Full Hearing - Conduct - Teacher D
Definitions
Any reference in this decision to:
- “GTC Scotland” 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 GTC Scotland Fitness to Teach Rules 2017 or a provision of them; and
- the “Register” means the GTC Scotland register of teachers.
Preliminary issues
Hearsay Application:
The Panel heard an application from the Presenting Officer for GTC Scotland to admit as hearsay the evidence of two witnesses, Witness 6 and Witness 7. The Presenting Officer referred to the relevant case law in Thorneycroft v NMC [2014] EWHC 1565 (Admin), Bonhoeffer v GMC [2011] EWHC 1585 (Admin) and NMC v Ogbonna (2010) EWCA Civ 1216. The Presenting Officer submitted that the evidence should be admitted in the public interest in order that GTC Scotland can fulfil its objectives. The allegations are serious and he referred to the factors in Thorneycroft. The Presenting Officer submitted that Witness 6’s evidence was relevant. It was neither the sole nor decisive evidence, and reasonable efforts had been made to secure her attendance. Witness 6’s evidence reports what was said to her by Pupil A and the Presenting Officer submitted that it was fair to admit the evidence. The evidence is in the form of a formal signed witness statement taken as part of the GTC Scotland investigation.
As regards Witness 7, the Presenting Officer submitted that similar issues arose. Witness 7 could not attend due to [redacted], and her evidence was not sole or decisive. The Presenting Officer submitted that it was relevant evidence and it was fair to admit. The evidence was, again, in the form of a formal signed witness statement taken as part of the GTC Scotland investigation.
The applications were not opposed by the Teacher, and his representative submitted that admission of the evidence was a matter for the Panel.
The Panel accepted the legal advice from the Legal Assessor. The Legal Assessor referred the Panel to the GTC Scotland Witness and Hearsay Evidence Practice Statement and to the factors in the Thorneycroft case. The Legal Assessor advised that the Panel was required to consider the relevance of the evidence and whether it was fair to admit it. The Panel should weigh and consider the factors in the guidance, and first decide whether or not to admit the evidence. Only if it was admitted, should the Panel consider what weight, if any, should be attached to that evidence when it assessed all the evidence.
The Panel was satisfied that reasonable efforts had been made to secure the attendance of both witnesses. The Panel was disappointed that Witness 6, as a GTC Scotland registered teacher, did not feel able to attend, but accepted her view that she would not be able to add any further information to her statement. The Panel determined that the evidence of both witnesses was neither sole nor decisive as both spoke about the disclosures made to them by Pupil A and not directly to the facts alleged. No question arose regarding the credibility of the witnesses. Additionally, the Panel noted that it would hear evidence from the only direct witness to the allegation, Pupil A, against which the evidence can be tested.
In the circumstances, the Panel decided that the evidence was clearly relevant. It could be tested against other evidence, including that of Pupil A. The Panel decided that it was fair to admit the statements of both witnesses as hearsay and it will attach such weight to it as it considered appropriate when it assessed all of the evidence.
Allegation(s)
The following allegations were considered at the hearing:
- On dates between 1 January and 31 August 2018 inclusive, whilst employed as a teacher by [redacted] at [redacted], the Teacher did:
(a) exchange messages via [redacted] app with Pupil A;
(b) exchange messages via [redacted] app with Pupil A;
(c) Carry out the behaviour at allegations 1(a) and 1(b) in the knowledge that Pupil A was an S4 pupil at [redacted]. - On 13 January 2016, whilst employed by [redacted] as a probationary teacher at [redacted], the Teacher did, during school hours and within the school premises:
(a) take a photograph of himself naked; and
(b) take multiple photographs of himself in a state of undress. - The Teacher’s actions at allegation 1 were sexually motivated.
And in light of the above it is alleged that the Teacher’s fitness to teach is impaired and he is unfit to teach as a result of breaching Parts 1.2, 1.3 and 1.6 of the GTCS Code of Professionalism and Conduct (COPAC) 2012
Confidentiality Key
Pupil A – [redacted]
Teacher’s admissions
Allegation 2(b) was admitted in so far as the state of undress was an open shirt. The remainder of the allegations were denied.
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:
1. Transcript Witness Statement of Pupil A, dated 8 September 2018;
2. Police Scotland Cybercrime Joint Report, dated 31 October 2018;
3. Letter from [redacted] (Witness 2) to the Teacher, dated 14 June 2019;
4. Letter from COPFS, dated 6 August 2019;
5. Response to Notice of Investigation, dated 19 August 2019;
6.Statement of [redacted] (Witness 2), dated 12 November 2019 – Gave oral evidence at hearing;
7. Letter from Police Scotland, dated 29 January 2020;
8. Statement of [redacted] (Witness 3), dated 8 July 2020 – Gave oral evidence at hearing;
9. Statement of [redacted] (Witness 6), dated 26 August 2020 - Admitted as hearsay;
10. Response to Temporary Restriction Order Application, dated 14 September 2020;
11. Statement of [redacted] (Witness 7), dated 2 November 2020 - Admitted as hearsay;
12. Statement of Pupil A, dated 11 August 2022 – Gave oral evidence at hearing;
13. Teacher’s Response to Interim Report, dated 9 November 2022;
14. Statement of [redacted] (Witness 8), dated 14 October 2022;
15. Statement of [redacted] (Witness 2), dated 22 February 2023; and
16. Joint Minute of Agreement agreeing the GTC Scotland witness statement of [redacted] (Witness 8), forensic analyst, dated 14 October 2022, author of the Police Scotland Cybercrime Report dated 31 October 2018.
