Duncan McTier v Secretary of State for Education
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kerr |
| Judgment Date | 16 February 2017 |
| Neutral Citation | [2017] EWHC 212 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 February 2017 |
| Docket Number | Case No: CO/4075/2016 |
[2017] EWHC 212 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Civil Justice Centre,
1 Bridge Street West
Manchester M60 9DJ
Mr Justice Kerr
Case No: CO/4075/2016
Mary O'Rourke QC (instructed by Burton Copeland LLP) for the Appellant
Jonathan Moffett (instructed by Government Legal Department) for the Respondent
Hearing date: 20 th December 2016
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This case is about an internationally renowned and talented double bass player who, unfortunately, is also a convicted sex offender. He committed three offences against two young women and a 17 year old girl, in 1985, 1988 and 1994 respectively. He pleaded guilty to the three offences on 11 November 2014, at Liverpool Crown Court. Macduff J sentenced him to three months' imprisonment, suspended for two years, with a 240 hours' unpaid work requirement.
The case raises two issues: whether the current legislative provisions conferring power on the respondent (the Secretary of State) to prohibit teachers from teaching on the ground of misconduct, apply to conduct committed in 1985, long before the present provisions entered into force; and secondly, if the answer is yes, whether the Secretary of State's decision to prohibit the appellant from teaching, was wrong and should be set aside.
As a result of the convictions, Mr McTier was made subject to notification requirements under the Sexual Offences Act 2003 for seven years, until late 2021. The National College for Teaching and Leadership (the NCTL) referred his case to a professional conduct panel in 2015. He admitted the convictions and sentence. In June 2016 the panel decided not to recommend to the Secretary of State that Mr McTier should be prohibited from teaching.
In the written decision dated 1 July 2016 against which he now appeals, the Secretary of State, acting through an official, disagreed with the panel's recommendation and decided that Mr McTier should be prohibited indefinitely from teaching in any school, sixth form college, academy, children's home or relevant youth accommodation in England, and should not be allowed to seek a review of that decision for five years, until July 2021.
The three female victims of the sex offences are referred to in the papers as pupils A, B and C. I shall refer to them as students A, B and C. They are entitled to the protection of anonymity. The court takes this opportunity to reaffirm the requirement that their identities must not be published; and neither must any written or electronic material be published which could lead to their identities being revealed.
The appeal was brought under regulation 17 of the Teachers' Disciplinary (England) Regulations 2012 (the 2012 Regulations). The appeal proceeded as a rehearing, without dissent from either party, as provided by CPR 52.11(1)(b). Since no disputes of fact arose before the panel and no oral evidence was heard before it, this is in practice no different from a review.
If the Secretary of State had power to make the decision challenged, the question for me then is whether the decision of the Secretary of State was "wrong" ( CPR 52.11(3)(a)). A procedural irregularity is not suggested. I will defer, as appropriate, to the professional judgment of the panel and the Secretary of State, in line with the approach commended 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 (Admin) at paragraphs 54–57.
The Facts
Mr McTier was born on 21 November 1954. He is therefore now aged 62. During his career he has taught at various musical institutions in this country and abroad. His students include successful professional double bass players who perform worldwide. The Secretary of State has statutory responsibility for education in England. The NCTL is an executive agency of the Department for Education. Its professional conduct panel acts on the Secretary of State's behalf in matters of alleged misconduct by teachers.
In 1985, Mr McTier was aged 30 or 31. He was teaching at a school of music (the XSM). One of the students there was student C, born on 15 January 1968. Then aged 17, she was studying the double bass. She attended Mr McTier's home in 1985 for a two hour lesson. The lesson lasted five hours. He prepared food for himself and student C. He drank wine; she drank non-alcoholic drinks. He persuaded her to sit with him on the sofa; told her his wife did not understand him; and put his arm around her back, resting it on her shoulder without her consent for about 20 minutes.
