SAL 1 v The Secretary of State for Education

The Appellant (“SAL1”), appeals against an order, made by the Respondent (“the SSE”), prohibiting her from teaching, dated 14 January 2025. The prohibition order has been made on terms that permit her to apply to set aside the prohibition after two years (i.e. from January 2027). The prohibition order was made following a recommendation by an independent Professional Conduct Panel (“the Panel”). The Appellant’s name is anonymised to “SAL1”.

The Appellant was represented by Mr Andrew Faux. The Respondent was represented by Mr Simon Pritchard.

As pleaded in the Grounds of Appeal there were 9 Grounds. However, Mr Faux, who had not drafted the original Grounds, applied to amend Ground One and Ground Nine. Ground One was amended so that it reads as follows, with amendments underlined:

“The panel’s decision was wrong because it failed to consider, in determining the allegations of unacceptable professional conduct, whether SAL1 had experienced duress at the time of her conduct.

Further, when the panel purported to consider ‘duress’ at the sanction stage, they were wrong to:

A.

limit their consideration to “extreme duress “rather than “duress”;

B.

shift the burden of proof onto the Appellant to satisfy them that “extreme duress” was proved on the balance of probabilities.”

The amendment to Ground Nine was simply clarificatory.

In practice Mr Faux’s submissions focused on Ground One (as amended) and Ground Two and it appeared to me that the Appellant’s case would be clearer and better structured if I allowed the amendment sought to Ground One. Mr Pritchard did not suggest that this would cause any prejudice to the SSE and did not strongly oppose the amendments. I therefore allowed the amendments to Grounds One and Nine.

The second preliminary issue is whether the appeal proceeds by way of review or rehearing. Both parties agree that in practice on the facts of this case that decision will make no difference to the outcome. I will deal with this issue below under the Grounds.

From September 2014, SAL1 was employed at a primary school. She was initially a Year 6 teacher, but in September 2017 she was promoted to the role of Assistant Headteacher. During the course of the investigation and Panel hearing she admitted that in 2016, she had sent a Facebook message stating “are you a virgin” to someone who she believed was about 16 years old.

The wider context of the message was that SAL1 said that from June 2015, she started an extra-marital affair with an individual (“Dr B”), having found him via a website called “Illicit Encounters”. Before the Panel, SAL1’s legal representative described the relationship between SAL1 and Dr B as “plainly a very odd and indeed toxic relationship”. Having read the papers in this matter that appears to be a fair and accurate description. The affair continued until the summer of 2018. In August 2018, Dr B died by suicide.

The hearing before the Panel took place over 7 days. The Panel heard a great deal of evidence and SAL1 gave oral evidence across two sitting-days. That evidence included detail of the nature of SAL1’s relationship with Dr B. SAL1 faced five factual allegations. Of these, the Panel found two proven:

The statutory framework underpinning the decision-making is such that the SSE was bound by the Panel’s factual findings on the allegations. However, when deciding whether or not to make a prohibition order, the SSE was neither bound by the Panel’s recommendation nor the reasons for that recommendation. In this case the SSE decided to follow the recommendation and imposed a prohibition order with a two-year review period (the shortest that is allowed). Mr Faux makes no separate criticism of the SSE’s decision, other than that she acted on the Panel’s findings and recommendation.

Section 141B(1) of the Education Act 2002 (“EA 2002”) provides that the SSE may investigate a case where the SSE receives an allegation that a person may be guilty of unacceptable professional conduct (“UPC”), and/or conduct that may bring the teaching profession into disrepute and/or a conviction, at any time, of a relevant offence. By s.141B(2), where the SSE finds that there is a case to answer, the SSE must decide whether to make a prohibition order in respect of the person.

A ‘prohibition order’ means an order prohibiting the person to whom it relates from carrying out teaching work (s.141B(4)). A prohibition order therefore prohibits a person from teaching for life (subject to any successful application for a review under Reg. 16 of the Teachers’ Disciplinary (England) Regulations 2012 (SI 2012/560) (“the 2012 Regulations”), as explained below).

Reg. 4 of the 2012 Regulations provides that any decision made under the Regulations may take into account a failure by a teacher to comply with the personal and professional conduct standards set out in part two of “Teachers’ Standards Guidance for school leaders, school staff and governing bodies” (“the Teachers’ Standards”) published by the SSE in July 2011.

Reg. 5 provides that where the SSE considers that a teacher may be guilty of UPC and/or conduct that may bring the teaching profession into disrepute she must consider all the relevant material (including representations from the teacher) and decide whether to discontinue the matter or refer it to a Panel.

Reg. 7 requires the Panel to consider cases referred to it by the SSE under Reg. 5. Where it finds the teacher to be guilty of UPC and/or conduct that may bring the profession into disrepute, the Panel must make a recommendation to the Secretary of State as to whether a prohibition order should be made (Reg 7(5)).

