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QUEEN and HERTFORDSHIRE COUNTY COUNCIL Ex parte A [2000] EWHC Admin 416 (10th November, 2000)
Case No: CO/464/2000
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London,
WC2A 2LL
Friday 10th November 2000
B e f o r e :
THE HON MR JUSTICE MAURICE KAY
---------------------
THE QUEEN
and
HERTFORDSHIRE COUNTY COUNCIL
Ex parte A
- - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - -
Mr Patrick Ground Q.C. (instructed by Park Nelson for the Applicant)
Mr. Timothy Brennan (instructed by Andrew Laycock, County Secretary for
the Respondents)
- - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court
Crown Copyright ©
MR JUSTICE MAURICE KAY:
1. The Applicant was appointed head teacher at a School ("the School") in April
1995. The School serves the needs of secondary aged boys who have been
excluded from mainstream education because of their emotional and behavioural
problems. The responsible local education authority is Hertfordshire County
Council ("the Council"). On any fair appraisal of the material before me, it
is impossible to escape the conclusion that the Applicant is a talented,
hardworking and innovative educationalist in a difficult area. However, in
November 1999 a disciplinary panel of the Governors of the School recommended
his dismissal and a meeting of the Council's social workers concluded that
there was sufficient information to form a belief that there is reasonable
cause to believe that the Applicant poses a risk of significant harm to
children in his care. In this application for judicial review, the Applicant
seeks to challenge both the recommendation of the Governors and the conclusion
of the social workers.
2. There is no doubt that the circumstances which triggered the concerns of the
Governors and of Social Services began with an allegation by a former pupil, to
whom I shall refer as B, that the Applicant had indecently assaulted him on an
occasion in July 1998 (at which time B was aged 17 and no longer a pupil at the
school). The allegation was that the incident had occurred on the Applicant's
canal barge. In May 1999 the Applicant was acquitted by the unanimous verdict
of a jury at Wood Green Crown Court. Following his acquittal, Social Services,
in conjunction with police officers and other child protection professionals,
returned to their concern, which had begun in July 1998, that the police
investigation disclosed other occasions on which the Applicant had taken pupils
to his barge, sometimes without the presence of any other adult. Apart from B,
no one else had made an allegation of sexual impropriety. Between June and
November 1999 a number of meetings took place, attended by social workers,
police officers and other professionals, culminating in the conclusion in
November to which I have referred and which is challenged in these
proceedings.
3. The involvement of the School Governors goes back to August 1998 when,
uncontroversially, they suspended the Applicant following the receipt of
information about the police investigation. The suspension and, until his
acquittal, bail conditions gave rise to difficulties not least because the
Applicant and his wife had been living in accommodation in the grounds of the
School, which operates on a weekly boarding basis for the pupils. Following
the acquittal, on 26 May 1999 the Governors maintained the suspension and asked
Dr. Martin English, the area personnel manager for the local education
authority, to carry out an investigation into a number of complaints. They
included B's allegation of indecent assault (which B was maintaining) but the
majority of the complaints related to taking pupils to the barge unaccompanied
by a second responsible adult. There was no other allegation of an indecent
act, notwithstanding a detailed investigation. In due course Dr. English
reported. As regards B's allegation, Dr. English, having considered a number
of matters which affected B's credibility, opined that "it would be difficult
not to conclude that there must be a high probability that B is lying".
However, in relation to other matters, he said:
"[The Applicant] has repeatedly placed himself in positions of risk (in the
case of the barge, despite specific instruction). The odd error of judgment
might be understandable. But this behaviour in a trained and experienced Head
is not comprehensible, even if the explanation were to be put forward that
these are simply repeated errors of judgment. Governors must ask themselves
whether these repeated patterns of behaviour are acceptable and compatible with
the professional role and conduct of a Headteacher."
By this time, the Chairman of the Governors was Mr. Phil Pennington. After he
had digested Dr. English's report, he set in motion the disciplinary
proceedings. In a letter dated 23 September 1999 he wrote to the Applicant
referring to eleven complaints and describing each of them as "an allegation of
gross misconduct, which could, if proved, result in your dismissal" The
complaints were as follows:
"Complaint 1
In or before July 1996 you failed to report incidents of sexual activity
involving B, H, L and C to the Social Services Team responsible for Child
Protection referrals and failed to report the incident to those with parental
responsibility for the boys involved.
Complaint 2
In or before January 1998 in contravention of the written School Journeys
Policy you took pupils onto your barge without appropriate planning and without
a second responsible adult to accompany you.
Complaint 3
In disregard of a clear written instruction from the Local Education Authority,
agreed by you in writing, you spent the night of 14 to 15 May 1998 on your
barge with a group of four pupils (R, C, K and E) but without a second
responsible adult to accompany you.
Complaint 4
In disregard of a clear written instruction from the Local Education Authority,
agreed by you in writing, you spent the night of 19 June 1998 on your barge
with two boys, E and L, but without a second responsible adult to accompany
you.
Complaint 5
In disregard of the School Journeys Policy you took a pupil, C, on two weekend
barge trips, without a second responsible adult to accompany you, on unknown
dates, but probably in May and July 1998.
Complaint 6
In disregard of a clear written instruction from the Local Education Authority,
agreed by you in writing, on 15 to 16 May 1998 you took pupils (C, T, S and J)
on barge trips without a second responsible adult to accompany you. Instead
you took a former pupil, DB (aged 17), who did not fall within the description
of acceptable responsible adults which you had agreed in writing.
Complaint 7
In disregard of a clear written instruction from the Local Education Authority,
agreed by you in writing, on 6 to 7 June 1998 you took pupils (C,E,C, T and R)
on a barge trip without a second responsible adult to accompany you. Instead
you took a former pupil, ML, who did not fall within the description of
acceptable responsible adults which you had agreed in writing.
Complaint 8
On various occasions from April 1998, in disregard of a clear written
instruction from the Local Education Authority, agreed by you in writing, you
took pupils (in particular, L and K) on such barge trips without written
permission having been obtained from their parents.
Complaint 9
In disregard of an express instruction from the Local Education Authority, you
failed to maintain and keep a complete and accurate written record of barge
trips taken by pupils noting the dates on which journeys occurred and the names
of pupils and accompanying adults.
Complaint 10
You took a former pupil B (aged 17) alone with you for an overnight stay on
your barge during the night of 10 to 11 July 1998, which was not compatible
with your professional role and status.
Complaint 11
Your level of involvement with a pupil, R, was not compatible with your
professional role and status in that
(a) you planned, paid for and shared a hotel bedroom overnight with R and RB on
an unknown date probably in November of December 1996
(b) you took R alone on a barge trip or trips from Friday to Sunday on unknown
dates in 1997 or 1998."
It is to be observed that a number of the complaints referred to written
instructions from the Local Education Authority which had been agreed by the
Applicant in writing. This agreement preceded the allegation by B. In January
1998 Dr. Mongon, the Head of Professional Development Advice and Support in the
Education Department, had discussed with the Applicant matters relating to his
having taken pupils to his barge. Dr. Mongon was concerned that there had been
occasions when the Applicant had been the only adult present and occasions in
respect of which the Applicant had not had written parental permission. Dr.
Mongon and the Applicant agreed that there should be no repetition of this and
on 28 January 1998 Dr. Mongon said in a letter that the applicant should
"regard this as an instruction". They agreed that some rules should be worked
out for the use of the barge and on 21 April 1998 the Applicant wrote to Mr.
Gibbs of the Education Department confirming his agreement to a protocol "for
the use of my barge....for school journeys:
1. Permission of parent (and social worker, where relevant) will be obtained in
writing for each journey
2. A second adult will accompany each trip. The selection of second adult
will vary, and include Chairman of Governors, Deputy Head and family members
who are/have been employed by (the Council) and are cleared by Child Protection
Procedures.
3. A record will be maintained at school noting the dates on which journeys
occur, with names of pupils and adults."
4. In due course I shall have to refer to a number of factual matters
concerning the disciplinary procedure. At this stage I simply refer to the
fact that a disciplinary hearing took place on 9 and 10 November 1999. The
outcome was announced at the end of the hearing and confirmed in a letter to
the Applicant dated 11 November 1999. Although the letter is a little opaque
in places, it seems that Complaints 1, 2, 5, and 10 were not found proved.
