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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> AB v General Teaching Council for Scotland [2016] ScotCS CSOH_181 (23 December 2016)
Cite as: [2016] ScotCS CSOH_181

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[2016] CSOH 181




In the Petition






Pursuer:  McAlpine;  Balfour & Manson LLP

Defender:  H Lindsay QC;  Anderson Strathern LLP

23 December 2016

[1]        The petitioner is a registered teacher.  The respondents inter alia exercise the function of regulator of the teaching profession in terms of the Public Services Reform (General Teaching Council for Scotland) Order 2011 (“the 2011 Order”).


Remedies Sought
[2]        The petitioner seeks reduction of the respondents’ Fitness To Teach Panel (“FTTP”) decision of 12 April 2016 which failing for reduction of the said decision and the decision of the respondents’ Investigating Panel (“IP”) dated 23 November 2015 and for the court to remit the matter back to the respondents for them, if so advised, to convene a newly and differently constituted IP to consider the allegation made against the petitioner in the absence of knowledge of the petitioner’s “protected convictions”.


The Regulatory Structure
[3]        The functions of the respondents are as set out in the 2011 Order.  For the purpose of the instant case the relevant functions and the manner in which the respondents are directed to exercise these can be summarised as follows:  as one of its statutory functions the respondents investigate and determine the fitness to teach of registrants and applicants to its register.  This function is discharged in accordance with the fitness to teach provisions set out in Article 4 and Schedule 4 of the 2011 Order and in the General Teaching Council for Scotland Fitness to Teach and Appeal Rules 2012 (“the 2012 Rules”).  In order to be employed as a teacher in a Scottish State school, an individual requires to be registered with the respondents in accordance with the Requirements for Teachers (Scotland) Regulations 2005.  When a complaint is received relating to a registered teacher, it is first referred to an IP.  The IP determines whether there is a case to answer and whether the matter should be referred for an FTTP hearing.  FTTP hearings are conducted in an adversarial format with the presenting officer carrying out the prosecution role (libelling charges and adducing evidence in support of those charges) and the teacher responding to those charges.  The teacher has the opportunity to attend and to make representations at the hearing including citing witnesses and cross-examining any witnesses cited by the presenting officer.


[4]        In October 2012 Disclosure Scotland began a retrospective checking exercise to ensure that every person on the Protecting Vulnerable Groups (“PVG”) scheme had been properly vetted.  As a result of these checks certain convictions relating to the petitioner came to the attention of Disclosure Scotland who forwarded a PVG scheme record to the respondents on or about 23 March 2015.  The PVG scheme record disclosed that the petitioner had four convictions.  One from 1996, two from 2002 and one from 2012.  A notice of referral to an IP was thereafter sent to the petitioner on 16 April 2015 alleging that his fitness to teach may be impaired because of his four criminal convictions.

[5]        Following the service of the said notice and correspondence from the petitioner’s representatives, the respondents accepted that the three earliest convictions had already been adjudicated upon by a forerunner of the FTTP and misconduct charges in respect of these convictions should not have been raised in the said notice of referral.  In response to the foregoing an amended notice of referral was issued on 15 June 2015.

[6]        The matter thereafter proceeded before the IP.  On 23 November 2015 the respondents wrote to the petitioner to inform him that it was the decision of the IP that the petitioner’s case should be referred to a hearing before the FTTP on a date to be afterwards fixed.  The complaint referred to the FTTP was set out in a schedule to the said letter.  That schedule listed four convictions.  It was accepted by the respondents that the letter notifying the petitioner of the IP’s decision erroneously stated that he was being referred to the FTTP in respect of all four criminal convictions.  This was incorrect.  The IP only referred the petitioner to the FTTP in respect of the fourth and most recent conviction which was a conviction in 2012 for drink driving.  The petitioner was fined £500 and disqualified from driving for 3 years.

