Scottish Court of Session Decisions

The appellant in this appeal under Section 12 of the of the Teaching Council (Scotland) Act 1965 is Lee Sigourney. By a decision of the Disciplinary Committee of the General Teaching Council for Scotland dated 21 August 1998 she was found guilty of conduct infamous in a professional respect in that they held that a falsified reference for a job had been altered by her. They directed the Registrar to remove the appellant's name from the register.

In 1996 the appellant was employed as a probationer supply teacher at Dysart Primary School. She was taking steps to obtain a job in England and contacted a Mr. Ash, the Headteacher at the Crescent Primary School in Eastleigh in Hampshire. On 11 October 1996 Mr. Buchanan, the Headteacher at Dysart Primary School, supplied her with a reference. In due course the appellant supplied a reference to Mr. Ash. The appellant's position before the Disciplinary Committee was that the reference which she supplied to Mr. Ash was the one which she had been given by Mr. Buchanan and that it was signed by Mr. Buchanan and comprised three paragraphs. Mr. Ash confirmed that the reference which had been given to him was signed and comprised three paragraphs. Mr. Buchanan, however, said that the reference provided by him comprised the same three paragraphs plus two additional paragraphs containing certain comments which were critical of the appellant. His position was that the reference given to Mr. Ash by the appellant must have been deliberately doctored so as to omit the final paragraphs. The complaint of professional misconduct against the appellant, as contained in the letter from the Council's Solicitor, Mr. Burnett, dated 7 April 1998, was indeed based on an allegation that she had uttered as genuine to Mr. Ash a reference which purported to be a true and accurate reference from Mr. Buchanan, the truth being, as she well knew, that the reference uttered to Mr. Ash had been altered in so far as the last two paragraphs of the true reference had been deleted from the reference given to Mr. Ash.

It appears that Mr. Ash telephoned Mr. Buchanan about the reference not long after it had been supplied and that a discussion took place about its form. None the less Mr. Ash was not asked to keep the reference letter and in fact threw it out, apparently at some time in 1996. Neither Mr. Ash nor anyone else had made a photocopy of the letter which had been supplied to him. It follows that, although the allegation against the appellant was in effect one of falsifying the reference and uttering it to Mr. Ash, neither the original reference nor any photocopy of the reference was available as a production before the Tribunal.

None the less there was an inventory of productions in those proceedings, lodged by Mr. Burnett, which contained two documents, the first described as "Copy Reference prepared by Mr. Buchanan" and the second described as "Copy Reference received by Mr. Ash". Copies of these documents were sent to the appellant on the Friday before the proceedings but her solicitor did not see them until the Monday when the proceedings began. The first was a five-paragraph document bearing to be a reference about the appellant signed by Mr. Buchanan and dated 11 October 1996. The second was a similar document signed by Mr. Buchanan and also bearing the date 11 October 1996 but without the final two paragraphs and having instead a blank space where those paragraphs were to be found in the first document. The signature and the date are therefore to be found below that space and separated by a distance of some two or three inches from the text. From the narrative which we have already given, it is apparent that the second of the documents could not be the document which had been sent to Mr. Ash since he had destroyed it. The origin of the first document is also prima facie somewhat unclear.

As Mrs. Paton, Q.C., who appeared on behalf of the appellant in the proceedings before this court, pointed out, certain questions which the appellant's agent posed to a witness, Evelyn McLeod, towards the end of the first day's proceedings before the Committee show that he had become aware that that there was something unexplained about the second of these documents at least. As he put it in a comment at the end of her evidence, "But somehow an abbreviated version has appeared despite the fact the person who received the abbreviated version says he destroyed it, thank you." The proceedings required to be adjourned for some weeks and in the intervening period the appellant's agent wrote to Mr. Burnett asking him to clarify the position, but he does not appear to have done so or indeed to have been able to do so. The hearing resumed and the appellant gave evidence. In due course submissions were made by Mr. Burnett and by the agent for the appellant. It is agreed that at no point in the submissions for either party was the puzzle about the nature of the documents explained.

More particularly, in the course of his submissions to the Committee Mr. Burnett said:

All these would have been telling points, if we may say so, in the case against the appellant if the documents which Mr. Burnett was discussing and which the members of the Committee had been examining had indeed been, respectively, the document actually prepared by Mr. Buchanan in October 1996 and the document which Mr. Ash received. But, as Mr. Smith, who appeared for the respondents before this court, admitted with his usual frankness, in fact these productions were not the documents prepared or received in 1996.

What appears to have happened, in circumstances which are not entirely clear, is that Mr. Buchanan accessed the computer which had been used to produce the reference in 1996 and used it to produce the text of the first of these documents. He then signed the document and dated it 11 October 1996, even though in fact, of course, it must have been produced at a later date. According to what we were told by Mr. Smith, the second document was then produced by putting a piece of paper over the last two paragraphs of the first document and photocopying it. In that situation it was, of course, inevitable that - as the members of the Committee had observed - the second document corresponded in all respects with the first, except for the missing paragraphs. On the other hand it is obvious that the presence of these features in the two documents before the Committee was of no conceivable relevance to the issue of whether the original document sent to Mr. Ash had been falsified by covering over two paragraphs. Unfortunately, it would appear that, even when he was addressing the Committee at the end of the hearing, Mr. Burnett had still not understood the nature of his own productions and as a result was putting forward a line of argument which served to reinforce a wholly mistaken line of reasoning that had already been adopted by members of the Committee. We should add that it is clear also that, because the nature of the productions had not been understood during the leading of the evidence, the examination and cross-examination of the witnesses, especially of Mr. Buchanan, proceeded on a basis which was wholly different from that which would have been adopted if the true position had been understood.

We are therefore satisfied that the proceedings before the Committee were profoundly flawed. In effect Mr. Smith accepted this. His only submission to the effect that we should none the less refuse the appeal was based on what the Assessor said when the Committee returned after deliberating:

Mr. Smith submitted it could be seen that this direction had cured any defects in the procedure since, in paragraph 5 of the facts found to have been proved, the Committee said that the format of the five-paragraph reference "was that demonstrated in production number 1" and in paragraph 7 they said that the format of the three-paragraph reference "was that demonstrated in production number 2". The Committee had realised, he said, that the documents were not the actual documents.

We cannot accept that submission. As we have explained already, it is clear that the course of the examination of some at least of the witnesses would have been different if the true position had been known. In that situation it is quite impossible to affirm that the evidence would have been the same or that the Committee would have reached the same decision if the nature of the productions had been understood. Similarly, the fact that the Assessor found it necessary to give the direction - which had not been anticipated by anything said in submissions to the Committee - suggests that during their deliberations the Committee had indeed been discussing the significance of the format of these documents. In that situation, where the matter is one which strikes at the root of the case, we are satisfied that the decision of the Committee cannot stand. We must therefore allow the appeal and quash the decision.

Mr. Smith urged us, however, to remit the matter to the Committee so that, if so advised, the solicitor could bring the matter before a differently constituted Committee. We have concluded that we should not do so because, as Mrs. Paton submitted, the evidence of the witnesses as to their recollection of the form of the original references must lie at the heart of the case in any future hearing. When, for the purposes of the proceedings before this Committee, the witnesses have been shown the specially prepared documents, there is a significant risk that their recollection may have been tainted and that any evidence which they might give at any further hearing would have been tainted also. In that situation, where there is no objective check on the witnesses' recollection, we cannot be satisfied that any Committee at a fresh hearing would be in a position to reach a satisfactory decision on the issue. For that reason we shall simply quash the decision.