Decision making
Please see the diagrams at the beginning of the practice statement for a general overview of the decision-making process for TROs.
A panel will apply the same test in the decision-making process, whether or not they are considering the application at a hearing or a meeting.
A panel’s consideration of whether or not to impose a TRO involves two key stages:
- Stage 1: determining whether the ‘legal test’ is met: are there circumstances which, on the face of it, might cause the teacher’s name to be removed from the Register?13
- Stage 2: determining whether or not it is proportionate and necessary for a TRO to be imposed in the circumstances
This is a current test. A panel will require to consider whether or not the TRO is proportionate and necessary at the time of considering the application. The teacher and presenting officer will have been given the opportunity to comment on each of the above stages as part of any written representations provided. If a hearing is held, the parties will have the opportunity to make further submissions to a panel at each stage. The factors relevant to each stage are explained in further detail below.
It is accepted that there will likely be some overlap in the considerations at each of the two stages.
Stage 1 – the legal test
In deciding whether or not the legal test is met, a panel must decide whether there are circumstances, on the face of it, which might cause the teacher’s name to be removed from the Register15. The nature of the legal test presents a panel with a wide-ranging discretion to impose a TRO.
As temporary restriction hearings/meetings generally occur before the investigation into the circumstances is complete (and often at a very early stage in the investigation), it is unlikely that all of the evidence relevant to the case will be available. This means that a panel must reach its decision on the basis of the evidence and submissions it has available at the time of the hearing or meeting. As a result, it is not appropriate for a panel to determine whether or not the allegations are proved in the way that it would at a full hearing.
Nevertheless, there must be some evidential basis to the concerns surrounding the teacher’s fitness to teach. In approaching the legal test, a panel should consider the evidence as a whole and have regard to the overall strength of the evidence. This will assist a panel in assessing the seriousness of the allegations, which must be made on the basis of how a reasonably informed member of the public, aware of all of the relevant facts, would view this16. While a panel can reject evidence if the teacher proves this is manifestly unreliable, unfounded or exaggerated, a panel should usually take the evidence at its highest17. In other words, a panel should consider whether there is evidence, on the face of it (otherwise known as prima facie evidence), of circumstances which may cause the teacher’s name to be removed from the Register. A panel should have regard to any conflicting evidence the teacher produces but it should not enter into any formal process of weighing conflicting pieces of evidence and making findings of facts or resolving disputes of facts18.
It is important to note that the test is that the teacher’s name might come to be removed from the Register, not that it necessarily will. However, the allegations need to be sufficiently serious for this threshold to be met. Examples of such behaviour can be found under the heading ‘Examples of behaviour’ below although it is important to note that this list is indicative rather than exhaustive.
If a panel decides that the legal test is not met, no TRO will be imposed.
If a panel decides that the legal test is met, a panel will go on to consider Stage 2. It is at a panel’s discretion at any hearing as to whether they wish to hear submissions from parties in respect of Stage 1 and Stage 2 together or separately.
Stage 2 – should a TRO be imposed?
A panel should then assess the risk of not imposing the TRO, having specific regard to the ground or grounds relied upon for the TRO (public protection, public interest and/or the interests of the teacher), as well as the rights of the teacher.
A panel should consider the proportionality of a TRO in the circumstances, bearing in mind that any decision to restrict an individual’s professional practice amounts to an interference with their Article 8 rights (right to respect for private and family life)19, and that the consequences of the TRO for the teacher must not be disproportionate to the potential harm. The question for a panel is whether the restriction of the teacher’s registration is necessary to guard against the risk to the public or in the teacher’s interests. It is not appropriate to impose a TRO simply because it is considered to be desirable.
A panel should balance the following factors in determining whether a TRO is necessary and proportionate in the circumstances of the case:
- the nature and severity of the circumstances alleged
- the severity of any alleged harm caused to children, colleagues and the wider public (including physical, mental, emotional, educational and financial harm)
- the alleged risk of harm that the teacher presents to children, colleagues and the wider public (including physical, mental, emotional, educational and financial harm)
- likelihood of recurrence: how likely is it that the teacher will repeat the same conduct that has been alleged?
