The General Teaching Council for Scotland

Enhancing professionalism in education since 1965

General Teaching Council for Scotland Fitness to Teach Panel Outcome

Full Hearing

Monday 10 September, Wednesday 12 September, Friday 14 September, Monday 17 September, Tuesday 18 September, Wednesday 19 September, and Friday 21 September 2018

 Teacher  Mrs Carol Binnie - present/represented
 Registration Number  820408
 Registration category  Secondary Education - Physical Education
 Panel  Lily Proudfoot (Convener), Arthur Stewart, Ian McDonagh
 Legal Assessor  Julie McKinlay
 Servicing Officer  Aga Adamczyk
 Presenting Officer  Natalie McCartney, Anderson Strathern
 Teacher's representative  Alastair Milne, Balfour & Manson

Any reference in this decision to:

  • "GTCS" means the General Teaching Council for Scotland
  • the "Panel" means the Fitness to Teach Panel considering the case
  • the "Rules" (and any related expression) means the GTCS Fitness to Teach and Appeals Rules 2012 or refers to a provision (or provisions) within them
  • the "Register" means the GTCS register of teachers

Preliminary issues
 

Confidentiality Key

At the start of the Full Hearing, the Panel advised the Parties that they proposed to make use of a confidentiality key during the proceedings as the Hearing was held in public and there was likely to be reference to individual pupils having regard to the allegations. In addition, the Panel proposed that the first witness, the mother of one of the pupils, would also be anonymised during the proceedings.

The Parties were invited to make representations in relation to the Panel’s proposal. The Parties had no objection.

The Panel therefore ordered that the confidentiality key ought to be used in respect of the pupils. In addition, the identity of the first witness would also be anonymised on the basis that as the mother of one of the pupils, in the event that her identity was disclosed, the pupil as a consequence would be easily identifiable.

The Panel considered that it was in the interests of justice to protect the identities of the pupils and this outweighed any interest in their identities being disclosed in the public Hearing. The Full Hearing would otherwise proceed in public.

In reaching this decision the Panel had regard to Rule 1.7.3.

“A Panel may, at any stage of proceedings on its own initiative or on application to it, make an order with a view to preventing or restricting the public disclosure of any aspect of proceedings. A Panel may do this so far as it considers it necessary where it is satisfied (having given the relevant parties an opportunity to make representations and in compliance with all relevant Convention rights) that it is in the interests of justice to do so and the particular circumstances of the case outweigh the interests of the Teacher and the public in the hearing being held in public. Any such decisions (and the reasons for it) will be announced in public or made publicly available.

Such orders may include (but will not be limited to) –

An order that a hearing be conducted (in whole or in part) in private:

An order that the identities of specified parties, witnesses or other persons referred to in the proceedings should not be disclosed at such proceedings to the public (by the use of anonymisation or otherwise) and whether before, during or after proceedings; and
An order for measures seeking to prevent witnesses at a public hearing being identifiable by members of the public.”

Late Paper

In the course of cross examination of Witness 2 on Day 2 of the Full Hearing, the Teacher’s Representative made an application to have a document admitted into evidence.


Witness 2 was removed from the Full Hearing while the Panel heard submissions from the Parties.

The Teacher’s Representative submitted that the document he sought to be admitted was a report by the Investigating Officer into an allegation made against a teacher at School A, and which involved Pupil A. In the report, the author had some regard to the incident in the shower room which was the subject of evidence from Mother A. When Witness 2 was asked if the report, of which she was aware as the report was completed during her time at School A, had indeed made reference to the incident in the shower room spoken to by Mother A, Witness 2 insisted the report related to another incident entirely. The Teacher’s Representative submitted that it was necessary in the circumstances to place the report before Witness 2 to refresh her memory. Further to this, the Teacher’s Representative submitted that had Witness 2 recalled the report accurately, it may not have been necessary to place the report before Witness 2. In addition, it was only once the evidence of Mother A was heard on Day 1, and in which she advised that she had copied the details of each incident to the Educational Psychologist, that the terms of the report became relevant and therefore was the Teacher’s Representative’s explanation for the late paper.

The Presenting Officer accepted that if the report dealt with the shower incident then it was fair and relevant to admit it.

Having heard the submissions of the Parties, the Panel decided that it was fair and relevant to admit the report. In reaching their decision, the Panel had regard to Rule 1.7.17 in the following terms:

“Subject to the requirements of relevance and fairness, a Panel may admit oral, documentary or other evidence, whether or not such evidence would be admissible in civil or criminal proceedings in the United Kingdom.”

Before the report was presented to the Panel and Witness 2, the Panel invited the Parties to ensure that appropriate redactions were made in order to ensure that only those aspects of the report relevant to these proceedings were before the Panel and Witness 2. The Parties were given time to ensure this was done.

 

Allegations

The following allegations were considered at the Hearing:

  1. Between 2009 and November 2014, at School A, Linlithgow, in your capacity as Depute Head Teacher and also in your capacity as Acting Head Teacher, you failed to follow child protection guidelines and procedures in that you did:
    1. fail to take appropriate action and ensure that appropriate actions were taken in respect of allegations of physical and sexual assault of pupils, and in particular of Pupil A, that you were made aware of by the parent of pupil A and staff members and;
    2. fail to take appropriate action in connection with allegations of sexual misconduct perpetrated by former pupil, Pupil B including;
      1. failing to carry out risk assessment procedures to establish whether Pupil B was a risk to other pupils and in so doing, Pupil B was placed in the adult service without adequate risk assessment having been completed;
      2. fail to ensure adequate records were maintained and held in relation to conduct of Pupil B;
      3. fail to share information known to you regarding the sexualised behaviour of Pupil B with other agencies and with staff in School A adult services;
  2. Between August and September 2014, at School A, Livingston, in your capacity as Acting Head Teacher, you breached the confidentiality of candidates involved in the recruitment and selection process of the post of Manager of Care in that you shared information with the former Manager of Care, who was not a member of the recruitment and selection panel, of the applications of individuals which included personal data.
  3. Between August 2013 and October 2014 at School A, Linlithgow in your capacity as acting head teacher, you did fail to ensure the safety of pupils in line with Health and Safety guidelines in respect of the Craft, Design and technology department and in particular you did:
    1. fail to properly supervise the CDT class teacher for whom you had line management responsibilities and who continued to use the space as a personal workshop which lead to the space being used dangerously;
    2. fail to have proper oversight of the classroom which had deteriorated in condition and was unsafe;
    3. fail to acknowledge and act upon the outcome of a Health and Safety inspection report which had identified that the CDT classroom was a danger to life;
    4. fail to follow the instruction of Principal Teacher that under no circumstances should any child go in to the CDT room and you did allow pupils to go into the room

and in light of the above, it is alleged that your fitness to teach is impaired and you are unfit to teach, as a result of breaching Parts 1.3; 1.4; 1.5; 2.1; and 3.1 of the General Teaching Council for Scotland's Code of Professionalism and Conduct.

Teacher's Admissions

The Teacher did not admit allegation 1. In relation to allegation 2, the Teacher admitted that she had shared information with Witness 1 who was the Manager of Care and a member of the Strategic Management Team at the time the information was shared. The Teacher did not admit allegation 3.

The Teacher did not accept that her fitness to teach was impaired or that she was unfit to teach.