Teacher’s hearing papers
17. Teachers Response to Final Investigation Report, dated 15 March 2023, including:
- R. (on the application of Dutta) v The GMC [2020] EWHC 1974 Admin;
- Statement of [redacted] (Witness 5), dated 2 May 2023 – Gave oral evidence at hearing;
18. Statement of the Teacher, dated 21 September 2023 – Gave oral evidence at hearing;
19. Statement of [redacted] (Person A), dated 22 September 2023;
20. Statement of [redacted] (Person B), dated 27 September 2023;
21. Statement of [redacted] (Person C), dated 9 October 2023;
22. Statement of [redacted] (Person D), dated 1 January 2023;
23. Statement of [redacted] (Person E), 28 September 2023;
24. Statement of [redacted] (Person F), 16 October 2023;
25. Statement of [redacted] (Person G), 3 October 2023; and
26. Statement from the Teacher, dated 12 January 2025.
Servicing Officer’s hearing papers
27. Notice of Full Hearing, dated 17 October 2024 with cover email and delivery receipt;
28. Procedural Meeting decisions:
- Virtual Hearing Application Decision Annex, dated 22 May 2024; and
- Vulnerable Witness, Privacy and Anonymity Applications Decision Annex, dated 24 September 2024.
Late papers
29. Email Correspondence between witnesses and Presenting Officer, multiple dates.
Summary of evidence
Witness 1 - Pupil A:
The Panel heard from Pupil A. Pupil A formally adopted his written GTC Scotland witness statement, dated 11 August 2022. He stated that he was now 21 years old. He knew the Teacher as he had been a pupil at [redacted] (“the school”) at the time of the allegation. He said he had been using the [redacted] and [redacted] app at that time and he said that he had exchanged photos with someone on that app who knew that he was at the school and that he was only 14 years old. The person he messaged knew that, as Pupil A said he told him his school and his age.
Pupil A said that the Teacher was not one of his teachers, but he saw him frequently at the school drama club. Pupil A said the [redacted] app told him that the person he had befriended on [redacted] was close by as the distance was reported by the app. Pupil A said that the distance shown on the app of the other person he was messaging would shorten to only metres away when he was using the app in school. Pupil A said he thought that was suspicious. Pupil A stated that he then came across a [redacted] video online of the Teacher which he had screenshotted and showed it to the person on [redacted]. He said that the next day the video was taken down.
Subsequently, Pupil A said that he had used an app that ‘grabbed’ IP addresses, called ‘grabify’. Pupil A said that in August 2018 he sent the Teacher details on a random Facebook business account, and then sent the person that he was talking to on [redacted] a photo of a ‘hot guy’. Pupil A used the IP address grabber for both and when he got the information back, the phone and IP address were the same for both messages; as was the software version and wi-fi provider and so he said ‘it all matched’. Pupil A said that he knew it was the Teacher. Pupil A said he took screenshots of the IP addresses and he gave all this information to the police along with his phone.
Pupil A stated that on Friday, 31 August 2018, a screenshot of the video showing the Teacher was spread around the school. It got ‘air dropped’ to the Teacher and to the Head Teacher and he said ‘pretty much’ to everyone. Pupil A stated that he went to speak to a Chemistry teacher that he had a good relationship with, and he said he told her everything. She (the Chemistry teacher) then went to the Depute Head and Pupil A then also spoke with the campus police officer. The campus police officer asked him if he was making any of this up to deflect the blame from the photo that was getting spread about, but Pupil A said no. Pupil A said that he had waited in the school that afternoon for the Child Protection Officers from Police Scotland, and said that he had given them proof of the identity of the person he had been messaging, and they had said to him that he had ‘done their job for them’.
Pupil A said that the police officers took his phone and computer on that Friday and said that they would give it back, but he got them back two years later. The police took all the screenshots and photos that he had and all the evidence of the IP address. Pupil A stated that when he got his phone and computer back they had been reset. Pupil A stated that there must have been something on the Teacher’s phone, like a folder or some photos of him.
Pupil A said he had left the school, and that this had ‘derailed’ his life and he was now [redacted] and [redacted] as a result. Pupil A said that what he reported to the police on 31 August 2018 and the police statement he made on that date were both true.
In cross examination, Pupil A stated that the person on [redacted] and [redacted] had no profile photograph. That person had told him he was about 30 years old and had a boyfriend. The Teacher’s representative took Pupil A to his statement where he had originally said that the person on [redacted] was married. Pupil A said ‘I never picked that up’. Pupil A said that there were many messages and it had been ‘intense’. The [redacted] app showed the distance from the other person as it was primarily an app designed to meet up for sex.
Three months after they first spoke, in about May 2018, Pupil A stated that he had told the other person on [redacted] that distance was shown on the app, and that it was working at the school and would often show that the other person was close by. Pupil A said the other person would have likely known about the distance reading on the app. Pupil A could not recall when the other person ‘blocked’ him on [redacted], and he said that they were both also messaging on [redacted]. Screen recordings received by Pupil A showed that the other phone was an iPhone X and that was the phone the Teacher had. He accepted that he did not know who else had that iPhone but few people did.
Pupil A said that in about June 2018 he had found a [redacted] video of the Teacher [redacted] and he had taken screenshots of the video. He sent the screenshots by [redacted] to another friend at school who knew the Teacher, but he said that he had not ‘posted’ the screenshots. He said he had also sent the video to another person to try to find out more. Pupil A stated that had tried to contact the Teacher with a fake Facebook account in August 2018. Pupil A said he had exchanged many pictures and videos by [redacted] with the other person, [redacted].
