Moseley v Secretary of State for Education And Skills [2002] EWCST 1(PC) (4 April 2003)

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SUSAN DORIS MOSELEY
-v-
SECRETARY OF STATE FOR EDUCATION AND SKILLS
[2002]1 PC

Before
Miss Helen Clarke (Chairman)
Mr Mike Donovan
Mr Ray Winn
On March 13th 2003

1. Mrs Moseley appeals the decision dated 15th December 2000 by the then Secretary of State of Education and Employment (and now referred to as the Secretary of Education and Skills) (hereinafter referred to as the Secretary of State) to issue a direction to bar her from teaching on the grounds of misconduct in accordance with Regulation 5(2) (B) of the Education (Restriction of Employment) Regulations 2000(the 2000 Regulations).

2. Preliminary directions were made by His Honour Judge David Pearl on 13th November 2002 and further directions made under Regulation 9 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 (the 2002 Regulations) on 9th January 2003. These further directions at paragraph 7 refer to the Applicant’s decision that she wished the Tribunal to decide the Appeal without holding a hearing "at this stage". The Direction stated that unless the Applicant informed the Secretary to the Tribunal no later than 5 pm on Monday 10th March 2003 that she wished the Appeal to be dealt with at an oral hearing the Appeal would be dealt with on the papers. No request was made by the Appellant to attend the hearing and therefore this Tribunal has considered the matter based on the papers before it.

4. In this case the Secretary of State in the Direction dated December 15th 2000 exercised his discretion under Regulation 5(b) (i) of the 2000 Regulations to make a direction "on grounds of misconduct, that Susan Doris Moseley shall only be appointed or employed in relevant employment, as defined in the above Regulations by any authority or body after the date on which this is given as a worker with children or young persons".

5. The accompanying letter dated December 15^th 2000 from the Department of Education and Employment (now know as the Department for Education and Skills and hereafter referred to as the DfES) sets out the effect of the Direction and stated:

(a) By a local education authority, as a teacher (whether or not at a school or further education institution);

(b) By any other body as a teacher at a school or further education Institution.

The Appellant was told in the letter that she had a right of appeal and she exercised her Appeal which we now have to consider.

The burden of proof in this case is on the Secretary of State who must discharge this burden for the Appeal to be dismissed. The standard of proof is the civil burden of the balance of probabilities as stated in the case of Re H and Others [1996] 1 All ER.

6. Mrs Moseley qualified as a teacher in dressmaking and English and in 1973 began working as a supply teacher. Mrs Moseley has three children and spent time during the early years of their lives at home with them. During the 1980's Mrs Moseley and her husband were involved in a number of business ventures but they were not particularly successful and eventually Mrs Moseley returned to supply teaching. .

In 1991 whilst living in Cornwall Mrs Moseley became involved in the fund raising activities for a charity known as Venture Abilities Trust which sought to raise funds to enable disabled children to be involved in sailing trips.Mrs Moseley set up a separate company known as Time and Tide UK Limited. Raffle tickets were sold on behalf of the Ventures Abilities Trust by Time and Tide UK Limited and a percentage of the monies raised were passed to the Venture Abilities Trust.

7. In March 1993 the Ventures Abilities Trust decided to merge with another group which had received additional funding from the Sports Council.Mrs Moseley claims that following the merger of the two groups there was a reduction in the number of places available in the boat for crew members with disabilities which eventually caused Mrs Moseley to disassociate herself from the merged organisation.

Some time later in the autumn of 1993 a new Charity limited by guarantee was formed called the Time and Tide Trust which aimed to raise money for the purpose of entering a disabled crew in the 1996 BT Global Challenge Yacht Race. At that time James Hatfield, Susan Davis and Guy Chandler became involved as Trustees and Mrs Moseley was the fundraiser. Mrs Moseley’s company the Time and Tide UK Limited continued to trade for a period of time after the new charity was created but eventually ceased to trade. At first Mrs Moseley remained in Cornwall but in July 1995 the Trust administration was moved to Hampshire and Mrs Moseley also moved to Hamphire.Shortly after the move questions were raised about the financial viability of the Trust and Mrs Moseley was suspended on August 30^th 1995. The Trustees of The Time and Tide Trust appeared to be uncertain as to whether Mrs Moseley was (a) a trustee, (b) employed by the trust or (c) self employed..

8. After Mrs Moseley was suspended from her position with the Trust she wrote on September 2^nd 1995 to the Charity Commission asking them to investigate The Time and Tide Trust. Investigations by the Trustees of Time and Tide Trust culminated in Mrs Moseley being sacked and subsequently she was investigated by the police, stood trial and was convicted of three offences of forging a document, two offences of using a false instruments, nine offences of theft, one offence of false accounting and one offence of obtaining service by deception and she was sentenced to 18 months imprisonment.

Whilst serving an 18 month jail sentence Mrs Moseley appealed to the Criminal Cases Review Commission and it was agreed on 16th January 1999 that her case was eligible for review. No review has yet taken place and there has been no indication given of any possible date when a decision is likely to be made as there is a significant backlog of cases.

