Anwar and Ahmed v National College for Teaching & Leadership (1) The Secretary of State for Education (2) [2016] EWHC 2507 (Admin)

Posted by James Danks on
A timely reminder for all prosecutors of their disclosure obligations, especially in proceedings where there are a number of hearings arising from the same facts.

Whilst Phillips J declined to make a concluded view on whether separate hearings was fair, Regulators should consider his dissatisfaction that those respondents who could be deemed more senior did not have their cases dealt with first.

High Level Summary

This matter involves a statutory appeal against the NCTL's Findings of unacceptable professional conduct ('UPC') and their subsequent prohibition from teaching in England for six and three years respectively. The Appellants appealed on two grounds, that there was serious procedural irregularity in the NCTL proceedings and the Findings were perverse and took into account irrelevant and improper considerations. Mr Justice Phillips allowed the appeal on the first ground and concluded it was therefore unnecessary to consider the second.

Facts

The background to this matter arose from the 'Trojan Horse' letter. In November 2013, Birmingham City Council came into possession of correspondence that set out a course of action to destabilise a number of schools in Birmingham in order to take them over and run them to strict Islamic principles.

This letter became known as the 'Trojan Horse letter and was subsequently published in the media. Unsurprisingly, OFSTED inspected a number of schools viewed as being possible targets, one of which being Park View School ('Parkview'), where the Appellants taught.

NCTL, the regulator for teachers working in England, brought proceedings on unacceptable professional conduct against a number of teachers at Parkview. Due to the number of teachers involved, for practical reasons, NCTL decided to bring proceedings before their Professional Conduct Committee ('PCC') in three separate proceedings, the respondents being divided into:

  1. The Senior Leadership Team ('SLT');
  2. The Appellants (and one other); and
  3. Four further teachers.

For some reason, the case involving the Appellants was actually the first to be considered by the PCC (and at the time when judgment was handed down in the appeal, the other two matters before the PCC were yet to even conclude).

Although not identical, the main thrust of the allegations brought against the Appellants was predominantly the same, namely, "On or before 31 March 2014 you agreed with others to the inclusion of an undue amount of religious influence in the education of pupils…".

On 9 February 2016, the PCC found both Appellants guilty of UPC with Mr Anwar being prohibited from teaching for three years and Mr Ahmed for three.

The Appeal

The Appellants appealed under Regulation 17 of the Teachers' Disciplinary (England) Regulations 2012 on two grounds:

Ground 1: Serious Procedural Irregularity

There was serious procedural irregularity in the initial proceedings. Both appellants relied on the fact that disclosure provided by the respondents in the SLT case should have been provided to them (having met the standard disclosure test).

Mr Ahmed also put forward a further procedural irregularity in Ground 1, namely that the NCTL should have first proceeded against the SLT.

Both Appellants contended, regardless of the rights or wrongs of separate proceedings, the NCTL should have disclosed the following:

  1. Witness statements of the SLT respondents;
  2. Expert evidence relied upon by the SLT;
  3. An email exchange between Mr Faraz and Witness C (relevant to particulars of charge against Mr Anwar in respect of his involvement in the appointment of Mr Faraz as Deputy Head Teacher of a separate, but connected, school); and
  4. Evidence from the SLT, including evidence from a former pupil of Parkview.

The Respondents contended that although there was no formal test for disclosure by the NCTL, consideration had been given to their obligations having considered both the civil and criminal tests. He responded as follows on the four above points:

  1. The witness statements were bare denials and therefore not disclosable;
  2. The expert evidence was not relevant to what the Appellants had or had not done and, in any event, they could have adduced their own expert evidence;
  3. The email had no relevance to the proceedings against the Appellants.

No specific response appears to have been made by the Respondents regarding the evidence from the SLT.

Ground 2: The PCC's findings were perverse and took into account irrelevant and improper considerations.

For the reasons set out below, this Ground was not considered.

Judgment

Mr Justice Phillips expressed his grave concerns as to the fairness in proceeding against the Appellants prior to the SLT.

However, he declined to make a concluded view on this point having decided that:

  • The witness statements of the SLT respondents had gone further that just being mere denials but even if they had been limited to that basis, the statements were still disclosable;
  • For similar reasons, the SLT expert reports should have been disclosed;
  • The email also fell to be disclosed.

Phillips J's view was that the "NCTL was obliged to disclose material from the SLT proceedings which might assist the Appellants’ case or damage its own and that, in the absence of voluntary disclosure, the Panel should have directed that it be given.”

Phillips J went on to state that "…The failure of the NCTL to give (and the Panel to order) the disclosure outlined above was, in my judgment, a sufficiently procedural irregularity to render the proceedings against the Appellants unjust. On that basis both appeals must be allowed".

As a result of the above, Phillips J did not consider it necessary to determine the second ground of appeal and set aside the Prohibition Orders.

About the Author

James is a Senior Associate in our Professional Regulatory team, he has a decade of experience in advising regulators and respondents to disciplinary proceedings.

James Danks
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