Pupil A stated that he had messaged a person called ‘[redacted] or ‘[redacted]’ on [redacted] from February 2018 to August 2018, being the person he refers to as ‘[redacted]’ in his witness statement. He had initially thought that this was his [redacted] teacher, [redacted]. Pupil A said that he sent ‘[redacted]’ messages on 29 August 2018 from an account he had created called ‘[redacted]’.
Pupil A stated that he had not had any messages to show the police, just his [redacted] app as he had deleted all the messages, photos and videos on the [redacted] and [redacted] apps. Pupil A said that he had not come forward until he had the IP address. He told the Panel that no one had seen the pictures or messages he had sent.
Pupil A stated that he had given the police the results of the ‘screen grab’ and the IP addresses he had found, as well as his phone and computer. He said he had not previously seen the Police Scotland Cybercrime Joint Report, dated 31 October 2018. Pupil A accepted that he thought he had set up a Facebook profile called ‘[redacted]’. He stated he did not recall sending the messages from that account as detailed in the Police Scotland Cybercrime Joint report , including one stating, “Hello I know you are emailing that wee boy in Ur skl, u better gae me a fuckin blow job….”. He accepted that the Police Scotland Cybercrime Joint report showed that he had been searching for the Teacher’s name on Facebook in August 2018.
On day 2, Tuesday 4 March 2025, three witness statements were formally read into the record – Witness 6 and Witness 7 who were both teachers at the school at the time of the allegation and to whom Pupil A disclosed the alleged events, and the statement of Witness 8, a forensic computer analyst and joint author of the Police Scotland report from the Cybercrime Unit dated 31 October 2018, which he exhibited and which was agreed evidence.
Witness 2 – [redacted]:
Witness 2 is the former Executive Director of Education for [redacted]. She retired in [redacted]. Witness 2 told the Panel about her knowledge of the alleged events as reported to her, and she read into the record both of her GTC Scotland witness statements.
Witness 2 told the Panel about Police Scotland finding photographs the Teacher had taken of himself in a toilet within a school where he had been a probationer in 2016. The location was found in the ‘metadata’ in the photos. She stated that the police had told her by telephone that one photo showed the Teacher’s face and the other photo showed the same location, a large toilet, and was a photo of his genitals. Witness 2 said that she had met the Teacher on 13 June 2019 and he had showed remorse and reflection on the incident.
Witness 2 stated she did not have the photographs, nor did the Teacher, nor had she ever seen them. Witness 2 had described them to the Teacher as they had been reported to her by the police, and she was sure she had used the word ‘penis’ in her description to the Teacher. Witness 2 said the Teacher did not deny taking the photographs and he had accepted and understood that it had not been appropriate conduct.
Witness 2 subsequently wrote a letter to the Teacher on 14 June 2019 which she stated was an accurate record of the meeting. She did not recall the Teacher suggesting that only an open shirt was shown in the photographs. Witness 2 explained that as a result of the issues with Pupil A, the Teacher was moved to another school. Witness 2 was told he was a good teacher. She recalled that the police took no further action in respect of the allegations with Pupil A.
In cross examination, Witness 2 accepted that the date of events were reported to her and she did not otherwise know the dates of the incident with Pupil A. Witness 2 did not meet Pupil A nor see any of the messages or apps referred to. She did not know what had been said by the Teacher. Witness 2 recalled that HR would have spoken to the Teacher, not her. Witness 2 could not recall when her conversation about the photographs with the police had taken place, as it had all taken place a long time ago. Witness 2 could not recall the name of the police officer who called her. Witness 2 said the police had not given her much detail.
In response to Panel questions, Witness 2 stated that the police officer did not tell her how many photos were found on the Teacher’s phone. Witness 2 said it had not been a formal disclosure, and was what she called ‘soft information’. Witness 2 thought that the call may have been a few weeks before the June 2019 meeting that she had then arranged with the Teacher. Witness 2 said the police were concerned as the photos had been taken in a school. Witness 2 described it as a ‘management discussion’, it was not a disciplinary matter, but as it had raised child protection concerns, it was kept on file for five years.
Witness 2 was clear that she had told the Teacher one photo included his genitals. His response had been that he was a probationer at the time and the photos were for personal use and not for sharing. Witness 2 said that the Teacher had been honest, he had accepted he had done this and that it was inappropriate.
Witness 3 - [redacted]:
Witness 3 read her formal GTC Scotland witness statement, dated 8 July 2020, into the record. She was the Headteacher at the school at the time of the allegation. She told the Panel about what Pupil A had told her about the alleged incident. Witness 3 stated the Teacher was a good teacher and he was well liked in the school.
Witness 3 told the Panel that she had been contacted at home by the Teacher on 18 August 2018 as he had received threatening messages on Facebook and a link from a Facebook business account. The Teacher had said he thought it might be from Pupil A as Pupil A had recently sent him a Facebook friend request. Witness 3 stated that the Teacher has been very upset and shocked and she had reassured him and said that no further action would be taken.
Witness 3 told the Panel about the photo that was posted on Twitter and circulating in the school. [redacted]. The post was later taken down. She told the Panel that her Depute Head, Witness 6 had reported to her that Pupil A told her that he had been communicating with the Teacher on [redacted] and [redacted]. Witness 3 stated that Pupil A may have also told her that directly, but she was not sure. Pupil A had told her that he had used the ‘grabify’ app to get an IP address which he said was the Teacher’s IP address. Witness 3 stated that Pupil A was considered vulnerable given his family situation and he was 14 at the time of the allegation.
