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Cite as: [2000] EWHC Admin 416

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QUEEN and HERTFORDSHIRE COUNTY COUNCIL Ex parte A [2000] EWHC Admin 416 (10th November, 2000)

Case No: CO/464/2000
Royal Courts of Justice
Strand, London,
Friday 10th November 2000

B e f o r e :

Ex parte A

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Mr Patrick Ground Q.C. (instructed by Park Nelson for the Applicant)
Mr. Timothy Brennan (instructed by Andrew Laycock, County Secretary for the Respondents)
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As Approved by the Court
Crown Copyright ©

1. The Applicant was appointed head teacher at a School ("the School") in April 1995. The School serves the needs of secondary aged boys who have been excluded from mainstream education because of their emotional and behavioural problems. The responsible local education authority is Hertfordshire County Council ("the Council"). On any fair appraisal of the material before me, it is impossible to escape the conclusion that the Applicant is a talented, hardworking and innovative educationalist in a difficult area. However, in November 1999 a disciplinary panel of the Governors of the School recommended his dismissal and a meeting of the Council's social workers concluded that there was sufficient information to form a belief that there is reasonable cause to believe that the Applicant poses a risk of significant harm to children in his care. In this application for judicial review, the Applicant seeks to challenge both the recommendation of the Governors and the conclusion of the social workers.
2. There is no doubt that the circumstances which triggered the concerns of the Governors and of Social Services began with an allegation by a former pupil, to whom I shall refer as B, that the Applicant had indecently assaulted him on an occasion in July 1998 (at which time B was aged 17 and no longer a pupil at the school). The allegation was that the incident had occurred on the Applicant's canal barge. In May 1999 the Applicant was acquitted by the unanimous verdict of a jury at Wood Green Crown Court. Following his acquittal, Social Services, in conjunction with police officers and other child protection professionals, returned to their concern, which had begun in July 1998, that the police investigation disclosed other occasions on which the Applicant had taken pupils to his barge, sometimes without the presence of any other adult. Apart from B, no one else had made an allegation of sexual impropriety. Between June and November 1999 a number of meetings took place, attended by social workers, police officers and other professionals, culminating in the conclusion in November to which I have referred and which is challenged in these proceedings.
3. The involvement of the School Governors goes back to August 1998 when, uncontroversially, they suspended the Applicant following the receipt of information about the police investigation. The suspension and, until his acquittal, bail conditions gave rise to difficulties not least because the Applicant and his wife had been living in accommodation in the grounds of the School, which operates on a weekly boarding basis for the pupils. Following the acquittal, on 26 May 1999 the Governors maintained the suspension and asked Dr. Martin English, the area personnel manager for the local education authority, to carry out an investigation into a number of complaints. They included B's allegation of indecent assault (which B was maintaining) but the majority of the complaints related to taking pupils to the barge unaccompanied by a second responsible adult. There was no other allegation of an indecent act, notwithstanding a detailed investigation. In due course Dr. English reported. As regards B's allegation, Dr. English, having considered a number of matters which affected B's credibility, opined that "it would be difficult not to conclude that there must be a high probability that B is lying". However, in relation to other matters, he said:
"[The Applicant] has repeatedly placed himself in positions of risk (in the case of the barge, despite specific instruction). The odd error of judgment might be understandable. But this behaviour in a trained and experienced Head is not comprehensible, even if the explanation were to be put forward that these are simply repeated errors of judgment. Governors must ask themselves whether these repeated patterns of behaviour are acceptable and compatible with the professional role and conduct of a Headteacher."
By this time, the Chairman of the Governors was Mr. Phil Pennington. After he had digested Dr. English's report, he set in motion the disciplinary proceedings. In a letter dated 23 September 1999 he wrote to the Applicant referring to eleven complaints and describing each of them as "an allegation of gross misconduct, which could, if proved, result in your dismissal" The complaints were as follows:
"Complaint 1
In or before July 1996 you failed to report incidents of sexual activity involving B, H, L and C to the Social Services Team responsible for Child Protection referrals and failed to report the incident to those with parental responsibility for the boys involved.
Complaint 2
In or before January 1998 in contravention of the written School Journeys Policy you took pupils onto your barge without appropriate planning and without a second responsible adult to accompany you.
Complaint 3
In disregard of a clear written instruction from the Local Education Authority, agreed by you in writing, you spent the night of 14 to 15 May 1998 on your barge with a group of four pupils (R, C, K and E) but without a second responsible adult to accompany you.
Complaint 4
In disregard of a clear written instruction from the Local Education Authority, agreed by you in writing, you spent the night of 19 June 1998 on your barge with two boys, E and L, but without a second responsible adult to accompany you.
Complaint 5
In disregard of the School Journeys Policy you took a pupil, C, on two weekend barge trips, without a second responsible adult to accompany you, on unknown dates, but probably in May and July 1998.
Complaint 6
In disregard of a clear written instruction from the Local Education Authority, agreed by you in writing, on 15 to 16 May 1998 you took pupils (C, T, S and J) on barge trips without a second responsible adult to accompany you. Instead you took a former pupil, DB (aged 17), who did not fall within the description of acceptable responsible adults which you had agreed in writing.
Complaint 7
In disregard of a clear written instruction from the Local Education Authority, agreed by you in writing, on 6 to 7 June 1998 you took pupils (C,E,C, T and R) on a barge trip without a second responsible adult to accompany you. Instead you took a former pupil, ML, who did not fall within the description of acceptable responsible adults which you had agreed in writing.
Complaint 8
On various occasions from April 1998, in disregard of a clear written instruction from the Local Education Authority, agreed by you in writing, you took pupils (in particular, L and K) on such barge trips without written permission having been obtained from their parents.
Complaint 9
In disregard of an express instruction from the Local Education Authority, you failed to maintain and keep a complete and accurate written record of barge trips taken by pupils noting the dates on which journeys occurred and the names of pupils and accompanying adults.
Complaint 10
You took a former pupil B (aged 17) alone with you for an overnight stay on your barge during the night of 10 to 11 July 1998, which was not compatible with your professional role and status.
Complaint 11
Your level of involvement with a pupil, R, was not compatible with your professional role and status in that
(a) you planned, paid for and shared a hotel bedroom overnight with R and RB on an unknown date probably in November of December 1996
(b) you took R alone on a barge trip or trips from Friday to Sunday on unknown dates in 1997 or 1998."
It is to be observed that a number of the complaints referred to written instructions from the Local Education Authority which had been agreed by the Applicant in writing. This agreement preceded the allegation by B. In January 1998 Dr. Mongon, the Head of Professional Development Advice and Support in the Education Department, had discussed with the Applicant matters relating to his having taken pupils to his barge. Dr. Mongon was concerned that there had been occasions when the Applicant had been the only adult present and occasions in respect of which the Applicant had not had written parental permission. Dr. Mongon and the Applicant agreed that there should be no repetition of this and on 28 January 1998 Dr. Mongon said in a letter that the applicant should "regard this as an instruction". They agreed that some rules should be worked out for the use of the barge and on 21 April 1998 the Applicant wrote to Mr. Gibbs of the Education Department confirming his agreement to a protocol "for the use of my barge....for school journeys:
1. Permission of parent (and social worker, where relevant) will be obtained in writing for each journey
2. A second adult will accompany each trip. The selection of second adult will vary, and include Chairman of Governors, Deputy Head and family members who are/have been employed by (the Council) and are cleared by Child Protection Procedures.
