Mujanet Daniah & Anor v The Secretary of State for Education

Mr Justice Foxton :

1. The Appellants, who I shall refer to as “MD” and “SF”, and together as “the Appellants”, appeal against prohibition orders made by the Respondent (“the SSE”), prohibiting them from teaching.

2. The prohibition order in relation to MD permits MD to apply to set the prohibition order aside after five years (i.e. from 8 March 2029).

3. The prohibition order in relation to SF permits SF to apply to set the prohibition order aside after two years (i.e. from 8 March 2026).

4. MD made oral submissions on behalf of both MD and SF. SF confirmed in court that he was happy to adopt MD’s submissions on his behalf. The Appellants’ convictions

5. By s.96(1) of the Education and Skills Act 2008 (“ ESA 2008 ”), a person “must not conduct an independent educational institution unless it is registered”. Doing so is made a criminal offence by s.96(2) . By s.96(3) , a person guilty of that offence is liable on summary conviction to imprisonment for a term not exceeding 51 weeks or to a fine not exceeding level 5 on the standard scale (or to both).

6. “Independent educational institution” is defined at s.92(1) ESA 2008 as (amongst other things) “an independent school”, which is in turn defined at s.463 of the Education Act 1996 (“ EA 1996 ”) as (amongst other things) “any school at which full-time education is provided for … five or more pupils of compulsory school age”. There is no statutory definition of “full-time education”, although the CPS and Department for Education have published guidance on this.

7. The Appellants were both involved in the operation of an institution called the “Advance Education Centre” (“ACE”) in London. The ACE was subject to three Ofsted inspections in the period with which I am concerned: i) The first on 12 December 2018 when it is agreed that the school was offering all-day teaching. ii) The second on 5 March 2019. iii) The third on 6 March 2019.

8. Following that last inspection, the Appellants were charged with the s.96(2) offence. Following a hearing they were convicted before Westminster Magistrates Court (the hearing conducted by Senior District Judge and Chief Magistrate Emma Arbuthnot, now Mrs Justice Arbuthnot). The Appellants each received a custodial sentence of 4 weeks’, suspended for 12 months, and an order requiring them to undertake 120 hours of unpaid work.

9. The Chief Magistrate provided a written judgment which stated: i) The criminal burden and standard of proof had been applied. ii) MD and SF were running the school on a day-to-day basis and were present during the three Ofsted inspections. iii) The charge was that MD and SF were running the school unlawfully between 11 December 2018 and 7 March 2019. The Chief Magistrate found that the offence had been committed throughout that period. iv) At the time of the 12 December 2018 visit, it was agreed that the school was offering education from 9.45am to 2.45pm. Following that inspection, the school was given a warning letter. MD and SF were cautioned and told about the potential offence. v) When Ofsted inspected the school again in March 2019, they concluded that the same children were attending the school’s morning and afternoon sessions, and found documents showing that a full day’s teaching was being undertaken. vi) The Chief Magistrate concluded that the school was providing all-day education for the children, rejecting evidence to the contrary from MD and SF and observing of their evidence, “their evidence does not reflect what was happening at the school”. Her reasons for reaching that conclusion are compelling.

10. The Appellants appealed to the Crown Court where their convictions and sentences were upheld (HHJ Griffith, Mr Manfield and Mr Brenner). MD and SF were represented at the hearing, which appears to have run over non-consecutive days. There is a transcript of closing arguments and the rulings in that hearing, albeit not of the evidence: i) The Crown Court also rejected the evidence that there had been any material change in the operation of the school after the December 2018 Ofsted inspection. Documents relied upon to suggest that there had been a change were found to be “cosmetic”. ii) In upholding the sentence, the Crown Court found that the offending had continued for 3 months. His Honour Judge Griffith stated that while the court was not finding that there was deliberate dishonesty, there had been “stretching the rules and trying to hide what was continuing to go on after the inspection of December”.