[7]        The Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Act Amendment Order 2015 came into force on 10 September 2015 (shortly before the issuing of the decision of the IP on 23 November 2015).  This introduced a category of “protected convictions” which should not be disclosed.  The petitioner’s 1996 conviction was the only one which was a protected conviction.  It was accepted by the respondents that the protected conviction had been disclosed to the IP.  It was accepted on behalf of the respondents that it should not have been before the IP.

[8]        Consideration was thereafter given as to how to proceed in light of the admitted error in law in placing the protected conviction before the IP.

[9]        The respondents’ proposed dealing with the referral to the FTTP by the respondents making an application, in terms of Rule 3.5 of the 2012 Rules submitting a reasoned opinion, and requesting that the complaint, referred by the IP, not proceed to a full hearing of an FTTP.  The petitioner’s agents by email dated 18 February 2016 agreed to this course of action being followed.  Accordingly a reasoned opinion was submitted.  On 30 March 2016 a Procedural Hearing of the FTTP was convened to consider the reasoned opinion and application.  Having considered the reasoned opinion and heard submissions by both parties in support of the reasoned opinion, and that the case against the petitioner should not proceed to a full hearing, the respondents’ FTTP issued a decision on 12 April 2016 (the challenged decision) holding that the matter should proceed to a full hearing before an FTTP.


Submissions on Behalf of the Petitioner
[10]      Counsel for the petitioner commenced his submissions by dealing in turn with each of the preliminary points which were foreshadowed in the respondents’ Note of Argument.

[11]      He first addressed together the issues of prematurity and the availability of an effective alternative remedy.

[12]      It was his position that the only remedy open to the petitioner was to invoke the supervisory jurisdiction of this court.  The petitioner was entitled to raise judicial review proceedings at this point in order to stop the ongoing prejudice which he was suffering continuing any further, in the sense of proceedings before the FTTP progressing.

[13]      In development of this submission he argued that the petitioner had no right of appeal against the decision of the procedural hearing of the FTTP (this was not disputed).  Whilst he will have a right of appeal, at the conclusion of the proceedings, if dissatisfied with the outcome, that right of appeal was not effective against the current and continuing ongoing procedure.  The respondents’ position fails to recognise that the continuation of the FTTP proceedings is in and of itself, a continuing breach of the petitioner’s rights.  The IP is essentially the gateway to the FTTP process.  It decides whether to refer matters to the FTTP.  The petitioner was entitled in terms of the 2012 Rules, and in terms of natural justice, to the IP properly and fairly considering his case, and in particular considering only material that it was entitled to consider.  As was recognised by the respondents, that did not happen in the case of the petitioner with respect to the protected conviction.  Accordingly, the petitioner’s entry into the FTTP process itself was fundamentally flawed.  That entry took place in breach of the 2012 Rules and natural justice.  Any continuation of the process represents a continuing breach of the 2012 Rules and of natural justice.

[14]      Turning to the associated issue of prematurity, he submitted that standing the exceptional circumstances of this case, which were, namely:  (a) the admitted error on the part of the respondents leading to unlawful material being placed by them before the IP;  and (b) the terms of the respondents’ reasoned opinion and submissions before the procedural hearing it is both appropriate and necessary to intervene at this stage of the disciplinary process.  It was his submission that justice could only be done by intervention at this stage.  This submission was made under reference to R (Aurangzeb) v Law Society of England and Wales 2003 EWHC 1286 Admin at paragraph 5.

[15]      With respect to the issue of personal bar it was his position that the petitioner was not personally barred from challenging the decision of the IP.  He reminded the court that the challenge to the IP was only presented on an esto basis.

[16]      He thereafter made three detailed points:

[17]      Having regard to the foregoing the petitioner had at no time, by his words or conduct, justified the respondents in believing that he did not seek to challenge the decision of the IP, or that he was content with this decision, and the respondents had not acted in furtherance of that belief to their prejudice.  The order sought at paragraph 4(a) of the petition accorded with the desired outcome of the respondents  in terms of their own reasoned opinion.  He submitted that in these circumstances the test with respect to personal bar as outlined in Gatty v Maclaine 1921 SC (HL) 1 at page 7 was not met.

