You are here: Home > Regulation > Outcomes > Decisions > Darren Marr Decision Darren Marr Decision Full Hearing 27, 28, 29, 30, 31 August 2018 Teacher Darren Marr (Present/represented) Registration number 083755 Registration category Secondary Education - Physical Education Panel David Hughes-Hallet (Convener), Lily Proudfoot, Arthur Stewart Legal Assessor Julie McKinlay Servicing Officer Aga Adamczyk Presenting Officer Natalie McCartney, Anderson Strathern Teacher's representative Graeme Watson, Clyde & Co 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 Rules 2017 or refers to a provision (or provisions) within them; the “Register” means the GTCS register of teachers Preliminary issues Privacy Application The Teacher’s Representative made an application for the part of the hearing which is concerned with the health of the Teacher to be held in private. The Teacher’s Representative requested that the application be heard in private on the basis that, otherwise, the purpose of the application would be defeated. The Panel agreed to allow the application to be heard in private. The Teacher’s Representative submitted that the default position was that the hearing should be heard in public. The Panel was referred to the relevant rules and the fact that the Panel can depart from the default position only to the extent necessary in the interests of justice and where the particular circumstances of the case outweigh the interests of the Teacher and the public in the hearing being held in public. The Teacher’s Representative referred the Panel to the GTCS Practice Statement on Conducting Hearings in Private and, in particular, to the section relating to the protection of private life. The Presenting Officer did not object to the application made by the Teacher’s Representative. The Panel decided that the aspects of the evidence at the Full Hearing which relate to the Teacher’s health should be heard in private. In reaching its decision, the Panel considered the submissions of the Parties, Rules 1.7.2 and 1.7.3; as well as the Conducting Hearings in Private Practice Statement. The starting point was Rule 1.7.2 which sets out that hearings will be heard in public. This is the default position. However, Rule 1.7.3 provides: “A Panel may at any stage of proceedings, on its own initiative or an application to it, make an order with a view to preventing or restricting the public disclosure of any aspect of the proceedings. A Panel may do this insofar as it considers necessary where it is satisfied (having given parties an opportunity to make representations and in compliance with all of the relevant convention rights) that it is in the interests of justice to do so and in the particular circumstances of the case outweigh the interests of the teacher and the public in the hearing being held in public. Any such decision (and the reasons for it) will be announced in public or be made publicly available. Such orders may include (but will not be limited to)- (a) an order that a hearing be conducted (in whole or in part) in private; (b) an order that the identities of specified parties, witnesses or other persons referred to in the proceedings, should not be disclosed at such proceedings to the public (by the use of anonymisation or otherwise) and whether before, during or after those proceedings.” The GTCS Practice Statement on Conducting Hearings in Private makes it clear that it is for the Panel to decide whether all or part of a hearing should be held in private but that the decision must be justified by exception where it serves the interests of justice better than a hearing in public. The Practice Statement makes clear that the decision of a Panel that all or part of a hearing should be held in private must be consistent with Article 6(1) of the ECHR. In particular, the Panel members were mindful that in the course of the hearing, they may hear evidence of a private and personal nature concerning the Teacher’s health. It appeared to the Panel that the interests of justice favoured the hearing of that aspect of the evidence in private and any public interest in a public hearing was outweighed by the need to protect private life of the Teacher. The Panel decided that the evidence as to the health of the Teacher should be heard in private. All other aspects of the Full Hearing would be conducted in public. Allegations The following allegations were considered at the Full Hearing: On 12 November 2014, whilst employed as a teacher with West Lothian Council at School A, you did: Have inappropriate physical contact with a pupil during a lesson make an inappropriate remark to a pupil during a lesson in that you said words to the effect of “poofy Jew” Between 12 November 2014 and 6 March 2015, whilst employed as a teacher with West Lothian Council at School A you did: Contact fellow members of staff, while suspended contrary to management instructions As a result of that communication with fellow members of staff, you incited them to make contact with pupils who witnessed the incident on 12 November 2014 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 1.1, 1.2, 1.3, 1.4, 1.6. 2.3 and 2.5 of the General Teaching Council for Scotland’s Code of Professionalism and Conduct. Teacher’s Admissions The Teacher admitted allegation 1i and allegation 2i in full. The Panel found those allegations to be proved in accordance with Rule 1.7.21. The Teacher denied allegation 1ii in full. The Teacher admitted allegation 2ii but only to the extent of contact with one member of staff, namely Staff Member 4. 