EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Eassie Lord Emslie Lord Osborne	[2012] CSIH 39 XA91/11 OPINION OF THE COURT delivered by LORD OSBORNE in appeal to the Court of Session under Section 12 of the Teaching Council (Scotland) Act 1965, as amended by JANET GARNER Appellant; against A decision of the Disciplinary Sub-Committee of the General Teaching Council for Scotland, dated 13 July 2011 and communicated to the appellant on 16 July 2011 _______

Act: Party

Alt: Sheldon, Advocate; Messrs Dundas & Wilson, C.S., LLP

13 April 2012

The background circumstances
[1] The appellant is an honours graduate in pure mathematics and statistics of St Andrews University. After graduation, she pursued further study and obtained a masters degree in statistics in Manchester. Thereafter she undertook employment as a mathematician and statistician in operational research analysis. After a career‑break, during which the appellant had a family, she decided to seek a teaching qualification, which she obtained at Moray House College of Education in 1998. In due course, she went on to the supply list of Stirling Council, working mostly at St Modan's School. In August 1999 she was sent on the supply list to Dunblane, where she worked in all for about 4 years, for 2 years as a supply teacher and subsequently in a substantive post.

[2] On 3 November 2003, the appellant commenced employment with Clackmannanshire Council as a mathematics teacher at Alva Academy. Her progress there was not without difficulty and, on 30 September 2004, Stage 1 of the General Teaching Council for Scotland Code of Practice on Teaching Competence was commenced. On 20 December 2004, while on sick leave, the appellant was informed that Stage 2 of the Code of Practice had been commenced. Discussions took place in regard to means of support for the appellant. Concerns regarding her performance were not, however, resolved and, in due course, Clackmannanshire Council arranged for her to transfer, on a supernumerary basis, to Alloa Academy for a further period of support as an extension to the Stage 2 procedure. The appellant commenced work at that school on 21 August 2006. Eventually, on 27 April 2007, the appellant was informed that it was intended by her employers to move to Stage 3 of the process set out in the Code of Practice, involving formal disciplinary action. The appellant was suspended from her post until resolution of the disciplinary procedure. On 22 August 2007, a disciplinary hearing took place, which the appellant did not attend. Following that, a decision was taken that the appellant should be dismissed. She subsequently appealed against her dismissal, but on 11 October 2007 the decision to dismiss her was upheld.

[3] The appellant's case was referred to the respondents on 30 October 2007, and to their Disciplinary Sub-Committee on or after 1 May 2008. The appropriate notice of hearing was served upon the appellant, in terms of Form 4 of the Schedule to the Conduct, Competence and Disciplinary Rules 2006 of the respondents. The charge brought against the appellant was in the following terms:

"Between 3 November 2003 and 29 August 2007 whilst employed as a teacher of mathematics by Clackmannanshire Council and despite significant management support over an extended period of time to address areas of concerns in your performance and competence as a teacher, you did fail to meet the standards of competence and performance required of a teacher and in particular whilst employed at Alva Academy and at Alloa Academy you failed to meet the level of competence and performance required.

The General Teaching Council Code of Practice on Teacher Competence in relation to professional skills and abilities states inter alia:

'registered teachers:

...

(b) communicate clearly making skilful use of a variety of media and interact productively with pupils, individually and collectively; ...

(d) set and maintain expectations and pace of work for all pupils;

(e) work co-operatively with other professionals and adults;

(f) organise and manage classes and resources to achieve safe, orderly and purposeful activity;

(g) manage pupil behaviour in classroom incidents fairly, sensitively and consistently, making sensible use of rewards and sanctions, and seeking and using the advice of colleagues when necessary.'

Reference is also made to the General Teaching Council Standard for Full Registration. The terms of which are held as repeated herein. It is averred in particular you failed to meet the above standards of competence and are therefore guilty of serious professional incompetence. It is further alleged that the foregoing facts represent serious professional incompetence."