Hearing Papers

In accordance with Rule 1.7.17, the Panel admitted all of the documents and statements listed below as evidence for the purposes of the Hearing:

Presenting Officer’s Hearing Papers

P1 Witness Statement of Mother A
P2 Witness Statement of Witness 2
P3 Witness Statement of Witness 1
P4 External Investigation Report prepared by the External Investigator
P5 Incident Reporting Forms
P6 School A Behaviour Policy
P7 School A Confidentiality Policy
P8 School A Health and Safety Policy
P9 School A Recruitment Policy
P10 School A Safeguarding Policy
P11 School A Child Protection Guidelines
P12 Statement of the Teacher to the HR Manager dated 3 November 2014
P13 Temporary Restriction Order Decision Notice dated 15 June 2015
P14 Email to Witness 2 from the Teacher dated 4 November 2014
P15 Email correspondence between Mother A and School A

Teacher’s Hearing Papers

T1 Unsigned statement of the Teacher
T2 Reference provided for the teacher by Colleague 1, Interim Principal of School A, dated 20 October 2014
T3 Application Summary- the Teacher - CV/CPD
T4 Letter from Colleague 1 (undated)
T5 Report by the Independent Consultant dated 1 December 2017
T6 Email from the Teacher to Witness 2 dated 4 November 2014
T7 Email from the Teacher to Witness 2 dated 29 October 2014 sent at 17:29
T8 Document – action points from meeting about issues surrounding Pupil A’s placement
T9 Education Scotland and Care Inspectorate Report dated 29 July 2014
T10 Letters from parents and service users- positive comments re the Teacher
T11 Email from Colleague 2 to the Teacher, Colleague 3 and Colleague 4 dated 7 January 2014
T12 Email from Colleague 5 to the Teacher’s Representative dated 1 September 2015- Pupil A documentation 1-166
T13 Documentation in relation to Pupil B
T14 Email from Colleague 5 to the Teacher’s Representative dated 1 September 2015 (allegation 3(a) - 3(b))
T15 Health Safety and Welfare Inspection Report dated 22 and 24 October 2014 (allegation 3(c))
T16 Email from Colleague 6 to the Teacher dated 27 October (allegation 3 (c))
T17 Email from Witness 2 to the Teacher dated 27 October 2014 (allegation 3 (c))
T18 School A Safeguarding Policy
T19 School A Child Protection Guidelines
T20 School A Recruitment Policy and Procedures
T21 School A Confidentiality Policy
T22 School A Health and Safety Policy
T23 Statement of Colleague 3
T24 Statement of Witness 3
T25 Statement of Witness 6
T26 Unsigned approved statement of Witness 4  
T27 Statement of Witness 5
T28 Unsigned approved statement of Colleague 7
T29 Email correspondence recovered from School A
T30 Extract of Report by Investigating Officer (redacted) dated February 2015 (late paper)
T31 Summary Career/Employment History of Independent Consultant (late paper)

Servicing Officer’s Hearing Papers

S1 Notice of Full Hearing with delivery/read receipts dated 13 August 2018
S2 Completed Teacher Response Form dated 23 August 2018

Summary of Evidence

The Panel heard oral evidence from 8 witnesses including the Teacher. The summary of their evidence is as follows:

Mother A

Mother A gave evidence at the Full Hearing. Mother A is the mother of Pupil A. Pupil A started at School A in 2003 when he was 6 years old. He attended both primary and secondary school there. Pupil A was severely XXXXXXXXXXXXXXXXXXX. He has problems with XXXXXXXXX XXXXXXXXXX.

Mother A said that when School A moved from the Edinburgh site to Linlithgow, Pupil A was being bullied, hit and verbally abused on a daily basis by other pupils. These incidents were reported to the Teacher but, according to Mother A, she did nothing to address the issues. Mother A said that the Teacher stopped her speaking to Colleague 8 and to the Board. Mother A also said that the Teacher had told her she was not allowed to call the Police. In her oral evidence, Mother A said that she thought she had a good relationship with the Teacher and that her contact with the school was mostly through the Teacher. Mother A said that she was told that the Teacher was talking to Colleague 8 and speaking to the boys concerned and the registration teacher about the incidents. Mother A said Colleague 8 was hardly ever in the school.

Mother A said that Pupil A was being hit with pool cues, punched, kicked and pushed down stairs and, at one stage, she and her husband were having weekly meetings with the Teacher regarding the incidents. Mother A stated that the Teacher told her that pupils were being punished and sent back to the Lodge which, according to Mother A, was not a punishment as they went there to play the PlayStation. Mother A said that she emailed the Teacher regularly about the incidents but the Teacher did nothing.

Mother A had a specific concern about an incident which occurred on 21 May 2010. She described how Pupil A had returned home from school in a taxi. The taxi driver said to Mother A that Pupil A was hysterical and it took a long time for them to calm him down. When Pupil A did eventually calm down, he told Mother A that two other pupils had pinned him to the ground in the shower block and used a hairdryer on his genitals. Mother A, Pupil A and his brother immediately went to the school and spoke to Colleague 9. Mother A did not speak to the Teacher on that date. Colleague 9 said to Mother A she would deal with it. Mother A asked for a copy of the incident report by email on 29 September 2011. The Teacher told her that the two pupils involved in the incident were punished but the Teacher could not provide a report. In her oral evidence, Mother A provided more detailed account of this incident. In particular, she said that the two pupils had kicked the door of the shower block open, removed Pupil A’s clothes and turned the hairdryer on his private parts. Mother A stated that staff members were present in the shower block at the time of the incident.

In cross examination, Mother A confirmed that she went to the school on the day of the incident with Pupil A and his brother and met with Colleague 9. Mother A said that Pupil A told Colleague 9 what had happened to him. Mother A said she was not told of the involvement of Colleague 10 in any investigation.  Colleague 10 did not telephone Mother A about the incident. In cross examination, it was suggested to Mother A that a meeting between the Teacher, Mother A, Colleague 3 and Colleague 10 had taken place about the incident. Mother A denied that the discussion about the incident took place at that meeting.

Mother A stated that Pupil A continued to be verbally and physically abused. Mother A continued to ask for incident reports. In her email to the Teacher, dated 6 October 2011, Mother A requested copies of incident reports. In her evidence, Mother A alleged that on 3 December 2012 there was an incident at the side of a swimming pool in which Pupil A was punched and verbally abused. According to Mother A, he was grabbed by the throat by another pupil. Mother A said that the incident was not documented and she did not think the Teacher did anything about it.

Thereafter, several reports were made by Mother A and she said nothing was done about them either. In the course of her evidence, Mother A was referred to the minutes of a meeting on 25 October 2011 in which Mother A agreed to produce the home diaries which had been signed off by staff. Mother A accepted that she did not do so saying that she thought she would not get the diaries back. Mother A said that there were incidents recorded in the diaries.

Mother A gave evidence as to a telephone call she had with the Teacher in October 2014. According to Mother A, the Teacher telephoned her to say that they were friends and asked her to let matters drop. Mother A said that the Teacher said that she knew Pupil A was being abused and that the Teacher did not think it was her responsibility to do anything about it. Mother A said she was furious and would be telling Witness 2 the following day. Mother A went to see Witness 2 and Colleague 1 the following day and told them what the Teacher had said to her during the telephone call. According to Mother A, the Teacher was suspended after the meeting. Mother A said that she had trusted the Teacher until that telephone call.

Mother A confirmed that she eventually received a number of incident reports by post from the Teacher/the school. Mother A stated that when she read these reports, she found that she knew nothing about twelve of the incidents documented in the reports. In oral evidence, Mother A said she was made aware by Pupil A of two incidents; however, only one of these incidents was documented in the paperwork sent by the Teacher/school. Mother A said she was shocked that she had not been told earlier about these other incidents and that some incidents, such as the shower incident, had not been recorded. Pupil A left school in 2015. Mother A said that he was a shell of himself at the time. She was concerned about the damage done to Pupil A by the bullying at School A. She said that she had trusted the Teacher; however, the Teacher did not deal with the issues reported by Mother A.

In cross examination, Mother A was referred to documents in which Pupil A’s experience at School A was described in a positive way. In particular, Mother A was referred to minutes from the meeting which she and her husband had attended on 1 December 2011. It was noted in the minutes that the diaries Mother A was to produce had not been submitted to date and Pupil A was described as a much happier child. Mother A dismissed this description saying it simply meant that he was miserable but not terrified. She was also presented with a note of a meeting which she and her husband attended on 12 February 2012 in which it was noted that everything had really settled for Pupil A. There was a further meeting note of 12 February 2015 to which Mother A was referred, in which her husband indicated that Pupil A was a happy child in school. Mother A disputed this and said he was not. She was asked if she accepted that he was happy and got on well in school and had friends. She said he did have a few friends but did not get on with all of the teachers or the other pupils. Mother A said that every time she found something out she would report it to the Educational Psychologist.

Witness 1

Witness 1 gave evidence at the Full Hearing. Witness 1 began work at School A in October 2011. She was the Manager of Care from January 2012. She resigned the position and her last day at School A was in September 2014. She gave evidence as to her involvement in the recruitment process and selection of the person to succeed her as the Manager of Care.