3. A record will be maintained at school noting the dates on which journeys occur, with names of pupils and adults."
4. In due course I shall have to refer to a number of factual matters concerning the disciplinary procedure. At this stage I simply refer to the fact that a disciplinary hearing took place on 9 and 10 November 1999. The outcome was announced at the end of the hearing and confirmed in a letter to the Applicant dated 11 November 1999. Although the letter is a little opaque in places, it seems that Complaints 1, 2, 5, and 10 were not found proved. However, Complaints 3, 6, 7,8, 9 and 11 were found proved and to be cases of misconduct whilst Complaint 4 was found proved and to amount to gross misconduct. The disciplinary panel recommended that the Applicant be dismissed. The finding of gross misconduct and the recommendation of dismissal, at least, were by a majority of two to one.
5. The Applicant has set in motion an appeal from the disciplinary panel to an appeal panel but that appeal has been put into suspense by reason of his application for judicial review. It is important that I should emphasise that the challenge to the disciplinary panel does not seek to establish that its conclusions in relation to any of the complaints or its recommendation of dismissal was an unreasonable (in the public law sense) decision. Mr. Ground QC was at pains to point out that that is not his case. In these circumstances, it is not necessary for me to go into detail about the allegations underlying the complaints. However, since Complaint 4 was the only one in which a finding of gross misconduct was made, I ought to say a little more about it.
6. Originally the mother of one of the two boys had given her consent for her son to spend the night on the barge with the mother herself as second adult. However, on the day of the trip, the mother decided not to go to the barge but to go to a party instead. She then arranged for her son to stay the night at the home of the other boy. Later on, the Applicant went to the home of the other boy and proceeded to take both boys to the barge for the night without further reference to the mother. There was no second adult present on the barge. In the course of the disciplinary hearing reference was made to the Applicant having "unscrambled" the arrangements which had been made by the mother. This word has generated much heat. However, it seems to me that the reasons which caused the disciplinary panel to view complaint 4 as more serious than any of the other complaints would have been present with or without the use of the word "unscrambled".
7. Before I leave this brief outline of the facts which I shall have to augment when dealing with some of the grounds of challenge, there is another part of the history to which I must refer.
8. From his arrest until his acquittal at the Crown Court, the Applicant was on bail. Initially, the bail conditions were unobjectionable as far as he was concerned. They were subsequently made stricter to the extent that he was unable to live at home in the grounds of the School even at weekends and other times when there were no pupils on site and he was forbidden to enter Hertfordshire. On one of the occasions when this variation was effected Mr. David Gibbs of the Council's Education Department gave evidence to the magistrates. It is the Applicant's case that Mr. Gibbs's evidence, referring to the views of certain members of staff, was untrue. The Applicant and the then Chairman of the Governors, Mrs. Hilary Rost, took and continue to take the view that this was all part of a devious and malicious plan to pressurise the Applicant into resigning. Mr. Gibbs maintains that his evidence was given in good faith and was true. There was also a dispute among the Governors, some of whom criticised Mrs. Rost for writing to the Court in favour of less stringent conditions. In fact, she never did write to the Court to that effect although it seems likely that on one occasion she had written something which the Applicant's solicitors referred to in the course of the hearing about bail conditions. There was a yet further dispute when Governors were critical of Mrs. Rost for not having written a promised letter to the Court to set the record straight. This saga eventually led to the Governors passing a motion of no confidence in Mrs. Rost, whereupon she was succeeded as Chairman by Mr. Pennington. I shall have to make further reference to this when I consider certain issues later. I mention it at this stage and in this abbreviated form because it loomed large in some of Mr. Ground's submissions. However, save to the extent that I shall refer to it later, it is in my judgment an irrelevant side-show. I am not satisfied that it is evidence of bad faith on the part of Mr. Gibbs or any of the Governors who became critical of Mrs. Rost.
9. It is next necessary for me to mention two preliminary issues before turning to the grounds of challenge.
Preliminary issue (1): exhaustion of remedies
10. It is apparent from what I have already said that neither in relation to the Social Services investigation nor in relation to the disciplinary procedure has the Applicant awaited internal finality before applying for judicial review. The Director of Social Services has not yet decided what to do in the light of the conclusion of the "beliefs" meeting and the disciplinary appeal has not been heard. I mention this simply to record that, on behalf of the Council, Mr. Brennan made it clear that he was taking no point about exhaustion of remedies.
Preliminary issue (2): cross examination
11. At a hearing before Harrison J on 26 September he adjourned to the substantive hearing before me an application by Mr. Ground that there be cross-examination of the Council's witnesses. I did not accede to that application at the inception of the hearing or when I reconsidered it later. Cross-examination is exceptional in applications for judicial review, even though conflicts of evidence are by no means unusual. In the present case some of the conflicts are of opinion or interpretation rather than of evidence and some of the conflicts of evidence are reconcilable or barely relevant. Where there remains a conflict of evidence, I am not persuaded that it justifies resort to cross-examination. I observe that, since I expressed the same view at the hearing, in The Crown v. Metropolitan Borough of Wirral, ex parte B (19 October 2000) Potter LJ said of a similar refusal of cross-examination (Transcript, paragraph 30):
" substantial grounds existed to query the bona fides of [the witness]. It is unusual for oral evidence to be taken in a case of this kind and, if it is to be ordered in relation to the bona fides of a witness, some substantial ground should normally be demonstrated to justify departure from the usual procedure."
This supports the view which I took of the application for cross-examination in the present case. Moreover, it is not without significance that, although there are serious allegations suggestive of bad faith in parts of the evidence, the actual grounds of challenge do not include an express allegation of bad faith.
This disciplinary panel and the appeal panel
12. The first ground of challenge relates to the composition of the disciplinary panel and the appeal panel. It is necessary for me to relate some more of the factual background. On 21 January 1999 the Governors resolved that the disciplinary panel should comprise Mr. Coleman, Mr. Jennings and Mr. Woodcock and that the appeal panel should comprise Ms. Bell, Ms. Harrison and Mrs. Smith. At that time, of course, the Applicant was under suspension and awaiting his trial in the Crown Court. Following his acquittal, Mr. Pennington, as Chairman of the Governors, wrote to him on 13 May 1999 "to confirm that the suspension from your duties as Head Teacher ...........will continue until further notice". It was explained that this was to allow for consideration of the evidence and for a decision to be reached about a possible disciplinary investigation. On 26 May the Governors notified the further continuation of the suspension. By this time, Mr. Woodcock had been replaced as a Governor by Mrs. English and the Governors resolved to reconstitute the membership so that the disciplinary panel should thenceforth comprise Mr. Coleman, Mr. Jennings and Ms. Bell and the appeal panel Mrs. English, Ms. Harrison and Mrs. Smith.
13 The Applicant appealed against his continued suspension and his appeal was considered by the disciplinary panel on 10 August. On that occasion, the members of the panel elected Mr. Coleman to be their chairman. The panel unanimously dismissed the appeal. On 23 September Mr. Pennington wrote to the Applicant to inform him that, following the investigation and report by Dr. English, he (Mr. Pennington) proposed to pursue eleven complaints before the disciplinary panel. The hearing was later arranged for 9 and 10 November and on 27 October, Mr. Pennington wrote to the Applicant to inform him that the disciplinary panel would comprise Mr. Coleman, Mr. Jennings and Mrs. Smith. The Applicant replied on 2 November saying:
"Your letter indicates a change of panel member from that agreed by the Governing Body (as minuted 26 May 1999). I have seen no minuted change since that date, so I assume you have taken executive action. I would appreciate some explanation of this."
The Applicant's suspicion that the replacement of Ms. Bell by Mrs. Smith had not been approved by the Governors was well-founded. However, at an emergency meeting which lasted some eight minutes on the morning of 3 November, the Governors, in the absence of Mr. Pennington, resolved upon the constitution of the disciplinary panel in the form which Mr. Pennington had notified on 27 October. The minutes record the resolution as having been passed unanimously, although Mrs. Rost maintains that she did not vote. At the same time, the Governors appointed an appeal panel of Mrs. English, Ms. Harrison and Mrs. Middleton.
