Mohammad Sarwar Lone v Secretary of State for Education
| Jurisdiction | England & Wales |
| Judge | Mr Justice William Davis |
| Judgment Date | 07 March 2019 |
| Neutral Citation | [2019] EWHC 531 (Admin) |
| Docket Number | Case No: CO/4997/2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 March 2019 |
[2019] EWHC 531 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice William Davis
Case No: CO/4997/2018
Marc Beaumont (instructed by Direct Access) for the Appellant
Iain Steele (instructed by Government Legal Department) for the Respondent
Hearing dates: 26 February 2019
Approved Judgment
Introduction
Mohammed Lone is a teacher. He qualified in 2004. He spent the first 11 years of his teaching career at a school in Huddersfield teaching RE. In 2015 he moved to Grange Technology College in Bradford where he was employed as Assistant Head of Humanities. By then he was aged 36. Shortly after he took up his post a 24 year old woman, known for the purposes of these proceedings as A, arrived at the College to teach Health and Social Care. It was her first post qualification post. Between March and May 2016 Mohammed Lone sent many texts and e-mails to A – at least a hundred different communications – which she said were unwanted. There were other incidents involving the two of them over the same period.
On 25 May 2016 A complained about Mr Lone's behaviour to the then head teacher. A formal investigation was put in train which led to a disciplinary hearing on 13 September 2016. The conclusion of that hearing was that Mr Lone was found to have made persistent and unwanted contact with A and that this amounted to gross misconduct. Notwithstanding his good record hitherto Mr Lone was dismissed for gross misconduct.
I was told that Mr Lone took proceedings in the Employment Tribunal in respect of his dismissal and that those proceedings were compromised in due course with the payment of £5,000 to Mr Lone by the Trust which operated Grange Technology College. In any event he took up other employment as a teacher. He continued to teach until the end of October 2018. At that point a professional conduct panel (“the panel”) of the Teaching Regulation Agency (“TRA”) conducted a hearing to consider the events of 2016 and whether they required consideration by the Secretary of State for Education of a prohibition order preventing Mr Lone from pursuing his career as a teacher. The panel recommended such prohibition.
The Secretary of State followed the recommendation. By a decision dated 6 November 2018 which was notified to Mr Lone on 19 November 2018 he made a Prohibition Order which meant that Mr Lone was not able to teach in any school, sixth form college or similar institution. Mr Lone now appeals against that decision.
Legal framework and its operation
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 regime introduced by the 2011 Act gives the Secretary of State a power to investigate any case where an allegation is referred to him that a person to whom the section applies, 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. Section 141B(2) simply states:
Where the Secretary of State finds on an investigation of a case….that there is a case to answer, the Secretary of State must decide whether to make a prohibition order in respect of the person.
Thus, it is for the Secretary of State 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 Secretary of State's decision.
The regulatory framework imposed by reference to the Education Act of 2011 is contained in the Teachers' Disciplinary (England) Regulations of 2012. Those regulations set out at Regulation 5 the process by which the Secretary of State is to investigate allegations of misconduct. First, the Secretary of State has to inform the relevant teacher of the allegation made, giving the teacher the opportunity to respond to the allegations. Having considered the representations of the teacher, the Secretary of State either then can simply discontinue the process or decide that the case should be considered by a professional conduct panel. A professional conduct panel is established by the regulations as being a body including at least three people, one of whom must be somebody who has been a teacher in the past five years. The proceedings of the panel require the panel to determine all cases following a hearing, though they can determine the case without a hearing if the teacher concerned makes such a request. The professional conduct panel potentially can find a case not proved in which event, the Secretary of State will publish a statement to that effect. A decision of the panel that the case is not proved is final. Regulation 7(5) provides that, where the panel finds the teacher guilty:
The panel must make a recommendation to the Secretary of State as to whether a prohibition order should be made.
Regulation 8(1) requires as follows:
The Secretary of State must consider any recommendation made by a professional conduct panel before deciding whether to make a prohibition order.
It follows that the factual enquiry is conducted by the panel which reaches findings of fact. Sanction is a decision reserved to the Secretary of State as an exercise of his ministerial function.
