Disclosure failures in disciplinary proceedings
Anwar v National College for Teaching & Leadership [2016] EWHC 2507 (Admin), Phillips J
The Appellants successfully appealed the finding of the National College for Teaching & Leadership ("NCTL") that each had been guilty of unacceptable professional conduct following a "Trojan Horse" investigation. The case is likely to be of interest to regulators and practitioners involved in separate sets of related disciplinary proceedings with the same underlying facts; Phillips J's judgment, highlights the need for a careful assessment of disclosure of materials between the two (or more) cases.
Disciplinary proceedings
The NCTL brought two sets of disciplinary proceedings against staff at Park View High School ("the School"), following claims made in a "Trojan Horse" letter alleging undue Islamic influence at certain schools. The first was against two teachers, the Appellants, and the second was against five members of the School's Senior Leadership Team (“the SLT”). The specific allegations in the two cases are superfluous for the purpose of this blog, but they broadly related to the same subject matter, such as segregation by gender, the suggestion of an undue Islamic influence in assemblies and the recruitment of a Deputy Head who would further an "overly religious agenda".
The two cases were progressed concurrently by the NCTL. In the course of the SLT proceedings, each of the five individuals served substantial witness evidence, including an expert report aimed at addressing what constituted an "undue amount of religious influence" in the context of a state school with a majority of Muslim students. None of the material served by the SLT to the NCTL was disclosed to the Appellants in the course of the pre-hearing proceedings.
The two disciplinary were heard by different Panels of the NCTL at effectively the same time in/around October 2015 (while the case against the Appellants was concluded in February 2016, the case against the SLT is ongoing). During the course of the Appellants' hearing, they made an application to their Panel for disclosure of documents served to the NCTL in the course of the separate SLT proceedings. The Panel refused the application on the grounds that it was made too late. Following the Panel's adverse findings, the Appellants were made subject to an order prohibiting them from teaching indefinitely.
The Appeal
The Appellants referenced the inherent unfairness in the NCTL's decision to proceed first against them, separately from the SLT. They identified that there was significant overlap in the issues at the heart of both proceedings (i.e. religious influence in the school as a whole and the agreement between the teachers and governors in that regard) and that it was unfair to determine the charges against the Appellants, prior to making any findings against the SLT. They also claimed that the NCTL should have disclosed materials in the SLT case, including the statements and expert report on the basis they would have assisted their own case.
Phillips J found in favour of the Appellants. He expressed 'considerable doubt' as to the fairness of proceeding first against the Appellants, before the hearing against the SLT members was concluded. However, he found that having chosen to pursue these separate proceedings, the NCTL had been obliged as a matter of fairness to disclose any material from each case which might assist, or damage the other. He also found that in the absence of voluntary disclosure of this nature, the Panel should have directed that it be given. It was held that the failure of the NCTL to give, or the Panel to order, such disclosure amounted to a serious procedural irregularity and as such both appeals were allowed.
This will clearly have profound consequences for any members of professional bodies who are the subject of proceedings which may be impacted by the proceedings of another case. Similarly, disciplinary bodies will have to ensure they tread carefully with disclosure matters, and have full oversight of materials served in all related proceedings. We would be happy to advise on such matters.