Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 34

XA150/13

 

Lady Paton

Lord Brodie

Lady Clark of Calton

OPINION OF THE COURT

delivered by LADY PATON

in the appeal

by

JANET GARNER

Appellant;

against

THE GENERAL TEACHING COUNCIL FOR SCOTLAND

Respondents:

under

The Public Services Reform (General Teaching Council for Scotland) Order 2011

against

A decision of the Fitness to Teach Panel of the General Teaching Council for Scotland dated 27 November 2013

 

Appellant:  Party

Respondents:  J Cullen, solicitor advocate;  Brodies LLP

6 May 2015

Introduction

[1]        The appellant is a mathematician and a statistician.  She is an honours graduate of St Andrews University, with a further degree from Manchester University.  She entered the teaching profession late in her career, having previously worked as a mathematician in both public and private sectors.  She fulfilled her period of probation by working for several years as a supply teacher, ending in Dunblane High School in June 2001.  She then began work as a full-time registered maths teacher at that school.

[2]        The appellant received a good annual appraisal dated 25 June 2001 from the principal  teacher, Robert Naylor.  He then left on secondment.  The appellant began to experience difficulties at the school, explored to some extent in her evidence in cross-examination, all as recorded in transcript number 25 of process.

[3]        In November 2003 the appellant began working at Alva Academy.  Issues arose concerning inter alia the appellant’s control of her classes, teaching skills, treatment of individual pupils, pupils’ attainment, parents’ dissatisfaction, and inter-colleague relationships.  Disciplinary measures were in train, with a hearing set for 1 September 2006.  However in mid-August 2006 that hearing was cancelled.  The appellant was transferred to Alloa Academy.  There, she was asked to sit in classes observing others teaching.  She was, on occasions, asked to teach.  She experienced difficulties with colleagues.

[4]        In June 2007 the disciplinary procedures were recommenced.  The appellant was invited to a Clackmannanshire Council disciplinary hearing, which ultimately took place on 22 August 2007.  The appellant did not attend and was not represented.  She was dismissed.  In October 2007 she appealed to Clackmannanshire Council, but was unsuccessful.  She lodged a case with an employment tribunal, but was again unsuccessful.  She was summoned to a General Teaching Council for Scotland (GTCS) Disciplinary Subcommittee Panel.  At a hearing in 2010 – 2011 at which the appellant represented herself, evidence was led from her former colleagues at both Alva and Alloa.  The appellant also gave evidence.  For the reasons given in their findings and determination dated 13 July 2011, the panel concluded that the appellant had failed to meet certain standards of competence expected of a registered teacher.  They directed that her name be removed from the Register of Teachers.

[5]        The appellant appealed to the Court of Session.  She represented herself.  In a judgment dated 13 April 2012, the court quashed the decision of the Disciplinary Subcommittee Panel for the reasons given, and remitted the case to the GTCS for a re-hearing. 

[6]        At a fresh hearing in 2013 before a differently-constituted panel (by then named the Fitness to Teach Disciplinary Panel, hereafter “the FTT panel”), the appellant faced a complaint of failure during the period November 2003 to 29 August 2007 to maintain the following GTCS Standards for Full Recognition:  Standard 2.1.2 (Registered teachers communicate clearly making skilful use of a variety of media, and interact productively with pupils individually and collectively);  Standard 2.1.4 (Registered teachers set and maintain expectations and pace of work for all pupils);  Standard 2.1.5 (Registered teachers work co-operatively with other professionals, staff and parents);  Standard 2.2.1 (Registered teachers organise and manage classes and resources to achieve safe, orderly and purposeful activity);  Standard 2.2.2 (Registered teachers manage pupil behaviour and classroom incidents fairly, sensitively, and consistently, making sensible use of rewards and sanctions and seeking and using the advice of colleagues when necessary).

 

The FTT hearing

[7]        The FTT panel in 2013 comprised five members, namely a convener who was a registered teacher;  two further registered teachers (one being a teacher of maths in a senior school);  and two lay persons.  The appellant represented herself.  At a procedural hearing, the appellant requested greater specification of the alleged failures to maintain the standards.  As a result, the complaint was enhanced to specify the particular failures, with facts and examples of types of behaviour and incidents (paragraph 335 and pages 2 to 12 of the panel’s findings and determination).  At a further procedural hearing on 13 April 2013, the appellant was ordered to lodge a fresh witness statement which did not include excerpts from transcripts of the previous proceedings, legal argument, submissions, and comment (as had her previous witness statement). 

[8]        The main hearing commenced on 27 August 2013.  The presenting officer led evidence from nine witnesses (again the former colleagues from Alva and Alloa).  The appellant cross-examined each witness in detail, challenging much of their evidence.  She also gave evidence on her own behalf.  In particular she produced and referred to a considerable dossier of school records, including class timetables, lesson plans, assessment results, test results, exam results, lesson observations, and teacher reviews, which, in her submission, demonstrated that her classes’ results were satisfactory or better than satisfactory (as stated in her  evidence in cross-examination at pages 136 et seq of the transcript number 25 of process).  The evidence took fifteen days and was tape-recorded. 

[9]        On 29 August 2013 (Day 3 of the fifteen days), the convener referred to a timetable which had been drawn up for the assistance of both the panel and the parties. The convener inquired whether the appellant’s cross-examination of the witness Mrs Croll would take “the whole [of Day 4, i.e. 2 September 2013] or whether it will be somewhat shorter than the whole day” (page 63 of transcript number 24 of process).  The appellant indicated that the cross-examination would take the whole day, but that she hoped to leave enough time for re-examination and panel questions.  The GTCS presenting officer accordingly decided not to bring the next witness (Mrs Brown) for that day. On 2 September 2013, the convener welcomed parties and observed (as recorded in transcript number 24 of process):

“Can I just address both parties first this morning and point out that the schedule that was arranged by the General Teaching Council, which …was drafted in consultation with both parties, aims to complete the cross-examination of Mrs Croll this morning, move to re-examination and also afford the opportunity for the panel to ask some questions, so I would think it would be reasonable to expect, Mrs Garner, if you could aim to try and complete your cross-examination certainly by lunch time, that would allow I think a reasonable amount of time, given the amount of cross-examination that has undergone for the last day and a bit, for the presenting officer to re-examine, should she wish to re-examine, and indeed for the panel to ask questions, and I know that the panel have raised with me that they do have questions that they wish to ask of the witness …”

 

Thereafter the appellant finished her cross-examination by midday, and after a break for lunch, re-examination and panel questions ended at about 2.30 pm.  Everyone then left, and the hearing recommenced the next day.

