Royal Courts of Justice
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE DOVE
Between:
THE QUEEN ON THE APPLICATION OF KINGSTON
Claimant
v
SECRETARY OF STATE FOR EDUCATION
Defendant
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Mr Stuart Brady (instructed by NUT Solicitors) appeared on behalf of the Claimant
Mr Rory Dunlop (instructed by the Government Legal Department) appeared on behalf of the Defendant
Hearing date: 18 January 2017
J U D G M E N T
MR JUSTICE DOVE: Following a hearing over 3 and 4 May 2016 by a panel, on behalf of the respondent, into allegations from the National College for Teaching and Leadership (the "NCTL") set out in a notice of proceedings dated 19 November 2015, the panel found an allegation against the appellant proved in the following terms:
"You are guilty of unacceptable professional conduct and/or conduct that may bring the profession into disrepute in that you:
2. Searched for on the internet and/or viewed images of sexual activity between a person and an animal on one or more occasion.
Mr Kingston admits having viewed images depicting bestiality but denied having searched for such images.
At page 24, it is noted that Mr Kingston 'searched and viewed bestiality images'. In his oral evidence, Mr Kingston explained that during questioning the police did not draw a distinction between searching and viewing such images. At page 42, Mr Kingston explained that it was his 'sexual partner' at the time who searched for such material and not him, stating that, 'I did not actively access these images, but simply tolerated them upon being shown to me.' Evidence from Mr Kingston's third statement (page 66) was contrary to this and said, 'We [he and his sexual partner at the time] would search for pornography involving bestiality'. Mr Kingston explained in his oral evidence that the use of the term 'we' was an oversight on his part. The panel also noted that Mr Kingston himself stated that he 'simply went along with it' (page 66).
The panel was minded to determine that Mr Kingston had been a passive participant in the search for images involving bestiality. Having considered all the evidence, and on the balance of probabilities, the panel believed that the allegation involving the searching and viewing of images of bestiality was more likely than not to have occurred. This allegation was therefore proven."
The panel went on to consider whether the conduct they had found proved was sexually motivated. They concluded:
"Turning to allegation 2, the panel considered the two stage test for sexual motivation - firstly, whether a reasonable person would think that words and/or actions could be sexual and secondly, whether the purpose of such words and/or actions was sexual in all the circumstances of the case.
Following a detailed discussion regarding the test to be applied for a finding of sexual motivation and upon consideration of the evidence, the panel decided it was satisfied that Mr Kingston's actions could be viewed by a reasonable person as sexually motivated. In reaching its decision, the panel noted the very nature of the images would suffice to satisfy this element of the test. Turning to the second limb, whether in all the circumstances of the conduct in this case, the purpose of such actions was sexual on Mr Kingston's part. Such activities were undertaken in conjunction with another person, for that person's sexual gratification, and not for Mr Kingston's own sexual gratification. The panel was not satisfied that Mr Kingston's actions could be viewed as sexually motivated. Therefore, [the] panel have found this allegation not proven."
They then addressed the question of whether the applicant's conduct amounted to unacceptable professional conduct and/or conduct that may bring the profession into disrepute. They reasoned their conclusions in the following terms:
"Having found one of the allegations proven, the panel has gone on to consider whether the facts of the proven allegation amounts to unacceptable professional conduct and/or conduct that may bring the profession into disrepute.
In considering the allegation that the panel has found proven, the panel has had regards to the Teacher Misconduct - The Prohibition of Teachers advice, which we refer to as the 'Advice'.
