process was not robust in that MB had wrongly been found to have engaged in inappropriate and sexual behaviour with the girls while they were pupils and that the guidance referred to reporting to a senior colleague rather than senior management. As I pointed out in my decision on permission, it seemed (and seems) to me (looking from the outside) that the difference between “senior management” and “senior colleague” is insignificant, although whether and when MB reported to either is a question of fact, on which the First-tier Tribunal has recorded evidence and indicated its own view.

20. Whether there was sexual behaviour while the girls were pupils is a question of fact and the First-tier Tribunal has decided that that was not the case. It does not seem to me to be relevant that the Secretary of State got this wrong if the parties are agreed that the First-tier Tribunal got it right.

Article 8

21. The Human Rights Act 1998 effectively incorporates into English law the main provisions of the European Convention on Human Rights (“the Convention”). The main relevant provisions of the Act are as follows (references are to section numbers):

3(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. 

6(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

6(2) Subsection (1) does not apply to an act [of a public authority] if-
(a)	as a result of one or more provisions of primary legislation the authority could not have acted differently; or
(b)	in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights the authority was acting so as to give effect to or enforce those provisions. 

6(3) In this section "public authority" includes –
(a)	a court or tribunal

7(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may-
	(a) …
(b)	rely on the Convention right or rights concerned in any legal proceedings

22. For the purposes of the present appeal, the main relevant provisions of the Convention are as follows:

Article 8

8.1 Everyone has the right to respect for his private and family life, his home and his correspondence.

8.2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of rights or freedoms of others.  

23. In relation to article 8 the First-tier Tribunal said (paragraphs 66 and 67):

“66. We accept Mr Engelman’s argument that to interfere with a legitimate relationship [my emphasis] would amount to an interference with article 8 rights if the result were to lead to a direction under section 142 … However we consider that the interference is in accordance with the law and that where a relationship is cultivated in the context of a pupil teacher relationship and that relationship is considered inappropriate looking at all of the available evidence, that such interference is necessary in a democratic society for the protection of children.

67. As regards the point that the law if it relied on inappropriateness of the relationship is not sufficiently precise we reject [this point] because inappropriateness can itself be considered against usual social norms including the regulation of contact between those in a position of trust and their charges by the institutions themselves, such as child protection procedures published at schools”.

24. Mr Engelman has made wide-ranging and detailed criticisms of the formulation of the First-tier Tribunal’s views in these paragraphs, and I agree that they have been fairly clumsily expressed and have run different issues together. However, the focus of what the First-tier Tribunal said was on the application of article 8.2. In fact there is no evidence of any interference with MB’s right to respect for his private and family life so far as regards his relationship with girl A, once she was of the age of consent and had left school. No official body tried to stop them living together or to punish MB for living with and/or having a sexual relationship with her after the teacher- pupil relationship had ended. I do not understand MB or Mr Engelman to be arguing that the situation would not come within the interference authorised by article 8(2) if there had been a sexual relationship with either girl A or girl B or if either was being groomed for sexual purposes while still at school. Certainly no such argument could succeed and the factual basis for the First-tier Tribunal decision was that there had been such grooming of both girls.

25. It seems to me that where article 8 might be engaged is in relation to the interference with MB’s ability to pursue his chosen career as a teacher (See R (Wright and Others) v Secretary of State for Health [2009] UKHL 3 paras 30 to 37) . This point was not really developed in detail before the First-tier Tribunal.
 
26. In Whitefield v General Medical Council (GMC) [2002] UKPC 62, [2003] HRLR 9, the GMC had imposed a number of restrictions and conditions on the right of the appellant to continue practising as a medical general practitioner. These included an absolute ban on drinking alcohol (even on social occasions or in private) and an obligation to comply with requirements of a supervisor to undergo random and other testing of breath, blood and urine. On appeal to the Privy Council (presided over by Lord Hope of Craighead) the appellant argued that there had been a breach of his rights under article 8. The Privy Council said (paragraph 29):

“In the instant case the appellant’s claim to respect for private life is reduced to the extent that as a doctor he has brought (and is likely to bring) his private life into contact with public life, or into close connection with other potential interests. His “right” to an unrestricted social life must give way to the wider public interest in ensuring that he does not prevent a risk to his patients”.