Reg. 8(1)-(4) provide: :

By Reg. 15, the SSE must publish information about prohibition orders:

In Lonnie v National College for Teaching and Leadership [2014] EWHC 4351 (Admin), [10], William Davis J emphasised that it was the SSE’s decision whether to impose a prohibition order (and not the Panel’s decision):

“I glean from that statutory provision that it is for the [SSE] to decide whether a prohibition order is to be made in relation to a teacher who has been guilty of the relevant conduct. That decision is the [SSE’s] decision.”

Further, in Wallace v SSE [2017] PTSR 675, [50] et seq, Holgate J described the decision making process in detail:

In 2022, the Department for Education published “Teacher misconduct: the prohibition of teachers” (“the Advice”/“the Guidance”). This provided guidance for the Panel on factors relating to decisions leading to the prohibition of teachers from the teaching profession and replaced earlier versions.

The Introduction to the Advice states:

“This advice sets out the factors to be considered by a professional conduct panel (panel), which is an independent panel convened by the TRA for the purpose of the regulation of teacher misconduct. The primary purpose of the advice is to inform panel considerations, findings and recommendations to the Secretary of State whether to impose a prohibition order on a teacher. A senior official, who acts as the decision maker on behalf of the Secretary of State, also uses this advice when considering the panel's recommendation and in deciding whether to make or set aside a prohibition order.”

Paragraph 9 states:

“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 safeguard pupils and students, maintain public confidence in the teaching profession and uphold proper standards of conduct. Section 5 (iii) ‘Is a prohibition order appropriate?’ provides more detail about how this is considered.”

Section 5 explains the three stage process involving (i) findings of fact; (ii) findings of UPC or bringing the profession into disrepute; and (iii) sanction.

Paragraphs 35-37 state:

Paragraphs 42-44 cover Mitigation and paragraph 43 states:

“43.

Taking account of the nature and severity of the behaviour including the level of risk of repetition, a panel may determine that a recommendation for a prohibition order will not be appropriate where most or all of the following criteria are apparent (this list is not exhaustive):

• the teacher’s actions were not deliberate;

• the teacher was acting under extreme duress e.g. physical threat or significant intimidation to perform unlawful activities;

• the teacher demonstrates exceptionally high standards in both personal and professional conduct and has contributed significantly to the education sector.”

Section 7 deals with Panel recommendations on the review period:

This appeal is brought under CPR Part 52. On such an appeal, the Court must consider whether the Decision was “wrong” (CPR r.52.21(3)(a)) or “unjust because of a serious procedural or other irregularity in the proceedings in the lower court” (CPR r.52.21(3)(b)).

The proper approach to appeals against prohibition orders imposed by the SSE was summarised by Pepperall J in Sutcliffe v SSE [2024] EWHC 1878 (Admin):

In Ullmer v SSE [2021] EWHC 1366 (Admin) Steyn J reviewed the case law in relation to when appeals should proceed by way of ‘review’ or ‘re-hearing’. At [69]-[70], she concluded that the “default position” for teacher appeals was a ‘review’-type appeal unless “the interests of justice” required a ‘rehearing’-type appeal. At [84], Steyn J decided that on the facts of that case (where there were allegations of sexual activity with pupils), the interests of justice required a ‘rehearing’-type appeal:

“… In this case, the Panel’s conclusions prevent the appellant ever practising his profession again and, in view particularly of the conclusion that he engaged in sexual activity with a pupil, they have a profound impact on his reputation. In my judgment, given the gravity of the matter, the interests of justice require that this appeal should be by way of rehearing.”

In Hart v SSE [2024] EWHC 44 (KB) at [54], Eyre J explained that reputational damage alone did not necessitate a rehearing:

“the consequences of a prohibition order and the reputational harm resulting from findings of misconduct do not without more necessitate an appeal by way of re-hearing. To decide otherwise would be to create a new category where the appeal is to be by way of re-hearing rather than review and to do so notwithstanding the fact that this could have been done by way of practice direction if that had been regarded as necessary or appropriate.”

In her Grounds of Appeal, SAL1 argues that her appeal should proceed by way of rehearing because; (i) the prohibition “potentially prevent[s] [her] from ever practising her profession”; (ii) the “gravity of the matter”; and (iii) “in the light of the panel’s findings that she engaged in sexually motivated conduct with a teenage boy [which] are likely to have a profound and devastating impact on her reputation”.

However, in oral submissions Mr Faux submitted, and Mr Pritchard agreed, that whether the matter proceeded by way of review or rehearing would make no difference to the outcome of the case. In those circumstances I do not consider it necessary or proportionate to consider the caselaw in any greater detail. In my view there is no reason to depart from the approach of Steyn J in Ullmer that the starting position is a review, and there are no grounds advanced here by Mr Faux to argue that it should be a rehearing.