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 1 P2 Witness statement of Witness 2 P3 Witness statement of Witness 3 P4 Witness statement of Witness 4 P5 West Lothian Council Investigation Report and appendices Teacher’s hearing papers T1 Witness statement of Teacher, Darren James Marr T2 Statement of Witness 5 T3 Statement of Witness 6 T4 Statement of Witness 7 T5 Statement of Witness 8 T6 Reflective Statement of the Teacher T7 Testimonials T8 Professional Reading List T9 Articles and Extracts T10 Certificates Servicing Officer’s hearing papers S1 Notice of Full Hearing dated 30 July 2018 S2 Proof of service of Notice- email delivery and read receipts Summary of evidence The Panel heard oral evidence from eight witnesses including the Teacher. A summary of their evidence is as follows: Witness 1 Witness 1 gave evidence in person at the Full Hearing. Witness 1 is the Head of Education with West Lothian Council. At the time of the allegations, Witness 1 was the Head Teacher of School A. Witness 1 was not in the school at the time of the incident involving the Teacher and Pupil A on 12 November 2014. Witness 1 did not carry out any investigation herself. She did spend considerable time with Pupil A after the incident as he experienced bullying at the school after reporting the incident. Witness 1 said that Pupil A was adamant the Teacher had struck him on the head and called him a “poofy jew”. Pupil A told her that the Teacher had placed a blue bowl on his head and called him a crybaby. Witness 1 told the Panel that she instructed her deputy, Witness 4 to have a meeting with all of the staff to advise them that there had been an incident and that they should not contact the Teacher. Witness 1 said that she contacted the Teacher on the Sunday evening after the incident as she had a duty of care to him as a member of staff. She did not speak about the allegations with him. She told him to get a lawyer. Witness 1 said that during that call she told the Teacher that he should not contact staff, pupils or parents. On her return to school, Witness 1 attended at the PE department with Witness 4 to advise the staff there not to contact the Teacher. Staff Member 1 asked if she could contact the Teacher. Witness 1 said that she told Staff Member 1 she could send one text message to say that she was thinking about him but no further communications were to take place. It was the view of Witness 1 that she had been very clear that only one text was to be sent. Witness 1 stated in evidence that in December 2014, Staff Member 2 had come to her office quite upset and said that the Teacher had asked him for a character reference. The Teacher had asked Staff Member 2 to contact other members of staff which he had done. Staff Member 2 provided Witness 1 with the names of the teachers he had contacted. Staff Member 3, another teacher in the school showed Witness 1 a text message she had received from the Teacher (a copy of which was before the Panel). At that point, Witness 1 contacted the police as it seemed to Witness 1 that the Teacher had sought to have Staff Member 3 get a pupil to change their story. Witness 1 briefed all of the staff again on 15 December 2014 to reiterate that they should not be contacting the Teacher. Witness 1 was clear that the Teacher had been in contact with Staff Member 2 and Staff Member 3. On 6 March 2015, Witness 1 was contacted by the police who advised her that they had information that someone was interfering with their investigation. Witness 1 stated that police confirmed that they had seen a text message between the Teacher and another individual who appeared to be a teacher at the school. Witness 1 stated that the police advised her that they did not know who it was but they had a phone number. On the same day, Witness 1 held a meeting with staff. Witness 1 asked the member of staff to come forward by 1 pm that day. Witness 1 stated that no one came forward. Witness 1 confirmed that Staff Member 4 contacted the school thereafter by phone to advise that she had been in contact with the Teacher. In her oral evidence, Witness 1 said that she had had cause to speak to the Teacher before the incident in November 2014 and she referred to these incidents as “examples of the teacher’s lack of judgement”. She confirmed that the Teacher had not been involved in any disciplinary process prior to the incident in November 2014. The Panel considered that the witness gave her evidence in a straightforward and professional manner. She was generally credible and reliable. She gave her evidence in a dispassionate manner and did not display any dislike or malice towards the Teacher. The only real factual disparity between her evidence and that of the Teacher was when the telephone call between them had taken place after the incident. Given the passage of time, the Panel considered that it was understandable that there may be a difference in recollection as to when a particular discussion took place; although, importantly there was no real issue as the content of that call or the fact that it did take place. In addition, Witness 1 was clear that she told one member of staff, Staff Member 1 that only one text was to be sent by Staff Member 1 to the Teacher enquiring as to his welfare. It appears that some members of staff misunderstood, chose to ignore or were not in attendance when that instruction was given as there was more than one contact made by various members of the teaching staff with the Teacher. In the view of the Panel, this was not a particular issue which required to be resolved at the Full Hearing given that the allegation concerned the conduct of the Teacher and not that of other staff members. Witness 2 Witness 2 gave evidence