The panel noted that unacceptable professional conduct is defined in the Advice as misconduct of a serious nature, falling short of the standard of behaviour expected of a teacher. The panel was satisfied that Mr Kingston's conduct was of a serious nature, falling short of the standard to be expected. However, it noted that misconduct outside of the education setting will only amount to unacceptable professional conduct if it affects the way the person fulfils their teaching role or if it may lead to pupils being exposed to or influenced by the behaviour in a harmful way. The panel noted that the facts surrounding allegation 2 did not impact the manner in which Mr Kingston fulfilled his role as a teacher, as demonstrated by the evidence of Witness A. Furthermore, as the underlying facts took place outside the school, and there was no question that they had any impact on his behaviour as a teacher in school, therefore, the panel did not consider that it would lead to pupils being exposed to or influenced by the behaviour in a harmful way.
Accordingly, the panel is not satisfied that Mr Kingston is guilty of unacceptable professional conduct.
Turning to whether the conduct may bring the profession into disrepute, the panel has taken into account how the teaching profession is viewed by others and considered the influence that teachers may have on pupils, parents and others in the community. The panel has taken account of the uniquely influential role that teachers can hold in pupils' lives and that pupils must be able to view teachers as role models in the way they behave.
The underlying facts of the proven allegation are serious and the conduct displayed would have a negative impact on the individual's status as a teacher, potentially damaging the public perception. The panel therefore finds that Mr Kingston's actions constitute conduct that may bring the profession into disrepute.
The panel has also considered whether Mr Kingston's conduct displayed behaviours associated with any of the offences listed on pages 8 and 9 of the Advice and the panel has found that none of these offences are relevant."
The offences referred to on pages 8 and 9 of the "Teacher misconduct: The prohibition of teachers - Advice on factors relating to decisions leading to the prohibition of teachers from the teaching profession" ("the Advice") are a list of serious imprisonable offences or types of offences.
After this decision was reached, the panel reconvened on 13 June 2016 to consider its recommendations on sanction. The hearing proceeded in the absence of the parties. This occurred for sensible reasons and no complaint is made about it. Both the NCTL presenting officer and the appellant, through Mr Brady, who appeared for him both in the context of the panel hearing and in the present appeal, made written representations about the appropriate disposal to be recommended for the case. The panel's conclusions and recommendations to the respondent were expressed in the following term:
"In the light of the panel's findings against Mr Kingston, which involved searching for and viewing images, there is a strong public interest consideration in declaring proper standards of conduct in the profession. The conduct found against Mr Kingston could be seen to be outside that which could reasonably be tolerated. Similarly, the panel considered that public confidence in the profession could be weakened if conduct such as that found against Mr Kingston were not considered seriously when regulating the conduct of the profession.
However, the panel noted this is not a case giving rise to the need to protect members of the public. Equally, the panel's finding against Mr Kingston were limited to a single allegation which involved Mr Kingston searching for and viewing certain images in the privacy of his own home or that of his companion at the time, and they found that he was a passive participant in the search. Given the narrow nature of this allegation, this is not a case where there is a strong public interest consideration in respect of the protection of pupils, particularly as there has been no evidence that this activity impacted on Mr Kingston's ability as a teacher or led to pupils being exposed to harmful behaviour.
The panel considered carefully whether or not it would be proportionate to impose a prohibition order taking into account the effect that this would have on Mr Kingston and the profession as a whole.
In carrying out the balancing exercise the panel has considered the public interest considerations in favour of, and against, prohibition as well as the interests of Mr Kingston. The panel took further account of the Advice, which suggests that a prohibition order may be appropriate if certain behaviours of a teacher have been proven. The panel considered the list of such behaviours, and did not find any to be relevant in this case. In doing so, it wished to note the following:
• Serious departure from the personal and professional conduct elements of the Teachers' Standards.
The panel found that Mr Kingston's conduct, whilst ill-advised, did not involve a serious departure from the personal and professional conduct elements of the Teachers' Standards, as the panel has already detailed above.
• A deep seated attitude that leads to harmful behaviour.