[10]      After all the evidence had been led, written submissions were given to the panel.  The appellant’s extended to 215 pages with detailed references and cross-references.  The presenting officer’s extended to 22 pages.  The panel then deliberated for two days.  They considered “all of the evidence presented, including the oral evidence of the witnesses led on behalf of the GTCS, the oral evidence of [the appellant], and the documentary evidence lodged by both parties. … the Panel also took account of the submissions made by the parties in making its findings of fact …” (paragraph 318 of their findings and determination).  Subsequently, they issued their findings (paragraphs 1 to 440) and then held a further one day hearing at which the appellant and the presenting officer were invited to make submissions about fitness to teach.

[11]      The main themes of the appellant’s submissions to the FTT panel, read short, were:

(a) The GTCS witnesses were incredible and unreliable: The appellant attacked the credibility and reliability of the GTCS witnesses from Alva and Alloa.  She described Mrs Croll as “a deeply unreliable witness”, “prone to embellishment and wild generalisations (see, for example, paragraphs 306, 510, 514, 613, 633, 645 of the appellant’s FTT submission statement).  Mrs Brown was “an unreliable witness”, “inflexible”, whose evidence was “a very deep form of harassment” and who “indulged in a huge dose of embellishment” (paragraphs 508, 581, 706 of the appellant’s FTT submission statement).  Thomas Doherty was “a deeply unreliable witness whose judgment has been demonstrated to be faulty” (paragraphs 491, 608, 629, 749 of the appellant’s FTT submission statement).  Alan Reedie was “deeply unreliable” (paragraph 688 of the appellant’s FTT submission statement).  Similar criticisms were made of other GTCS witnesses.  Wherever a conflict in the evidence arose, the appellant invited the panel to accept her evidence in preference to that of the GTCS witnesses.

(b) Inconsistencies and contradictions in the GTCS evidence: The appellant drew the panel’s attention to inconsistencies and contradictions in the GTCS evidence, providing references and cross-references.  She pointed out circumstances where, for example, a witness’s oral evidence did not match a contemporaneous document, or where one witness’s evidence did not match another’s, or where a witness had said something different on a previous occasion, or in previous disciplinary hearings, or where a witness had conceded in cross-examination that the appellant was correct (paragraph 332 of the panel’s findings and determination).

(c) Pupil attainment as the true measure of fitness to teach:  Under reference to documents relating to her classes and her pupils’ marks, the appellant submitted that her pupils’ attainment was such that she could not be categorised as unfit to teach.  As she put it:

“93.  My argument is very simple – if a teacher produces good attainment then there can be nothing seriously wrong with her classroom teaching …

102.  If my pupils did as well as or better than other teachers classes and these teachers are deemed fully competent (which they are) then it cannot be said that I was incompetent.”

 

The appellant emphasised that if a teacher taught a class for a whole year, then something could be taken from the pupils’ results.

[12]      On 27 November 2013, the panel issued their findings and determination paragraphs 1 to 456, contained in the Annex to the appeal form 41.25.  The panel found certain allegations against the appellant not proved, and as a result, scored out certain parts of the complaint:   for example, Standard 2.1.2, paragraph 12, where a reference to the appellant’s having failed to cover parts of the course with one class was scored out.

[13]      However in relation to the main themes of the appellant’s submissions, noted in paragraph [11] above, their conclusions were as follows:

(a) Credibility and reliability:  In paragraphs 320 and 321 the panel noted:

“320.  In determining whether or not the facts alleged in the charge had been proven the Panel required to consider whether the evidence lead in support of the charge was credible and reliable.  This required the Panel to assess whether the witnesses lead on behalf of the GTCS were credible and reliable.

321.  The Panel was of the view that all the witnesses lead on behalf of the GTCS were credible and reliable witnesses for the following reasons.”

 

In subsequent paragraphs, the panel noted why they found Mr Rycroft, Mrs Croll, Mrs Brown, Mr Meney, Mr Donoghue, Mr Goodall, Mr Doherty, Mr Barker, and Mr Reedie to be credible and reliable witnesses, often adding that the particular witness’s evidence was “clear”, “measured”, “considered”, “direct”, “robust”, “straightforward”, “consistent”, “open”, “balanced”, “convincing”, “compelling”.

In relation to Mr Dawson, who submitted a witness statement but did not give oral evidence, the panel noted:

“331.  The Panel also accepted the evidence of Mr Dawson contained in his witness statement.  The Panel did however place less weight on this evidence due to the fact that Mr Dawson was not called as a witness by either party to the proceedings and his evidence was as a result unable to be tested by questioning.”

 

Further, in paragraph 336, the panel recorded:

“336.  In relation to the evidence of [the appellant], the Panel did not find her to be a credible witness.  In particular [thereafter reasons for that assessment are provided].

 

In paragraph 341, the panel stated:

“341.  For the reasons outlined above the Panel accepted the evidence of the GTCS witnesses as credible and reliable and unless otherwise stated below for these reasons found the individual paragraphs of the complaint to be proved on the basis of the evidence of the GTCS witnesses.”