Initially, she was asked for her opinion on the job description and said that a copy of it was emailed to her for that purpose by Human Resources. She made comments on how her post had evolved. Witness 1 was not part of the selection process. Witness 1 stated that she volunteered to assist with the process; however, Human Resources had advised her that they did not think it was fair on the prospective candidates for her to be involved further in the selection process. After the closing date for applications, Witness 1 was approached by the Teacher in the residential building. The Teacher was involved in the shortlisting process. The Teacher said to Witness 1 that she knew Witness 1 was not involved in the selection process and she was sorry but she needed some help. The Teacher told her that from what she could see the qualifications of the candidates did not meet the essential criteria. Witness 1 said that she felt that the Teacher was under pressure about the selection process and that the Teacher could not see from her understanding of the qualifications how the candidates met the criteria. Witness 1 said that as the Teacher who was her line manager was asking for help, she felt she had no option but to assist the Teacher. Witness 1 was able to confirm that there were two people called Maria, a man with a background in sports science and a woman with no post-school qualifications. Witness 1 confirmed that none of the candidates met the essential criteria confirming what the Teacher had thought. The Teacher took the applications with her when she left the residential building.

In cross examination, Witness 1 was asked about Pupil B. She was able to say that she had no knowledge of him being involved in an alleged “pupil-on-pupil rape”. There were other incidents of a sexualised nature involving Pupil B but not rape. They took place outside School A and were of a nature less serious than rape. Witness 1 explained that the Teacher had told her of the allegations which were alleged to have taken place in the community. Thereafter, a risk assessment was prepared for the Lodge where Pupil B lived 2 days per week. This information was shared with a social worker. It was also discussed at a team meeting.

Witness 2

Witness 2 gave evidence at the Full Hearing. Witness 2 is the Principal of School A. She has been in that position since 14 October 2014. She took over from the Interim Principal, Colleague 1, who had been managing the Trust since the suspension of the Principal and the Head Teacher.

Witness 2 explained that she had met with Mother A on 6 October 2014. During that meeting, she was told by Mother A that Mother A had been trying to get files relating to a physical and sexual assault on her son, the details of which were disturbing. The allegation dated back 2 years. Witness 2 said that she was told by Mother A that the incident had occurred in the shower area. Pupil A had come home distressed and, when Mother A had removed his clothes, he had burns to his genital area and the fabric of his boxer shorts had stuck to the area of the injury. Witness 2 had understood a hairdryer had been used and burnt the genital area.  Witness 2 spoke to the Teacher and asked her to provide the paperwork relating to the incident. Witness 2 was clear the Teacher knew of the incident but not in any detail.

The Teacher told Witness 2 that the Incident Referral Forms (“IRF”) would be sent to Mother A. Mother A told Witness 2 that of the eleven IRFs that were sent she had only seen one before. The Teacher told Witness 2 that she had telephoned Mother A. Mother A told Witness 2 that in the course of that telephone conversation the Teacher had said “I know your son has been sexually and physically assaulted in this school. I took this to my seniors and if they didn’t do anything about it it’s not my fault.” Witness 2 said that she asked the Teacher if she had said this and she admitted she had. Witness 2 said that she had left the meeting, at which that admission had been made, to take advice. After taking advice, Witness 2 suspended the Teacher.

In cross examination, Witness 2 was presented with a report from 2015 which concerned another incident and another teacher in which the alleged shower incident was discussed.  Witness 2 acknowledged that this report suggested that it had been difficult to ascertain the facts of that incident.

Witness 2 expressed the view that if the Teacher knew a child had been abused and that had not been followed up, then the Teacher had the right to go back to the person to whom they reported the matter to and ask what happened. If not satisfied with the response, then it should have been referred to a more senior person. The Teacher ought to have been aware of this as the Child Protection Officer.

In relation to allegation 2, Witness 2 said that it had come to the attention of Colleague 1 that the Teacher had shared the content of the application forms for the post of Head of Care with Witness 1 who was the Manager of Care but who was off sick at the time. Witness 2 said that the Teacher had admitted that this had happened and that it was a “silly mistake”. In cross examination, Witness 2 confirmed that she had never heard this admission directly from the Teacher. Witness 2 clarified that the Teacher had admitted it to Colleague 1, and Colleague 1 had shared this information with Witness 2.

Witness 2 said that the fact that the Teacher had taken the applications off site was a clear breach of data protection in her opinion. She accepted that initially she had thought the incident had occurred off site but now realised it did not. In cross examination, Witness 2 was taken to School A Confidentiality Policy and School A Recruitment Policy; however, she was unable to indicate any provision of data protection or school policy which she claimed the Teacher breached.

In relation to allegation 3, Witness 2 confirmed that she had received a report from external Health and Safety auditors on the Friday of the October holiday week in 2014.  In her statement, which she read to the Panel, Witness 2 said that she had emailed the Teacher on the Monday at around 4.20 pm.  She summarised the content of the email, which included the fact that the CDT room was to be closed to pupils with immediate effect. Her expectation was that the CDT classroom would be closed to pupils when they arrived the next day. Witness 2 explained that Colleague 6, who was described as a former manager, had emailed the Teacher to say there were serious issues with the room.

In cross examination, Witness 2 was taken to School A Health and Safety policy in which she was identified as the Health and Safety Officer. Witness 2 expressed surprise at this. She said that she understood that Colleague 6 was the Health and Safety Officer. Witness 2 had understood that this role had been delegated to Colleague 6 before Witness 2 took up the post of the Principal of School A. Witness 2 confirmed that both she and Colleague 6 were in the CDT workshop on the Monday in-service day following the October holiday. Witness 2 acknowledged she did not close the room or put up any signage that day. Witness 2 also accepted that the Strategic Management Team meeting on the Tuesday morning was constructive. Witness 2 alleged that on Tuesday pupils were allowed into the CDT room. Witness 2 did not see pupils in the room herself and could not confirm who had told her that there had been pupils there or how she had been informed about this. Witness 2 said that she questioned the Teacher about the CDT room and the Teacher said she had wanted to see the report for herself before she made the decision to close the room. Witness 2 said the report was clear that the CDT room was a danger to life and she said that she had an expectation that her instruction would be followed by the Teacher. When Witness 2 had been in the room on Monday, it was clear to her that there were numerous dangers. Witness 2 said that she was alarmed that the instruction had not been followed by the Teacher, as the room was a danger to life.

In relation to allegation 1b, Witness 2 said that the Teacher had attended a review meeting with a variety of professionals from other agencies where an allegation that Pupil B had raped another pupil at the school had been discussed. Witness 2 said there were minutes from that review meeting which described a person from School A and that description matched the description of the Teacher. The minutes from that meeting were not before the Panel. After Pupil B left the school, he transitioned to the Adult Service Unit which was a transition service that formed part of the Trust. Witness 2 stated that the Unit had no knowledge of an alleged rape and, as a result, no risk assessment was undertaken. Witness 2 said that this was brought to her attention by a staff member at the Unit, Staff Member 1. It was only after the alleged sexual misconduct came to light, the unit was able to assess the risk accurately. Witness 2 said that at a subsequent meeting with the Unit she became aware of the extent of the risk in relation to Pupil B and his “preference for younger children”. Witness 2 accepted that she did not discuss with the Unit the information they had about Pupil B.

In cross examination, Witness 2 accepted that, in fact, Pupil B was not involved in an alleged “pupil-on-pupil rape”. Although, she maintained that there had been questions about his involvement, when questioned by the Teacher’s Representative, she confirmed that it had been established that the allegation was actually about an entirely different pupil. Witness 2 was asked a series of questions about Pupil B, his care and the Unit’s involvement, none of which she was able to answer. Witness 2 accepted that she could not disagree with the evidence of Witness 1 in respect of Pupil B.

No Case to Answer

Following the conclusion of the Presenting Officer’s case, the Teacher’s Representative made a submission of no case to answer.

The Teacher’s Representative referred the Panel to the case of Regina v Galbraith [1981] 1 WLR 1039; Regina v Shippey and Jedynak [1988] Crim. LR 767 and the Practice Note of the Health and Care Professionals Tribunal Service (HCPTS Practice Note) on “half –time" submissions.

The Teacher’s Representative submitted that there was no Practice Statement issued by the GTCS on the matter but that the HCPTS Practice Note may be of some assistance to the Panel.

The Teacher’s representative submitted that his submission was competent as there was no useful purpose served in continuing with a hearing in circumstances where there is no real prospect of the Panel finding the facts proved or making a finding of misconduct.

The Teacher’s Representative submitted that R v Galbraith sets out the test to be applied here.

The Teacher’s Representative made submissions specifically in relation to allegation 1, 2, 3c) and d).

In relation to allegation 1a) the sole evidence came from Mother A and relates to Pupil A only. As such the words “of pupils and in particular” ought to be deleted from the allegation.