The administration and the accounting procedures operated by the Time and Tide Trust were subsequently investigated and criticised in a Charity Commission Report issued after the date of the decision by the DfES.

9. Mrs Moseley originally applied to the Protection of Children Act Tribunal (which is now incorporated into the Care Standards Tribunal) requesting that her appeal be delayed until the outcome of her application to the Criminal Cases Review Commission and any possible reference to the Court of Appeal is known. The application was opposed by the Secretary of State who also sought to strike out the appeal.

10. In a decision dated 30th May 2001 the then President of the Protection of Children’s Act Tribunal Mr Trevor Aldridge QC rejected the application to strike out the appeal and ordered that "consideration of the appeal be postponed until after 30th November 2001 or such earlier date as the Criminal Cases Review Commission announced its decision following its review of Mrs Moseley’s conviction". After the 30th November 2001 it was open to either party to make further applications in respect of the appeal.

In the directions hearing dated 13th November 2002 His Honour Judge David Pearl directed that the appeal process should not be delayed and issued directions concerning the appeal in accordance with the regulations contained in the 2002 Regulations.

11. The basis of Mrs Moseley’s Appeal against the Secretary of State decision is set out in her application to the Tribunal and can be summarised as follows:

12. This is set out in the letters of 15th December 2000 and 8th February 2001 and is also summarised in the witness statement of Elizabeth Anne Hunter dated February 21^st 2003 and can be paraphrased as follows:

13. It is not the role of this Tribunal to question the basis or the validity of Mrs Moseley’s existing convictions. Mrs Moseley has challenged the correctness of these convictions and has understandably placed emphasis on the decision of the Criminal Cases Review Commission to review her case. Whilst it is very regrettable that there has been a significant delay in reviewing the case owing to a backlog of work the status of the convictions remain unchanged until the outcome of the review and any possible decision by the Court of Appeal is known. Furthermore there is no guarantee the Commission will find in favour of Mrs Moseley, as was clearly indicated in a letter from the Commission to Mrs Moseley dated December 23rd 1998"Obviously at this stage we cannot comment on the merits of your application, or whether there are any exceptional circumstances, these will only be considered when the case is fully reviewed."

14. The DfES in the witness statement of Elizabeth Anne Hunter indicated that additional time had been allowed before the decision was made to exercise the discretion and to issue a direction. Regulation 7of the 2000 Regulations refers to a two month period for representation and for information and evidence to be submitted. The DfES wrote to Mrs Moseley whilst she was still in prison on December 10^th 1998 informing her that the Secretary of State was considering taking action to bar or restrict her employment. However a much longer period of time than the two months envisaged in the regulations was allowed to elapse during which time there was continuing correspondence between Mrs Moseley and the DfES.The DfES encouraged Mrs Moseley to attend an interview which initially she was reluctant to do. The interview took place on May 4th 2000 and the direction was eventually issued on December 15th 2000. The Tribunal finds that the DfES did take into account the particular circumstances of this case before exercising its discretion and did allow additional time to elapse before reaching a decision. The fact that it enabled Mrs Moseley to continue teaching was not illogical as of the DfES had already informed Mrs Moseley that she was not considered a risk to children This issue was also considered by the then President of the Protection of Children Act Tribunal, Mr Trevor Aldridge QC, who had recognised that "it would fly in the face of the aim for the Tribunal to consider the Appeal on a basis which might shortly prove to be false." The decision also identified that if Mrs Moseley was successful in the Court of Appeal her circumstances and the whole basis of her case would change. This Tribunal agrees with this analysis. This Tribunal also agrees with the observation at clause 10 of the same decision postponing the appeal where it is stated that there should not be "an indefinite delay." The original order stated that the Appeal should" be postponed until 30th November 2001 or such earlier date as the Criminal Cases Review Commission announces its decision following its review of Mrs Moseley’s convictions.

15. The Appellant claims that the DfES should now wait until the outcome of the Criminal Cases Review Commission whenever that may be. The Tribunal does not accept this position as it causes continuing uncertainty and there is no indication of when a decision may be forthcoming. In reaching this conclusion the Tribunal has borne in mind that the Appellant has the right under the Education (Restriction of Employment) Regulations 2000, Section 12(2) (b) to apply for a further review by the Secretary of State if there is "a material change in the circumstances of the person concerned occurring since the earlier direction was given". Clearly if Mrs Moseley was successful and the convictions were overturned in the Court Of Appeal they would represent a material change which the Secretary of State would then no doubt wish to consider. This point was acknowledged in a letter to Mrs Moseley from The Treasury Solicitor dated April 2nd 2001.