27. I would have expected this reasoning to apply in relation to the article 8.2 exceptions but in fact the Privy Council deduced from this that there was no interference at all. I agree with Ms Ward (paragraph 28 of the skeleton argument of 2nd August 2013) that:

“A teacher’s private life is brought into contact with public life in a similar way, and he cannot expect his relationships with sixteen year old former pupils to escape scrutiny where they are relevant, in the view of the expert tribunal established for the purpose of making such decisions, to the question of whether he is unsuitable to work with children”.

28. The Privy Council did continue to the effect that, even if the imposition of the conditions had been an interference with article 8.1 rights, this was permissible under article 8.2 as having  been lawfully made by a public authority pursuant to powers conferred by section 37 of the Medical Act 1983, as pursuing a legitimate aim (the protection of health), for the rights and freedoms of others and as being necessary in that it corresponded to a pressing social need to which it was proportionate (paragraph 30).

29. It is relevant to note that section 37 of the 1983 Act enables conditions to be imposed where the appropriate body judges the doctor to be “seriously impaired by reason of his physical or mental condition”, and does not itself give examples of such impairment or list the specific consequences to be avoided by, or the purposes of, such conditions.

30. Mr Engelman surveyed a number of other authorities and, in (my) summary, concluded that any interference with article 8 rights must be based in statute or common law, which is accessible certain and predictable and formulated with sufficient precision (including the scope of any discretion) so as to enable a person to regulate his conduct and to foresee the consequences of particular actions. There must be a pressing social need to justify the interference, which must be proportionate to a legitimate aim with a rational connection between the policy objective and the means, a balance between the demands of the general community and the protection of individual rights, and the subject of relevant and adequate reasons. I do not understand Ms Ward to be disagreeing with any of this.

31. I would add that in R v Shayler [2002] UKHL 11, [2003] 1 AC 247 Lord Hope of Craighead indicated that there might be a breach of the Convention if the law or rule in question “was applied in a way that is arbitrary because, for example, it has been resorted to in bad faith or in way that is not proportionate” (paragraph 56). There is no suggestion of bad faith and I deal below with the question of proportionality.

32. However, Mr Engelman suggested that the First-tier Tribunal did not address the above issues properly or at all and that it was not possible for MB to be aware that his actions would have the consequences that they did, which were disproportionate to what had actually happened. There was not even any suggestion of any risk to anybody who was not a teenage girl (not that that risk was admitted) and a complete bar from teaching was disproportionate. Ms Ward argued that all of the relevant grounds listed in article 8.2 for justifying the interference had been established even if the First-tier Tribunal had not used the language that Mr Engelman would have liked to have seen.

33. I have no doubt that any interference with MB’s article 8.1 rights was justified under article 8.2. Section 142 sets out the basic rules and any teacher should be aware that if he engages in certain activities with children, including conduct which might be seen as grooming for sexual purposes, and the conduct in which the First-tier Tribunal found that MB had engaged, then he is likely to be regarded as unsuitable to work with children, with the specified consequences. It is unrealistic to expect that every conceivable activity which could be seen as rendering him unsuitable should be set out in some elaborate code (and that could have the perverse effect that activities which are so weird as to be unimaginable by those drafting such a code could enable a teacher to escape a bar because such activities were not specified in the code). Teachers are trained, they have available the advice and assistance of colleagues, they are aware of the vulnerabilities of children of all ages and they should know to take care. In the present case there was a great deal of published guidance from MB’s employing authority. The power here of the Secretary of State is similar to that of the GMC under the 1983 Act which, as I have noted above, enables conditions to be imposed where the appropriate body judges the doctor to be “seriously impaired by reason of his physical or mental condition”, and does not itself give examples of such impairment or list the specific consequences to be avoided by, or the purposes of, such conditions.