In relation to allegation 1b) the evidence of Witness 2 ought properly to be considered as unsatisfactory, tenuous and weak. There was no evidence from Staff Member 1 who was supposed to have reported the matter to Witness 2. It is clear that Staff Member 1 was an employee at the Lodge where Pupil B was a resident. Witness 1 gave evidence to the effect that the information had been passed to her by the Teacher. It was necessary to prove that the Teacher had “failed” to do something. The reference by description to the Teacher having attended a meeting was unsatisfactory.

In relation to allegation 2, it was clear that Witness 2 was wrong in material respects, in particular in relation to where the alleged breach of confidentiality had occurred. Further to this, Witness 1 was a member of the Strategic Management Team at the relevant time and, as such, the Teacher’s Representative submitted that this did not amount to misconduct.

In relation to allegation 3 c) and 3 d), the Teacher was on annual leave when the Health and Safety report was received. Colleague 6 and Witness 2 had the report. The full text of the email does not constitute an instruction and if the concerns had been of the significance Witness 2 maintains, she should have acted accordingly on the Monday in-service day. She did not.

The Teacher’s Representative submitted that there was no evidence in respect of allegation 3c).

The Presenting Officer submitted that the no case to answer was competently made and that the relevant test was that laid down in R v Galbraith. She considered the terms of the HCPTS Practice Note to be uncontroversial in its terms.

In relation to allegation 1 a) the Presenting Officer did not oppose to the proposed deletion.

In relation to allegation 1b), the Presenting Officer submitted that there was evidence to support this allegation. She submitted that Witness 2 had clarified the position in relation to an alleged rape and therefore her evidence had not been undermined by the earlier error. The fact that the Teacher knew of the alleged sexual misconduct by Pupil B was confirmed by Witness 1 in her evidence.  Witness 2 confirmed that the risk assessment records were not held. The Presenting Officer submitted that the test in Galbraith was therefore not met.

In relation to allegation 2, the Presenting Officer submitted that there was clear evidence that confidentiality had been breached and that Witness 1, with whom the information had been shared, was not a member of the recruitment team. The location where the discussion took place was irrelevant.

In relation to allegation 3 c) and d), the Presenting Officer referred the Panel to the evidence of Witness 2. Witness 2 sent the email which contained the instruction for the Teacher. The fact that the email did not mention “danger to life” was irrelevant. The Presenting Officer submitted that the instruction was clear.

The Panel decided to uphold the submission of no case to answer in part. The Panel had regard to the HCPTS Practice Note as being of some assistance and to the test as set out in R v Galbraith.

The Panel referred to R v Galbraith, in particular to Page 1042 B-E:

“How then should the judge approach a submission of no case? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character for example because of inherent weakness or vagueness or because it is inconsistent with other evidence (a) where the judge comes to the conclusion that the prosecution evidence taken at is highest is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty then the judge should allow the matter to be tried by the jury. “

In relation to Allegation 1 a), the Panel considered that they had not been presented with evidence that supported the allegation to the extent that the allegation related to anyone other than Pupil A. The Panel noted the position of the Presenting Officer. The no case to answer submission was upheld to the extent that the words “of pupils, and in particular” ought to be deleted from allegation 1 a).

In relation to allegation 1b), the Panel was of the view that there was evidence from Witness 2. Whilst there may be entirely appropriate consideration to be given to the reliability and credibility of the evidence of Witness 2, the Panel did not consider that it could be said, at this stage, that the evidence was of such a tenuous nature as to mean that the allegation could not be proved. 

In relation to allegation 2, the Panel considered that the no case to answer submission ought to be upheld. The nature and circumstances of the conversation were described by Witness 1 in her evidence.  It was clear that she was a member of the Strategic Management Team and was, as such, bound by the same rules of confidentiality as the Teacher. The context was one in which the Teacher was seeking confirmation of the view she had formed as to the qualifications of the candidates and whether they met the essential criteria for the post. Importantly, the Panel was not presented with evidence, other than a very bald assertion by Witness 2 which she could not substantiate, that what occurred was in fact a breach of any of the relevant policies. The policies provided to the Panel did not expressly prohibit discussions taking place of the nature alleged in the circumstances.

In all the circumstances that part of the no case to answer submission was upheld.

In relation to allegation 3c) and 3d), the Panel considered that there was evidence from Witness 2, both orally and in an email. The Panel therefore considered that it could not be said that there was no or insufficient evidence upon which the Panel might find the allegation 3 d) proved. However, in relation to allegation 3c) the Panel considered that there did not appear to be evidence to support this further allegation of a failure to act and acknowledge the outcome of the Health and Safety report, beyond that which is included in allegation 3 d).

Therefore, the Panel upheld the no case no answer submission in respect of allegation 3c).

Following the decision of the Panel, the Teacher’s Representative presented the case for the Teacher. The Panel heard oral evidence from the Teacher and 4 others. A summary of their evidence follows.

The Teacher

The Teacher gave evidence at the Full Hearing. She provided details of her career. The Teacher was first registered with the GTCS in 1985. In 1984 she took up a part time post in Pinewood School where she taught until 2007. She was appointed as the Depute Head Teacher of Pinewood in 1999 and was Acting Head Teacher between April and June 2007 before she joined School A. The Teacher held the post of Depute Head Teacher at School A from June 2007 until November 2014, with the exception of two periods in which she was Acting Head Teacher. These were from August 2012 to April 2013 and from August 2013 until November 2014.

The Teacher said that she had never been the subject of disciplinary proceedings or a complaint to the GTCS, at any time in her career, until these allegations were brought. She had a positive reference from the Interim Principal of School A, Colleague 1 in October 2014 and positive comments from inspectors in Education Scotland in July 2014. Colleague 1 was the acting Principal of School A from September 2013 until October 2014.

The Teacher confirmed that School A moved to the site in Linlithgow in January 2008. The building was large. It contained a mainstream nursery, a primary and a secondary school all in the same building. The roll at its highest was 64 pupils. Pupils were arranged in groups chronologically with a maximum of six pupils in a class, and each class had a teacher and classroom assistant and more if additional support was required. Pupils came from all over Scotland. The school catered for children who were deaf or presented with other communication difficulties. The pupils had a range of additional support needs and some of the behaviours were challenging and sometimes violent. Some of the pupils found dealing with their emotions difficult. The policy around inclusion in mainstream schools meant that often deaf children without additional learning needs could be educated in their local school and, as such, the cohort at School A had changed over time.

The Teacher was asked about the working environment at School A. The Teacher said the atmosphere was extremely challenging. There had been an article in the press in 2013 regarding a staff group grievance. As the outcome of that grievance did not meet the expectation of the group with the grievance, there was palpable tension as a result amongst certain staff.

The Teacher responded to each of the allegations in turn.

In relation to allegation 1, she denied this and indicated that following a police investigation no charges had been brought and she had never been interviewed in relation to allegations made against her by Mother A.

The Teacher said that no reports of sexual or physical assault by pupils had been brought to her attention that had not been responded to appropriately.

In relation to what became known in the course of the Hearing as the “shower incident”, the Teacher explained that she first became aware of a complaint from Mother A on the Monday, following the alleged incident on the Friday, in May 2010 in a conversation with Colleague 9, who was at that time the Head Teacher of School A. The Teacher was told that Colleague 10, the Principal Teacher, had been tasked with looking into the incident which was alleged to have taken place in the PE changing area. The Teacher said that she did not believe there had been any mention at the time of Pupil A being injured. The Teacher was not directly involved in receiving or investigating the complaint. The Teacher said that Colleague 10 had reported her findings to Mother A by telephone, and that the call had not gone well as Mother A was dissatisfied with the findings. Therefore, the Teacher, Mother A, Colleague 3 and Colleague 10 attended a meeting to discuss this incident. There was no mention of a burn or injury.  The Teacher said that her recollection was of pupils flicking towels and one pupil waving the hose attached to a wall mounted hairdryer. As such, in the view of the Teacher, the incident was handled appropriately. The Teacher was referred to a minute of a meeting dated 24 October 2011, in which the shower incident appears to be referenced. The Teacher confirmed that the minute did not contain a narrative akin to what Mother A was now alleging had happened. It appeared to have been later used as an example of good practice and the Teacher said she would not have done that had the incident been of the serious nature later described to her.

The Teacher also spoke of the telephone conversation with Mother A which took place on 29 October 2014. Mother A raised a number of concerns in the course of that call. The Teacher explained that she had called Mother A because she had been trying to send her IRFs that had been requested by Mother A. Witness 2 had set the Teacher a deadline for doing so and Witness 2 was aware that the Teacher had been trying to do so. The Teacher had telephoned Mother A to check if she had received the reports. The Teacher said that at the time she made the telephone call to Mother A, she was unaware that discussions had taken place between Witness 2  and Mother A, and that a complaint had been made about the Teacher by Mother A. In particular, she was unaware of the meetings which took place on 15 and 22 October 2014 between Witness 2 and Mother A. The Teacher refuted the suggestion made by Mother A that the Teacher had called to forestall an investigation into her.

