As our clients know, teacher regulation is often a slow process. The TRA have been working on an update to their procedural rules for around 3 years. They finally published them on 16 May 2020 and they can be read here. We have been involved in the consultations beforehand and are glad to say several changes have made it through which assist us in defending teachers fairly.
The principle one is recognition of the need for sequential disclosure. This means the TRA’s lawyers must disclose all its finalised evidence in writing 8 weeks before the hearing and then give the teacher a minimum of 4 weeks to respond with their written evidence in response. The previous rules allowed the TRA to serve evidence up to the same time as the teacher, 4 weeks before the hearing.
Other sensible points include:
- explicit recognition of teachers representatives – 1.4
- a broader discretion for panels to vary the procedural rules – 1.5
- a slightly longer timescale to respond to notice of interim prohibition – 3.9
- a requirement to agree a Statement of Agreed and Disputed Facts – 4.20
- clearer disclosure rules and a variety of other clarifications.
One change however is a particularly backward step. Unfortunately we understand it was slipped in without consultation and appears at rule 5.82 which says:
“The panel may discontinue the proceedings at any stage if it is satisfied that it is fair and appropriate to do so because (i) it does not remain possible for the teacher to receive a fair hearing; or
(ii) it offends the panel’s sense of justice and propriety to be asked to continue to hear the proceedings against the teacher in the particular circumstances of the case.”
This sounds fair enough as far as it goes, but the previous rule 4.54 gave a much broader discretion:
“The panel may, at any stage of the proceedings where it considers it fair and appropriate, adjourn the case or discontinue the proceedings.“
The new rule limits discontinuance to a test taken from the law about abuse of process. Such applications are very rare and even more rarely successful. Previously we sometimes invited panels to review the state of the evidence at the close of the TRA’s case against the teacher. Lawyers describe such applications as being “half time” submissions. We would argue that, having heard all the TRA’s evidence, there was “no case to answer”. Clearly if there is no evidence in support of an allegation panels should stop that part of the case. But also, where the evidence heard has turned out to be inherently weak or tenuous, such that no reasonable panel could rely on it to find the allegation proved, then that part of the case should also be stopped before the case for the teacher’s defence is heard.
The new procedures appear to exclude ”half time” submissions by citing the test for abuse of process only. This should be changed to add the following tests where:
(iii) there is “no case to answer, in relation to part or all of the factual allegations; or
(iv) the alleged conduct could not, in the panels view, amount to UOPC and/or conduct that may bring the profession into disrepute and/or conviction of a relevant offence; or
(v) it is otherwise in the interests of justice to so discontinue.
When appropriate we intend to continue to make “half time” submissions on the evidence as we always have because the rules of natural justice of which they are part apply everywhere regardless of any omissions in written procedures.