Scottish Court of Session Decisions

[1] The appellant in this appeal under section 12 of the Teaching Council (Scotland) Act 1965 is Martin Flynn. By a decision of the Disciplinary Committee of the General Teaching Council for Scotland ("the GTC") dated 4 May 2000 he was found to have been convicted of an offence which, in the opinion of the Committee, renders him unfit to be registered as a teacher. The Committee therefore directed that his name be removed from the register.

[2] On 9 June 1999 in the Sheriff Court at Hamilton the appellant was convicted of a contravention of section 12(1) of the Children and Young Persons (Scotland) Act 1937. In respect of that conviction he was admonished.

[3] Section 11(1) of the 1965 Act provides as follows:-

By letter dated 2 November 1999 from the Registrar of the GTC the appellant was informed that the Investigating Committee of the Council had received information that he had been convicted "on a charge which appears to raise a question whether you have committed conduct infamous in a professional respect" and that the Committee proposed to consider the case. By letter dated 7 December 1999 from the Registrar the appellant was informed that his case had been considered by the Investigating Committee and their decision was that it should be referred to the Council's Disciplinary Committee.

[4] By letter dated 23 February 2000 Mr. R. Burnett, solicitor to the GTC, acting on behalf of the Disciplinary Committee gave notice to the appellant that proceedings were to be held to investigate a charge against him that

Notice was also given that the Committee would meet on 30 March 2000

The rules in question were the General Teaching Council for Scotland Disciplinary Committee (Procedure) Rules 1967.

[5] On 30 March 2000 the Disciplinary Committee met as indicated. The appellant was represented by Mr. J. Beltrami, solicitor advocate. Mr. Burnett appeared for the GTC and Miss S. O'Brien, Q.C. appeared as Legal Assessor appointed in terms of Schedule 2 para. 3 of the 1965 Act for the purpose of advising the Committee on questions of law arising in the proceedings.

[6] After the introductory preliminaries the charge was read by Mr. Burnett. The appellant was then asked by the Convenor of the Committee whether he admitted the conviction. He replied that he did.

[7] Mr. Burnett was then asked to proceed under the Rules. He said he had nothing further to add.

[8] Mr. Beltrami then made an opening statement. He described in some detail the circumstances in which the offence of which the appellant had been convicted took place, submitting that there were extenuating circumstances. He further submitted that the offence was an isolated one, out of character and pointed out that the appellant had no previous convictions and no convictions since the commission of the offence some 15 months earlier. Mr. Beltrami also gave a detailed account of events thereafter, which had resulted in considerable strain and suffering for the appellant and his whole family. He reminded the Committee that, when the sheriff admonished the appellant following upon the conviction, he said that the appellant had suffered enough. He also reminded them that from the outset the appellant had expressed regret and remorse for what he had done. He also referred them to a number of testimonials which had been produced.

[9] Following his statement Mr. Beltrami led the appellant in evidence. He took him through the circumstances surrounding the offence. The appellant confirmed that he had no convictions either before or after the offence. In cross-examination Mr. Burnett took up the question of the appellant's character. He introduced it in the following way:-

Mr. Burnett then led evidence from the appellant that his local authority had issued a statement saying that he had been warned on one occasion as to his conduct in school. Mr. Beltrami objected that that line of cross-examination was not relevant but after taking advice from the Legal Assessor the objection was repelled. The cross examination therefore proceeded and ended with the appellant explaining that the accusations which underlay any such warning were completely unfounded. The appellant completed his evidence by answering a number of questions from members of the Committee.

[10] Mr. Burnett and Mr. Beltrami made their closing submissions and then the Convenor of the Committee invited the Legal Assessor to advise the Committee of all questions of law to which they should have regard in their deliberations. She did that and the Committee retired to consider their decision. After they had retired the Legal Assessor gave them further advice in private. When the Committee returned after their deliberations the Legal Assessor was invited to state the nature of her advice and she did so.

[11] The Committee then adjourned the hearing to 4 May 2000. They did this for two reasons. First, to afford the appellant the opportunity to produce such documentary evidence as he saw fit relating to the background of the offence of which he had been convicted. Secondly, to enable the Committee to obtain a report from the local authority, presumably in relation to the previous warning allegedly given to the appellant.

[12] On 4 May 2000 the hearing continued. Two reports were available then, a medical report concerning the appellant's stress-related illness prior to the offence of which he was convicted and a report from the local authority. At the outset, however, Mr. Beltrami objected to the introduction of both reports. He did so on the grounds (1) that they were irrelevant to a charge under section 11(1)(a) of the 1965 Act and (2) that their contents were prejudicial to the appellant. Mr. Burnett did not oppose Mr. Beltrami's objection in relation to the medical report but he did in relation to the report from the local authority. He said that he sought to introduce the report to demonstrate that the appellant's statement that his conduct within the school had been impeccable was inaccurate. He said he was entitled to do that in terms of Rule 2(c) of the 1967 Rules. In any event, he submitted that the Committee, having ordered the report, should see it.