[4] Over a considerable period, proceedings on the foregoing charge were held up while the appellant pursued a claim for unfair dismissal before the Employment Tribunal. The final hearing before the Disciplinary Sub-Committee did not commence until 1 November 2010. The Sub-Committee heard evidence over the course of fourteen days from 9 witnesses for the respondents, and from the appellant on her own behalf. She did not lead evidence from other witnesses, nor did she seek to make much of her having taught elsewhere before 2003 or after 2007. Both parties lodged very extensive documentary productions. A detailed written closing submission was provided to the Sub-Committee by the appellant's representative and written submissions were also provided by the respondents' solicitor. These were supplemented orally at the hearing. The written decision of the Disciplinary Sub-Committee, dated 13 July 2011, was communicated to the appellant on 16 July 2011. The Sub-Committee concluded that the facts relied upon by the respondents and held by them to have been proved amounted to serious professional incompetence. It then went on to consider, in terms of section 11(2) of the Teaching Council (Scotland) Act, 1965, as amended, "the 1965 Act", whether "the nature of the incompetence is such as to warrant the removal of that person's name from the register". It concluded that it was and accordingly decided to direct that the Registrar remove the appellant's name from the Register of Teachers. Against that decision, the appellant has now appealed to this court under section 12(1) of the 1965 Act.

The submissions of the appellant
[5] Before us the appellant had the disadvantage of representing herself. Nevertheless, in considerable detail, she set out her criticisms of the decision of the Disciplinary Sub-Committee, enumerating no less than 113 examples of what she contended were errors of law on their part. We consider that it is neither practicable nor necessary to attempt to narrate all of these criticisms. For the present purposes, it will be sufficient to highlight by way of summary what we consider were the principal points that she made. Section 11(11) of the 1965 Act required that when the Disciplinary Sub-Committee directed that a person's name be removed from the Register, it should serve on the person notice of the direction, which notice should include a statement of: "(a) the facts found proven in the proceedings before the Sub-Committee; and (b) the reasons for the direction." It was contended that the Sub-Committee had failed to give the reasons that they were required to give. In this connection, reliance was placed upon the decision of the Extra Division in Peace v The Disciplinary Committee of the General Teaching Council for Scotland, unreported, 25 February 2003, where a finding of misconduct without adequate supporting reasons was quashed on appeal. Particular reference was made to paragraph [13] in the Opinion of Lord Marnoch and paragraphs [11], [12] and [13] in the Opinion of Lord McCluskey. While the appellant agreed that that case differed materially from the present one, in the present case there had been a very lengthy oral hearing, during which voluminous documentary records and other material had been considered. The findings and determination of the Sub-Committee did not begin to reflect the extent and complexity of the evidence led before it. Its summary of the evidence heard over many days extended to little more than four pages; there was little if any reference to the documentary evidence. There had been instances in which oral evidence given by the respondents' own witnesses had been contradicted by the available documentation, yet there was no recognition of that in the Sub-Committee's decision. Furthermore, the Sub-Committee had quite simply ignored large tracts of evidence and had thus failed to resolve matters which were actively in controversy before it.

[6] The appellant contended that the Sub-Committee had demonstrated bias against her. However, on examination, it appeared that her complaint in this regard amounted to a criticism of the committee for having ignored evidence favourable to her and for their having preferred oral anecdotal evidence critical of her which was contradicted by documentary material.

[7] The appellant complained to us of what she called procedural breakdowns in the handling of her case at a stage when it became apparent that her employers were dissatisfied with her professional performance. The result of those breakdowns had been that she had not been accorded the support during teaching which she might have reasonably have expected to have received. Her main point was that, had the evidence been properly examined, it would have become apparent that the allegations made against her were, in large measure, unwarranted. Problems for the appellant had been created by the occurrence of damage to her reputation caused by unfounded complaints having been made against her. That process had become self perpetuating and had affected the relationship between the appellant and other members of staff.