14. It is apparent from internal documents that, prior to his letter of 27 October, Mr. Pennington had discussed the composition of the disciplinary panel with Dr. English who had in turn taken the advice of Mr. Laycock, the County Secretary. Dr. English had written to Mr. Laycock on or before 25 October in the following terms:
"Previous advice.....was that Governors should be as impartial and with as little previous knowledge of the case as possible. But, given that it was a small community and Governing Body, we must do our best with the people available. I have spoken at length with Phil Pennington and list below my understanding of the position."
There followed a list of the ten current Governors with comments about their eligibility. Mr. Pennington was considered ineligible because he had made the complaints which were the subject of the disciplinary proceedings. Also considered ineligible were Mrs. Rost because she was thought to be prejudiced in the Applicant's favour; Mr. Cole, the Head of Care in the School, because he was thought to be prejudiced against the Applicant; and Ms. Bell "mother of RB, who figured in Complaint 11". Of the remaining Governors, Mr. Coleman and Mr. Jennings attracted the comment: "no known connection or involvement"; Mrs. Middleton's son was referred to in Complaint 4 but had not been interviewed by Dr. English or the police; Mrs. English's son had been interviewed by the police but was not interviewed by Dr. English and did not feature in his report; Mrs. Smith has a son who had been interviewed by the police and was named in Complaints 6 and 7 but had not been interviewed by Dr. English and "does not really feature in this case"; and Ms. Harrison, a teacher at the School, was (like Mrs. English and Mrs. Middleton) on the appeal panel. Dr. English referred to the fact that it was possible to co-opt one more Governor from industry and added:
"I assume [Pennington, Rost, Cole and Bell] are debarred.
The members of the....panel agreed so far are Brian Jennings and Ken Coleman. The Chairman proposes to approach Joanne Smith as the third member. Can this be agreed please? (Mrs. English apparently is not available on the hearing dates). Can you also confirm that the second group of six names are eligible - or, if not, that we need to start co-option arrangements."
On 25 October Mr. Laycock replied in the following terms:
"The key provision is the Education (School Government) Regs rules out anyone where
(1) there is a conflict between the interests of the governor and their duties as a governor; or
(2) there is any reasonable doubt about the governor's ability to act impartially.
I think I agree with your conclusions about the particular governors but why not tell Hooper and co the names in advance so giving him the chance to object?
I'd prefer to minimise the problem by co-opting to the vacancy in time to use that person at the appeal.
The Regs would allow the panel to be two members provided the appeal panel was 3. But I don't think that's desirable - the obvious challenge is that whoever chairs it decides the case because of their casting vote."
15. Mr. Pennington puts all this in context in his witness statement, in which he describes becoming concerned about the position of Ms. Bell in view of her son's implication in Complaint 11 which was "one of the more serious of the .....complaints"; seeking advice from the Education Department; and requesting that legal advice be taken to confirm the position. That, it seems to me, is what happened. Dr. English reported back to Mr. Pennington on 26 October and that gave rise to the sequence of events which I have described as taking place between 27 October and 3 November. The outcome of the Governors' meeting on 3 November was confirmed to the Applicant by a letter dated 5 November. There was a further exchange of letters between the Applicant and Mr. Pennington on 8 November but it added little to what I have recounted. At the hearing on 9 and 10 November, when the Applicant was represented by Counsel, no objection was made as to the membership of the disciplinary panel.
16. Against this background, Mr. Ground made lengthy submissions about the composition of the disciplinary panel. In particular, he challenged the impartiality or apparent impartiality of Mrs. Smith and Mr. Jennings. In this regard, it is not necessary to establish actual bias. The test is whether, having regard to all the circumstances, there was a real danger of bias on the part of a member, in the sense that he or she might unfairly have regarded with favour, or disfavour, the case of one side or the other: Regina v. Gough [1993] AC 646, HL. With this in mind, I turn to the complaints made about Mrs. Smith and Mr. Jennings.
(1) Mrs. Smith
17. The first basis upon which Mr. Ground sought to challenge Mrs. Smith's appointment to the disciplinary panel was that it was brought about not by the Governors but by Mr. Pennington and officials of the Council. It is apparent from the history that I have related that Mr. Pennington, Dr. English and Mr. Laycock were involved initially in considering the composition of the panel with a view to avoiding partiality. Mr. Ground's submission was that, as Mr. Pennington was effectively the complainant in the proceedings and the Council's officials were responsible for conducting them, this involved a breach of natural justice. I do not accept this submission. The disciplinary procedure confers much of the initial authority on the Head Teacher but expressly provides that when it is the Head Teacher himself who is the subject of the allegation, it is for the Chairman of the Governors to carry out the functions of the Head Teacher. This is essentially what Mr. Pennington was doing. The procedure provides (paragraph 3.3):
"At every stage, bearing in mind the particular sensitivity here, the Chairman is advised to keep in close contact with Education Personnel."
That is what Mr. Pennington was doing when he liaised with Dr. English, who quite properly took the advice of Mr. Laycock. Mr. Ground was correct to observe that initially, in his letter to the Applicant on 27 October, Mr. Pennington was not acting in accordance with the procedure because it was for the Governors to determine who should be on the panel. However, this defect was cured when the Governors, in the absence of Mr. Pennington, unanimously (or at least, nemo contra) voted on the membership on the morning of 3 November.
18. The second submission advanced by Mr. Ground was that the resolution of 3 November was simply a whitewashing exercise. That, in my judgment, is an unsustainable submission. The meeting was chaired by Ms. Bell who is acknowledged by the Applicant to be an independent - minded person. Others present included Mrs. Rost, who is both strong minded and favourably disposed to the Applicant, and Mr. Coleman, the chairman of the disciplinary panel and a person of whom the Applicant makes no criticism. The fact that Mrs. Rost and Mr. Coleman have subsequently been critical of the composition of the panel does not detract from the fact that it was approved by a properly convened meeting at which they voted in favour of it (or, perhaps in Mrs. Rost's case, abstained).
19. Mr. Ground's third submission was that the replacement of Ms. Bell by Mrs. Smith was engineered by Mr. Pennington and the Council officials, because, consciously or unconsciously, they felt that Ms. Smith "was more predisposed in favour of dismissal" than Ms. Bell - in other words, that the composition of the panel was rigged. Whatever those who disagree with the outcome of the disciplinary hearing may now say, I am entirely satisfied that this grave allegation is completely unfounded.
20. This brings me to Mr. Ground's complaints against Mrs. Smith in personam. They can be summarised as follows. First, that in relation to the saga about Mrs. Rost, Mr. Gibbs and the Applicant's bail conditions, up to and including the votes of no confidence in Mrs. Rost, Mrs. Smith consistently spoke and voted in the way most at variance with the Applicant's interests. She was one of the hawks and not one of the doves. Secondly, when the possibility of disciplinary proceedings had first been considered by the Governors on 21 January 1999, Mrs. Smith had herself expressed doubts about her impartiality. It seems that the reason for this was that her son had been one of the pupils on the barge trip referred to in complaints 6 and 7. Thirdly, when the disciplinary panel eventually retired to deliberate, Mr. Coleman states that Mrs. Smith expressed strong views that the Applicant should be dismissed and ignored his desire to discuss mitigating circumstances. By referring to these three points I have drawn together a number of complaints articulated by Mr. Ground and, in the interests of conciseness, set them out in this way in the belief that they fairly summarise the essence of his submissions without descent into more detail than is necessary.
21. The fact that Mrs. Smith took and expressed the views that she did in relation to the Applicant's bail conditions and the position of Mrs. Rost seems to me to have no bearing whatsoever on her suitability to serve on the disciplinary panel. Her expressed concern about her impartiality has to be seen in context. Her concern was clearly as to whether the fact that her son had been interviewed by the police in the course of the investigation and, by implication, might be mentioned in any disciplinary proceedings, put a question mark against her impartiality. The minutes of the meeting of 21 January go on to state:
"If need arose, [acting] Head Teacher would ask investigating officer to check her son's statement and advise on impartiality. Both parent governors' children had been interviewed and therefore may not be impartial. [Clerk's note: subsequent legal advice is that both parent governors can be considered impartial]".
