The General Teaching Council for Scotland

General Teaching Council for Scotland Fitness to Teach Panel Outcome

Full Hearing

September 2019

 Teacher Teacher C present (represented)
 Registration Number XXXXXX
 Registration category Secondary - Geography
 Panel Arthur Stewart (Convener), Michelle Farrell and Diane Molyneux
 Legal Assessor Una Doherty Q.C.
 Servicing Officer Kirsty McIntosh (Vivien Whyte on 18 September)
 Presenting Officer Natalie McCartney (Anderson Strathern)
 Teacher's representative Andrew Faux (Counsel) and Sarah Linden (Solicitor)

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
  • COPAC means the Code of Professionalism and Conduct 2012; and
  • the ‘Register’ means the GTCS register of teachers.

Preliminary issues

1. Exclusion of documents in the Presenting Officer’s hearing papers

On behalf of the Teacher, Mr Faux made an application that pages 172- 189 of the Presenting Officer’s papers be excluded. Those pages included copy Facebook communications but with handwritten annotations which were prejudicial. A copy of the Facebook communications without handwritten annotations was located elsewhere in the Presenting Officer’s papers – the set at pages 172- 189 was a duplicate annotated version.

The Presenting Officer agreed to redaction of the annotated copies found at pages 172- 189.

Having taken legal advice and considered the terms of Rule 1.7.17, which allows admission of evidence subject to the requirements of relevance and fairness, the Panel granted the application.

2. Amendment of allegations

The Presenting Officer made an application to amend allegation 1 to correct the employment history of the Teacher. She sought to amend the first line of the allegation by deleting ‘Between July 2012 and December 2016 whilst employed by Local Authority C’ and substituting:
‘In 2012 when employed by Local Authority A, between 2013 and 2014 when employed by Local Authority B, and between 2015 and 2016 when employed by Local Authority C’. She submitted that there was no prejudice in allowing the allegation to be so amended. The application was not opposed.

Having taken legal advice, the Panel had regard to Rule 2.8.4 which allows amendment of the allegations unless the required amendment cannot be made without injustice. The Panel determined that the amendment could be allowed without injustice to either party. The Panel, accordingly, granted the application.

3. Witness statement in evidence without the witness attending

The Presenting Officer made an application to have the signed written statement of Witness A accepted as evidence even though she would not attend to give oral evidence. The Presenting Officer produced a late paper, a [information redacted] report dated 25 June 2019 by Medical Professional A. His advice was that Witness A had a current diagnosis of [information redacted], and that she should not give evidence, in the interests of her [information redacted]. No adjustments could be put in place to avoid the detriment to her [information redacted] by giving evidence.

The Presenting Officer submitted that Witness A was clearly a relevant witness and in her statement, and her interview during the local authority investigation, she spoke to the relationship she had with the Teacher. Although she would not be present to be cross-examined, the Panel could decide what weight to attach to her evidence.

On behalf of the Teacher, Mr Faux agreed that the [information redacted] produced made it clear that it may be deterimental to Witness A’s health to give evidence. He accepted that her witness statement was admissible, and that the Panel would require to balance her account with the Teacher’s account, without the benefit of hearing her give evidence.

Having taken legal advice, the Panel considered the terms of Rule 1.7.23, which allowed evidence by way of a signed written statement, and the Fact Finding in Fitness to Teach Conduct Cases Practice Statement section on hearsay evidence. The Panel considered the terms of the report by Medical Professional A and was satisfied that this evidence justified Witness A’s non-attendance and that her signed written statement could be used in evidence. 

4. Late witness statement and witness

The Presenting Officer made an application for the late admission of a witness statement of Witness B at the local authority, who was available to give evidence. On behalf of the Teacher, Mr Faux advised that the Panel should see the statement prior to hearing his opposition to the late receipt of this witness statement.

Having read the statement, the Panel was then addressed on the application. The Presenting Officer advised that Witness B was a proposed witness now at this late stage because of Witness A’s inability to give evidence at the hearing. It was only recently that the Presenting Officer knew that Witness A would not be able to attend. Witness B had interviewed Witness A during his investigation. The Panel would be assisted by what he would say as to how she presented to him, how clearly she could recall events and the timeline involved.

On behalf of the Teacher, Mr Faux referred the Panel to Enemuwe v NMC [2013] EWHC 2081 (Admin). There the High Court allowed an appeal against a decision of the Conduct Committee of the NMC because the Committee had been influenced by the findings of the previous supervisory investigation report [paragraphs 77- 91]. Mr Faux stressed that findings in fact made at an earlier investigation are not admissible. He referred to Witness B’s comments on COPAC and other opinion evidence in his statement. He submitted that the absence of Witness A from the hearing did not legitimise now calling Witness B as a witness.