11. The Appellants have since completed their sentences. They informed the court that “they accept those convictions and do not seek to re-argue guilt”. However, their skeleton argument for the appeal seeks to re-argue the factual basis of their convictions in a manner inconsistent with the findings, reached to the criminal standards, of the criminal courts. I accept that, as MD explained, the Appellants found themselves in some difficulty in providing their own account of the circumstances of the offences, while avoiding any suggestion that they were denying or minimising their wrongdoing. However, there was no material before me which provided any basis for doubting the correctness of those convictions, even assuming it would have been permissible to do so. The regulatory scheme in relation to allegations of teacher misconduct

12. Section 141 B(1)-(2) of the Education Act 2002 (“ EA 2002 ”) provides that the SSE may investigate a case: “(1) … where an allegation is referred to the [SSE] that a person to whom this section applies – (a) may be guilty of unacceptable professional conduct or conduct that may bring the teaching profession into disrepute, or (b) has been convicted (at any time) of a relevant offence. (2) Where the [SSE] finds on an investigation of a case under subsection (1) that there is a case to answer, the [SSE] must decide whether to make a prohibition order in respect of the person.”

13. “Relevant offence” is defined at s.141 B(4) as, in the case of a conviction in England and Wales, a criminal offence other than one having no material relevance to the person’s fitness to be a teacher.

14. A ‘prohibition order’ means an order prohibiting the person to whom it relates from carrying out teaching work ( s.141 B(4)) for life, subject to any successful application for a review under Regulation 16 of the Teachers’ Disciplinary (England) Regulations 2012 (SI 2012/560) (“the 2012 Regulations”). So far as the 2012 Regulations are concerned: i) Regulation 4 provides that any decision made under the regulations may take into account any failure by a teacher to comply with the personal and professional conduct standards set out in part two of “Teachers’ Standards Guidance for school leaders, school staff and governing bodies” (“the Teachers’ Standards”) published by the Secretary of State in July 2011. ii) Regulation 5 provides that, where the Secretary of State considers that a teacher has been convicted of a relevant offence the Secretary of State must consider all relevant material (including representations from the teacher) and decide whether to discontinue the matter or refer it to a professional conduct panel. iii) Regulation 7 provides the professional conduct panel must consider cases referred to it by the Secretary of State under Regulation 5. Regulation 7(3) provides that the professional conduct panel may determine a case without a hearing at the written request of the teacher who is the subject of the case (as happened here). Where it finds the teacher to have been convicted of a relevant offence, the panel must make a recommendation to the Secretary of State as to whether a prohibition order should be made (Regulation 7(5)). iv) Regulation 8(1)-(3) provides that “(1) The Secretary of State must consider any recommendation made by a professional conduct panel before deciding whether to make a prohibition order. (2) Where the Secretary of State decides to make a prohibition order, the Secretary of State must decide - (a) whether an application may be made for a review of the order under regulation 16; and (b) if the Secretary of State decides such an application may be made, the minimum period before the end of which no such application may be made. (3) The minimum period under paragraph (2) must not be less than two years from the date on which the prohibition order takes effect.” v) Reviews are dealt with in Regulation 16 which provides “(1) Subject to regulation 8(2), a teacher in relation to whom a prohibition order has been made may apply to the Secretary of State for the order to be set aside. (2) An application under paragraph (1) must be made in writing and must specify the grounds upon which it is made. (3) The Secretary of State may require any person to produce documents or other material evidence for the purposes of an application under paragraph (1). (4) The Secretary of State must decide whether the application should be— (a) allowed; or (b) referred to a professional conduct panel for a recommendation as to whether it should be allowed.”

15. The teaching profession in England is regulated by the Teaching Regulation Agency (“the TRA”), an executive agency which acts on behalf of the SSE. When it receives allegations of misconduct by a teacher, it is responsible for investigating those complaints and ensuring appropriate actions are taken. The regulatory system operated by the TSA is set out in the 2012 Regulations; the TRA’s “Teacher Misconduct: Disciplinary Procedures for the Teaching Profession”; the Teachers’ Standards; and “Teacher misconduct: the prohibition of teachers: Advice on factors relating to decisions leading to the prohibition of teachers from the teaching profession” (2022) (“the Guidance”). At p.8 of the Guidance, the SSE explains that “…the panel will accept the certificate of conviction as conclusive proof of both the conviction and the facts necessarily implied by the conviction, unless exceptional circumstances apply”.