[8] An example of the evidential difficulties which the Disciplinary Sub-Committee had ignored could be found in the case of the testimony of Mrs Croll, an important witness against the appellant. She had claimed to have observed the appellant's teaching in circumstances where it was evident from the documentation that she could not have done. What she had said in evidence-in-chief was not consistent with what she said in cross-examination. These features should have led the committee to conclude that she was not a credible or reliable witness. A further area in which the Disciplinary Sub-Committee had failed to take evidence into account was the matter of disciplinary referrals of pupils. Latterly it had become a focus of criticism of the appellant's professional competence that she had issued an excessive number of referrals. However, that had not initially been the subject of any recorded complaint at the time. Criticism could also be made of the evidence of Mr Sandy Donoghue, whose conduct at the hearing the appellant characterised as astonishing. His oral testimony had not been in accordance with what he had written contemporaneously on the topics in question. He had voiced criticisms of the appellant's professional competence at the hearing for the first time. That point had not been recognised by the Disciplinary Sub-Committee. The appellant went on to make similar points in relation to most, if not all, of the other witnesses led on behalf of the respondents. In particular, Mr Tommy Docherty, a supposedly independent observer of the appellant's teaching at Alloa Academy, had given various accounts of what he claimed to have seen and done which proved impossible to reconcile.

[9] The appellant then moved on to consider the issue of pupil attainment. A huge volume of evidence had been set before the Disciplinary Sub-Committee concerning that aspect of the case. In the appellant's submission, much of that evidence demonstrated excellent attainment by pupils under her regular tuition, especially in the school year 2005-2006, yet the Sub-Committee had made no findings on that matter, nor given any indication of the weight, if any, which it might deserve. Another problem in this area was that there had been no evidence relating to the attainment of classes prior to their having been taught by the appellant, which could be used as a comparison with their attainment during the time when they were taught by her. In some instances, she had been criticised on the basis of poor attainment by a particular class when in fact she had been responsible for their teaching for only a very few weeks. Conversely, when she had taught classes for an appreciable period, in 2005-6, the attainment evidence demonstrated that the pupils made substantial progress. However, the only reference to the appellant's documented evidence on attainment was to be found at page 3 of the decision of the Disciplinary Sub-Committee, where they recorded simply that there had been a large amount of evidence on the topic. They had completely failed to show that they had taken that evidence into account. For example the Disciplinary Sub-Committee had completely ignored the issue of how long a teacher might require to teach a class before they could reasonably be held responsible for the attainment or lack of it of that class.

[10] The appellant turned next to deal with the issue of parental complaints, which had been founded upon by the respondents as part of their case against her. There had been a great deal of evidence, both written and oral, concerning this aspect of the case. It was self-evident that parental complaints were of significance in the context only if they were valid and properly directed against the appellant. The fact was that many of the complaints which had been founded upon had been investigated and been found to be invalid. Yet, such complaints had been used in the proceedings which had resulted in the appellant's dismissal. The Disciplinary Sub-Committee had made nothing of these aspects of the case at all, so far as could be seen from their decision. The appellant went on to examine in detail examples of complaints which had been found to be invalid. In one particular case, a complaint had been made concerning the attainment of a particular female pupil, yet the circumstance that she had been on unauthorised holiday for 2 weeks during a critical revision period had been completely ignored.

[11] The appellant went on to deal with several other topics which she contended were relevant to the appeal, in particular, the evidence relating to behaviour management and the impact that the prolonged and unhappy experience that she had encountered had had on her health and therefore her ability to work effectively. These matters had not been adequately considered by the Disciplinary Sub‑Committee. In all the circumstances, she invited us to quash the decision of that Sub‑Committee. She contended that there should not be a rehearing of evidence because the evidence previously led had all been recorded and was available in the form of transcripts. In any event, after such a gap of time between the events and the present time, a rehearing would be impracticable.

Submissions of the respondents
[12] Counsel for the respondents moved us to refuse the appeal. It was clear from the formulation of the decision that there had been ample evidence to support the charge brought before the Disciplinary Sub-Committee. The evidence was fully and properly reflected in the findings of the Sub‑Committee in such a way as to make clear what was the basis for their decision. In the event that the court did not accept that submission, the appropriate order for the court to make would be to remit the matter to the Disciplinary Sub-Committee for further reasons; however, if bias had been involved that would not be an appropriate course. Alternatively, if there was a more fundamental difficulty in the decision, it would require to be quashed and a fresh hearing convened before a differently constituted committee.

