BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Peace, Re Decision Disciplinary Committee General Teaching Council Scotland [2003] ScotCS 47 (25 February 2003)
URL: http://www.bailii.org/scot/cases/ScotCS/2003/47.html
Cite as: [2003] ScotCS 47

[New search] [Context] [Printable version] [Help]


    Peace, Re Decision Disciplinary Committee General Teaching Council Scotland [2003] ScotCS 47 (25 February 2003)

    EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

    Lord Marnoch

    Lord MacLean

    Lord McCluskey

     

     

     

     

     

     

     

     

     

     

    XA174/01

    OPINION OF LORD MARNOCH

    in

    APPEAL

    under section 12 of the Teaching Council (Scotland) Act 1965

    in the cause

    PETER PEACE

    Appellant;

    against

    A decision of The Disciplinary Committee of the GENERAL TEACHING COUNCIL FOR SCOTLAND

    Respondents:

    _______

     

     

    Act: Bell, Q.C.; Balfour & Manson (Appellant)

    Alt: Smith, Q.C.; Brechin Tindall Oatts, Glasgow (Respondents)

    25 February 2003

  1. This is an appeal against a decision of the Disciplinary Committee of the General Teaching Council for Scotland under section 12 of the Teaching Council (Scotland) Act 1965. Although eight grounds of appeal were originally tabled under the somewhat inept headings of "Condescendences", Mr. Bell, Q.C., for the appellant, made it clear at the outset that he was not insisting in grounds 1, 2, 3 and 8. At that stage, therefore, the only grounds remaining were those summarised in condescendences 4-7 inclusive of the printed Record.
  2. The hearing before the Disciplinary Committee proceeded under Rules approved by the Lord President of the Court of Session in terms of paragraph 2 of Schedule 2 to the 1965 Act. The rules currently in force are the Disciplinary Committee (Procedure) Rules 1967 of which rule 4(1) provides that the Council's Solicitor shall
  3. "serve upon the respondent ... a notice of proceedings as nearly as may be in the form set out in the Appendix ... specifying the alleged facts and circumstances in the form of a charge or charges ... ".

    The form set out in the Appendix adds little to the foregoing description. In the event, the notice of proceedings served on the appellant dated 18 September 2001 was, inter alia, in the following terms:

    "On behalf of the Disciplinary Committee of the General Teaching Council for Scotland, Notice is hereby given to you that proceedings are to be held to investigate the following charges against you, namely:-

    'That between September 1991 and July 1994 while a teacher at the Royal High School, Edinburgh, you did form an inappropriate relationship with a pupil of said school, [name], and with other pupils and that you did act in a manner wholly inappropriate as a teacher and, in the course of which relationship, you did:

    (a) repeatedly abuse your authority as Assistant Rector by granting authority to [name], and [name], to be excused classes without good reason and for no proper purpose.

    (b) in or around October 1992, having telephoned [name], at home and invited her to come into school during a holiday period, assault [name], attempt to kiss her against her will, take hold of her and pull her to her feet.

    (c) in or around December 1992 in your motor vehicle pick up [name] up from her part-time workplace in George Street, having offered her a life home, and thereafter travel to a car park or lay-by in South Queensferry where you did assault said [name] by placing your hand upon her knee.

    (d) repeatedly telephone the home of said [name] when her parents were not at home without good reason or proper purpose.

    (e) repeatedly engage in inappropriate and improper conversation with said [name] and, in particular, you discussed with her a personal relationship with another teacher.

    (f) between December 1992 and March 1993, having invited said [name] to meet you in the school library, have improper physical contact with said [name] and assault said [name] by pressing your body against her and simulating sexual intercourse.

    (g) during the period aforementioned, in the school library, act in a shameless and indecent manner towards said [name], take her hand and place it upon your naked erect penis and cause her to masturbate you.

    (h) having arranged to give said [name] a lift to a debating society meeting, arrive at her house 20 minutes early, enter the house of said female pupil without her parents being present and therefore compromise yourself in an inappropriate and improper way.

    (i) regularly meet pupils alone after school, out with the school and during school holidays without prior authorisation and notification and by doing so compromise yourself in an inappropriate and improper

    way.

    And further, in respect of the aforementioned facts, you are guilty of infamous conduct in a professional respect.' ... "

  4. It was maintained on behalf of the appellant both before the Disciplinary Committee and before us that each of the lettered subheadings constituted a separate "charge" against the appellant. In my opinion, however, particularly when read in light of the Rules, it is abundantly plain that, notwithstanding the reference to "charges" in the second line of the notice, there was only one essential "fact" on which the charge was based, namely the forming of an "inappropriate relationship" with a pupil, FK, and with other pupils. The further reference in the leading part of the notice to acting "in a manner wholly inappropriate as a teacher" was, I think, simply intended to make clear that the forming of that relationship was, inter alia, professionally inappropriate thus anticipating the concluding portion of the charge which, echoing the wording of section 11(1) of the Act, alleges that the appellant was "guilty of infamous conduct in a professional respect." If, however, the charge against the appellant had said nothing more it might well have been argued that it gave less than fair notice of the evidence which was to be led against him in respect of the "inappropriate relationship". It was, therefore, quite correct, in my opinion, for the charge to give further notice of the evidence in terms of the more particular facts and circumstances detailed under the lettered sub-headings. It is in that light that those more particular allegations should be read and understood.
  5. So far as the decision of the Committee is concerned, rule 10(5) tells us that a
  6. finding adverse to the respondent should be expressed in the following terms:-

    "That in respect of the facts before them upon which the charge is based the respondent is guilty of infamous conduct in a professional respect".

    Unlike similar provisions in the General Medical Council Disciplinary Committee (Procedure) Rules 1970 (1970 S.I. No. 5906) there is no express provision in rule 10(5) which enables the Disciplinary Committee to delete parts of the charge but it was accepted by both counsel that the Committee had that power and I can see that it can readily be implied.