The Panel’s report (“DL”/“the Report”) is a long and detailed document in which the Panel sets out the evidence and its conclusions in considerable detail. Unfortunately, it does not contain paragraph numbers. I will therefore refer below to page numbers and then the paragraph on each page, as relevant.

At DL7-17 the Panel sets out its reasons in relation to the findings of fact. At DL18-19 it sets out its findings and reasoning in relation to UPC. At DL19-24 it sets out its recommendations in respect of sanctions. Although the report is set out in this way, it is a fundamental principle of administrative law that decision letters/reports are to be read fairly and as a whole. This principle is relevant in this case because at points Mr Faux referred to specific passages in the Report and suggested that they were deficient. However, in considering such a submission it is necessary to consider the Report as a whole and consider the passages relied upon in that wider context.

The main focus of Mr Faux’s oral submissions was in relation to the Panel’s consideration of duress, SAL1 being subject to coercive and controlling behaviour by Dr B, and that being the reason for her proven actions. I will therefore focus below on those passages of the Report which are relevant to this issue.

The Panel heard evidence from two witnesses, Witness A and Witness B, who had been involved in the investigation of the matter. At DL8/5 they record that Witness B understood that SAL1 had said she was acting under duress when she sent the message. At DL11/2 there is reference to Dr B exercising coercive control. At DL12/3 they refer to SAL1’s evidence that Dr B had manipulated her. Therefore SAL1’s defence of duress was clearly considered by the Panel at this stage of the DL.

DL13 sets out in some detail SAL1’s evidence, including:

“In respect of the message [SAL1] admitted to sending, her evidence was that this message was not sent of her own free will. [SAL1] stated that, at the material time, she was in a coercive and controlling relationship “that [she] was unable to escape from”. [SAL1] submitted that, at the time the message was sent, she was under “extreme duress” from Individual A.”

The Panel set out its findings of fact in respect of the message at DL14. They said:

“The panel did not have a copy of the message before it. However, it was satisfied on the balance of probabilities and in light of [SAL1] ’s admissions that the message “are you a virgin” was sent via Facebook messenger in 2016. The panel was further satisfied that this amounted to a communication of a sexual nature. The question “are you a virgin related to whether the recipient had had sex or not and was, therefore, inherently sexual in nature. Finally, the panel was satisfied, on the balance of probabilities, that the message was sent to a child who SAL1 knew or ought to have known were around the age of 16; although the panel could not establish the recipient of the message, the panel was satisfied that this allegation was proven on the basis that [SAL1] admitted that Individual A told her the message was being sent to a 16 year old child.

The panel concluded that [SAL1] did, by her own admission, send this message. The panel took account of [SAL1’s] evidence that she sent the message under extreme duress but considered that the extent to which [SAL1] was acting under duress was a matter that would more appropriately be considered at the third stage of the professional conduct panel hearing (if, indeed, the matter reaches that stage) in accordance with paragraph 43 of the Teacher Misconduct: The Prohibition of Teachers, which is referred to as “the Advice”.”

At DL17 the Panel turned to Allegation 5: “Your behaviour as may be found proven above at allegation 1..was sexually motivated”. They said at DL17/2:

“The panel considered the written and oral evidence of [SAL1]. [SAL1] denied this allegation, stating that she was coerced into sending a message which she acknowledged was sexual in nature, but stated that this was only sent out of immediate fear of repercussions from Individual A, further details of which are set out in respect of allegation 1. [SAL1] denied any sexual attraction to teenage boys and denied that the message was sent for her “own wants or gratification”.”

Their conclusion was as follows:

“The panel noted that the message [SAL1] admitted sending, which stated “are you a virgin”, was objectively sexual nature in that it related to whether or not the recipient had had sex. The panel went on to consider [SAL1’s] explanation for the conduct as set out in respect of allegation 1 above. The panel did not accept [SAL1’s] explanation. The panel had found, as a matter of fact, that an experienced female teacher had sent a message to someone they believed to be a 16-year-old boy to enquire as to whether they had had sex. The panel considered all of the evidence presented to it and found that the words used, along with the sending of the message (and subsequent failure to the report the message), indicated sexual motivation in the absence of any other plausible innocent explanation. The panel noted that [SAL1] had not provided any other innocent explanation for her conduct. The panel considered that, on the balance of probabilities, the conduct was either in pursuit of sexual gratification or in pursuit of a sexual relationship.”

