Jonathan Ullmer v Secretary of State for Education
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn |
| Judgment Date | 21 May 2021 |
| Neutral Citation | [2021] EWHC 1366 (Admin) |
| Docket Number | Case No: CO/87/2020 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 May 2021 |
[2021] EWHC 1366 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Civil Justice Centre
Priory Courts, 33 Bull Street, Birmingham, B4 6DS
THE HONOURABLE Mrs Justice Steyn DBE
Case No: CO/87/2020
Andrew Faux (instructed by The Reflective Practice) for the Appellant
Simon P G Murray (instructed by The Government Legal Department) for the Respondent
Hearing dates: 6 May 2021
Approved Judgment
Introduction
This is a statutory appeal brought by a teacher, Mr Ullmer, against the decision of the Secretary of State for Education, made on the recommendation of the Professional Conduct Panel (“the Panel”) of the Teaching Regulation Agency (“the TRA”), to prohibit him from teaching without a period of review (“the Prohibition Order”).
On 9 January 2020, the appellant filed a statutory appeal pursuant to regulation 17 of the Teachers' Disciplinary (England) Regulations 2012 (“the 2012 Regulations”), raising seven grounds of appeal in support of his application to overturn the Prohibition Order.
On 27 August 2020, the appellant filed an application to amend his Grounds of Appeal to add a new Ground 1A, and for this new ground to be determined as a preliminary issue. Ground 1A reads:
“The Respondent's destruction of the audio recording of the hearing is a serious procedural or other irregularity in the proceedings before the Professional Conduct Panel such that the High Court should allow the appeal.”
Accordingly, this appeal was listed for a “rolled up” hearing of the appellant's application for permission to amend and for the court to rule on the new ground, if permission is granted, as a preliminary issue. I indicated at the end of the hearing that I would grant permission to amend, but dismiss the appeal on ground 1A, with reasons to follow. Accordingly, the appellant's appeal on his original seven grounds has been listed to be heard on 15 July 2021.
The proceedings below
The Panel convened from 18 to 22 November 2019 to consider the allegations made against the appellant, as particularised in the Notice of Proceedings dated 23 September 2019. The Panel received documentary evidence, including witness statements. During the five day hearing, the Panel also heard oral evidence from:
i) Pupil A and Child X (who was Pupil A's girlfriend during part of the material time), called by the presenting officer; and from
ii) the appellant, the appellant's wife, three former pupils of the School, a former colleague from a different school, and a contractor who had attended the School on occasions for work purposes, called by the appellant's representative.
The Panel found that allegations 1(a), 1d(iv), 1(f), 1(h), 1(j) and 1(k) were not proven. The remaining allegations, all of which the Panel found proven, were that the appellant:
“was guilty of unacceptable professional conduct and/or conduct that may bring the profession into disrepute in that whilst employed as a teacher at Cecil Jones High School (“the School”) between 1989 and 2002:
1. You failed to maintain appropriate professional boundaries and/or developed an inappropriate relationship with Pupil A between and/or around 1989 and 1995 whilst Pupil A was a pupil at the school, including by:
a. …
b. giving lifts to Pupil A and/or permitting Pupil A to drive your car;
c. making inappropriate comments to Pupil A, such as by:
i. telling Pupil A that once he turned 16 you would become better friends and/or would spend more time outside of school;
ii. telling Pupil A to keep visits to your home accommodation quiet and/or not to tell other teachers;
iii. suggesting that by sharing information of a sexual nature that you didn't share with others, it would build a deeper friendship;
iv. accusing Pupil A of being a bad friend as he was not prioritising you;
v. questioning Pupil A about his personal relationships and/or sexual experiences;
vi. telling Pupil A about your own personal relationships and/or sexual experiences;
d. spending time with Pupil A outside of the School's premises, including by:
i. allowing Pupil A to go to your home accommodation and/or to stay overnight;
ii. taking and/or going with Pupil A to restaurants/pubs and/or the cinema;
iii. going to Kent with Pupil A and/or staying overnight in Kent with Pupil A;
iv. …
e. providing Pupil A with food and/or alcoholic drinks;
f. …
g. staying in the same bed with Pupil A;
h. …
i. play fighting with Pupil A;
j. …
k. …
l. discussing masturbation with Pupil A;
m. engaging in sexual activity in the presence of Pupil A;
n. engaging in sexual activity with Pupil A”.