 

(b) Inconsistencies and contradictions:  Again, contrary to the appellant’s submissions, the panel considered that any inconsistencies and contradictions were not material.  In paragraphs 333 and 334 of their findings and determination, the panel noted:

“333.  … On other occasions the [appellant] did identify what could be properly categorised as an inconsistency in the witnesses’ evidence in relation to evidence they had previously given and documents prepared at the time.  Unless expressly stated otherwise in relation to individual paragraphs of the complaint, the Panel did not consider that these inconsistencies were material and took the view that they did not undermine the credibility and reliability of the GTCS witnesses.  The Panel was of the view that, given the passage of time since the matters in dispute took place, and having regard to the number of occasions on which the witnesses have previously given evidence and been cross-examined in relation to these matters (in the [appellant’s] employer’s Disciplinary proceedings, before the Employment Tribunal and in the previous GTCS proceedings before the Disciplinary Subcommittee) that it is only natural that there would be some inconsistencies in the evidence on points of detail or in what they have said when compared with detailed contemporaneous notes of meetings etc.  If there had been no inconsistencies between the witnesses or the particular wording the witnesses used in their evidence, the Panel would have found that surprising.  The Panel was of the view that any inconsistencies (unless expressly referred to in relation to a particular paragraph of the complaint) was entirely understandable and to be expected, and in fact demonstrated that the witnesses were giving evidence about the matters in dispute in an honest manner and demonstrated an absence of collusion between the GTCS witnesses.  While there were some inconsistencies in the evidence of the witnesses on the key material facts, the testimony of the witnesses was robust and consistent.

334. The Panel also notes that there was a consistency of evidence between witnesses in two different schools in which [the appellant] taught, identifying similar issues and concerns in relation to [the appellant’s] teaching.  This consistency between a number of professionals in two separate schools taken with the evidence of the independent assessor, Mr Doherty, lends support to the evidence of the individual witnesses and adds to the weight which the Panel placed on … the evidence of the GTCS witnesses.”

 

(c) Pupil attainment:  The panel did not accept the appellant’s contention that pupil attainment was a determinative measure of fitness to teach.  In paragraphs 337 and 338 of their findings and determination, the panel noted the following:

“337. The Panel considered the large volume of evidence presented by [the appellant] in relation to attainment and test results.  The Panel also considered the evidence presented by Mrs Croll and Mrs Brown, the two principal teachers of Maths and in particular the evidence given by them in their rebuttal statements dealing with attainment.  The Panel found the evidence presented by the principal teachers to be more convincing, given their detailed knowledge of the classes concerned and in relation to their expectations for the progress of pupils in the classes taught by [the appellant].  The evidence presented by the principal teachers indicated that the classes taught by [the appellant] did not meet their reasonable expectations as to progress.  It was noted that Mr Barker and Mr Reedie, both experienced maths teachers, had no confidence in [the appellant’s] interpretation of the results from her tests which she put to them.  The Panel was also of the view that the statistical analyses presented by [the appellant] needed to be treated with caution.  The Panel accepted evidence from the GTCS witnesses that [the appellant] had been selective in the way that she analysed results in that she had used different methods which, in the view of the Panel, makes [the appellant’s] analyses partial and less reliable than those carried out by the principal teachers.

338. The Panel considered the evidence and submissions from [the appellant] that if a teacher produces good attainment then there can be nothing seriously wrong with her classroom teaching.  For the reasons stated above, the Panel did not accept that [the appellant] had demonstrated that the pupils she taught made good progress and showed good levels of attainment.  In the view of the Panel, attainment is not the sole factor by which the competency of a teacher should be measured.  In the case of [the appellant], there are a number of other strands of evidence which required to be considered by the Panel, including those matters referred to in the GTCS Standards for Full Registration, namely Standard 2.1.2; 2.1.4; 2.1.5; 2.2.1 and 2.2.2”.

 

[14]      Ultimately, the panel found it proved that (read short) during the period November 2003 to August 2007 the appellant as a teacher inter alia lacked clear communication and engagement with pupils;  lacked a good rapport with classes;  demonstrated an inflexibility of approach;  failed to take account of differences in pupil ability and pace;  failed to assist pupils seeking help;  failed to work co-operatively with other professionals, staff and parents;  and failed to control and discipline classes appropriately, all as more fully set out in the panel’s findings and determination.  The panel’s decision was that the appellant had fallen significantly short of the standards expected of a registered teacher (paragraph 450);  that the appellant was unfit to teach;  and that her name should be removed from the Register of Teachers (paragraph 451).

[15]      The appellant appealed for the second time to the Court of Session under the Public Services Reform (General Teaching Council for Scotland) Order 2011.

 

Grounds of Appeal

[16]      The appellant’s initial Grounds of Appeal were contained in the appeal print lodged on 27 December 2013.  Subsequently, on 1 July 2014, the appellant was permitted to lodge revised Grounds of Appeal dated 30 June 2014 in the following terms:

“The appellant appeals against the foregoing decision on the following grounds:

GROUNDS OF APPEAL

1. Failure to explain the reasoning behind their findings
2. Failure to deal with the evidence properly, giving a decision which did not rest on a reasonable foundation
   1. Failure to assess the evidence in time-sequence resulting erroneous [sic] finding re the consistency of evidence
   2. Ignored material and relevant evidence and/or failed to make findings
   3. The unfair assessment of the appellant’s performance re pupil attainment
   4. Failed to deal properly with ‘parental’ complaints
   5. Failed to understand and/or act upon the implications of their own findings – triangulation
3. Failure to record evidence properly, demonstrating bias or apparent bias and/or a failure to discharge their duty to consider all the evidence
4. Acceptance of new allegations against the appellant
5. Unfair and unbalanced assessment of the appellant’s credibility
6. Unfair and erroneous assessment of the reliability of the GTCS witnesses
7. Cut-short the planned and agreed cross-examination of Mrs Croll by approx. 5 hours
8. Failure to allow transcript quotations from the First Proceedings.”