The Panel at DL18 turned to its findings on UPC. At DL18/4 it referred to SAL1’s submission that the conduct resulted from her medical conditions and her account of “significant duress”. At DL18/5 they said;

“Whilst the panel acknowledged that [SAL1] had presented evidence in respect of both of these issues, the panel did not consider that [SAL1’s] medical conditions and her volatile relationship with [Dr B] sufficiently detracted from the very serious nature of [SAL1’s] conduct. The panel considered that the safeguarding of children by teachers is of the utmost importance and [SAL1’s] conduct in sending a communication of a sexual nature to a child she was told was 16 years old, and in subsequently failing to report her actions for between 18 and 24 months, amounted to serious and significant misconduct. In any event, and as set out above, the panel considered that the extent to which [SAL1] was acting under duress was a matter that would more appropriately be considered at the third stage of the professional conduct panel hearing.”

From the end of DL19 onwards the Panel considered its recommendation to the SSE. They considered mitigation at DL21 and at DL21/3 said;

“The panel considered whether there was evidence that [SAL1’s] actions were not deliberate. It considered the evidence it had considered during the hearing relating to the first allegation and the sending of the admitted message. The panel had been troubled by [SAL1’s] oral evidence on this point during the hearing, and in particular her inability to provide a cogent and compelling explanation for how it came to be sent and why. The panel was concerned by her lack of clarity regarding some of her responses to questions put to her in cross examination and by the panel in relation to the message. For example, she failed to give direct answers and it took the panel several attempts to obtain from [SAL1] a clear answer on certain points, one being whether she knew the recipient of the message was 16 or under. This was despite the gravity and weight of this issue, given it was the only message to which there was strong evidence that it had been sent by [SAL1]. The panel concluded that the message had been sent deliberately. [SAL1] admitted she had been aware of its content, had admitted she had sent it, and she accepted that she knew or ought to have known the recipient was around 16.

The panel moved to consider whether there was evidence that [SAL1] was acting under extreme duress and also considered Mr Storey’s submissions that [SAL1’s] conduct had been out of character and due to the circumstances of her relationship with [Dr B] and her health condition at the material time.”

The panel considered all the evidence on this point, particularly the medical reports of Dr Andrew Iles dated 31 October 2019 and its addendum dated 20 November 2020 and of Professor Clive Long dated 28 January 2020 adduced into evidence by [SAL1] together with Mr Storey’s submissions. The panel weighed this evidence against the absence of any contemporaneous evidence of [SAL1’s] mental health condition and having suffered duress at the material time. The panel noted that the main evidence relied upon was retrospective, after the event, and heavily reliant upon [SAL1’s] account of what had taken place, in respect of the information relied upon by Dr Iles and Professor Long in their reports, and by those who gave character references on [SAL1’s] behalf. [SAL1] gave evidence that she considered the School a safe refuge, had positive working relationships and had continued to thrive in her career during the material time. However, there was no evidence adduced that [SAL1] had confided in anyone during the material time that she was suffering the extreme duress which she later reported.”

They further consider the alleged duress at DL21/2 and say;

“The panel considered the evidence that [SAL1] continued to live with her husband and children throughout her relationship with [Dr B]. She therefore had spent the majority of her time apart from Individual A. She also confirmed she had positive relationships with colleagues. The panel found it difficult to accept that in those circumstances [SAL1] could have been under the level of duress she stated she was, such that she was forced to send the message she admitted to having sent, which contravened serious safeguarding protocols which she would have been well versed in as a member of the School’s leadership team.

Overall, the panel was not satisfied that there was sufficient evidence that [SAL1]had been under extreme duress at the material time.”

The Panel recommended a review period of two years.

The SSE’s decision and reasons are set out at DL24 onwards. The Claimant takes no point in respect of the SSE’s reasoning, focusing instead on that of the Panel.

I will deal with Grounds One and Two together as they were the main focus of Mr Faux’s submissions. I will then deal with the other Grounds more briefly below.

Ground One as amended reads:

“The panel’s decision was wrong because it failed to consider, in determining the allegations of unacceptable professional conduct, whether SAL1 had experienced duress at the time of her conduct.

Further, when the panel purported to consider ‘duress’ at the sanction stage, they were wrong to:

A.

limit their consideration to “extreme duress “rather than “duress”;

B.

shift the burden of proof onto the Appellant to satisfy them that “extreme duress” was proved on the balance of probabilities.” [amendments underlined]

Mr Faux submits that the Panel focused on duress as being relevant to whether there was UPC but failed to properly consider the issue of duress at the first stage, i.e. the fact finding stage. He says that the Panel’s approach followed from the advice they received from their legal advisor, who focused on duress being relevant at the mitigation stage, but not on whether the findings were proven.