The Presenting Officer accepted that the Panel should not have regard to the outcome and findings in Witness B’s investigation report. She submitted that his statement would be helpful as Witness A could not attend.

After hearing legal advice, the Panel considered again the terms of Rule 1.7.17 and 1.7.22, and the general objective set out in Rule 1.3.7 to deal with cases fairly and justly. The Panel noted that some aspects of the statement were opinion rather than factual evidence. Much of the statement was a repetition of what Witness B had been told by interviewees. The Panel was satisfied that some parts of the statement described Witness B’s view of Witness A’s demeanour when she was interviewed. The Panel required to consider if the evidence in the written statement was relevant and fair. The Panel considered the whole statement and determined which parts of it would be relevant and fair to include in evidence. The Panel decided to allow the application but under redaction of certain paragraphs. A redacted version [P10] was provided to the Presenting Officer and to the Teacher’s representatives.   

Allegations

The following allegations were considered at the hearing:

  1. In 2012 when employed by Local Authority A, between 2013 and 2014 when employed by Local Authority B and between 2015 and 2016 when employed by Local Authority C, you did form an inappropriate relationship with a former pupil, in that you did:
  1. communicate in an inappropriate manner by way of text messaging and social media, including:
  2. send photographs of a sexual nature to the former pupil; and
  3. engage in sexual activity with the former pupil

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 1.2, 1.3 and 1.6 of the General Teaching Council for Scotland’s Code of Professionalism and Conduct.

Teacher’s admissions

The facts of allegation 1(a) were admitted.

The facts of allegations 1(b) and (c) were admitted. As these allegations did not give particular details or dates, there remained a dispute on what exactly had occurred. Accordingly, evidence was to be led in relation to the circumstances which had led to the admitted conduct.

There was no admission of current impairment or unfitness 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 Witness C (in attendance)
P2 Witness statement of Witness A (not in attendance)
P3 Witness statement of Mother A (in attendance)
P4 Witness statement of Father A (in attendance)
P5 Letter from Local Authority C to GTCS, dated 8 August 2017
P6 Investigation Report by Local Authority C and appendices thereto
P7 Copy communications provided by Witness A
P8 Local Authority C’s Code of Conduct
P9 Local Authority C’s Use of Social Media Guidance
P10 (late document) Witness statement of Witness B (in attendance)

Teacher’s hearing papers

T1 Notice of Teacher’s Case Form
T2 Index prepared by Teacher’s representative
T3 Witness statement of Teacher A
T4 Witness statement of Witness D
T5 Witness statement of Sarah Linden
T6 Thank you card from Witness A
T7 Thank you card from Witness A
T8 Statement/list of achievements prepared by Witness A
T9 Email exchange between Witness A and Teacher A
T10 iPad receipt
T11 Screenshots of messages exchanged between Witness A and Witness D (2016)
T12 Screenshots of messages exchanged between Witness A and Witness D (2017)
T13 Testimonials from various individuals
T14 Testimonials from various individuals received at later date
T15 Testimonial from Testimonial A
T16 Testimonial from Testimonial B
T17 (late document) Screenshots of messages exchanged between Witness A and Witness D (2016 and 2017).
T18 (late document) Documents submitted with anonymity application

Servicing Officer’s hearing papers

S1 Notice of hearing dated 5 August 2019 with email delivery and read receipts
S2 Notice of Hearing Response Form dated 14 August 2019
S3 Procedural Hearing decision (redacted)

Late papers during hearing

During the witness evidence led by the Presenting Officer, there was mention of further relevant Facebook messages being available. These were obtained and provided to the Teacher’s representative. An application was made by the Teacher’s representative for these messages to be admitted as a late document. There was no objection to this. Having taken legal advice and been referred to Rules 1.7.17 and 1.7.22, the Panel agreed to admit the late document as relevant to the matters being considered and there being no unfairness in its late admission as a document.  This document is known as document T17.

Summary of evidence

The Presenting Officer led evidence from Witness C, Father A, Mother A and Witness B.

