R v Secretary of State for Education and Employment and Another ex parte McNally
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KENNEDY,LORD JUSTICE DYSON,THE MASTER OF THE ROLLS |
| Judgment Date | 12 March 2001 |
| Neutral Citation | [2001] EWCA Civ 332 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 March 2001 |
| Docket Number | Case No: C/2000/2817 |
[2001] EWCA Civ 332
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR JUSTICE LANGLEY
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master of the Rolls
Lord Justice Kennedy and
Lord Justice Dyson
Case No: C/2000/2817
Nicholas Blake QC & Miss Amanda Weston (instructed by Thompsons, Acresfield, 8, Exchange Street, Manchester for the appellant)
Ms Eleanor Grey for the Secretary of State for Education
Mr Timothy Straker QC for the Metropolitan Borough of Bury
This is an appeal from a decision of Langley J who, on 27th July 2000 dismissed the appellant's application for judicial review of a decision of the Secretary of State dated 1st March 1999, and refused permission to appeal. Permission to appeal was granted by this court on 13th February, and we then continued to hear the appeal.
Background
The factual background is important, and I am conscious that we have not had access to all of the material which was before the Secretary of State when he made the decision under challenge, but at the hearing before us all parties were represented by experienced solicitors and counsel, and I have no reason to think that we have not seen anything which we needed to see in order to decide this appeal. After the hearing Ms. Grey, for the respondent, supplied us with copies of some letters to which she had referred and I take those letters into account.
The appellant is a teacher who from 1979 to 1995 taught at Woodhey School, Ramsbottom, Bury. In March 1995 it was alleged that he had touched inappropriately a fifteen year boy at that school. He was suspended, the police were informed and decided to take no action, and on 19th June 1996, after a report had been obtained by the Area Child Protection Committee (ACPC) from Mr Rush, an officer of the NSPCC, a special meeting of the governors resolved to establish, in accordance with the Education (School Government) Regulations 1989 S.I. 1503 Part III paragraph 26(5), a panel of three governors to hear the case against the appellant. The members of the panel were identified, as were the members of an appeal panel, should such a body be required. The Metropolitan Borough of Bury was the local education authority, and it was represented at the meeting on 19th June 1996 by Mr Nelson. .
The Hearing June 1996.
The hearing before the Disciplinary Panel took place on 25th and 28th June 1996. The members of the panel consisted of Councillor Longworth (a solicitor practising in criminal and family law, a former teacher and a parent of four children), Mr Baby (commercial director of a management consultancy and a former employee relations manager for the Co-operative Bank: a governor for 9 years, and a parent of two children in the school) and Mr Richardson (a company director employing over 30 staff who previously worked for the Inland Revenue, a school governor for two years and a parent of two children currently at the school). There is an issue as to whether Mr Richardson's children had been taught by the appellant. Mr Richardson it seems thought that they had been, but subsequent enquiries, including the appellant's letter of 1st October 1998, have suggested otherwise. However, on any view, the governors had selected an impressive and highly qualified panel.
The case against the appellant was presented, on behalf of the local education authority, by an in-house solicitor who relied on a statement from Mr Rush, together with his oral evidence, and upon evidence from Helen Humphries (a child protection officer from Bury Social Services Department) and evidence from Mr Nelson. No child complainant was called to give evidence, and the panel was not given access to any video recording there may have been of any interview with any complainant. Furthermore, it seems that initially the complainants were not identified, although their identities do seem to have emerged, at least to some extent, during the course of the hearing.
The appellant, who was represented by his trade union official, gave evidence and called as witnesses a former pupil, allegedly a complainant, and other members of the teaching staff. The head teacher, Mr Bennett, did not give evidence on either side.
It is common ground that after closing submissions had been completed Councillor Longworth , who chaired the panel, asked everyone to leave so that the panel could consider the evidence and make its decision. There is an issue as to whether Mr Talbot, the acting Chief Education Officer of the local authority expressed any desire to remain, and that is an important underlying issue in this case.