However, Complaints 3, 6, 7,8, 9 and 11 were found proved and to be cases of
misconduct whilst Complaint 4 was found proved and to amount to gross
misconduct. The disciplinary panel recommended that the Applicant be
dismissed. The finding of gross misconduct and the recommendation of
dismissal, at least, were by a majority of two to one.
5. The Applicant has set in motion an appeal from the disciplinary panel to an
appeal panel but that appeal has been put into suspense by reason of his
application for judicial review. It is important that I should emphasise that
the challenge to the disciplinary panel does not seek to establish that its
conclusions in relation to any of the complaints or its recommendation of
dismissal was an unreasonable (in the public law sense) decision. Mr. Ground
QC was at pains to point out that that is not his case. In these
circumstances, it is not necessary for me to go into detail about the
allegations underlying the complaints. However, since Complaint 4 was the only
one in which a finding of gross misconduct was made, I ought to say a little
more about it.
6. Originally the mother of one of the two boys had given her consent for her
son to spend the night on the barge with the mother herself as second adult.
However, on the day of the trip, the mother decided not to go to the barge but
to go to a party instead. She then arranged for her son to stay the night at
the home of the other boy. Later on, the Applicant went to the home of the
other boy and proceeded to take both boys to the barge for the night without
further reference to the mother. There was no second adult present on the
barge. In the course of the disciplinary hearing reference was made to the
Applicant having "unscrambled" the arrangements which had been made by the
mother. This word has generated much heat. However, it seems to me that the
reasons which caused the disciplinary panel to view complaint 4 as more serious
than any of the other complaints would have been present with or without the
use of the word "unscrambled".
7. Before I leave this brief outline of the facts which I shall have to augment
when dealing with some of the grounds of challenge, there is another part of
the history to which I must refer.
8. From his arrest until his acquittal at the Crown Court, the Applicant was on
bail. Initially, the bail conditions were unobjectionable as far as he was
concerned. They were subsequently made stricter to the extent that he was
unable to live at home in the grounds of the School even at weekends and other
times when there were no pupils on site and he was forbidden to enter
Hertfordshire. On one of the occasions when this variation was effected Mr.
David Gibbs of the Council's Education Department gave evidence to the
magistrates. It is the Applicant's case that Mr. Gibbs's evidence, referring
to the views of certain members of staff, was untrue. The Applicant and the
then Chairman of the Governors, Mrs. Hilary Rost, took and continue to take the
view that this was all part of a devious and malicious plan to pressurise the
Applicant into resigning. Mr. Gibbs maintains that his evidence was given in
good faith and was true. There was also a dispute among the Governors, some of
whom criticised Mrs. Rost for writing to the Court in favour of less stringent
conditions. In fact, she never did write to the Court to that effect although
it seems likely that on one occasion she had written something which the
Applicant's solicitors referred to in the course of the hearing about bail
conditions. There was a yet further dispute when Governors were critical of
Mrs. Rost for not having written a promised letter to the Court to set the
record straight. This saga eventually led to the Governors passing a motion
of no confidence in Mrs. Rost, whereupon she was succeeded as Chairman by Mr.
Pennington. I shall have to make further reference to this when I consider
certain issues later. I mention it at this stage and in this abbreviated form
because it loomed large in some of Mr. Ground's submissions. However, save to
the extent that I shall refer to it later, it is in my judgment an irrelevant
side-show. I am not satisfied that it is evidence of bad faith on the part of
Mr. Gibbs or any of the Governors who became critical of Mrs. Rost.
9. It is next necessary for me to mention two preliminary issues before turning
to the grounds of challenge.
Preliminary issue (1): exhaustion of remedies
10. It is apparent from what I have already said that neither in relation to
the Social Services investigation nor in relation to the disciplinary procedure
has the Applicant awaited internal finality before applying for judicial
review. The Director of Social Services has not yet decided what to do in the
light of the conclusion of the "beliefs" meeting and the disciplinary appeal
has not been heard. I mention this simply to record that, on behalf of the
Council, Mr. Brennan made it clear that he was taking no point about exhaustion
of remedies.
Preliminary issue (2): cross examination
11. At a hearing before Harrison J on 26 September he adjourned to the
substantive hearing before me an application by Mr. Ground that there be
cross-examination of the Council's witnesses. I did not accede to that
application at the inception of the hearing or when I reconsidered it later.
Cross-examination is exceptional in applications for judicial review, even
though conflicts of evidence are by no means unusual. In the present case some
of the conflicts are of opinion or interpretation rather than of evidence and
some of the conflicts of evidence are reconcilable or barely relevant. Where
there remains a conflict of evidence, I am not persuaded that it justifies
resort to cross-examination. I observe that, since I expressed the same view
at the hearing, in The Crown v. Metropolitan Borough of Wirral, ex parte
B (19 October 2000) Potter LJ said of a similar refusal of
cross-examination (Transcript, paragraph 30):
".....no substantial grounds existed to query the bona fides of [the witness].
It is unusual for oral evidence to be taken in a case of this kind and, if it
is to be ordered in relation to the bona fides of a witness, some substantial
ground should normally be demonstrated to justify departure from the usual
procedure."
This supports the view which I took of the application for cross-examination in
the present case. Moreover, it is not without significance that, although
there are serious allegations suggestive of bad faith in parts of the evidence,
the actual grounds of challenge do not include an express allegation of bad
faith.
This disciplinary panel and the appeal panel
12. The first ground of challenge relates to the composition of the
disciplinary panel and the appeal panel. It is necessary for me to relate some
more of the factual background. On 21 January 1999 the Governors resolved that
the disciplinary panel should comprise Mr. Coleman, Mr. Jennings and Mr.
Woodcock and that the appeal panel should comprise Ms. Bell, Ms. Harrison and
Mrs. Smith. At that time, of course, the Applicant was under suspension and
awaiting his trial in the Crown Court. Following his acquittal, Mr.
Pennington, as Chairman of the Governors, wrote to him on 13 May 1999 "to
confirm that the suspension from your duties as Head Teacher ...........will
continue until further notice". It was explained that this was to allow for
consideration of the evidence and for a decision to be reached about a possible
disciplinary investigation. On 26 May the Governors notified the further
continuation of the suspension. By this time, Mr. Woodcock had been replaced
as a Governor by Mrs. English and the Governors resolved to reconstitute the
membership so that the disciplinary panel should thenceforth comprise Mr.
Coleman, Mr. Jennings and Ms. Bell and the appeal panel Mrs. English, Ms.
Harrison and Mrs. Smith.
13 The Applicant appealed against his continued suspension and his appeal was
considered by the disciplinary panel on 10 August. On that occasion, the
members of the panel elected Mr. Coleman to be their chairman. The panel
unanimously dismissed the appeal. On 23 September Mr. Pennington wrote to the
Applicant to inform him that, following the investigation and report by Dr.
English, he (Mr. Pennington) proposed to pursue eleven complaints before the
disciplinary panel. The hearing was later arranged for 9 and 10 November and
on 27 October, Mr. Pennington wrote to the Applicant to inform him that the
disciplinary panel would comprise Mr. Coleman, Mr. Jennings and Mrs. Smith.
The Applicant replied on 2 November saying:
"Your letter indicates a change of panel member from that agreed by the
Governing Body (as minuted 26 May 1999). I have seen no minuted change since
that date, so I assume you have taken executive action. I would appreciate
some explanation of this."
The Applicant's suspicion that the replacement of Ms. Bell by Mrs. Smith had
not been approved by the Governors was well-founded. However, at an emergency
meeting which lasted some eight minutes on the morning of 3 November, the
Governors, in the absence of Mr. Pennington, resolved upon the constitution of
the disciplinary panel in the form which Mr. Pennington had notified on 27
October. The minutes record the resolution as having been passed unanimously,
although Mrs. Rost maintains that she did not vote. At the same time, the
Governors appointed an appeal panel of Mrs. English, Ms. Harrison and Mrs.
Middleton.