[13] Counsel indicated that his submissions would fall into three chapters: (1) the law; (2) the decision; and (3) the evidence. Addressing first the law, counsel drew attention to the terms of section 11(11) of the 1965 Act which required the Disciplinary Sub-Committee to state (a) the facts found proven in the proceedings before the Sub-Committee; and (b) the reasons for the direction. In amplification of the requirements for a decision, he also referred to Peace v The General Teaching Council for Scotland, in particular paragraphs [18] to [24] in the Opinion of Lord Marnoch. Counsel submitted that it was important to bear in mind what had been said by Lord Rodger of Earlsferry in Gupta v General Medical Council [2001] UK PC 61; [2002] 1 WLR 1691; in paragraphs [10] to [12]. In that case a submission that there was a general duty to give reasons in cases where the essential issue was one of the credibility or reliability of the evidence was rejected. Reliance was also placed on Thomas v Thomas 1947 S.C. (H.L.) 45, in particular on the speech of Lord Thankerton at page 54.

[14] In the present case the Disciplinary Sub-Committee had given an indication of the conclusions they had reached regarding the credibility and reliability of witnesses. It had been important for them not to get bogged down in detail, although counsel agreed that professional competence was a multi-factorial matter. Counsel agreed that, if the principles of Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 were to apply, a failure on the part of the Disciplinary Sub-Committee to deal with relevant evidence would be a valid criticism of their decision. The court could look at the whole evidence available. If it detected an obvious error, it could interfere. However counsel did not concede that those principles applied in the present context. In response to questions by the court, counsel agreed that, after the long hearing that had been conducted before the Disciplinary Sub-Committee, their account of the evidence was somewhat attenuated. Although the decision could be said to be "light on reasoning", adequate reasoning was present. Further, it was accepted that criticism could be directed to the manner in which the Disciplinary Sub-Committee had announced its decision, as appeared from the transcript of proceedings. Counsel agreed that, in the case of Gupta v The General Medical Council, in the rules governing the proceedings, there had been no requirement similar to that to be found in section 11(11) of the 1965 Act.

[15] Turning to the circumstances of this case counsel submitted that the Disciplinary Sub-Committee had done all that they had been directed to do under the statute. They had specified the facts which they had found proved and, at page 7 of their decision, they had given certain reasons for the direction that they made. That was not to say that their decision could not be impugned. The court was entitled to look at the substance of the matter, as had been done in Thomas v Thomas. While the statute spoke of reasons for the direction, depending on the circumstances, reasons for other aspects of the decision beyond those might be necessary. He accepted that, if it appeared that the reasoning underlying the decision was plainly faulty, or that there had been bias shown on the part of the Disciplinary Sub-Committee, the court would be entitled to interfere. Counsel agreed that Thomas v Thomas was not the only basis upon which this court might review the decision of the Disciplinary Sub-Committee. Had error of law been demonstrated, that could be corrected. Were it to be shown that the Disciplinary Sub-Committee had taken into account irrelevant matters in reaching their decision, it could be reviewed. In particular counsel also agreed that, had the Disciplinary Sub-Committee failed to take into account relevant matters, the court could intervene, subject to the qualification that due respect had to be paid to the Disciplinary Sub-Committee as a body composed of professionals in the relevant sphere. It also had to be borne in mind that the Disciplinary Sub-Committee, although it enjoyed legal advice, was a body composed of educational professionals; it would not be appropriate to expect from such a committee a decision formulated in the same way as a decision by a legally qualified professional judge might be compiled.

[16] Counsel then moved on to consider the criticisms advanced by the appellant of the evidence on which, it appeared, the Disciplinary Sub-Committee had relied. Much had been made by her of inconsistencies in the evidence of Mrs Croll. However, that evidence had to be looked at in the wider context of other concurring evidence. It did not stand alone. The appellant had been overly selective in ignoring that wider context. Counsel then proceeded to examine in detail certain of the criticisms advanced by the appellant in relation to that evidence. He also dealt with inconsistencies said to exist in the evidence of Mr Donoghue. It would have been surprising if no inconsistencies had been present in the evidence led after such a long period of time between the hearing and the relevant events. In response to a point put by the court, counsel agreed that the Disciplinary Sub-Committee did not seem to have distinguished between the picture painted in the oral evidence and the somewhat different picture that emerged from contemporary records. When it was put to counsel that the Disciplinary Sub-Committee appeared to have neglected to take into account the contemporary written records, counsel replied that the question was whether the tribunal had plainly gone wrong in assessing the evidence. He submitted the answer to that question was in the negative.