2. Your conduct as may be found proven at 1 above was sexually motivated.”
The Panel “ was satisfied that the conduct of the teacher amounted to misconduct of a serious nature which fell significantly short of the standards expected of the profession. Accordingly, the panel was satisfied that the teacher was guilty of unacceptable professional conduct”. The Panel also found that the appellant's conduct “ may bring the profession into disrepute”.
The Panel recommended the imposition of a prohibition order without provision for a review period. The Panel's recommendation was considered by Alan Meyrick, the Chief Executive and Accounting Officer of the TRA, acting on behalf of the Secretary of State. Mr Meyrick's decision, for which he gave written reasons, accorded with the Panel's recommendation.
Recording of the Panel hearing
The amendment to add Ground 1A has arisen because the audio recording of the substantive hearing before the Panel has been lost. Sarah Buxcey has given evidence on behalf of the TRA explaining how the loss occurred and the steps taken by the TRA to attempt to retrieve the audio recording taken at the substantive hearing. Ms Buxcey states:
“In accordance with usual practices, throughout the substantive hearing, a dedicated recorder was present in the room, and operated by the independent Legal Advisor to the panel, to record the proceedings. The recording data was stored (successfully) on a removable SD card within this machine.
Following the hearing, the TRA followed its standard process in that the SD card was removed from the recording device and placed into a standard issue Department for Education (“DfE”) laptop. The relevant official uploaded the data files from the SD card to the case file. It appeared that the upload had completed successfully. The official then proceeded, as is usual practice, to delete the recording from the SD card.
It would not have been the usual process to review a recording held within a case file unless there was a specific need. It was only when this appeal was received that the TRA checked the recording in the case file and found that it had not in fact uploaded.”
The respondent took steps to attempt to retrieve the missing audio files, first, with the assistance of the Department for Education's IT department examining all data stored on the Department's servers/Sharepoint, including the first and second stage recycle bins and, secondly, by commissioning a specialist data recovery company to retrieve the data held on SD cards in the TRA's offices. Unfortunately, the recording of the appellant's substantive hearing before the Panel was not part of the data recovered.
However, the note of the hearing taken by the Presenting Officer instructed by the TRA has been disclosed. This is a 99-page typed note of the submissions and evidence. The note of Pupil A's oral evidence runs to 21 pages. In addition, the Legal Advisor's draft legal directions to the Panel have been disclosed. These directions are in the form of six pieces of “Template Advice”.
The legal framework
The Secretary of State has responsibility for regulating teachers' conduct and holding a list of teachers who have been prohibited from teaching. Section 8 of the Education Act 2011 amended the Education Act 2002 (“the 2002 Act”) to include sections 141B and 141C, along with Schedule 11A. Section 141B provides:
“(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…
(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. …”
In Lonnie v National College for Teaching and Leadership [2014] EWHC 4351 (Admin), William Davis J observed:
“9. The Education Act of 2011 in part 3 abolished a body known as the General Teaching Council for England. That body hitherto had been the regulatory body of the teaching profession; there had been no final decision-making vested in the Secretary of State. The evidence in this case suggests that there had been some public disquiet as to the operation of that council. In any event, the regime introduced by the 2011 Act required the Secretary of State to investigate any case where an allegation was referred to her that a person to whom the section applied, namely a teacher, might have been guilty of unacceptable professional conduct or conduct that might bring the teaching profession into disrepute. The statutory framework in the Education Act 2011 does not identify in terms how it is that the Secretary of State is to investigate the case, but in section 141B(2), this is stated:
“Where the Secretary of State finds on an investigation of a case under (1) that there is a case to answer, the Secretary of State must decide whether to make a prohibition order in respect of the...
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