  7. In the event, when finding the appellant guilty, the Disciplinary Committee made a number of important deletions with the result that the charge of which the appellant was finally found guilty read as follows:
  8. " 'That between September 1991 and July 1994 while a teacher at the

    Royal High School, Edinburgh, you did form an inappropriate relationship with a pupil of said school, [name], and that you did act in a manner wholly inappropriate as a teacher and, in the course of which relationship, you did:

    (a) abuse your authority as Assistant Rector by granting authority to

    [name] and [name] to be excused from classes without good reason and for no proper purpose

    (b) in or around October 1992, telephoned [name] at home and invited her

    to come into school during a holiday period

    (c) in or around December 1992 in your motor vehicle pick said [name] up

    from her part-time workplace in George Street, having offered her a lift home, and thereafter travel to a car park or lay-by in South Queensferry

    (d) on three occasions telephone the home of said [name] when her parents

    were not at home without good reason

    (e) repeatedly engage in inappropriate conversation with said [name] and,

    in particular, you discussed with her a personal relationship with another teacher

    (f) delete

    (g) delete

    (h) having arranged to give said [name] a lift to a debating society

    meeting, arrive at her house early, enter the house of said female pupil without her parents being present and thereby conduct yourself in an inappropriate way

    (i) delete

    And further, in respect of the aforementioned facts, you are guilty of infamous conduct in a professional respect.'"

  9. After announcing the deletions from the charge the Convener of the Disciplinary Committee is recorded (at p. 353 of the Transcript of Proceedings) as saying this:
  10. "As a result of these considerations we conclude that the evidence points to an inappropriate relationship with the pupil [name] but not with other pupils as stated in the beginning paragraph and we considered that this constituted infamous conduct in a professional respect. That was the unanimous view of this committee."

    In my opinion the terms of that conclusion show an entirely correct appreciation of the nature of the charge which the Committee had to consider.

  11. In light of the above, I come now to consider the first and second grounds of appeal as summarised in "Condescendences" 4 and 5 of the printed Record. These, in effect, are indistinguishable. The complaint in both is that the Tribunal misdirected itself in holding that facts could be held established without the need for corroboration. In this connection, Mr. Bell, in the early part of his submissions, founded heavily on the concession, both before the Tribunal and before us, that the appropriate standard of proof was proof beyond reasonable doubt. That concession appears to have been based on what was said by the First Division in Johnstone v. The General Teaching Council for Scotland 1980 S.C. 51 although, according to Mr. Smith, Q.C., for the respondents, there had been some recent authority which might require a different view to be taken in the future. At all events, founding on the concession made, Mr. Bell submitted that it was a necessary corollary that the doctrine of corroboration be invoked. In my opinion, however, that submission - which was based on no authority - is clearly unsound. In that connection, it is perhaps unnecessary to say more than both under statute and in the common law of a neighbouring jurisdiction the higher standard of proof is very frequently invoked albeit the doctrine of corroboration forms no part of the relevant rules of evidence. For the rest, Mr Bell's argument on this matter depended on a construction of section 9(c) of the Civil Evidence (Scotland) Act 1988. Section 1(1) of that Act provides that in any civil proceedings in Scotland a fact can be found proved by the evidence notwithstanding that the evidence is uncorroborated and section 9 provides that "civil proceedings" include
  12. "(c) any proceedings before a tribunal or inquiry, except in so far as, in

    relation to the conduct of proceedings before the tribunal or inquiry, specific provision has been made as regards the rules of evidence which are to apply;".

    It was accepted that the Disciplinary Committee constituted a "tribunal" within the meaning of that provision but Mr. Bell maintained that rule 17(2) of the 1967 Rules made "specific provision" as regards the rules of evidence which were to apply with the result that the proceedings in question fell outwith the ambit of the 1988 Act.

  13. Rule 17(2), under the heading of "Evidence", is in the following terms:
  14. "(2) The Committee may receive oral, documentary, or other evidence of any fact which appears to them relevant to the proceedings into the case before them: provided that, where a fact which it is sought to prove, or the form in which any evidence is tendered is such that it would not be admissible in criminal proceedings in Scotland, the Committee shall not receive evidence of that fact or in that form, unless after consultation with the Legal Assessor they are satisfied that it is desirable in the interests of justice to receive it having regard to the difficulty and expense of obtaining evidence which would be so admissible."

  15. As I see it, however, that rule is referable only to the admissibility of evidence and, while in Johnstone v. The General Teaching Council for Scotland cit. sup. at p. 63 the court inferred from the terms of the rule that the standard of proof was proof beyond reasonable doubt, these same terms cannot, in my opinion, be read as a "specific provision" either that all the criminal rules of evidence should be imported into hearings before the Disciplinary Committee or that the specific doctrine of corroboration should be so imported. I reach that opinion all the more readily having regard to what was said by the Board of the Privy Council in McAllister v. General Medical Council [1993] A.C. 388. That case involved a hearing in Scotland before the Professional Conduct Committee of the General Medical Council and it was argued on appeal that the lex fori should apply with the result that corroboration was necessary. In that connection, counsel submitted, inter alia, that rule 50(1) of the Procedure Rules there applicable constituted "specific provision" for the purposes of the exception in section 9(c) of the 1988 Act. That rule was in the following terms:
  16. "The Professional Conduct Committee may receive oral, documentary or other evidence of any fact or matter which appears to them relevant to the enquiry into the case before them: provided that, where any fact or matter is tendered as evidence which would not be admissible as such if the proceedings were criminal proceedings in England, the Committee shall not receive it unless, after consultation with the Legal Assessor, they are satisfied that their duty of making due enquiry into the case before them makes its reception desirable."

  17. As to the argument based on that rule Lord Jauncey, in delivering the advice of the Board, said this:
  18. "Rule 50 ... deals with admissibility of evidence in certain circumstances but makes no reference to corroboration which has therefore not been made the subject of a provision. As a matter of construction the exception in section 9(c) can apply only where there exist rules which specifically deal with corroboration in a manner which supersedes the application of section 1(1)."