- severity of potential harm if the alleged conduct was repeated (including physical, mental, emotional, educational and financial harm)
- insight and/or remediation evidenced by the teacher, for example, written reflections or evidence of training courses attended
- the teacher’s previous and/or current fitness to practise history where relevant (whether or not this relates to registration with us or another regulator)
- the impact that a TRO would have on the particular teacher, for example, would the imposition of the TRO have financial or professional consequences, and to what extent? Is the teacher currently out of employment and therefore prevented from seeking further work in a teaching capacity if a TRO is imposed? Would this stop the teacher from taking steps to demonstrate remediation? Having regard to the teacher’s professional skill set, would this cause the Teacher to de-skill? Alternatively, could a TRO have a positive effect on the Teacher: how would it be positive
- the public interest [Note: a panel should refer to the section below where a fuller explanation of the public interest is set out]
- the individual circumstances of the teacher and whether these offset any alleged risk of harm that they present [Note: a panel should not accept as offsetting the risk of harm any undertakings offered by the teacher (for example, ‘I will not seek employment’ or ‘I will not change jobs’) as these are unenforceable]
Public interest
While there are circumstances in which it is necessary to take action to protect public confidence even where there is no immediate risk to learners, the threshold for imposing a TRO on public interest grounds alone is high. A panel must satisfy themselves that public confidence is likely to be seriously damaged if the teacher continues to hold unrestricted registration during our period of investigation. Assessing the public interest will involve consideration of:
- the protection of members of the public (in particular, children and young people), both in terms of the teaching setting and beyond
- the maintenance of the public’s confidence in teachers and in the integrity of the teaching profession, the question being whether, if the allegations are later proved, it will damage public confidence to learn that the teacher continued their registration unrestricted while the matter was investigated
- the maintenance of the public’s confidence in us as a professional regulator
- the need to declare and uphold proper teaching standards
- the deterrent effect that the determination may have upon other teachers
In assessing the public interest, a panel should consider whether a reasonable and informed member of the public (having regard to all of the facts of the case) would be outraged to learn that a teacher accused of such conduct continued to hold unrestricted registration pending the conclusion of our Fitness to Teach investigation.
Examples of behaviour
Where one or more of the elements listed below is alleged in a case, it is more likely that it will be appropriate for a TRO to be imposed as these are circumstances where the risk would usually outweigh the interests of the teacher. It must be emphasised that the below are examples only: a panel must still apply the factors described above and use its own judgement in each individual case.
- Violence (including violence against pupils or young people).
- Sexual assault of a child or adult (including attempted sexual assault and attempted access to, or possession of, child sexual abuse materials).
- Concerns about a teacher’s sexualised behaviour towards pupils, young people or colleagues.
- Forming or attempting to form inappropriate relationships with pupils or young people.
- Serious and/or persistent dishonesty.
Criminal conduct
We will often receive information that a concern about a teacher’s fitness to teach is linked to criminal offending or suspected criminal offending by the teacher. Sometimes we are told that a teacher has been charged with an offence by the police or the Crown Office and Procurator Fiscal Service (‘COPFS’), that they have been convicted of an offence, or that they are being investigated for an offence (usually following the teacher’s arrest). However, often this is the only information that we have been given due to the risk of prejudicing the ongoing criminal investigation.
Where a teacher has been convicted of a criminal offence, an extract conviction will be considered as proof of the conviction .
In the circumstances of a criminal charge, this can be a charging decision by the police or a prosecuting decision by COPFS. A panel must be provided with sufficient information about the circumstances of the alleged crime to be able to properly assess the seriousness of it. With many offences, the charge will be sufficient evidence to justify a finding , even with no further narrative, but there are some offences that may be less clear without some explanation of the underlying conduct. For example, an offence under Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 of ‘threatening or abusive behaviour’ covers a wide range of conduct of a varying degree of seriousness. A panel should consider the seriousness of any underlying offence and the acceptability of a panel’s decision on the TRO application should the teacher later be convicted or acquitted.
We do not always need to wait until an individual has been charged before we can consider a TRO. In certain cases, the seriousness of the criminal allegations and the risk to public protection and/or the public interest will be enough to justify a TRO being imposed on the teacher’s registration. However, these cases will be relatively rare and a panel should assess the risk having regard to the specific circumstances of each case.
In some circumstances, the police or criminal court may impose bail conditions on a teacher while the criminal proceedings are in progress. Bail conditions will not necessarily prevent a TRO being imposed as bail conditions are monitored by the relevant criminal justice agencies and can be removed at any time for a variety of reasons. Similarly, should the teacher be acquitted of the charge at conclusion of the criminal proceedings (or should the criminal investigation be closed at an earlier stage), this will not necessarily result in the removal of a TRO. It will very much depend on the circumstances of the case. We are not notified of the reasons for the lifting of bail conditions or the court’s decision to acquit (or a decision to close the criminal investigation at an earlier stage). In any event, our process involves a different standard of proof (‘the balance of probabiltiies’) to that used in criminal proceedings (‘beyond reasonable doubt’). It is therefore important that we complete our own independent assessment of the proportionality and necessity of a TRO when we receive such information.