After she realised that she had missed the last tube, he offered her the spare bedroom. She went upstairs. After she emerged from the bathroom, Mr McTier attempted to touch her breasts, without warning. She rebuffed him, slept in the spare bedroom and left the next morning. Later, she confronted him angrily, warning him not to do such a thing again. She continued to be taught by him at another music college and subsequently became a member of a professional orchestra.
About two or three years later in 1988, Mr McTier, aged 34, was a visiting double bass teacher at the Royal College of Music (RCM) providing master classes. Among his students was student A, then aged 22. She attended his home for a private lesson on 10 March 1988. No one else was present at the address. He offered student A a glass of wine, which she accepted. She sat next to him on a sofa at his invitation.
He put his arm over her back and touched her breast over her clothing, without warning. Student A immediately left his home. Later, he was an examiner at her final recital on 24 March 1988. The exact timing of these events in 1988 is not clear, since police records did not tally with Mr McTier's recollection, set out in a statement of agreed facts. The discrepancies are immaterial.
About six years after that, in 1994, Mr McTier was aged 40. He was then teaching at the Royal Northern College of Music (RNCM). One of his students was student B, then aged 21. She was in the process of applying to join the RNCM. On one occasion, she drove Mr McTier to his accommodation after a private double bass lesson at the RNCM. On arrival, she accepted his offer to come inside to collect some CDs.
Once inside, she accepted a small glass of wine and they listened to music sitting on the sofa. Mr McTier then told her that he found her attractive and, without warning, touched her breast over her clothing with his hand. Student B immediately left. Her application to join the RNCM was successful and he continued to teach her there.
The prosecution's written opening at the subsequent criminal trial added an allegation that he tried to kiss her and that she turned her head away. This is not replicated in the agreed statement of facts used by the NCTL. Other aggravating features in the aftermath of the offence are also omitted from the agreed statement of facts.
Certain further allegations against Mr McTier were also included in the Crown's subsequent case against him. They were not the subject of separate counts on the indictment but were relied upon as establishing a "propensity" to commit offences of this type. They are not mentioned in the agreed statement of facts used by the NCTL.
Some 19 years later, Mr McTier was arrested on 10 May 2013 and interviewed about allegations made by student B. He provided a prepared statement denying any sexual assault on her or other inappropriate conduct, and then answered "no comment" to further questions, probably on legal advice.
He was arrested again on 22 August 2013 and asked about allegations made by students A and C, and others. He repeated his denials, including denying any sexual offences committed against students A and C. He was charged with offences relating to students A, B and C. There were two counts of attempting indecently to assault student C; one count of indecently assaulting student A; and one of indecently assaulting student B.
The case was prepared for a contested trial. It is not clear whether other counts, not proceeded with, were on the indictment. At some stage, Mr McTier pleaded guilty to three of those offences. He was convicted of only one of the two counts relating to student C. For his guilty pleas, he was given "substantial credit" by the sentencing judge, Mr Justice Macduff. The judge's sentencing remarks were among the papers subsequently considered by the panel of the NCTL.
Apart from giving credit for the guilty pleas, the judge professed himself "satisfied that you do not pose a risk for the future". He noted the breach of trust and the adverse effect on the career and confidence of one of the victims; on the other hand, he accepted that Mr McTier was "clearly remorseful". He drew back from a sentence of immediate custody, suspending the three month prison sentence for two years, with an unpaid work requirement of 240 hours. That sentence was passed in respect of each of the three offences, to run concurrently. The consequent notification period on the sex offenders' register was seven years.
In September 2015, the Disclosure & Barring Service wrote to Mr McTier accepting that it was not appropriate to include him in the "Children Barred List"; nor in the "Adults' Barred List".
In October 2015, the NCTL published non-statutory guidance entitled "Teacher Misconduct: the Prohibition of Teachers". Much of the guidance was devoted to paraphrasing the relevant statutory provisions, to which I am coming. The...
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