Peace v General Teaching Council for Scotland
| Jurisdiction | Scotland |
| Judgment Date | 25 February 2003 |
| Docket Number | No 21 |
| Date | 25 February 2003 |
| Court | Court of Session (Inner House - Extra Division) |
EXTRA DIVISION
Evidence - Beyond reasonable doubt - Whether corroboration required - Disciplinary committee - Civil Evidence (Scotland) Act 1988 (cap 32), secs 1(1), 9 - General Teaching Council Disciplinary Committee (Procedure) Rules 1967, r 17(2)1
Tribunal - Disciplinary proceedings - Teacher - Infamous conduct - Statement of facts and reason for direction - Teaching Council (Scotland) Act 1965 (cap 19), sec 11(5)1
Section 1(1) of the Civil Evidence (Scotland) Act 1988 provides that in any civil proceedings a fact can be found proved by evidence, notwithstanding that the evidence is not corroborated. Section 9 of the 1988 Act provides that civil proceedings include any proceedings before a tribunal or inquiry, except in so far as, in relation to the conduct of proceedings before the tribunal or inquiry, specific provision has been made as regards the rules of evidence which are to apply. Rule 17(2) of the General Teaching Council Disciplinary Committee (Procedure) Rules 1967 provides that the Committee may receive oral, documentary, or other evidence of any fact which appears to them relevant to the proceedings into the case before them: provided that, where a fact which it is sought to prove, or the form in which any evidence is tendered is such that it would not be admissible in criminal proceedings in Scotland, the Committee shall not receive evidence of that fact or in that form, unless after consideration with the Legal Assessor they are satisfied that it is desirable in the interests of justice to receive it having regard to the difficulty and expense of obtaining evidence which would be so admissible.
Section 11(5) of the Teaching Council (Scotland) Act 1965 providesinter alia that when the Disciplinary Committee directs that a person's name shall be removed from the register, the Committee shall cause notice of the direction to be served on that person, and any such notice shall include a statement of the facts found to have been proved in the proceedings before the Committee and the reasons for the direction.
The appellant, a teacher, was charged with forming inappropriate relationships with pupils in his school, acting in a manner wholly inappropriate as a teacher, and being guilty of infamous conduct in a professional respect. The charge specified nine discrete instances of alleged conduct by the appellant, many of which were said to be sexually motivated. The Disciplinary Committee stripped out of the allegations all references to matters that were averred as characterising the appellant's conduct as being sexually motivated, but held that there was an inappropriate relationship with one pupil and that this constituted infamous conduct in a professional sense. The appellant appealed to the Court of Session. He argued that the Disciplinary Committee had misdirected itself in holding that facts could be held established without the need for corroboration. He argued further that they had misdirected themselves in holding that what had been established justified a finding that the appellant had been guilty of infamous conduct in a professional respect. The court made avizandum but put the case out by order for submissions in respect of sec 11(5) of the Teaching Council (Scotland) Act 1965.
Held that: (1) although the appropriate standard of proof might be proof beyond reasonable doubt, it was not a necessary corollary that the doctrine of corroboration be invoked (pp 303D-I, 309C); (2) rule 17(2) was referable only to the admissibility of evidence, and could not be read as a specific provision
either that all the criminal rules of evidence should be imported into hearings before the Disciplinary Committee or that the specific doctrine of corroboration should be so imported (pp 304C-F, 309C); (3) the appellant was seriously prejudiced by the Disciplinary Committee's failure to comply with the provisions of sec 11(5) of the 1965 Act, because without further findings and explanations the court and the appellant were deprived of any proper means of reviewing the validity of the decision made (pp 307I-309A,309D-310A, 314I-316F); (4) it would be inappropriate to make any remit back to the Disciplinary Committee to issue a statement of the relevant facts found proved and the reasons for the direction that the appellant's name be removed from the register (p 308G), and appealallowed and decision of the Disciplinary CommitteequashedObserved (per Lord Marnoch and Lord McCluskey (pp 305H-306C, 315H)): that in assessing what constitutes infamous conduct the court should look at the tribunal's decision in the light of the whole circumstances of the case always having due respect for the expertise of the tribunal and giving to its decision such weight as the court thinks appropriate, while keeping in view the obvious reasons for according respect to the views of specialist tribunals in such appeals.