    Lord Jauncey later makes the additional point (equally applicable in the present case) that the overall wording of the rule in question made clear that, even as regards the admissibility of evidence, the rule was not unqualified. In the result, and for all the foregoing reasons, I am of opinion that the first and second grounds of appeal in this case are without foundation.

  19. The third ground of appeal is that the Disciplinary Committee misdirected themselves in holding that what had been established justified a finding that the appellant had been guilty of "infamous conduct in a professional capacity" and the fourth and last ground of appeal is to the effect that the penalty imposed, namely removal of the appellant's name from the Register of Teachers, was in any event harsh and excessive. There is a complication surrounding both these grounds to which I shall shortly address myself but it is, I think, instructive to consider at the outset what degree of deference, if any, should be paid to the Committee on these matters bearing in mind that a majority of its members are themselves registered teachers and that the remainder can reasonably be supposed to have some specialist knowledge and/or expertise in the field of education.
  20. In this connection Mr. Smith cited to us an abundance of dicta of high
  21. authority to the general effect that a court of law should be very slow to interfere either with the assessment of what does or does not constitute serious professional misconduct (in the present case "infamous conduct") or with a decision on penalty. For the record, the references given us by Mr. Smith were, in chronological order, McCoan v. General Medical Council [1964] 1 WLR 1107 at p. 1113; Marten v. Royal College of Veterinary Surgeons' Disciplinary Committee [1966] 1 Q.B. 1 at p. 9F; Libman v. General Medical Council [1972] AC 217 at p. 221B; McEniff v. General Dental Council [1980] 1 WLR 328 at p. 332 and at pps. 333-4 and Balfour v. Occupational Therapists' Board 1999 51 BMLR 69 at p. 72. In Marten the dicta in question were those of Lord Parker C.J. and for the rest all the references were to judgments delivered in the Privy Council.

  22. However, there are more recent dicta in the Privy Council which were not cited to us and of which I think it well to take note. Most recently, in Preiss v. General Dental Council [2001] 1 WLR 1926, at p. 1935, Lord Cooke of Thorndon, in delivering the advice of the Board, said this:
  23. "Since the coming into operation of the Human Rights Act 1998, with its adjuration in section 3 to read and give effect to legislation, so far as it is possible to do so, in a way compatible with the Convention rights, any tendency to read down rights of appeal in disciplinary cases is to be resisted. In Ghosh v General Medical Council [2001] 1 WLR 1915, 1923F-H the Board has recently emphasised that the powers are not as limited as may be suggested by some of the observations which have been made in the past. An instance, on which some reliance was placed for the General Dental Council in the argument of the present appeal, is the observation in Libman v General Medical Council [1972] AC 217, 221, suggesting that findings of a professional disciplinary committee should not be disturbed unless sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence was misread. That observation has been applied from time to time in the past, but in their Lordships' view it can no longer be taken as definitive. This does not mean that respect will not be accorded to the opinion of a professional tribunal on technical mattes. But, as indicated in Ghosh, the appropriate degree of deference will depend on the circumstances."

  24. In McMahon v. Council of the Law Society of Scotland 2002 S.L.T. 363 the Lord Justice Clerk likewise took note of recent authority and, in delivering the Opinion of the Court, summarised matters thus (at p. 366):-
  25. "In the past in appeals against sentence the court was reluctant to interfere with the sentence imposed by the tribunal on the view that the tribunal were best placed to assess the seriousness of the offence and to determine the appropriate penalty. The court therefore refrained from substituting its own views for those of the tribunal ... except where it considered that course to be obviously necessary ... .

    In the light of the decision of the Privy Council in Ghosh v General Medical Council ... and the cases that have followed it (e.g. Preiss v. General Dental Council at [2001] 1 W.L.R., p. 1935; Gupta v. General Medical Council), we must now apply a less rigorous test. We should simply look at the tribunal's decision in the light of the whole circumstances of the case, always having due respect for the expertise of the tribunal and giving to their decision such weight as we should think appropriate. ...

    Nevertheless, in following this approach we think that it is good sense to keep in view the obvious reasons that have been repeated over the years for according respect to the views of specialist tribunals in appeals of this kind ... . These are of some importance in this case, which relates to specialist matters of professional practice."

  26. McMahon concerned an appeal against penalty but, for my part, I see no reason why what was said by the court in that case should not equally be applied to an assessment of what does or does not constitute "infamous conduct". Accordingly, I consider that the approach summarised by the Lord Justice Clerk in McMahon is applicable to both the remaining grounds of appeal.
  27. This brings me to the "complication" to which I referred earlier, namely that, while the case was at avizandum, the court realised that, although there had been no submissions on the matter whatsoever, the 1965 Act contained specific provisions (in section 11(5)) which entitled the appellant to a statement of the facts found proved in the disciplinary proceedings and the reasons for the decision to remove him from the register. Not only that, the court also found that these provisions had themselves been the subject of detailed consideration by the Inner House in the case of Johnstone v. The General Teaching Council for Scotland cit. sup. Quite remarkably, both the section and the relevant dicta had seemingly been overlooked by both parties with the result, inter alia, that the argument presented on the third and fourth grounds of appeal had been wholly artificial. In that situation, the court had no alternative but to put the case out for a further hearing on these matters.
  28. Before narrating what took place at that further hearing it is appropriate to set out the terms of section 11(5) of the Act and the relevant parts of the Opinion of the Court delivered by the Lord President (Emslie) in Johnstone.
  29. Section 11(5) of the 1965 Act is in the following terms:-
  30. "(5) When the Disciplinary Committee directs ... that a person's name shall be removed from the register, the Committee shall cause notice of the direction to be served on that person, and any such notice shall include a statement of the facts found to have been proved in the proceedings before the Committee and the reasons for the direction."

  31. In Johnstone the notice purportedly served under section 11(5) of the Act was in the following terms:-
  32. "I am directed to inform you that the Committee have decided that your name should be removed from the register. The Disciplinary Committee determined that in respect of the facts before them you had been guilty of infamous conduct in a professional respect. I enclose a copy of the charges made against you. The Committee decided that charges (3), (4) and (5) had not been proved. They decided, however, that (a) charges (2), (6) and (7) had been proved, and that (b) that part of charge (1) from the beginning of the charge to the word 'injury' in line 5 had been proved."

