Injunction preventing the publication of Ofsted report upheld pending judicial review application

Jayne Owens

In R (Interim Executive Board of X) v Ofsted, Mr Justice Stuart-Smith upheld an interim injunction restraining the publication of a negative Ofsted school report, finding there was plausible evidence it could cause widespread and irreparable damage.  The High Court decided that the claimant had established pressing grounds and a pressing social need in exceptional circumstances requiring the preservation of the interim injunction until the question of permission to bring judicial review proceedings had been determined or until further order.  Stuart-Smith J’s judgment in this case will provide useful clarity for public authorities and claimants involved in public law injunctions, confirming that the hurdles a claimant must overcome in obtaining interim relief are much higher than those in private law cases.

Background

The claimant (the “School”) is an Islamic ethos school for boys and girls of ages 4 to 16. Following a series of Ofsted inspections and reports in 2014, the School was put into special measures because of concerns about leadership, governance, teaching and financial management.  A new Interim Executive Board and Head Teacher were subsequently appointed to replace the previous School management team.  A longstanding key characteristic of the School was that children were segregated from an early age for many activities.

Due to the special measures status, a number of Ofsted inspections were carried out between 2014 and early 2016 and reports produced. The court considered three of these reports in particular, December 2014, March 2015 and December 2015.  The reports conveyed a sense of continuous improvement across the areas of concern and stated that the School was making progress towards the removal of special measures.  None of the reports commented adversely on the segregation policy adopted by the School.  They endorsed the leadership of the School whilst also recognising the challenges it faced, the safeguarding of children was never criticised, and educational and teaching standards were regarded as always improving.  Consequently, the School came out of special measures following the December 2015 report.

In June 2016, Her Majesty’s Chief Inspector of Schools, Sir Michael Wilshaw, visited the School as part of a wider series of visits to a number of so-called “Trojan Horse” schools. During the reportedly turbulent visit, Sir Michael expressed concerns that the School was a Trojan Horse school (despite being informed it was not) and made clear his opposition to the practice of segregation.  The Chief Inspector’s visit led directly to a further Ofsted inspection on 13-14 June 2016.  In the course of the inspection it was converted from being a short inspection under Section 8 of the Education Act 2005 to a more substantial two-day Section 5 inspection.  The reason given for the change was that the inspectors wanted to explore the educational value of segregating pupils and its effect on their social development.  The criteria for the conversion of a Section 8 to a Section 5 inspection are that safeguarding is not effective or pupils are considered to be at risk.

Mr McNeillie, the inspector responsible for converting the inspection to a Section 5 inspection, felt it was necessary because of concerns regarding equality of opportunity for pupils and how well leaders were preparing pupils for life in modern Britain. Mr McNeillie had acted as an inspector of the School on numerous occasions during the 2014-16 special measures period, but had made no previous comments of this nature.

The draft report was provided to the School in early July 2016. Extensive objections were raised but the final report remained mostly unchanged.  The July report downgraded the School’s status to “Inadequate”, describing how leaders failed to keep students safe from extreme views which undermined British values, that segregation was hindering pupils’ opportunity for social development, and that books in the library which pupils could easily access contained derogatory views about and incited violence towards women.  Commenting on the governance of the School, the report found the management team had failed in their duties and that arrangements for safeguarding were inadequate.  The report was provided to the School on 15 July 2016 with a cover letter stating it would be published after five working days, on 22 July 2016 – the last day of the summer term.

On 19 July, the School sent a pre-action protocol letter to Ofsted, stating their intention to bring judicial review proceedings and asking Ofsted not to publish the report until 5 September 2016, so the parties would have an opportunity to correspond and discuss the School’s concerns. The School also required the delay so they could manage the undoubted community fall-out which would emerge if the report was published. Ofsted replied on 20 July, reiterating their intentions to publish the report on 22 July and rejecting any possibility of judicial review being justified.