The panel considers that Mr Kingston showed insight in relation to the single allegation the panel has found proven. In particular, the panel found him to be an honest and credible witness. The panel accepted that there was no evidence of a pattern of this type of behaviour. In fact, they noted that he was a passive participant in searching for and viewing such images on another individual's computer, whilst at that person's house; there was no evidence arising from the police search to suggest Mr Kingston searched for or viewed such images on his own devices. Mr Kingston now clearly recognises he should have been more assertive in objecting to such behaviour at that time and has subsequently sought professional assistance to address this.
The panel then went on to consider whether or not there were sufficient mitigating factors to militate against a prohibition order being an appropriate and proportionate measure to impose, particularly taking into account the nature and severity of the behaviour in this case. In particular:
• The panel considered whether or not Mr Kingston's actions were deliberate. The panel accepted the evidence that he acted as a passive participant in searching for and viewing the images.
• There was no evidence to suggest that the teacher was acting under duress.
• The teacher has a previously good record as a highly regarded teacher and the panel accepts that underlying facts did not have an impact on Mr Kingston's behaviour as a teacher. The panel also noted the evidence before it that Mr Kingston was an effective teacher and drew upon the testimonies provided in the written statements and oral evidence of Witness A who testified to his strengths.
• The panel noted that, in his role as a teacher, Mr Kingston had not been subject to any disciplinary proceedings or similar, prior to the events underlying these allegations.
• The panel noted that the incident did not involve any pupils or a risk to those pupils.
The panel acknowledged that Mr Kingston was proactive in seeking professional help in dealing with underlying personal issues. It was evident that Mr Kingston has made significant progress in overcoming the emotional turmoil that he experienced during the period covered by the allegation. It was clear to the panel that Mr Kingston has shown a great deal of remorse for his behaviour during this period of his life and insight into his need to be more assertive.
In light of the above, the panel is not of the view that prohibition would be a proportionate and appropriate response. Given that his behaviour was at the less serious end of the scale and in light of the mitigating factors that were present in this case, the panel has determined that a recommendation for a prohibition order is not appropriate in this case."
The recommendation that a prohibition order was not appropriate was considered by an official on behalf of the respondent on 17 June 2016. The respondent's decision was expressed in the following terms:
"I have considered the particular public interest considerations, and I agree with the panel that the maintenance of public confidence in the profession and declaring and upholding proper standards of conduct are relevant in this case.
I note that the panel's findings against Mr Kingston involved searching for and viewing images, and I agree there is a strong public interest consideration in declaring proper standards of conduct in the profession. I agree that the conduct found against Mr Kingston could be seen to be outside of that which could reasonably be tolerated.
I note the panel considers that this is not a case giving rise to the need to protect members of the public, and the panel's findings against Mr Kingston were limited to a single allegation. I note the panel is of the view that this is not a case where there is a strong public consideration in respect of the protection of pupils.
I note that the panel took further account of the Advice, which suggests that a prohibition order may be appropriate if certain behaviours of a teacher have been proven. In this case, the panel is of the view that no such behaviours are relevant. However, the panel did note that Mr Kingston's conduct, whilst ill-advised, did not involve a serious departure from the personal and professional conduct elements of the Teachers' Standards. The panel also considered that Mr Kingston showed insight in relation to the single allegation the panel has found proven.
I have noted the panel's consideration of the public interest in this case, and that the panel has considered the public interest both in favour of and against prohibition, as well as the interests of Mr Kingston. I note that the panel accepted evidence that Mr Kingston acted as a passive participant in searching for and viewing the images. There was no evidence that he was acting under duress.
Having found Mr Kingston guilty of conduct that may bring the profession into disrepute, the panel has acknowledged that this by its very nature is a serious finding. However, I note the panel considers Mr Kingston's behaviour to be at the lower end of the scale. The panel is of the view that prohibition is not appropriate in this case.
I differ in my view from that of the panel.
I believe that the panel has not taken sufficient account of the public concern that would arise, and that public confidence in the profession could be seriously weakened, if the conduct found proved in this case was not treated with the utmost seriousness. In addition, I am not sure that the panel has given sufficient weight to the public interest consideration in relation to the necessity to uphold proper standards of conduct in the teaching profession. I consider that the panel has given undue weight to the insight of Mr Kingston and the fact that this was a single and isolated incident. Mr Kingston searched and viewed bestiality images.
