Professional Regulation – Case Comment: Caroline Reilly V Teaching Regulation Agency and Secretary of State for Education (2020) EWHC 1188 (Admin)

The appellant was the head teacher of a primary school in the West Midlands. She was dismissed from her post in July 2011 following disciplinary proceedings which arose in consequence of her failure to disclose the fact of her personal relationship with a man who had been convicted of offences involving the making and possessing of indecent images of children.

The school notified the Secretary of State of the fact of the appellant’s dismissal who duly referred the case for the consideration of a Professional Conduct Panel (PCP) in accordance with the provisions of the Teachers’ Disciplinary (England) Regulations 2012. Proceedings were delayed as the appellant unsuccessfully sought to challenge her dismissal: see Reilly v Sandwell Metropolitan Borough Council (2018) UKSC 16.

In May 2018 the appellant was notified that a hearing before the PCP had been scheduled for dates in January 2019 and of the allegations to be considered, namely that she was guilty of unacceptable professional conduct and/ or conduct that may bring the profession into disrepute in that she:-

1. Failed to disclose her relationship with a convicted sex offender A to her employer despite advice she received from the Director of Operations and Performance at the National Probation Service dated 17 February 2010;
2. Misled the (school’s) investigation by stating that she had been advised that there was no reason for her to disclose the fact of her relationship to her employer;
3. Failed to demonstrate insight into how her relationship with a convicted sex offender might have impacted upon her role as Head Teacher;
4. Her conduct at paragraphs 1 and 2 was dishonest.

In early January 2019, the appellant contacted the PCP to advise that whilst she intended to represent herself at the hearing, she was then unfit to do so. Solicitors instructed to act on behalf of the TRA corresponded with the appellant in an effort to investigate and understand the nature of her health difficulties and her stated unfitness to appear before the PCP. No such evidence was provided. The appellant was not in attendance when the case came before the PCP on 14 January 2019.

As would be expected, the PCP first considered whether it would be fair to proceed in the appellant’s absence. Having regard to the relevant caselaw and the circumstances of the case, the PCP determined that it would indeed be fair to proceed. The allegations were proven. An indefinite prohibition order reviewable bi-annually was imposed.

The appellant appealed against the decision under regulation 17 of the 2012 Regulations on two grounds, namely that:-

1. The decision to proceed in her absence was perverse;
2. The PCP’s conclusions in respect of the matters underpinning the prohibition order were flawed.

Whilst Mr Justice Swift dismissed the first ground of appeal, he was variously critical of the PCP’s confused and in places defective reasoning in support of its decision to proceed in the appellant’s absence, going so far as to query the unduly stringent nature of the test applied by the PCP, based on a his brief analysis of the relevant caselaw.

Similarly, and despite dismissing the second ground of challenge, Swift J was critical of the regulator’s mis-formulation of the allegations and the impact of this in terms of the evidence relied upon by the regulator in seeking to establish its case against the appellant before the PCP.

Despite these flaws, the judge held that the appellant was not disadvantaged, that the proceedings were fair and that the sanction imposed was proportionate when considering the serious nature of the case against the appellant and the attendant public interest and public confidence considerations in the aims of the regulatory process.

This case demonstrates, once more, that professionals who are unable to evidentially substantiate claims of unfitness to attend regulatory proceedings can, generally, expect the hearing to proceed in their absence and that such professionals can expect and would largely have limited grounds to complain about adverse outcomes.

Simon Connolly is a member of Park Square Barristers’ regulatory and public law team. Prior to transferring to the Bar in 2019, Simon practised in the professional regulatory field for over a decade as a solicitor. He is an experienced and accomplished professional regulatory advocate and has a well-developed knowledge and understanding of professional regulatory law and practice.

In February 2020, Simon was appointed to the Attorney General’s panel of regional counsel (C list). He is one of six such counsel in the regulatory and public law team (A,B and C lists), certain of whom have undergone the vulnerable witness training programme developed by the Bar Council in conjunction with the Inns of Court College of Advocacy (and others).

To instruct Simon or another member of the regulatory and public law team to act for a regulator or in the defence of a professional, please contact madeleine@psqb.co.uk on 0113 202 8603 or at ClerksRegulatory@psqb.co.uk.