He relies on the fact that following closing submissions on the first two stages of the process (i.e. fact finding and whether any facts found proved amounted to UPC and/or conduct that may bring the profession into disrepute), legal advice was provided to the Panel. The Panel then raised the issue with the legal advisor:  

“Sorry Madam [inaudible] are you going to advise us on the duress aspect; 

Not at this stage, no:”

There was then further discussion on other topics, but the issue of duress was discussed again at page [290/292], again initiated by the Panel: 

“I do have a question to ask if you finish. The issue of duress was raised, I want to ask in relation to that if the Panel find duress is present, then does that means that the Allegation is disproved or does the duress only go towards mitigation?” 

The legal advisor then said;

Mr Faux submits that this exchange highlights the error made by the Panel in not considering duress at the fact finding stage of its reasoning, having taken the advice of the legal advisor. This is then reflected in the DL at page 14/4, as set out above, where they said that duress was more appropriately dealt with at the third stage.

He then further submits that the Panel applied too high a test when it referred to “extreme” duress at page 21/4.

Mr Faux relies on Howd v Bar Standards Board [2017] EWHC 210 (Admin). In that case Lang J allowed an appeal against the BSB on the grounds that the conduct complained of was driven by factors outside the Appellant’s control. At [55] Lang J said;

“As I have already said, in the light of the further medical evidence adduced on appeal, I have concluded that the Tribunal misunderstood and misapplied the medical evidence and thus assessed Mr Howd's conduct on an erroneous basis. The medical evidence established, on the balance of probabilities, that his inappropriate, and at times offensive, behaviour was a consequence of his medical condition. It also established that his excessive consumption of alcohol was very likely to have been a response to the onset of his medical condition, and it probably had the unfortunate consequence of exacerbating his disinhibition and loss of judgment.

In these circumstances, Mr Howd's behaviour plainly was not reprehensible, morally culpable or disgraceful, as it was caused by factors beyond his control. In my judgment, it did not reach the threshold for a finding of serious professional misconduct.”

Mr Faux submits that the effect of the duress on SAL1 was analogous to Mr Howd’s medical condition and therefore as a matter of fact the Panel should have found that her actions were beyond her control, and she was therefore not culpable.

Mr Faux submits that the Panel misdirected itself on coercive control and did not properly consider the degree to which this removed SAL1’s autonomy and thus her responsibility for the behaviour found. His submission is as broad as saying that the Panel’s approach was a “worryingly crude” analysis of coercive and controlling behaviour and was “plainly wrong”. He criticised their reference to the school as a “safe refuge” and to the fact that SAL1 had been living with her husband and children throughout as relevant factors in supporting their conclusions that duress didn’t vitiate their findings.

Overall, Mr Faux submits that the Panel adopted stereotypical assumptions about the behaviour of a victim of coercive control. They appeared to be unaware of the psychological mechanism of coercive control whereby a victim’s self-esteem and self-worth are undermined to a point where they believe that poor behaviour towards them is justified.

In respect of the use of the words “extreme” duress, although Mr Faux accepts that those words are set out at paragraph 43 of the 2022 Guidance document, he relies on the fact that in the 2015 version, which was the one that was in place at the time the events occurred, the word used in the equivalent paragraph was only “duress”.

Mr Faux also submits that the Panel shifted the burden of proof onto the Appellant, making her satisfy the Panel that extreme duress was proved on the balance of probabilities. Mr Faux relies on the approach to duress in criminal trials as set out in the Crown Court Compendium at Section 18-3 paragraph 5, where it states:

“5.

It is for the defence to raise the issue of duress. Once raised it is for the prosecution to disprove. The defence ought to be left to the jury if there is any evidence of it. However, if no reasonable jury could conclude on the evidence that the threat was "imminent" and/or that a sober person of reasonable firmness, sharing the characteristics of the defendant, would have been driven to commit the crime because there was, for example, reasonable opportunity for avoiding it, then the defence need not be left.”

Ground Two is closely related and again largely relates to the issue of duress. It states:

“Ground 2: The panel’s decision was wrong because it failed to take into account significant evidence undermining the allegations against the appellant including:

a.

Expert evidence about the impact of Mrs A’s coercive and controlling relationship.

b.

Contemporaneous evidence of Mrs A’s coercive and controlling relationship.

c.

Evidence of Mrs A’s having sought professional help in relation to her mental health at the time of the conduct alleged.

d.

The character evidence adduced in relation to Mrs A.”

Mr Faux submits that the Panel erred by saying that there was no contemporaneous medical evidence (DL 21/5) when Dr Iles’ report had referred to the medical records and a GP letter dated 20 October 2020. The GP letter stated:

“[SAL1] is a patient who has been registered with our practice since 1996. She was first diagnosed with depression after delivery of her babies in 2010. She had further episode of depression diagnosed in 2013 which continued on and off until 201,8 and during that period of time she found it difficult to engage with treatment and was seen infrequently in the surgery. However, after that date she was seen in 2018 and 2019 with ongoing depression and anxiety. She engaged with the surgery and saw the doctor on a regular basis. She engaged with the mental health team and received a lot of support and help from the community mental health team and the primary care liaison workers.”