Operation of this statutory scheme is conducted by an agency within the Department for Education. Initially the agency was the Teaching Agency. Between April 2013 and March 2018 the agency was known as the National College for Teaching and Leadership. Since 1 April 2018 that role has been taken on by the Teaching Regulation Agency (“TRA”). As already noted the TRA was the agency in place when the Secretary of State made a decision on prohibition in Mr Lone's case. Whatever the title each agency was in reality the same thing, a department or section of the Department for Education. Those who worked in the agency were civil servants employed by the Department.
The TRA employs caseworkers. When a case is referred to the TRA a caseworker will consider the allegations made. He or she will decide whether, if proved, they might amount to unacceptable professional conduct or conduct that might bring the teaching profession into disrepute. If that threshold is met, the TRA will investigate the allegations. There will be cases where the TRA caseworker will carry out the investigation but this will only be where no significant investigation is required e.g. if the relevant conduct is established by a relevant criminal conviction. Generally, the investigation i.e. the collection of evidence will be contracted out to an independent law firm. That is what happened in Mr Lone's case.
Once the investigation process is complete a TRA caseworker will assess the material provided and decide whether a hearing is required. In over three-quarters of all cases referred no hearing takes place. This mirrors the pattern commonplace in relation to complaints of misconduct against professionals of one kind or another in whatever sphere, namely that most complaints are found to be inadmissible or unsubstantiated. Where a hearing is required an independent panel will be appointed from the list of approved panel members. The appointment process for panel members ensures their independence. A panel will consist of three members, one of whom has to be a teacher and another of whom must be a lay representative. The TRA will appoint an external lawyer to act as legal adviser to the panel. Another external lawyer will act as presenting officer. That lawyer's task is to present the evidence gathered in the course of the investigation, to cross-examine any witness called by the teacher and to make submissions on the issues of conduct.
The panel then reaches a decision on the facts and provides its written reasons together with its recommendation as to sanction. It is on the basis of that document alone that the Secretary of State makes his decision on sanction. In no case will the Secretary of State see any of the evidence or other core material considered by the panel. The Secretary of State himself does not make the decision. A duly authorised civil servant takes the decision. In law that will be the decision of the Secretary of State: Carltona v Commissioners of Works [1943] 2 All ER 560. The relevant civil servant will be someone with no previous dealings with the case whether in relation to the investigation or the panel hearing. It is clear from previous decisions of this court dating from the time at which the National College for Teaching and Leadership operated the scheme under the 2011 Act that the authorised civil servant in each case was a senior official of that agency. In Mr Lone's case the authorised civil servant was a Mr Meyrick who was and is the Chief Executive of the TRA. Prior to that he was a deputy director in the Department for Education and line managed by the Chief Executive of the National College for Teaching and Leadership. He is well used to taking decisions in relation to sanction following a hearing by the panel.
The appellate jurisdiction I am exercising is not properly identified in the Education Act or the regulatory scheme set out thereunder. The jurisdiction that I must exercise is that provided by the CPR, part 52.21(3):
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.
The nature of the...
To continue reading
Request your trial
-
British Broadcasting Corporation v Chair of the Scottish Child Abuse Inquiry
...2 WLR 870; [2000] 1 All ER 65; [2000] IRLR 96; [2000] HRLR 290; [2000] UKHRR 300; 7 BHRC 583 Lone v Secretary of State for Education [2019] EWHC 531; [2019] IRLR 523; [2019] ELR 222 MH v Mental Health Tribunal for Scotland [2019] CSIH 14; 2019 SC 432; 2019 SLT 411; 2020 SCLR 240 MacMillan v......
-
Jonathan Ullmer v Secretary of State for Education
...the court should conduct a rehearing, is without merit and has been rejected in Wallace and Lone v Secretary of State for Education [2019] EWHC 531 (Admin). In these cases, the courts held that the senior TRA official who takes the final decision on behalf of the Secretary of State whether......
-
Petition Of The British Broadcasting Corporation Against The Scottish Child Abuse Inquiry
...the point. The power which had been exercised had not been judicial but administrative (Lone v Secretary of State for Education [2019] EWHC 531 (Admin)). The respondent could not have been acting in her own cause when th e Tribunal proceedings h ad been terminated. Decision Academic [35] Th......
-
Ryan Beckwith v Solicitors Regulation Authority
...approach required in a different scheme. 20 The next case the Appellant relies on, Mohammed Lone v Secretary of State for Education [2019] EWHC 531 (Admin) is to be explained in exactly the same way. That case concerned the exercise by the Secretary of State for Education of his power unde......