On the morning after the telephone call, the Teacher told Colleague 3 about it and spoke on the telephone to the Educational Psychologist for Pupil A. The Educational Psychologist told the Teacher that Mother A was happy because the Principal Teachers were dealing with her complaint. The Teacher spoke to Witness 2 that day in person and expressed concerns as to the details which had been shared with Witness 2. Witness 2 said she was dealing with the matter. The Teacher also sent an email to Witness 2 following the telephone call to Mother A. The Teacher expressly denied that she had told Witness 2 that she had said to Mother A “I know your son has been physically and sexually assaulted in this school. I took it to my seniors and if they didn’t do anything about it, it’s not my fault”.  The Teacher said she had no knowledge of Pupil A being sexually assaulted. The Teacher added that she could not have taken the matter to senior staff as the shower staff had been reported directly to the Teacher’s line manager.

The Teacher did accept that there were times when Pupil A was physically assaulted but these incidents were dealt with appropriately.

The Teacher said in cross examination that she could not swear that Mother A had not mentioned sexual assault when speaking to the Teacher before the telephone call in October 2014. The Teacher said Mother A trusted her and if she had not felt matters were being addressed then she was sure Mother A would have spoken to others. She was clear that Mother A did not tell that Pupil A had been sexually assaulted in the manner described in the telephone call in October 2014.

Any other complaints were, in the view of the Teacher, also handled appropriately. The Teacher was asked if Pupil A had been bullied, both verbally and physically, on a daily basis throughout his time at School A. This was denied. The Teacher said that she would see Pupil A in the school on an almost daily basis. The Teacher described Pupil A as very vulnerable. She said he had XXXXXXXXXXXXXXXXX difficulties. He appeared to enjoy school and had a happy and strong peer group. He was chatty and there were subjects he enjoyed talking to her about.

The Teacher also denied that she had been receiving daily reports from Mother A. She denied stopping Mother A speaking to Colleague 8, Colleague 1, the Board or the Police.

The Teacher considered her relationship with Mother A to be good over a period of 7 years. Mother A required a high level of support in matters concerning Pupil A as, at some point, she suffered from a XXXXXXXXXXXXXXXXXX. Therefore, monthly meetings were set up between the Teacher, Pupil A’s parents and Educational Psychologist to give the parents the support and the opportunity to build a trusting relationship with the school. Mother A requested that she be able to email the Teacher in the evenings with concerns and the Teacher agreed. They worked together on a number of initiatives.

The Teacher said she became aware of XXXXXXXXXXXXX in Mother A following an incident involving Pupil A in June 2014 during which Pupil A was kicked and called a name. Mother A reacted badly to how this was handled by the Depute Head Teacher. The Teacher became aware that several differing accounts of the incident had been provided to Mother A by the school. The Teacher said that it was clear Mother A was still communicating wth the school about this incident in August 2014 and was not happy about how it had been addressed. At that stage, Mother A preferred to contact Colleague 1.

The Teacher said that she listened to Mother A and her suggestions for improvement. She denied that, as suggested by Mother A, she did nothing to protect Pupil A. Appropriate sanctions were issued and on two occasions pupils were excluded. The Positive Behaviour Policy was followed.

Following the difficulties encountered retrieving the IRF forms that Mother A requested in 2014, the system was changed to ensure meaningful data could be recovered. The Teacher was taken through the various IRF forms and asked about the sanctions imposed. She was clear that the incidents on their own did not warrant child protection procedures being invoked. The incidents did not show a regular pattern and often involved different perpetrators. She expressed some concerns when asked about sharing of the IRFs with Mother A as they contained information about other pupils. The teacher stated that previously she had been told not to share the IRFs.

In relation to allegation 1 b, the Teacher explained that residential pupils at School A lived in a residential facility on campus known as the Lodge. All of those pupils, including Pupil B, had individualised risk assessments completed by staff at the Lodge. The risk assessment for Pupil B from February 2014 for the Lodge was before the Panel. It was not the practice that such risk assessments were written for all pupils in the school. The Teacher said that, as far as she was aware, the Adult Service Unit prepared individual risk assessments when a pupil entered their service.

In her oral evidence, the Teacher provided further details about Pupil B. She met Pupil B in Pinewood School when he was 5 years old. He was XXXXXXXXXXXXXX she had ever met. He was lively and boisterous. He moved to School A and she did not see him until 2007 when she joined School A. He was popular with peers but you took notice of him because of his size. He resided at the Lodge 2 nights a week for respite purposes.

The Teacher denied that she had failed to share information with relevant agencies in relation to Pupil B. Various documents were referred to by the Teacher. The Teacher had known Pupil B for a number of years. Despite what Witness 2 told the person carrying out the disciplinary investigation, Pupil B was not being interviewed in connection with a “pupil-on-pupil rape”. The Teacher dealt with the “pupil-on-pupil rape” allegation in 2012 and it did not involve Pupil B.  The staff members of the Adult Service Unit were familiar with Pupil B and aware of the support he required. The pupil’s file was provided to the manager of the Adult Service Unit, Staff Member 1 who had knowledge of Pupil B as he also worked at the Lodge.

The Teacher confirmed that she received information from a social worker alleging sexual misconduct by Pupil B away from the school in the summer. The Teacher provided evidence as to what she did with that information including briefing support staff, teaching staff and the Lodge. At a multi-disciplinary professional concerns meeting attended by Police Scotland, Social Work and housing, the allegations in the community were discussed. At the Principal teachers meeting, the Teacher said it was agreed that the Principal Teacher for Post 16 would write an individual risk assessment for Pupil B.  The Teacher confirmed that she did see the completed risk assessment; although, it was not before the Panel. The Teacher explained that she requested a copy of that document for the Panel; however, School A was unable to produce it.

Further to this, the Teacher stated that there were meetings in May 2012 and March 2013 with an Educational Psychologist. There was a professional concerns meeting which took place in June 2014 when Pupil B was leaving school. Social Work, Police Scotland, housing and staff from the Lodge attended that meeting. The Teacher attended that meeting to support her colleagues. A further meeting took place in November 2014 and the Adult Service Unit attended as by that stage Pupil B had left school. The Teacher said there was copious information about Pupil B and the staff had experience of working with him.

According to the Teacher, the Adult Service Unit staff had direct contact with Pupil B in the year 2013-2014. The Teacher had requested Pupil B to join an allotment project offered by the Adult Service Unit; however, Pupil B was considered, at the time, unsuitable for the project given the high level of supervision required. Both Staff Member 1 and Staff Member 2 had roles in the Lodge before taking up posts with the Adult Service Unit. Both had knowledge and experience of working with Pupil B. Pupil B was to commence an assessment placement in 2014 with the Adult Service Unit and his file from the Lodge was passed to them.

Given that allegation 2 was deleted following the no case to answer submission, the Teacher was not required to provide evidence in relation to that allegation and accordingly did not do so.

In relation to allegation 3, the Teacher explained that the Craft Design and Technology (“CDT”) teacher returned from the summer break in 2013 anxious about SQA results. In October 2013, he was absent from work due to XXXXXXXX. Another teacher covered his duties and she indicated to school managers that she needed time to organise the classroom that she had been asked to take over. According to the new CDT teacher, the room was messy and cluttered. Personal possessions, including model ships belonging to the CDT teacher, were removed. The CDT teacher had been given permission historically to work on his own projects outside class time. When School A moved to Linlithgow from Edinburgh this practice continued. In oral evidence, the Teacher said that she did have concerns about this historical arrangement but as he had been permitted to do so she did not question the arrangement. The CDT teacher undertook a phased return to work from January 2014 which was completed in March 2014. As far as the Teacher was aware, the Health and Safety inspection in January 2014 had raised no issues.

The Teacher made classroom visits and saw no concerns. She attended the CDT facility every fortnight during September and October 214 as the Technology Faculty meetings were held there. The area was clear of clutter on these occasions. She made impromptu visits on occasions to the classroom in the mornings as the CDT teacher appeared more comfortable to talk in his own classroom and did not attend the staff room at breaks and lunch. The Teacher sometimes accessed the school from the car park through the fire exit in the CDT workshop. 