16. It will be apparent that both a professional conduct panel (“PCP”) established by the TRA, and the SSE, have roles in the procedures for addressing teacher misconduct. In Wallace v SSE [2017] PTSR 675 , [50]-[56], [65]-[66], Holgate J summarised the decision making process, and the way in which the statutory scheme splits the decision-making into two tiers: i) The PCP (and only the PCP, not the Secretary of State) decides whether the allegations are proved. The Secretary of State has no power to remove or change the PCP’s findings. ii) If the PCP finds that one or more allegations are made out, it decides whether to recommend a prohibition order and on what terms. iii) The Secretary of State will consider the PCP’s recommendation, but the decision as to whether to make a prohibition order and on what terms is for the Secretary of State alone. The PCP’s reasoning is not in any way binding on the Secretary of State. iv) The Secretary of State may disagree with factual conclusions drawn by the PCP for the purpose of making its recommendations as to a prohibition order (but not its fact findings as to whether the relevant allegations are proved). v) This structure allows the Secretary of State to exercise an oversight function and ensure consistency in approach. The proceedings before the PCP

17. The TRA convened two separate PCPs to consider each of the Appellants’ cases. Both PCPs had access to a Statement of Agreed Facts and the judgments of the Chief Magistrate and HHJ Griffith in the Crown Court, as well as documents submitted by the relevant Appellant. PCP proceedings concerning MD

18. In advance of the meeting of her PCP (which took place on 23 February 2024), MD asked for the allegation to be considered without a hearing, and provided a Statement of Agreed Facts admitting that she had been convicted of a relevant criminal offence (i.e. one that is relevant to a person’s fitness to be a teacher).

19. MD made extensive written submissions to the PCP: i) She said she was acting on the advice of the local authority and Ofsted. ii) Her conviction was due to irregularities and errors in evidence. iii) She challenged the evidence of the Ofsted inspectors as to the events on 12 th December 2018 and 5 th and 6 th March 2019. iv) She suggested that she had been wrongly convicted due to being “misrepresented and underrepresented”, and made various procedural complaints about the trial.

20. The PCP in MD’s case found that she had been convicted of a s.96(2) offence (as noted above this was not disputed). The conduct which led to this conviction was found to be a breach of the Teachers’ Standards.

21. MD made written submissions by way of mitigation. These expressed contrition, but blamed her offence on not having sought legal advice on the interpretation of the law and ambiguous guidance from the Department for Education. The suggestion that MD had been acting in accordance with local authority advice was repeated.

22. The PCP considered what recommendation to make to the SSE so far as a prohibition order was concerned. Having reviewed the matter, the PCP recommended that a prohibition order be made with a 5-year review period. PCP proceedings concerning SF

23. In advance of the meeting of his PCP (which took place on 26 February 2024), SF asked for the allegation to be considered without a hearing, and provided a Statement of Agreed Facts admitting that he had been convicted of a relevant criminal offence (i.e. one that is relevant to a person’s fitness to be a teacher). He made extensive written submissions: i) He claimed he acted on Ofsted advice. ii) He suggested he had been convicted due to factual errors. iii) Various of the arguments advanced unsuccessfully before Westminster Magistrate’s court were repeated, including challenging the evidence of the Ofsted inspectors as to the events at the inspection (evidence which the Chief Magistrate had accepted when finding the case proved to the criminal standard). iv) He referred to “the exaggeration of the negatives and errors put forward to the magistrate’s court” which he said had led to his conviction.

24. Those submissions did not acknowledge responsibility or error.

25. The PCP in SF’s case found that he had been convicted of a s.96(2) offence (as noted above this was not disputed). The conduct which led to this conviction was found to be a breach of the Teachers’ Standards.

26. SF filed further mitigation submissions. Once again, these suggested that SF’s actions had been misinterpreted. SF did express contrition, albeit suggesting he had misinterpreted the law and that Department for Education guidance was “somewhat ambiguous”. He repeated the suggestion his conviction was due to “factual errors”.

27. The PCP considered what recommendation to make to the SSE so far as a prohibition order was concerned. Having reviewed the matter, the PCP recommended that no prohibition order be made in SF’s case. The decision of the SSE

28. Reflecting the split statutory scheme which I have summarised, it was for the SSE to decide whether or not to make prohibition orders and on what terms. i) In MD’s case, the Decision-Maker acting for the SSE made a prohibition order with a 5-year review period. ii) In SF’s case, the Decision-Maker acting for the SSE concluded that a prohibition order was necessary, and imposed a prohibition order with a two-year review period.