 

Documents lodged by the appellant for the appeal

[17]      The appellant lodged the following documents in support of her appeal:

• The GTCS Fitness to Teach Panel Outcome (annex to appeal form 41.25, part of the appeal print):78 pages, 456 paragraphs with Appendix A.
• Two volumes of extract transcripts from the FTT panel hearing, number 24 of process (relating to ground of appeal 7) and number 25 of process (the cross-examination of the appellant).
• Number 30 of process:a consolidated bundle of productions for the appellant, paginated from AE1 onwards.
• Appendix 1 containing inter alia the GTCS rules, documents relating to the 2013 hearing, time-tables, the appellant’s sickness record, Alva behaviour management policies, extracts from a report by Her Majesty’s Inspectorate in relation to Alva Academy April 2005, pupil attainment data, documents relating to meetings, minutes and correspondence, lesson observations, complaints, a positive report relating to the appellant by R Naylor dated 25 June 2001, and a positive report by P Barker dated 7 March 2008.
• Appendix 2 containing the appellant’s submission to the FTT panel (215 pages) and the appellant’s FTT witness statement dated 31 May 2013.
• Appendix 3 containing inter alia the appellant’s first witness statement, the appellant’s note of argument in the first appeal (pages 1 to 83), and the GTCS Fitness to Teach Rules 2012.
• Appendix 4 containing documents from the employment tribunal proceedings said to have been adopted by the GTC for the Disciplinary Subcommittee’s hearing in 2010/11 and later in 2013.
• Appendix 5 containing the appellant’s productions in the GTCS v Garner hearing in November 2010.
• Appendix 6 containing disciplinary references relating to pupils of Alva Academy made by the appellant in 2005/6.
• Appendix 7 containing certain excerpts from transcripts of evidence by GTCS witnesses in the Disciplinary Subcommittee Panel’s hearing in 2010/2011.
• Appendix 8 containing three authorities, namely Peace v GTCS 2003 SC 299;Gupta v GMC [2002] ICR 785;Thomas v Thomas 1947 SC (HL) 45.

Full transcripts of the evidence heard at the 2013 FTT hearing were not lodged.  Extracts were lodged as numbers 24 and 25 of process and selected pages in some of the eight appendices (for example, Appendix 1 at pages CB213-CB214).

 

The roles of the panel and the appeal court

[18]      In an appeal from the assessment of a specialist tribunal such as the FTT panel of the GTCS, set up to assess the conduct of a fellow-professional, it is necessary for this court to bear certain principles in mind.

[19]      First, the experience and expertise of such a specialist tribunal must be accorded due respect (McMahon v Council of the Law Society of Scotland 2002 SC 475 paragraphs [14] and [16];  Mallon v General Medical Council [2007] CSIH 17 paragraph 19;  Peace v General Teaching Council for Scotland 2003 SC 299, at page 305).

[20]      Secondly, it is not necessary for the tribunal to undertake a mechanical process of narration of the evidence, analysis of it into classes, and an explanation factor by factor of the relevance or irrelevance, credibility and reliability or otherwise of it (Daljit Singh v SSHD 2000 SC 219, at page 223, approving earlier comments by Lord Penrose in Asif v SSHD 1999 SLT 890;  Lord Reed at paragraphs 48 and 57 of Henderson v Foxworth Investments Ltd [2014] 1 WLR 2600).

[21]      Thirdly, where the tribunal have reached conclusions on matters of fact, this court must be slow to interfere.  As Lord Hope explained in Thomson v Kvaerner Govan Ltd 2004 SC (HL) 1 at paragraphs [16]-[17]:

“[16]    The rule which defines the proper approach of an appellate court to a decision on fact by the court of first instance is so similar that it would hardly be necessary to repeat it, were it not for the fact that it appears in this case to have been overlooked.  In Clarke v Edinburgh and District Tramways Co (p37), Lord Shaw of Dunfermline said that the duty of the appellate court, not having the privileges, sometimes broad and sometimes subtle, of the judge who heard and tried the case, was to ask itself whether it was in a position to come to a clear conclusion that the judge who had these privileges was plainly wrong.  The words ‘plainly wrong’ were picked up and repeated by Lord Macmillan in Thomas v Thomas, when he said (pp 59-60):

‘So far as the case stands on paper it not infrequently happens that a decision either way may seem equally open.  When this is so, and it may be said of the present case, then the decision of the trial judge, who has enjoyed the advantages not available to the appellate court, becomes of profound importance and ought not to be disturbed.  This is not an abrogation of the powers of a court of appeal on questions in fact.  The judgment of the trial judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved, or otherwise to have gone plainly wrong.

…If the case on the printed evidence leaves the facts in balance, as it may be fairly said to do, then the rule enunciated in this House applies and brings the balance down on the side of the trial judge’.

[17]      As Lord Stott observed in his dissenting opinion in McLaren v Caldwell’s Paper Mill Co Ltd (p168) a Lord Ordinary’s view on the credibility or reliability of a witness is not sacrosanct.  But the jurisdiction of the appellate court must be exercised within narrow limits where the only issue is whether it should take a different view from that which the trial judge formed on the facts.  Viscount Simon said in Thomas v Thomas (p48) that Lord Greene MR had admirably stated the limitations to be observed in the course of his judgment in Yuill v Yuill.  In that case Lord Greene MR said (p 19): ‘It can, of course, only be in the rarest of occasions, and in circumstances where the appellate court is convinced by the plainest considerations, that it would be justified in finding that the trial judge had formed a wrong opinion’.”

 

This issue was revisited in the Supreme Court in Henderson v Foxworth Investments Ltd 2014 SC (UKSC) 203, 2014 SLT 775, where at paragraphs [62] et seq Lord Reed gave the following guidance:

“[62]…there may be some value in considering the meaning of [the phrase ‘plainly wrong’].  There is a risk that it may be misunderstood.  The adverb ‘plainly’ does not refer to the degree of confidence felt by the appellate court that it would not have reached the same conclusion as the trial judge.  It does not matter, with whatever degree of certainty, that the appellate court considers that it would have reached a different conclusion.  What matters is whether the decision under appeal is one that no reasonable judge could have reached….

