EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Marnoch Lord MacLean Lord McCluskey
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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
"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.' ... "
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.
" '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.'"
"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.
"(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.
"(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."
"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."
"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.
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.
"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."
"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."
"(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."
"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."
"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."
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Marnoch Lord MacLean Lord McCluskey
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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 |
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Lord Marnoch Lord MacLean Lord McCluskey
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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
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.
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.
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.
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.
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.
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.
"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".