M.P. v The Teaching Council of Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice McGovern
• Judgment Date: 23 July 2019
• Neutral Citation: [2019] IECA 204
• Date: 23 July 2019
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2019] IECA 204 Record No. 2019/139

[2019] IECA 204

THE COURT OF APPEAL

McGovern J.

Peart J.

McGovern J.

Kennedy J.

Neutral Citation Number: [2019] IECA 204

Record No. 2019/139

BETWEEN/

M.P.

APPELLANT

- AND–

THE TEACHING COUNCIL OF IRELAND

RESPONDENT

Interlocutory injunction – Delay – National Vetting Bureau (Children and Vulnerable Persons) Act 2012 s. 19 – Appellant seeking an interlocutory injunction – Whether the respondent complied with the requirements of s. 19 of the National Vetting Bureau (Children and Vulnerable Persons) Act 2012

Facts: The appellant challenged the invocation by the respondent, the Teaching Council of Ireland, of s. 19(1) of the National Vetting Bureau (Children and Vulnerable Persons) Act 2012 to refer a matter to the National Vetting Bureau. The appellant brought an application for an interlocutory injunction restraining the respondent from making the notification and on the 1st August, 2018 the High Court made an order restraining the respondent from making the notification until further order. The appellant gave an undertaking not to carry out any activities for which a vetting disclosure would be required pending the trial of the action. The appellant took these proceedings by way of plenary summons and directions were given from time to time as to how the action should proceed. The parties agreed that documents which had been discovered could be put into evidence without formal proof and neither party called evidence at the trial of the action but relied on the pleadings, affidavits which had been exchanged at the interlocutory application and a core bundle of documents from the respondent’s discovery. The matter proceeded to a full hearing and the appellant’s claim was dismissed in a judgment delivered by Allen J on the 26th February, 2019. The appellant appealed to the Court of Appeal against that decision. The appeal turned on the question of delay and the meaning of the words “as soon as may be” in s. 19 of the 2012 Act.

Held by McGovern J that the trial judge was correct in concluding that the respondent complied with the requirements of s. 19; in paras. 96-112 of his judgment the High Court judge set out the reasons why he was satisfied that the respondent’s decision to make a notification to the National Vetting Bureau was made “as soon as may be” having regard to the matters he referred to therein and the scheme and purpose of the 2012 Act.

McGovern J held that he found no error in the conclusions reached by the High Court judge and would therefore dismiss the appeal.

Appeal dismissed.

JUDGMENT of Mr. Justice McGovern delivered on the 23rd day of July 2019

1 This appeal arises out of a challenge by the appellant to the respondent's invoking of s. 19(1) of the National Vetting Bureau (Children and Vulnerable Persons) Act 2012 (hereinafter referred to as ‘the Act of 2012’) to refer a matter to the National Vetting Bureau. The appellant brought an application for an interlocutory injunction restraining the respondent from making the notification and on the 1st August, 2018 the High Court made an order restraining the respondent from making the notification until further order. The appellant gave an undertaking not to carry out any activities for which a vetting disclosure would be required pending the trial of the action.

2 Section 47 of the Teaching Council Act 2001 (‘the Act of 2001’) provides at sub-s.(1):-

‘Where the Council is satisfied that it is in the public interest, the Council may, in relation to a registered teacher, apply to the High Court for an order that during the period specified in the order his or her registration shall be suspended.’

Such an application shall be made in a summary manner and shall be heard otherwise than in public.

3 The appellant took these proceedings by way of plenary summons and directions were given from time to time as to how the action should proceed. The parties agreed that documents which had been discovered could be put into evidence without formal proof and neither party called evidence at the trial of the action but relied on the pleadings, affidavits which had been exchanged at the interlocutory application and a core bundle of documents from the respondent's discovery.

4 The matter proceeded to a full hearing and the plaintiff's claim was dismissed in a judgment delivered by Allen J. on the 26th February, 2019. This is an appeal against that decision. The appeal is brought on the following grounds.