The Health and Safety inspection took place on 20 and 22 October 2014. The Teacher was on annual leave. The CDT teacher was also on annual leave. The last time the Teacher was in the CDT room was the faculty meeting 2 weeks before the October holiday.

The Teacher returned to the school on Monday 27 October 2014 which was an in-service day for staff. On arrival on the 27 of October 2014, the Teacher received an email from Colleague 6 indicating inter alia that they discuss the Health and Safety report. The Panel had sight of that email. The Teacher telephoned Colleague 6 twice that day but got no reply. Witness 2 also emailed the Teacher in the afternoon on 27 October 2014. The Teacher opened that email at home. Witness 2 had indicated in her email that she would discuss matters in the morning with the Teacher.  That email was also before the Panel.

The Teacher said that there was no sense of urgency throughout the in-service day and the Teacher did not receive a copy of the report at that time.  When asked, the Teacher confirmed that Colleague 6, Witness 2 and herself would all have been at the same child protection training on the in-service day.

The Teacher said that she telephoned Colleague 6 again early the following morning. Colleague 6 was engaged with payroll and said she would discuss the situation with the Teacher at the Strategic Management Team meeting which was scheduled to take place at 9.15 am that day. The Teacher attended the Strategic Management Team where it was agreed that the workshop would be closed down and the Teacher was given a copy of the report. The use of Linlithgow academy was discussed and it was agreed that it would not be necessary as there were free classrooms where the CDT teacher could conduct theory lessons in the meantime.

Immediately after the meeting, the Teacher went to the CDT department and spoke to the CDT teacher. She instructed him to close the workshop and he did so in her presence. The Teacher stated that her actions were appropriate and she assisted the CDT teacher through the process to clear the area. As far as the Teacher was aware, Witness 2 and Colleague 6 were in the CDT classroom on the in-service day. The Teacher did not accept that she had failed to supervise the CDT teacher. She said she had managed and supported him over a period of years with poor health. She described him as a teacher who was very popular with pupils and highly thought of. He had good relationships with pupils although he was less engaged with staff members.

Witness 3

Witness 3 gave evidence at the Full Hearing. Witness 3 was employed by Cumbria County Council as an Educational Psychologist from 1977. He was the County’s Principal Educational Psychologist from 1995 until 2004. He held the post of Principal Educational Psychologist with Edinburgh City Council from 2004 until 2010. He retired but joined School A on a consultancy basis for 2 days a week from 2011 to 2015.

The Teacher was his line manager at School A. He did not see her teaching but he observed her in her role within the school and he had no doubt she would be an effective teacher. Witness 3 said that the Teacher was always very organised and prepared for the supervision meetings he had with her. He described the Teacher as a strong advocate for School A. Witness 3 had previous experience of School A when working for Cumbria County Council and placing children there and at that time he found the school to be inward looking. Witness 3 said the Teacher agreed with him and they worked together to develop a more mature relationship with local authorities.

Witness 3 said that the standout feature for him about the Teacher was her accessibility to parents and to pupils.

Witness 3 also spoke about School A during the period in which he was there. He explained that over time the intake of pupils had changed significantly and, as a result, School A had become very different and diverse to what it was in the past. The pupils had significant communication difficulties and this might be associated with moderate, severe or profound learning difficulties. A significant minority of the pupils would disrupt lessons, refuse to work, shout, swear and push over furniture. The behaviour of some of the pupils was very challenging and difficult to manage. New and difficult demands were placed on staff as a result and most of the staff had no training and experience in working with such a diverse population. Supporting existing staff and recruiting new staff was a problem for School A.

Some of the staff considered that the school should position itself as a selective school for academically able deaf pupils. Some questioned the inclusive communication policy and argued for exclusive use of British Sign Language. The parent group was also diverse. Some worked well with the school and some would describe their experience as a “fight” to get the provision they wished for their child, and that was the manner in which they dealt with staff even when a fight was neither necessary nor appropriate.

Witness 3 did have some dealings with Mother A and her husband. He had discussed them with Colleague 1, the Interim Principal and it was clear to him that dealing with their complaints had become very time consuming. He attended an Annual Review Meeting in relation to Pupil A at which the parents were present. The meeting was positive and there was agreement that another meeting would be arranged to discuss the transition of Pupil A from School A. Witness 3 described the mood at that second meeting as quite different. The parents of Pupil A were unable to move from discussing an historic incident and only wanted to know what was being done about it. Witness 3 said that he pointed out to the parents that Witness 2 had advised that she was dealing with the incident and the focus of the meeting was transition planning. The witness said the parents remained stuck and fixated on something that had allegedly happened in the past and no transition planning took place at the meeting. He also spoke more generally about the responsibilities of transition planning.

Witness 3 also said that after the Teacher was suspended things became worse at School A. Witness 2, as newly appointed Principal, seemed to look outside the school for support. Witness 3 felt this was unfortunate as there were staff members within School A who sought to provide support and were willing to help. He described two pieces of work he undertook during that time neither of which was acknowledged by Witness 2. He left soon after feeling he could be no further help to School A.

 Witness 4

Witness 4 gave evidence at the Full Hearing. Witness 4 was a music teacher who first registered with the GTCS in 1969. Following her retirement in 2004, Witness 4 continued to work at Pinewood School for one day a week for a period of two years and thereafter went to School A to teach one day per week from January 2007 for one and a half years.

Witness 4 worked with the Teacher during the whole period that the Teacher worked at Pinewood School. She described the Teacher as easy to work with. She had no concerns about the Teacher with regards to child protection and pupil safety. As a PE teacher, the Teacher was working with vulnerable children and there was a constant need to assess risk. Witness 4 said that the Teacher documented things well and was known for keeping meticulous records. The Teacher was calm and considered in her approach to resolving issues.

Witness 5

Witness 5 gave evidence at the Full Hearing. Witness 5 was a primary school teacher who first registered with the GTCS in 1972. In April 1990 Witness 5 was appointed as a permanent member of staff at Pinewood School where she remained until 2005. She had various roles during that period including one year as the Acting Head Teacher. Witness 5 worked with the Teacher for a few months in 1985 and then from 1990 until 2005. Witness 5 said that the Teacher was always thoroughly prepared for her lessons and papers were prepared to a high standard. The Teacher got on well with pupils and staff. The Teacher followed child protection procedures and policies to the letter. Witness 5 provided examples of this. She also provided examples of the Teacher’s practice in terms of health and safety. Witness 5 said that the Teacher was child protection tutor for West Lothian Council and trained all staff at Pinewood annually on child protection procedures. Witness 5 had no concerns with leaving the Teacher in charge when she was not in the school.

Witness 6

Witness 6 gave evidence at the Full Hearing. Witness 6 was a Home Economics Teacher who was first registered with the GTCS in 1972. She worked with the Teacher from 1997 at Pinewood School until the Teacher left in 2007. Witness 6 said that she always found the Teacher to be professional and her first priority was the care and welfare of the pupils. She said that the Teacher handled issues of Child Protection and pupil safety properly and sensitively and always followed guidelines. The Teacher would provide child protection training. Witness 6 also explained that the Teacher was stringent in adhering to health and safety procedures and provided examples. She said that the Teacher loved her job.

Application of the Presenting Officer

Following the evidence of Witness 6, the Teacher’s Representative sought to read the statement of Colleague 3 into the record of the Hearing. Colleague 3 was not due to attend to give her evidence orally.

The Presenting Officer made an application, in accordance with Rule 1.7.24, to the Panel and asked that the Witness be ordered to attend the Hearing and to provide evidence orally. This would allow the witness to be subject to cross examination.

The Panel heard submissions from both Parties. In reaching their decision the Panel had regard to Rule 1.7.23 and 1.7.24 as well as to the General Objective.

The Panel decided to refuse the application. In reaching this decision the Panel had regard to Rule 1.7.3. In accordance with Rule 1.7.3, any fact which needs to be proved by the evidence of a witness at a hearing may be proved by his/her evidence being provided in writing in the form of a written statement signed by him/her which contains the evidence that he/she would be permitted to provide orally at a hearing. The admissibility of the statement was not challenged.

While the Panel accepted that the Presenting Officer could make an application in terms of Rule 1.7.24 at any time in the proceedings, there was no explanation offered as to why an application had not been made at an earlier stage. The statement had been available to the Presenting Officer for a considerable period of time and it was accepted that at no time had it been proposed by the Teacher’s Representative that the witness be called to give oral testimony. As such, the Presenting Officer was aware that the witness would not be called. It was open to the Presenting Officer to make the application at an earlier stage. The Panel was mindful that in accordance with the General Objective they must act fairly and justly and give effect to the General Objective when exercising any power under the Rules.