29. Substantial reasons were given for both of those submissions, to which I return below. The Appellants’ appeals The procedural framework

30. The Appellants have a right to appeal to the High Court against the prohibition orders under CPR Part 52. On such an appeal, the test the Court should apply is whether the Decision was “wrong” (CPR r.52.21(3)(a)) or “unjust because of a serious procedural or other irregularity in the proceedings in the lower court” (CPR r.52.21(3)(b)).

31. By CPR 52.21(1), an appeal proceeds by way of review unless a practice direction provides otherwise, or the court considers it will be in the interests of justice to hold a re-hearing. CPR 10 PD52D lists statutory appeals from some professional regulatory bodies which are to be heard by way of re-hearing, however, appeals under regulation 17 of the 2012 Regulations are not included in the list.

32. I was referred to a number of authorities setting out the proper approach to appeals against prohibition orders imposed by the SSE. Pepperall J in Sutcliffe v SSE [2024] EWHC 1878 (Admin) summarised the proper approach as follows: “46.1 The court should allow an appeal where the decision was wrong or unjust because of a serious procedural error or other irregularity: r.52.21(3). 46.2 Rule 52.21 provides that the appeal should be limited to a review of the decision unless a practice direction makes contrary provision (it doesn't in the case of teachers) or the court considers that, in the circumstances of an individual appeal, it would be in the interests of justice to hold a rehearing. 46.3 Generally, the appeal should therefore proceed by way of a review rather than a rehearing for the reasons explained by Steyn J following her detailed review of the authorities in Ullmer v. Secretary of State for Education . See also the unreported case of [2021] EWHC 1366 (Admin) Brittain v. Secretary of State for Education (2019), Lang J; and Jones v. Secretary of State for Education , Cavanagh J. [2019] EWHC 3151 (Admin) … 46.5 Professional conduct panels have the benefit of hearing the witnesses and have the primary responsibility for deciding the disputed facts of a case. The court will not interfere with a panel's finding of fact unless it is perverse in the sense that there is either no evidence to support the finding of fact or it is one which no reasonable panel could have reached. 46.6 Both the panel and the Secretary of State are expert and informed decision-makers who are well placed to assess whether the proven conduct constitutes unacceptable professional conduct or may bring the teaching profession into disrepute. The court will pay proper deference to their expertise before interfering with the exercise of their professional judgment. 46.7 The panel and Secretary of State are also well placed to assess whether a prohibition order is necessary in the public interest. Where unacceptable professional conduct or conduct that may bring the profession into disrepute is established, the court will again pay proper deference and only interfere with the decision to impose a prohibition order if satisfied that such decision was wrong.”

33. Pepperall J referred to the decision of Steyn J in Ullmer v SSE [2021] EWHC 1366 (Admin) in which the Judge conducted a comprehensive review of the case-law in relation to when appeals of this kind should proceed by way of review or re-hearing before reaching the following conclusions: i) There is no express derogation from the general principal that CPR 52 appeals are conducted by way of review in the case of appeals under the 2012 Regulations ([69]). ii) As a result, such appeals proceed by way of review unless a re-hearing is required under CPR 52.21(1)(b) ([70]), i.e. where “ the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing ”. iii) The Judge rejected the argument that a re-hearing is required to ensure compliance with Article 6 of the ECHR ([75]).

34. Finally, in an appeal of this nature , the court has to exercise caution before interfering with findings of fact but also before interfering with evaluative judgements involving the assessment of a number of different factors which have to be weighed against each other ( Sastry v General Medical Council [2021] EWCA Civ 623 at [34] – [39] and [107]).

35. At one stage the Appellants seemed to be arguing that these appeals should proceed by way of a rehearing. However their joint skeleton argument accepted that the hearing should be in the nature of a review. I have independently considered this issue and am satisfied that the hearing should proceed by way of a review, in accordance with the default position. While I accept that the prohibition orders have had a serious impact on the Appellants, that does not of itself mean that a re-hearing is required (otherwise a rehearing would be necessary in every case in which a prohibition order was imposed) In Hart v SSE [2024] EWHC 44 (KB), [54], Eyre J noted that “the consequences of a prohibition order and the reputational harm resulting from findings of misconduct do not without more necessitate an appeal by way of re-hearing. To decide otherwise would be to create a new category where the appeal is to be by way of re-hearing rather than review and to do so notwithstanding the fact that this could have been done by way of practice direction if that had been regarded as necessary or appropriate.”