When the subject was revisited in October, Mr. Pennington, Dr. English and Mr. Laycock had this issue very much in mind. By then the charges had been formulated. The view was taken that as Mrs. Smith's son had not been interviewed by Dr. English in the course of his investigation and, notwithstanding his being mentioned in complaints 6 and 7, he did not feature in the case in the same way as Ms. Bell's son who was involved in complaint 11 which was reasonably seen as being a more serious matter. There were factual issues in relation to complaint 11 but not really in relation to complaints 6 and 7. In my judgment, the uncontroversial position of Mrs. Smith's son was not such as to cause her to fall foul of the principle set in Gough. Moreover, the position of the Applicant on this issue is somewhat inconsistent. His basic complaint is that Ms. Bell was replaced by Mrs. Smith. If Mrs. Smith was objectionable, then the same should surely apply to Ms. Bell. Also, the father of Ms. Bell's son was called as a witness on behalf of the Applicant at the hearing, whereas the Applicant says that that would not have been done if Ms. Bell had been on the panel. To that extent the eventual composition of the panel was advantageous to the Applicant.
22. I do not feel able to make any factual findings which support the contention that Mrs. Smith lacked impartiality in the course of the panel's deliberations. Although Mr. Coleman claims that his request for a discussion of mitigating circumstances was ignored, that is not consistent with the statement of Mrs. Morgan, a solicitor employed by the Council, that there was a very careful discussion in which Mrs. Smith and Mr. Jennings acknowledged the Applicant's considerable contribution to the School. The fact that, in the course of a five hour deliberation, Mrs. Smith expressed strong views in favour of a recommendation of dismissal is not indicative of partiality.
23. Looking at Mr. Ground's various submissions (including those which I have not specifically mentioned) separately and cumulatively, I have come to the conclusion that there can be no legitimate criticism of the inclusion of Mrs. Smith on the disciplinary panel. It is has not been established that she was afflicted by actual bias, nor that there was a real danger of bias in the Gough sense.
(2) Mr Jennings
24 The suggestion that Mr. Jennings was not impartial is made to a large extent by reference to his attitude towards Mrs. Rost. He had been critical of her over the saga of the Applicant's bail conditions and she inferred that he took a hard line over what bail conditions were appropriate. On 14 March 1999 he wrote to his fellow Governors, calling an extraordinary meeting with a single item on the agenda, namely a resolution to remove Mrs. Rost as Chairman on a vote of no confidence. He explained this in the following terms:
"I have in recent months been very concerned that the Chair of Governors has been making important decisions, using my position as Governor.....without informing me. It is my opinion that some of these decisions are not in the best interests of [the] School, the teaching staff, the care staff and the boys."
In due course he spoke to his motion at a meeting on 25 March and no doubt voted in favour of it, as he did again when the Governors reconsidered the matter on 26 April. On that occasion someone had moved an amendment to the effect that the resolution should be postponed so as to obtain clarification from the Magistrates Court about correspondence in relation to bail conditions. It seems that Mr. Jennings voted against that amendment.
25. The saga concerning the Applicant's bail conditions was an unhappy one. However, I find it impossible to infer that, in relation to it and to other matters about which he was expressing concern over Mrs. Rost, Mr. Jennings was manifesting a lack of impartiality towards the Applicant. He was expressing concerns with which most of his colleagues, by their votes, agreed. This is no basis for impugning his impartiality in relation to the disciplinary hearing.
26. The Governors had first discussed disciplinary proceedings long before the Applicant's acquittal. I have already referred to a meeting of the Governors on 21 January 1999. According to Mrs. Rost, on that occasion Mr. Jennings, when referring to a future disciplinary hearing, said:
"That's where we get to tell him off for not keeping to the rules, is it?"
It is fanciful to suggest that such a remark in January was indicative of partiality rendering Mr. Jennings unsuitable to serve on the disciplinary panel in November.
27. It is also suggested that Mr. Jennings manifested partiality in the course of the disciplinary panel's deliberations. The source of this suggestion was the witness statement of Mr. Coleman to the effect that when he raised the question of mitigating circumstances he was ignored by Mrs. Smith and Mr. Jennings. As I have recounted earlier, the evidence of Mrs. Morgan, who was present during the deliberations, is to the effect that Mrs. Smith and Mr. Jennings "acknowledged [the Applicant's] considerable contribution to the School". It is apparent that the deliberations became fractious and that the panel divided, with Mr. Coleman in the minority. However, as I have stated in relation to Mrs. Smith, the evidence looked at as a whole does not persuade me that the majority lacked impartiality or that it establishes a real danger of bias.
Ms. Harrison
28. In addition to the challenge to the impartiality of Mrs. Smith and Mr. Jennings on the disciplinary panel, Mr. Ground submitted that Ms. Harrison is an inappropriate member of the appeal panel. As no decision has been taken upon the disciplinary panel's recommendation of dismissal and the appeal against it, although instigated, has not yet been heard, it has to be said that the position of Ms. Harrison on the appeal panel is not obviously a matter which goes to the decisions presently under challenge. However, I permitted Mr. Ground to develop his submission on the basis that, as he put it, the position of Ms. Harrison was symptomatic of a wider malaise whereby both panels had been packed with members who could be relied upon to reach a desired conclusion. The criticisms of Ms. Harrison were: that, as a member of the School staff subordinate to the Applicant, it is inappropriate for her to be a member of the panel; that, in her capacity as the School's child protection officer, she was in regular contact with Social Services and the police officers with child protection responsibilities; and that she had been strongly opposed to Mrs. Rost at the time of the votes of no confidence, at one point referring to her as a liar. None of this disposes me to the view that she owes her position on the appeal panel to some devious grand design or that, if I were now considering a decision of the appeal panel, these factors would cause me concern about a lack of impartiality.
29. Before moving on from this part of the case it is appropriate for me to say something about impartiality in procedures such as these generally. It is in everyone's interests that allegations of misconduct in the context of employment are first investigated within the organisation. It is also good employment practice. It is inevitable, particularly in relatively small organisations, that one or more, or often all of a disciplinary panel will have some previous knowledge of what is alleged. Indeed, it may be impossible to constitute a panel, none of whom has had previous contact with the issue or none of whom has expressed an opinion about it at some stage. In the present case, the panel had to be selected from the Governors and, by November 1999, the Governors had been dealing with the position of the Applicant, in one form or another, for well over a year, sometimes in a highly charged atmosphere. In such circumstances, a degree of pragmatism is inevitable. That is why, in a particular case,
"a person who is subject to disqualification at common law may be required to decide the matter if there is no other competent tribunal or if a quorum cannot be found without him....Necessity may also play a part in excusing an appearance of bias where it would not be impossible for anyone else to make the decision but where the particular administrative structure makes it inevitable that some appearance of bias will occur."
(de Smith, Woolf & Jowell, Judicial Review of Administrative Action, 5th edn, pp 544-545)
In the present case, great care was taken to exclude those Governors who had clearly manifested partiality, one way or the other. The eventual composition was not inevitable. It would have been possible to proceed with a panel of two rather than three (Education (School Government) (England) Regulations 1999, regulation 47 (6)), but it was reasonably considered in the present case that that might lead to problems. Co-option of a further Governor was a possibility, was considered, and was reasonably rejected. In my judgment, the constitution of the disciplinary panel, whether or not it resulted from necessity in the strict sense, was reasonable and appropriate. Its constitution and its subsequent performance are subject to the supervisory jurisdiction of this court. I am not satisfied that, having regard to all the circumstances, there was a real danger of bias on the part of any member of the panel, in the sense that he or she might unfairly have regarded with favour, or disfavour, the case of one side or the other. In other words, the Applicant has failed the Gough test.