 

[66]…Consistently with the approach adopted by Lord Thankerton [in Thomas v Thomas 1947 SC(HL) 45] in particular, the phrase can be understood as signifying that the decision of the trial judge cannot reasonably be explained or justified.

 

[67]         It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified”.

 

In particular, questions of credibility and reliability are primarily for the tribunal of first instance (cf McGraddie v McGraddie 2014 SC (UKSC) 12, [2013] 1 WLR 2477;  Piglowska v Piglowski [1999] 1 WLR 1360, [1999] 3 All ER 632).

[22]      With those principles in mind, we turn to consider the submissions in this case.

 

Submissions for the appellant

[23]      The appellant referred to her Note of Argument number 28 of process.  She acknowledged that the panel was a specialist panel, and that it was necessary for her to demonstrate that they had gone “plainly wrong” (Thomas v Thomas 1947 SC (HL) 45 at page 59;  Gupta v GMC [2002] ICR 785;  Peace v GTCS 2014 SC 478;  Sturridge v GTCS 2014 SC 478).  However there were so many inconsistencies and contradictions in the GTCS evidence that the panel, by accepting that evidence, had so erred.  They could not and should not have accepted the GTCS witnesses as credible and reliable.  By doing so, they had made findings which were factually incorrect.  They had made mistakes which no sensible, reasonable, and competent tribunal would have made.  They had unreasonably accepted oral evidence (given years after the event) in preference to the terms of contemporaneous documents.  They had omitted to mention positive evidence in the appellant’s favour.  They had failed properly to analyse and reconcile contradictory evidence (for example, relating to the “pace” of her teaching).  Further, the panel had ignored the time-sequence over the relevant period, and were therefore wrong to find the GTCS witnesses “consistent”, particularly as the types of issues which arose in Alva were wholly different from those in Alloa (ground of appeal 2(a)).  Also if all the evidence concerning her alleged failings related to 2004, and hardly any to 2007, the proper inference was that the appellant may have been incompetent in 2004, but had improved by 2007 and therefore should not be struck off.  The panel had not analysed or addressed the time sequence sufficiently.  They should have identified the evidence pertinent to each major disciplinary decision (Stage 1, Stage 2 and so on).  Further when the panel found allegations unproved, they had failed in the requisite “triangulation” exercise in that they failed subsequently to revise their assessment of (a) the reliability of the witness who had made the unfounded allegation;  and (b) the strength or weakness of the case against the appellant.  They also failed to take into account the effect on the appellant of the numerous unfounded and invalid complaints against her.

[24]      Despite the lack of transcripts, the appellant invited the court to refer to productions and witness statements which, in her submission, illustrated that the inconsistencies and contradictions were of such a nature and number that the panel had demonstrably failed to record the evidence properly (ground of appeal 3), failed to deal with the evidence properly (ground of appeal 2), failed properly to assess the reliability of the GTCS witnesses (ground of appeal 6) and failed properly to assess her own credibility (ground of appeal 5).  Episodes which, in the appellant’s submission, showed such failures on the part of the panel were summarised in her Note of Argument number 28 of process.  The court was taken to the relevant summaries set out on those pages, and also to productions and witness statements in support of the summaries. 

[25]      Further, the appellant submitted that the panel had failed to exercise their expertise as they should have done.  They had simply accepted the principal teachers’ analysis of the pupil attainment data, whereas they should have used their own knowledge and expertise to analyse and assess that data (ground of appeal 2(c)).  No reasonable panel would have found the data relating to the pupils’ marks indicative of incompetence on the appellant’s part.  The appellant drew attention to certain passages in her Note of Argument (pages 44 to 68) and submitted that the pupils’ marks demonstrated acceptable – and sometimes more than acceptable – progress, particularly where pupils had been taught by her for a whole school year.  Any evidence to the contrary from principal teachers was unreliable and ever-changing, and should not have been accepted in circumstances where the panel could have used their own expertise to analyse and assess the pupils’ results.  The panel’s conclusion at paragraph 337 (that “the evidence presented by the principal teachers indicated that the classes taught by [the appellant] did not meet their reasonable expectations as to progress”) was wholly inadequate when the panel could have analysed and assessed the pupils’ marks and performance for themselves, especially in cases where the principal teachers’ expectations for a particular pupil were unreasonable.  Also the panel should have used their specialist knowledge of what life was like at school in order properly to assess the validity (or otherwise) of the complaints made against her by parents and pupils (ground of appeal 2(d)).  Much of the difficulty arose as a result of senior teachers’ failure to support the appellant.  The panel gave no reasoning in relation to their decision on complaints, and carried out no analysis of the evidence.  At least one GTCS witness (Mrs Croll) had known that some of the complaints were not valid, and yet she had included them in the complaint.  The effect of these invalid but un-refuted complaints had been very detrimental to the appellant’s reputation as a teacher. 

[26]      The panel had also failed to take into account the good report by Robert Naylor (Clackmannanshire) dated 25 June 2001, and a positive reference by Paul Barker (Perth and Kinross) dated 7 March 2008 (which had enabled the appellant to return to teaching in 2008 despite being dismissed from Alloa Academy).  Thus while the GTCS maintained that the appellant’s teaching was inadequate, her command of maths was poor, she was “horrid” to the pupils (i.e. poor soft skills), her classroom and behaviour management was poor, and her relations with her colleagues not good, yet she had been able to acquire such a reference in 2008 and to continue teaching:  that should have been taken into account.

[27]      While therefore the panel’s decision “looked all right”, when one examined the detail, the decision was not all right.  There was so much missing, so much avoided.  The panel’s reasoning was not clear and transparent (ground of appeal 1;  and Sturridge v GTCS cit sup).

[28]      In relation to ground of appeal 4, the appellant explained that new allegations had emerged at a time when she was no longer at the school in question, thus causing her difficulties in researching and collecting the evidence necessary to rebut those allegations.  For example, there had been no allegation about poor “soft skills” while she was still at the school.  It was only in the legal proceedings that such allegations emerged.