Witness C

Witness C spoke to her witness statement (P1) and to her interview during the local authority investigation (P6). She explained that she first met Witness A in December 2016 when Witness A [information redacted]. Because of the [information redacted], Witness A [information redacted] for a period from 20 December 2016. She returned to Witness C’s care [information redacted] on 20 February 2017. Her diagnosis then was [information redacted]. By February 2017, [information redacted]. Witness C saw her at least twice a week from that time. Witness A told Witness C about her relationship with the Teacher. She said she had had a sexual relationship with him, that she had been told to keep it secret and that she felt bad. She said that the Teacher had contacted her on Facebook when she returned from a 6th year trip abroad in 2012. Witness C thought there was a power imbalance in the relationship. Witness A said that the sex was rough and that the Teacher did not treat her well when she was with him. She said that the first sexual encounter was in a car in an industrial estate in October 2012. She knew the Teacher was living with his fiancée, and felt deceitful keeping the relationship secret from family and friends. Witness C said that it caused Witness A significant personal distress. Witness C advised her to stop having contact with the Teacher. Witness C’s impression was that there had been a huge breach of trust, that the Teacher and former pupil should not have had a sexual relationship, so she reported it to the police. Although police charges were not brought, as the police were of the view that no criminal act had been committed due to the Teacher and former pupil not being at the same school, and the pupil was over the age of 16, Witness C still believed that this relationship was based on power inequality and was a breach of trust, with very serious consequences for Witness A’s [information redacted]. She thought it had contributed to her [information redacted]. Witness A showed many features of sexual trauma - she blamed herself, she had no self-esteem, she had significant difficulties with men. It had been her first sexual relationship and had coloured her view of relationships, sex and her self-worth. When the police advised that they would not pursue charges, Witness C contacted the GTCS and the local authority.

When cross-examined, Witness C agreed that Witness A had been vulnerable. Witnes A had said she had not had previous relationships with boys. Witness C accepted that patients want to present themselves in the best way, but given what Witness A had told her, she did not get the impression that Witness A was evading difficult issues - she had felt guilt and took some responsibility. Witness C did not believe that Witness A had fabricated what she told her, although she accepted that some things were potentially omitted. She agreed that she could only say that the Teacher’s actions contributed to rather than caused [information redacted], as causation of [information redacted] is complex. In re-examination, Witness C said that she had no doubt that the relationship caused Witness A [information redacted] and that it was a contributing factor in her [information redacted].

Father A
 
Father A, Witness A’s father, confirmed that he had provided the statement signed by him and dated 28 December 2017 (P4), and that he had signed the record of the local authority fact finding interview (P6 at pages 71- 79). He explained that Witness A had suffered some [information redacted] at primary school but he could not recall if [information redacted] were involved. He was not aware of her having ongoing regular boyfriends, prior to her relationship with the Teacher. He recalled meeting the Teacher at parents’ evenings at school - he thought the Teacher was enthusiastic. He recalled being with Witness A shopping in July 2012 when she told him that she had just received a message from the Teacher asking about her school trip abroad. She seemed surprised and asked her father what to do.  He said to just send a message back. He was not concerned at the time.

Witness A went to university in 2012 but it was a false start and she subsequently gave up. Her behaviour was very up and down. In May 2013, she [information redacted]. They said that there had been a relationship which had gone wrong. Witness A did not tell him then about a relationship with the Teacher. He described an incident in December 2016 when [information redacted]. He and his son had witnessed this. [information redacted]. He explained that some time later Witness C had told him and his wife about the relationship with the Teacher. He was in no doubt that the Teacher should not have had that relationship. He wanted the police to be involved. He gave the police Witness A’s phones and laptops. He was shocked at what was found. The police returned the equipment to him, saying that no criminal act had been committed. He arranged to print out messages including photographs he thought were relevant, anything inappropriate, to give to Witness B who was conducting the local authority investigation. He printed out the key ones and gave them to Witness B. He described the serious impact on the family. He described Witness A now as being very quiet.

Mother A

Mother A adopted her signed witness statement as her evidence (P3). She confirmed that the record of her interview with Witness B was true and accurate (P6 at pages 71- 79). She spoke about the [information redacted] at primary school, and the lack of trust she had in teachers as a result. Mother A explained that Witness A did not have [information redacted] issues pre-2013, but did detail that when she was in primary school Witness A experienced some challenging [information redacted] and had been referred for some [information redacted] help. She described the Teacher as having had a positive, calming influence on Witness A when she was at school. Witness A had talked about him, he seemed to be her favourite teacher. He taught her from 2nd to 5th year. Mother A was not aware of Witness A having boyfriends prior to leaving school, but if so, these relationships were  shortlived. After school, Witness A started at university studying teaching, while still living at home. Witness A’s behaviour changed from about September 2012 - she was drinking and was withdrawn. In May 2013, [information redacted]. The [information redacted] told Mother A that a first love had come to an end. Mother A asked Witness A about this when she was home from hospital. In around July 2013, Witness A told her it was the Teacher, and she had met him a few times from September 2012 onwards. Witness A told her about being in a car with him in the industrial estate. When speaking about the Teacher, Witness A referred to him by his title and surname, as normally used in the school setting, rather than the use of his forename.

