Factual and Procedural Background
The Applicant, a serving prisoner convicted of murder, had undertaken extensive educational work and rehabilitation in prison. He sought clearance to enter teaching, and the Respondent directed that he be barred from work to which section 142 of the Education Act 2002 applied, on the ground that he was unsuitable to work with children. [1][2][3][4]
The Applicant appealed under section 144 of the Education Act 2002. The Respondent’s application to strike out the appeal was refused, and the matter proceeded to an oral hearing. The case was determined on submissions. [5][6][7][8]
The Tribunal excluded most post-decision parole material because it constituted new evidence unavailable to the Respondent when the direction was made. [9][10][11][12]
Legal Issues Presented
- Whether the Applicant should remain barred from relevant educational work on the ground of unsuitability or whether the direction should instead be made on the ground of misconduct. [13][14][15]
- Whether conditions could lawfully and practically be attached to a direction based on unsuitability. [16][17][18]
- What restrictions should apply to the Applicant’s permitted educational work. [19][20][21][22]
Arguments of the Parties
Respondent's Arguments
- The restriction was justified both to protect children and to maintain public confidence in the education system. [23][24][25]
- The seriousness of the murder conviction, the Applicant’s continuing imprisonment, and the possibility of contact with children in educational settings supported an unsuitability direction. [26][27][28][29]
- Safeguarding arrangements, parole conditions, and prison risk assessments should not be relied upon because they were not directed specifically to child protection or public confidence in educational employment. [26][27]
- The Applicant’s good prison conduct did not establish that there was no appreciable risk of reoffending or future unsuitable conduct. [27][28]
- The Tribunal could substitute misconduct for unsuitability only where the facts objectively justified that categorisation; the severe consequences of unsuitability should not determine the classification. [30][31][32]
- A serving prisoner convicted of murder met the threshold for unsuitability, and the conviction was not capable of remediation in the same way as some professional misconduct. [33][34][35]
Applicant's Arguments
- The statutory offence provisions should be construed strictly, and section 35 should not prevent conditions permitting employment where the direction itself allowed such work. [36][37][38][39]
- The Applicant’s rehabilitation, educational qualifications, exemplary prison conduct, and the safeguards associated with release on licence were relevant to suitability and remediation. [40][41][42][43]
- The Applicant intended to teach adults rather than children, and a murder conviction involving neither a child nor a vulnerable adult should not automatically be treated as incapable of remediation. [42][43]
- The criteria identified in Duffield v SoS supported a proportionate assessment considering the seriousness and age of the offence, subsequent conduct, recognition, rehabilitation, and the absence of a direct risk to children. [44][45][46][41][47]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Secretary of State v Norford [2010] UKUT 248 |
An appeal is more akin to a redetermination than a review, subject to restrictions on new material. |
The Tribunal adopted this approach and excluded inadmissible new evidence. [48][12] |
| FH v Secretary of State [2005] 552.PT |
The restriction should protect children and preserve the confidence of reasonable parents and others in the education system. |
The Tribunal applied the public-confidence consideration. [49][50][51] |
| CN v Secretary of State [2004] 398.PC/399.PVA |
Authorities cited concerning the purpose of employment restrictions. |
Cited by the Respondent in support of protecting children and maintaining public confidence. [23] |
| Mason v Secretary of State (2001) 00788 |
Authority cited concerning the purpose of employment restrictions. |
Cited by the Respondent on protection and public confidence. [23] |
| Secretary of State for Children, Schools and Families v BP [2009] EWHC 866 (Admin) |
Public confidence may include matters likely to concern ordinary sensible people, without pandering to unreasonable public reaction. |
The Tribunal focused on whether ordinary sensible people would have legitimate concerns about the Applicant teaching unrestricted in a school environment. [52][53][51][54] |
| MC v SoS [2007] 1193.PT; [2008] 1472.PT |
There is a distinction between unsuitability and misconduct; unsuitability carries more extensive restrictions and a ten-year review restriction. Remediation may support a misconduct classification. |