The Panel considered that to order Colleague 3 to appear at this stage in proceedings when the remaining evidence had been heard would cause delay. The case had already been ongoing for a considerable period of time and the application could have been made at an earlier stage in proceedings. Any further delay would be unfair to the Teacher. The statement had been available to the Presenting Officer. Nothing had arisen, in the view of the Panel, during the course of the Hearing which meant that the evidence of Colleague 3 had become more significant than might have been appreciated at an earlier stage. The statement related to matters in respect of allegation 1a) and the Panel considered that there appeared to be no reason why consideration as to whether an application of this nature should be made could not have been addressed earlier by the Presenting Officer. The Panel determined that as a consequence of the timing of the application and the delay which would result and having regard to the length of time the matter had already taken to come to a Full Hearing, it was not fair to delay matters further to order the attendance of an additional witness.

Ultimately, it was a matter for the Panel to decide the weight to be attached to the statement in the circumstances.

The statement of Colleague 3 was read into evidence by the Teacher’s Representative.

Late Paper

The Teacher’s Representative made an application for a late paper to be admitted after the evidence had been heard. The late paper was the career summary and employment history of the Independent Consultant.

The report of the Independent Consultant was within the bundle of Teacher’s Papers before the Panel. There had been no objection from the Presenting Officer to the lodging of the report.
The Teacher’s Representative submitted that as the result of an oversight on his part the career summary and employment history had not been appended to the report when the bundle was lodged.  The Teacher’s Representative submitted that it would be prejudicial to the Teacher if the career summary and the employment history of the Independent Consultant were not presented before the Panel; therefore, the Teacher’s Representative invited the Panel to admit the document.

The Presenting Officer opposed the application. In her view, the application came too late and the report was such that no weight should be attached to it in any event.

The Panel decided to admit the late paper.

In reaching their decision the Panel had regard to Rule 1.7.17 in the following terms:

“Subject to the requirements of relevance and fairness, a Panel may admit oral, documentary or other evidence, whether or not such evidence would be admissible in civil or criminal proceedings in the United Kingdom.”

Having heard the submissions of the Parties, the Panel decided that it was fair and relevant to admit the late paper. It was clearly relevant as it related to the qualifications of the author of the report contained within the bundle. Whilst the Panel was disappointed that such an application came so late, given the nature of the document and the explanation given for it not being presented with the report when lodged, the Panel considered it fair to allow it. 

Findings of Fact

The Panel gave careful consideration to all of the evidence presented and submissions made by the Parties in making its findings of fact on the allegations.

The Panel had in mind that the burden of proof rested on the Presenting Officer and that the standard of proof required is that used in civil proceedings, namely the balance of probabilities.

In the view of the Panel, Mother A could not be regarded as a reliable witness. Whilst at a point in her evidence she was so upset she required to leave the Hearing room, in the main she was defiant, forceful and, at times, hostile in manner. In cross examination, she appeared not to listen to what was being asked but to simply repeat her own position without any reflection or consideration. Mother A appeared unable to consider any other perspective. In particular, when it was presented to her that her own husband had said that Pupil A was happy in school, her response was that this was not true. In that regard the evidence of Witness 3 was insightful. He described a meeting with Mother A in which she was so fixated on an historic incident that the purpose of the meeting, which was transition planning for her son, was entirely defeated. 

Further to this, it seemed incongruous to the Panel that on the one hand Mother A could describe (as the Teacher did) a good working relationship with the Teacher and to say that she trusted her, and on the other to claim that her son was being physically and verbally abused on an almost daily basis and that she was complaining to the Teacher who was doing nothing about it.  In addition, Mother A gave evidence in a manner that did not suggest that she would be easily put off taking her complants elsewhere if they were not addressed, and so her suggestion that the Teacher prevented her for reporting matters to the Police, the Board or more senior staff also struck the Panel as unlikely.  Further, she was insistent in oral evidence that she was unaware of the incidents but for one detailed in the IRFs provided to her. Even when presented with the IRFs, which appeared on the face of some of them at least to record that she had been contacted, she continued to say that she was unaware of the incidents. That is not to say that the relationship with the school was entirely positive. Based on the documents before the Panel, it was clear that Mother A was in a very regular contact with the school regarding incidents of physical abuse in relation to Pupil A, and Mother A was dissatisfied with the sanctions imposed on the perpetrators by the school.

Witness 1 was in general a credible and reliable witness. The Panel considered that she sought to place the blame entirely at the feet of the Teacher for the conversation which took place regarding the qualifications of candidates despite the fact that she was herself a member of the Strategic Management Team, and therefore had some responsibility. Nevertheless, the Panel considered her account to be an honest one. The evidence she gave about the information she received from the Teacher about Pupil B was elicited in cross examination and she seemed sincere, clear and detailed in her responses, despite appearing to be genuinely surprised to be asked about this.

Witness 2 was, in the view of the Panel, an inherently unreliable witness. She read from a witness statement which she signed on 20 April 2017 and which she said was honest and accurate. In particular, she said that the sexual conduct of which Pupil B was accused of and which is the subject to allegation 2 was a “pupil-on-pupil rape”. This was in her written statement read to the Panel and in her interview at the disciplinary investigation stage to the External Investigator. However, when the Teacher’s Representative put to her in cross examination that this was simply not true and that that allegation of rape was concerned with an entirely different pupil, she accepted that readily. She said that Witness 1 was off sick when the Teacher discussed the applications for the Manager of Care post and that the Teacher had taken applications off site. This was untrue and Witness 1 was clear as was the Teacher that the conversation took place in the Lodge which is on site.  Witness 2 appeared to be content to be corrected on the matter.

Witness 2 asserted that the discussion between the Teacher and Witness 1 was a breach of policy and of data protection; however, when prompted she could point to no aspect of the relevant policies or data protection law in support of that assertion.

Witness 2 asserted that the Teacher had allowed pupils into the CDT room. When asked about her knowledge of whether pupils had been in the CDT room and how she came by that knowledge, she was unable to provide any evidence to back up her assertion.

The Panel concluded that Witness 2 was prepared to make assertions with some conviction which she could provide no basis for when challenged. As a result, her evidence was unreliable. Therefore, where there was conflict between the evidence of the Teacher and Witness 2, the Panel preferred the evidence of the Teacher.

The Panel considered Witness 3 to be an impressive witness. He gave his evidence in a professional and measured manner and was considered in what he had to say. He gave a useful insight into School A during the time he was there.

The Panel considered that the Teacher was a credible and reliable witness. She was calm throughout her evidence and listened carefully to what she was asked. The Panel considered that she was frank where she did not know the answer and did not seek to overstate the position.

The Panel did not find the allegations proved.

Allegation 1a)

This allegation required the Panel to determine whether the Teacher had failed to follow child protection guidelines and procedures in that she did fail to take appropriate action in respect of allegations of physical and sexual assault of Pupil A that the Teacher was made aware of by Mother A and staff members.
In relation to any allegation of sexual assault involving Pupil A, the only evidence before the Panel was in relation to what has been termed as the “shower incident” in May 2010. For the avoidance of doubt having regard to the terms of the allegation, the Panel was not required to determine what occurred on that day and it would not have been appropriate to do so. It was apparent that there were differing accounts as to what took place and the Panel did not hear from anyone directly involved in the incident. For the purposes of the allegation, the Panel had regard to the evidence as to what the Teacher knew of any allegations of sexual or physical assault, and thereafter, what she had done about them.

It did not appear to the Panel to be in dispute that on the day of the incident Mother A attended the school and complained to Colleague 9 who was the Teacher’s line manager. In addition, the Panel had no reason to doubt the Teacher when she said that she was not involved in the investigation as this was undertaken by Colleague 10. The Teacher was clear in her evidence that her understanding of the incident was that it involved pupils flicking towels at each other and waving the hose of the hairdryer. In the view of the Panel, there was no evidence to support the view that the Teacher had been told by staff members of a more serious incident or one of the nature as described in evidence by Mother A.