[17] Dealing with the matter of complaints made regarding the professional performance of the appellant, counsel pointed out that the evidence was that an unprecedented level of complaints had been generated. He then went on to examine the evidence that had been led concerning complaints. He contended that it had been obvious from the transcripts that the Disciplinary Sub-Committee had engaged with this evidence. Counsel submitted that the Disciplinary Sub-Committee had been entitled to put aside the attainment evidence and prefer the other substantial evidence pointing to the appellant's professional failings. There had been good reasons why the Disciplinary Sub-Committee might have exercised caution relating to attainment evidence. The whole issue was a difficult one. Their decision should be given due respect. If the court were to decide that the decision of the Disciplinary Sub-Committee could not stand, the order to be pronounced should be for the quashing of that decision and the making of a remit for a fresh hearing before a differently constituted Disciplinary Sub-Committee.

[18] The court heard the appellant in reply.

The decision

[19] It appears to us that it is appropriate at the outset to recognise the legal context in which this appeal requires to be considered. The provisions of section 11(2) of the 1965 Act furnished the power in the Disciplinary Sub-Committee which they exercised in this case. It provides:

"Where a registered person of whom the council have received notification ... is judged by the Disciplinary Sub-Committee to have been guilty of serious professional incompetence and the Sub-Committee is satisfied that the nature of the incompetence is such as to warrant the removal of that person's name from the register, the Sub-Committee may direct that it be removed accordingly."

There were thus two questions for the Disciplinary Sub-Committee to address in this case. First, they had to judge, on the evidence before them, whether the appellant had "been guilty of serious professional incompetence". Secondly, before they could make the direction that they did, the Disciplinary Sub-Committee had to be satisfied, on the evidence before them, "that the nature of the incompetence is such as to warrant the removal of that person's name from the register". It is appropriate also to note the provisions of section 11(11) of the 1965 Act. They are:

"When the Disciplinary Sub-Committee directs ... that a person's name be removed from the register, the Sub-Committee shall serve on the person notice of the direction; and any such notice shall include a statement of - (a) the facts found proven in the proceedings before the Sub-Committee; and (b) the reasons for the direction."

[20] As was recognised by counsel for the respondents, while sub-section (11) specifies only that "reasons for the direction" require to be stated, the law may require that a fuller statement of reasons than that may be necessary for a sound decision.

[21] In Gupta v The General Medical Council, it had been submitted that in cases which turned on the credibility or reliability of the witnesses before the committee, the committee could and should give reasons explaining what it had done. Such reasons might need to go further than saying that the committee had preferred the evidence of a particular witness and had rejected the evidence of another witness. It is evident from paragraph [12] of the judgment of the Privy Council, delivered by Lord Rodger of Earlsferry, that that submission was rejected. There his Lordship said:

"[Their Lordships] are accordingly satisfied that there is no general duty on the committee to give reasons for its decision on matters of fact and, more particularly, that there is no duty to do so in a case like the present where, as the appellant's solicitor was at pains to emphasise to the committee, its decision depended essentially on resolving questions of the credibility of the witnesses led before it."

However, Lord Rodger went on in paragraph [14] in this way:

"Their Lordships would add this. They have rejected the submission that there is a general duty to give reasons in cases where the essential issue is one of the credibility and reliability of the evidence in the case. Nonetheless, while bearing in mind the potential pitfalls highlighted by Lord Mustill, the committee can always give reasons, if it considers it appropriate to do so in a particular case. Their Lordships would go further: there may indeed be cases where the principle of fairness would require the committee to give reasons for their decision even on matters of fact."