Mother A spoke to Witness A [information redacted] from December 2016. At that time, Mother A saw notifications coming up on Witness A’s phone, which were messages from the Teacher. Later, when Mother A opened up Skype on Witness A’s open laptop and saw the messages there, she had a ‘light bulb’ moment. She felt that it was proof of what had been going on for 4 years. She also spoke to her interview (P6 at p75) when she explained that Witness A had phoned her from hospital and said she still spoke to the Teacher. Witness A seemed to think that everyone knew what had been going on, particularly as the Teacher messaged her about them both knowing Witness D. This seemed to make Witness A more paranoid.

Mother A spoke to her understanding of the messages to and from Witness D in March 2017, in that Witness D was desperate to meet up with Witness A.

Mother A described her daughter as still being a girl who cannot cope with life, who can [information redacted] again very quickly. This can be triggered when she sees people who she thinks may know about the relationship with the Teacher.  

Witness B

Witness B adopted his signed witness statement as his evidence (document P10). He confirmed that he had compiled the investigation report at document P6.

Witness B was asked to conduct a fact finding investigation in relation to the allegation that the Teacher had an inappropriate relationship with a pupil he had taught when he had been employed at her school. The alleged relationship began after the pupil left school. He was not given any documentation by the police.  The police informed him that there had been no crime since the Teacher was not a teacher at the pupil’s school at the time of the relationship, (although Witness A was aged 17 at the time and so regarded as a child under 18). Father A provided him with copy messages, including photographic images. These were at appendix 10 of the investigation report, apart from images of the Teacher which he had thought inappropriate to include in his report. He had handwritten dates on some messages; other messages had Father A’s handwritten dates on them.

Witness B spoke to his interview of Witness A on 12 May 2017, during which she had been accompanied by [information redacted]. He described her as being able to recollect clearly and said that she spoke well. She lacked a bit of confidence but had moral support from [information redacted]. She was vulnerable, lacking confidence but the details she gave were clear. When referred to the messages between the Teacher and Witness A, his evidence was that, by August 2012, there was sexual content in the messages but he did not know when the images were sent. When referred to the record of his interview of Witness A (document P6 at page 62-63), he confirmed that it recorded that she said that the first sexual encounter was in a car in October 2012, when the Teacher said it was a dirty little secret between them. On cross-examination, Witness B maintained that he was clear, from what had been said, that there had been sex by then, although the words sexual intercourse were not in that record of the interview. He was clear that it was not just kissing, as was suggested to him in cross-examination. He explained that he took out some pages from the documents given to him by Father A, and just included with his report what was relevant. At the time of his report, he destroyed what was not relevant. 

The Teacher led two witnesses: himself and Witness D.

Witness D

Witness D adopted her witness statement as true (document T4). She explained that she had not pushed Witness A to meet her in 2017. When Witness A contacted her out of the blue, she thought it would be nice to meet up as she had been Witness A’s mentor during a previous teaching placement. They were Facebook friends. She had thought Witness A to be a good teacher, that she was confident, while noting that she was openly flirtatious with one newly qualified teacher during that placement. At that time, she did not know about the allegation against the Teacher or that Witness A [information redacted]. She and Witness A met on 19 April 2017. Witness D had found out about the allegation against the Teacher the day before, when the Teacher had messaged her and said he was unwell [information redacted], that the allegation had been made that he had had a relationship with Witness A while she was a pupil, [information redacted]. Witness D had been shocked by the allegation – Witness A had spoken highly of the Teacher. When she met Witness A on 19 April 2017, she told Witness A that the Teacher was [information redacted]. She described Witness A’s reaction, and her saying he will get what he deserves. She explained that she became upset because she understood the allegation was that the relationship was while Witness A was the Teacher’s pupil. She thought that was false, because of what Witness A had said before about the Teacher helping her.

Witness D confirmed that she and the Teacher were colleagues and friends from May 2016, but began a personal relationship in January 2018. She is now engaged to the Teacher: they live together and have a child together. With reference to the suggestion that the Teacher’s sexual interaction with Witness A had been rough, she stated that Teacher is not rough, he is a gentle, caring person. He had told her that he had had a brief relationship with Witness A.

The Teacher

The Teacher confirmed that his signed witness statement was true (document T3).

In relation to naked images sent to Witness A, the Teacher did not know the exact date that they were sent but thought it was after 14 September 2015 when he purchased a white iPad visible in some images.