Please see the diagrams at the beginning of the practice statement for a general overview of the decision-making process for TROs.
A panel will apply the same test in the decision-making process, whether or not they are considering the application at a hearing or a meeting.
A panel’s consideration of whether or not to impose a TRO involves two key stages:
- Stage 1: determining whether the ‘legal test’ is met: are there circumstances which, on the face of it, might cause the teacher’s name to be removed from the Register?13
- Stage 2: determining whether or not it is proportionate and necessary for a TRO to be imposed in the circumstances
This is a current test. A panel will require to consider whether or not the TRO is proportionate and necessary at the time of considering the application. The teacher and presenting officer will have been given the opportunity to comment on each of the above stages as part of any written representations provided. If a hearing is held, the parties will have the opportunity to make further submissions to a panel at each stage. The factors relevant to each stage are explained in further detail below.
It is accepted that there will likely be some overlap in the considerations at each of the two stages.
Stage 1 – the legal test
In deciding whether or not the legal test is met, a panel must decide whether there are circumstances, on the face of it, which might cause the teacher’s name to be removed from the Register15. The nature of the legal test presents a panel with a wide-ranging discretion to impose a TRO.
As temporary restriction hearings/meetings generally occur before the investigation into the circumstances is complete (and often at a very early stage in the investigation), it is unlikely that all of the evidence relevant to the case will be available. This means that a panel must reach its decision on the basis of the evidence and submissions it has available at the time of the hearing or meeting. As a result, it is not appropriate for a panel to determine whether or not the allegations are proved in the way that it would at a full hearing.
Nevertheless, there must be some evidential basis to the concerns surrounding the teacher’s fitness to teach. In approaching the legal test, a panel should consider the evidence as a whole and have regard to the overall strength of the evidence. This will assist a panel in assessing the seriousness of the allegations, which must be made on the basis of how a reasonably informed member of the public, aware of all of the relevant facts, would view this16. While a panel can reject evidence if the teacher proves this is manifestly unreliable, unfounded or exaggerated, a panel should usually take the evidence at its highest17. In other words, a panel should consider whether there is evidence, on the face of it (otherwise known as prima facie evidence), of circumstances which may cause the teacher’s name to be removed from the Register. A panel should have regard to any conflicting evidence the teacher produces but it should not enter into any formal process of weighing conflicting pieces of evidence and making findings of facts or resolving disputes of facts18.
It is important to note that the test is that the teacher’s name might come to be removed from the Register, not that it necessarily will. However, the allegations need to be sufficiently serious for this threshold to be met. Examples of such behaviour can be found under the heading ‘Examples of behaviour’ below although it is important to note that this list is indicative rather than exhaustive.
If a panel decides that the legal test is not met, no TRO will be imposed.
If a panel decides that the legal test is met, a panel will go on to consider Stage 2. It is at a panel’s discretion at any hearing as to whether they wish to hear submissions from parties in respect of Stage 1 and Stage 2 together or separately.
Stage 2 – should a TRO be imposed?
A panel should then assess the risk of not imposing the TRO, having specific regard to the ground or grounds relied upon for the TRO (public protection, public interest and/or the interests of the teacher), as well as the rights of the teacher.
A panel should consider the proportionality of a TRO in the circumstances, bearing in mind that any decision to restrict an individual’s professional practice amounts to an interference with their Article 8 rights (right to respect for private and family life)19, and that the consequences of the TRO for the teacher must not be disproportionate to the potential harm. The question for a panel is whether the restriction of the teacher’s registration is necessary to guard against the risk to the public or in the teacher’s interests. It is not appropriate to impose a TRO simply because it is considered to be desirable.
A panel should balance the following factors in determining whether a TRO is necessary and proportionate in the circumstances of the case:
- the nature and severity of the circumstances alleged
- the severity of any alleged harm caused to children, colleagues and the wider public (including physical, mental, emotional, educational and financial harm)
- the alleged risk of harm that the teacher presents to children, colleagues and the wider public (including physical, mental, emotional, educational and financial harm)
- likelihood of recurrence: how likely is it that the teacher will repeat the same conduct that has been alleged?
