Joshua James Sutcliffe v Secretary of State for Education

Hearing date: 1 May 2024

Further submissions: 3 May 2024

Approved Judgment

This judgment was handed down remotely on 25 July 2024 by circulation to the parties and by release to the National Archives.

This appeal by a teacher against the Secretary of State's decision to make an order prohibiting him from teaching raises issues as to the conflict between the teacher's Christian faith and his professional duties to the children in his class. The laws that protect a person's freedom of thought, conscience, religion and expression apply to teachers just as much as anyone else. A teacher's right to believe that no one can self-identify as a different gender and that homosexuality is a sin against God is protected by law, but does not entitle the teacher to fail to treat transgender, gay and lesbian pupils with anything short of the dignity and respect with which all schoolchildren must be treated or justify a failure to safeguard the best interests and wellbeing of such children.

This case is not about a teacher who accidentally failed to follow a school's policy of referring to a transgender pupil by the child's chosen pronouns or even about a teacher who reconciled his religious convictions with such policy by choosing to avoid pronouns altogether and referring to the child by name. Rather, it is about a teacher who deliberately used female pronouns to refer to a transgender male pupil both in the classroom and then on national television in such a way that he would be “outed” without any apparent regard for a vulnerable child who was thereby caused significant distress. Further, it is about a teacher who told his class that homosexuality is a sin and implied that homosexuals might be cured through God without any apparent regard for the gay and lesbian children in his class and who made them feel that their teacher regarded them as worthless.

Joshua Sutcliffe is a maths teacher and an evangelical Christian who preaches both on the streets and online. He has strong and sincerely held views rooted in his faith about gender identity, homosexuality, the sanctity of marriage between a man and a woman, the role of men and women in society, and Islam:

3.1 He believes that biological sex is immutable and that people cannot self-identify as a different gender. He believes that God makes us male or female, and that what God ordains cannot be changed. He argues that it is wrong to require him or any other person to refer to a transgender person by their preferred pronouns. He regards that as a matter of conscience.

3.2 He believes that homosexuality is a sin that is contrary to God's design and to nature.

3.3 He argues that marriage is a lifelong commitment between a man and a woman.

3.4 He considers that the man is the head of the household who provides for his wife and children.

3.5 He believes that Islam is evil and that Mohammed is a false prophet.

Many (including on the evidence of the theologian, Dr Martin Parsons, many other evangelical Christians) will agree with him on at least some of these points. Many others will vehemently disagree, and some of those who disagree will take deep offence. Nevertheless, Mr Sutcliffe's freedom of thought, conscience and religion is protected by Article 9 of the European Convention on Human Rights. Furthermore, his right to express his opinions is protected by Article 10. As Sedley LJ rightly observed in Redmond-Bate v. DPP(1999) 7 BHRC 375, at [20]:

“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative … Freedom only to speak inoffensively is not worth having.”

This case arises from the conflict between Mr Sutcliffe's deep convictions and his professional duties as a teacher. Such conflict led to complaints about Mr Sutcliffe's conduct as a teacher at The Cherwell School in Oxfordshire and ultimately to his dismissal in February 2018. It led to further complaints and to his resignation from his subsequent employment at St Aloysius College in Islington in November 2019.

Following a six-day hearing into his conduct at the two schools, a professional conduct panel of the Teaching Regulation Agency found that Mr Sutcliffe was guilty of unacceptable professional conduct and of conduct that might bring the teaching profession into disrepute. The panel recommended that the Secretary of State should impose a prohibition order, being an order prohibiting Mr Sutcliffe from carrying out “teaching work” as defined by reg.3 of the Teachers' Disciplinary (England) Regulations 2012 and provide that such order could be reviewed after a minimum period of two years. By a decision made on 10 May 2023, the Secretary of State accepted the panel's recommendations. Her decision and the making of the prohibition order were confirmed by a letter from the Teaching Regulation Agency dated 11 May 2023.