36. Further: i) The public convictions and sentence of both applicants for the s.96 offence will already have affected the Appellants’ reputations. ii) So far as the Appellants’ ability to pursue their career as teachers are concerned (which I accept is a matter of obvious importance to them), the review periods permit applications to lift the prohibitions after the stipulated period. iii) Any suggestion that a hearing is required in this case is particularly challenging because both Appellants requested that there was no hearing before their PCP.

37. As Pepperall J observed in Sutcliffe , [46.7], the Secretary of State is entitled to significant deference from the court on the issue of whether a prohibition order should be made, and, if so, on what terms. To the same effect, I was referred to the decision of Mr Justice William Davis in R (Lonnie) v National College for Teaching and Leadership [2014] EWHC 4351 (Admin) , [20]-[21] and the Court of Appeal in Bolton v Law Society [1994] 1 WLR 512 , 518-19. In that case, Sir Thomas Bingham MR stated: “[O]ften the order is not punitive in intention. Particularly is this so where a criminal penalty has been imposed and satisfied. The solicitor has paid his debt to society. There is no need, and it would be unjust, to punish him again. In most cases the order of the tribunal will be primarily directed to one or other or both of two other purposes. One is to be sure that the offender does not have the opportunity to repeat the offence. This purpose is achieved for a limited period by an order of suspension; plainly it is hoped that experience of suspension will make the offender meticulous in his future compliance with the required standards. The purpose is achieved for a longer period, and quite possibly indefinitely, by an order of striking off. The second purpose is the most fundamental of all: to maintain the reputation of the solicitors’ profession as one in which every member, of whatever standing, may be trusted to the ends of the earth. To maintain this reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled but denied re-admission. If a member of the public sells his house, very often his largest asset, and entrusts the proceeds to his solicitor, pending re-investment in another house, he is ordinarily entitled to expect that the solicitor will be a person whose trustworthiness is not, and never has been, seriously in question. Otherwise, the whole profession, and the public as a whole, is injured. A profession's most valuable asset is its collective reputation and the confidence which that inspires.”

38. Significantly, the Master of the Rolls continued: “Because orders made by the tribunal are not primarily punitive, it follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases. It often happens that a solicitor appearing before the tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off or suspension would be little short of tragic. Often he will say, convincingly, that he has learned his lesson and will not offend again. On applying for restoration after striking off, all these points may be made, and the former solicitor may also be able to point to real efforts made to re-establish himself and redeem his reputation. All these matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness. Thus it can never be an objection to an order of suspension in an appropriate case that the solicitor may be unable to re-establish his practice when the period of suspension is past. If that proves, or appears likely, to be so the consequence for the individual and his family may be deeply unfortunate and unintended. But it does not make suspension the wrong order if it is otherwise right. The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price. … So far as the finding of disproportion between the findings of the tribunal and the penalty are concerned, I do not for my part understand how suspension can be said to be a disproportionate order in a case of conduct described, and rightly described, by the tribunal, as “wholly unacceptable” and “very serious indeed.” In my judgment, the Divisional Court was doing, no doubt unwittingly, exactly what authority says the court should not do, namely substitute its own view on penalty for that of the professional tribunal.” The grounds of appeal

39. In their Appellants’ Notices and skeleton arguments, MD and SF challenge the SSE’s decision to impose prohibition order on a wide number of grounds.

40. The Appellants advanced five grounds of appeal: i) Ground 1 (“Insight and Remorse”). They had accepted responsibility, reflected deeply on their actions and undertaken corrective action. ii) Ground 2 (“Risk of Repeat is Nil”).There was no risk of repetition. iii) Ground 3 (“Proportionality and Public Interest”). The prohibition orders were disproportionate and served no public interest. iv) Ground 4: “new and relevant fresh evidence shows compliance” (“the Fresh Evidence Ground”). v) Ground 5 - an alleged procedural irregularity because the Crown Court transcript omitted the evidence of Mrs Hamouda (“the Procedural Irregularity Ground”).

41. The SSE made an application to adduce fresh evidence on a contingent basis if the appeal was allowed. In circumstances in which that evidence is only alleged to be contingently relevant, I have had no regard to it for the purpose of determining the appeal.