[22] In the hearing before us there was some discussion as to the scope of the present appeal. To that issue we now turn. It is of course brought under section 12(1) of the 1965 Act, which provides that within the specified period after the service upon a person of a notice of the direction of the kind involved here, that person may "appeal against - (i) that direction ... to the Court of Session in accordance with such rules as may be made ...". As was recognised by counsel for the respondents, the court's function in an appeal of this kind is not confined merely to the exercise of the supervisory jurisdiction; rather the court's function is, as Lord Rodger of Earlsferry said in paragraph [10] of the judgment in Gupta, "truly appellate".

[23] That approach is supported by what was said by Lord McCluskey in Peace v The Disciplinary Committee of the General Teaching Council for Scotland in paragraph [13] of his Opinion, where the wide scope of the Court's appellate jurisdiction in such cases was discussed. He explained:

"... even although the Court of Session must accord due respect to the judgment of a Disciplinary Committee comprising a majority of members of the teaching profession, ... 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 ..., 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."

[24] All that having been said, it is to be recognised that appeals of this kind are conducted on the basis of the transcript of the hearing. In such cases the appeal court regularly acknowledges that the first instance body enjoys an advantage which the appeal court does not have, precisely because that body is in a better position to judge the credibility and reliability of the evidence given by the witnesses. Lord Rodger went on in paragraph [10] of the judgment in Gupta:

"But in many cases the advantage is very significant and the Appeal Court recognises that it should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body. This reluctance to interfere is not due to any lack of jurisdiction to do so. Rather, in exercising its full jurisdiction the Appeal Court acknowledges that, if the first instance body has observed the witnesses and weighed their evidence, its decision on such matters is more likely to be correct than any decision of a court which cannot deploy those factors when assessing the position. In considering appeals on matters of fact from the various professional conduct committees, the Board must inevitably follow the same general approach. Which means that, where acute issues arise as to the credibility or reliability of the evidence given before such a committee, the Board, duly exercising its appellate function, will tend to be unable properly to differ from the decisions as to fact reached by the committee except in the kinds of situation described by Lord Thankerton in the well known passage in Watt or Thomas v Thomas ..."

[25] In this connection it is worth recalling what was said by Lord Thankerton at page 54 of the report of that case:

"(3) The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakeably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court."

[26] It appears to us that an example of such a failing would be where the tribunal of first instance had simply failed to take into account, in arriving at its decision, material and relevant evidence. That was specifically acknowledged by counsel for the respondents. With these considerations in mind we now turn to consider the decision of the Disciplinary Sub-Committee and the criticisms made of it by the appellant.

[27] Perhaps understandably, since the appellant is not a lawyer and represented herself before this court, much of what she had to say was focussed upon detailed criticisms of the evidence of the witnesses relied upon by the respondents. Because of the restraints upon the exercise of our jurisdiction to which we have just referred, we consider that it would not be appropriate for us to embark upon the path which the appellant invited us to travel. However, the position seems to us very different in relation to some of the other submissions that she made.

[28] A principal focus of the submission was said to be the failure of the Disciplinary Sub-Committee to take into account the substantial volume of evidence relating to the attainment of pupils taught by the appellant. The appellant pointed out that there had been much evidence relating to this aspect of the case, which must have had a direct bearing on the issue of professional competence, or the lack of it. Further, it would have had an important bearing upon the second issue which the Disciplinary Sub-Committee had to consider, namely whether "the nature of the incompetence is such as to warrant the removal of that person's name from the register". While we do not intend to enter into a detailed consideration of the many aspects of this matter that were ventilated in the evidence and in the hearing before us, the appellant's contention was that in certain instances where she had been responsible for the teaching of a class or set for a period of time sufficient to enable her teaching to have an impact upon its attainment, the documented results which emerged were inconsistent with the suggestion that she was seriously professionally incompetent. A further aspect of the matter was that where the attainment of a class or set taught by the appellant was alleged to be unsatisfactory, the explanation for that might be (i) that that group had not been taught by the appellant for any material period of time, or (ii) that her accusers had sought to draw illegitimate comparisons between her Prelim results and the Final results of others. In addition, there were other issues of detail related to this matter, for example, the issue of the attendance record of particular pupils.