Witness 3 told the Panel that the police were then involved and the Teacher was arrested and Pupil A was interviewed by the police on 31 August 2018. Witness 3 attended a meeting with HR, and the Teacher and his representative in February or March 2019. Witness 3 said that the police took no further action and the Teacher did not return to teach at the school.
There was no cross examination.
In response to Panel questions, Witness 3 said that she recalled the Teacher telling her that he had received an unusual request on Facebook about teaching resources before receiving the threatening messages. Witness 3 said the date of 24 July 2018, the date in her witness statement, was the date that Pupil A told her he had received the video screenshot which was then circulated.
Witness 4 – The Teacher:
The Teacher read his formal witness statements, dated 21 September 2023 and 12 January 2025 into the record. He stated he is currently employed as a teacher. He denied the allegations and denied ever having or using the [redacted] or [redacted] apps. The Teacher stated he had read the Police Scotland Cybercrime Joint report which he stated supports his position as it contained no evidence that he had done what was alleged.
The Teacher said that the allegations were fantasy and he had played no part in what he called a ‘destructive game’. The Teacher stated that he willingly provided all of his and his partner’s devices to Police Scotland for examination. The Teacher denied that there was communication between him and Pupil A and when he first received threatening messages, he contacted the police. After a lengthy police investigation, no prosecution ever took place. The Teacher stated that this experience had been stressful and had had a significant impact on him and his family. The process had undermined his [redacted].
The Teacher stated that he had never taken a photograph of himself naked at the school and disputed the evidence of Witness 2. The Teacher said he had taken two photographs of himself with his shirt open in a locked toilet in the school to record his weight loss. The weight loss programme he followed at the time required him to take photos to record his weight loss. The Teacher stated that there was no sexual content or context. The photos were found as a result of his cooperation with Police Scotland as a result of the false allegations made by Pupil A. The photos had never been produced. The Teacher understood that what he had done was not appropriate.
The Teacher denied he was unfit to teach, that he was impaired or that he had breached COPAC. The Teacher said that he was fully aware that he was a role model and was fully aware of his responsibilities as a teacher and said he was committed to upholding COPAC and to his profession. The Teacher told the Panel how he had developed his career and undertaken further study, including completing further teaching qualifications. The Teacher had to withdraw from his doctoral studies due to the ongoing GTC Scotland case. The Teacher said he is now a Faculty Head in his school and sought to lead by example, including in the [redacted]. The Teacher asked the Panel to consider his response dated 15 March 2023 to the GTC Scotland final investigation report.
The Teacher told the Panel that in around June 2018 he had received a message on Facebook from a local business enquiring about making links with the school. The Teacher clicked on the link and he had replied that he was happy to form a partnership as part of the faculty improvement plan. The Teacher had asked the sender to reply to his GLOW account, a secure work account that he used. The Teacher thought this was on about 24 July 2018.
The Teacher said he received a Facebook friend request from Pupil A on 17 August 2018 to which he did not respond, and he reported it to Police Scotland and the Headteacher that evening. The Teacher spoke on the following Monday to Pupil A, along with a colleague, about the Facebook friend request. Pupil A had accepted that he had sent the friend request to the Teacher, and he said that he had told Pupil A that he must not contact any teacher on social media. The Teacher did not recall who else he had told about this meeting, but he did make notes in the pastoral care file.
The Teacher said that he had spoken the following Monday in August 2018 to the campus police officer, PC [redacted]. The threatening messages he had received were from a ‘[redacted]’ and were sent to his Facebook account. The Teacher explained that his Facebook account was under another name in order to keep it private. The Teacher thought it was not coincidental and that Pupil A was likely ‘[redacted]’ as Pupil A had already contacted him on Facebook.
When the Teacher was initially told about the allegations, they were described as ‘inappropriate conduct’ but he was not told at that stage any more, or that it involved Pupil A. The Teacher said that Pupil A had tried to shift the focus away from himself and his conduct.
[redacted]. The Teacher said he did not respond in any detail to that, and he had no idea at that stage that Police Scotland had examined his phone. The Teacher knew that he had taken photos of his chest and stomach as part of his weight loss programme.
The Teacher said he was not told in advance of the meeting with Witness 2 about the photographs and what she had been told by Police Scotland. The Teacher said Witness 2 did not refer to pictures of his penis but to [redacted] images of him in a ‘state of undress’ in the photographs taken at the school in 2016. The Teacher said he had been called to that management meeting because he had challenged his transfer to another school and he felt he had been shamed.
The Teacher challenged Witness 2’s recollection of this event and he denied that she had referred to his penis being in any photograph. The Teacher said that he had accepted at the time of the meeting in June 2019 that his conduct had been inappropriate. The Teacher had read the term ‘naked’ in the letter, dated 14 June 2019, that followed as referring to the photos of his chest and torso. He felt he was in no position to challenge Witness 2 and he had not responded to the letter she had sent him as he saw no point. The Teacher accepted that, on reflection, he should not have taken the photographs in the school.
In cross examination, the Teacher said he knew about [redacted] and [redacted] but denied ever having or using either app. The Teacher said that he had a Facebook profile as ‘[redacted].’. The Teacher said that he had followed the link sent on Facebook to the business site which he said appeared to be legitimate. The Teacher denied that he was using devices to message Pupil A that were noted as encrypted and/or locked in the Police Scotland Cybercrime report. The Teacher said that Police Scotland had searched his home and had taken away all electronic devices they had found, including his partner’s devices.