    Counsel for the respondents in the appeal conceded that the above notice was defective in failing to include reasons for the direction given but submitted that, having regard to the detail of the charges found established, the notice was valid as regards a statement of facts found by the Committee. In the particular circumstances that submission was accepted by the court which then went on to say this:-

    "We hold, therefore, that the notice was defective only in respect of the omission to include the reasons for giving the direction to remove the appellant's name from the register. Now, if the requirement of section 11(5) is to be regarded as mandatory as the appellant contends, the only effect of the failure to comply with it would be that the notice would have to be quashed as a nullity. The defect in the notice cannot strike at the decision. The service of the statutory notice provides the date from which the time for appealing against the decision begins to run. No time limit within which such a notice must be served is prescribed (see section 11(5)). If therefore the notice fell to be quashed upon a proper construction of section 11(5) there would be nothing, so far as the language of section 11 is concerned, to prevent the Committee from starting again by serving a fresh notice. In our opinion, however, a proper understanding of section 11(5), read together with this Court's ample powers to give directions, does not involve acceptance of such an unsatisfactory position. The provisions of section 11(5) must, we think, be regarded as directory only, and a failure to comply with them may be curable unless there are good reasons for setting the notice aside on the footing that the recipient has suffered significant prejudice thereby ........ We feel bound to add further that what we have said about the consequences of failure to comply with the provisions of section 11(5) must not be understood as an encouragement to the Disciplinary Committee to repeat the failure demonstrated in this case. They will do well to remember that the requirements should be complied with in every case in the spirit and to the letter of the subsection, and that a failure to do so may assist in placing in peril any decision taken by the Committee which is the subject of appeal to this Court."

  33. In the present case, at the further hearing to which I have referred, the notice served on the appellant under section 11(5) of the Act was produced for the first time. It was contained in a letter to the appellant dated 10 October 2001 which, so far as relevant, is in the following terms:-
  34. "Dear Mr Peace,

    The Disciplinary Committee of the General Teaching Council for Scotland considered your case at a meeting held in Edinburgh on 8 and 9 October 2001. The Committee found on the basis of the submitted evidence that you had been guilty of infamous conduct in a professional respect. The Committee considered the circumstances and formed the opinion that the professional misconduct of which you had been found guilty justified the removal of your name from the register. The Committee therefore directed me that your name should be removed from the register forthwith."

  35. It will be seen immediately that the foregoing notice is even less satisfactory than that which was the subject of criticism in Johnstone and, in my opinion, that remains the position even allowing for the fact that, as we were informed, a copy of the reduced charge of which the appellant had been found guilty was sent to his solicitors with an accompanying letter dated 11 October 2001.
  36. What is more, it is plain, in my opinion, that, unlike Mr. Johnstone, the present appellant has been seriously prejudiced by the Disciplinary Committee's failure to comply with the provisions of section 11(5) of the 1965 Act. Even if one has regard to the copy reduced charge sent to the appellant's solicitors, the facts there summarised are, of themselves, far from clamant of either guilt or the need to remove the appellant from the register. This is not to say that, if these bare facts had been amplified by further findings and explanations, the decision could not be seen to have been justified. But, without these further findings and explanations, the court, and thus the appellant, are deprived of any proper means of reviewing the validity of the decision made. That the court should not be so deprived in that or any other way is emphasised by the line of decisions commencing with Ghosh v. General Medical Council cit. sup. which is referred to above. Since, however, the relevant legislation envisages that these further findings and explanations should be supplied to someone in the position of the appellant at a stage subsequent to the actual decision, I do not think that the Disciplinary Committee can be criticised for the terms of their decision, as such.
  37. Recognising the difficulties in which his clients were placed, counsel for the respondents moved the court, in effect to quash the purported notice of 10 October 2001, and to ordain the Disciplinary Committee, if so advised, of new to issue a statement of the relevant facts found proved in the proceedings and the reasons for the direction that the appellant's name be removed from the register, all as envisaged in Johnstone supra. This motion was opposed by Mr Bell, Q.C., for the appellant, on the basis, first, that it was incompetent and, second, that it was in any event inappropriate to make such a remit. As to the matter of competency, Mr. Bell submitted that, although, as pointed out in Johnstone, there was no specific time limit for serving the notice under section 11(5) of the Act, a "reasonable time" had to be implied and that "reasonable time" had long since passed notwithstanding the failure of his client to take the "Section 11(5) point" at any time previously. If, however, some sort of remit back to the Committee was competent, it was not appropriate in this case. The charges involved events said to have taken place more than 10 years in the past and the appellant had been suspended from employment as a teacher as long ago as 1997. The additional delay before yet a further hearing by the court could be arranged might well be substantial and the court should bear in mind that any and all references to explicit sexual behaviour on the part of the appellant had already been deleted from the original charge. Lastly, Mr. Bell founded on the clear warning as to the possible effect of non-compliance with section 11(5) given by this court to the respondents in Johnstone.
  38. In the event, albeit with some hesitation, the court decided that for all the reasons just summarised it would, indeed, be inappropriate to make any remit back to the Disciplinary Committee at this stage of the present case. The court accordingly advised parties of this decision without finding it necessary to address, as such, the argument anent competency. When that decision was announced counsel for the respondents advised the court that, while his clients did not concede the invalidity of the Disciplinary Committee's decision, they no longer felt able actively to resist the appeal.
  39. In that state of affairs the only remaining question for this court is whether, as matter of law, there is any basis on which the decision of the Disciplinary Committee can be allowed to stand. In my opinion there is none - for the simple reason that the Disciplinary Committee has failed to provide a proper statement of all relevant facts found to have been proved in the course of the proceedings before them and the reasons for reaching the decisions they did, all in terms of section 11(5) of the Teaching Council (Scotland) Act 1965. It may be that, in a very clear case, these facts and reasons could be found, either expressly or by implication, within the four corners of the charge found proved. But, as I have already said, this is clearly not such a case and, in the overall result, my motion to your Lordships is that the present appeal be allowed to the effect of quashing the decision in question.
  40. EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