For the reasons set out above, my view is that prohibition is both proportionate and appropriate.
I now turn to the matter of a review period. I note that the panel acknowledged that Mr Kingston was proactive in seeking professional help in dealing with underlying personal issues, and that he has shown a great deal of remorse for his behaviour during this period of his life, and insight into his need to be more assertive.
I consider that it would be against the public interest to deprive the profession permanently of a teacher who has a previously good record as a highly regarded teacher. I also note that the panel accepts that the underlying facts did not have an impact on Mr Kingston's behaviour as a teacher. I consider that Mr Kingston should have the opportunity to re-enter the profession in the future, having reflected on his actions.
I consider a review period of two years to be both proportionate and appropriate in this case."
Thus the respondent disagreed with the recommendation of the panel and concluded that a prohibition order with a review period of two years was a proportionate and appropriate sanction in the circumstances of the case. A prohibition order was then made and the appellant, as a consequence, is precluded from applying for a review of that prohibition order for a period of two years.
The appellant challenges the decision which was reached on two grounds: firstly, it is submitted that the respondent failed to provide adequate reasons for her decision; secondly, it is contended that the imposition of a prohibition order was disproportionate, excessive and thus wrong.
The law
The power to investigate disciplinary cases by the respondent is created by section 141B of the Education Act 2002 which provides as follows:
"141B Investigation of disciplinary cases by Secretary of State
(1) The Secretary of State may investigate a case where an allegation is referred to the Secretary of State that a person to whom this section applies—
(a) may be guilty of unacceptable professional conduct or conduct that may bring the teaching profession into disrepute, or
(b) has been convicted (at any time) of a relevant offence.
(2) Where the Secretary of State finds on an investigation of a case under subsection (1) that there is a case to answer, the Secretary of State must decide whether to make a prohibition order in respect of the person.
(3) Schedule 11A (regulations about decisions under subsection (2)) has effect."
The regulations referred to in section 141B(3) are the Teachers' Disciplinary (England) Regulations 2012. Regulation 6 deals with cases where the respondent decides that an allegation against a teacher should be considered by a professional conduct panel and establishes the composition of that panel. Regulations 7 and 8 deal with the deliberations of the panel and the decision of the respondent in the following terms:
"Proceedings of a professional conduct panel
7.—(1) A professional conduct panel must consider cases referred to it by the Secretary of State in accordance with paragraphs (2) to (5) and regulations 9 to 11.
(2) Subject to paragraph (3), a professional conduct panel must determine all cases following a hearing.
(3) A professional conduct panel may determine a case without a hearing at the written request of the teacher who is the subject of the case.
(4) Where the professional conduct panel does not find the case proved, the Secretary of State must at the request of the teacher publish a statement to that effect.
(5) Where a professional conduct panel finds the teacher—
(a) to have been guilty of unacceptable professional conduct or conduct that may bring the teaching profession into disrepute; or
(b) to have been convicted (at any time) of a relevant offence
the panel must make a recommendation to the Secretary of State as to whether a prohibition order should be made.
Decision of the Secretary of State
8.—(1) The Secretary of State must consider any recommendation made by a professional conduct panel before deciding whether to make a prohibition order.
(2) Where the Secretary of State decides to make a prohibition order, the Secretary of State must decide—
(a) whether an application may be made for a review of the order under regulation 16; and
(b) if the Secretary of State decides such an application may be made, the minimum period before the end of which no such application may be made.
(3) The minimum period under paragraph (2) must not be less than two years from the date on which the prohibition order takes effect.
(4) Where the Secretary of State decides not to make a prohibition order, the Secretary of State must notify the teacher in writing of the decision, giving reasons for the decision.