[18]      In regard to the substance of the challenge to the decision of the FTTP on 12 April 2016 counsel set forth three discreet grounds of challenge:

[19]      The petitioner in support of the foregoing grounds of challenge advanced a number of detailed points as follows:

a.         The procedural hearing erroneously concluded there was no continuing prejudice to the petitioner because the protected conviction would not be placed before the full FTTP.

b.         The approach of the procedural hearing to the issue of ‘continuing prejudice’ betrays a fundamental misunderstanding on the part of the procedural hearing as to the nature of the prejudice caused by the respondents placing unlawful material before their IP.

c.         The entire process of regulation and professional discipline, governed by the 2011 Order and the 2012 Rules, has to be lawful, and in particular, fair, just and proportionate.

d.         The present proceedings are not lawful.  As the terms of the respondents’ Reasoned Opinion make plain they took that view at least prior to the raising of these proceedings.

e.         The present proceedings before the FTTP are also not just, fair or proportionate.  Again, the terms of the respondents’ Reasoned Opinion make plain they took that view, at least prior to the raising of these proceedings.

f.          The petitioner was entitled to have his possible entry into the FTTP process properly and lawfully considered by the respondents’ IP.  Had he been afforded that there is a possibility that the IP would have decided not to refer the matter to the FTTP.

g.         Had only lawful material been before the IP it would have been open to it to offer the petitioner a Reprimand Consent Order.

h.         The decision of the procedural hearing not only denies the petitioner the opportunity for his case to have been properly considered, but also continues the prejudice suffered by him in the form of continuing the FTTP process itself.  The effect of same upon the petitioner is set out within his affidavit.

i.          The petitioner has suffered actual prejudice as a result of the actions of the respondents which is ongoing.

j.          The prejudice is not remedied simply by not placing the protected conviction before the full FTTP.  The true question is whether, but for the protected conviction being before the IP, the petitioner would ever have been referred by the IP to the FTTP in the first place?  The procedural hearing failed to consider this relevant factor.

k.         The approach of the IP to the question of public interest is wholly irrational.  The maintenance of the public’s confidence in the respondents as a professional regulator is a factor in determining where public interest lies.

l.          If the respondents are permitted, as the IP decision has done, to act unlawfully at the initial investigation stage of the regulation process, public confidence would likely be materially undermined, not maintained.  No proper consideration was given to this relevant factor.

[20]      He submitted in light of the foregoing that the court should grant one or other of the two orders sought by the petitioner.


Reply on Behalf of the Respondents
[21]      With respect to the issues of effective alternative remedy and prematurity counsel for the respondents also dealt with these issues together.

[22]      He turned first to the issue of continuing prejudice and submitted that there was no continuing prejudice.  He accepted that the IP should not have had before it the protected conviction.  He then said this:  It could not be said one way or another what the decision of the IP would have been had this conviction not been before it.  What, however, was known was this:  there was no continuing prejudice arising from the protected conviction being before it as the substantive hearing before the FTTP would know nothing about the protected conviction.  Further there would be no irredeemable prejudice were the case to proceed to a full hearing before the FTTP.  The petitioner argued that he had been prejudiced as the IP could have issued a Reprimand Consent Order and such an order could not be made by the FTTP.  However, it would not have been possible for the IP to have issued a Reprimand Consent Order unless the petitioner admitted the charges and admitted that his fitness to teach was impaired.  The petitioner had made no such admission before the IP.  Rather, the petitioner at that stage had, submitted there was no case to answer.  In any event, the FTTP may impose a reprimand or make a finding more favourable to the petitioner such as a finding of no impairment or a sanction of no order.  Thus the FTTP may make a more favourable disposal than the one the petitioner contends could have been imposed by the IP, the present petition is thus premature and unnecessary.

[23]      In support of his position under this head, counsel also directed my attention to R (Aurangzeb) v Law Society of England and Wales.  His position was that the core of the decision was to this effect:  the court should only intervene where prejudice could not be remedied.  Here the prejudice could be remedied by the substantive hearing before the FTTP having no knowledge of the protected conviction.