    Lord Marnoch

    Lord MacLean

    Lord McCluskey

     

     

     

     

     

     

     

     

     

     

    XA174/01

    OPINION OF LORD MacLEAN

    in

    APPEAL

    under section 12 of the Teaching Council (Scotland) Act 1965

    in the cause

    PETER PEACE

    Appellant;

    against

    A decision of The Disciplinary Committee of the GENERAL TEACHING COUNCIL FOR SCOTLAND

    Respondents:

    _______

     

     

    Act: Bell, Q.C.; Balfour & Manson (Appellant)

    Alt: Smith, Q.C.; Brechin Tindall Oatts, Glasgow (Respondents)

    25 February 2003

    I concur entirely with what your Lordship in the chair has said. In my opinion it fully meets all the submissions which were made by parties in the appeal.

    EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

    Lord Marnoch

    Lord MacLean

    Lord McCluskey

     

     

     

     

     

     

     

     

     

     

    XA174/01

    OPINION OF LORD McCLUSKEY

    in

    APPEAL

    under section 12 of the Teaching Council (Scotland) Act 1965

    in the cause

    PETER PEACE

    Appellant;

    against

    A decision of The Disciplinary Committee of the GENERAL TEACHING COUNCIL FOR SCOTLAND

    Respondents:

    _______

     

     

    Act: Bell, Q.C.; Balfour & Manson (Appellant)

    Alt: Smith, Q.C.; Brechin Tindall Oatts, Glasgow (Respondents)

    25 February 2003

  41. The parties to this appeal were agreed that the standard of proof required in these particular proceedings was that appropriate in criminal proceedings, namely that of proof beyond reasonable doubt. I shall return to that matter. As to the need for corroboration, I agree with your Lordship in the chair that, for the reasons given, corroboration, of the kind needed in ordinary criminal proceedings in Scotland, was not required.
  42. I have nothing to add to your Lordship's narrative and reasoning in regard to the importance of section 11(5) of the Act.
  43. As to the merits, this appeal was initially presented to us by both parties as one that had to be determined on the basis of the primary facts as determined by the Disciplinary Committee and as recorded in the document described as "Amended Extract of Charge from the Notice of Proceedings dated 18 September 2001 as Approved at the meeting of the Disciplinary Committee on Monday 8 and Tuesday 9 October 2001". The factual findings in relation to primary facts established by evidence, as I understand the position, are those contained in paragraphs (a) to (e) and (h) of that document (as amended); their terms are narrated in the Opinion of your Lordship in the chair. Parties were firm in their submissions that, if the court were to hold - as it did, and so intimated in the course of the hearing - that corroboration was not required, the court should not read the evidence, in whole or in part, and thereby attempt to go behind those findings on the facts. Parties were also at one in submitting that the court should not look at the evidence even for the purpose of gaining any understanding of the context of any of the findings in fact or to clarify any matters left unclear in the findings. I regret that we are confined to the statement of facts as recorded in the Amended Extract of Charge because, without taking into account the evidence that lay behind those findings it is, in some instances at least, very difficult to understand what they mean or signify. It is, for the same reason, impossible to ascertain the content or significance of such words as "inappropriate" which appears in findings (e) and (h), and "proper" in the phrase "no proper purpose" in finding (a). These words are, in my opinion, essentially judgmental in character: they recorded judgmental inferences drawn from the primary facts established in evidence. The difficulty of understanding the true meaning of what was held to be established is compounded by the circumstance that, despite the terms of section 11(5), the Disciplinary Committee gave no reasons or explanations for any of their decisions. No reasons or explanations were in fact given either orally at the hearing itself or in any form at all at any other time. In the absence of any reasoning or explanation, I am not persuaded that this Court is obliged to put a blind and unquestioning trust in the capacity of the Disciplinary Committee to give appropriate weight to unrevealed nuances lying behind, and giving sinister content to, the statements of primary facts. It would, in my opinion, be quite wrong for this court to "read between the lines" and infer conclusions that are not clearly warranted by the stated findings.
  44. There is a striking and qualitative contrast between the charge(s) that the appellant faced when the tribunal hearing began and the charge(s) that the tribunal held to be established. (The reason why I use the term "charge(s)" is that it appears never to have been made clear if the appellant was supposed to be facing one charge, or nine or eleven. The original "Notice", dated 18.09.01, narrated that proceedings were to held to investigate "the following charges against you". There followed an unnumbered paragraph averring an inappropriate relationship between the appellant, on the one hand, and a named pupil "and with other pupils" on the other, nine lettered paragraphs specifying discrete instances of alleged conduct by the appellant and finally a paragraph reading, "And further, in respect of the aforementioned facts, you are guilty of infamous conduct in a professional sense"[emphasis added]). The nature of the stark contrast between the "charge(s)" and the "Amended Extract of Charge" is clear: the tribunal, after considering the evidence and holding what facts it established, stripped out of the allegations in the Notice all references to matters that were averred as characterising the appellant's conduct as being sexually motivated. So what is held to be proved by the evidence is a series of events not said to be sexually motivated; and indeed not said to have any common element or motive, other than that cumulatively they are said to support an inference of "an inappropriate relationship" between the appellant and the named female pupil. Thus this is not a case in which the tribunal has held the case to be proved as charged. It clearly did not do that. It carefully excised all the most damaging allegations; but then, without explanation, held that the charge of "infamous conduct in a professional sense" was nonetheless established. It is therefore important to clarify the differences and the similarities between what the appellant was charged with and what he was found guilty of.
  45. There can be little doubt to my mind that until the issue was raised in the course of this appeal the Solicitor to the Council (who acted as prosecutor) never sought to make it clear precisely what was being charged. The appellant came to the Disciplinary Committee facing what bore to be a number of charges contained in the document dated 18.09.01 and entitled "NOTICE OF PROCEEDINGS" which stated that the Disciplinary Committee was going to "investigate the following charges against you". The subsequent change from the plural "charges" to the singular "charge" (as in the document entitled " Amended Extract of Charge", containing what is described as "Amended Charge") was not made at the tribunal hearing itself: the solicitor did not ask for that verbal alteration to be made and it was not made publicly. It made its first appearance, as far as I can see, when the "Amended Extract of Charge" was faxed to the appellant's solicitor on 10th October 2001, the day after the Committee orally announced its decision at the end of the proceedings. That document was presumably intended to record the finding of guilt. How that change from "charges" to "charge" came to be made after the hearing was concluded was never explained; it was not foreshadowed by anything that was said at the hearing when the result was announced. I feel a certain disquiet about that; but I recognise that it is not a point of great materiality now, given that counsel for the respondents submitted to this court that there was only one charge, namely a charge of "infamous conduct in a professional sense", as envisaged and permitted by section 11(1) (b) of the 1965 Act. That I consider to be the correct analysis of the matter. At this stage in these proceedings I think that this court must look at the substance of the matter, however maladroit the framing of the formal complaint in the Notice or the mystery of its amendment. I therefore approach this appeal on the basis that, at the hearing the appellant was held to be guilty of a single charge of "infamous conduct in a professional sense". I also consider that the conduct held established under amended heads (a) to (e) and (h) must have been viewed by the Disciplinary Committee as warranting an inference that that the appellant did "form an inappropriate relationship" with one named pupil at some time during the period averred, namely from September 1991 to July 1994. (I pause to note that there is absolutely nothing in the findings to indicate when the Committee concluded that the "relationship" began or how long it lasted). The Disciplinary Committee must then have made the further and final judgment that that "relationship" was so "inappropriate" that the proven conduct of the appellant (or perhaps some of that conduct) in furtherance of the relationship meant that he was to be judged to be guilty of "infamous conduct in a professional respect". I reject entirely any suggestion that, on this truncated and seriously amended complaint as narrated in the Amended Extract of Charge, the Disciplinary Committee could properly hold that the "inappropriate relationship" went beyond any of the events narrated in paragraphs (a) to (e) and (h). To hold otherwise would mean that the appellant was being convicted of infamous conduct on a factual basis that the Disciplinary Committee was choosing not to reveal in full. That would be a clear breach of the appellant's rights under Article 6 of the European Convention on Human Rights.
  46. While I agree with your Lordship in the chair that there is no basis on which the decision of the Disciplinary Committee can be allowed to stand, it is, in my view, of value to analyse exactly what the Disciplinary Committee held was established by the evidence.
  47. Accordingly I now turn to look at the details of each of the paragraphs containing the findings.
    1. is a finding that the appellant, then assistant rector, used his authority to have
    2. the two named pupils, FK and SP, released from a class or classes that they should have attended; there was "no proper purpose" to explain or excuse his action. In my view, the committee would have been entitled to conclude that that use or, as Mr. Smith emphasised, abuse of authority was reprehensible and deserving of censure. However, it is not possible on the basis of this finding alone to conclude that it warranted an inference that there was an inappropriate relationship with FK; because the finding was that the appellant used his authority to have SP also excused from a class or classes. Yet the Disciplinary Committee, in making their finding of guilt, deleted from the preamble in the Notice of Proceedings the words, "and with other pupils". They therefore made no finding of any inappropriate relationship with SP. Accordingly, while the Disciplinary Committee were entitled to regard this conduct as significant when taken along with other, more sinister, findings it was obviously not enough on its own.