(5) The decision of the Secretary of State following the determination of a professional conduct panel must be published."
Regulation 13(5) creates obligations in relation to the contents of prohibition orders as follows:
"13. (5) The notice referred to in paragraph (4)(a) must contain the following information:
(a) the text of the order;
(b) a description of the effect of the order;
(c) the reasons for making the order; and
(d) notification of the right to appeal to the High Court against the order within 28 days of service of notice of the order."
The claimant stressed the language of regulation 8(1), and in particular the phrase "must consider", in support of a submission that the respondent must afford particular deference to the recommendation of the panel, noting that the panel are, of course, an expert tribunal which has had the advantage of observing the evidence and the submissions in the case first-hand and at a hearing. Mr Brady, on behalf of the claimant and in support of this submission, refers to a body of authority in appeals of disciplinary cases in this court in support of this approach. In particular, he relied upon the judgment of Sir Thomas Bingham MR, as he then was, in Bolton v Law Society[1994] 1 WLR 512, at page 518E; Cheatle v General Medical Council [2009] EWHC 645 at paragraph 15; and General Medical Council v Meadow [2006] EWHC Civ 1390 at paragraph 120.
I am unable to accept the submission that either by virtue of the language of regulation 8(1), or by virtue of the common law, the respondent is obliged to afford special deference to the recommendations of the panel in the context of a decision of the kind under appeal. Firstly, that is not what the regulation says: the regulation does not afford any particular status to the panel's recommendation beyond obliging the respondent to consider it before reaching a decision. Secondly, the observations in the disciplinary appeal case law arise in a different context, namely an appeal from the disciplinary tribunal to the High Court. In this connection, the consideration of an appeal to the High Court cannot be equated to the decision of the respondent following a panel's recommendation. The responsibility for making the decision in respect of sanction as a consequence of the statutory framework rests solely and exclusively with the respondent. In reaching that decision, the respondent must consider the recommendation of the panel, but no more and no less is required.
I would have reached these conclusions myself unassisted by authority, but I am further reinforced in my views by the identical conclusions reached in relation to a similar submission by William Davis J in Lonnie v NCTL [2014] EWHC 4351 at paragraph 12. The decision-making structure which is in play in this case, where a decision maker is provided with and makes a decision following a recommendation from a person or panel conducting a hearing or inquiry, is not unusual, and in particular is designed to assist the efficiency of ministerial decision-taking of the kind which is involved here.
In my view, where Mr Brady's submissions achieved far greater traction was when he focused on the obligation to give reasons in a decision-making regime of the kind under which the respondent was operating in the present case. Whether reasons are legally fit for purpose depends upon the purpose for which they are being provided. Those purposes will be many and various, but amongst those commonly arising purposes are the following: firstly, to enable a participant to know why they have either won or lost; secondly, to enable a participant to discern that there has been no legal error in the decision which has been reached; thirdly, to enable an understanding of how any future decision-making exercise may be addressed and undertaken in relation to the same subject matter; fourthly, to understand what the decision maker has concluded on the principal, but not every, controversial issue in the case.
This is not designed by any means to represent any kind of exhaustive list in relation to the purposes for which reasons legally have to be given. The purpose and content of the duty to give reasons will always be dependent in each individual case on their context. These points are clearly established in the well-known authorities of English v Emery Reimbold & Strick Ltd[2002] 1 WLR 2409 and South Bucks District Council v Porter (No. 2)[2004] UKHL 33. These points are further reinforced by the analysis of the duty to give reasons given by Mr Stephen Morris QC sitting as a deputy judge of this court, (as he then was) in O v Secretary of State for Education [2014] EWHC 22.
In the present case, the purpose of providing reasons particularly emphasised by the claimant includes the need to explain the difference in the conclusions reached by the panel in their recommendation from the conclusions of the Secretary of State. Further, it is submitted that the reasons need to explain the basis for the conclusion that prohibition was proportionate and appropriate. They also need to provide, it is submitted, an understanding of the basis of the decision so as to inform any subsequent review by the Secretary of State and indeed any appeal to this court.