He submits that there was therefore evidence that she was under the care of her GP and being treated for depression at the relevant time.

On Ground 2(b) and (c) he submits that there was clear contemporaneous evidence of coercive control, largely set out in a series of texts between [Dr B] and SAL1 from January 2016 through August 2018, which he set out in a table in his Skeleton Argument. Mr Faux placed little reliance on Ground 2(d), and I set out the comprehensive answer to it below.

The other Grounds are highly repetitious of the matters set out above. I note they were not drafted by Mr Faux. Apart from Ground Three he made no reference to them in the Skeleton Argument and made very brief oral submissions on them. I will deal with them briefly and separately below.

Mr Pritchard started with some overarching submissions about the process the Panel undertook and their findings. The Panel heard evidence from SAL1 over two days, and it is clear from the DL that they considered that evidence very carefully. They made detailed findings both about the sending of the message, and that in their judgement SAL1 was not acting under duress.

The background to the case is important. SAL1’s own evidence was that in 2016 she sent a Facebook message to a boy who she was told was 16 years old and the message effectively said, “are you a virgin”. This was a wholly inappropriate message for a teacher to send, and it is unsurprising that the Panel found it was UPC and brought the profession into disrepute.

He submits that SAL1’s appeal is limited to a challenge of the Panel’s findings (and approach) in relation to her evidence regarding her reasons and excuses for sending the message. The Panel’s findings in that regard were ones that an appeal court should be slow to interfere with. In the specific regulatory context, he relies upon Byrne v General Medical Council [2021] EWHC 2237 (Admin) where Morris J considered in some detail the approach of an appellate court where there is a challenge to findings of fact by a court or tribunal that heard the oral evidence. He explained at [12] that the “starting point is that the appeal court will be very slow to interfere with findings of primary fact of the court below” [12] and that only in “exceptional circumstances” [14] should the High Court do so in a statutory appeal.

In Sutcliffe at [46.5], Pepperall J explained that Panels have the benefit of hearing from witnesses, and they have the primary responsibility for deciding the disputed facts of a case. The court should not interfere with a Panel’s findings of fact unless they are perverse in the sense that there is either no evidence to support the findings or they are findings which no reasonable panel could have reached.

Mr Pritchard submits that in the key passage at DL17/5, set out above, the Panel is effectively cross referring back to its findings of fact at DL7 onwards. Similarly, at DL21/3, when the Panel said that it was troubled by SAL1’s oral evidence and by her inability to provide a “cogent and compelling” explanation as to how the message came to be sent, they were again referring back to their findings and tying the two parts of the DL together.

The Panel was wholly entitled to come to this conclusion having heard the oral evidence. Mr Pritchard took the court to passages in the transcript of the hearing where SAL1 had been inconsistent on whether she knew, assumed, or did not know that the boy in question was 16.

In terms of the allegation that the Panel approached the issue of duress wrongly, the court should read the DL fairly and as a whole. He relies on the Supreme Court decision in Zoumbas v SSHD [2013] 1 WLR 3690 at [19] and [25] on reading the decision letter as a whole. Although that is an immigration case the principle is extremely well established and was applied in a regulatory context by Julian Knowles J in Maccallum v SSE [2024] EWHC 2454.

Although the DL is written in different stages, there is nothing to suggest that the Panel changed their mind between stage one/two and stage three. Their conclusions on duress were firmly based on the evidence and wholly reasonable. At the heart of the decision was the reasoning at DL21/3 relying on SAL1’s oral evidence, and for example her failure to give a clear answer as to whether she knew the recipient was 16 or under. This was a matter for the Panel, evaluating the oral evidence. The Panel had considered SAL1’s credibility, and again as an example, had concluded that some of her evidence was “fanciful”.

The Panel did consider duress at stage one, and referred to it at DL13/3, where they record SAL1’s evidence as being that she was acting under duress.

In relation to “extreme duress” it was SAL1’s own case, as set out in her witness statement to the Panel, that she was subject to “extreme duress”, see paragraph 24 of that witness statement. The Panel at DL22/2 addressed the case that had been put to them and did not accept it. That was a judgement for them.

Further and in any event, in terms of the change to the Guidance from the 2015 to the 2022 edition, that only goes to the question of whether a prohibition order is appropriate, and thus to mitigation. It does not go to the earlier stage of whether the alleged conduct is found and whether it amounts to UPC.