42. The Appellants themselves sought, informally, to place documents before the court which had not been before the PCPs. This material falls into three groups: i) Material intended to answer the additional evidence which the SSE wished contingently to adduce, which I do not need to say more about. ii) Material related to events after the PCP hearings. I have dealt with this material on its merits. iii) Material which either was available when the PCP hearings took place, or could have been available (for example character references). I was offered no explanation of why material in this category could not have been placed before the PCPs had reasonable diligence been exercised, nor was I persuaded it added materially to the position before the PCPs. I refused the application to admit the evidence for those reasons. The position in overview

43. I will consider these grounds in turn. However, it is important at the outset to note the following: i) There is (and can be) no dispute that the Appellants were convicted of relevant offences, and they admitted as much to the PCPs and accept those convictions now. ii) The appeal, therefore, is necessarily confined to the issue of what responsive orders should be made. iii) As noted in Sutcliffe v SSE [2024] EWHC 1878 (Admin) , [46.5]-[46.7], (a) the court will not interfere with a PCP's finding of fact unless it is perverse in the sense that there is either no evidence to support the finding of fact or it is one which no reasonable panel could have reached; (b) both the PCP and the SSE are expert and informed decision-makers who are well placed to assess whether the proven conduct constitutes unacceptable professional conduct or may bring the teaching profession into disrepute and the court will pay proper deference to their expertise before interfering with the exercise of their professional judgment; and (c) the PCP and SSE are also well placed to assess whether a prohibition order is necessary in the public interest, and the court will pay proper deference and only interfere with the decision to impose a prohibition order if satisfied that such decision was wrong. Ground 1: “Insight and Remorse”

44. So far as MD is concerned, she made a statement to the PCP expressing her remorse. The PCP stated: “The panel did not consider that Mrs Daniah demonstrated a level of remorse or insight that provided confidence that she fully understood the implications of her actions. The panel were of the view that Mrs Daniah has expressed her remorse only at the last opportunity and did not fully appreciate the impact of her conduct on how she, or the teaching profession, would be viewed”. The SSE took that finding into account, observing: “In my judgment, the lack of full insight means that there is some risk of repetition of this behaviour, and this puts at future risk the well-being of pupils. I have therefore given this element considerable weight in reaching my decision”.

45. The PCP was fully entitled to come to that assessment, and there is no basis on which the court can conclude that the PCP was wrong. Nor is it arguable that the SSE was wrong to place reliance upon that finding or to reach the conclusion that it did. MD’s response is to point to events since the prohibition order was imposed: i) Completing her suspended sentence requirements. ii) Undertaking Level 3 Safeguarding training. iii) Engaging in voluntary community and educational work. iv) Being transparent with employers.

46. However, the court is concerned with reviewing the SSE’s decision, which was necessarily taken by reference to the facts available at that time. That decision cannot, save possibly in the most exceptional circumstances, be impugned by reference to later events. While MD will be able to rely upon these matters, if she is able to substantiate them, on any review application once the requisite time has expired, these matters cannot avail her here. I would note that, were matters otherwise, the court, when acting in an appellate capacity, would have to make fact findings about the matters relied upon and their significance. It is apparent that, by reference to events since the prohibition order, the SSE disputes that MD has shown any insight or genuine remorse.

47. Turning to SF, the PCP found that the school had been subject to three Ofsted inspections, and that after the first inspection on 12 December 2018, the school was given a warning letter and SF was told about the potential offence. However, the offending had continued. The PCP did refer to character evidence that SF was remorseful, and had taken responsibility for his actions (without itself making an express finding to that effect).

48. The SSE took that evidence into account. However, it was also noted that SF had been given a warning letter by Ofsted after the 12 December 2018 inspection, and been told about the potential offence, but had continued his involvement with ACE on the basis on which it operated. The SSE concluded that the evidence of SF having attained full insight and remorse was limited. However, the SSE did take account of the evidence of SF’s good character in determining that SF would be able to seek a review after 2 years.

49. That was an evaluative judgment which the SSE was entitled to reach, and it cannot be said to be a “wrong decision”. The SSE was not bound by any factual assessments made by the PCP as part of its recommended response, and no clear finding of insight and remorse was made in any event.

50. SF also relies on the same events occurring after the making of the postponement order as MD, but those matters do not assist for the same reasons. They are, however, matters which SF can rely on when seeking a review, which it will be open to him to do in March next year.