The presence of a second adviser at the disciplinary hearing
30. When Mr. Pennington wrote to the Applicant on 27 October 1999 informing him of the identity of the Governors who would constitute the disciplinary panel, he added:
"The Director of Education's representative advising the panel will be Ray Williams and I have also asked for the panel to have a legal adviser, who will be Carolyn Morgan, County Secretary's Department."
On 2 November the Applicant replied, contending that the disciplinary procedure does not allow for two advisers. He drew attention to a provision in the procedure in these terms:
"An Area Personnel Manager can be present to assist in ensuring that procedure and good employment practice are observed and in giving advice to those hearing the case."
It is true that the procedure does not mention a legal adviser. Mr. Pennington replied by a letter dated 5 November, stating:
"In terms of advice to the panel, I have been concerned for some time, given the background to this disciplinary case, that there could be legal issues or points of law or procedure arising which would benefit from the advice of a lawyer. For that reason the County Secretary agreed to my request to provide the panel with legal assistance. I believe this can only assist the panel in reaching a proper conclusion; however if you object to this please let me know as soon as possible."
There was a further exchange of correspondence on 8 November, the Applicant indicating that he would draw the matter to the attention of his counsel.
31. What occurred at the disciplinary hearing is not entirely clear. According to the Applicant, his counsel (not Mr. Ground) objected but the objection was not acceded to, Mrs. Morgan, in her witness statement, states that she was instructed by the County Secretary that if the Applicant's objection to her presence was maintained at the hearing, she was to withdraw immediately. Her evidence is that the Applicant's counsel "put his views but did not ask that I withdraw". The witness statement of Mr. Williams does not take the matter much further. Nor indeed does that of Mr. Coleman. Mr. Williams' contemporaneous notes refer to the Applicant's counsel asking for a note to be made of any legal advice given. The Applicant's counsel at the disciplinary hearing has not provided a witness statement. The recollection of Mr. Brennan, who appeared both at the disciplinary hearing and before me, is that no objection was taken to the presence of Mrs. Morgan as legal adviser but that a question arose as to whether the Applicant and his counsel could be informed of the content of any legal advice given by Mrs. Morgan.
32. I am doubtful whether, in the strict sense, counsel did object to Mrs. Morgan's presence. If such an objection had been clearly made, one would expect to see a reference to it in the contemporaneous notes of Mrs. Morgan and/or Mr. Williams and one would also expect that Mrs. Morgan, upon hearing such an objection, would have complied with the prior instruction of the County Secretary "to withdraw immediately". However, even assuming that the point was taken by counsel but not acceded to by the disciplinary panel, I am wholly unpersuaded that a ground of challenge can now be founded on Mrs. Morgan's presence. Although not expressly referred to in the disciplinary procedure, I do not consider that to have a solicitor present as a legal adviser was a matter of procedural impropriety. Nor do I consider that any unfairness was occasioned to the Applicant by her presence.
33. In addition to his contention that the mere presence of Mrs. Morgan was in itself a matter of procedural unfairness or impropriety, Mr. Ground submitted that various other manifestations of unfairness flowed from it. One of these complaints was that Mrs. Morgan was not an independent legal adviser because she is an employee of the Council. I do not consider that to be a matter of legitimate complaint. If, as I have held, it was lawful for the disciplinary panel to have a legally qualified person present to provide legal advice, there can be no objection to that role being discharged by an in-house solicitor rather than someone in private practice. I reject the submission that her presence jeopardised the independence of the panel. Mr. Ground attempted to support his submissions about independence by reference to article 6 of the European Convention on Human Rights and the right to a fair trial before an independent and impartial tribunal. Even if I assume in his favour that article 6 applies to internal disciplinary proceedings such as these (in my view, a very generous assumption), I do not consider that Mrs. Morgan's presence involved a breach. I simply do not agree with the submission that the presence of two Council employees as advisers for a panel of three members "tipped the balance" so that the panel could no longer be regarded as independent and impartial.
34. Another of Mr. Ground's complaints related to the advice given by Mrs. Morgan. However, on the two issues to which Mr. Ground referred, her advice accorded with what Mr. Ground rightly considered appropriate. These were that dismissal is not an automatic consequence of a finding of misconduct or gross misconduct and that it is appropriate to consider any mitigating circumstances.
35. Mr. Ground's further complaints in this area related to the dynamics of the deliberations of the disciplinary panel. It is apparent that, having heard the evidence and the submissions, the panel deliberated for about five hours. There are three accounts of those deliberations in evidence before me: those of Mr. Coleman, Mrs. Morgan and Mr. Williams. There are inconsistencies between Mr. Coleman, on the one hand, and Mrs. Morgan and Mr. Williams on the other. What seems clear is that, when complaint 4 was discussed, Mr. Coleman took a more benevolent view of it than his colleagues did. After that the discussions seem to have become somewhat fraught. It is not necessary for me to attempt to resolve all the differences of recollection and perception. What I can and do safely conclude is that nothing said or done, or omitted to be said or done, by Mrs. Morgan during the deliberations afflicted the fairness of the process. I do not consider that the decision was infected by conflicting advice from Mr. Williams and Mrs. Morgan. Clearly Mrs. Smith and Mr. Jennings concluded that complaint 4 involved gross misconduct but Mr. Coleman disagreed. In coming to their decision to recommend dismissal, the majority were entitled to have regard to have regard to the totality of what they found proved. Mrs. Morgan's recollection is that:
"The two panel members [viz. Mrs. Smith and Mr. Jennings] discussed their recommendation very carefully. They acknowledged Mr. Hooper's considerable contribution to the school but, given the seriousness with which they viewed Mr. Hooper's actions in countermanding a parent's arrangements, felt that a recommendation of dismissal was the only one they could make."
It is true that Mr. Coleman's evidence is that this account implies a more conscientious consideration of mitigating circumstances than he recollects - indeed, he maintains that they were not taken into account at all - but I do not feel able to proceed on the basis of a finding that he is correct about that. It is Mr. Coleman's view that the complaints against the Applicant were "relatively trivial" and that dismissal was "disproportionate to the panel's findings on the complaints." However, the case for the Applicant in these proceedings has been put expressly and emphatically on the basis that the decision itself is not being challenged as irrational or perverse. The challenge is on the ground of procedural unfairness or impropriety. I am entirely satisfied that, to the extent that this challenge is based on the presence and contribution of Mrs. Morgan, it is utterly unfounded.
Production of documents
36. One of the complaints set out in the Form 86A is that the Council and the School failed to produce for inspection by the Applicant a substantial number of documents which had been on the School premises before his suspension but which were later said by the Council to be unavailable. It was said that this had handicapped him in his defence to the disciplinary charges. In the relief sought by the application reference was made to an order for inspection of five categories of documents or for a statement verified by a statement of truth showing what attempts had been made to find the documents, who had parted with or destroyed them and what steps had been taken to retrieve them. On 11 August 2000 the Applicant's solicitors wrote to the Council requesting, in the course of the present proceedings, copies of documents by reference to thirty-nine categories. The request was made under Part 31.15 of the Civil Procedure Rules. The County Secretary replied by a letter dated 22 September, addressing each of the thirty-nine categories. On 26 September, there was a hearing before Harrison J which resulted in an order by consent for disclosure of certain documents "if available". On behalf of the Applicant, Mr. Ground submitted to me that, not withstanding the disclosure that has now been achieved voluntarily and as a result of the consent order, further disclosure remains a live substantive issue. His complaint is that, to the extent that documents are said to have been lost or destroyed, in particular by the wiping of one or more computer discs, the Applicant does not believe that such loss or destruction has taken place. Furthermore, even if it has, it was unfair of the Council to delay the preferring of disciplinary charges until after relevant documents had been lost or destroyed.