He explained some of the testimonials lodged. Document T14:1.16 is from a former pupil. Document T13:1:15 is from a former pupil, not one of the Teacher’s students but a pupil at the school who was able to participate in a school trip because of the Teacher’s help. The Teacher claimed that, as a teacher, he always gave everyone a chance and did not discriminate against boys. He would ensure that he knew about his pupils’ achievements. He was expected to know how his pupils were doing in comparison with other subjects.

He described his sexual activity with Witness A as irregular. They had infrequent contact. It was normal sexual activity.

He explained that he had panicked when the allegation was made in April 2017.  He ‘wiped’ his iPad and laptop because he did not want his family to see the messages and photographs. He regularly shared devices with his family, and his then partner had access to his devices and passwords. [information redacted].

He explained some of the messages. When he told Witness A to keep quiet about what they were doing, that was because he was cheating on his fiancée, and not just with Witness A. He perceived Witness A as no longer a pupil, but as a colleague or contemporary because she was studying teaching. He denied that he had tried to persuade Witness A to appear partially clothed or in lingerie, in their video chats.

When asked what he thinks now of how he had behaved, he said he is not that man anymore. If Witness A was here, he would apologise profoundly to her. He would explain that he sees things differently now, and that he is a different person. He hopes that she finds happiness as he has with his fiancée and child. He hopes that they are both able to put the episode behind them and move on. He said ‘I don’t think I can say sorry enough.’

He believed that teaching was his vocation. He would love to return to teaching. His fiancée is a teacher. He still discusses teaching with her, and reads the GTCS magazine. He would intend to return to the classroom in some capacity at some point in the future.

In cross-examination, he confirmed that, at the time, he had thought he and Witness A were two consenting adults, but he recognised now that she was not just like any other adult as she was his former pupil. He had not read COPAC cover to cover. He had not been aware of it in sufficient detail, or the previous version of the Code. He understands now that the definition of a pupil extends beyond the date she leaves school and the professional boundaries can extend beyond that. He now accepted that, as a teacher, he had a relationship of trust with Witness A, even after they had both left the school. His perception has changed. He recognised that his admitted conduct was serious.

In relation to the initial contact with Witness A in 2012, his position was that this was in response to her Facebook request to him. He now realises that he should not send messages to former pupils through social media. He accepted that he should not have sent a message to her. He does not use social media now apart from Twitter.

His position was that they first had sex in November 2012. They had met up previously but just kissed then. When referred to the messages, he maintained his position that he did not want others to know about the relationship because he was cheating on his fiancée and also because Witness A was going into teaching. No video chat of a sexual nature took place prior to them first having sex.

In response to questions from the Panel, the Teacher explained that the Child Protection training he had undertaken had not focussed on situations when a pupil had left school. In relation to making regular reference to COPAC, he said that the reality is that the focus is on teaching, not on ‘talking through’ COPAC. He explained that he regretted his actions. The relationship was not a conventional girlfriend/boyfriend relationship. He regretted that Witness A may have invested more in the relationship than he did, and he ended it in a way that had hurt her. He regretted starting the relationship. It was not a romantic relationship. He saw her four times in total; it was mostly conversations rather than meetings. He did not socialise with her. He appreciated now that GTCS and the public would think that this relationship was a serious matter. His understanding now is that it should never happen when someone has been in a position of trust. At the time, he did not see it as an abuse of trust but can see that now.

Otherwise he said he had upheld the standards of the profession during his career; colleagues would come to him for advice. He referred to the testimonials lodged on his behalf and his passion for teaching reflected there. He still had a lot to give to the teaching profession. He had been ambitious and had probably progressed too quickly but he had insisted on having a teaching commitment even when in a management position.

If he was allowed to remain on the Register, he would complete the Masters Degree which he had been undertaking (and which had a further year of study left). He may continue the degree part-time and seek a part-time teaching post. He wanted to return to the classroom but only after having reflected on these proceedings.

The Teacher claimed that he had remedied his previous lack of judgment. He had suffered serious ill-health and had undergone [information redacted]. He uses a reflective journal daily, which helps his [information redacted]. His current degree course included Professional Ethics, and he had gained the top mark. He is very familiar with the requirements of COPAC now. He is committed to self-improvement. Although he recognises now that his fitness to teach was impaired at the time he had a relationship with Witness A, it is not impaired now. He had reflected on what had happened every day. Everything has changed in his private and professional life. He is committed to upholding the standards of COPAC. He has to live with the fact that he failed a former pupil.

