C v Panel of the Disciplinary Committee of the Teacher Council and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Conleth Bradley
• Judgment Date: 28 June 2024
• Neutral Citation: [2024] IEHC 575
• Court: High Court
• Docket Number: Record No. 2022/632JR

Between/

C

Applicant

and

The Panel of the Disciplinary Committee of the Teaching Council

First Named Respondent

and

The Director of the Teaching Council

Second Named Respondent

[2024] IEHC 575

Record No. 2022/632JR

AN ARD-CHÚIRT

THE HIGH COURT

Judicial review – Professional misconduct – Admissibility of evidence – Applicant seeking to challenge the first respondent’s decision to deem screenshots of information from a mobile telephone messaging application admissible as evidence to the statutory investigation carried out by it – Whether the exclusionary rule applied to the the first respondent’s decision

Facts: Four allegations of professional misconduct and a contravention of the relevant Code of Conduct were made against the applicant. He applied to the High Court for judicial review seeking to challenge the decision dated 21st June 2022 of the first respondent, a panel of the disciplinary committee of the Teaching Council, at a preliminary hearing, to deem screenshots of information from a mobile telephone messaging application admissible as evidence to the statutory investigation carried out by it. The applicant contended that: (a) the exclusionary rule formulated in The People (DPP) v JC [2015] IESC 31 applied to the panel’s decision; (b) in the alternative, if JC did not apply, then “the balancing test” articulated in The People (DPP) v O’Brien [1965] I.R. 142 applied to the panel’s decision; and (c) the panel erred in law in its application of the balancing test articulated in O’Brien and as set out in its decision.

Held by Bradley J that the Council has to have regard to the integrity of the process and where something is going to bring the process into disrepute, that is the basis in which evidence may be excluded. He noted that, in emphasising that a mechanical application of the exclusionary rule which made it “easy to prevent disciplinary tribunals from receiving and hearing relevant and probative material” should be avoided, Fennelly J in Kennedy v Law Society of Ireland (No. 3) [2001] IESC 103 stated that “a balance must be struck” between the rights of individuals and those professional bodies assigned the task of supervising their behaviour so as to give careful weight to two competing considerations: firstly, the test adopted should not unduly impede the latter types of body from performing their duty of protecting the public from professional misbehaviour; and secondly, members of professional bodies should be protected from such a clear abuse of power, as would render it unfair that the evidence gathered as a result be received. Bradley J held that the panel’s decision correctly sought to strike the balance referred to by Fennelly J in Kennedy (No. 3). Noting that the applicant sought an a priori finding by the court, in the context of an extant statutory inquiry excluding evidence procured by a third party in allegedly unlawful circumstances, Bradley J was of the view that the applicant was not entitled to the reliefs claimed in the application for judicial review. Bradley J held that all of the procedural and substantive safeguards provided in the Teaching Council Act 2001 remained available to the applicant.

Bradley J refused the application for judicial review.

Application refused.

REDACTED

JUDGMENT ofMr. Justice Conleth Bradleydelivered on the 28 ^th day of June 2024

INTRODUCTION

Preliminary

1 This application for judicial review seeks to challenge the decision dated 21 ^st June 2022 of a panel of the disciplinary committee of the Teaching Council 1 at a preliminary hearing, to deem screenshots of information from a mobile telephone messaging application admissible as evidence to a statutory investigation carried out by it.

2 The First Named Respondent comprises a panel of the disciplinary committee of the Teaching Council (“the panel”) and the Second Named Respondent comprises the Director of the Council (“the Director”).

3 The Applicant seeks inter alia to quash the decision of the panel dated 21 ^st June 2022 to permit the Director to adduce in evidence at an inquiry, screenshots of information allegedly taken unlawfully from the Applicant's mobile messaging application (“the screenshots”) by the Applicant's former partner and/or evidence garnered from any unauthorised and/or non-consensual access to the Applicant's social media account. The inquiry is due to take place at a later date pursuant to Part 5 of the Teaching Council Act 2001 as amended (“the 2001 Act”).