[13] The Legal Assessor gave advice that Mr. Beltrami's objection should be sustained. After retiring to consider the matter the Committee accepted that advice. The Committee therefore did not see the report but, of course, they did know why Mr. Burnett wanted to lodge it and that that was clearly adverse to the appellant's interests.

[14] Thereafter Mr. Beltrami made a motion to discharge the proceedings on a number of grounds upon which he made submissions. Mr. Burnett replied. The Legal Assessor advised the Committee that matters should proceed in terms of the 1965 Act. The Committee then retired to consider the motion in the absence of the Legal Assessor. They decided that the motion should be rejected.

[15] Following further submissions by Mr. Beltrami as to the options available for disposal of the case the Committee retired to consider their decision. In the course of their deliberations they received further advice from the Legal Assessor. On their return the Legal Assessor summarised the advice on questions of law which she had given to the Committee. The Convenor then announced the Committee's decision. She gave no reasons for the decision.

[16] The following day a report appeared in The Times newspaper. After reporting that the Committee had given no reasons for their decision it continued:-

Mr. Smith, counsel for the GTC, informed us that he was not in a position to dispute the report but extensive enquiries had failed to ascertain who was the spokeswoman in question or what she had said.

[17] A considerable number of points were raised in the appellant's grounds of appeal. In his submissions Mr. Bell, on behalf of the appellant, pointed first to section 11(1)(a) and (b) of the 1965 Act and the different tests that were applicable, depending on whether (a) or (b) applied. He also pointed to Rule 11(1)(a) of the Rules concerning Constitution and Meetings of the Investigating Committee and Disciplinary Committee. This he said confused the tests in section 11(1) of the 1965 Act. Rule 11(1)(a) is in the following terms:-

The letter of 2 November 1999 had reflected the wording in Rule 11 but did not give notice to the appellant as to whether it was section 11(1)(a) or section 11(1)(b) of the Act that was being relied on. There is no doubt in our view that this was unsatisfactory and plainly the wording of Rule 11 requires to be amended so as to reflect the two distinct tests set out in section 11(1)(a) and (b) of the Act. But although the confusion does appear and is referred to in the course of Mr. Beltrami's submissions to the Disciplinary Committee, we are satisfied that as matters proceeded there was no real confusion in the minds of anyone at the hearing, including Mr. Beltrami, that the charge was one in terms of section 11(1)(a) and that the appellant suffered no prejudice. In our view, therefore, the subsequent proceedings were not rendered incompetent on this ground.

[18] Mr. Bell then drew our attention to the terms of the charge, which are set out in the letter of 23 February 2000, pointing out that they did not set out the test in section 11(1)(a). That is true, but the succeeding paragraph of the letter states:-

This reflected the Form of Notice set out in the Appendix to the Rules and was in compliance with Rule 4(1) of the 1967 Rules, which makes provision for giving notice of proceedings. In these circumstances we are not persuaded that there was any impropriety in the manner in which the charge was intimated to the appellant.

[19] Mr. Bell's next point centred on the admissibility of the evidence concerning the appellant's character and, in particular, the introduction of evidence suggesting that he might have previously had a warning about his conduct in school from his local authority. We have already narrated how this matter was introduced by Mr. Burnett, acting for the GTC, and that Mr. Beltrami's objection to that line of evidence was repelled. We were referred to Schedule 2 to the 1965 Act, para. 2(1)(f), which is in the following terms:

Rule 17(2) is the relevant rule. It provides:-

The first question that arises, therefore, is whether the evidence sought to be led by Mr. Burnett would or would not be admissible in criminal proceedings. The transcript of the proceedings reveals, however, that that question was never addressed. All that appears from the transcript when Mr. Beltrami objected is this:-

Thereafter Mr. Burnett continued with his cross-examination. It can be seen, therefore, that the proper procedure for dealing with this matter was not carried out. The Committee did not ask themselves the appropriate questions and no consideration was given as to whether this evidence would have been admissible in criminal proceedings. Certainly it would have required the authority of the court before it was led in criminal proceedings (Criminal Procedure (Scotland) Act 1995 section 270(2)). In his examination of the appellant Mr. Beltrami had led evidence that the appellant had no previous convictions and none since the conviction which gave rise to these proceedings. But he did not go further than that. In that situation Mr. Burnett was entitled to lead evidence in rebuttal of the evidence that Mr. Beltrami had led. No doubt in criminal proceedings he would have been permitted to do so. See also Rule 9(2)(c). But the question is whether in criminal proceedings he would have been permitted to go further and explore the appellant's character in the open-ended way that he did. The matter was not fully argued before us but it is not self-evident that he would. That would not necessarily have been the end of the matter, because even if the evidence would not have been admissible in criminal proceedings, the Committee could still have allowed it to be led if, after consultation with the Legal Assessor, they were satisfied that it was desirable in the interests of justice to receive it. So it might be that at the end of the day the Committee would still have held the evidence led by Mr. Burnett to be admissible. The difficulty is that they never addressed themselves to any of the questions that they should have done before deciding that matter. It cannot therefore be affirmed that they would have held the evidence admissible. This is in our view a fundamental error and is fatal to the Committee's decision that the appellant was unfit to be registered and that the Registrar be directed to remove his name from the register.