- severity of potential harm if the alleged conduct was repeated (including physical, mental, emotional, educational and financial harm)
- insight and/or remediation evidenced by the teacher, for example, written reflections or evidence of training courses attended
- the teacher’s previous and/or current fitness to practise history where relevant (whether or not this relates to registration with us or another regulator)
- the impact that a TRO would have on the particular teacher, for example, would the imposition of the TRO have financial or professional consequences, and to what extent? Is the teacher currently out of employment and therefore prevented from seeking further work in a teaching capacity if a TRO is imposed? Would this stop the teacher from taking steps to demonstrate remediation? Having regard to the teacher’s professional skill set, would this cause the Teacher to de-skill? Alternatively, could a TRO have a positive effect on the Teacher: how would it be positive
- the public interest [Note: a panel should refer to the section below where a fuller explanation of the public interest is set out]
- the individual circumstances of the teacher and whether these offset any alleged risk of harm that they present [Note: a panel should not accept as offsetting the risk of harm any undertakings offered by the teacher (for example, ‘I will not seek employment’ or ‘I will not change jobs’) as these are unenforceable]
Public interest
While there are circumstances in which it is necessary to take action to protect public confidence even where there is no immediate risk to learners, the threshold for imposing a TRO on public interest grounds alone is high. A panel must satisfy themselves that public confidence is likely to be seriously damaged if the teacher continues to hold unrestricted registration during our period of investigation. Assessing the public interest will involve consideration of:
- the protection of members of the public (in particular, children and young people), both in terms of the teaching setting and beyond
- the maintenance of the public’s confidence in teachers and in the integrity of the teaching profession, the question being whether, if the allegations are later proved, it will damage public confidence to learn that the teacher continued their registration unrestricted while the matter was investigated
- the maintenance of the public’s confidence in us as a professional regulator
- the need to declare and uphold proper teaching standards
- the deterrent effect that the determination may have upon other teachers
In assessing the public interest, a panel should consider whether a reasonable and informed member of the public (having regard to all of the facts of the case) would be outraged to learn that a teacher accused of such conduct continued to hold unrestricted registration pending the conclusion of our Fitness to Teach investigation.
Examples of behaviour
Where one or more of the elements listed below is alleged in a case, it is more likely that it will be appropriate for a TRO to be imposed as these are circumstances where the risk would usually outweigh the interests of the teacher. It must be emphasised that the below are examples only: a panel must still apply the factors described above and use its own judgement in each individual case.
- Violence (including violence against pupils or young people).
- Sexual assault of a child or adult (including attempted sexual assault and attempted access to, or possession of, child sexual abuse materials).
- Concerns about a teacher’s sexualised behaviour towards pupils, young people or colleagues.
- Forming or attempting to form inappropriate relationships with pupils or young people.
- Serious and/or persistent dishonesty.
Criminal conduct
We will often receive information that a concern about a teacher’s fitness to teach is linked to criminal offending or suspected criminal offending by the teacher. Sometimes we are told that a teacher has been charged with an offence by the police or the Crown Office and Procurator Fiscal Service (‘COPFS’), that they have been convicted of an offence, or that they are being investigated for an offence (usually following the teacher’s arrest). However, often this is the only information that we have been given due to the risk of prejudicing the ongoing criminal investigation.
Where a teacher has been convicted of a criminal offence, an extract conviction will be considered as proof of the conviction .
In the circumstances of a criminal charge, this can be a charging decision by the police or a prosecuting decision by COPFS. A panel must be provided with sufficient information about the circumstances of the alleged crime to be able to properly assess the seriousness of it. With many offences, the charge will be sufficient evidence to justify a finding , even with no further narrative, but there are some offences that may be less clear without some explanation of the underlying conduct. For example, an offence under Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 of ‘threatening or abusive behaviour’ covers a wide range of conduct of a varying degree of seriousness. A panel should consider the seriousness of any underlying offence and the acceptability of a panel’s decision on the TRO application should the teacher later be convicted or acquitted.
We do not always need to wait until an individual has been charged before we can consider a TRO. In certain cases, the seriousness of the criminal allegations and the risk to public protection and/or the public interest will be enough to justify a TRO being imposed on the teacher’s registration. However, these cases will be relatively rare and a panel should assess the risk having regard to the specific circumstances of each case.
In some circumstances, the police or criminal court may impose bail conditions on a teacher while the criminal proceedings are in progress. Bail conditions will not necessarily prevent a TRO being imposed as bail conditions are monitored by the relevant criminal justice agencies and can be removed at any time for a variety of reasons. Similarly, should the teacher be acquitted of the charge at conclusion of the criminal proceedings (or should the criminal investigation be closed at an earlier stage), this will not necessarily result in the removal of a TRO. It will very much depend on the circumstances of the case. We are not notified of the reasons for the lifting of bail conditions or the court’s decision to acquit (or a decision to close the criminal investigation at an earlier stage). In any event, our process involves a different standard of proof (‘the balance of probabiltiies’) to that used in criminal proceedings (‘beyond reasonable doubt’). It is therefore important that we complete our own independent assessment of the proportionality and necessity of a TRO when we receive such information.
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