    3. is a bland finding that the appellant telephoned the named pupil (FK) at her
    4. home and invited her to come into school during a holiday period. As nothing is put before us to suggest that there was anything improper in that action I am at a loss to understand what its significance is. By contrast with (a) above, it will be seen that there is no averment that the appellant had "no proper purpose" in doing what he did. It was acknowledged at the bar by counsel for the respondents that at the material time the pupil was properly engaged in some extra-curricular activity and that the appellant was assisting with the necessary arrangements for that activity. I do not see how the conduct described in this paragraph, without any suggestion that it was improperly motivated, can point to any impropriety on the part of the appellant or support the notion that it evidenced something inappropriate in the relationship.

    5. is a finding that the appellant gave FK, then a 16 year old pupil, a lift
    6. homewards from premises in George Street where she had a holiday job and, instead of taking her directly home, drove her to some place in South Queensferry. It is not said that there was any proof that anything improper occurred or that the pupil objected or protested or complained whether to him or to anyone else. There is nothing whatsoever in the finding to shed light on the circumstances. The pupil appears to have mentioned this matter for the first time to any person only some five years later. Any evidence that she may have given to the committee that would have given an improper colour to this incident (as averred in the original formulation of this "charge") was not accepted by the committee as establishing that fact. We were, of course, not told what that evidence might have been; nor are we told what the appellant's description or explanation of this event was, though it is obvious that he admitted to no impropriety whatsoever.

    7. is a finding that on three occasions the appellant telephoned FK "without good
    8. reason". It is also said that her parents were not at home when the calls were made, but it is not found that the appellant knew that the parents were not at home. What is striking about this finding is that the appellant gave evidence to the committee; but we are not told if he offered any explanation or "reason" for making any such calls and, if he did, why the committee characterised the reason(s) as not "good". Did he give a reason that the Disciplinary Committee rejected? Or did he give no reason and the Disciplinary Committee thought that he had failed to discharge some onus upon him? Or did the Disciplinary Committee find other evidence of his reason and judge that reason to be not "good". It is quite impossible from the only information placed before us to know the answers to these questions; and without answers to them we have no means of reviewing the judgment made by the Disciplinary Committee, to the effect that there was no good reason. The appellant must have given some explanation for this, as he gave evidence to the Disciplinary Committee and was cross-examined by the Solicitor. Unless we blindly accept that the Disciplinary Committee had undisclosed material before them that justified the finding contained in the phrase "without good reason", there can be no justification for giving these phone calls any sinister significance.