Turning to the basis of how this court will examine the contention that a sanction imposed is too harsh in an appeal, in Lonnie, William Davis J described the nature of the jurisdiction in appeals of this kind in the following terms:
"15. The appellate jurisdiction I am exercising is not properly identified in the Education Act or the regulatory scheme set out thereunder. It is agreed on all sides in this case that I must exercise the jurisdiction provided by the Civil Procedure Rules, part 52.11. Therefore, under paragraph 3 of that part, I must exercise this jurisdiction:
'The appeal court will allow an appeal where the decision of the lower court was —
(a) wrong, or;
(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.'
16. In this case it is not suggested there were any procedural or other irregularities, serious or otherwise; rather it is said that the decision of the lower court, for which one must read the Secretary of State, was wrong.
17. There is agreement also as to the nature of this appeal and I adopt gratefully what was said by Mr Stephen Morris QC sitting as a deputy High Court judge in O v The Secretary of State for Education[2014] EWHC 22 Admin. At paragraph 57, he said this:
'On such an appeal in general, this means deciding whether the decision below can be said to be wrong. On issues of professional judgment, the court may need to defer to expertise of the lower court or tribunal but on questions of primary fact the position is different. Whilst the lower court or tribunal is the primary decision-maker on questions of fact, the High Court will correct material errors of fact on various grounds such as insufficient evidence or mistake.'
18. There is no suggestion here that there was any error of fact. There was a judgment exercised by the Secretary of State based on the facts as found by the panel. I am not being asked to correct any material error of fact. Therefore whilst this appeal is a rehearing, and may be described properly as interventionist, there are no issues in relation to fact. I must stand back and take proper account of the judgment and discretion vested in the Secretary of State as is clear from the statutory framework.
19. I must make entirely plain that I am not remaking the decision of the Secretary of State. If it were left purely up to me, I can see some force in the argument that where a man behaved in a particular way in 2009 and is only proceeded against in 2014, and where there is at least some evidence that he had been unable to pursue his profession as a teacher in the interim, then to impose a prohibition on him is perhaps less than appropriate. But that is my impressionistic view and no more. It is not a view which I could or should impose on the Secretary of State. I have to be satisfied that her view was wrong."
Against these principles the appellant's contentions as to the propriety of the sanction and whether it was proportionate must be evaluated.
Conclusions
The appellant is critical of the reasons provided by the respondent. It is said that they merely note the panel's conclusions and then in but one paragraph disagree with the recommendation. It is submitted that the reasons provided are far less detailed than those of the panel. In paragraph 51 of his skeleton, Mr Brady sets out a lengthy list of factors all founded on the conclusions of the panel which are not addressed by the respondent in her reasons. Those matters are as follows:
"51. In the said Paragraph the Secretary of State provides no reasoning or consideration in relation to:
(i) Why she felt that the Panel had not taken sufficient account of public concern and confidence in the profession.
(ii) How she felt the Panel had failed to accord sufficient weight to the necessity to uphold proper standards of conduct in the teaching profession.
(iii) Why she felt that the Panel had given undue weight to Mr Kingston's insights into his conduct and the fact of this being a single and isolated incident.
(iv) Where on the scale of severity the conduct should lay.
(v) Why a prohibition order was the proportionate or appropriate response, relative to other courses of action.
(vi) What consideration was accorded to the Panel's finding on:
(a) Protection of the public.
(b) That the Appellant was a 'passive participant'.
(c) The fact the actions were not deliberate.
(d) The narrow nature of the finding.
(e) The fact that none of the factors listed in the Advice suggesting the making of a Prohibition Order had been engaged.
(f) The fact of there not being a departure from the Teachers' Standards.
(g) The lack of evidence as to a pattern of behaviour.