14. It is apparent from internal documents that, prior to his letter of 27
October, Mr. Pennington had discussed the composition of the disciplinary
panel with Dr. English who had in turn taken the advice of Mr. Laycock, the
County Secretary. Dr. English had written to Mr. Laycock on or before 25
October in the following terms:
"Previous advice.....was that Governors should be as impartial and with as
little previous knowledge of the case as possible. But, given that it was a
small community and Governing Body, we must do our best with the people
available. I have spoken at length with Phil Pennington and list below my
understanding of the position."
There followed a list of the ten current Governors with comments about their
eligibility. Mr. Pennington was considered ineligible because he had made the
complaints which were the subject of the disciplinary proceedings. Also
considered ineligible were Mrs. Rost because she was thought to be prejudiced
in the Applicant's favour; Mr. Cole, the Head of Care in the School, because
he was thought to be prejudiced against the Applicant; and Ms. Bell "mother of
RB, who figured in Complaint 11". Of the remaining Governors, Mr. Coleman and
Mr. Jennings attracted the comment: "no known connection or involvement"; Mrs.
Middleton's son was referred to in Complaint 4 but had not been interviewed by
Dr. English or the police; Mrs. English's son had been interviewed by the
police but was not interviewed by Dr. English and did not feature in his
report; Mrs. Smith has a son who had been interviewed by the police and was
named in Complaints 6 and 7 but had not been interviewed by Dr. English and
"does not really feature in this case"; and Ms. Harrison, a teacher at the
School, was (like Mrs. English and Mrs. Middleton) on the appeal panel. Dr.
English referred to the fact that it was possible to co-opt one more Governor
from industry and added:
"I assume [Pennington, Rost, Cole and Bell] are debarred.
The members of the....panel agreed so far are Brian Jennings and Ken Coleman.
The Chairman proposes to approach Joanne Smith as the third member. Can this
be agreed please? (Mrs. English apparently is not available on the hearing
dates). Can you also confirm that the second group of six names are eligible -
or, if not, that we need to start co-option arrangements."
On 25 October Mr. Laycock replied in the following terms:
"The key provision is the Education (School Government) Regs rules out anyone
where
(1) there is a conflict between the interests of the governor and their duties
as a governor; or
(2) there is any reasonable doubt about the governor's ability to act
impartially.
I think I agree with your conclusions about the particular governors but why
not tell Hooper and co the names in advance so giving him the chance to
object?
I'd prefer to minimise the problem by co-opting to the vacancy in time to use
that person at the appeal.
The Regs would allow the panel to be two members provided the appeal panel was
3. But I don't think that's desirable - the obvious challenge is that whoever
chairs it decides the case because of their casting vote."
15. Mr. Pennington puts all this in context in his witness statement, in which
he describes becoming concerned about the position of Ms. Bell in view of her
son's implication in Complaint 11 which was "one of the more serious of the
.....complaints"; seeking advice from the Education Department; and requesting
that legal advice be taken to confirm the position. That, it seems to me, is
what happened. Dr. English reported back to Mr. Pennington on 26 October and
that gave rise to the sequence of events which I have described as taking place
between 27 October and 3 November. The outcome of the Governors' meeting on 3
November was confirmed to the Applicant by a letter dated 5 November. There
was a further exchange of letters between the Applicant and Mr. Pennington on 8
November but it added little to what I have recounted. At the hearing on 9 and
10 November, when the Applicant was represented by Counsel, no objection was
made as to the membership of the disciplinary panel.
16. Against this background, Mr. Ground made lengthy submissions about the
composition of the disciplinary panel. In particular, he challenged the
impartiality or apparent impartiality of Mrs. Smith and Mr. Jennings. In this
regard, it is not necessary to establish actual bias. The test is
whether, having regard to all the circumstances, there was a real danger of
bias on the part of a member, in the sense that he or she might unfairly have
regarded with favour, or disfavour, the case of one side or the other:
Regina v. Gough [1993] AC 646, HL. With this in mind, I turn to
the complaints made about Mrs. Smith and Mr. Jennings.
(1) Mrs. Smith
17. The first basis upon which Mr. Ground sought to challenge Mrs. Smith's
appointment to the disciplinary panel was that it was brought about not by the
Governors but by Mr. Pennington and officials of the Council. It is apparent
from the history that I have related that Mr. Pennington, Dr. English and Mr.
Laycock were involved initially in considering the composition of the panel
with a view to avoiding partiality. Mr. Ground's submission was that, as Mr.
Pennington was effectively the complainant in the proceedings and the Council's
officials were responsible for conducting them, this involved a breach of
natural justice. I do not accept this submission. The disciplinary procedure
confers much of the initial authority on the Head Teacher but expressly
provides that when it is the Head Teacher himself who is the subject of the
allegation, it is for the Chairman of the Governors to carry out the functions
of the Head Teacher. This is essentially what Mr. Pennington was doing. The
procedure provides (paragraph 3.3):
"At every stage, bearing in mind the particular sensitivity here, the Chairman
is advised to keep in close contact with Education Personnel."
That is what Mr. Pennington was doing when he liaised with Dr. English, who
quite properly took the advice of Mr. Laycock. Mr. Ground was correct to
observe that initially, in his letter to the Applicant on 27 October, Mr.
Pennington was not acting in accordance with the procedure because it was for
the Governors to determine who should be on the panel. However, this defect
was cured when the Governors, in the absence of Mr. Pennington, unanimously (or
at least, nemo contra) voted on the membership on the morning of 3
November.
18. The second submission advanced by Mr. Ground was that the resolution of 3
November was simply a whitewashing exercise. That, in my judgment, is an
unsustainable submission. The meeting was chaired by Ms. Bell who is
acknowledged by the Applicant to be an independent - minded person. Others
present included Mrs. Rost, who is both strong minded and favourably disposed
to the Applicant, and Mr. Coleman, the chairman of the disciplinary panel and a
person of whom the Applicant makes no criticism. The fact that Mrs. Rost and
Mr. Coleman have subsequently been critical of the composition of the panel
does not detract from the fact that it was approved by a properly convened
meeting at which they voted in favour of it (or, perhaps in Mrs. Rost's case,
abstained).
19. Mr. Ground's third submission was that the replacement of Ms. Bell by Mrs.
Smith was engineered by Mr. Pennington and the Council officials, because,
consciously or unconsciously, they felt that Ms. Smith "was more predisposed in
favour of dismissal" than Ms. Bell - in other words, that the composition of
the panel was rigged. Whatever those who disagree with the outcome of the
disciplinary hearing may now say, I am entirely satisfied that this grave
allegation is completely unfounded.
20. This brings me to Mr. Ground's complaints against Mrs. Smith in
personam. They can be summarised as follows. First, that in
relation to the saga about Mrs. Rost, Mr. Gibbs and the Applicant's bail
conditions, up to and including the votes of no confidence in Mrs. Rost, Mrs.
Smith consistently spoke and voted in the way most at variance with the
Applicant's interests. She was one of the hawks and not one of the doves.
Secondly, when the possibility of disciplinary proceedings had first
been considered by the Governors on 21 January 1999, Mrs. Smith had herself
expressed doubts about her impartiality. It seems that the reason for this was
that her son had been one of the pupils on the barge trip referred to in
complaints 6 and 7. Thirdly, when the disciplinary panel eventually
retired to deliberate, Mr. Coleman states that Mrs. Smith expressed strong
views that the Applicant should be dismissed and ignored his desire to discuss
mitigating circumstances. By referring to these three points I have drawn
together a number of complaints articulated by Mr. Ground and, in the interests
of conciseness, set them out in this way in the belief that they fairly
summarise the essence of his submissions without descent into more detail than
is necessary.
21. The fact that Mrs. Smith took and expressed the views that she did in
relation to the Applicant's bail conditions and the position of Mrs. Rost seems
to me to have no bearing whatsoever on her suitability to serve on the
disciplinary panel. Her expressed concern about her impartiality has to be
seen in context. Her concern was clearly as to whether the fact that her son
had been interviewed by the police in the course of the investigation and, by
implication, might be mentioned in any disciplinary proceedings, put a question
mark against her impartiality. The minutes of the meeting of 21 January go on
to state:
"If need arose, [acting] Head Teacher would ask investigating officer to check
her son's statement and advise on impartiality. Both parent governors'
children had been interviewed and therefore may not be impartial. [Clerk's
note: subsequent legal advice is that both parent governors can be considered
impartial]".