4 In summary, four allegations of professional misconduct and a contravention of the relevant Code of Conduct were made against the Applicant to the effect that while employed: (i) on every day during a defined period, the Applicant sent and received at least one photograph and/or video via a mobile messaging application to a third party whom the Applicant had taught in fifth and sixth year, and who was in the process of completing the Leaving Certificate examinations; and/or (ii) on every day during a defined period, the Applicant sent and received at least one photograph and/or video via a mobile messaging application to and from a third party, whom the Applicant had taught in fifth and sixth year, and who was awaiting the results of the Leaving Certificate examinations; and/or (iii) on a date unknown in a specified month, the Applicant had a sexual encounter with a third party, whom the Applicant had taught in fifth and sixth year, and who had just sat the Leaving Certificate examinations in a defined month and year; and/or (iv) during the summer of a defined year, the Applicant engaged in a romantic relationship with a third party whom the Applicant taught in fifth and sixth year.

5 At a preliminary hearing held on 1 ^st February 2022, the panel was informed that the Applicant intended to object to the admissibility of the screenshots which the Director intended to adduce at the inquiry.

6 The parties agreed that the panel should rule on this issue in advance of the commencement of the inquiry and could do so without oral evidence and on the basis of agreed facts. These agreed facts are, subject to further redaction, referred to later in this judgment.

7 A further preliminary hearing took place on 31 ^st May 2022 on the admissibility of the evidence in question and consequential directions were made. As stated, the panel gave its decision on 21 ^st June 2022 to allow the screenshots to be admitted in evidence, and it is that decision which the Applicant seeks to impugn in this application for judicial review.

8 At the hearing before me, the Applicant was represented by Eileen Barrington SC and Eoghan Cole SC. The Respondents were represented by Remy Farrell SC and Eoghan O'Sullivan BL.

SUMMARY OF AGREED FACTS

9 The facts agreed for the purpose of the panel's preliminary ruling on the question of the admissibility of the screenshots were as follows: 2

• (a) The Applicant has been in employment since 2014. In a defined two year period, the Applicant taught Fifth and Sixth Years, including a student who sat the Leaving Certificate in the month of June of a certain year. On a named month and year, the Applicant informed the Principal of the school that their relationship with their partner had ended and took some leave.

• (b) On a named month and year, two teaching colleagues informed the Principal of certain allegations that had been made to them by the Applicant's former partner regarding the Applicant's alleged relationship with a third party former student. They also stated that the Applicant, when contacted, had stated to the two teaching colleagues, the Applicant's acceptance of having had a sexual encounter with the said third party on a date prior to the Leaving Certificate results having issued. The Applicant's former partner met with the principal and repeated the allegation that the Applicant had had an affair with the third party and alleged that there had been communication between the Applicant and the third party on social media while the third party was being taught by the Applicant. The Applicant's former partner produced mobile telephone screenshots which allegedly showed that there had been daily interactions between the Applicant and the third party over the course of a number of successive days.

• (c) The principal met with the Applicant to discuss these allegations. The Applicant explained that they had met the third party in a public house while on a night out and that they had spent the night together in a hotel room and had a ‘once-off’ sexual encounter and that there had been no contact since. The Applicant stated that the Applicant's former partner's allegation that the Applicant had been in contact with the third party for a number of months on a named social media platform was untrue, and stated that at no stage had there been communication on social media.

• (d) During the Board of Management's investigation into these issues, the Applicant accepted that there had been a sexual encounter (the month and year was given) between the Applicant and the third party and that this had been a once-off encounter. In relation to the alleged screenshots of the alleged social media contact between them, the Applicant inter alia suggested that these could have been sent from a fake account, stating again in a written response to the report prepared by the Board, inter alia, that the Applicant never had any contact with the third party on the named social media platform, that any person could set up such an account using a surname, that nothing was verified using proof of identity, that the screenshots did not contain the Applicant's name anywhere in the picture, that there was no proof to say this was the Applicant's account or that the screenshots in question were taken from the Applicant's account, the Applicant's name was nowhere to be seen and that anyone could have set up this account using the username in question.

• (e)...