[24]      With respect to the issue of effective alternative remedy the respondents’ position was a short one:  the petitioner has a right of appeal to the Court of Session under Article 24 of the 2011 Order against a final decision of the FTTP removing him from the register.  Moreover, he has a right of appeal to an appeals board against the imposition of a lesser sanction, such as a reprimand and conditions on registration.  These rights of appeal he submitted are effective as they are not unduly onerous and are capable of remedying any prejudice which the petitioner may have sustained.  There are no exceptional circumstances which would justify the petitioner proceeding with this petition rather than exercising the alternative remedies of proceeding with an appeal to the Court of Session or an appeal to the Appeals Board in the event that he is unsuccessful at the full hearing before the FTTP.

[25]      In support of the above position he directed the court’s attention to RCS 58.3(1);  Krystof Kedra v Secretary of State for the Home Department 2016 CSOH 127 per Lord Boyd at paragraphs 21 and 22;  McGeough v Scottish Legal Aid Board 2013 SLT 183 per Lord Brodie at paragraph 76 and B Petitioner 2010 CSOH 64 per Lord Brodie at paragraphs 51 and 52.

[26]      Regarding personal bar the respondents’ position was this:  the petitioner is personally barred from proceeding with any challenge based on the IP taking into account his protected conviction.  The petitioner did not challenge the decision of the IP when it had regard to his protected conviction.  It would have been open to the petitioner to challenge this decision by way of a petition for judicial review.  The petitioner, who was legally advised at all material times, did not do so.  Rather he decided to proceed by way of the reasoned opinion.  When he decided to do so the petitioner was aware that the reasoned opinion would not be binding upon the FTTP and that it had a discretion to disregard the reasoned opinion and to refer the complaint against him to a full hearing.  He had thus accepted the risk that the FTTP may not have accepted the recommendations contained within the reasoned opinion and may have decided to refer the complaint against him to a full hearing.  Having accepted this risk it was not open to the petitioner to now contend that this outcome was unlawful.  The submission was made under reference to William Grant & Sons Ltd v Glen Catrine Bonded Warehouse Ltd 2001 SC 901 per Lord Clarke at 942D to G and per Lord Nimmo Smith at page 938B to H.

[27]      Finally, turning to the substantive decision of the FTTP counsel began by accepting that another panel could lawfully have accepted the recommendations in the reasoned opinion.  This panel did not accept the recommendations in the reasoned opinion.  However, he said it was reasonably and lawfully open to the FTTP to so decide.  The decision of the FTTP was within the spectrum of reasonable decisions which could be made.  It was only if the court was persuaded the decision fell outwith that spectrum that it became unlawful.

[28]      In support of the above submission, counsel referred to the following points:

[29]      For all of the above reasons the court should dismiss the petition.


[30]      The arguments regarding prematurity and effective alternative remedy shade into one another and I would intend, as both counsel did, to deal with them together.

[31]      I believe useful guidance as regards the issue of prematurity is to be found in the observations of Newman J in R (Aurangzeb) v Law Society of England and Wales.  The factual matrix in that case was very similar to that in the instant case, namely:  a challenge was taken to the decision of a panel to refer allegations regarding the conduct of the claimant to the Solicitors Disciplinary Tribunal.

[32]      At paragraph 5 of the Judgement, Newman J turns to the issue of whether as a matter of principle it is appropriate for the court to intervene by means of judicial review where the ambit and reach of the decision under challenge goes no further than to place the allegations in question before a disciplinary panel.  He then answers the question in this way:

“...  I have no doubt that the court must, in accordance with basic elementary principles have considerable reservations about the desirability of intervening in the manner suggested, save in circumstances where the facts call out for that intervention, for example where irreparable harm or unfairness is likely to occur or justice could only be met by intervention.”