[29] Turning to the findings and determination of the Disciplinary Sub-Committee in this connection, at page 2 in the short passages narrating the evidence of Mrs Croll and of Mrs Brown respectively there are brief references to "poor attainment in her classes" and "poor attainment of classes". On page 4, in sub-paragraph (d), these allegations are repeated in a little more detail. However, one looks in vain for any indication that the Disciplinary Sub-Committee went on to consider whether such allegations were in fact borne out by the available evidence. At page 3 of the findings, it is said:

"On attainment Mrs Garner presented a large amount of statistical evidence related to class and individual results."

There is no indication anywhere in the findings that the Disciplinary Sub-Committee gave any consideration to that material beyond that reference to its existence. In a context in which it was the responsibility of the Disciplinary Sub-Committee to decide whether the appellant had been guilty of serious professional incompetence and to consider whether the nature of that incompetence was such as to warrant the removal of the appellant's name from the Register, we are at a loss to understand how proper conclusions on those matters could have been reached without consideration of the statistical material referred to. It was obvious to us from what was said at the hearing of the appeal that some of the documentary materials suggested respectable attainment, and thus directly conflicted with the oral evidence led before the Disciplinary Sub-Committee from witnesses, including Mrs Croll and Mrs Brown. Yet there is no indication that the Disciplinary Sub-Committee even perceived the existence of such conflict, far less is there any explanation as to how it might have been resolved. In short, in this critical respect, the decision appears to us to lack the reasoning which would be essential to a fair and rational decision. On that ground alone, we consider that the determination cannot stand.

[30] A prominent part of the respondents' case against the appellant was that her teaching had generated an unusually large number of complaints from pupils themselves, or their parents. Reference is made to that at page 3 of the determination, where it is said "... the level of complaint from pupils, parents and staff was, in the view of the Sub-Committee, unprecedented". It became evident to us during the course of the hearing that there was much material in the evidence which enabled the weight properly to be attributed to such complaints to be evaluated. In particular, it was obvious that complaints were, in some instances, misconceived, in others misdirected against the appellant and in others quite simply without validity. The Disciplinary Sub-Committee however seems to us to have confined their attention only to the number of complaints relied upon by the respondents. In the Sub-Committee's decision there is no analysis of the weight properly to be given to complaints directed against the appellant and much evidence relating to those matters appears to us to have been ignored.

[31] Further, a more wide-ranging criticism can be made of the determination of the Disciplinary Sub-Committee. In the course of the lengthy hearing before that Sub-Committee, use was made of very extensive documentary material of many different kinds. Apart from documents relating to pupils' attainment and the alleged complaints, to which we have already referred, this material included contemporaneous correspondence, minutes of meetings, classroom assessments and other records dated between 2004 and 2007. In the cross-examination of the respondents' witnesses, much time and effort was devoted to identifying conflicts and inconsistencies, sometimes quite serious, between their oral testimony and what they themselves had actually said or written at the time. Yet, in their very brief account of the evidence of those witnesses, no reference is made whatsoever to these contemporary records. It is not indicated by the Disciplinary Sub-Committee whether the inconsistencies undoubtedly highlighted between the oral evidence of witnesses and the contents of contemporaneous documents were taken into account, or how those conflicts were resolved, if indeed they were. Moreover, we think that it is surprising that, in view of the length and complexity of the hearing of evidence before them, the Disciplinary Sub-Committee felt able properly to express their conclusions in a decision, the substance of which ran to less than six pages.

[32] We are driven to conclude that the Disciplinary Sub‑Committee in this case have, without explanation, simply failed to deal with several controversial and potentially significant issues that were raised before them. Furthermore, such reasons for their determination as they have given do not persuade us that proper consideration has been given to the matters relied on in relation to those issues. In the light of the foregoing circumstances, for these reasons also, we conclude that the findings and determination of the Disciplinary Sub-Committee must be quashed. In reaching this conclusion, we should not be understood as expressing any view as to whether a fuller, properly reasoned decision might or might not have been sustained.

[33] Before us there was some discussion as to what disposal should be ordered by this court, in the event of our reaching the conclusion which we have. In the light of all the circumstances, we consider that the case should be remitted to the respondents with a view to their deciding whether disciplinary proceedings against the appellant should be renewed before a differently constituted sub-committee.