37. Mr. Brennan's response to these complaints was that the Council has disclosed what it still has but that, in any event, the material could never have been of more than peripheral significance. He illustrated this by reference to one of the factual issues in the disciplinary hearing. Complaint 3 related to the night of 14-15 May 1998. It alleged that, in disregard of a clear written instruction, the Applicant had spent the night on his barge with four pupils but without a second responsible adult. When the Applicant and the pupils went to the barge, they were accompanied by Mr. Stephen Patient, a residential social worker at the School. However, Mr. Patient left the barge and went back to the School on the evening of 14 May, returning to the barge the following morning. According to Mr. Patient, this was all agreed in advance with the Applicant who was well aware that Mr. Patient was on "sleep in" duty at the School that night. The Applicant, on the other hand, maintained that it was only on the morning of 14 May that he discovered that Mr. Patient was on "sleep in" duty that night, whereupon he decided, in consultation with two senior colleagues, that the trip should go ahead. The case for the Applicant is that the "sleep-in" book was a relevant and important document in relation to this issue. However, in his witness statement to the Police dated 10 December 1998, Mr. Patient described how he had tried to check the "sleep-in" book but "it appeared to be missing". He later told Dr. English that he had looked for the book with Mrs. Sheila Jarvis, the School Bursar, but it had disappeared from the cupboard. Mrs. Jarvis confirmed this to Dr. English, adding that it was she and the Applicant who were the key holders. As it is common ground that Mr. Patient did return to the School on the evening of 14 May and rejoined the Applicant and the pupils on the barge the following morning, it is, as Mr. Brennan submitted, difficult to see how the book could have resolved the issue about when the Applicant became aware that Mr.Patient would be spending the night at the School. Moreover, there is evidence that the book was missing in 1998, long before the Applicant's acquittal and Dr. English's investigation.
38. So far as another category of document is concerned - work experience records - the Applicant's concern is that they would show that some of the pupils had done work experience on a barge belonging to the Diocese of St. Albans and that this would demonstrate that they were qualified to act as second adults on the Applicant's barge. However, it is abundantly clear, as it is obvious as a matter of common sense, that the disciplinary complaints against the Applicant in relation to the absence of a second adult were not confined to competence and safety in the operation of the barge. They were substantially concerned with the Applicant having (in Dr. English's words) "repeatedly placed himself in positions of risk......despite specific instruction".
39. In my judgment, no unfairness or impropriety has been established under this heading and the ground of challenge fails.
The conclusion of the "beliefs" meeting
40. Put simply, this ground of challenge is that the concluded belief that there is reasonable cause to suspect that the Appliant poses a risk of significant harm to children in his care is Wednesbury unreasonable. Mr. Ground relied on the unanimous acquittal in the Crown Court proceedings, in the course of which the trial judge (who had rejected a submission of "no case to answer") had apparently referred to B as a liar, together with the fact that Dr. English, when he reported the result of his investigation to the School Governors, had commented that "it would be difficult not to conclude that there must be a high probability that B is lying". In order to address this part of the case, it is necessary to set out more of the factual background.
41. In common with other local authorities, the Council has proceedures for the investigation of persons suspected of presenting a risk of significant harm to children. The introduction to the procedures describes them as "new and aiming to provide a clearer framework", adding that "care needs to be taken to ensure that legal advice is sought throughout the process". Reflecting the Children Act 1989, the document states:
"the child's welfare shall be Social Services' paramount consideration.
Further, in balancing adequate protection for the child, and fairness to an adult, the interests of the adult may have to be placed second to the needs of the child."
Mr. Ground did not, indeed could not, criticise these provisions. It is next necesary to describe how the social workers and others went about their tasks in the present case.
42. Even before the Applicant was arrested an initial strategy meeting was held to consider B's allegation. It was attended by a police officer from the child protection unit and various officials from Social Services. The meeting began on 24 July 1998 and continued on 29 July. The police officer described B's allegation and background, together with the names of other boys who were said by B to have been to the Applicant's barge. One of the matters considered at this early stage was the fact that in early 1998 the Applicant had agreed to future arrangements regarding the use of his barge. The minutes of this initial and reconvened strategy meeting indicate to me an entirely appropriate preliminary consideration, with each party pursuing his or her department's legitimate interest while remaining conscious of the need to liaise and to share information. The arrest of the Applicant soon followed and thereafter the involvement of Social Services was not significant until after the acquittal of the Applicant in May 1999. On 7 June 1999, the Applicant returned to live at his house at the School and on 10 June a further meeting was held by social workers, police and other professionals involved in child protection. The meeting is described in the minutes as a "beliefs meeting". The police officers reported that no other pupil had made any allegation against the Applicant. Nevertheless the officers who had interviewed B continued to believe that he was telling the truth and there was a concern on the part of the meeting about a pattern of taking pupils to the barge. The minutes indicate an intelligent and unhurried approach, coupled with an express recognition of the need to avoid interference with the disciplinary process. It was decided to reconvene the meeting a fortnight later.
43. When the reconvened meeting took place on 24 June. There was an updating of information. The views of the "beliefs panel" were canvassed. From their different perspectives (Social Services, probation officer, health visitor), the members all expressed views consistent only with a belief that the Applicant poses a risk to children who are in his care. The meeting initially recommended that the Director of Eduction should be informed on the assumption that he would convey the belief to the School Governors. An addendum to the minutes indicates that the matter was subsequently discussed with the District Manager and Assistant Manager of Social Services who agreed the findings and indicated that they should be relayed to the Director of Education, on the basis that it would be for him to decide whether to share the information with the Governors.
44. I interpolate here that one of the contributions of the Assistant Director was to suggest that the minutes should be revised, as they then were, so as to record a belief that the Applicant may pose a risk of significant harm. Mr. Ground sought to attach significance to this but, in the context of the case as a whole, I do not consider that it has any.
45. It was not until 22 October 1999 that a Social Services official wrote to the Applicant in these terms:
"I am writing to let you know that the Councty Council's Social Services Department has recently held a strategy consider the complaint against you by [B].
The purpose of the strategy meeting was to consider whether there is reasonable cause to suspect that you pose a risk of significant harm to children in your care.....The meeting decided that you did pose such a risk.
The next step under the procedure is for you to have the opportunity to discuss the matter with members of the strategy meeting. I understand from the .....Education Department that you are currently suspended from your post pending a disciplinary hearing....In these circumstances, I would propose that you have the opportunity to meet us after that hearing has taken place. If you would prefer to have the meeting sooner, please let me know."
One of the Applicant's complaints is that the reference to the strategy meeting having been held "recently" is a travesty, in view of the passage of four months. I shall return later to the associated ground of challenge on the basis that all this had an unfair consequential effect on the disciplinary proceedings.
46. On 4 November 1999, the Applicant and his representative, Mr. Derek Morris of the National Association of Head Teachers, met with two senior Social Services officials. Clearly, the Applicant had decided to make representations to them ahead of the disciplinary hearing. He was again told that the meeting was an opportunity for him to make representations and that all the information would then go to the Director or Assistant Director of Social Services who would make the final decision on whatever further action may be required. Mr. Morris complained about the proximity of the meeting with the disciplinary hearing which was to take place the following week - he said it could be viewed as "conspiratorial and contrary to natural justice". He also referred to the unanimous verdict of the jury and the fact that B had been referred to by the trial judge as a liar. A point was made that the investigating police officer had been the subject of a justified complaint by the Applicant. The Applicant and Mr. Morris were advised that, no final decision having yet been made by Social Services, no decision had been formally conveyed to the Education Department. This was not correct, because on 6 August 1999 a letter had gone from Social Services to the Director of Education, setting out the belief of the meeting of 24 June and recommending that that belief went to the Director of Education "on the assumption that the view will be conveyed to" the School Governors.