[33]      He goes on further to opine at paragraph 8:

“In my judgement, it is important to establish, as a matter of general principle, that, save in exceptional circumstances, which may be in the general category of those I have attempted to define, where what has occurred is that there has been a procedural failure and the matter is before the Tribunal, the proper conclusion is that the Tribunal will have ample opportunity to cure any of the failures which to that date is said have occurred.  There will be an occasion for justice then to be done.  The decision of the Tribunal will be subject to review.”


[34]      I am persuaded that Newman J has correctly analysed the position and that the foregoing passages are an accurate statement of the law.

[35]      Applying the foregoing observations to the circumstances of this case, I am clearly of the view, there is no irredeemable prejudice or unfairness to the petitioner, if the matter proceeds before the FTTP for a substantive hearing, which requires the court to intervene.  There is nothing which cries out for the court’s intervention.  There is in particular no continuing prejudice.  The prejudice which has arisen, namely:  the IP seeing the protected conviction has been dealt with:  the full hearing of the FTTP will not have sight of the protected conviction;  the full hearing will proceed as if there had been no breach;  and the petitioner will thus have a full hearing before the FTTP where that panel knows nothing about the protected conviction.  The hearing before the FTTP would meet all the requirements of fairness and Article 6 requirements.  As pointed out by counsel for the respondents, the FTTP may make a more favourable disposal than that submitted by the petitioner could have been imposed by the IP (the Reprimand Consent Order).  Moreover, following the hearing before the FTTP, there are two rights of appeal which would be open to the petitioner should he be unsuccessful before the FTTP.  The foregoing factors when taken together clearly show that there are no circumstances justifying the court intervening at this point.

[36]      As part of the argument for the petitioner it was submitted that where (as here) there has been an admitted error of law before the IP, this creates exceptional circumstances as defined by Newman J.  I do not believe that there is any merit in this argument.  I am not persuaded that this factor makes this an exceptional case.  All of the points of principle enumerated by Newman J are equally applicable to a situation where there is an admitted error of law as to the situation where there is only an arguable error of law at the gatekeeping stage.  The court in considering whether to intervene has to ask the same question in both circumstances, namely:  are there circumstances, where irreparable harm or unfairness is likely to occur or justice could only be met by intervention?  For the reasons earlier stated I would answer that question in the circumstances of this case in the negative.

[37]      The mere fact that the petitioner has to go before the FTTP does not amount to irredeemable prejudice for the reasons I have already given. 

[38]      Beyond the above, looking at the issue of alternative effective remedy, I believe there is considerable force in the submissions of counsel for the respondents that the petitioner has proper alternative remedies, these being:  either an appeal to the Court of Session or an appeal to the Appeals Board in the event that he is unsuccessful at the full hearing before the FTTP.  I am unable to identify anything in the appeal rights available to the petitioner which would render them ineffective. The grounds of appeal are described in the widest terms.  I am unable to envisage that any legal issue, of the type foreshadowed in this petition, could not be argued within the ambit of these appeal rights.

[39]      For the foregoing reason I am satisfied that the petition is premature and unnecessary.

[40]      With respect to the issue of personal bar, I believe there is substantial merit in the arguments advanced by counsel for the petitioner.

[41]      By agreeing to go down the route of the reasoned opinion, I am persuaded he was not conducting himself in such a way that would reasonably justify the respondents in believing that he did not seek to challenge the decision of the IP.  By going down that route he was doing no more than following a course, which given, the position to be taken by the respondents in the reasoned opinion was, on the face of it, the best way of successfully challenging the decision of the IP.  What cannot be taken from that decision is that he was abandoning his rights to challenge the IP decision by other means and accepting that the IP should have had the protected conviction before it.  Moreover, I am unable to see how the respondents are prejudiced by the decision to go down that route.  On the basis of the arguments advanced by counsel for the petitioner I accept that there is no such prejudice.

[42]      Lastly, and in any event, where the respondents were agreeable to go down the route of the reasoned opinion, I do not believe it would have been competent for the petitioner to bring a judicial review to challenge the decision of the IP.  There was a clear alternative remedy open to him which the respondents were prepared to follow.  In these circumstances, had a judicial review been brought an argument based on such alternative remedy being open, it would almost certainly have been raised by the respondents and I am persuaded such an argument would have been successful.