51. Finally, I would note in relation to both Appellants that the manner in which they advanced their cases before the PCP does not sit easily with their contention that they have “expressed unambiguous acceptance of our convictions … and make no attempt to minimise our wrongdoing.” Ground 2: the risk of repetition

52. MD and SF rely upon a series of matters which are said to establish that there is no risk of repetition. These involve some factual matters said to have occurred before the SSE imposed the prohibition orders, and some subsequent matters.

53. On the basis of the material which MD chose to place before them, the PCP concluded that there was a risk of repetition. The PCP found that MD’s conduct continued for 3 months after the December 2018 inspection. The SSE, based on those findings, concluded that MD did present a risk of re-offending, Once again, that determination was one it was open to the SSE to reach, in what was essentially a forward-looking evaluative exercise. It is not open to MD to rely on events after the prohibition orders were imposed for the purposes of challenging the SSE’s decision.

54. Turning to SF, as noted above the PCP found that he had continued working at ACE after receiving the warning of a possible offence following the Ofsted inspection in December 2018. The SSE relied on that finding to conclude that there was a risk of SF re-offending. This was a forward-looking evaluative exercise, and the SSE’s conclusion cannot be said to be wrong. Ground 3: proportionality

55. The exercise of proportionality involves weighing the competing interests, in particular the public interest in maintaining the standards of and the confidence in the teaching profession, while recognising the adverse effects which a prohibition order will have on any teacher who is made subject to one. The proportionality balance involves considering whether there might be alternative means of meeting the public interests which would have less impact on the teachers who are to be made subject to the prohibition orders. It is an exercise which the SSE is particularly well-placed to undertake, and on which its assessments are entitled to a significant degree of deference.

56. In this case, the SSE conducted a detailed proportionality assessment in both cases.

57. In the case of MD, the SSE noted the seriousness of the findings of misconduct. Express consideration was given to whether a less intrusive measure would meet the public interest of protecting pupils and maintaining public confidence in the teaching profession, and of the impact which the prohibition order would have on MD. The only available alternative was a public statement of the findings (there being no power to impose conditions on the Appellants’ employment, which was the course the Appellants argue could have been followed).

58. The SSE noted the Panel’s finding that operating an unregistered school raises safeguarding issues because it deprives the children in that school of regulatory oversight to ensure that educational standards are being met and that the school is an appropriate environment. The SSE also took account of the risk of re-offending. Taking all of those matters into account, the SSE decided that a prohibition order with a 5-year review period was necessary to maintain public confidence in the teaching profession. I do not believe that comprehensive analysis can be faulted. It certainly cannot be said to be “wrong”, containing no error of principle, either in the matters taken into account or in leaving some relevant matter out of account.

59. The same is true of SF. The SSE reviewed essentially the same factors, but also the positive findings the SSE had made about SF. Specific consideration was given to the PCP’s recommendation of a lesser penalty, and whether it would meet the public interest, and the view was taken that simply publishing the PCP’s findings would not be a proportionate response. The evidence of SF’s prior contribution to education and previous good character were taken into account in arriving at the earliest possible review period, of two years. Once again, this analysis cannot be said to be “wrong”, containing no error of principle, either in the matters taken into account or in leaving some relevant matter out of account.

60. I accept that these events – the conviction and the prohibition order – have caused SF considerable stress, and that that may well have affected his health (and I have had regard to the medical evidence filed, albeit it is quite limited). However, the prohibition orders were not imposed by way of punishment but for the purposes of protecting pupils and maintaining public confidence in the teaching professions. In these circumstances, I was not persuaded that any affect on SF’s health could justify the court substituting its own decision for that of the SSE. Ground 4: the Fresh Evidence ground

61. In the Appellants’ skeleton argument, reference was made to various matters said to constitute “fresh evidence”. In particular, letters from Brent Council and the Department for Education to MD between February and June 2019 are relied upon to show “the authorities advised modification of hours not closure.” There is an application to adduce this evidence under CPR 52.21(2)(b) on the basis that it could not have been obtained with reasonable diligence and is decisive.