    9. is a finding that the appellant repeatedly engaged in "inappropriate"

    conversation with the named pupil (FK) and "in particular, you discussed with her a personal relationship with another teacher". I read this finding as meaning that the only "inappropriate conversation" proved by acceptable evidence consisted of more than one conversation in which there was some discussion of the personal relationship mentioned. It may be that "personal" was intended to imply some sexual character to the relationship under discussion - though the finding does not spell that out: on the contrary, in making this finding, the Committee deliberately deleted from the original wording the assertion that the conversation was "improper". So the conclusion was that the conversations were "inappropriate" in some unspecified and undisclosed way, but not improper. We are given no hint as to the respect in which the conversations were deemed to be "inappropriate". It could conceivably be inappropriate to discuss another teacher's looks, or girth, or accent or mental limitations or other matters. Was that what happened here? We have no means of knowing. Nor are we told who initiated any such "discussion". We simply know nothing of its character at all. This is therefore yet another instance in which, without being provided with any material whatsoever on which to assess the matter, we are asked to accept the judgment that the conversation was in some way "inappropriate". The Disciplinary Committee's finding in this paragraph, as in others, seems to proceed upon the basis that a nod is as good as a wink.

    1. is a finding that, having arranged to give FK a lift by car to a debating society

    meeting, the appellant arrived at her house "early" and entered the house though her parents were not present. It is not held that on arriving at or on entering the house he knew that the girl's parents were not present. It is not said that he was not invited into the house. It is not said that he did anything improper after he entered the house. It is not even revealed who else was in the house. No information is recorded as to how "early" he was; or if he offered any explanation for arriving "early". The crucial finding is that "thereby" he conducted himself "in an inappropriate way" [emphasis added]. That must mean that by entering the house (having arrived "early"), even if he was invited in, and even if he was unaware that the pupil's parents were not present, he acted in an improper way. I find it impossible to understand what in the finding warrants the judgment that what he was proved to have done inferred impropriety. I reject the notion that, on these primary fact as established in evidence, the Disciplinary Committee were entitled to hold that the appellant was thereby guilty of inappropriate conduct. We are given no hint whatsoever as to the reason why the conduct established by the evidence fell to be judged, and condemned, as "inappropriate". In so saying, I reiterate and emphasize that counsel for both sides insisted that we proceed upon the basis of the bare findings without explanation or colour added from the evidence.

  48. In my opinion, the only basis upon which the Disciplinary Committee would have been entitled to hold that there was an inappropriate relationship between the appellant and FK was that such a relationship could be inferred from the primary facts explicitly held to be established by the accepted evidence. Of course, I accept that they were entitled to look at the findings cumulatively to see if, looked at as a whole, they warranted the inference that there was a pattern to the specified contacts, over a period of nearly three years, between the appellant and the pupil, and that that pattern was the overt manifestation of a "relationship" that could be characterised as "inappropriate". Presumably, though we have to guess, they must have thought that each and every one of the events narrated in paragraphs (a) to (e) and (h) yielded a sinister inference: otherwise there would be no point whatsoever in finding that the narrated event had been proved. For myself, I cannot see how any reasonable tribunal could properly infer anything sinister from the events as narrated in (b) or (d) or (f). And no such inference was drawn from (a) about a relationship with SP. Finding (a), as I have indicated, could conceivably have yielded the inference that the appellant had got too close to the two named pupils, because it suggests that he was prepared to aid and abet them in a ruse the purpose of which was to deceive another teacher whose class they should have been attending; but it did not in fact yield that inference. Furthermore, albeit that such conduct was worthy of censure, it carries no inference of sexual or any other moral impropriety. It is not at all of the same character of the events originally charged as indicative of improper sexual behaviour. Finding (b), for the reasons already given, cannot, in my opinion, support a sinister inference of inappropriate relations. Finding (c), in the absence of any finding that anything improper happened between the appellant and the pupil on the occasion specified, yields no inference of any sexual of other moral impropriety. This is particularly so when we remind ourselves that the prosecutor set out to prove some sexual conduct, and entirely failed. Finding (d), on a careful analysis, such as I have attempted in paragraph [7], does not yield any sinister inference of sexual or moral turpitude. Finding (e), in the absence of an imaginative reading between the lines yields, in my opinion, no sinister inference of sexual or other immoral behaviour. Similarly, I cannot find in Finding (h) material to warrant an inference of any impropriety whatsoever. There is no attempt to explain how the Committee could discern any pattern in the behaviour proved.
  49. In these circumstances, and even if it were possible to accept that the pupil/teacher relationship might have become close in some respects, and also that the Disciplinary Committee might have been able to conclude that some of the events and conduct established in evidence pointed to something unspecified, though not sexually improper or morally reprehensible, that rendered the relationship between the appellant and FK inappropriate, I can detect no basis that would enable the Disciplinary Committee to go from that conclusion to the further conclusion that the appellant was guilty of conduct that was infamous. The Committee offered no such basis.
  50. The concept of infamous conduct has been considered in the context of the teaching profession by the First Division of the Court of Session in Johnstone v The General Teaching Council for Scotland 1981 S.C. 51. It has also been considered in the context of other professions in cases in the Privy Council, as your lordship in the chair has noted. None of the statements of the law to which we have been referred are strictly binding upon this court, but we must treat the relevant dicta of the First Division as providing most persuasive guidance in relation to the teaching profession in Scotland. The relevant observations of the court in that case is are the terms following.
  51. "It has been said time and time again in such cases that the conduct to be libelled infamous must be such as is regarded as disgraceful or dishonourable among responsible and reputable members of the profession concerned."