Witness 5 – [redacted]
Witness 5 read his formal witness statement into the record. Witness 5 is a teacher and he worked as a teacher at the school at the time of the allegation. Witness 5 said he was fully aware of the allegations against the Teacher. Witness 5 stated that Pupil A, a pupil in his 4th year [redacted] class in 2018, had first tried to contact him by sending an email to his school GLOW email account. Witness 5 said that he knew that it was Pupil A as he (Pupil A) had written the email from his own GLOW account, then forwarded it to his personal email and then to him but he had forgotten to delete the email chain showing the email address the email had originated from. This was his school GLOW account. Witness 5 said he could not recall when that email was received and he could not now recover the email from his account.
Witness 5 said that the email stated that Pupil A was in love with him and hated having to leave school at the end of the day when he would not see him. Witness 5 also stated that the email stated that life would not be worth living without him in it. Witness 5 had reported this to the school and to the Depute Head Teacher, Witness 6. Witness 5 was aware that Pupil A had some [redacted]. Witness 5 said he did not ever raise the issue with Pupil A and it was never mentioned to Witness 5 again.
Witness 5 said he had taken some advice and he had then reported the matter to the police on campus. After that, he had received Facebook messages from Pupil A. Witness 5 found messages from Pupil A in his spam folder and they said things like ‘I'm in 4th year... I could give you so fucking much’ and ‘I will do anything for you, stop my pain please’. These were dated 28, 29 and 30 August 2018 and he reported these messages to the campus police. He deduced it was Pupil A due to the similarity of the name used, the similar content of the messages to the email and the fact that the person had said that he was in 4th year at the school.
Witness 5 said he was very uncomfortable with the situation, and so far as he knew, nothing was ever done. Witness 5 said that he never messaged Pupil A; these were unwanted messages and he had no idea why Pupil A had sent them.
Presenting Officer’s Submissions on the Facts (Stage 1)
The Presenting Officer referred the Panel to the relevant standard of proof, the balance of probabilities and that the burden rests on the GTC Scotland, as per Rule 1.7.15. The Presenting Officer referred the Panel to the GTC Scotland Practice Statement on Fact Finding in Fitness to Teach Conduct Cases and submitted that all the GTC Scotland witnesses were credible and reliable.
The Presenting Officer submitted that the evidence of the Teacher’s supported the evidence of Pupil A as to what he disclosed. The Presenting Officer submitted that Pupil A was largely straightforward and credible and the Panel should be mindful that Pupil A was a 14 year old child at the time. The Presenting Officer accepted that the evidence from Pupil A about ‘[redacted]’ was not clear or credible, but that this did not undermine his other evidence.
The Presenting Officer submitted that the Police Scotland Cybercrime Joint report was consistent with Pupil A’s account and with him having been asked to delete the messages by the person he was messaging. Some devices could not be accessed. The Presenting Officer submitted that the Teacher had a good reason to ensure that no device containing messages was recovered by the police. The Presenting Officer invited the Panel to find Allegation 1 proved and to find that it was sexually motivated. The Presenting Officer referred to the guidance in Basson v GMC [2018] EWHC 505 (Admin). The Presenting Officer submitted that, if the Panel found that the [redacted] app was used by the Teacher, then the Panel could readily infer that it was sexually motivated.
The Presenting Officer submitted that Allegation 2 was based on the evidence of Witness 2 who reported what Police Scotland had told her about the photographs found on the Teacher’s phone. The Presenting Officer said Witness 2 was clear that she put what she had been told to the Teacher, including that she used the word ‘penis’ and this was supported by her letter to the Teacher on 14 June 2018. The Presenting Officer asked the Panel to reject the Teacher’s evidence on this allegation as it lacked credibility as he had not denied this at the time.
The Teacher’s Submissions on the Facts (Stage 1)
The Teacher’s representative submitted that allegation 2(b) was admitted as to an open shirt only. The Teacher’s representative submitted that Pupil A’s evidence was not credible or reliable and submitted that he had fabricated his evidence to fit his narrative.
The Teacher’s representative said that Pupil A stated he had a good memory, but that he was often confused in his evidence. The Teacher’s representative submitted that Pupil A’s explanations were not true and that his story made no sense. His timeline was not consistent and his narrative was jumbled. He had admitted to the ‘[redacted]’ account but he had refused to accept that he sent the messages. He had made a prior inconsistent statement about the other person he claimed to have messaged.
The Teacher’s representative said Pupil A gave his evidence in a relaxed way that failed to reflect the seriousness of this case and he had ‘scrambled’ to respond to questions about the Police Scotland Cybercrime Joint report. The Teacher’s representative submitted that Pupil A’s position lacked any objectivity, and he had admitted that he had produced and distributed the video screen shot on the same day that he made the allegations against the Teacher. The Teacher’s representative submitted that had been designed to deflect from Pupil A’s own conduct.
The Teacher’s representative submitted that much of the evidence heard from the GTC Scotland witnesses was simply what had been repeated by various teachers, and that the only direct evidence was from Pupil A. His evidence, when challenged, was poor and that was because it was false and inherently improbable. Pupil A’s evidence was directly in opposition to the Police Scotland Cybercrime Joint report, which was agreed evidence, and which found no messages between the Teacher and Pupil A.
The Teacher’s representative said Witness 2 was minimally involved and that her evidence was of limited value. Her evidence was not reliable and her memory was poor, recounting what she was told in 2018 by an unknown police officer on an unknown date. She had not seen the photographs.