When the subject was revisited in October, Mr. Pennington, Dr. English and Mr.
Laycock had this issue very much in mind. By then the charges had been
formulated. The view was taken that as Mrs. Smith's son had not been
interviewed by Dr. English in the course of his investigation and,
notwithstanding his being mentioned in complaints 6 and 7, he did not feature
in the case in the same way as Ms. Bell's son who was involved in complaint 11
which was reasonably seen as being a more serious matter. There were factual
issues in relation to complaint 11 but not really in relation to complaints 6
and 7. In my judgment, the uncontroversial position of Mrs. Smith's son was
not such as to cause her to fall foul of the principle set in
Gough. Moreover, the position of the Applicant on this issue is
somewhat inconsistent. His basic complaint is that Ms. Bell was replaced by
Mrs. Smith. If Mrs. Smith was objectionable, then the same should surely apply
to Ms. Bell. Also, the father of Ms. Bell's son was called as a witness on
behalf of the Applicant at the hearing, whereas the Applicant says that that
would not have been done if Ms. Bell had been on the panel. To that extent the
eventual composition of the panel was advantageous to the Applicant.
22. I do not feel able to make any factual findings which support the
contention that Mrs. Smith lacked impartiality in the course of the panel's
deliberations. Although Mr. Coleman claims that his request for a discussion
of mitigating circumstances was ignored, that is not consistent with the
statement of Mrs. Morgan, a solicitor employed by the Council, that there was a
very careful discussion in which Mrs. Smith and Mr. Jennings acknowledged the
Applicant's considerable contribution to the School. The fact that, in the
course of a five hour deliberation, Mrs. Smith expressed strong views in favour
of a recommendation of dismissal is not indicative of partiality.
23. Looking at Mr. Ground's various submissions (including those which I have
not specifically mentioned) separately and cumulatively, I have come to the
conclusion that there can be no legitimate criticism of the inclusion of Mrs.
Smith on the disciplinary panel. It is has not been established that she was
afflicted by actual bias, nor that there was a real danger of bias in the
Gough sense.
(2) Mr Jennings
24 The suggestion that Mr. Jennings was not impartial is made to a large extent
by reference to his attitude towards Mrs. Rost. He had been critical of her
over the saga of the Applicant's bail conditions and she inferred that he took
a hard line over what bail conditions were appropriate. On 14 March 1999 he
wrote to his fellow Governors, calling an extraordinary meeting with a single
item on the agenda, namely a resolution to remove Mrs. Rost as Chairman on a
vote of no confidence. He explained this in the following terms:
"I have in recent months been very concerned that the Chair of Governors has
been making important decisions, using my position as Governor.....without
informing me. It is my opinion that some of these decisions are not in the
best interests of [the] School, the teaching staff, the care staff and the
boys."
In due course he spoke to his motion at a meeting on 25 March and no doubt
voted in favour of it, as he did again when the Governors reconsidered the
matter on 26 April. On that occasion someone had moved an amendment to the
effect that the resolution should be postponed so as to obtain clarification
from the Magistrates Court about correspondence in relation to bail conditions.
It seems that Mr. Jennings voted against that amendment.
25. The saga concerning the Applicant's bail conditions was an unhappy one.
However, I find it impossible to infer that, in relation to it and to other
matters about which he was expressing concern over Mrs. Rost, Mr. Jennings was
manifesting a lack of impartiality towards the Applicant. He was expressing
concerns with which most of his colleagues, by their votes, agreed. This is no
basis for impugning his impartiality in relation to the disciplinary
hearing.
26. The Governors had first discussed disciplinary proceedings long before the
Applicant's acquittal. I have already referred to a meeting of the Governors
on 21 January 1999. According to Mrs. Rost, on that occasion Mr. Jennings,
when referring to a future disciplinary hearing, said:
"That's where we get to tell him off for not keeping to the rules, is it?"
It is fanciful to suggest that such a remark in January was indicative of
partiality rendering Mr. Jennings unsuitable to serve on the disciplinary panel
in November.
27. It is also suggested that Mr. Jennings manifested partiality in the course
of the disciplinary panel's deliberations. The source of this suggestion was
the witness statement of Mr. Coleman to the effect that when he raised the
question of mitigating circumstances he was ignored by Mrs. Smith and Mr.
Jennings. As I have recounted earlier, the evidence of Mrs. Morgan, who was
present during the deliberations, is to the effect that Mrs. Smith and Mr.
Jennings "acknowledged [the Applicant's] considerable contribution to the
School". It is apparent that the deliberations became fractious and that the
panel divided, with Mr. Coleman in the minority. However, as I have stated in
relation to Mrs. Smith, the evidence looked at as a whole does not persuade me
that the majority lacked impartiality or that it establishes a real danger of
bias.
Ms. Harrison
28. In addition to the challenge to the impartiality of Mrs. Smith and Mr.
Jennings on the disciplinary panel, Mr. Ground submitted that Ms. Harrison is
an inappropriate member of the appeal panel. As no decision has been taken
upon the disciplinary panel's recommendation of dismissal and the appeal
against it, although instigated, has not yet been heard, it has to be said that
the position of Ms. Harrison on the appeal panel is not obviously a matter
which goes to the decisions presently under challenge. However, I permitted
Mr. Ground to develop his submission on the basis that, as he put it, the
position of Ms. Harrison was symptomatic of a wider malaise whereby both panels
had been packed with members who could be relied upon to reach a desired
conclusion. The criticisms of Ms. Harrison were: that, as a member of the
School staff subordinate to the Applicant, it is inappropriate for her to be a
member of the panel; that, in her capacity as the School's child protection
officer, she was in regular contact with Social Services and the police
officers with child protection responsibilities; and that she had been strongly
opposed to Mrs. Rost at the time of the votes of no confidence, at one point
referring to her as a liar. None of this disposes me to the view that she owes
her position on the appeal panel to some devious grand design or that, if I
were now considering a decision of the appeal panel, these factors would cause
me concern about a lack of impartiality.
29. Before moving on from this part of the case it is appropriate for me to say
something about impartiality in procedures such as these generally. It is in
everyone's interests that allegations of misconduct in the context of
employment are first investigated within the organisation. It is also good
employment practice. It is inevitable, particularly in relatively small
organisations, that one or more, or often all of a disciplinary panel will have
some previous knowledge of what is alleged. Indeed, it may be impossible to
constitute a panel, none of whom has had previous contact with the issue or
none of whom has expressed an opinion about it at some stage. In the present
case, the panel had to be selected from the Governors and, by November 1999,
the Governors had been dealing with the position of the Applicant, in one form
or another, for well over a year, sometimes in a highly charged atmosphere. In
such circumstances, a degree of pragmatism is inevitable. That is why, in a
particular case,
"a person who is subject to disqualification at common law may be required to
decide the matter if there is no other competent tribunal or if a quorum cannot
be found without him....Necessity may also play a part in excusing an
appearance of bias where it would not be impossible for anyone else to make the
decision but where the particular administrative structure makes it inevitable
that some appearance of bias will occur."
(de Smith, Woolf & Jowell, Judicial Review of Administrative
Action, 5th edn, pp 544-545)
In the present case, great care was taken to exclude those Governors who had
clearly manifested partiality, one way or the other. The eventual composition
was not inevitable. It would have been possible to proceed with a panel of two
rather than three (Education (School Government) (England) Regulations 1999,
regulation 47 (6)), but it was reasonably considered in the present case that
that might lead to problems. Co-option of a further Governor was a
possibility, was considered, and was reasonably rejected. In my judgment, the
constitution of the disciplinary panel, whether or not it resulted from
necessity in the strict sense, was reasonable and appropriate. Its
constitution and its subsequent performance are subject to the supervisory
jurisdiction of this court. I am not satisfied that, having regard to all the
circumstances, there was a real danger of bias on the part of any member of the
panel, in the sense that he or she might unfairly have regarded with favour, or
disfavour, the case of one side or the other. In other words, the Applicant
has failed the Gough test.