    It is possible in other reported cases to find other similar statements, even one using the conjunctive "and", rather than the disjunctive "or", when referring to disgraceful and dishonourable. But, for present purposes, it is unnecessary, in my view, to go beyond the dictum in Johnstone. What is absolutely clear is that the findings of the Disciplinary Committee, or the oral statement of the result - which we were invited to look at - do no more that to state a conclusion, a finding of guilt. What was said by the Chairman was,

    "As a result of these considerations [a reference to the findings now set out in the Amended Extract of Charge] we conclude that the evidence points to an inappropriate relationship with the pupil [sc. FK] but not with other pupils as stated in the beginning paragraph and we considered that this constituted infamous conduct in a professional sense".

  52. It is thus clear that the Disciplinary Committee at no time gave any reason whatsoever for the drawing of the inferences that they drew, or any explanation of what they meant by "inappropriate", or "proper" or "infamous". Nor are we able to glean from what was said orally, or from what was issued as the Amended Extract of Charge, in what respect or sense the relationship was considered to be "inappropriate" or how the unspecified and unexplained inappropriateness caused the members of the Disciplinary Committee to make the further judgment that "this" constituted what the statue describes as "infamous conduct in any professional respect". It is impossible for the appellant, or for the Court, to discover what in the appellant's conduct lead the Disciplinary Committee to reach their finding of guilt. One extremely important effect of this way of deciding the case is that the appellant is deprived of an effective appeal. There is no way in which he is able to have the inscrutable thinking of the Disciplinary Committee examined. That situation is accentuated by the insistence by counsel for the respondents that this court should not look at the notes of evidence. The effect of this way of deciding the case is that the appellant - like the members of the Court - is unable to discover in what way the relationship was deemed to be inappropriate and his conduct infamous in a professional respect. The reasoning process of the Disciplinary Committee is not revealed; and the bare facts do not support a finding of guilt of "infamous conduct".
  53. In the absence of any reasons, it is perhaps unnecessary to say much about the character of the reasons that must be required in such a case; but I think that some useful guidance might have been sought in the highly pertinent decision of the Privy Council in Stefan v General Medical Council [1999] 1 WLR 1293. But the matter does not end there. The appellant has rights under the European Convention on Human Rights; and the Court, as a public authority, has a duty under section 6 of the Human Rights Act 1998, not to act in a way that is incompatible with a Convention right. Indeed, although it was not the subject of any submission, the Disciplinary Committee itself must surely be acting as a public authority when hearing and deciding such cases. The impact of the European Convention on Human Rights and the Human Rights Act on the rights of a doctor facing proceedings before a tribunal that has the power to suspend her from practice are fully discussed in the case of Stefan, supra. In the light of the developments in this case, as narrated by your lordship in the chair, it is unnecessary now to invite attention to that case. Although that case was decided before the Human Rights Act came into force, it affords powerful support for the need for a Disciplinary Committee in such a case to explain its thinking adequately so that it can be examined on appeal by the court. It is thus entirely in line with the principal Scottish authority in this field, to which Mr. Bell referred us, Wordie Property Co. Ltd. v. Secretary of State for Scotland, 1984 S.L.T. 345.
  54. In this context I return to the acknowledgement by both parties that, in this particular case, there had to be proof beyond reasonable doubt. What is it that had to be proved beyond reasonable doubt? The answer is not, "each of the heads (a) to (e) and (h)". What had to proved beyond reasonable doubt was conduct which the Act (section 11(1)(b)) made an offence warranting removal from the register. It had to be established beyond reasonable doubt that the appellant was "guilty of infamous conduct in [a] professional respect". The material which the respondents have put before us, consisting of the transcript of the oral finding of guilt and the later "Amended Extract of Charge", does not begin to explain how the Disciplinary Committee were able to hold that the evidence established infamous conduct, particularly when they were not satisfied by the evidence adduced that the conduct of the "relationship" involved any sexual improprieties. It is clear, without reading the evidence, that FK and the appellant gave contradictory evidence about these matters and in particular about any sexual context to the way in which the appellant behaved. The Disciplinary Committee cannot have been satisfied beyond reasonable doubt by the evidence of the pupil as to any of the sexual elements of the alleged conduct: that necessary inference arises because they were clearly advised by the Assessor - and rightly so - that corroboration was not necessary; so they cannot have deleted the sexual elements or overtones simply on the basis of any supposed technical legal insufficiency. In this case, despite what clearly was a serious and vital conflict of evidence going to the heart of the matter, and despite the implied rejection of the pupil's evidence - at least as being insufficient to prove beyond reasonable doubt any sexual content in the appellant's conduct - we are told nothing whatsoever about the view they formed as to the credibility, reliability and sufficiency of any of the evidence, particularly that of FK and of the appellant. I am unable to discover anything that discloses the reasoning of the Disciplinary Committee and the basis upon which they found the appellant guilty beyond reasonable doubt of infamous conduct in a professional sense. It is not even clear that they realised the word "conduct" needed careful thought in such a case. In the absence of any explanation of these matters the open right of appeal that the Act, in section 12, confers upon a teacher found guilty of infamous conduct is effectively robbed of much of its value. There can be no room for doubt that, even although the Court of Session must accord due respect the judgment of a Disciplinary Committee comprising a majority of members of the teaching profession (and I agree with the important observations of your Lordship in the chair on this aspect of the matter) this Court has a right and a duty to review and quash a finding of guilt that cannot be shown to rest upon any reasonable foundation, or a finding of guilt that rests upon a foundation that no reasonable tribunal could have regarded as sufficient. Even counsel for the respondents conceded that the court had a jurisdiction to review the finding of guilt on a Wednesbury basis. If it were not so, the right of appeal would be a sham. But if we are totally deprived of the opportunity to look behind the bare findings upon which the conclusion is said to rest then the right of appeal on such a basis is rendered nugatory. To render the right of appeal nugatory is hardly distinguishable from denying it altogether: but, of course, the appellant's right to a real and meaningful appeal is also a Convention Right, which it is the duty of the Court to secure.
  55. In these circumstances, I have reached the clear view that the Disciplinary Committee's finding of guilt cannot stand. I agree that the appeal should be allowed and the decision complained of quashed.


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/scot/cases/ScotCS/2003/47.html