After considering the evidence the panel concluded that there had been no misconduct by the appellant. He was so advised, and the Chairman of the Governors recommended that his suspension be lifted.
Invocation of Secretary of State
The Local Education Authority was not satisfied with the decision of the Disciplinary Panel, and on 27th August 1996 Mr Talbot wrote to the Secretary of State seeking intervention by the Secretary of State under section 68 and/or 99 of the Education Act 1944. Those sections enabled the Secretary of State to intervene to prevent an unreasonable exercise of its functions by a governing body (section 68) or where a governing body was in default (section 99), and the material part of Mr Talbot's letter reads -
"All the details are contained in the report which accompanies this letter.
In summary the LEA believes that the decision made by the Disciplinary Sub-Committee of the Governing Body was an unreasonable one, given the evidence placed before them.
In addition, the requirement by the Disciplinary Sub-Committee for the Chief Education Officer's representative to leave while the evidence was considered by them was, in law, a failure to discharge a duty, and prevented them from receiving appropriate advice."
Presumably the report there referred to was the NSPCC report, which we have not seen. Some correspondence ensued of which we have only a letter dated 25th June 1997 from Mr Graham, for the Bury Solicitor and Secretary, to the Secretary of State in which he says -
"Firstly I can confirm that Mr Talbot did not request that he be present once he had been asked to leave. Secondly, the headteacher did not attend to advise the sub-committee as he was also a witness in the hearing and there was clearly a conflict of interest."
As will become apparent, the council has offered different answers at different times in relation to the first point, and as to the second point, contrary to what is said in the letter, so far as I can ascertain the headteacher was not a witness at the hearing.
On 9th July 1997 the Disciplinary Panel re-convened. Mr Talbot had been invited to attend but decided not to do so, and belatedly advised that the meeting should not take place. The members of the panel then set out in minutes which we have seen their joint recollection of the hearing in June 1996 and copies of those minutes were supplied to the Secretary of State.
On 11th July 1997 the Secretary of State wrote to Mr Talbot seeking confirmation that he wished to exercise his entitlement to attend the sub-committee's consideration of the evidence so that he could give advice " and that the sub-committee did not allow you to do so". As to irrationality the letter said
"The difficulty that we have is that we have only seen the written evidence. The governing body heard Mr McNally give evidence and be cross-examined. The Chairman of the sub-committee has given a very cogent explanation of the sub-committee's decision. In the circumstances it is difficult for the Secretary of State to say that in deciding that there was no misconduct the governing body reached a decision which no reasonable governing body could have made."
Mr Talbot responded in a letter dated the 23rd July 1997 in which he said -
"When the panel announced their wish to consider the matter totally alone I queried this as being correct and was told in no uncertain terms that they did not want me to be present. I left the room at that point."
The contrast between that passage and what had been said by Mr Graham in his letter of 25th June 1997 is obvious.
On 25th July 1997 Mr Graham wrote to the Secretary of State setting out the LEA's comments on the Disciplinary Panel's minutes. Mostly the letter is simply an argument in favour of accepting the case against the appellant but it does provide helpful confirmation that the case against him was as I have indicated above, and when dealing with hearsay the writer says -
"There is no rule against hearsay in disciplinary hearings. The standard of proof is so low "reasonable suspicion amounting to a belief in the guilt of the employee" ( BHS v Burchill [1978]) that in disciplinary hearings one can expect to encounter a great deal of it. Indeed in most organisations the evidence to be heard in disciplinary hearings will consist of little more than a report by a supervisor supported by statements by any other employees who have been asked to give accounts of the alleged misconduct. The Board were advised of the standard of proof. The Board appeared to have dismissed the hearsay out of hand on this basis alone. They have misdirected themselves: it is their responsibility to describe the weight they attached to hearsay evidence and the reasons for so judging. The Board have failed to properly consider the evidence presented to them."
That paragraph is written in response to the simple observation in the minutes that "there was a substantial amount of hearsay",...
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