‘De-risking’ and financial exclusion
An appeal against a finding of misconduct by disciplinary sub-committee of the GTCS was unsuccessful where a teacher, although unrepresented, could have participated effectively in proceedings and where the GTCS has no means of compelling witnesses to attend on his behalf.
The Appellant (T) appealed against a decision of the Disciplinary Sub-Committee (DSC) of the General Teaching Council for Scotland (GTCS) by which it found T guilty of two charges of having struck a pupil whilst at a secondary school in Aberdeen in September 2008. It was found that this behaviour constituted misconduct and that his name should be struck from the Register, with restoration of his name being prohibited for a period of twelve months.
In July 2009, the GTCS informed T that they had received information from his former employer as to alleged misconduct, relating amongst other things, to two allegations of assault. In December 2009 the GTCS notified T that the Investigating Sub-Committee (ISC) would refer the matter to the DSC.
In October 2010, Brodies LLP (acting on behalf of GTCS) notified T that the charges would be considered and that a preliminary hearing would take place on 9 November 2010. He was asked whether he admitted the charges, whether he would be attending the hearing, whether he was represented, which witnesses he would call and whether he wished to submit any documents or submissions.
T responded to the effect that he did not accept the charges, that he would not attend the hearing and that he did not have a representative. He said that he intended to call Mr Higgs and Mr Paul, who were teachers at his former place of work and attached a separate signed statement.
On 3 November 2010, Brodies advised T that certain pupils were to be called as witnesses and that the hearing was fixed for 14 December 2010. On 5 November, T telephoned Brodies and stated that he was having difficulty finding representation and in contacting witnesses. Further, on 10 November, T stated in an email that he did not have ‘access’ to witnesses; he had approached firms of solicitors but none had felt they could adequately represent him. On 26 November, Brodies wrote to T recommending, again, that he obtain legal advice as soon as possible, suggesting that he perhaps get in touch with the Law Society of Scotland who may be able to put him in contact with a suitable firm. They also contacted the relevant school and were informed that neither Mr Paul nor Mr Higgs wished to appear as a witness on T’s behalf. Brodies informed T that they could not compel their attendance.
On 29 November, T applied to postpone the hearing, saying that he was unable to prepare his defence in time. The DSC refused the application. On 6 December, T notified the DSC that he would not be attending the hearing as ‘without time and access to witnesses I am unable to prepare defense (sic) with or without legal assistance therefore the result in the past is a foregone conclusion’.
The hearing was held on 18 January 2011 (it had been postponed for other reasons); T did not attend. The DSC found both charges proved and that the only appropriate sanction was a strike off, bearing in mind that they could not be satisfied in the absence of the Registrant that he could respond appropriately to any conditions.
T argued firstly that the DSC did not take into account the whole circumstances surrounding the incidents and secondly, that it failed to obtain the attendance and examination of witnesses on his behalf, under the same conditions as the witnesses against him. The essence of his appeal was that he did not have adequate opportunity to present his case to the DSC; they had not enabled him to obtain legal representation or to procure witnesses on his behalf. He said that he had tried to contact Mr Higgs and Mr Paul, without success, and that he had therefore lost the heart to attend.
The Court found that ‘no matter how understandable the appellant’s loss of heart may have been his non-attendance put the Sub-Committee in a difficult position’. It was also noted that the relevant incidents had happened over two years ago and that T had had significant time to prepare. It was said that ‘even with legal or other representation, he could still have participated effectively in the Sub-Committee’s proceedings’. He could have cross-examined the witnesses, challenged them on any inconsistencies, addressed the DSC on why their account should be disbelieved and indeed he could have provided mitigation.
It was expressed that in the view of the court the DSC had considered the appellant’s case diligently; they had noted his written submission and had noted that there were discrepancies within the pupil’s evidence but had explained why they still found the evidence credible, taken as a whole. It was said that ‘its reasons demonstrated that it took account of all the relevant circumstances of which it was aware’.
The Court also found that there was no machinery within the relevant Rules, or any other legal power on the part of the GTCS, to compel witnesses to attend. It was noted that Brodies had even taken the initiative to contact Mr Higgs and Mr Paul but they were unwilling; ‘in those circumstances, there was nothing more that could be done’.
The appeal was accordingly refused.
This case serves as a reminder that whilst, of course, it is without exception necessary for panels to provide full reasons for their determinations, those reasons can be even further scrutinised when a Registrant does not attend the hearing to test the evidence.
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