(h) The fact of this matter being away from pupils, and in no way impacting on pupils or Mr Kingston's teaching.
(i) Mitigation relating to Mr Kingston's record as a teacher.
(j) The fact that none of the behaviours itemised in the Advice were engaged.
(k) The fact that Mr Kingston had not searched for or viewed images on his own device.
(l) The steps that Mr Kingston had taken since the relevant period of his life (observed by the Panel)."
The respondent, it is submitted, fails to explain how public confidence in the teaching profession would be weakened, which is a matter which is simply asserted in the reasons provided. Thus, it is submitted, the reasons are inadequate and do not discharge the legal duty in this case.
Having considered the submissions made, I should note firstly, that I accept that in this case amongst the purposes to be served by the provision of reasons is the need to explain the difference between the conclusions of the panel in their recommendation and those reached by the respondent. I also accept that it is a purpose of the reasons to explain why prohibition was a proportionate and appropriate sanction, and in doing so to provide sufficient reasons to inform the question of whether or not that is a decision which has been lawfully arrived at in the light of the statutory regime, and also, further, to inform any subsequent review which might be undertaken as contemplated by the order which was imposed.
Having observed those matters, I am satisfied that the reasons which have been provided in this case meet those requirements. They make clear in those paragraphs which note the panel's finding that the respondent was fully cognisant of the panel's conclusions and indeed took them into account in reaching her own. As the paragraph containing the reasons explaining the differences between the respondent and the panel sets out, those differences which exist relate not to making different factual findings or regarding as irrelevant any issues which were identified as relevant by the panel, but rather relate to the ascription of different weight to certain of the factors which are identified, leading to the balance being struck differently in respect of what is an appropriate and proportionate sanction and whether prohibition was warranted.
It was not necessary, in my judgment, for the respondent to engage specifically with each of the elements which have been set out in Mr Brady's list. They were factors which were engaged, but the key issues were those to which the respondent ascribed a particular weight and a different weight, whether greater or less, than that which had been given by the panel. Those matters to which different weights were ascribed were, as the reasons explained, public confidence in the teaching profession and the public interest in upholding proper standards of conduct in the teaching profession, (where more weight was given), and the insight demonstrated by the appellant and the fact that this was a single isolated incident, (where less weight was given).
Of course it would have been possible for the respondent to have said more, but the question which the court has to answer is whether what the respondent did say explained clearly the basis of her decision and served the purposes which I have set out above. In my view, the reasons challenge which is mounted must fail, as the reasons do provide an adequate and proper explanation which meets the needs of this case.
Turning to the challenge on the basis of the sanction which was imposed and whether it was too harsh, as William Davis J observed in Lonnie, the question is not what sanction I would have imposed, but whether the respondent's decision was wrong. In approaching that question, it is necessary to have regard to the Advice. In relation to a prohibition order the Advice sets out the following overarching principle:
"A prohibition order is likely to be appropriate when the behaviour of the person concerned has been fundamentally incompatible with being a teacher. The primary purpose of a prohibition order is to protect pupils, maintain public confidence in the teaching profession and uphold proper standards of conduct, referred to as public interest."
The Advice goes on to deal with circumstances when a prohibition order would be appropriate. It provides advice in the following terms:
"A prohibition order aims to protect pupils and to maintain public confidence in the profession. A panel should consider what is in the public interest and whether a prohibition order is an appropriate and proportionate measure. Prohibition orders should not be given simply in order to be punitive or show that blame has been apportioned, although they are likely to have a punitive effect. Public interest considerations would usually include:
• the protection of pupils and other members of the public
• the maintenance of public confidence in the profession.
• declaring and upholding proper standards of conduct.
[...]