[29]      Ground of appeal 7 concerned the convener’s comments on Day 3 (see paragraph [9] above).  The appellant had intended to cross-examine Mrs Croll for 15 hours.  However she understood the convener’s remarks to be an instruction that she had to finish her cross-examination by midday on Day 3, and accordingly she had only 11 hours of cross-examination.  The appellant had many more questions which she wished to put to Mrs Croll.  She was accordingly “cut short” in that she had been given the impression that she had to bring her cross-examination to a close, yet there was considerable spare time in the afternoon. 

[30]      Ground of appeal 8 related to the procedural hearing on 13 April 2013 (see paragraph [7] above).  The appellant had wanted to incorporate excerpts from the transcripts of the previous hearing into her witness statement, together with legal points and comment.  It was her view that it was not only convenient to do so, but also it was beneficial in that certain points would then be made at as early a time as possible.  However before us, the appellant accepted that all the material which had to be removed from her witness statement was still available to her in court (in the form of volumes of transcripts, other productions, and the opportunity to make submissions) and could therefore be referred to and used during the hearing.

[31]      In conclusion, the FTT panel’s decision should be quashed.  No re-hearing should be ordered, bearing in mind the history of the case.  The appellant should be permitted to retain her registration as a teacher.

 

Submissions for the GTCS

[32]      For the GTCS, it was submitted that the appeal court should be slow to disturb the findings in fact made by the FTT panel (Gupta v General Medical Council [2002] ICR 785 paragraph 10;  Thomas v Thomas [1947] 1947 SC (HL) 45;  McGraddie v McGraddie 2014 SC (UKSC) 12, [2013] 1 WLR 2477;  Henderson v Foxworth Investments Ltd 2014 SC (UKSC) 203, 2014 SLT 775).  The panel had heard the appellant’s lengthy cross-examination of the GTCS witnesses and her extensive submissions.  In those submissions, the appellant had drawn the panel’s attention to inconsistencies in the evidence, and to the fact that the appellant considered the GTCS witnesses unreliable.  Nevertheless the panel, having given careful consideration to the evidence and the appellant’s submissions, found all the GTCS witnesses to be credible and reliable and made findings in fact on that basis, as they were entitled to do.  Such findings should not readily be set aside.

[33]      Further, the panel was a specialist tribunal, and their specialist knowledge and experience should be accorded due respect (McMahon v Council of The Law Society of Scotland 2002 SC 475 paragraph 13-16;  Mallon v GMC [2007] CSIH 17 paragraph 19).  The issues in the complaint against the appellant fell well within the area of specialist knowledge to which the court should accord respect.

[34]      It was accepted that the panel required to give reasons (Peace v The General Teaching Council for Scotland 2003 SC 299 paragraphs 18 to 24;  Garner v The General Teaching Council for Scotland [2012] CSIH 39 paragraph 9).  In the present case, the panel set out in very considerable detail the evidence which they took into account, the facts which they found proved, and the reasons why they did so.  The panel gave detailed reasons explaining why they preferred the evidence of the GTCS witnesses to the evidence of the appellant.  When the panel’s decision was read as a whole, the informed reader was left in no real or substantial doubt as to the reasons why the panel arrived at their decision.  The present case was distinguishable on its facts from Sturridge v The General Teaching Council for Scotland 2014 SC 478.

[35]      When the appellant’s submissions to this court were examined in the light of the foregoing authorities and the panel’s findings and determination, it could be seen that there was no merit in grounds of appeal 1, 2, 3, 5 and 6 (further details of the lack of merit being given in the GTCS written submissions at pages 8 to 14).  As for grounds of appeal 4, 7 and 8, no new allegations had been considered or accepted by the FTT panel as part of the findings in fact in relation to the complaint.  The appellant’s cross-examination of Mrs Croll had come to an end in the circumstances set out in paragraph [9] above, which could not be categorised as “cutting short” her cross-examination.  Finally it had been necessary to rationalise the document proferred as the appellant’s witness statement, as a witness statement should set out the witness’s recollection of events, and should not incorporate substantial sections of a transcript of the evidence given by different witnesses in another hearing before a different panel of the GTCS.

[36]      The appeal should be refused.  

 

DISCUSSION

The issue of fitness to teach

[37]      We consider that fitness to teach schoolchildren is primarily a question of fact, to be assessed by a tribunal of those skilled in teaching schoolchildren.  In our opinion, fitness to teach cannot be measured solely by pupil attainment, although that may be an important factor.  Fitness to teach is, in our view, a much wider, more subtle, and more flexible concept, to be assessed from a variety of viewpoints, including work plans, personal presentation, classroom management, classroom atmosphere, relationship with pupils, relationship with parents, relationship and communication with colleagues including the principal teacher in the department and the head and deputy head of the school, assessments of pupils’ progress, disciplinary measures adopted, complaints received (both number and nature), and other factors.  An overall assessment may then be reached.

[38]      In the present case, each of the GTCS witnesses gave evidence about certain incidents, events, circumstances, features and factors concerning the appellant’s teaching over a number of years.  All the witnesses were accepted as credible and reliable:  see paragraph [13] above.  Having heard and seen the witnesses, the panel were fully entitled to make such findings, despite the appellant’s personal views that the witnesses were unreliable, all as set out in her oral submissions and her written FTT submission quoted in paragraph 11(a) above.  It followed that the FTT panel were entitled to conclude that the majority of the incidents, events, circumstances, features and factors described by those witnesses were proved.  When considering the approach adopted by the panel, their reasoning and conclusions, we have been unable to identify the sort of error referred to by Lord Reed in Henderson v Foxworth Investments Ltd cit sup paragraphs [62], [66] and [67], nor can we conclude that the panel’s decision on the facts “cannot reasonably be explained or justified”.

[39]      The incidents, events, circumstances, features and factors found proved are too numerous to record here.  We refer to the panel’s findings and determination appended to the appeal form 41.25.