47. The next day, 5 November 1999, the essence of what the Applicant and Mr. Morris had said was passed on by letter to the Director of Social Services on the express basis that it was "significant information that was not available to the beliefs meeting" comprising in particular the complaint against the investigating police officer, the fact that the Education Department had concluded that there was insufficient evidence to found a disciplinary charge of indecently assaulting B, and the fact that the trial judge had referred to B as a liar.
48. On 8 November the beliefs meeting reconvened to reconsider the matter in the light of the representations from and on behalf of the Applicant on 4 November. Further documentation was available in relation to the complaint against the investigating police officer and the comment of the trial judge. As regards the latter, it seemed that the judge had, appropriately, referred to B's behavioural problems and established dishonesty and ability to lie when directing the jury to approach his evidence with caution. He had not characterised the allegation as a lie-indeed, he had declined to accede to a submission of no case to answer. In the event, the beliefs meeting unanimously agreed that the Applicant still posed a risk and that this "recommendation" should be conveyed to the Director of Education and to the Chairman of the School Governors. Later the same day the Director of Social Services was informed by internal memorandum of the outcome of the reconvened beliefs meeting. It seems that the Applicant was not informed of it before a letter dated 22 November, well after the disciplinary hearing. On 23 November the Applicant sent a long letter to the Director of Social Services setting out his case as to why the belief that he poses a risk of significant harm to children in his case is erroneous. On 2 December he raised a number of points with Social Services and on 3 December the Director of Social Services (probably without having had sight of the letter of 2 December) wrote to the Applicant. The Director stated that it was not for him "to consider the reasonableness of the decision reached", viz. by the beliefs meeting. However, if there were any new points he wished to place before the beliefs meeting, he should communicate them so that the meeting could be reconvened again.
49. The Applicant availed himself of this opportunity. He sent a long written submission to the beliefs meeting in which he set out in detail the reasons why, in his view, B should not be believed. He also, on 12 January 2000, wrote a further detailed letter, revisiting a number of matters from the earlier correspondence.
50. The beliefs meeting was reconvened once more on 28 January. It is plain from the minutes of the meeting that the Applicant's representations were carefully considered, paragraph by paragraph. The minutes conclude:
"On balance, having considered all of this information, it was agreed......unanimously that the belief that [the Applicant] is a suspected abuser and therefore a risk to children, namely the vulnerable young boys at [the] School, should be upheld."
As of now, the Director of Social Services has still to make his decision consequent upon the conclusions of the beliefs meeting. In January 2000, the Applicant filed this application for judicial review and, as a result, the Council's decision-making processes were suspended. The application seeks to challenge the conclusion of the beliefs meeting of 24 June 1999 which, as I have recounted, was communicated to the Applicant by the letter of 22 November. However, it is appropriate that I set it in the context of what came before and after.
51. I have already referred in summary form to the basis upon which Mr. Ground submitted that the conclusion of the beliefs meeting on 24 June 1999 was Wednesbury unreasonable. I am entirely satisfied that this submission is without merit. The beliefs meeting was not bound by the result of the trial in the Crown Court, by any comment of the trial judge (the significance of which, in context, was rather less than the Applicant contends) or by the lack of a disciplinary charge reflecting B's allegation. The beliefs meeting is a multidisciplinary body whose deliberations are not required to embrace the criminal standard of proof. Nor is it inhibited by the rules of evidence which obtain in the Crown Court. Its currency is reasonable cause for suspicion, having regard to all the relevant material. In my judgment, the several beliefs meetings, including the one on 24 June 1999 and the ones in Janaury 2000, have all been characterised by a rational approach, resulting in a conclusion which is in conformity with the criteria of public law reasonableness. It may be that a different group of child protection professionals might quite properly reach a different conclusion but that is a world away from vitiating the conclusion of the beliefs meeting in this case. Accordingly, the Wednesbury challenge fails.
Children Act 1989, section 47
52. In addition to attacking the conclusion of the beliefs meeting on conventional Wednesbury grounds, Mr. Ground also submitted that it was bad in law by reason of section 47 of the Children Act 1989.
The relevant parts of section 47 read as follows:
"(1) Where a local authority -
(b) have reasonable cause to suspect that a child who their area is suffering, or is likely to suffer, significant harm,.
the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child's welfare......
(3) The enquires shall, in particular, be directed towards establishing -
(a) whether the authority should make any application to the court, or exercise any of their other powers under this Act .....with respect to the child
(7) If, on the conclusion of any enquiries or review made under this section, the authority decide not to apply for an emergency protection order, a child assessment order, a care order or a supervision order they shall-
(a) consider whether it would be appropriate to review the case at a later date; and
(b) if they decide that it would be, determine the date on which that review is to begin.
(8) Where, as a result of complying with this section, a local authority conclude that they should take action to safeguard or promote the child's welfare they shall take that action (so far as it is both within their power and reasonably practicable for them to do so)."
The whole procedure operated by Social Services in the present case owes its origin to section 47. It is published in Hertfordshire Child Protection Procedures, Part II of which is headed "Procedural guidance on forming and sharing beliefs about alleged or suspected child abusers". It is common ground that, although the children in the present case are the unspecified members of a group i.e. pupils at the School, section 47 applies.
53. Mr. Ground submitted that the purpose of an investigation under section 47 is to decide whether or not the Council should take any of the steps specified under section 47(3), each of which engages the scrutiny of a court He then focused on an application for a care or supervision order under section 31. This, in turn, brought him to Re H [1996] 1 AC 563 HL. However, that case was concerned with what has to be proved in order to satisfy a court that, for example, a child is suffering, or is likely to suffer, significant harm (section 31(2)(a)). In my judgment, it does not illuminate the operation of section 47. There is the world of difference between satisfying a court that something is so (section 31) and having reasonable cause to suspect that it is so (section 47). Accordingly, I consider Mr. Ground's reliance on Re H to be misplaced. Moreover, section 47 is not simply a precursor of an application to a court. Clearly, enquiries under the section must be directed "in particular" towards establishing whether to make such an application (section 47(3). However, if the reasonable suspicion is properly present, the section does not render an application to the court obligatory. In the present case, it would be quite otiose at present because the Applicant remains suspended and under a recommendation of dismissal. Nevertheless, this did and does not relieve Social Services of the duty of considering the position under section 47. A complaint having been made, and other information having come to hand, Social Services were bound to consider the matter under section 47. Having done so, they reached what I have already held to be a conclusion that was open to them, that is to say one based on reasonable cause to suspect a likelihood of significant harm. It is wholly understandable that no application to court has been forthcoming and that the action taken at this stage (under section 47(8)), has been limited to communicating the conclusion to the Director of Education and through him, to the School Governors.
The relationship between the "beliefs decision" and the disciplinary proceedings
54. Mr. Ground next submitted that there were unfair consequential effects on the disciplinary proceedings arising out of the "beliefs" decision. He put this submission in three ways. First, that the beliefs decision had a prejudicial and distracting effect on the preparation and conduct of the Applicant's defence to the disciplinary proceedings; secondly, that the way in which the disciplinary proceedings were conducted was affected by the beliefs decision; and thirdly, that the beliefs decision created a damaging "atmosphere of innuendo". I shall consider these submissions in turn, although there is an overlap between the second and the third.
55. (1) I have already related how the conclusion of the beliefs meeting on 24 June 1999 was not communicated to the Applicant until he received the letter of 22 October, some two and a half weeks before the disciplinary hearing. This, it is suggested, undermined his confidence, was demoralising and distracted him from the preparation of his case. I am not impressed by this submission. During the relevant period the Applicant engaged in intelligent and vigorous correspondence about the forthcoming hearing, at which he was represented by counsel. No complaint was made about any difficulty in relation to the preparation or presentation of this case. I do not know why there was such a delay in informing the Applicant about the outcome of the meeting of 24 June. The probability is that it was not the result of malice or deviousness. In any event, I am satisfied that it did not significantly affect the disciplinary proceedings in the way suggested on behalf of the Applicant.