16. The Tribunal has considered carefully Mrs Moseley’s comments about her teaching skills, and the letters and testimonials from her employers. Mrs Moseley submits that this indicates that she does not pose a risk to children and therefore she should be permitted to teach, but this is not the issue on which the direction was made. The letter dated 8th February 2001 from the DfES at the fifth paragraph states "the Secretary of State did not view the nature of your offences as suggestive that you pose a risk to the safety and well being of children. He did however conclude that your offending behaviour was incompatible with the standard expected by a member of the teaching profession." The Tribunal accepts that the decision to issue the direction was not based on Mrs Moseley’s ability to teach or any of risk she might pose to children but on her behaviour, and in particular the convictions which the Secretary of State considered were below the standard expected from a member of the teaching profession. The Tribunal agrees with the statement in the letter dated May 3^rd 2001 from Mrs Elizabeth Anne Hunter on behalf of the DfES where she states

"Teachers are expected to display very high standards of behaviour and to set an example to pupils"

The Tribunal also considered the Code of Professional Values and Practice issued by the General Teaching Council which requires teachers to demonstrate characteristics which they are trying to instil in young people, which includes honesty

17. Mrs Moseley also referred to the Charity Commission Report into the running of the Time and Tide Trust and specifically referred to the change in the description of her status within the charity. The Tribunal recognises that Mrs Moseley considers that it is significant that the Charity Commission was willing to alter the wording in the report on the Time and Tide Trust. In the original report she is referred to as a Trustee whereas later following a request by Mrs Moseley the report was amended and she is then referred to as a paid administrator.

In the witness statement of Elizabeth Anne Hunter dated 21st February 2003 at paragraph 7, it is stated that the DfES did consider the Charity Commission Report when it became available but decided that it did not produce any new evidence relevant to the decision which was not available when the Secretary of State made the original direction. This distinction may be relevant to Mrs Moseley’s case to overturn some of her convictions but it does not change the status of her existing convictions at the present time nor at the date when the decision was reviewed by the DfES.

18. The Tribunal is conscious of the considerable correspondence and effort undertaken by Mrs Moseley to endeavour to overturn her convictions. She has pursued an investigation against the Charity Commission, against her previous solicitors and obtained a right to a review of her convictions by the Criminal Cases Review Commission. These are not inconsiderable achievements and her persistence in her objective of overturning the convictions is recognised. Nevertheless at the present time she stands convicted of three offences of forging a document, two offences of using a false instrument, nine offences of theft, one offence of accounting and one offence of obtaining service by deception during the period between January 1st 1993 to the January 31st 1995. These are serious offences bearing in mind the position of trust and responsibility in which a teacher is placed.

The Tribunal accepts that Mrs Moseley does not pose a risk to children but the convictions and the not insignificant prison sentence cannot be ignored. The role of a teacher in society is an important one and parents and the general public expect and are entitled to expect high standards from teachers. A teacher is placed by the parents of the children in a position of trust and responsibility and a teacher must be able to demonstrate those qualities not only in their professional spheres of work as a teacher but also in their personal conduct. Teachers are perceived as role models for children and trust and honesty are core values which underpin the status of teaching as a profession. The Tribunal accepts that the DfES is entitled to treat criminal convictions as conclusive proof of guilt. The DfES has a responsibility, to the children, the parents and to teachers, to monitor and maintain high standards within the teaching profession. .

19. The Tribunal was also mindful of the issue of human rights, which was raised in a letter by Mrs Moseley and the Tribunal is conscious that the restriction does interfere with her wish to continue teaching .Although no specific article under the Human Rights Act 1998 was mentioned by either party the Tribunal considered Article 8 of the European Convention on Human Rights and Fundamental Freedoms( the Convention) on the basis that by limiting the opportunity for Mrs Moseley to work as a teacher it might be argued that it limits her opportunity to provide an income for herself and her family. The Tribunal accepts that being barred from teaching is a very significant decision, particularly for a committed teacher and so the Tribunal also considered Article 14 of the Convention which relates to discrimination. The Tribunal accepts that direction does discriminate against teachers who have criminal convictions but the Tribunal considers that this discrimination is proportionate as an individual’s rights must be balanced against the right of the state to maintain high standards within the teaching profession and to monitor and enforce those standards where necessary. In reaching this conclusion the Tribunal took into account that there is a right for the teacher to apply for a review of the decision by the DfES at a later date.

20. Whilst in prison Mrs Moseley in a letter dated December 16^th 1998 stated "I have never been a career teacher". In a subsequent letter dated Jan 2^nd 2001 she indicate that she was only intending to return to teaching for a comparatively short period of time, as she had already found a new job involving I.T training which would commence in April 2001. Therefore Mrs Moseley herself has indicated that she was able to find other forms of work besides teaching. The Tribunal has also taken into consideration Mrs Moseley’s right to make a further appeal against the direction if there is a material change (the obvious one being if her convictions were overturned).

21. Taking these factors into account we consider the decision is proportionate to the overall aim of maintaining high standards within the teaching profession, notwithstanding the loss of respect that a ban may have on any individual teacher so affected, and we do not accept that there is an infringement of any specific article under the Human Rights Act 1998.

On the evidence the Tribunal has reached the unanimous conclusion that the direction of December 15th 2000 was appropriate and accordingly we dismiss the Appeal.

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