Observed (per Lord McCluskey (pp 313F-314D)): that the findings of the Disciplinary Committee yielded no inference of any sexual or other moral impropriety, and so even if the relationship had been inappropriate, there was no basis for the conclusion that the appellant was guilty of conduct that was infamous.
McMahon v Council of the Law Society of Scotland 2002 SLT 363applied.
PETER PEACE appealed to the Court of Session under sec 12 of the Teaching Council (Scotland) Act 1965 against a decision of the Disciplinary Committee of the General Teaching Council for Scotland dated 9 October 2001 and communicated to him on 10 October 2001. The Disciplinary Committee had concluded that the evidence pointed to an inappropriate relationship with a pupil, and that this constituted infamous conduct in a professional respect.
Cases referred to:
Balfour v Occupational Therapists' BoardUNK (1999) 51 BMLR 69
Ghosh v General Medical CouncilWLR [2001] 1 WLR 1915
Johnstone v General Teaching Council for ScotlandSC 1981 SC 51
Libman v General Medical CouncilELR [1972] AC 217
McAllister v General Medical CouncilELR [1993] AC 388
McCoan v General Medical CouncilWLR [1964] 1 WLR 1107
McEniff v General Dental CouncilWLR [1980] 1 WLR 328
McMahon v Council of the Law Society of Scotland 2002 SLT 363
Marten v Royal College of Veterinary Surgeons' Disciplinary CommitteeELR [1966] 1 QB 1
Preiss v General Dental CouncilWLR [2001] 1 WLR 1926
Stefan v General Medical CouncilWLR [1999] 1 WLR 1293
Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345
The cause called before an Extra Division comprising Lord Marnoch, Lord MacLean and Lord McCluskey for a hearing on the summar roll, on 28 and 29 January 2003. The court put the cause out by order for further submissions on 7 February 2003.
At advising, on 25 February 2003 -
Lord Marnoch - [1] This is an appeal against a decision of the Disciplinary Committee of the General Teaching Council for Scotland under sec 12 of the Teaching Council (Scotland) Act 1965. Although eight grounds of appeal were originally tabled under the somewhat inept headings of 'Condescendences', senior counsel for the appellant made it clear at the outset that he was not insisting in grounds 1, 2, 3 and 8. At that stage, therefore, the only grounds remaining were those summarised in condescendences 4-7 inclusive of the printed Record.
[2] The hearing before the Disciplinary Committee proceeded under rules approved by the Lord President of the Court of Session in terms of para 2 of sched 2 to the 1965 Act. The rules currently in force are the Disciplinary Committee (Procedure) Rules 1967 of which rule 4(1) provides that the Council's Solicitor shall
'serve upon the respondent a notice of proceedings as nearly as may be in the form set out in the Appendix specifying the alleged facts and circumstances in the form of a charge or charges'.
The form set out in the Appendix adds little to the foregoing description. In the event, the notice of proceedings served on the appellant dated 18 September 2001 was, inter alia, in the following terms:
'On behalf of the Disciplinary Committee of the General Teaching Council for Scotland, Notice is hereby given to you that proceedings are to be held to investigate the following charges against you, namely:-
"That between September 1991 and July 1994 while a teacher at the Royal High School, Edinburgh, you did form an inappropriate relationship with a pupil of said school, [name], and with other pupils and that you did act in a manner wholly inappropriate as a teacher and, in the course of which relationship, you did: "
(a) repeatedly abuse your authority as Assistant Rector by granting authority to [name], and [name], to be excused classes without good reason and for no proper purpose.
(b) in or around October 1992, having telephoned [name], at home and invited her to come into school during a holiday period, assault [name], attempt to kiss her against her will, take hold of her and pull her to her feet.
(c) in or around December 1992 in your motor vehicle pick up [name] up from her part-time workplace in George Street, having offered her a lift home, and thereafter travel to a car park or lay-by in South Queensferry where you did assault said [name] by placing your hand upon her knee.
(d) repeatedly telephone the home of said [name] when her parents were not at home without good reason or proper purpose.
(e) repeatedly engage in inappropriate and improper conversation with said [name] and, in particular, you discussed with her a personal relationship with another teacher.
(f) between December 1992 and March 1993, having invited said [name] to meet you in the school library, have improper physical contact with said [name] and assault said [name] by pressing your body against her and simulating sexual intercourse.
(g) during the period aforementioned, in the school library, act in a shameless and indecent manner towards said [name], take her hand and place it upon your naked erect penis and cause her...
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