The School issued judicial review proceedings seeking for the report to be quashed and applied for an interim injunction restraining its publication in the meantime. The injunction was granted by Wyn Williams J on 21 July 2016.  Ofsted applied to have it set aside.

High Court’s decision

Stuart-Smith J upheld the interim injunction preventing the publication of the Ofsted report until the question of permission to bring the judicial review proceedings had been determined or until further order.

Judgment

Stuart-Smith J discussed the additional hurdles that must be overcome in a public law injunction case over and above those posed in a purely private law case (where the American Cyanamid principles would be adopted).  He distinguished between cases where there was a statutory duty on a person or body to publish and those where the person or body had a power to publish but was not under a duty to do so.  Although this case fell into the latter category, there was a public interest favouring the publication of Ofsted reports.  Stuart-Smith J considered previous authorities on the principles that applied when considering whether to restrain publication in a public law case, in particular R v Advertising Standards Authority ex p Vernons Organisation Ltd [1992] 1 WLR 1289 and R (Birmingham City College) v Ofsted [2007] EWHC 2373 (Admin).  He identified the different strands which ought to be considered as “the court’s approach to the restraining of allegedly defamatory statements; the existence of a public duty (or power) to publish; the likelihood that damage caused by publication may be irreparable; and … the existence or absence of a pressing ground or pressing social need to restrain publication”.

The judge also discussed Burton J’s reference in Birmingham City College to the “test of the judge’s thermometer” (that in public law cases, when looking at whether an applicant seeking an injunction to restrain publication can show an arguable case, the judge’s thermometer “will be set and calibrated several degrees higher” than in a normal injunction case).  Stuart-Smith J took this to mean that the court could take into account the apparent strength of a claimant’s case or the nature of the circumstances that were alleged to underpin a claimant’s complaint.  In this case, it meant the court could properly  take into consideration the arguable existence of bias or other reprehensible behaviour when deciding if an injunction restricting publication should be granted.

Stuart-Smith J acknowledged the frank inconsistencies between the reports from the period of special measures and the latest report of July 2016, and the limited time available for the detrimental changes at the School to occur – one teaching term. He pointed towards the conduct of the controversial meeting with Her Majesty’s Chief Inspector of Schools and the subsequent inspection, about which the School had issued a complaint before the results of the reports were even published.  He also questioned the utility of the inspector Mr McNeillie’s witness statement, saying it “begs more questions than it answered”.

Whilst stating that he would leave it to “others possessed with the full facts” to decide whether the School’s segregation policy was unlawful, Stuart-Smith J noted that if such practice was illegal, then it would have been illegal for years despite never being mentioned in any of the earlier reports which took place during a period where the school was under special measures and when Ofsted was particularly sensitised to segregation in schools with an Islamic ethos.  He acknowledged the many schools of high repute throughout the country which practiced a degree of gender segregation based upon an ethos other than Islam.

Although the judge made clear he could not make any finding as to whether the School’s allegations were in fact well-founded, he accepted that the material before the court gave rise to an arguable case that the process behind the July 2016 report was “infected by a pre-determined mindset or prejudice” which was contrary to the proper and independent inspection process on which the education system and public at large depended.  If those allegations were true, it would “raise the judge’s thermometer to a temperature well above American Cyanamid arguability“.

Damages were ruled out as an adequate remedy as the evidence suggested the effect of publication of the report could be “both extremely adverse and irreparable“.  As well as making it likely that the School would return to special measures, it would have a knock-on impact in the local community.  This would be exacerbated by Ofsted wishing to publish on the last day of term, which would maximise the difficulty for the School in managing the fall-out.  Turning to the balance of convenience, Stuart-Smith J commented that delaying publication of the report would be a temporary inconvenience to Ofsted and would not undermine the public interest in favour of publication. He held that the School had established pressing grounds and a pressing social need in exceptional circumstances justifying the preservation of the interim injunction.

R (Interim Executive Board of X) v Ofsted [2016] EWHC 2004 (Admin)

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