In respect of the burden of proof Mr Pritchard is clear that the burden of proving the allegations rested upon the Presenting Officer for the Teaching Regulation Agency (TRA) including on the question of whether or not SAL1’s behaviour had a sexual motivation. There was no separate burden in respect of duress; the Panel simply had to determine whether the allegations were proven, and that they amounted to UPC. In determining these matters, they had to consider SAL1’s case that she sent the message under duress, but there was no separate burden in respect of the issue of duress.

On the specific points raised under Ground Two, Mr Pritchard submits that the Panel did carefully consider the evidence of SAL1’s mental health condition, which is why they held parts of the hearing in private, see DL5/5. They considered the evidence of the experts, Dr Iles and Professor Long, see DL22/top of page. It is important to note that Dr Iles’ report in respect of duress is highly nuanced, and merely suggests that SAL1 might have been more vulnerable to coercive control by reason of her depressive disorder:

“Suffering from a depressive disorder in its own right would not lead someone into inappropriate conduct; however, suffering from depressive features may affect an individual’s judgement and decision making. Nevertheless, I do not conclude that having a depressive disorder would have affected [SAL1’s] capacity to understand the wrong associated with sending a message of this kind. The effect of the controlling and coercive relationship in the context of the mental disorder however is likely to have had an adverse effect on [SAL1’s] conduct. [SAL1]argues that she complied and acquiesced to [Dr B’s] commands due to her fear of the repercussions if she did not. The fact that she was depressed and vulnerable at that time, would have made it more difficult for her to defend herself against the orders of [Dr B].”

The contemporaneous evidence of mental health issues (i.e. at the time the message was sent in 2016) was extremely limited and no more than a reference to meeting a counsellor in January-March 2016. The Panel at DL42/5 had referred to SAL1’s evidence that Dr B had sought to control her access to the GP and had “gas lit” her about her mental health condition. Therefore, these issues were fully taken into account.

In respect of Mr Faux’s very broad argument that the Panel did not approach coercive and controlling behaviour in an appropriate way and took a stereotyped view, he submits that this was a matter of judgement for the Panel, having heard all the evidence. He pointed to one passage in SAL1’s oral evidence, where it was apparent that she was at the relevant time making independent decisions, and as she put it doing “a risk assessment” in respect of what she did. Mr Pritchard submitted that she knew that she was making bad decisions, but still continued:

“Yes I believed that you know there, there could be potential and that was, it was the potential. I didn’t know conclusively who the recipient was, only what [Dr B] was telling me. But I've always accepted that there was a potential and that's always been something that I've been incredibly you know sorry for. I assessed the risk at the time and I made a bad judgement. You know in my risk assessment at the time was there's something really bad going to happen here to me, my family, [Dr B] himself if I don’t do what he's asking me to do. And I balanced that against the risk of an unknown recipient, something that [Dr B] was telling me although I didn’t know conclusively but I just felt that that was, that was a risk and I accept that it was a bad judgement.”

Mr Pritchard submits that the Panel were entitled on the evidence to make a judgement that, whatever level of pressure or duress SAL1 was under, that did not mean that the allegations were not proven.

Mr Pritchard submits that it would not be correct to apply the approach of the criminal court to duress to the regulatory process. The processes are entirely different. The simple analysis here is that the Panel have to make the findings sought in a fair manner, and that they have done.

In my view the answer to Ground One lies in the fundamental principle of Administrative Law that decision letters, in the regulatory field and others, must be read fairly and as a whole, and without “excessive legalism or exegetical sophistication”, see Sir Thomas Bingham MR in Clarke Homes v Secretary of State for the Environment (1993) 66 P&CR 263 and Zoumbas.

Although this DL and process is somewhat unusual in that it is produced in stages, it is perfectly apparent that the conclusions in respect of duress that the Panel reach at DL17 and 18 relate back to, and are in reliance upon, the evidence and the findings of fact that they make earlier in the DL. That is the essence of reading the DL as a whole.

The Panel had the benefit of hearing extensive evidence from SAL1 and therefore were in an excellent position to assess her evidence on duress, see Pepperall J in Sutcliffe. It was quite reasonable for them to rely on the fact that throughout the time in question SAL1 was living at home with her husband and children and therefore was not isolated by [Dr B] and kept away from other support, as is frequently the case in coercively controlling relationships. Further the Panel were entitled to take into account SAL1’s evidence that she did exercise independent judgement, when she referred to carrying out a “risk assessment”.

Therefore, the Panel did properly consider whether SAL1 had experienced duress at the time of her conduct in sending the message, and took into account her evidence on duress on reaching their findings both on the findings of fact, and on UPC.

Their reference to “extreme duress” is both a reference to the 2022 Guidance but also is the way that SAL1 was herself putting the case. However, in any event, in my view the difference between “duress” and “extreme duress” is not critical in this case. SAL1’s case was that she was not responsible for her actions in sending the message and therefore it did not amount to UPC, because of the pressure being placed upon her by [Dr B]. The Panel decided against SAL1 on both those points, taking into account her evidence on duress. As long as they properly considered the evidence, which I find they did, it matters not whether the duress has the word “extreme” attached to it or not.