Panel’s decision

Credibility and reliability of witnesses

The Panel considered that Witness C was a credible and reliable witness. She was well qualified and an expert in her field.  She gave careful, considered evidence.  The Panel considered that she gave her evidence in an objective manner.

Father A was a credible and reliable witness, whose evidence accorded with other evidence. He clearly stated when he did not recall details.  He was open about the Teacher being a good teacher, which lent weight to his credibility.  He did not come across as someone who was ‘out to get’ the Teacher.

Mother A was a credible and reliable witness. She gave her view of what had happened, which accorded with her written statement.  Again, she was clear that she had considered the Teacher to be a good teacher and so did not appear to be ‘out to get’ him.

Witness B was a credible witness, but not consistently reliable given that his investigation did not record all details or contain verbatim records of interviews.

Witness D was credible and reliable, but she was not a witness to the conduct. She spoke only to her view of the Teacher (her fiancée) and of Witness A.  Accordingly, the Panel did not place much weight on her evidence.

The Panel considered that the Teacher was not wholly credible and reliable. His explanation for not regarding his relationship with Witnes A as inappropriate (since he was a teacher and she was a former pupil) was not credible, which is outlined further below in the section on Findings on Fitness to Teach. There were discrepancies between his written statement and his oral evidence e.g. in relation to why he met her for the first time. The Teacher said in his oral evidence that Witness A asked him about books to buy and he had a teacher’s toolkit that he thought may be useful for the primary setting. In the Teacher’s written statement he states that ‘it was on this basis I had offered her my geography books and we had arranged to meet so I could give them to her’. His explanation for deleting messages so that his family did not see messages and images was not credible - if they had access to his passwords, his family could have seen them earlier and not just after allegations were intimated.

Witness A did not give oral evidence, although her written statement was part of the evidence. Given that her evidence had not been, or was not able to be tested through questioning, the Panel treated her written statement with caution. The fact that the Teacher had admitted the facts and that there was misconduct meant that less reliance was required to be placed on Witness A’s statement. Messages between her and the Teacher were documented separately from her statement. Other witnesses spoke to her behaviour, her attitude to the Teacher and the consequences of the relationship.  

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.

Given the Teacher’s admissions, the Panel found the allegations 1(a), 1(b) and 1(c) proved.

Findings on fitness to teach

Given that the Panel found that all of the allegations were proved, and that evidence had already been led on the issue of fitness to teach, the Panel invited the parties to make submissions in relation to the Teacher’s fitness to teach. The Presenting Officer and Mr Faux both made submissions with reference to the Conduct Cases - Indicative Outcomes Practice Statement. Both parties referred to various case law. Mr Faux admitted that the proved allegations amounted to misconduct, but not that there was current impairment of the Teacher’s fitness to teach.

The Panel gave careful consideration to all of the evidence presented and submissions made by the parties in relation to the Teacher’s fitness to teach. Although it was proved that there had been an inappropriate relationship between the Teacher and Witness A which involved sexual activity, the Panel first considered certain factual disputes as to what occurred, and when, in the relationship.  These discrepancies had been raised by the parties and so the Panel considered its position in relation to them.

TImeline
The Panel noted that there was a discrepancy in the evidence as to when sexual intercourse first took place: according to Witness A’s statement, it was in October 2012; the Teacher’s evidence was that it was in November 2012. The Panel considered that this discrepancy was not of particular significance and could be the result of a simple error. The first sexual intercourse took place only a few months after the first message in July 2012; Witness A had left school in June 2012; the Teacher had left Witness A’s school in October 2011 (9 months previously).

Messages
The Panel noted the messages (document P6: Appendix 10, marked Communciation B) which the Presenting Officer claimed supported the assertion that the Teacher had asked Witness A to remove her clothing in front of the video camera, at a time prior to their first having sex. The Teacher’s explanation for these messages was that Witness A was shy being on camera, so they just had a chat. The Panel was not satisfied that these messages demonstrated that the Teacher was trying to persuade Witness A to remove her clothing for the video camera.

Knowledge
The Panel considered whether the fact that the Teacher had told Witness A to keep their relationship a secret was a result of his understanding at the time that, from a professional point of view, the relationship was wrong, or due to the fact that he did not want others to know about it because he had a fiancée.