[40]      Bearing in mind the nature and number of such incidents, events, circumstances, features and factors, all as set out in the FTT panel’s findings and determination, we are unable to say that, on the basis of the evidence, no reasonable tribunal could have concluded that the five heads of complaint were proved, and that the appellant had significantly failed to meet the standards set out in the complaint. 

 

The appellant’s specific grounds of appeal

[41]      Against that background, we turn to deal with the appellant’s specific grounds of appeal (set out in paragraph [16] above):

 

1. Failure to explain the reasoning behind their findings

[42]      The panel are required to give reasons for their decisions (Peace v The General Teaching Council for Scotland 2003 SC 299, paragraphs 18 to 24;  GTCS Fitness to Teach and Appeals Rules 2012).  In that context, we consider that the fundamental requirement is that the panel must –

“ … deal with the substantial questions in issue in an intelligible way.  The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it [Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345, per Lord President Emslie at page 348]”

 

We refer to the FTT panel’s findings and determination.  We are unable to accept that there has been any failure on the part of the panel to explain the reasoning behind their findings.  On the contrary, their reasoning is clearly set out, in some considerable detail, leaving the informed reader and the court in no real and substantial doubt as to what the reasons for their findings were, and what were the material considerations taken into account in reaching them. 

 

2. Failure to deal with the evidence properly, giving a decision which did not rest on a reasonable foundation;  and -

3. Failure to record evidence properly demonstrating bias or apparent bias and/or a failure to discharge their duty to consider all the evidence

[43]      In our opinion, a challenge to the panel’s handling of the evidence, such as is set out in grounds of appeal 2 and 3, cannot properly be advanced without transcripts of the evidence led at the hearing.  It is not sufficient to refer to productions and witness statements.  It is necessary for this court to know what witnesses actually said in evidence, and which productions (and parts thereof) were referred to.  In the course of giving oral evidence, a witness may adopt what is said in his or her witness statement, but equally may qualify, or further explain, or disagree with, certain passages, and may deny or explain alleged inconsistencies or contradictions put to him or her in cross-examination (cf the observations of the FTT panel at paragraph 333 of their findings and determination).

[44]      However we would add that, even if the transcripts had been lodged, the nature and number of inconsistencies and contradictions to which our attention was drawn were not, in our view, such as to deprive the panel of their entitlement to find certain witnesses credible and reliable (on which, see paragraph [13] above and paragraphs [50] and [51] below), or their entitlement to make the findings they did.

[45]      In our opinion, the panel’s findings and determination demonstrate that the panel considered all of the evidence and the competing submissions (including the appellant’s submissions concerning the unreliability of the GTCS witnesses and the inconsistencies and contradictions in the evidence) in a careful and discriminating way.  They found certain facts proved and certain facts not proved (as they were entitled to do).  On the basis of the facts found proved, they reached a decision which rested on a reasonable foundation, and one which they were entitled to reach.  We are unable to conclude that the panel erred in any of the ways referred to by Lord Reed in Henderson v Foxworth Investments Ltd, cit sup. 

[46]      In particular, in respect of ground of appeal 2(a), we are not persuaded that the panel erred when dealing with the time-sequence in this case.  The panel were entitled to take into account incidents, events, factors and features occurring at any time during the period November 2003 to August 2007.  They were not obliged to compartmentalise events into time-periods leading up to the various decision points in the disciplinary procedures (for example, Stages 1, 2, and 3).  Nevertheless the panel did attribute incidents and events to particular years and thus took into account their sequence and distribution.  In the result we are not persuaded that any error such as Lord Reed referred to in Henderson v Foxworth Investments Ltd cit sup at paragraphs [62], [66] and [67] can be identified when assessing the consistency of evidence. 

[47]      In relation to ground of appeal 2(b), it was the panel’s task to assess all the evidence; to decide what evidence to accept, what evidence to reject, what weight to give to evidence which they accepted; and further to make findings on the basis of the evidence which they accepted.  As noted in paragraph [45] above, it is our opinion that the panel fulfilled that task in a careful and discriminating way.  The weight to be given to the written references by Mr Naylor in 2001 and Mr Barker in 2008 was very much a matter for the panel, particularly as they had heard no evidence from either Mr Naylor or Mr Barker.  Again we are not persuaded that the panel erred in the sense referred to by Lord Reed. 

[48]      As for ground of appeal 2(c), we are unable, on the material before us, to accept the submission that the panel were not entitled to reach the view they did about the appellant’s performance in respect of pupil attainment.  We do not accept the appellant’s submission that the panel were obliged to carry out their own analysis and assessment of, for example, the data relating to the classification of pupils by aptitude for maths, and the resultant allocation of pupils to certain classes or sets within classes, with a related expectation of achievement.  The specialist panel, whilst drawing upon their own knowledge and experience in the field, were nevertheless entitled to accept the evidence of the senior management team on such matters. 

[49]      In relation to ground of appeal 2(d), we are not persuaded that the panel failed to deal properly with the complaints from parents and pupils.  The appellant’s contention was that the panel should have investigated the validity of each complaint, and had they done so they would have found that many were unfounded.  However in our view the panel were entitled to take into account the number and nature of the complaints generated by a particular teacher (in this case, the appellant) without being obliged to conduct a full-scale inquiry into the validity or otherwise of each complaint.  But even if we were wrong taking such an approach, it should be noted that the FTT panel followed a more cautious and careful path, for in paragraph 340 of their findings and determination, the panel reasoned as follows:

“340. The Panel was of the view that speaking to the children concerned or their parents is a valid method of investigating complaints.  The Panel is aware of the need to be cautious and not to take the word of individuals at face value, but noted that in relation to many of the complaints, professional colleagues had spoken to the children involved or the parents and believed [that] what the parents or children were telling them [was] the truth.  In addition, many of the complaints made resonated with the teachers who received those complaints, as they reflected the experience that those teachers had with [the appellant] or had observed in her lessons.  It is clear to the Panel that there was a perception between parents and children that they were not progressing and that there were difficulties with [the appellant’s] teaching.  Notwithstanding that, the Panel accepted that some of the complaints may have been the result of the reputation that [the appellant] had obtained, or may not have been valid complaints against [the appellant].  The Panel as a result gave less weight to the complaints on the list at document 421 of the Presenting Officer’s documentation.  In relation to the particular complaints referred to in the individual paragraphs of the complaint, the Panel has addressed those complaints, and the findings made in relation to those complaints can be found under the relevant paragraph of the complaint.”