Mr Sutcliffe now appeals against the making of the prohibition order and seeks an extension of time for bringing his appeal.

THE APPLICATION FOR AN EXTENSION OF TIME

Mr Sutcliffe's solicitor, Robert Smith, filed his appeal at the King's Bench Division using the court's e-filing service at 3.03pm on 8 June 2023. It is common ground between the parties that that was the last day for filing Mr Sutcliffe's appeal. The following morning, Mr Smith received a notification that the appeal had been rejected because, it was asserted, statutory appeals are required to be made to the Administrative Court. On 9 June, Mr Smith refiled the appeal at the Administrative Court and applied for an extension of time.

Regulation 17 of the 2012 Regulations provides that a teacher may bring an appeal within 28 days of the date on which notice of the prohibition order is served. While such time limit is apparently absolute, s.3 of the Human Rights Act 1998 requires that reg.17 must be read down so as to confer a discretion or duty to extend time in exceptional circumstances where the strict application of the 28-day limit would “impair the very essence of the statutory right of appeal”: Adesina v. Nursing & Midwifery Council[2013] EWCA Civ 818, [2013] 1 W.L.R. 2156; Pomiechowski v. District Court of Legnica [2012] UKSC 20, [2020] 1 W.L.R. 1604; Stuewe v. Health & Care Professions Council [2022] EWCA Civ 1605, [2023] 4 W.L.R. 7.

Michael Phillips, who appears for Mr Sutcliffe, argues that his solicitor was misled by the decision letter, by the Secretary of State's online guidance note “Teacher misconduct: regulating the teaching profession”, and by her rather fuller guide “Teacher misconduct: Disciplinary procedures for the teaching profession”, each of which advise that appeals are made by application to the King's Bench Division of the High Court. Further, Mr Phillips relies on the delay being just one day and submits that, once informed that he had issued the appeal in the wrong court, Mr Smith took immediate action to regularise matters.

Iain Steele, who appears for the Secretary of State, points to the exceptional and narrow nature of the discretion to extend time. He argues that the attempt made to file in the wrong court does not amount to an exceptional circumstance such that application of the time limit would impair the very essence of the right of appeal. Further, he points to the Secretary of State's covering letter dated 11 May 2023 which advised that any appeal should be made to the Administrative Court.

Such arguments are premised on the parties' joint assumption that the appeal was rightly rejected by the King's Bench Division. I questioned the correctness of that assumption and invited further submissions on the issue. Having considered those submissions, I conclude that this appeal was wrongly rejected:

12.1 Paragraph 2.1 of the Practice Direction 52D to the Civil Procedure Rules 1998 provides that the court to which a statutory appeal lies is prescribed by statute. Beyond that, Part 52 provides no specific guidance as to the destination of statutory appeals by teachers.

12.2 Here, the relevant statute is the Education Act 2002. Paragraph 5 of Schedule 11A to the Act states that regulations must provide for a right of appeal “to the High Court.” That is done by reg.17 of the 2012 Regulations that provides that an appeal lies “to the High Court”. Neither the Act nor the Regulations requires the appeal to be made to any particular division, to any particular specialist court, or in any particular specialist list of the High Court.

12.3 The combined research of both counsel and the court has not been able to find any statutory provision, rule or Practice Direction requiring this appeal to have been filed in the Administrative Court. I am reassured to note the similar position in the unreported 2023 case of Watt & Kelly v. Secretary of State for Education.

12.4 In my judgment, the highest it can be put is that there is a longstanding custom and practice of appeals against prohibition orders being issued and litigated in this court. Absent some provision mandating issue in the Administrative Court, such custom and practice does not, however, mean that this appeal was wrongly filed in the King's Bench Division. Further, even where the court office concludes that there has been an error of procedure, such error does not invalidate the step taken (here issue in what was thought to be the wrong court) unless the court so orders: r.3.10....