Re a Teacher (Rule 14 Order): [2023] UKUT 39 (AAC) ; [2023] AACR 6
Upper Tribunal Administrative Appeals Chamber decision by Judge Ward on 1 February 2023.
Read the full decision in
Reported as [2023] AACR 6
Judicial Summary
Anonymity; Right to respect for private and family life; Judgments and orders; Publication; Jurisdiction; Professional conduct; Public interest; Disclosure Barring Service; Tribunal Procedure and Practice; Safeguarding Vulnerable Groups
The appellant, a teacher, had been cautioned for an offence involving a pupil. There had been no physical intimacy. The teacher had appealed to the Upper Tribunal (UT) against a decision by the Disclosure and Barring Service (DBS) to add her name to the adults’ and the children’s barred lists. The UT concluded that the decision contained mistakes of law and remitted it to the DBS. The UT also ordered that, under rule 14(1), there should be no disclosure or publication of any document or matter leading to identification of the appellant, her children or the pupil without the permission of a judge of the UT, as the pupil and the children had a reasonable expectation of privacy. The pupil was entitled to lifetime anonymity under the Sexual Offences (Amendment) Act 1992 section 1.
In concurrent proceedings before the second respondent regulator Teaching Regulation Agency (TRA), the TRA’s Professional Conduct Panel found the teacher guilty of unacceptable professional conduct and conduct that may bring the teaching profession into disrepute. The teacher had not appealed that decision. The secretary of state imposed a prohibition order. Under the Teachers’ Disciplinary (England) Regulations 2012 regulation 8(5), such decisions had to be published. The TRA was aware of the UT’s rule 14(1) order and submitted to the UT what it was proposing to publish, seeking confirmation that such publication would not breach the order.
The teacher expressed concern that the proposed publication would risk harm to her children unless it was anonymised or more heavily redacted. A further redacted summary decision was prepared by the TRA. However, the teacher was still named. A hearing was required regarding the extent of the rule 14(1) order.
The TRA argued that the legislation concerning teacher misconduct embodied Parliament’s view of the public interest and, for similar reasons to those articulated in Salih v Pensions Regulator [2018] UKUT 338 (TCC), [2018] 8 WLUK 330, rule 14 should not be capable of being used to override a statutory duty. The TRA further argued that the reach of the order should be confined to the UT’s own proceedings and that it was therefore sufficient to do as it had done in its summary decision, namely remove anything which would identify the teacher as being the person referred to in the UT’s decision.
In the UT’S view, Salih needed to be contrasted with Arch Financial Products LLP v Financial Services Authority [2012] 11 WLUK 946, where it appeared that the existence of statutory provisions requiring a measure of publication was not seen as precluding the exercise of the UT’s powers under rule 14. The UT further considered that rule 14 (1) (b) was not on its face qualified, but that did not preclude the need to consider its scope within its legislative context, namely the rules applicable to proceedings of a body which was a creature of statute. Section 25 of the Tribunals, Courts and Enforcement Act 2007 is limited in scope and did not operate to extend the UT’s jurisdiction. The extent of the UT’s order had necessarily to be confined to its own proceedings. Pierhead Drinks Ltd v Commissioners for Her Majesty’s Revenue and Customs [2019] UKUT 7 (TCC) followed, Arch Financial Products and Cokaj (Anonymity Orders: Jurisdiction and Ambit) [2021] UKUT 202 (IAC), [2021] Imm. A.R. 1562, [2021] 7 WLUK 776 considered. By issuing its decision in a form which would not enable those who were referred to in the rule 14(1) order to be identified as being involved in the UT proceedings in which the order was made, the TRA was not in breach of that order (see paragraphs 20-32 of judgment).
Held, that:
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if the Secretary of State publishes a decision in the form of the Summary Decision either as it stands or with addition of wording to indicate there was no suggestion that there had been any physical intimacy, there would not thereby be a breach of the Upper Tribunal’s rule 14 order.
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save as in [1], the Upper Tribunal has no jurisdiction over the Secretary of State’s decision to publish.
Last updated 24 November 2023 + show all updates
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Decision selected for reporting as [2023] AACR 6
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First published.