The Teacher’s representative submitted that no photographs have been produced and the only witness was Witness 2 who does not mention ‘naked’ in her first statement and did not see the photos. There were no contemporaneous notes. She initially used the terms ‘state of undress’ and then used ‘naked’ in the letter she wrote to the Teacher on 14 June 2019. The Teacher’s representative submitted that only in her 2023 GTC Scotland witness statement does she say that she had been told by the police that the Teacher’s penis or ‘bits’ were exposed. The Teacher’s representative submitted that her evidence was not reliable.
The Teacher’s representative stated that allegation 2(b) used only the terms ‘state of undress’ which the Teacher admitted as to an open shirt.
The Teacher’s representative submitted there was no evidence to support 1(a) and 1(b) and the only direct evidence was from Pupil A who claimed he knew it was the Teacher he was messaging. There were no messages and no evidence of the distance the app was said to have reported. There was no documentary evidence that the Teacher ever used the [redacted] or [redacted] apps or ever messaged anyone on those apps.
Pupil A’s evidence about the use of the ‘grabify’ app was not supported by the Police Scotland Cybercrime Joint report other than that Pupil A had searched for information about it. There was no evidence of the IP addresses Pupil A said he had found which identified the Teacher.
The Teacher’s representative referred the Panel to the Police Scotland Cybercrime Joint report and noted that the Teacher’s iPhone X was examined, and the Teacher volunteered his PIN for that phone. There was no evidence that there were other devices that Police Scotland had not found. The Police Scotland Cybercrime Joint report had found no [redacted] app on the Teacher’s or on Pupil A’s phone and it found no messages or videos, including when deleted messages were searched for.
The Teacher’s representative invited the Panel to accept the Teacher’s evidence as credible and reliable and accept that he did his best to assist the Panel. He had been thoughtful and insightful. The Teacher’s representative asked the Panel to accept the Police Scotland Cybercrime Joint report. The Teacher’s representative submitted that Witness 5’s evidence provided useful context. He invited the Panel not to find any part of Allegation 1 proved.
Legal Advice to Panel
The Legal Assessor referred the Panel to the GTC Scotland Practice Statement on Fact Finding in Fitness to Teach Conduct Cases and to the relevant case law, including on the assessment of witnesses in Suddock v NMC 2015 EWHC 3612 (Admin) and R. (on the application of Dutta) v GMC [2020] EWHC 1974 (Admin). The Legal Assessor also referred to Basson v GMC [2018] EWHC 505 (Admin) on sexual motivation. The Legal Assessor advised the Panel to be cautious in assessing the hearsay evidence it has heard and not to speculate. The Legal Assessor reminded the Panel that the Teacher need prove nothing, the onus of proof resting on GTC Scotland.
Panel’s Findings in Fact
The Panel gave careful consideration to all the evidence and submissions made by the parties in making its findings in fact. The Panel had in mind that the burden of proof rests on GTC Scotland and that the standard of proof is the balance of probabilities.
Allegations
1 On dates between 1 January and 31 August 2018 inclusive, whilst employed as a teacher by [redacted] at [redacted], the Teacher did:
(a) exchange messages via [redacted] app with Pupil A;
(b) exchange messages via [redacted] app with Pupil A;
(c) Carry out the behaviour at allegations 1(a) and 1(b) in the knowledge that Pupil A was an S4 pupil at [redacted].
The Panel had regard to the live evidence from Pupil A, his witness statements, the Police Scotland Cybercrime Joint report dated 31 October 2018, the police statement by Pupil A dated 31 August 2018 and the Teacher’s evidence.
The Police Scotland Cybercrime Joint report and the author, Witness 8’s witness statement, were formally agreed evidence between the parties. As such, it was not subject to any challenge. The Panel viewed the Police Scotland Cybercrime Joint report as a credible, reliable and cogent piece of independent and objective evidence to which it attached significant weight. The Panel did not consider to any extent issues raised in the Police Scotland Cybercrime Joint report regarding certain searches conducted by Pupil A which formed no part of the allegations, and put from its mind that part of the report.
The Police Scotland Cybercrime Joint report was conducted in respect of several devices recovered from both the Teacher and from Pupil A. Those devices were inspected by a police forensic computer analyst, Witness 8. The report’s remit was to “identify any communications and images being sent between the accused and the complainer”, the complainer being Pupil A, the accused the Teacher. The devices examined included the Teacher’s iPhone X and two iPads and Pupil A’s telephone. No messages between the Teacher and Pupil A were found in the devices examined.
The Police Scotland Cybercrime Joint report made no mention of the [redacted] app and no devices inspected had that app installed. Pupil A consistently stated in his evidence, in some detail, that he messaged someone on the [redacted] app and that he sent and received messages of a sexual nature with that person. The Police Scotland Cybercrime Joint report showed that Pupil A was searching for the Teacher and that he was accessing the Teacher’s Facebook account around the later part of August 2018. Pupil A consistently explained in his evidence that he was messaging what he said he later deduced was either Witness 5 or the Teacher.
Whilst the Police Scotland Cybercrime Joint report disclosed some [redacted] messages sent by Pupil A to someone, it does not indicate that the other person was the Teacher. The Police Scotland Cybercrime Joint report does not support Pupil A’s account of events as to the use of the [redacted] or [redacted] apps.