[43]      For the above reasons, I reject the respondents’ argument based on personal bar.

[44]      Finally, as regards the substantive argument, I am satisfied that the decision of the FTTP was a lawful and reasonable one.

[45]      The decision commences by fully setting out each party’s submissions and when the decision part of the letter is turned to, it is clear that full regard has been taken by the FTTP to these various submissions.  It has directed itself to the relevant provisions of the 2011 Order and 2012 Rules.  It has recognised that these require to be construed and applied in accordance with the respondents’ obligations under the 2011 Order and in terms of the Human Rights Act 1998.  It correctly understood the nature of the error before the IP, namely:  the placing before it of a protected conviction, which it should not have seen.  It understands the nature of the task before it, namely:  to carry out a balancing exercise.  It correctly identifies and considers the two interests to which regard must be had in the carrying out of that exercise, namely:  the interests of the petitioner and the public interest.  This need to balance these two interests is central to the assessment of the lawfulness of the decision.  In assessing the FTTP’s striking of the balance, it must be borne in mind that the courts have recognised that a professional regulatory body, such as the FTTP, is in a better position than the courts to assess the weight to be given to the public interest and to identify what is required in order to maintain public confidence.  (See:  Dad v General Dental Council Professional Conduct Committee [2010] CSIH 75 at paragraph 30 and  HK v General Pharmaceutical Council [2014] CSIH 61 at paragraphs 12 and 13.

[46]      In considering the factors in terms of the public interest and the petitioner’s interest the FTTP had regard to the following:

(i)         that if the petitioner’s most recent conviction was admitted or proved and an FTTP was told about the history, excluding the material that ought not to have been shown to the IP, an FTTP might find the petitioner unfit to teach or his fitness to teach to be impaired;

(ii)        cancelling the proceedings would mean that there would be no determination of that issue;

(iii)       the material that ought not to have been shown to the IP may or may not have influenced its decision to refer the matter to the FTTP;

(iv)      the breach of the petitioner’s rights was a serious matter;

(v)       the petitioner may have sustained some prejudice by reason of this disclosure;  and

(vi)      if it had not seen the information, the IP might not have referred or might have offered the petitioner a Reprimand Consent Order.

[47]      All of the above factors I am persuaded are relevant and material considerations and I am unable to identify any relevant factors  to which regard was not had.  The FTTP had regard to all arguments which were advanced before it on behalf of the petitioner.

[48]      Thereafter the FTTP carried out the necessary balancing exercise.  Looking at this exercise it is carefully carried out and the weight it gives to the public interest, given the above authorities cannot be said to be unreasonable.  The balance struck is a reasonable one.  Its approach and analysis of the issue of continuing prejudice I am of the view is the correct one for the reasons I have already stated. In considering the public interest and weight to be attached to it and the striking of the balance, it is I believe important to note that the FTTP’s decision was taken in a binary context, namely:  either the matter had to be allowed to proceed or the proceedings had to be entirely cancelled.  What could not occur was the case being remitted back to the IP.  This is I believe an important matter in considering the public interest element in its decision and in its holding that there was a strong public interest in proceeding to a full hearing.  The alternative was that the matter would not be heard at all.

[49]      Overall I find this is a full, careful and well-reasoned decision.  No irrelevant matters have been considered and no relevant matters have been left out of consideration.  The FTTP has properly directed itself on all of the legal issues before it.  It is clearly a high quality decision.  It cannot be said that the decision falls outwith the spectrum of decisions which could reasonably be reached.  It is not an irrational decision.


[50]      For the above reasons I sustain the respondents’ first plea-in-law and fourth plea-in-law, repel the fifth plea-in-law;  sustain the petitioner’s fourth plea-in-law, quoad ultra repel the petitioner’s pleas-in-law, refuse the orders sought in terms of the petition and dismiss the petition.  I was not addressed on the issue of expenses and I reserve my position regarding that issue.


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