The Teacher was clear in her evidence of the details of the incident, which the panel noted varied in the evidence of Mother A and Witness 2. The Teacher confirmed that the manner the incident had been described to the Panel by Mother A and Witness 2, was not known to the Teacher until October 2014. By that time, the incident had been described to Witness 2 and Colleague 1 by Mother A, and the Teacher was soon after suspended. The Panel accepted the evidence of the Teacher, that she did not say to Mother A in the course of the telephone call in October 2014 that she was aware that her son had been physically and sexually assaulted, as suggested in Mother A’s evidence, or that she had admitted as much to Witness 2.  The Panel considered the Teacher’s account of the telephone call in October 2014, and the reasons for it, was credible. Among the papers before the Panel were emails sent on the day of the call with Mother A in which the Teacher advises Witness 2 that she has been trying to send IRF’s by email to Mother A to meet the deadline but was having difficulty doing so. The Teacher’s evidence that she called Mother A to check with her that she had received the IRFs was entirely consistent with the email thread before the Panel. The Teacher’s evidence that Mother A was angry was supported by the comments made by Mother A’s husband during a meeting with the External Investigator on 12 February 2015. According to the minutes from that meeting, Mother A’s husband stated to the External Investigator that he had never seen Mother A so angry. This document was before the Panel.

The Panel considered whether there was evidence that the Teacher had been told of a sexual assault before the telephone call in October 2014. The Panel concluded that there was insufficient evidence to support such a finding. The Teacher was less clear in her evidence in relation to that matter. She said in cross examination that it might have been mentioned and then, when prompted by the Panel, said it had not. However, there was no evidence before the Panel that the details of the alleged “shower incident”, as described by Mother A in her evidence, were known to the Teacher. There was a reference in an email in 2011 in which sexual assault was mentioned but no detail was provided and, at that stage, the Teacher had not been asked to look into an allegation but to look for paperwork for Mother A as regards her son. The Panel did not consider that this email could properly be regarded as making the Teacher aware of a specific allegation.

In the view of the Panel, there was no evidence to support the conclusion that having become aware of an allegation of sexual assault the Teacher either failed to take appropriate action or failed in any way to follow child protection procedures.

In relation to allegations of physical assault, it was clear that there were incidents of physical assault against Pupil A. The position of the Teacher was that any allegations were dealt with appropriately. The position of Mother A appeared to be, both in her oral evidence and indeed in emails before the Panel, that the sanctions imposed were neither appropriate nor sufficient in severity. The Panel had only limited information contained in the IRF’s as to the nature and extent of the incidents and the sanctions imposed.

The Panel considered that they had not been presented with evidence such that they could be satisfied on the balance of probabilities that the incidents of physical assault had not been dealt with appropriately, and in particular that they warranted instigation of child protection procedures and that this was not done. The Panel preferred the evidence of the Teacher and did not accept that Pupil A was being verbally and physically abused on a daily basis. The general assertion by Mother A was not supported by the documents before the Panel or other witnesses. There was a complete lack of specification as to the physical assaults which took place, what was done or not done and what ought to have been done having regard to the child protection policies and procedures in place. Mother A’s concerns appeared to be largely that the sanctions were neither appropriate nor sufficient in severity. The Panel was not presented with evidence as to the nature or extent of any incident which would allow them to draw an inference that they were of such seriousness as to invoke child protection procedures. The Panel considered that it was being invited to reach conclusions as to the adequacy or otherwise of sanctions based upon a brief description of the incidents in IRFs and without information as to the needs and circumstances of the perpetrators. The Panel did not find allegation 1a) proved.

Allegation 1b)

Allegation 1b) related to an alleged failure by the Teacher to take appropriate action in relation to allegations of sexual misconduct by Pupil B. The Panel did not find this allegation proved.

The basis of this allegation was found in the evidence of Witness 2. It was she who received the complaint from the Adult Services Unit about the information they had allegedly not been made aware of regarding Pupil B. In that context, in the view of the Panel, it was critical that whilst the allegation did not specifically refer to an allegation of “pupil-on-pupil rape”, the Panel was clear as to the sexual misconduct allegation being referred to in the allegation. Witness 2 confirmed that, in both the investigation hearing stage and in her statement before this Panel, the information which the Adult Service Unit were not aware of, and which led to their complaint to her, was an alleged “pupil-on-pupil rape”. However, this had changed in her oral evidence and in cross examination where she had accepted that Pupil B was not alleged to have been concerned in “pupil-on-pupil rape”. Therefore, there can be no doubt in the Panel’s mind that there was no failure on the Teacher’s part to provide information to the Adult Service Unit of that nature because there was no such information to provide.
 
As such, the Panel was required to consider whether there were other allegations of sexual misconduct in relation to Pupil B in respect of which the Teacher failed to act. In the view of the Panel, there was no satisfactory evidence in this regard.

For the reasons set out, the Panel considered that Witness 2 was not a reliable witness. The Panel was left with considerable uncertainty as to what Staff Member 1 of the Adult Service Unit did in fact tell Witness 2. Rather, the Panel heard the evidence of the Teacher who set out her knowledge of Pupil B over a number of years and the steps taken in relation to the sharing of that knowledge with the relevant members of staff and interested parties. Witness 1 confirmed that the information, which the Teacher had received in the holidays regarding Pupil B’s behaviour in the community, was shared with her by the Teacher and appropriate steps were taken to assess the risk. The Teacher was clear that she instructed a named member of staff to carry out a risk assessment and that she saw the final version. She arranged for Staff Member 1 of the Adult Service Unit to receive the Pupil’s file.

Faced with the unsatisfactory evidence of Witness 2 and the clear evidence of the Teacher, the Panel considered that the evidence was insufficient to establish that the Teacher had failed to take appropriate action as alleged.

Allegation 3

The Panel did not find this allegation proved.

The Panel accepted the evidence of the Teacher. She produced information as to her supervision of the member of staff and her visits to the CDT classroom. It was clear from the Health and Safety report that the machines were in a dangerous condition. This, however, would not, in the view of the Panel, be a matter for the Teacher as the line manager of the CDT teacher. The CDT teacher was required to log reports on a service desk in relation to these matter and not with his line manager. The Panel accepted that the Teacher had been in the CDT classroom on a fairy regular basis and it had not been in the condition described in the report.

The Panel considered that they could place no weight on photographs produced as they were not dated and did not appear to form part of the Health and Safety report. In fact, it appeared that the photographs had been taken at some earlier time. The Panel was given no information as to when they were taken and who by and as such could not rely upon them.

It was of note that the Health and Safety report stated specifically that the author did not have regard to School A’s Health and Safety guidelines while compiling the report, and therefore, it was of no assistance to the Panel in identifying the aspects of the guidelines with which the Teacher had allegedly failed to comply. The Panel noted that the responsibility for Health and Safety in the guidelines ultimately lay with the Principal and not the Teacher.

The Panel was accordingly not satisfied that the Health and Safety report was sufficient to substantiate failings on the part of the Teacher as alleged in allegation 3 a) and b).

In relation to allegation 3d) regarding the failure to follow an instruction the Panel did not consider this allegation to be proved. 

In her evidence Witness 2 was adamant that she had given a clear instruction to the Teacher in her email to close the CDT classroom immediately and that it was a danger to life. The Panel considered that her very strident position in evidence seemed in contrast to her actions at the time. If it was such a significant risk and there was such a degree of urgency, which she sought to impart to the Panel, why did she not personally do more on the in-service day or on the morning before the SMT meeting to ensure the closure of the classroom? The facts as to what occurred during the period from when the health and safety report was received by Colleague 6 on the Friday of the October holiday until the Strategic Management Team meeting the following Tuesday are not in dispute. The events appeared to the Panel to suggest that the closure of the CDT classroom by the Teacher after the meeting was entirely in keeping with the priority which had been given to it in the correspondence which she had received and in light of the fact that both Colleague 6 and Witness 2 had been in a position to act and did not, relying instead on email communications. In that context, it seemed to the Panel that the actions of the Teacher and the timescale in which she took those actions were reasonable and did not amount to a failure to obey a direct instruction. In fact, she did as she was told following the meeting. Given it was apparent during the meeting that the CDT room was not closed, if it had been as urgent in the mind of Witness 2, as she maintained before the Panel, then the meeting could have been adjourned to deal with it but this was not done. There was no reliable evidence that pupils had been allowed in the CDT room. All of this should, in the view of the Panel, be seen in a context in which both Colleague 6 and Witness 2 had specific Health and Safety responsibility in terms of the guidelines.

For the avoidance of doubt, in reaching their decision the Panel placed no weight on the report of the Independent Consultant. The Panel considered that such a report and the views expressed within it could be construed as an attempt to usurp the function of the Panel both in terms of the assessment by them of the evidence before them and of any subsequent findings as to fitness to teach.

Disposal

On the basis that the Panel did not find the allegations proved, the case was dismissed.