(i) The High Court judge erred in law in finding that s. 19 did not impose successive obligations at the end of each of any investigation enquiry or regulatory process;

(ii) the High Court judge erred in fact and in law in finding that the reason for the collapse of an enquiry are matters which would be of great weight in deciding whether there is a bona fide concern;

(iii) the High Court judge erred in fact and in law in acknowledging that there was a significant lapse of time between the complaint and the decision to make the notification but not having any concern about that delay;

(iv) the High Court judge erred in fact and in law in finding that the views formed by the statutory committee of the respondent do not amount to an assessment by the respondent for the purposes of s. 19;

(v) the High Court judge erred in fact and in law in finding that while the papers show that at the time of the s. 47 application some consideration was given to the respondent's obligations under s. 19. This showed that the respondent's obligations under s. 19 had not at that stage been ‘teased out’;

(vi) the High Court judge erred in fact and in law in finding that there was no delay by the respondent;

(vii) the High Court judge erred in fact and in law in finding that even if there had been a delay on the part of the respondent in deciding whether it had a concern or in notifying any such concerns that would not have absolved the respondent of its obligations, or deprived it of its power to make a notification;

(viii) the High Court judge erred in fact and in law in finding that while the scheme of vetting has the potential to impact on the rights of the subject of an application for disclosure, those rights are affected not by the collection of information but by its disclosure; and

(ix) the High Court judge erred in fact and in law in finding that the s. 19 protections in terms of matters to be considered by the chief bureau officer are proportionate to the requirement to balance the rights of the subject and the declared purpose of the act.

Background

5 The appellant is a registered teacher. A complaint was made to the respondent arising out of an incident that occurred at night between the 28th-29th November, 2016 involving a male student, student A, who was aged nineteen at the time and who was picked up by the gardai in a distressed state on a motorway shortly after midnight on the 29th November, 2016. There was a smell of alcohol on his breath but he was not drunk. He explained that he was a student at a nearby school and he was brought back there where he was interviewed by the headmaster and later by a detective at a garda station. Student A described how he and the appellant had spent the evening drinking together and that the appellant tried to remove his tracksuit bottoms and had become angry when student A had refused to let him. After an argument, student A left the room on the pretext of looking for a cigarette but instead made his way onto a nearby motorway with a view to getting to Dublin Airport and going to his home which was in another E.U. country. Student B was also interviewed and gave evidence of drinking and smoking cannabis with the appellant and student A and described how the appellant had taken students A and B to his cottage in the country on weekends when they should have been at school. He also described the appellant's attempts to groom student A into engaging in a relationship describing how the appellant had said ‘…that he loves [student A] in a weird way’. Evidence was given in the High Court that after student A was brought back to the school by the gardai the appellant approached him and said ‘You don't have to do this. Come here now and talk to me.’ This upset student A. Evidence was also given of an exchange of WhatsApp messages between the appellant and student A in which the appellant tried to persuade student A to change his account of events. The judgment of the High Court judge sets out in some detail the text of these messages.

6 When questioned by a detective garda, student A did not wish to make any complaint and the assessment of the gardai was that there did not appear to have been any offence disclosed.

7 At 7.30 a.m. on the 29th November, 2016 the school headmaster sent for the appellant who was suspended on full pay pending the outcome of an investigation. He was also required to leave the school premises immediately.

8 An internal investigation took place within the school which led to a disciplinary hearing before a panel of three board members. The panel found that some of the allegations formulated by the headmaster had been made out and others not. It concluded that the allegations which had been made out amounted to gross misconduct and recommended that the appellant be dismissed with pay in lieu of notice and this was done by letter of the 23rd December, 2016. The appellant exercised his right of appeal under the school's disciplinary procedures but later decided not to pursue the appeal.

9 On the 16th March, 2017 the headmaster filed a complaint with the respondent under Part 5 of the Act of 2001. Part 5 of the Act deals with fitness to practice enquiries, professional misconduct and other related matters. The headmaster expressed the view that the findings of gross misconduct made by the panel on the disciplinary hearing amounted to professional misconduct under. s. 42(1) of the Act of 2001.

10 At the commencement of the appeal,...