[20] Mr. Bell raised a number of further points. The first was in relation to the options given to the Committee in the event of their finding that the conviction rendered the appellant unfit to be registered. In particular, in terms of Rule 11(3) the Committee were entitled to "defer their direction to the Registrar for such period not exceeding two years as the Committee may think proper". However, the Legal Assessor advised them that although they had that power, "I would suggest to you that there is not scope for that in this case". She gave no reason why that was so. When shortly thereafter the Committee retired to consider what they should do at the end of the first day of the hearing the Legal Assessor gave further advice on this matter. When the Committee returned she gave a report of that advice as follows:-

At the continued hearing on 4 May 2000 Mr. Beltrami made it clear that he did want deferral to be considered as an option by the Committee. At that time the Legal Assessor suggested that this was a change of position by Mr. Beltrami but before us Mr. Bell said that Mr. Beltrami had no recollection of his ever having agreed that deferral would not be a satisfactory option in this case.

[21] Mr. Bell also took issue with further advice which the Legal Assessor had given to the Committee on 30 March. She reported on this as follows:-

Mr. Smith frankly conceded that that advice was wrong.

[22] The Committee did not give reasons for their decision and so we do not know what their reasons were for rejecting referral. From the transcript of the proceedings it appears they were clearly interested in the possibility of adopting such a course. It was unfortunate that there should have been both an apparent misunderstanding as to its appropriateness in this case and then wrong advice as to its effect. Having regard to the conclusion we have come to, however, we need say no more about it.

[23] Mr. Bell then directed us to certain correspondence which passed between the Legal Assessor and Mr. Burnett after the first hearing. We need not go into any detail in this matter. Suffice it to say that Mr. Burnett, as instructing solicitor for the GTC, in remitting payment of the Legal Assessor's fee for the first day of the hearing on 30 March and instructing her to act as Legal Assessor for the second day on 4 May went on to ask her advice on certain matters. She responded. Initially she said that out of fairness to the appellant she should refuse to speak to Mr. Burnett until the case was concluded. However, she did then go on to discuss certain aspects of the case. There was no suggestion that anything improper in fact took place and Mr. Beltrami was sent copies of this correspondence and, indeed, was himself in correspondence with the Legal Assessor. But Mr. Smith accepted that it was nevertheless unfortunate that that correspondence had taken place. We agree. Again, however, in the light of our conclusion we need say no more about this.

[24] Mr. Bell also took a point as to the Legal Assessor's appointment. Schedule 2 para. 3 to the 1965 Act provides for the appointment by the GTC of an assessor to advise the Disciplinary Committee on questions of law arising in proceedings before it. But if no assessor appointed by the Council is available to act in any particular proceedings the Committee may appoint an assessor. In this case the Assessor appointed by the GTC was not available and so the Legal Assessor who acted in these proceedings was appointed by the Committee. In practice, of course, the Committee would not itself appoint the Legal Assessor but its solicitor would do so on its behalf. The solicitor was Mr. Burnett. Since he was also acting for the GTC Mr. Bell said that the Legal Assessor could not be seen as truly independent. Again there was no suggestion that in practice she did anything other than act independently but in the eyes of an impartial observer she must be seen to be independent. That there are possible difficulties in such an arrangement is in our view clear. The Human Rights Act was not in force at the time but even so the law in this country already reflected much of its substance. This, however, was another matter which was not fully argued before us and in the circumstances we think it unnecessary to say any more about it.

[25] Mr. Bell also submitted that the advice given by the Legal Assessor concerning the Sheriff's remarks when he admonished the appellant should not have been given. This was not legal advice, it was comment on a matter of fact and was, moreover, mere speculation and therefore unfounded. It was of particular concern because of the statement in The Times that suggested that the appellant's conviction was not the sole factor in deciding to remove his name from the register. We agree that this is a matter of concern but since the Committee did not give reasons for their decision and in light of our conclusion, we need say no more about it.

[26] For the reasons we have given we are of the opinion that the decision of the Committee cannot stand. The next question, therefore, is whether the matter should be remitted back to the Committee or to a differently constituted Committee or whether we should simply quash the decision. Mr. Bell submitted that we should follow the last of these courses. Mr. Smith submitted that if we reached this stage, we should remit to the Committee or to a differently constituted Committee.

[27] Having regard to all the circumstances of the case we are entirely satisfied that it should not be remitted to the same Committee. The proceedings before them were flawed in so many respects that in our view it would be quite wrong to take that course. The question then is whether we should remit to a differently constituted Committee. We have had more difficulty with this but in the end have come to the conclusion that that would not be appropriate either. This is an anxious case which has aroused great interest on the part of the public. In that situation it would in our view be most unlikely that a different Committee could be constituted with members who did not already have a great deal of prior knowledge about the case and had not already formed views about it. We cannot, therefore, be satisfied that any Committee at a fresh hearing would be in a position to reach a satisfactory conclusion. For these reasons we shall simply quash the decision.