The Tribunal used the case to substitute misconduct for unsuitability and considered the Applicant’s rehabilitation. [55][30][56][57][14][15][58] |
| R (Haw) v Secretary of State for the Home Department and Metropolitan Police Commissioner [2006] EWCA Civ 532 |
Penal legislation should be construed strictly; a person should not be penalised except under clear law. |
Cited by the Applicant in support of his interpretation of section 35. [38][39] |
| R v Bristol Magistrates Court ex p E 3 AER 798 at 804 |
The principle that a person should not be penalised except under clear law. |
Cited as supporting the strict-construction argument. [38][39] |
| Duffield v SoS [2008]1383.PC |
Relevant suitability factors include the gravity and age of misconduct, recognition, steps to prevent recurrence, and extenuating circumstances. |
The Tribunal applied these criteria proportionately, while noting that the case involved direct harm to a child. [59][45][46][41][60][47] |
| R (Roberts) v Parole Board [2005] UKHL 45 |
The Parole Board’s public-protection function includes assessing risks posed by offenders eligible for release or progression. |
Cited by the Applicant concerning the relevance of licence and parole safeguards. [42] |
| Osliffe v SoS (2005) 550 PT |
A barring direction based on misconduct was upheld in relation to a manslaughter conviction. |
The Tribunal regarded the decision as supporting the appropriateness of misconduct, although it contained limited analysis. [58] |
| DAS v SoS [2006] 796.PT |
Unsuitability was upheld where conduct involving children raised issues of judgment, responsibility, and insight. |
The Tribunal considered it less relevant because that case involved an obvious direct risk to children. [61] |
Court's Reasoning and Analysis
The Tribunal treated the appeal as a redetermination but excluded material that was genuinely new when the Respondent made the original decision. It therefore considered the evidence available to the Respondent, together with admissible submissions. [48][10][12]
The statutory scheme pursued two purposes: protecting children and maintaining public confidence. The Respondent did not allege a direct risk to children, so the central question was whether ordinary sensible people would have legitimate concerns about the Applicant working without restriction in a school environment. [51][54]
The Tribunal rejected the proposition that barring was inevitable merely because the Applicant was a serving prisoner. It considered the case exceptional, including the likely near-term release, the Applicant’s recognition of the seriousness of the offence, and his exemplary conduct and rehabilitation. [62][63]
The Tribunal held that an unsuitability direction would generally prevent work in an educational institution in any circumstances, while a misconduct direction would not. Although conditions could theoretically be imposed, the restrictions imposed by section 35 of the 2000 Act made conditions attached to an unsuitability direction practically meaningless. [17][18][15]
The Tribunal had power to substitute the basis of the direction. It concluded that the Respondent’s decision letter did not sufficiently analyse the competing factors or demonstrate consideration of misconduct as an alternative basis. [14][64][65]
Applying the guidance in MC v SoS and Duffield v SoS, the Tribunal considered the seriousness of the murder, the passage of approximately twelve years, the Applicant’s good character before the offence, his rehabilitation, completed courses, exemplary prison record, and supporting references. It concluded that the conviction did not automatically establish unsuitability, particularly because there was no alleged direct risk to a child. [58][47][66][67]
The Tribunal therefore considered misconduct to be the appropriate basis for barring. To preserve public confidence, it limited permitted work to adult education, outside normal school hours or during school vacations, and only after release on licence. [68][20]
Holding and Implications
The Respondent’s unsuitability direction was quashed. The Applicant was instead barred under section 142(4)(c) of the Education Act 2002 on the ground of misconduct. [69][70]
The Applicant could undertake education work only for persons aged 18 or over, at a school only outside normal school hours or during vacations, and after release on licence. [21][71][72][22]
The direct effect was to replace an unrestricted unsuitability bar with a conditional misconduct-based bar. The opinion identifies no broader implication or new precedent beyond applying the existing statutory scheme and cited authorities.