The presence of a second adviser at the disciplinary hearing
30. When Mr. Pennington wrote to the Applicant on 27 October 1999 informing him
of the identity of the Governors who would constitute the disciplinary panel,
he added:
"The Director of Education's representative advising the panel will be Ray
Williams and I have also asked for the panel to have a legal adviser, who will
be Carolyn Morgan, County Secretary's Department."
On 2 November the Applicant replied, contending that the disciplinary procedure
does not allow for two advisers. He drew attention to a provision in the
procedure in these terms:
"An Area Personnel Manager can be present to assist in ensuring that procedure
and good employment practice are observed and in giving advice to those hearing
the case."
It is true that the procedure does not mention a legal adviser. Mr. Pennington
replied by a letter dated 5 November, stating:
"In terms of advice to the panel, I have been concerned for some time, given
the background to this disciplinary case, that there could be legal issues or
points of law or procedure arising which would benefit from the advice of a
lawyer. For that reason the County Secretary agreed to my request to provide
the panel with legal assistance. I believe this can only assist the panel in
reaching a proper conclusion; however if you object to this please let me know
as soon as possible."
There was a further exchange of correspondence on 8 November, the Applicant
indicating that he would draw the matter to the attention of his counsel.
31. What occurred at the disciplinary hearing is not entirely clear. According
to the Applicant, his counsel (not Mr. Ground) objected but the objection was
not acceded to, Mrs. Morgan, in her witness statement, states that she was
instructed by the County Secretary that if the Applicant's objection to her
presence was maintained at the hearing, she was to withdraw immediately. Her
evidence is that the Applicant's counsel "put his views but did not ask that I
withdraw". The witness statement of Mr. Williams does not take the matter much
further. Nor indeed does that of Mr. Coleman. Mr. Williams' contemporaneous
notes refer to the Applicant's counsel asking for a note to be made of any
legal advice given. The Applicant's counsel at the disciplinary hearing has
not provided a witness statement. The recollection of Mr. Brennan, who
appeared both at the disciplinary hearing and before me, is that no objection
was taken to the presence of Mrs. Morgan as legal adviser but that a question
arose as to whether the Applicant and his counsel could be informed of the
content of any legal advice given by Mrs. Morgan.
32. I am doubtful whether, in the strict sense, counsel did object to Mrs.
Morgan's presence. If such an objection had been clearly made, one would
expect to see a reference to it in the contemporaneous notes of Mrs. Morgan
and/or Mr. Williams and one would also expect that Mrs. Morgan, upon hearing
such an objection, would have complied with the prior instruction of the County
Secretary "to withdraw immediately". However, even assuming that the point was
taken by counsel but not acceded to by the disciplinary panel, I am wholly
unpersuaded that a ground of challenge can now be founded on Mrs. Morgan's
presence. Although not expressly referred to in the disciplinary procedure, I
do not consider that to have a solicitor present as a legal adviser was a
matter of procedural impropriety. Nor do I consider that any unfairness was
occasioned to the Applicant by her presence.
33. In addition to his contention that the mere presence of Mrs. Morgan was in
itself a matter of procedural unfairness or impropriety, Mr. Ground submitted
that various other manifestations of unfairness flowed from it. One of these
complaints was that Mrs. Morgan was not an independent legal adviser because
she is an employee of the Council. I do not consider that to be a matter of
legitimate complaint. If, as I have held, it was lawful for the disciplinary
panel to have a legally qualified person present to provide legal advice, there
can be no objection to that role being discharged by an in-house solicitor
rather than someone in private practice. I reject the submission that her
presence jeopardised the independence of the panel. Mr. Ground attempted to
support his submissions about independence by reference to article 6 of the
European Convention on Human Rights and the right to a fair trial before an
independent and impartial tribunal. Even if I assume in his favour that
article 6 applies to internal disciplinary proceedings such as these (in my
view, a very generous assumption), I do not consider that Mrs. Morgan's
presence involved a breach. I simply do not agree with the submission that the
presence of two Council employees as advisers for a panel of three members
"tipped the balance" so that the panel could no longer be regarded as
independent and impartial.
34. Another of Mr. Ground's complaints related to the advice given by Mrs.
Morgan. However, on the two issues to which Mr. Ground referred, her advice
accorded with what Mr. Ground rightly considered appropriate. These were that
dismissal is not an automatic consequence of a finding of misconduct or gross
misconduct and that it is appropriate to consider any mitigating
circumstances.
35. Mr. Ground's further complaints in this area related to the dynamics of the
deliberations of the disciplinary panel. It is apparent that, having heard the
evidence and the submissions, the panel deliberated for about five hours.
There are three accounts of those deliberations in evidence before me: those
of Mr. Coleman, Mrs. Morgan and Mr. Williams. There are inconsistencies
between Mr. Coleman, on the one hand, and Mrs. Morgan and Mr. Williams on the
other. What seems clear is that, when complaint 4 was discussed, Mr. Coleman
took a more benevolent view of it than his colleagues did. After that the
discussions seem to have become somewhat fraught. It is not necessary for me
to attempt to resolve all the differences of recollection and perception. What
I can and do safely conclude is that nothing said or done, or omitted to be
said or done, by Mrs. Morgan during the deliberations afflicted the fairness of
the process. I do not consider that the decision was infected by conflicting
advice from Mr. Williams and Mrs. Morgan. Clearly Mrs. Smith and Mr. Jennings
concluded that complaint 4 involved gross misconduct but Mr. Coleman disagreed.
In coming to their decision to recommend dismissal, the majority were entitled
to have regard to have regard to the totality of what they found proved. Mrs.
Morgan's recollection is that:
"The two panel members [viz. Mrs. Smith and Mr. Jennings] discussed
their recommendation very carefully. They acknowledged Mr. Hooper's
considerable contribution to the school but, given the seriousness with which
they viewed Mr. Hooper's actions in countermanding a parent's arrangements,
felt that a recommendation of dismissal was the only one they could make."
It is true that Mr. Coleman's evidence is that this account implies a more
conscientious consideration of mitigating circumstances than he recollects -
indeed, he maintains that they were not taken into account at all - but I do
not feel able to proceed on the basis of a finding that he is correct about
that. It is Mr. Coleman's view that the complaints against the Applicant were
"relatively trivial" and that dismissal was "disproportionate to the panel's
findings on the complaints." However, the case for the Applicant in these
proceedings has been put expressly and emphatically on the basis that the
decision itself is not being challenged as irrational or perverse. The
challenge is on the ground of procedural unfairness or impropriety. I am
entirely satisfied that, to the extent that this challenge is based on the
presence and contribution of Mrs. Morgan, it is utterly unfounded.
Production of documents
36. One of the complaints set out in the Form 86A is that the Council and the
School failed to produce for inspection by the Applicant a substantial number
of documents which had been on the School premises before his suspension but
which were later said by the Council to be unavailable. It was said that this
had handicapped him in his defence to the disciplinary charges. In the relief
sought by the application reference was made to an order for inspection of five
categories of documents or for a statement verified by a statement of truth
showing what attempts had been made to find the documents, who had parted with
or destroyed them and what steps had been taken to retrieve them. On 11 August
2000 the Applicant's solicitors wrote to the Council requesting, in the course
of the present proceedings, copies of documents by reference to thirty-nine
categories. The request was made under Part 31.15 of the Civil Procedure
Rules. The County Secretary replied by a letter dated 22 September, addressing
each of the thirty-nine categories. On 26 September, there was a hearing
before Harrison J which resulted in an order by consent for disclosure of
certain documents "if available". On behalf of the Applicant, Mr. Ground
submitted to me that, not withstanding the disclosure that has now been
achieved voluntarily and as a result of the consent order, further disclosure
remains a live substantive issue. His complaint is that, to the extent that
documents are said to have been lost or destroyed, in particular by the wiping
of one or more computer discs, the Applicant does not believe that such loss or
destruction has taken place. Furthermore, even if it has, it was unfair of the
Council to delay the preferring of disciplinary charges until after relevant
documents had been lost or destroyed.