56. (2) None of the disciplinary charges alleged sexual impropriety on the part of the Applicant. Mr. Brennan (who represented the Council at the disciplinary hearing as well as in this court) opened the case to the disciplinary panel by describing the charges as being concerned with blatant failure to observe procedure and instructions and failure in professional standards. He then said that this could be because the Applicant was exercising his responsibilities with a reckless disregard for the procedures which were in place for the protection of the boys (and himself) or that he was acting in this way because of an unhealthy sexual interest in the boys themselves. However, he added, he was not seeking to prove which and, in any event, either was wholly inconsistent with the Applicant's continued employment as headteacher of this school. As I commented during counsel's submissions, I do not think that it was wise of Mr. Brennan to refer to even the possibility of "an unhealthy sexual interest in pupils" at that stage, the decision having been taken not to charge the Applicant with any act of sexual misconduct. However, I am not persuaded either that his so doing resulted from the beliefs conclusion or that it would afford a ground of challenge if it did. I observe that in their witness accounts of the lengthy deliberations of the disciplinary panel neither Mr. Colemen nor Mrs. Morgan makes any reference to the panel members discussing sexual motive or misconduct. I am satisfied that there was no infraction of natural justice in relation to Mr. Brennan's opening or occasioned by it.
57. (3) A similar point arises in connection with a passage in the evidence at the disciplinary hearing. The Applicant states that, in the course of his cross-examination, Mr. Brennan suggested that the Applicant had been "grooming" pupils for later sexual abuse. Mr. Coleman has a similar recollection. Mrs. Morgan, relying on her contemporaneous notes, has no such recollection from the evidence but refers to the Applicant's counsel having made a submission discounting "grooming" in her final speech. It is unlikely that she would have felt the need to do so if the concept had not appeared in the evidence. Once again, if the suggestion emanated from counsel, I consider that it would have been wiser to have left it unsuggested. Nevertheless, I cannot see that it rendered the proceedings unfair. There is no evidence that it deflected the panel from the path of relevance.
58. Similarly, the Applicant contends that his case was also damaged by innuendo when it was suggested that, in relation to complaint 4, he had "unscrambled" the arrangement whereby one boy was to spend the night at another boy's house. To use the word "unscrambling" does no injustice to the Applicant's own account of the events of that day. In my judgment the Applicant is not justified in asserting that the word was pregnant with innuendo of sexual impropriety, nor in ascribing it or "grooming" to some infection from the beliefs procedure.
59. I am wholly satisfied that the disciplinary proceedings were not unfairly tainted by the outcome of the beliefs procedure. The two procedures are functionally different. There is nothing untoward about their having been concurrent. I cannot see that one had an adverse effect on the fairness of the other. The specific matters about which complaint is made were minor and inconsequential.
60. It follows from what I have said that, none of the grounds of challenge having succeeded, this application for judicial review is dismissed. At the time when it was lodged, it brought to a temporary halt both the consideration of the Director of Social Services and the disciplinary appeal. Each will now be resumed. Nothing in this judgment should be taken as seeking to influence either. That is not my function or desire.
- - - - - - -

MR JUSTICE MAURICE KAY: In this case there will be judgment in accordance with the document that has been handed down today.
MR BRENNAN: Would your Lordship dismiss the application with costs.
MR JUSTICE MAURICE KAY: What is the costs position? Is the applicant legally aided?
MR GROUND: No, my Lord. I do not think I can resist that application.
MR GROUND: My Lord, there is one point on the judgment that my learned friend and I have both only just spotted. That is in the first line, in that the school is actually named.

MR JUSTICE MAURICE KAY: I was going to raise that.
MR GROUND: It might be better, in view of the reporting restriction, not to identify it by name. My learned friend has no objection to that.

MR JUSTICE MAURICE KAY: What orders exist? None of them were made by me, I think. There was an order made that the applicant be referred to as "A".
MR JUSTICE MAURICE KAY: Is there an order under the Children and Young Persons Act as far as anybody under age is concerned?
MR GROUND: Yes, it was made on 14th March by Mr Justice Mitchell. It was under section 39 of the Children and Young Persons Act 1933: that reporting restrictions apply in respect of the applicant herein and that this matter be listed as "Ex parte A". It would be consistent with that.
MR JUSTICE MAURICE KAY: I might not have been quite so easy to persuade as to that, but, as it has been done, I shall be faithful to it; and if I am going to be faithful to it, it seems to me that to name the school in a public document would be almost to name the applicant. So if I alter the first line of the judgment so that it reads, "The Applicant was appointed head teacher at a school ...", that will suffice, will it not?
MR JUSTICE MAURICE KAY: Thank you very much.
MR GROUND: My Lord, I would apply for permission to appeal to the Court of Appeal against the decision. My submission is that this is not a case which really should be caught by the new filter of permission to appeal, which is aimed at banning cases that have no prospect of success and which are not serious cases. My Lord, I would submit that this is a very serious case. It has grave implications for the applicant. It has various points of importance in areas of law with which we were concerned. In my respectful submission it would be an appropriate case in which to give permission to appeal.
MR BRENNAN: My Lord, it is a case which depends critically on its somewhat complex facts. Although I accept that it is a matter of seriousness, my learned friend has still to satisfy your Lordship that the test in Part 52.3 is met; so he has to show a real prospect of succeeding or some other compelling reason why the appeal should be heard by the Court of Appeal. In my submission he does not satisfy either.
MR JUSTICE MAURICE KAY: Mr Ground, I am going to refuse you permission. You are of course free to make your application to the Court of Appeal in due course if you so wish.
MR GROUND: I would ask your Lordship to stay the appeal proceedings against the disciplinary finding in order to enable the applicant to apply for permission to the Court of Appeal and to serve a notice of appeal.
MR JUSTICE MAURICE KAY: Just remind me of the time within which an appeal has to be ----
MR GROUND: Four weeks, my Lord. But if an application is made for permission within that period and not heard within four weeks, it is until seven days after the hearing of the application for grant of permission to appeal.
MR JUSTICE MAURICE KAY: Have you anything to say about that, Mr Brennan?
MR BRENNAN: My learned friend is wrong about the four weeks: it is 14 days. But I urge your Lordship not to stay the disciplinary appeal further. The matter has, as your Lordship knows only too well, lasted a very long time. One of the results of the stay which was imposed on the original application for permission to apply for a judicial review was that that permission was granted the day before the appeal was due to be heard.
The applicant remains in the employment of the local authority throughout, entitled of course to his full salary whilst so employed. He can only be dismissed, should that ever arise, on a date coinciding with the end of current terms - on notice, expiring at the end of a current term. So as the disciplinary appeal is stayed, we have each time the prospect of him falling over another trigger date and remaining in employment with the school for potentially a further term or more.
MR JUSTICE MAURICE KAY: If I do not stay the disciplinary appeal, when would you envisage it being held?
MR BRENNAN: I think in January. So if my learned friend puts in his application to the Court of Appeal and that is accompanied by a suitable indication of urgency, no stay is appropriate. The matter cannot be rushed to judgment next week on the disciplinary appeal.
MR JUSTICE MAURICE KAY: On the understanding that the internal appeal process will not bite before January, certainly I will be disinclined to grant a stay. To be frank, I do not think you have any prospect in the Court of Appeal. That is why I have refused you permission. Of course you can make your application and, if you do, you can make your application for a stay there. Even if there is some delay in a permission hearing, you may get a stay hearing more expeditiously.
So I do not think I can take the matter further. Thank you both very much.

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