62. At the hearing, however, and for the first time, the Appellants suggested that all of the material which they sought to adduce had been material that they had asked to be included in the bundles for the PCP, but that this has not been done. In response I was shown letters of 30 October 2023 sent to MD and SF informing them what documents were to be included in the hearing bundle and asking what further documents they wished to include. It is clear both forwarded a substantial number of documents which appear in the PCP bundles, described as “Teacher Documents”, together with their written representations. I was referred to an email stating that MD had sent her documents by post. I can see no basis on which some but not all of the documents requested by MD and SF would have been placed before the PCPs, and I therefore reject that suggestion.

63. As to the material itself: i) There is a letter from Brent Council dated 13 February 2019 to ACE referring to the 12 December 2018 inspection and advising that running an unregulated school is a criminal offence. The letter refers to engagement between ACE and Brent’s Education Welfare Officer for Supplementary Schools and states, “should you decide to modify your activities and operate [ACE] as a supplementary school” please arrange a meeting with that officer. In response, MD wrote denying that ACE was operating an unregulated school. ii) There is a letter from the Department for Education to MD dated 7 June 2019 referring to the Ofsted inspection of 5 and 6 March 2019 (and therefore sent after the period with which the misconduct charges were concerned). This confirmed that at the time of the 12 December 2018 inspection, the inspectors had reasonable cause to believe an unregistered school was being operated, and served warning notices accordingly, but had not reached a final conclusion to that effect. iii) MD’s response repeated the suggestion (rejected by the Chief Magistrate to the criminal standard of proof) that the hours of the school had been cut back so as to only operate for any pupil for half the day after the 12 December 2018 inspection. iv) There are also letters from the Department for Education of 22 March and 5 April 2019.

64. There are three reasons why this Ground cannot assist the Claimants: i) First, there is no attempt to explain why the documents could not have been placed before the PCPs (assuming they were not). The documents were sent to MD (and in one case to SF), who must have been aware of them. It is not clear whether they were deployed in the criminal proceedings, but, if not, that was the decision made by the Appellants and their legal representatives. MD and SF were jointly represented in the criminal proceedings, and advanced a common strategy before their PCPs. There is no basis on which the Ladd v Marshall [1954] 1 WLR 1489 principles could be satisfied. ii) Second, MD did place the Department for Education letter of 7 June 2019 and MD’s response, and the letter of 22 March 2019, before the PCP. iii) Third, the material does not assist the Appellants, being entirely consistent with (and indeed corroborative of) the prosecution case against the Appellants. The letter from Brent Council dated 13 February 2019 confirms the warning ACE was given following the 12 December 2018 inspection that operating an unregulated school was a criminal offence. The letter from the Department for Education also confirms the earlier warning. MD’s response was that ACE was now only operating as a supplementary school, with its hours reduced accordingly. This was a self-serving statement, reflecting the defence run before the Chief Magistrate, which was rejected on convincing grounds, and also rejected on appeal. Ground 5: the Procedural Irregularity Ground

65. This complaint concerns the evidence of a Mrs Hamouda given to the Crown Court, to the effect that ACE was only operating as a supplementary school and not operating as an “all-day” school, and criticising the behaviour of the Ofsted inspectors on 5 and 6 March 2019. It is said that no transcript of that evidence was placed before the PCPs.

66. Once again I am satisfied that there is nothing in this ground: i) First, it was not for the PCPs to review the basis of the convictions of MD and SF which had been made to the criminal standard by the Chief Magistrate and upheld on appeal. Save in exceptional circumstances – and none were identified – the PCPs were entitled to proceed on the basis that the convictions were properly entered. Further, in their completed Notice of Referral Forms, both MD and SF admitted the allegations made against them; and that they amounted to “conviction of a relevant offence” and similar admissions were made in the signed Statement of Agreed Facts. ii) Second, the Crown Court made factual findings as to Mrs Hamouda’s evidence, to the effect that her child was getting “the bulk of her education” from the ACE school (such that the evidence did not assist the Appellants). There is no basis for going behind that finding. iii) Third, both MD and SF made extensive written submissions to their PCPs and adduced a number of items of evidence. It was open to them to refer to such evidence as they saw fit. MD and SF both referred to the evidence given by the mother of one child (who appears to Mrs Hamouda) to the court. Neither sought to adduce any transcript of Mrs Hamouda’s evidence at the Crown Court (where none of the evidence was transcribed) or adduce even a letter from Mrs Hamouda, still less to call her to give evidence at an oral hearing. Conclusion

67. For these reasons, the appeals of both Appellants are dismissed.