37. Mr. Brennan's response to these complaints was that the Council has
disclosed what it still has but that, in any event, the material could never
have been of more than peripheral significance. He illustrated this by
reference to one of the factual issues in the disciplinary hearing. Complaint
3 related to the night of 14-15 May 1998. It alleged that, in disregard of a
clear written instruction, the Applicant had spent the night on his barge with
four pupils but without a second responsible adult. When the Applicant and the
pupils went to the barge, they were accompanied by Mr. Stephen Patient, a
residential social worker at the School. However, Mr. Patient left the barge
and went back to the School on the evening of 14 May, returning to the barge
the following morning. According to Mr. Patient, this was all agreed in
advance with the Applicant who was well aware that Mr. Patient was on "sleep
in" duty at the School that night. The Applicant, on the other hand,
maintained that it was only on the morning of 14 May that he discovered that
Mr. Patient was on "sleep in" duty that night, whereupon he decided, in
consultation with two senior colleagues, that the trip should go ahead. The
case for the Applicant is that the "sleep-in" book was a relevant and important
document in relation to this issue. However, in his witness statement to the
Police dated 10 December 1998, Mr. Patient described how he had tried to check
the "sleep-in" book but "it appeared to be missing". He later told Dr. English
that he had looked for the book with Mrs. Sheila Jarvis, the School Bursar, but
it had disappeared from the cupboard. Mrs. Jarvis confirmed this to Dr.
English, adding that it was she and the Applicant who were the key holders. As
it is common ground that Mr. Patient did return to the School on the evening of
14 May and rejoined the Applicant and the pupils on the barge the following
morning, it is, as Mr. Brennan submitted, difficult to see how the book could
have resolved the issue about when the Applicant became aware that Mr.Patient
would be spending the night at the School. Moreover, there is evidence that
the book was missing in 1998, long before the Applicant's acquittal and Dr.
English's investigation.
38. So far as another category of document is concerned - work experience
records - the Applicant's concern is that they would show that some of the
pupils had done work experience on a barge belonging to the Diocese of St.
Albans and that this would demonstrate that they were qualified to act as
second adults on the Applicant's barge. However, it is abundantly clear, as it
is obvious as a matter of common sense, that the disciplinary complaints
against the Applicant in relation to the absence of a second adult were not
confined to competence and safety in the operation of the barge. They were
substantially concerned with the Applicant having (in Dr. English's words)
"repeatedly placed himself in positions of risk......despite specific
instruction".
39. In my judgment, no unfairness or impropriety has been established under
this heading and the ground of challenge fails.
The conclusion of the "beliefs" meeting
40. Put simply, this ground of challenge is that the concluded belief that
there is reasonable cause to suspect that the Appliant poses a risk of
significant harm to children in his care is Wednesbury unreasonable.
Mr. Ground relied on the unanimous acquittal in the Crown Court proceedings, in
the course of which the trial judge (who had rejected a submission of "no case
to answer") had apparently referred to B as a liar, together with the fact that
Dr. English, when he reported the result of his investigation to the School
Governors, had commented that "it would be difficult not to conclude that there
must be a high probability that B is lying". In order to address this part of
the case, it is necessary to set out more of the factual background.
41. In common with other local authorities, the Council has proceedures for the
investigation of persons suspected of presenting a risk of significant harm to
children. The introduction to the procedures describes them as "new and aiming
to provide a clearer framework", adding that "care needs to be taken to ensure
that legal advice is sought throughout the process". Reflecting the Children
Act 1989, the document states:
"the child's welfare shall be Social Services' paramount consideration.
Further, in balancing adequate protection for the child, and fairness to an
adult, the interests of the adult may have to be placed second to the needs of
the child."
Mr. Ground did not, indeed could not, criticise these provisions. It is next
necesary to describe how the social workers and others went about their tasks
in the present case.
42. Even before the Applicant was arrested an initial strategy meeting was held
to consider B's allegation. It was attended by a police officer from the child
protection unit and various officials from Social Services. The meeting began
on 24 July 1998 and continued on 29 July. The police officer described B's
allegation and background, together with the names of other boys who were said
by B to have been to the Applicant's barge. One of the matters considered at
this early stage was the fact that in early 1998 the Applicant had agreed to
future arrangements regarding the use of his barge. The minutes of this
initial and reconvened strategy meeting indicate to me an entirely appropriate
preliminary consideration, with each party pursuing his or her department's
legitimate interest while remaining conscious of the need to liaise and to
share information. The arrest of the Applicant soon followed and thereafter
the involvement of Social Services was not significant until after the
acquittal of the Applicant in May 1999. On 7 June 1999, the Applicant returned
to live at his house at the School and on 10 June a further meeting was held by
social workers, police and other professionals involved in child protection.
The meeting is described in the minutes as a "beliefs meeting". The police
officers reported that no other pupil had made any allegation against the
Applicant. Nevertheless the officers who had interviewed B continued to
believe that he was telling the truth and there was a concern on the part of
the meeting about a pattern of taking pupils to the barge. The minutes
indicate an intelligent and unhurried approach, coupled with an express
recognition of the need to avoid interference with the disciplinary process.
It was decided to reconvene the meeting a fortnight later.
43. When the reconvened meeting took place on 24 June. There was an updating
of information. The views of the "beliefs panel" were canvassed. From their
different perspectives (Social Services, probation officer, health visitor),
the members all expressed views consistent only with a belief that the
Applicant poses a risk to children who are in his care. The meeting initially
recommended that the Director of Eduction should be informed on the assumption
that he would convey the belief to the School Governors. An addendum to the
minutes indicates that the matter was subsequently discussed with the District
Manager and Assistant Manager of Social Services who agreed the findings and
indicated that they should be relayed to the Director of Education, on the
basis that it would be for him to decide whether to share the information with
the Governors.
44. I interpolate here that one of the contributions of the Assistant Director
was to suggest that the minutes should be revised, as they then were, so as to
record a belief that the Applicant may pose a risk of significant harm.
Mr. Ground sought to attach significance to this but, in the context of the
case as a whole, I do not consider that it has any.
45. It was not until 22 October 1999 that a Social Services official wrote to
the Applicant in these terms:
"I am writing to let you know that the Councty Council's Social Services
Department has recently held a strategy meeting.....to consider the complaint
against you by [B].
The purpose of the strategy meeting was to consider whether there is reasonable
cause to suspect that you pose a risk of significant harm to children in your
care.....The meeting decided that you did pose such a risk.
The next step under the procedure is for you to have the opportunity to discuss
the matter with members of the strategy meeting. I understand from the
.....Education Department that you are currently suspended from your post
pending a disciplinary hearing....In these circumstances, I would propose that
you have the opportunity to meet us after that hearing has taken place. If you
would prefer to have the meeting sooner, please let me know."
One of the Applicant's complaints is that the reference to the strategy meeting
having been held "recently" is a travesty, in view of the passage of four
months. I shall return later to the associated ground of challenge on the
basis that all this had an unfair consequential effect on the disciplinary
proceedings.
46. On 4 November 1999, the Applicant and his representative, Mr. Derek Morris
of the National Association of Head Teachers, met with two senior Social
Services officials. Clearly, the Applicant had decided to make representations
to them ahead of the disciplinary hearing. He was again told that the meeting
was an opportunity for him to make representations and that all the information
would then go to the Director or Assistant Director of Social Services who
would make the final decision on whatever further action may be required. Mr.
Morris complained about the proximity of the meeting with the disciplinary
hearing which was to take place the following week - he said it could be viewed
as "conspiratorial and contrary to natural justice". He also referred to the
unanimous verdict of the jury and the fact that B had been referred to by the
trial judge as a liar. A point was made that the investigating police officer
had been the subject of a justified complaint by the Applicant. The Applicant
and Mr. Morris were advised that, no final decision having yet been made by
Social Services, no decision had been formally conveyed to the Education
Department. This was not correct, because on 6 August 1999 a letter had gone
from Social Services to the Director of Education, setting out the belief of
the meeting of 24 June and recommending that that belief went to the Director
of Education "on the assumption that the view will be conveyed to" the School
Governors.