 

The panel’s careful handling of the complaints cannot, in our view, be criticised.

[50]      In respect of ground of appeal 2(e), we do not accept that the panel failed to understand and/or act upon the implications of their own findings. The panel were entitled to find a witness generally credible and reliable even if they found certain parts of that witness’s evidence unproved.  In the assessment of the credibility and reliability of witnesses, the weight to be placed on their evidence, and the strength or weakness of the case being made out, there is no logical or mathematical formula (such as triangulation) requiring the panel to reject or reduce their acceptance of a witness or the strength of the case being made, on the ground that part or parts of that witness’s evidence was or were not ultimately found proved.

[51]      In relation to any allegation of bias (ground of appeal 3), we refer to the dicta of  Lord Hope in Porter v Magill [2002] 2 AC 357, [2002] 2 WLR 37 at paragraph [103]:

“The question is whether the fair-minded and informed observer, having considered all the facts, would conclude that there was a real possibility that the tribunal was biased.”

 

We have carefully considered the circumstances of the hearing in this case.  We have found nothing to suggest that the panel demonstrated actual or apparent bias.  As for the submission of failure to record evidence properly, and failure to discharge their duty to consider all the evidence:  as noted in paragraph [20] above, there is no obligation upon a tribunal such as the panel to engage in a mechanical rehearsal of every piece of evidence led in the course of the hearing.  In this particular case (possibly in view of its history) the panel gave a full summary of each witness’s evidence (pages 13 to 63 of their findings and determination).  That was a careful and conscientious approach in the exercise of their function as fact-finders, which gives this court a clear outline of the material upon which the panel based their findings.  The findings which they made, and the reasons which they gave, demonstrate in our opinion a thorough and careful approach leading to a demonstrably rational and justifiable result.  We are not therefore persuaded that the FTT panel failed to discharge their duty to consider all the evidence.

 

4. Acceptance of new allegations against the appellant

[52]      From the outset, the complaint against the appellant was one of failure to maintain certain GTCS Standards, all as set out in paragraph [6] above.  The letter of intimation to the appellant dated 22 November 2012 specified those particular standards.  At a procedural hearing (at which the appellant was represented) the appellant’s request that precise examples of alleged failures be specified was acceded to, resulting in a much more detailed complaint than is normally the case.  But the standards alleged to have been breached remained the same throughout the proceedings.  We do not accept that the formal complaint should have been restricted in some way to matters which the appellant had understood to have been in issue while she was still teaching at the school in question.  In the result we are not persuaded that any new allegations against the appellant were made or accepted by the panel.

 

5. Unfair and unbalanced assessment of the appellant’s credibility

[53]      As noted in paragraph [21] above, the assessment of a witness’s credibility is primarily a matter for the court or tribunal or adjudicator of first instance (cf dicta of Lord Hope in Thomson v Kvaerner Govan Ltd 2004 SC (HL) 1 paragraphs [16]-[17]).  In McGraddie v McGraddie 2014 SC (UKSC) 203 at paragraph 28, Lord Reed emphasised that the question whether a witness’s evidence “was to be regarded as credible and reliable having regard to the other evidence in the case was pre-eminently a matter for [the judge at first instance]” – in the present case, for the panel.  We have carefully considered the material before us in this case, but have been unable to conclude that the panel were not entitled to assess the appellant’s credibility as they did.

 

6. Unfair and erroneous assessment of the reliability of the GTCS witnesses

[54]      We refer to paragraphs [21] and [50] above.  Reliability of witnesses was a matter primo loco for the panel.  The panel had the major advantage of seeing and hearing the witnesses give evidence.  They could assess how the witnesses reacted to the rigorous cross-examination by the appellant.  This appellate court has been unable to conclude that the high test referred to in Thomson v Kvaerner Govan Ltd cit sup and McGraddie cit sup has been met such that we should interfere with the panel’s findings on the reliability of the GTCS witnesses, a fortiori when transcripts of the evidence given by the witnesses had not been lodged in process or referred to.

 

7. Cut-short the planned and agreed cross-examination of Mrs Croll by approximately 5 hours

[55]      We refer to paragraphs [9] above. The convener’s remarks were, in our opinion, an expression of hope, an aspiration, and not a command or instruction.  If the appellant had not completed her cross-examination by lunch-time, the appropriate response was to advise the convener accordingly and to continue with her cross-examination after lunch.  We are not therefore persuaded that there is any merit in this ground of appeal. 

 

8. Failure to allow transcript quotations from the first proceedings

[56]      A witness statement is intended to be a statement of the facts known to the witness, and not to include quotations from transcripts of evidence given by other witnesses in a previous hearing before a different panel (volumes of which could, if desired, be referred to during the hearing, for example for the purposes of cross-examination).  Nor, in our opinion, is a witness statement an appropriate place for legal argument, submissions, or comments.  Those are matters which should be dealt with during submissions following upon the evidence.  In our opinion therefore, while the appellant could of course create such a document for her own use as an aide-memoire during the hearing, it was appropriate that the panel ordered the lodging of a proper witness statement focusing upon the facts known to the appellant.  The appellant was still able to refer to any transcripts of the evidence and other productions which she had chosen to lodge in process.  She was also able to present legal argument, submissions, and comment during her own submissions following upon the evidence.  We are not therefore persuaded that this ground of appeal has any merit.

 

Decision

[57]      For the reasons given above, we refuse the appeal.  We continue the question of expenses.