We have written before about how hard it is to win an appeal against a prohibition order in the HIgh Court.  Andrew has managed to cement into law that the High Court should usually approach such an appeal by a teacher as a ‘rehearing’. ​ But that hasn’t made winning appeals ​easy.  The court still has to be persuaded that the original decision was not simply harsh but was completely wrong​ or​ unjust because of a serious procedural or other irregularity.  That is a high hurdle​. 

Also, just because it is labelled a re-hearing does not mean the judge rehears the witnesses.  Rather they review what happened first time around and generally (providing the Professional Conduct Panel and the official acting for the Secretary of State for Education haven’t made a howler) will dismiss the appeal. ​ In other words, the judge will not substitute ​t​heir own view and will​, wherever possible​, defer to the expertise of the Panel and the DfE.  So for us to succeed we have to show it is impossible for the judge to fairly endorse what has happened.

In 2022 one of our clients was prohibited from teaching for overassisting in a SATs test.  We always knew that was a possible outcome so his was one of those cases where appealing was difficult; what he had done was capable of justifying prohibition.  However, the reasoning of this particular Panel was unusually poor – they had made factual errors and ignored whole sections of evidence when recommending prohibition.  So we advised that there were arguable grounds of appeal​ but cautioned our client that even winning an appeal​ would not necessarily guarantee ​the lifting of the prohibition order which had ended his employment.  That was because the High Court could simply remit, i.e. say that another professional contact panel should remake the decision.

We launched an appeal, setting out our critique of the Panel’s decision.  The government filed its defence and the case awaited a listing.  As the time drew near for the appeal hearing, the papers must have landed on the desk of a barrister tasked with defending the Secretary of State’s decision and it finally received some detailed consideration.  We received good news; the Secretary of State was willing to concede the appeal providing we accepted that the decision would have to be remade by a fresh Panel.  We had won – but we remained anxious to avoid a pyrrhic victory i.e. the lawful making of a prohibition order.  Fortunately, at the second hearing the new Panel were persuaded by the detailed arguments we put forward and our client is now able to resume his career.