There was no shifting of the burden of proof. The burden remained on the TRA at all times, but importantly there was no separate burden or finding on “duress”. In my view the analogy with the criminal court’s approach is not a good one, because of the very different processes (including that the decision would ultimately be one for the jury) and the express findings that need to be made in the criminal context when raising the issue of “duress”. That necessary process does not arise in the regulatory context.

In relation to Ground Two the Panel had express regard to the expert evidence. Therefore, there is no possible argument that it was not taken into account. To the degree that Mr Faux’s argument is that the Panel were wrong in their conclusions upon it, this is primarily a matter for the Panel. It is important to note the quite limited scope of Dr Isle’s evidence about the role of SAL1’s mental health condition in respect of the impact of coercive control, see paragraph 77 above. Having taken the evidence into account, it was a judgement for the Panel as to what weight they attached to it, and the degree to which they accepted that SAL1 was not responsible for her actions. The conclusion that they reached on that issue was firmly based on the entirety of the evidence.

As Mr Pritchard submits, the contemporaneous evidence of coercive control at the time of sending the message was very limited. The large majority of the messages that Mr Faux relied upon in his Skeleton Argument actually relate to 2017 onwards, long after the message was sent. The Panel had regard to the limited evidence of coercive control in 2016, largely in Dr Iles’ report. This also deals with Ground 2(c) because the reference to SAL1 seeking professional help in relation to her mental health is dealt with by the Panel at DL13/5.

The Panel plainly did take into account the evidence as to SAL1’s good character. However, in circumstances where she had sent such an inappropriate message knowingly to a young person who was about 16 years old, it is entirely reasonable that such character references did not lead to changing the findings.

In essence this Ground repeats submissions set out above. Mr Faux submits that SAL 1 had given an “innocent explanation” in that she had relied upon duress from [Dr B]. This Ground is wholly subsumed in Ground One and raises no separate argument. The Panel fully and appropriately considered duress.

Again, this appears to repeat in substance Ground One. The only argument about the unreasonableness of the finding is that SAL1 asserted she sent the message under duress and not because she was sexually motivated. The Panel considered the issue of sexual motivation with considerable care at DL17. They referred to GMC v Haris [2021] EWCA Civ 763:

“In the absence of a plausible innocent explanation for what he did, the facts spoke for themselves. A sexual motive was plainly more likely than not; I would go so far as to say that that inference was overwhelming.”

They rejected the duress explanation at DL17/5 and found that on the balance of probabilities the conduct was either in pursuit of sexual gratification or a sexual relationship [i.e. with Dr B]. This was a conclusion that was open to them on the basis of the evidence and their findings.

Mr Faux did not pursue this argument with very much enthusiasm.

Mr Pritchard pointed out that SAL1’s own evidence before the Panel was that in 2016 she sent a Facebook message to a boy she was told was 16 years old and that the message effectively said, “are you a virgin”. SAL1’s admissions in this regard are summarised at paragraph 56 of Dr Iles’ report: “[SAL1] states that she sent the Facebook message to a 16-year-old boy, who was the friend of [Dr B’s] son. This was between May and September 2016. She could not recall the name of the recipient as [Dr B] was in full control of this. Although she claimed that [Dr B] typed the recipient’s name, she accepted that she sent it”. In oral evidence, SAL1 confirmed that this was a true record of what she told her psychiatrist.

At DL11/2 the Panel recorded that SAL1 had accepted that she was told the recipient of the message was 16 years old.

Therefore, there was clear evidence upon which the Panel could appropriately reach its conclusions.

This was not a separate finding of fact by the Panel. The Panel was entitled to have regard to SAL1’s evidence regarding her not reporting the message to appropriate authorities. SAL1’s explanation was again that she was acting under coercive control.

There was nothing unfair about considering this issue. SAL1 addressed it directly in her witness statement when she admitted at paragraph 103 that she “did not promote the best outcomes for all children and this is a point I reiterate throughout my training to others…”; and she said at paragraph 104 that she now frequently shares with trainee teachers that “there are routes to report concerns that can protect you if you are influenced by someone else”.

The fact that SAL1 had not reported the message was a matter the Panel was entitled to have regard to.

Mr Faux did not pursue this Ground and, in any event, it does not appear to be any different from Ground One on the burden of proof.

There is nothing inadequate in the Panel’s reasons. The Panel stated its decision clearly and explained the reasons for that decision.

SAL1’s Grounds of Appeal states that Ground 9 “arises from those pleaded above” (i.e. all the other grounds). This ground therefore adds nothing to the appeal.