34. There is an obvious and pressing need (which sadly becomes more so each day) to safeguard children from predatory adults and I do not understand how anybody can argue that this is not necessary in a democratic society for the protection of the health (including mental health) and (sometimes) morals and of the rights and freedoms of children. Preventing a person in MB’s position from teaching is a proportionate implementation of a legitimate policy. He was not imprisoned, he was not relocated or sent into internal exile, he did not have his possessions confiscated, he was not prohibited from having any employment at all: he was prevented from teaching and that was an appropriate response. There was (and is) an elaborate set of legal remedies available to MB, and the reasons given by the First-tier Tribunal for its findings of fact are appropriate and sustainable.

35. In theory the First-tier Tribunal could have restricted the teaching ban on MB to prohibiting him from teaching teenage girls (or any other class of pupil defined by objective criteria) and in that sense the section 142 listing might be said to have been disproportionate. However, the section 142 procedures and list are now obsolete or becoming so and are being incorporated into the procedure and lists maintained under the Safeguarding of Vulnerable Groups Act 2006. There is no provision under that Act for a person to be barred in relation to one group of children but not others. He is either on the barred list or he is not. Thus, in due course (if it has not already happened) MB’s name will be placed on the new list, as it would have been if there had been a limited section 142 listing. Thus he would have ended up in the same position as he is now. In those circumstances I would certainly not be prepared to grant a remedy in the sense of setting aside the decision of the First-tier Tribunal, on the sole basis that the section 142 listing was not limited in the way that I have discussed (nor can I envisage that any other Judge of the Upper Tribunal would do so). 

Perversity

36. This ground of appeal relates only to girl A. The First-tier Tribunal found that MB had admitted that he knew that she had a crush on him but had nevertheless given her his mobile phone number and arranged to meet her and a friend in the city, and proceeded to escort her around the city when she arrived alone. It found that he was manipulating those from whom he sought advice in order to enable him to meet a former pupil by herself. In paragraph 38 of its written decision the First-tier Tribunal stated:

“We consider that from the time of giving out his telephone number, to appellant had it in mind to form a close emotional and sexual relationship with [girl A] and that his actions thereafter were aimed at protecting himself from the consequences of doing so, whilst he at the same time pursued the building of that relationship. For the avoidance of doubt we consider that this process began whilst [girl A] was undoubtedly a pupil and in a position of trust with regard to the appellant. Behaviour of this type in respect of those in which a person has a position of trust is commonly termed ‘grooming’.”

37. Mr Engelman argued that there was no evidence to support the conclusion that this process began while girl A was still a pupil. The Employment Tribunal found that it did not do so, and was also of the opinion that MB could not be considered to be a danger to children. The general view of the First-tier Tribunal was also in opposition to that of Professor Middleton, who had been commissioned by the Secretary of State to prepare a risk assessment.

38. There is nothing in this ground of appeal. The First-tier Tribunal was entitled to reject the opinion of Professor M, especially on questions of fact to which he was not a direct witness, and it explained in some detail why it had done so (paragraphs 54 to 56). It was not bound by the findings of the Employment Tribunal and in fact it explained (in paragraph 57):

“We have heard and seen other evidence including expert reports and looked at different aspects of his behaviour, in any event for the reasons given we are not prepared to give the appellant such an endorsement, although we would point out that it is his disregard of [girl A’s and girl B’s] emotional development which most concerns us. We have no doubt that nothing was done which was against apparent consent”.

Conclusions

39. As Ms Ward stated (paragraph 34 of the skeleton argument of 2nd August 2013):

“… the First-tier Tribunal found that MB had pursued inappropriate relationships with two pupils, whilst they were pupils, disregarding the impact on their emotional development, and that there was a serious risk of such behaviour being repeated”.

40. In these circumstances and for the above reasons, this appeal does not succeed and I make the decision set out in paragraph 1 above.

H. Levenson
Judge of the Upper Tribunal 
19th September 2013