R Kingston v Secretary of State for Education
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dove |
| Judgment Date | 27 January 2017 |
| Neutral Citation | [2017] EWHC 421 (Admin) |
| Docket Number | CO/3534/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 January 2017 |
[2017] EWHC 421 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Dove
CO/3534/2016
Mr Stuart Brady (instructed by NUT Solicitors) appeared on behalf of the Claimant
Mr Rory Dunlop (instructed by the Government Legal Department) appeared on behalf of the Defendant
Hearing date: 18 January 2017
Following a hearing over 3 and 4 May 2016 by a panel, on behalf of the respondent, into allegations from the National College for Teaching and Leadership (the "NCTL") set out in a notice of proceedings dated 19 November 2015, the panel found an allegation against the appellant proved in the following terms:
"You are guilty of unacceptable professional conduct and/or conduct that may bring the profession into disrepute in that you:
2. Searched for on the internet and/or viewed images of sexual activity between a person and an animal on one or more occasion.
Mr Kingston admits having viewed images depicting bestiality but denied having searched for such images.
At page 24, it is noted that Mr Kingston 'searched and viewed bestiality images'. In his oral evidence, Mr Kingston explained that during questioning the police did not draw a distinction between searching and viewing such images. At page 42, Mr Kingston explained that it was his 'sexual partner' at the time who searched for such material and not him, stating that, 'I did not actively access these images, but simply tolerated them upon being shown to me.' Evidence from Mr Kingston's third statement (page 66) was contrary to this and said, 'We [he and his sexual partner at the time] would search for pornography involving bestiality'. Mr Kingston explained in his oral evidence that the use of the term 'we' was an oversight on his part. The panel also noted that Mr Kingston himself stated that he 'simply went along with it' (page 66).
The panel was minded to determine that Mr Kingston had been a passive participant in the search for images involving bestiality. Having considered all the evidence, and on the balance of probabilities, the panel believed that the allegation involving the searching and viewing of images of bestiality was more likely than not to have occurred. This allegation was therefore proven."
The panel went on to consider whether the conduct they had found proved was sexually motivated. They concluded:
"Turning to allegation 2, the panel considered the two stage test for sexual motivation — firstly, whether a reasonable person would think that words and/or actions could be sexual and secondly, whether the purpose of such words and/or actions was sexual in all the circumstances of the case.
Following a detailed discussion regarding the test to be applied for a finding of sexual motivation and upon consideration of the evidence, the panel decided it was satisfied that Mr Kingston's actions could be viewed by a reasonable person as sexually motivated. In reaching its decision, the panel noted the very nature of the images would suffice to satisfy this element of the test. Turning to the second limb, whether in all the circumstances of the conduct in this case, the purpose of such actions was sexual on Mr Kingston's part. Such activities were undertaken in conjunction with another person, for that person's sexual gratification, and not for Mr Kingston's own sexual gratification. The panel was not satisfied that Mr Kingston's actions could be viewed as sexually motivated. Therefore, [the] panel have found this allegation not proven."
They then addressed the question of whether the applicant's conduct amounted to unacceptable professional conduct and/or conduct that may bring the profession into disrepute. They reasoned their conclusions in the following terms:
"Having found one of the allegations proven, the panel has gone on to consider whether the facts of the proven allegation amounts to unacceptable professional conduct and/or conduct that may bring the profession into disrepute.
In considering the allegation that the panel has found proven, the panel has had regards to the Teacher Misconduct — The Prohibition of Teachers advice, which we refer to as the 'Advice'.
The panel noted that unacceptable professional conduct is defined in the Advice as misconduct of a serious nature, falling short of the standard of behaviour expected of a teacher. The panel was satisfied that Mr Kingston's conduct was of a serious nature, falling short of the standard to be expected. However, it noted that misconduct outside of the education setting will only amount to unacceptable professional conduct if it affects the way the person fulfils their teaching role or if it may lead to pupils being exposed to or influenced by the behaviour in a harmful way. The panel noted that the facts surrounding allegation 2 did not impact the manner in which Mr Kingston fulfilled his role as a teacher, as demonstrated by the evidence of Witness A. Furthermore, as the underlying facts took place outside the school, and there was no question that they had any impact on his behaviour as a teacher in school, therefore, the panel did not consider that it would lead to pupils being exposed to or influenced by the behaviour in a harmful way.
Accordingly, the panel is not satisfied that Mr Kingston is guilty of unacceptable professional conduct.
Turning to whether the conduct may bring the profession into disrepute, the panel has taken into account how the teaching profession is viewed by others and considered the influence that teachers may have on pupils, parents and others in the community. The panel has taken account of the uniquely influential role that teachers can hold in pupils' lives and that pupils must be able to view teachers as role models in the way they behave.
The underlying facts of the proven allegation are serious and the conduct displayed would have a negative impact on the individual's status as a teacher, potentially damaging the public perception. The panel therefore finds that Mr Kingston's actions constitute conduct that may bring the profession into disrepute.
The panel has also considered whether Mr Kingston's conduct displayed behaviours associated with any of the offences listed on pages 8 and 9 of the Advice and the panel has found that none of these offences are relevant."
The offences referred to on pages 8 and 9 of the "Teacher misconduct: The prohibition of teachers — Advice on factors relating to decisions leading to the prohibition of teachers from the teaching profession" ("the Advice") are a list of serious imprisonable offences or types of offences.
After this decision was reached, the panel reconvened on 13 June 2016 to consider its recommendations on sanction. The hearing proceeded in the absence of the parties. This occurred for sensible reasons and no complaint is made about it. Both the NCTL presenting officer and the appellant, through Mr Brady, who appeared for him both in the context of the panel hearing and in the present appeal, made written representations about the appropriate disposal to be recommended for the case. The panel's conclusions and recommendations to the respondent were expressed in the following term:
"In the light of the panel's findings against Mr Kingston, which involved searching for and viewing images, there is a strong public interest consideration in declaring proper standards of conduct in the profession. The conduct found against Mr Kingston could be seen to be outside that which could reasonably be tolerated. Similarly, the panel considered that public confidence in the profession could be weakened if conduct such as that found against Mr Kingston were not considered seriously when regulating the conduct of the profession.
However, the panel noted this is not a case giving rise to the need to protect members of the public. Equally, the panel's finding against Mr Kingston were limited to a single allegation which involved Mr Kingston searching for and viewing certain images in the privacy of his own home or that of his companion at the time, and they found that he was a passive participant in the search. Given the narrow nature of this allegation, this is not a case where there is a strong public interest consideration in respect of the protection of pupils, particularly as there has been no evidence that this activity impacted on Mr Kingston's ability as a teacher or led to pupils being exposed to harmful behaviour.
The panel considered carefully whether or not it would be proportionate to impose a prohibition order taking into account the effect that this would have on Mr Kingston and the profession as a whole.
In carrying out the balancing exercise the panel has considered the public interest considerations in favour of, and against, prohibition as well as the interests of Mr Kingston. The panel took further account of the Advice, which suggests that a prohibition order may be appropriate if certain behaviours of a teacher have been proven. The panel considered the list of such behaviours, and did not find any to be relevant in this case. In doing so, it wished to note the following:
• Serious departure from the personal and professional conduct elements of the Teachers' Standards.
The panel found that Mr Kingston's conduct, whilst ill-advised, did not involve a serious departure from the personal and professional conduct elements of the Teachers' Standards, as the panel has already detailed above.
• A deep seated attitude that leads to harmful behaviour.
The panel considers that...
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