Keystone Law is pleased to announce that regulation barrister Marcus Lavell has achieved a landmark win in the Administrative Court, over the Secretary of State for Education.

In this case, Marcus has represented Mrs Pepe Hart, an award-winning former CEO and Headteacher of a Multi Academy Trust. Mrs Pepe Hart is currently fighting a referral to her professional regulatory body, the Teaching Regulation Agency (the TRA). The TRA is the regulatory body for all state registered teachers.

Once a referral is made, the TRA instructs a law firm to act as its Presenting Officer. The Presenting Officer investigates the case and puts its findings before a TRA Panel to decide the fate of the teacher under investigation, in this case Mrs Pepe Hart.

The Presenting Officer requested that a Case Management Hearing took place before a TRA Panel, submitting that a number of their witnesses should be considered “vulnerable”. The Panel’s Case Management decision found that a number of witnesses were “vulnerable” and therefore deserving of Special Measures when giving their evidence. If a witness is permitted special measures to give their evidence, they may not have to attend the hearing in person and may be able to give evidence over a video link or similar method. The teacher’s ability to challenge the evidence of a witness over a video link is severely hampered by the system; nothing is as effective as direct cross-examination in person at the hearing. As well as this, there is likely to be an element of prejudice to have witnesses complaining about a teacher’s treatment of them, being found to be “vulnerable” before the hearing even starts. To challenge these findings, Mrs Pepe Hart instructed Marcus to contest this decision by way of Judicial Review in the Administrative Court (part of the High Court). The Chambers-ranked Saima Hanif of 3 Verulam Buildings was instructed as Counsel.

Usually, the Administrative Court does not get involved with case management decisions of lower tribunals but, in this case, the Court made an exception. In granting permission to seek Judicial Review, the Administrative Court held:

While the panel’s decision was in the nature of a “case management” decision, a person the subject of a disciplinarian hearing should not lightly be deprived of being able to see those who accuse her of misbehaviour face to face.

And:

There was no explanation by any of those witnesses of why they said they felt unable to give evidence in the same room as the claimant.

Initially, the Secretary of State resisted the challenge; however, when the time came to file their Detailed Grounds of Resistance, the SOS failed to file any substantive case, instead purporting to withdraw the Panel decision. Marcus and his team immediately challenged this. Given the Secretary of State’s weak position, they entered into settlement discussions and an agreed Consent Order was put before the Court by both parties. In the Order, the Secretary of State accepted that “the Decision is unlawful” and that in concluding that [the named witnesses] were vulnerable within the meaning of paragraph 4.71 of the Guidance … the [Secretary of State/TRA Panel] erred in law …”.

Case management decisions such as the one Mrs Pepe Hart appealed shape the way final hearings ultimately play out and have a significant effect on the outcome. Without taking control of the process, someone subject to such regulatory proceedings could find themselves in a terribly disadvantaged position come their actual hearing. The difficulty in challenging such decisions is that the Administrative Court has historically indicated that case management should be left to the regulator itself, and not interfered with by the courts. Marcus and his team managed to make their case an exception to the Court’s usual position. This will likely make the TRA reconsider its official Guidance for Panels (they are already working on a revised “Witness Charter”) when considering the issue of vulnerability.

The big question is how distressed would a professional now feel if they had a sanction imposed by their regulator as a result of witness evidence given through Special Measures when they felt such measures should not have been imposed? Not everyone can afford to take the fight to the Administrative Court and that is why the regulators have been so bullish in making these decisions.

This case represents a significant victory for the individual’s right to due process, over the State’s overzealous, unreasonable and often unfair implementation of its regulatory functions. The main outcome from this case is that if you are currently facing regulatory proceedings, don’t simply go with the flow as the system moves around you and lines you up to be shot. It is possible to challenge the system and win, as this case demonstrates.