Having carefully considered all of the evidence, the Panel was not satisfied that, at the time, the Teacher had no insight that the relationship was wrong because he had been Witness A’s teacher when she was a pupil at his former school. The reason the Panel formed this view was because there was a message from the Teacher (document P6 p121) which included the words “If only I wasn’t a teacher”, which was said in the context of discussing him potentially dancing with Witness Aat prom. This was an acknowledgment of his consideration of his role as a teacher and his understanding that dancing with her would be inappropriate. Despite that, he went on to have a sexual relationship with her. His explanation that he thought of Witness A as a friend/colleague/contemporary, even when the relationship started, was not credible. When contact was first made in July 2012, Witness A had very recently left school and was not yet a student. Their connection was as teacher/former pupil, not friend/colleague/contemporary. The Teacher’s message (document P6 p104) that Witness A should feel privileged that he was talking to her also suggests this, although in his evidence the Teacher tried to explain this simply as a flippant remark. Although the Panel accepted that the Teacher may not have been aware of the precise terms of COPAC and its commentary (which set out that the professional relationship with a pupil extended to a former pupil), it did not believe that he had no insight into the need for professional boundaries with a former pupil and the fact that a sexual relationship with a former pupil, who had recently left school, crossed those boundaries.

Having considered the discrepancies outlined above, the Panel then addressed the relevant considerations in relation to fitness to teach, as outlined in the GTCS Indicative Outcomes Guidance.

Stage 1
The Panel first considered whether the Teacher’s conduct at the time fell short of the expected professional standards.  In other words, did the allegations found proved amount to misconduct? The Panel noted the admission by the Teacher that the conduct amounted to misconduct. Separately, the Panel was satisfied that the Teacher’s conduct had fallen short of what was proper in the circumstances and contravened various parts of COPAC, namely:

  • 1.2 you must maintain appropriate professional boundaries, avoid improper conduct or relationships with pupils and respect your unique position of trust as a teacher
    The Teacher admitted that he had breached the professional boundaries and his conduct had not been appropriate.
  • 1.3 you should avoid situations both within and outwith the professional context which could be in breach of the criminal law or may call into question your fitness to teach
    Although there was no criminal behaviour, his conduct called into question his fitness to teach.
  • 1.6 you should maintain an awareness that as a teacher you are a role model to pupils
    By having an inappropriate relationship with Witness A, he had failed to act as a role model.

Stage 2
Having found that the proven allegations amounted to misconduct, the Panel then considered if the Teacher’s fitness to teach is currently impaired. In terms of Cohen v GMC [2008] EWHC 581 current impairment involves a consideration of whether the shortfalls were remediable; whether they had been remedied; and whether there is a likelihood of recurrence.

The Panel considered the seriousness of the misconduct and whether it was remediable. It considered that the conduct was very serious. The Teacher had acted deliberately. The conduct was sustained and planned. The short timeframe between Witness A leaving school and the relationship commencing was very important. The messages from July 2012 moved rapidly to being flirtatious and then to a sexual relationship within a few months. The Panel considered that there had been a significant breach of trust on the Teacher’s part. He had been her teacher for four years, although not during her last year of school. There was a serious breach of trust with a sexual element. The onus was on him, as an experienced teacher, to avoid such situations. The conduct continued over a number of years, although the actual number of times the Teacher and Witness A met was small. The Panel considered that there was a power imbalance between the Teacher and Witness A. The Facebook messages evidenced that their knowledge of each other was based on the teacher/pupil relationship and not as friends/colleagues.  It was also evident from the messages from the Teacher to her e.g. stating that she should be privileged that she was speaking to him. The Facebook messages were clear that Witness A respected him as her teacher and she disclosed her vulnerabilities to him e.g. [information redacted].  The Panel considered that the Teacher had seen an opportunity to engage in some kind of relationship and had not considered what effect his actions might have had on Witness A, given that she was only 17 years old and had just left school. He had also not considered the trust that Witness A had in him. Given all of these factors, after careful consideration, the Panel concluded that, in the circumstances, the very serious conduct was fundamentally incompatible with being a registered teacher, and therefore was not remediable.

During its deliberations regarding whether or not the conduct was remediable, the Panel had taken account of the other factors outlined in the IOG that are to be considered at Stage 2. The Panel noted that the Teacher had engaged with the GTCS process, although he had destroyed evidence at the outset of that process and his explanation for that was unsatisfactory. He had sought [information redacted], but that was after the allegations were made and had not contributed to his conduct towards Witness A at the time. He had shown remorse. He was now very familiar with the terms of COPAC. His evidence was that he understood now that, between a teacher and a former pupil, there is a power imbalance within the relationship which can extend far beyond a pupil leaving school. His position remained, however, that he had not appreciated at the time that his relationship with Witness A was inappropriate and a breach of trust. As noted above, the Panel did not accept the Teacher’s position on this as credible, and considered that the Teacher continued to show a lack of insight in this respect.