47. The next day, 5 November 1999, the essence of what the Applicant and Mr.
Morris had said was passed on by letter to the Director of Social Services on
the express basis that it was "significant information that was not available
to the beliefs meeting" comprising in particular the complaint against the
investigating police officer, the fact that the Education Department had
concluded that there was insufficient evidence to found a disciplinary charge
of indecently assaulting B, and the fact that the trial judge had referred to B
as a liar.
48. On 8 November the beliefs meeting reconvened to reconsider the matter in
the light of the representations from and on behalf of the Applicant on 4
November. Further documentation was available in relation to the complaint
against the investigating police officer and the comment of the trial judge.
As regards the latter, it seemed that the judge had, appropriately, referred to
B's behavioural problems and established dishonesty and ability to lie when
directing the jury to approach his evidence with caution. He had not
characterised the allegation as a lie-indeed, he had declined to accede to a
submission of no case to answer. In the event, the beliefs meeting unanimously
agreed that the Applicant still posed a risk and that this "recommendation"
should be conveyed to the Director of Education and to the Chairman of the
School Governors. Later the same day the Director of Social Services was
informed by internal memorandum of the outcome of the reconvened beliefs
meeting. It seems that the Applicant was not informed of it before a letter
dated 22 November, well after the disciplinary hearing. On 23 November the
Applicant sent a long letter to the Director of Social Services setting out his
case as to why the belief that he poses a risk of significant harm to children
in his case is erroneous. On 2 December he raised a number of points with
Social Services and on 3 December the Director of Social Services (probably
without having had sight of the letter of 2 December) wrote to the Applicant.
The Director stated that it was not for him "to consider the reasonableness of
the decision reached", viz. by the beliefs meeting. However, if there
were any new points he wished to place before the beliefs meeting, he should
communicate them so that the meeting could be reconvened again.
49. The Applicant availed himself of this opportunity. He sent a long written
submission to the beliefs meeting in which he set out in detail the reasons
why, in his view, B should not be believed. He also, on 12 January 2000, wrote
a further detailed letter, revisiting a number of matters from the earlier
correspondence.
50. The beliefs meeting was reconvened once more on 28 January. It is plain
from the minutes of the meeting that the Applicant's representations were
carefully considered, paragraph by paragraph. The minutes conclude:
"On balance, having considered all of this information, it was
agreed......unanimously that the belief that [the Applicant] is a suspected
abuser and therefore a risk to children, namely the vulnerable young boys at
[the] School, should be upheld."
As of now, the Director of Social Services has still to make his decision
consequent upon the conclusions of the beliefs meeting. In January 2000, the
Applicant filed this application for judicial review and, as a result, the
Council's decision-making processes were suspended. The application seeks to
challenge the conclusion of the beliefs meeting of 24 June 1999 which, as I
have recounted, was communicated to the Applicant by the letter of 22 November.
However, it is appropriate that I set it in the context of what came before and
after.
51. I have already referred in summary form to the basis upon which Mr. Ground
submitted that the conclusion of the beliefs meeting on 24 June 1999 was
Wednesbury unreasonable. I am entirely satisfied that this submission
is without merit. The beliefs meeting was not bound by the result of the trial
in the Crown Court, by any comment of the trial judge (the significance of
which, in context, was rather less than the Applicant contends) or by the lack
of a disciplinary charge reflecting B's allegation. The beliefs meeting is a
multidisciplinary body whose deliberations are not required to embrace the
criminal standard of proof. Nor is it inhibited by the rules of evidence which
obtain in the Crown Court. Its currency is reasonable cause for suspicion,
having regard to all the relevant material. In my judgment, the several
beliefs meetings, including the one on 24 June 1999 and the ones in Janaury
2000, have all been characterised by a rational approach, resulting in a
conclusion which is in conformity with the criteria of public law
reasonableness. It may be that a different group of child protection
professionals might quite properly reach a different conclusion but that is a
world away from vitiating the conclusion of the beliefs meeting in this case.
Accordingly, the Wednesbury challenge fails.
Children Act 1989, section 47
52. In addition to attacking the conclusion of the beliefs meeting on
conventional Wednesbury grounds, Mr. Ground also submitted that it was
bad in law by reason of section 47 of the Children Act 1989.
The relevant parts of section 47 read as follows:
"(1) Where a local authority -
.........
(b) have reasonable cause to suspect that a child who lives....in their area is
suffering, or is likely to suffer, significant harm,.
the authority shall make, or cause to be made, such enquiries as they consider
necessary to enable them to decide whether they should take any action to
safeguard or promote the child's welfare......
(3) The enquires shall, in particular, be directed towards establishing -
(a) whether the authority should make any application to the court, or exercise
any of their other powers under this Act .....with respect to the child
(7) If, on the conclusion of any enquiries or review made under this section,
the authority decide not to apply for an emergency protection order, a child
assessment order, a care order or a supervision order they shall-
(a) consider whether it would be appropriate to review the case at a later
date; and
(b) if they decide that it would be, determine the date on which that review is
to begin.
(8) Where, as a result of complying with this section, a local authority
conclude that they should take action to safeguard or promote the child's
welfare they shall take that action (so far as it is both within their power
and reasonably practicable for them to do so)."
The whole procedure operated by Social Services in the present case owes its
origin to section 47. It is published in Hertfordshire Child Protection
Procedures, Part II of which is headed "Procedural guidance on forming
and sharing beliefs about alleged or suspected child abusers". It is common
ground that, although the children in the present case are the unspecified
members of a group i.e. pupils at the School, section 47 applies.
53. Mr. Ground submitted that the purpose of an investigation under section 47
is to decide whether or not the Council should take any of the steps specified
under section 47(3), each of which engages the scrutiny of a court He then
focused on an application for a care or supervision order under section 31.
This, in turn, brought him to Re H [1996] 1 AC 563 HL. However,
that case was concerned with what has to be proved in order to satisfy a court
that, for example, a child is suffering, or is likely to suffer, significant
harm (section 31(2)(a)). In my judgment, it does not illuminate the operation
of section 47. There is the world of difference between satisfying a court
that something is so (section 31) and having reasonable cause to suspect that
it is so (section 47). Accordingly, I consider Mr. Ground's reliance on
Re H to be misplaced. Moreover, section 47 is not simply a
precursor of an application to a court. Clearly, enquiries under the section
must be directed "in particular" towards establishing whether to make such an
application (section 47(3). However, if the reasonable suspicion is properly
present, the section does not render an application to the court obligatory.
In the present case, it would be quite otiose at present because the Applicant
remains suspended and under a recommendation of dismissal. Nevertheless, this
did and does not relieve Social Services of the duty of considering the
position under section 47. A complaint having been made, and other information
having come to hand, Social Services were bound to consider the matter under
section 47. Having done so, they reached what I have already held to be a
conclusion that was open to them, that is to say one based on reasonable cause
to suspect a likelihood of significant harm. It is wholly understandable that
no application to court has been forthcoming and that the action taken at this
stage (under section 47(8)), has been limited to communicating the conclusion
to the Director of Education and through him, to the School Governors.
The relationship between the "beliefs decision" and the disciplinary
proceedings
54. Mr. Ground next submitted that there were unfair consequential effects on
the disciplinary proceedings arising out of the "beliefs" decision. He put
this submission in three ways. First, that the beliefs decision had a
prejudicial and distracting effect on the preparation and conduct of the
Applicant's defence to the disciplinary proceedings; secondly, that the
way in which the disciplinary proceedings were conducted was affected by the
beliefs decision; and thirdly, that the beliefs decision created a
damaging "atmosphere of innuendo". I shall consider these submissions in turn,
although there is an overlap between the second and the third.
55. (1) I have already related how the conclusion of the beliefs meeting on 24
June 1999 was not communicated to the Applicant until he received the letter of
22 October, some two and a half weeks before the disciplinary hearing. This,
it is suggested, undermined his confidence, was demoralising and distracted him
from the preparation of his case. I am not impressed by this submission.
During the relevant period the Applicant engaged in intelligent and vigorous
correspondence about the forthcoming hearing, at which he was represented by
counsel. No complaint was made about any difficulty in relation to the
preparation or presentation of this case. I do not know why there was such a
delay in informing the Applicant about the outcome of the meeting of 24 June.