It is likely that a teacher's behaviour will be considered to be incompatible with being a teacher if there is evidence of one or more of the factors below. This list is not exhaustive and the decision should be made by a panel on a case by case basis, after seeking relevant advice from the panel's legal adviser:
• serious departure from the personal and professional conduct elements of the Teachers' Standards;
• misconduct seriously affecting the education and/or well-being of pupils, and particularly where there is a continuing risk;
• actions or behaviours that undermine fundamental British values of democracy, the rule of law, individual liberty, and mutual respect and tolerance of those with different faiths and beliefs; or that promote political or religious extremism. This would encompass deliberately allowing the exposure of pupils to such actions or behaviours, including through contact with any individual(s) who are widely known to express views that support such activity, for example by inviting any such individuals to speak in schools;
• a deep-seated attitude that leads to harmful behaviour;
• abuse of position or trust (particularly involving vulnerable pupils) or violation of the rights of pupils;
• dishonesty especially where there have been serious consequences, and/or it has been repeated and/or covered up;
• sustained or serious bullying, or other deliberate behaviour that undermines pupils, the profession, the school or colleagues;
• possession of prohibited firearms, knives or other weapons;
• sexual misconduct e.g. involving actions that were sexually motivated or of a sexual nature and/or that use or exploit the trust, knowledge or influence derived from the individual's professional position;
• any activity involving viewing, taking, making, possessing, distributing or publishing any indecent photograph or image or pseudo photograph or image of a child, or permitting such activity, including one off incidents;
• the commission of a serious criminal offence, including those that resulted in a conviction or caution, paying particular attention to offences that are 'relevant matters' for the purposes of The Police Act 1997 and criminal record disclosures;
• failure to refer to the police known female genital mutilation (FGM) cases involving girls under 18 where the individual is aware, or should have been aware, of the statutory duty to report such matters but deliberately chose not to do so."
I have set out all of the bullet points in the Advice in order to provide some context as to the gravity of matters giving rise to the basis for making a prohibition order. It is part of the appellant's case to point out that virtually all of these instances do not apply to the appellant or his conduct in this case; the only possibilities are the sexual nature of the matters found and, on the respondent's case, the serious departure from the personal conduct elements of the teacher's standards. There is some ambiguity in relation to the panel's conclusions on this latter point. However, it must be noted that the list which is provided is not exhaustive and it is beyond argument that the matters which were found against the appellant were of a sexual nature. There is, I accept, powerful mitigation available to the appellant in the form of the list of matters which I have set out above from paragraph 51 of Mr Brady's skeleton argument, albeit there may be some cavil in relation to those elements of that list which proceed on the basis that no behaviour contained in the Advice is engaged, in the light of the sexual nature of the findings.
In addition to that list of powerful mitigating factors, the appellant in this case had an exemplary record as a teacher, and his headteacher provided a positive reference for the purposes of the proceedings. It is clear from the evidence that the appellant had significant personal difficulties in his early life, and that these were taking a serious toll on him at the time, and had an important part to play in what occurred. As is noted in the reasons provided, the appellant has taken significant steps to address these matters, and this and the insight which he has shown stand to his credit. All that having been said, it has to be acknowledged that this was misconduct of a sexual nature and which the respondent was entitled and correct to conclude needed to be treated with the utmost seriousness in order to avoid damage to public confidence in the teaching profession. I agree that significant weight had to be given to the public interest in sustaining standards in the teaching profession. It was not, in my view, wrong to conclude that the mitigating factors, could not outweigh the factors indicating that a prohibition order was required.
In the circumstances, I am not persuaded it was wrong to conclude that a prohibition order, subject to potential review after two years, was a disproportionate sanction. As the respondent observed, in the light of the appellant having sought help, having expressed remorse and showing insight into what he had done wrong, together with his good record as a highly regarded teacher and the fact that the underlying facts were not directly engaged in his work as a teacher, rendered it appropriate to afford him the opportunity to re-enter the profession in future after an appropriate period of reflection. In my view, the respondent's sanction was a sensible response to the panel's findings in relation to the allegation that they had found proved. I am therefore not satisfied that there is any basis upon which to disturb that sanction and this appeal must be dismissed.