In relation to potential recurrence of the conduct, the Panel noted the serious consequences which the allegations have had for the Teacher. It noted his evidence that he is a completely different person now, that everything has changed in his private and personal life, that he has learned from what had happened, and that he is committed to upholding the standards of COPAC. The Panel accepted that the Teacher had remedied his understanding of the behaviour and felt that there was a low risk of reoccurrence.

However, having taken account of all of these factors, as noted above, the Panel concluded that the conduct was fundamentally incompatible with being a registered teacher and was not remediable. The Panel further concluded that the Teacher’s misconduct was so serious that it fell significantly short of the standards expected, not merely short of those standards. As a result, the Teacher is unfit to teach.

The Panel also considered that, even had they considered that the conduct was remediable and had been remedied, the public interest required there to be a finding against the Teacher that he is unfit to teach. This was necessary to maintain the public confidence in the teaching profession and in the GTCS as regulator. His conduct had violated a fundamental tenet of the relationship between teacher and pupil (albeit in the context of a former pupil) and thereby undermined public confidence in the profession. In reaching this view, the Panel took into account that the public interest can include allowing a competent teacher to remain within the profession and, in this case, there were many testimonials in support of the Teacher’s teaching skills. The Panel still considered, however, that in this case where the conduct was significantly short of what was required of a registered teacher and fundamentally incompatible with being a registered teacher, the public interest required a finding that the Teacher is unfit to teach.

Disposal

As the Panel determined that the Teacher is unfit to teach, in accordance with the terms of Article 18(2)(b) of the Public Services Reform (General Teaching Council for Scotland) Order 2011, it directed that the Teacher’s name be removed from the Register.

Once the Teacher’s name has been removed from the Register, it remains so removed unless and until an application for re-registration is made by him and a Fitness to Teach Panel directs that the application be granted. The Panel heard submissions from the Presenting Officer on the appropriate period of time to prohibit an application for re-registration. The Panel referred to the Indicative Outcomes Guidance again. It directed that the Teacher should be prohibited from making an application for re-registration for the maximum period of two years from the date of the decision. The Panel considered that this was an appropriate period of time given the seriousness of the conduct and the breaches of fundamental standards.

Application for anonymity

An application for anonymity for the Teacher in the published decision was made. A late document was produced by Mr Faux in support of this application. There was no objection to this late document. The Panel agreed to admit the late document as relevant to the matters being considered.  This late document is known as “T18 Documents submitted with anonymity application”, which contained copy letters from Medical Professional B, dated 20 February 2019 and 19 June 2019.

With reference to the letters from Medical Professional B, Mr Faux submitted that the Panel should be mindful of the Teacher’s [information redacted], and the potential serious detrimental effect to his [information redacted] as a result of publication of his name. He submitted that legitimate public interest aims did not require the Teacher to be named. The published decision would set out the conduct which had occurred between a former pupil and a teacher, that this was a breach of trust and had caused significant harm, and that the Panel considered the Teacher to be unfit to teach. That was sufficient to uphold standards and confidence in the profession and the regulator. He asked the Panel to consider a less intrusive measure than identifying the Teacher.

The Presenting Officer drew the Panel’s attention to the Health Matters and Medical Evidence Practice Statement, the fact that both the Teacher and Witness A had been given vulnerable witness status within the proceedings and the hearing had been held in private. The default position in the Rules is that any vulnerable witness will have their identity anonymised both before, during and after the proceedings.  However, the Panel that had made the decision to grant vulnerable witness status to the Teacher had specifically stated that the anonymity of the Teacher should be considered and determined by the Full Hearing Panel.  The Presenting Officer referred to the Privacy and Anonymity Practice Statement, which confirmed that the bar is set high for anonymity and cogent reasons are needed for it to be granted. The Panel required to weigh the gravity of the conduct against the medical evidence.  The Panel required to determine whether the Teacher’s interests in anonymity outweighed the public interest.

Having taken legal advice, the Panel considered this application. Given the medical evidence available, it was concerned about the real risk of deterioration in the Teacher’s [information redacted] if his name was published. He had been a vulnerable witness at the hearing. The Panel appreciated that there was a public interest in knowing that a particular individual is unfit to teach, but noted that, even without naming him, the published decision would make clear that the misconduct was serious and fundamentally incompatible with being a registered teacher. Public confidence in the standards of the profession and GTCS would be maintained. The Panel decided to grant the application on the basis of the serious risk to the Teacher’s [information redacted], including [information redacted].

Appeal

The Teacher has the right to appeal to the Court of Session against the decision within 28 days of service of the Decision Notice. The Teacher’s name will remain on the Register until the appeal period has expired and any appeal lodged within that period has been determined.