The Panel found that Pupil A was messaging someone on [redacted] and on [redacted]. The central question was whether that person was the Teacher, and that messages were ‘exchanged’ between them. The Panel found that the Police Scotland Cybercrime Joint report did not, to any extent, support Pupil A’s version of events that it was the Teacher who used [redacted] or [redacted] to exchange messages with Pupil A. The Police Scotland Cybercrime Joint report was consistent with and supported the Teacher’s evidence that he did not ever exchange messages on those apps, or otherwise, with Pupil A.
The Panel assessed all the evidence in the round. The Panel found that Pupil A was open and that he did his best to assist the Panel. The Panel found that he likely genuinely believed that he was messaging the Teacher. It found elements of both the Teacher’s and Pupil A’s evidence to be credible and both sought to assist the Panel.
However, the Panel found that the Teacher was not, at times, entirely open when he explained which of his devices Police Scotland took from his home and in his response to the June 2019 meeting with Witness 2. At times, the Panel found Pupil A’s version of events lacked plausibility, particularly around his admitted use of the fake ‘[redacted]’ account, his messaging of ‘[redacted]’ and his accessing and distributing of the video screenshot.
Fairly and properly tested against the independent, objective, credible and cogent evidence in the Police Scotland Cybercrime Joint report, the Panel concluded that the Police Scotland Cybercrime Joint report was consistent with and supported the Teacher’s evidence. It did not support Pupil A’s conclusion that it was the Teacher who was messaging him. There was no independent evidence that was an exchange of any messages at all, nor any evidence of the ‘matching’ IP addresses as alleged by Pupil A. The evidence of the other witnesses added little. Understandably, they did not do more than repeat what Pupil A and others reported to them and the action that they took. The allegation was not investigated by the school but was reported to Police Scotland who investigated, produced the Police Scotland Cybercrime Joint report and took no further action.
The Panel therefore found Allegations 1(a) and 1(b) were not proved. As a result of that finding, the Panel found that 1(c) was not proved.
2. On 13 January 2016, whilst employed by [redacted] as a probationary teacher at [redacted], the Teacher did, during school hours and within the school premises:
(a) take a photograph of himself naked; and
(b) take multiple photographs of himself in a state of undress.
The Teacher admitted 2(b) as to taking a photo with his shirt open. He denied 2(a). The Panel applied the ordinary, natural meaning of the word ‘naked’.
The Panel considered the evidence of Witness 2, the letter she sent to the Teacher dated 14 June 2019 and the Teacher’s witness statements and his live evidence. In the letter, the terms ‘naked’ and ‘state of undress’ were used to describe the photographs from 2016 found on the Teacher’s phone by Police Scotland and reported by them to Witness 2 in or around June 2019.
In her GTC Scotland witness statement dated 12 November 2019, Witness 2 referred to the Teacher being in a ‘state of undress’ in the photos found and described to her by the police. There were no minutes of the June 2019 meeting with the Teacher, nor any file note of the call. The letter from Witness 2 to the Teacher, dated 14 June 2019, was the most contemporaneous record of the meeting in June 2019 with the Teacher. In the more recent GTC Scotland witness statement from Witness 2, dated 22 September 2023, she referred specifically to the Teacher’s penis being exposed in a photograph and she confirmed that clearly in her live evidence. The Panel found her to be open and direct and it found her evidence to be consistent, cogent and reliable.
The Teacher admitted that he was in a state of undress by having his shirt open. He denied he was ‘naked’. He did not at the time in 2019 challenge the term ‘naked’ which was used in the June 2019 letter to him to describe one of photographs. Despite that formal letter and having attended the meeting with his union representative, the Teacher said that he made no challenge to the word ‘naked’ in that letter. He told the Panel in his witness statements and in his live evidence that he took the photographs as part of a weight loss plan. He said that he had seen little point in challenging the matter in 2019, although he told the Panel that he had challenged his move away from the school. He accepted at the meeting in 2019, and in his evidence, that taking the photographs had been an inappropriate thing to do.
This was a serious matter for the Teacher. The Panel found that it did not have a credible explanation from the Teacher as to why he had not, at the time in 2019, challenged the use of the word ‘naked’, or why he did not, at the time, explain what he now said in his evidence as regards the weight loss programme. The Panel did not find the Teacher’s position in this respect to be consistent or credible.
The Panel considered the evidence in the round. It applied the ordinary and natural meaning of the word ‘naked’. It concluded, given the unchallenged terms of the June 2019 letter, which used the word ‘naked’, and the credible evidence of Witness 2, that it was more likely than not that the photograph found was one of the Teacher naked. As such, the Panel found Allegation 2(a) proved on the balance of probabilities.
The Panel next considered 2(b) and took account of the Teacher’s admission to a ‘state of undress’. The Panel took account of his witness statements and live evidence and it concluded that this admission was properly made and in full knowledge of the meaning and impact of the admission. It is consistent with the evidence from Witness 2. The Panel therefore found Allegation 2(a) and 2(b) proved on the balance of probabilities.
3. The Teacher’s actions at allegation 1 were sexually motivated
Given the findings at Allegation 1, the Panel found that this allegation falls away. It is not proved.
At the end of Stage 1 Findings in Fact, the Panel read out the allegations that were found proven.
Findings on Fitness to Teach
Given that the Panel found that some of the allegations were proved, the Panel invited the parties to lead evidence and make submissions in relation to the Teacher’s fitness to teach.
No witnesses were called at Stage 2 by either party.