The probability is that it was not the result of malice or deviousness. In any
event, I am satisfied that it did not significantly affect the disciplinary
proceedings in the way suggested on behalf of the Applicant.
56. (2) None of the disciplinary charges alleged sexual impropriety on the part
of the Applicant. Mr. Brennan (who represented the Council at the disciplinary
hearing as well as in this court) opened the case to the disciplinary panel by
describing the charges as being concerned with blatant failure to observe
procedure and instructions and failure in professional standards. He then said
that this could be because the Applicant was exercising his responsibilities
with a reckless disregard for the procedures which were in place for the
protection of the boys (and himself) or that he was acting in this way because
of an unhealthy sexual interest in the boys themselves. However, he added, he
was not seeking to prove which and, in any event, either was wholly
inconsistent with the Applicant's continued employment as headteacher of this
school. As I commented during counsel's submissions, I do not think that it
was wise of Mr. Brennan to refer to even the possibility of "an unhealthy
sexual interest in pupils" at that stage, the decision having been taken not to
charge the Applicant with any act of sexual misconduct. However, I am not
persuaded either that his so doing resulted from the beliefs conclusion or that
it would afford a ground of challenge if it did. I observe that in their
witness accounts of the lengthy deliberations of the disciplinary panel neither
Mr. Colemen nor Mrs. Morgan makes any reference to the panel members discussing
sexual motive or misconduct. I am satisfied that there was no infraction of
natural justice in relation to Mr. Brennan's opening or occasioned by it.
57. (3) A similar point arises in connection with a passage in the evidence at
the disciplinary hearing. The Applicant states that, in the course of his
cross-examination, Mr. Brennan suggested that the Applicant had been "grooming"
pupils for later sexual abuse. Mr. Coleman has a similar recollection. Mrs.
Morgan, relying on her contemporaneous notes, has no such recollection from the
evidence but refers to the Applicant's counsel having made a submission
discounting "grooming" in her final speech. It is unlikely that she would have
felt the need to do so if the concept had not appeared in the evidence. Once
again, if the suggestion emanated from counsel, I consider that it would have
been wiser to have left it unsuggested. Nevertheless, I cannot see that it
rendered the proceedings unfair. There is no evidence that it deflected the
panel from the path of relevance.
58. Similarly, the Applicant contends that his case was also damaged by
innuendo when it was suggested that, in relation to complaint 4, he had
"unscrambled" the arrangement whereby one boy was to spend the night at another
boy's house. To use the word "unscrambling" does no injustice to the
Applicant's own account of the events of that day. In my judgment the
Applicant is not justified in asserting that the word was pregnant with
innuendo of sexual impropriety, nor in ascribing it or "grooming" to some
infection from the beliefs procedure.
59. I am wholly satisfied that the disciplinary proceedings were not unfairly
tainted by the outcome of the beliefs procedure. The two procedures are
functionally different. There is nothing untoward about their having been
concurrent. I cannot see that one had an adverse effect on the fairness of the
other. The specific matters about which complaint is made were minor and
inconsequential.
Conclusion
60. It follows from what I have said that, none of the grounds of challenge
having succeeded, this application for judicial review is dismissed. At the
time when it was lodged, it brought to a temporary halt both the consideration
of the Director of Social Services and the disciplinary appeal. Each will now
be resumed. Nothing in this judgment should be taken as seeking to influence
either. That is not my function or desire.
- - - - - - -
MR JUSTICE MAURICE KAY: In this case there will be judgment in
accordance with the document that has been handed down today.
MR BRENNAN: Would your Lordship dismiss the application with costs.
MR JUSTICE MAURICE KAY: What is the costs position? Is the applicant
legally aided?
MR GROUND: No, my Lord. I do not think I can resist that application.
MR JUSTICE MAURICE KAY: Yes.
MR GROUND: My Lord, there is one point on the judgment that my learned
friend and I have both only just spotted. That is in the first line, in that
the school is actually named.
MR JUSTICE MAURICE KAY: I was going to raise that.
MR GROUND: It might be better, in view of the reporting restriction,
not to identify it by name. My learned friend has no objection to that.
MR JUSTICE MAURICE KAY: What orders exist? None of them were made by
me, I think. There was an order made that the applicant be referred to as "A".
MR GROUND: Yes.
MR JUSTICE MAURICE KAY: Is there an order under the Children and
Young Persons Act as far as anybody under age is concerned?
MR GROUND: Yes, it was made on 14th March by Mr Justice Mitchell. It
was under section 39 of the Children and Young Persons Act 1933: that
reporting restrictions apply in respect of the applicant herein and that this
matter be listed as "Ex parte A". It would be consistent with that.
MR JUSTICE MAURICE KAY: I might not have been quite so easy to
persuade as to that, but, as it has been done, I shall be faithful to it; and
if I am going to be faithful to it, it seems to me that to name the school in a
public document would be almost to name the applicant. So if I alter the
first line of the judgment so that it reads, "The Applicant was appointed head
teacher at a school ...", that will suffice, will it not?
MR GROUND: Yes.
MR JUSTICE MAURICE KAY: Thank you very much.
MR GROUND: My Lord, I would apply for permission to appeal to the
Court of Appeal against the decision. My submission is that this is not a case
which really should be caught by the new filter of permission to appeal, which
is aimed at banning cases that have no prospect of success and which are not
serious cases. My Lord, I would submit that this is a very serious case. It
has grave implications for the applicant. It has various points of importance
in areas of law with which we were concerned. In my respectful submission it
would be an appropriate case in which to give permission to appeal.
MR BRENNAN: My Lord, it is a case which depends critically on its
somewhat complex facts. Although I accept that it is a matter of seriousness,
my learned friend has still to satisfy your Lordship that the test in Part 52.3
is met; so he has to show a real prospect of succeeding or some other
compelling reason why the appeal should be heard by the Court of Appeal. In my
submission he does not satisfy either.
MR JUSTICE MAURICE KAY: Mr Ground, I am going to refuse you
permission. You are of course free to make your application to the Court of
Appeal in due course if you so wish.
MR GROUND: I would ask your Lordship to stay the appeal proceedings
against the disciplinary finding in order to enable the applicant to apply for
permission to the Court of Appeal and to serve a notice of appeal.
MR JUSTICE MAURICE KAY: Just remind me of the time within which an
appeal has to be ----
MR GROUND: Four weeks, my Lord. But if an application is made for
permission within that period and not heard within four weeks, it is until
seven days after the hearing of the application for grant of permission to
appeal.
MR JUSTICE MAURICE KAY: Have you anything to say about that, Mr
Brennan?
MR BRENNAN: My learned friend is wrong about the four weeks: it is
14 days. But I urge your Lordship not to stay the disciplinary appeal further.
The matter has, as your Lordship knows only too well, lasted a very long time.
One of the results of the stay which was imposed on the original application
for permission to apply for a judicial review was that that permission was
granted the day before the appeal was due to be heard.
The applicant remains in the employment of the local authority throughout,
entitled of course to his full salary whilst so employed. He can only be
dismissed, should that ever arise, on a date coinciding with the end of current
terms - on notice, expiring at the end of a current term. So as the
disciplinary appeal is stayed, we have each time the prospect of him falling
over another trigger date and remaining in employment with the school for
potentially a further term or more.
MR JUSTICE MAURICE KAY: If I do not stay the disciplinary appeal, when
would you envisage it being held?
MR BRENNAN: I think in January. So if my learned friend puts in his
application to the Court of Appeal and that is accompanied by a suitable
indication of urgency, no stay is appropriate. The matter cannot be rushed to
judgment next week on the disciplinary appeal.
MR JUSTICE MAURICE KAY: On the understanding that the internal appeal
process will not bite before January, certainly I will be disinclined to grant
a stay. To be frank, I do not think you have any prospect in the Court of
Appeal. That is why I have refused you permission. Of course you can make
your application and, if you do, you can make your application for a stay
there. Even if there is some delay in a permission hearing, you may get a
stay hearing more expeditiously.
So I do not think I can take the matter further. Thank you both very much.
----------------------
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