Presenting Officer’s Submissions on Fitness to Teach
The Presenting Officer submitted that the starting point for consideration is the Public Services Reform (GTC Scotland) Order 2011 which states that an individual is unfit to teach if GTC Scotland
considers the Teacher’s conduct falls significantly short of the standards expected of a registered teacher. The Panel were invited to consider the guidance in the GTC Scotland Indicative Outcomes Guidance Practice Statement at Part A which sets out relevant factors to consider when assessing impairment.
The Presenting Officer submitted that the Panel should have regard to the GTC Scotland guidance on current fitness to teach and the importance of the public interest, as detailed in the GTC Scotland Indicative Outcomes Guidance Practice Statement.
In the present case, the Presenting Officer submitted that it was not suggested by the GTC Scotland that the findings mean the Teacher is unfit to teach. The Presenting Officer referred to the case of Roylance v GMC (no 2) [2000] 1 AC 311 and to COPAC. The Presenting Officer submitted that this appeared to be an isolated incident and no one else was involved, albeit it was unacceptable behaviour. The Presenting Officer submitted that the conduct was not fundamentally incompatible with being a teacher. The Presenting Officer submitted that teachers make errors of judgement, which fall short of what is proper and may breach parts of COPAC, but not every allegation that breaches the code is misconduct.
The Presenting Officer submitted that the Teacher had shown insight and had made some admissions, that the Teacher had no previous fitness to teach history and there was no pattern of conduct. There had been remediation and there were a number of positive testimonials. The Presenting Officer submitted that the conduct took place at an early stage in the Teacher’s career. There was significant mitigation, and he submitted that it was open to the Panel to find that the Teacher’s fitness to teach was not currently impaired.
Teacher’s Submissions on Fitness to Teach
The Teacher’s representative referred to the GTC Scotland Indicative Outcomes Guidance Practice Statement and the relevant case law and reminded the Panel this was a matter for the professional judgement of the Panel.
The Teacher’s representative also referred to Rule 2.8.1(b). The Teacher’s representative reminded the Panel that misconduct is not defined in the Rules, so the Panel should look at case law for a definition of this. The Teacher’s representative submitted that the conduct found proved does not amount to misconduct. In context, this conduct was a single error of judgment in 2016. It was not investigated at local authority level at the time and was dealt with by Witness 2 as a management issue.
The Teacher’s representative submitted that if the Panel decide there was misconduct, it does not require to make a finding of current impairment. The Teacher’s representative submitted that the Teacher had remediated his fitness to teach, shown insight and remorse and there were no aggravating factors. The Teacher’s representative submitted that recurrence was extremely unlikely. The Teacher’s representative reminded the Panel this conduct took place in 2016 and the Teacher has shown a clear understanding of his conduct and he has subsequently had a successful teaching career. The Teacher’s representative submitted that there was no risk to young people or to the public. He submitted that a reasonable member of the public would not expect a finding of impairment.
Legal Advice on Fitness to Teach
The Legal Assessor referred the Panel to the GTC Scotland Practice Statement on Indicative Outcomes Guidance and to the relevant case law including the case of Roylance on misconduct and CHRE v NMC and Grant [2011] EWHC 927 (Admin) on assessing current impairment, if misconduct was found. The Legal Assessor reminded the Panel of the importance of considering the seriousness of the misconduct and the guidance on that issue in Remedy UK Ltd v GMC [2010] EWHC 1245 (Admin).
Panel Decision on Fitness to Teach
The Panel accepted the legal advice. It considered all the evidence presented, its findings on facts and the submissions made by the parties in relation to the Teacher’s current fitness to teach. The Panel addressed the relevant matters outlined in the GTC Scotland Indicative Outcomes Guidance Practice Statement and in the case law.
It decided that the conduct found proved was ill judged and it was inappropriate. The Panel was mindful of considering the seriousness of the misconduct. The Panel found that the conduct did not involve any child or other person. It did not harm, or risk harm to anyone. It was an isolated incident and there was no evidence that it was a pattern of conduct. It took place in private, albeit on school premises. It occurred early in the Teacher’s career when he was a probationary teacher in 2016, some 9 years ago. The Teacher had subsequently developed a successful career and the positive testimonials demonstrated that he is an able and well respected teacher.
The Panel concluded that the conduct was poorly judged, possibly naïve, but decided that it was not conduct that was sufficiently serious or significant as to amount to misconduct. The conduct was not conduct that fell seriously below what would have been proper in the circumstances and it was not serious enough to go to fitness to teach.
The Panel considered the important wider public interest issues. It decided that a well informed and reasonable member of the public, knowing the context, and having regard to all the evidence and circumstances, would be satisfied that this was not conduct that was sufficiently serious or significant as to amount to misconduct. While it was inappropriate, it was not conduct of a nature or gravity that would be considered dishonourable or disgraceful.
The Panel considered that Part 1, standards 1.3 and 1.6 of COPAC were potentially engaged to an extent but, in the circumstances of this case, the Panel decided that the findings do not amount to misconduct. Those parts state as follow:
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;
1.6 you should maintain an awareness that as a teacher you are a role model to pupils
Temporary Restriction Order (TRO)
The Panel acknowledged that the Teacher has a TRO on his registration. The Panel considered the Rules, in particular Rule 2.6.2, and decided that it would be wholly incompatible with its findings on the facts and on fitness to teach for the TRO to maintain in place. Given the findings of the Panel, the Panel decided that to maintain that order would be unfair, inappropriate and contrary to natural justice. The TRO was accordingly removed with immediate effect.
Given the Panel’s finding that the facts found proved did not amount to misconduct, the case proceeded no further and that concludes this decision.