in person at the Full Hearing. Witness 2 is a Business Resource Officer with West Lothian Council. Witness 2 was tasked with undertaking the investigation into the allegations on behalf of West Lothian Council. Witness 2 spoke to his investigation, the interviews he conducted and the documents he obtained. His report (redacted) was before the Panel. The investigation was interrupted as a consequence of the police investigation. Witness 2 conducted three interviews. He spoke to Witness 1, Witness 4 and the Teacher. He obtained police statements and interviews with pupils conducted by the Teacher’s Representative. Witness 2 also obtained the text message between the Teacher and Staff Member 3 and extracts from the text messages between Staff Member 4 and the Teacher. The Panel considered Witness 2 to be credible and reliable. Witness 2 was professional throughout although his evidence was of limited value to the Panel, as the Panel had the benefit of hearing from the same three witnesses that Witness 2 had spoken to, and beyond that he simply confirmed the documentation which he had gathered in carrying out his investigation. Witness 3 Witness 3 gave evidence in person at the Full Hearing. Witness 3 is a retired teacher. Prior to his retirement, he was the Acting Depute Head at School A. Witness 3 became aware of the incident involving the Teacher on 14 November 2014. Witness 3 explained that Pupil A was in the parents’ room writing out his statement. Witness 3 interrupted Pupil A and took him to his office where he asked Pupil A questions and noted the answers. Witness 3 explained that he typed the questions and answers given by Pupil A in the course of the interview. The Panel had a copy of that document. Witness 3 told the Panel what Pupil A had said. Witness 3 also explained that Pupil A’s step father had attended the school and it was Witness 3 who spoke to him. Pupil A’s step father was angry and threatened to “get” the Teacher. Witness 3 reported this to the police. Witness 3 along with Witness 4 then proceeded, on the instructions of HR, to interview 2 pupils from the class where the alleged incident took place. Witness 3 said that the pupils had been selected entirely at random from the class. Witness 3 was specifically asked if the pupils were those seated with Pupil A but Witness 3 said he did not know who was at the table. The Panel had before them the notes of those interviews. Witness 3 went on to tell the Panel that he had been alerted to the Teacher being in the lunch hall speaking to pupils about the incident. The Teacher was invited to Witness 4’s room and he said that the Teacher was upset and distressed. The Teacher asked whether this was about the incident and said he had been very stupid. The Teacher wanted to be assured that he would not lose his job. Witness 3 said that he and Witness 4 gave no response. Witness 3 gave a statement to the police and sat in on a number of the police interviews with pupils. The Panel considered Witness 3 to be a credible witness. He did his utmost to answer the questions put to him by the Parties and the Panel. There were some aspects of his evidence which contradicted that of Witness 4. The Panel was of the view that in some respects his evidence was not reliable. The Panel, however, considered that this was explained by the fact that the incident was a considerable time ago. In the view of the Panel, where his evidence differed from that of Witness 4 or was not supported by the documents, this was in relation to matters which were not material to the allegations. For example, Witness 3 said that he sat in on a number of pupils’ interviews with the police despite the fact that in the police statements he is mentioned only once. The Panel did not consider this to be significant and was clear that he had sought to answer what he was asked to the best of his ability. Importantly, in relation to the statements taken by Witness 3, the Panel accepted that these were taken in the manner described by Witness 3 and that he had typed the notes while the pupils spoke. The Panel preferred the evidence of Witness 3 in relation to the written statement of Pupil A on the basis that Witness 3 had interrupted the statement being taken and the statement had not therefore been completed, and did not know what had become of it after Witness 3 took Pupil A into the office to record his answers on the computer. As such, Witness 3 never saw a handwritten version of Pupil A’s statement. Witness 4 Witness 4 gave evidence in person at the Full Hearing. Witness 4 is the current Head Teacher at School A. At the time of the allegations, she was Depute Head Teacher. In that role and with the Head Teacher, Witness 1 absent from the school, she was told of the incident on the day it happened. Witness 4 spoke to HR to take advice and was told to take two statements from pupils in the class at the time of the incident. Witness 4 said that she picked pupils who were sitting at the table with Pupil A. She described those pupils as sensible and trustworthy. Witness 4 states that Pupil A had been asked to produce a written statement and that she had read this statement. This is in contrast to the evidence of Witness 3 who said that he had interrupted the statement being taken and it had not, as a result, been completed, and did not know what had become of it after Witness 3 took Pupil A into the office to record his answers on the computer. As such, Witness 3 never saw a handwritten version of Pupil A’s statement. Witness 4 spoke to the Teacher with Witness 3 present. She said that the Teacher asked if it was about Pupil A before she had spoken. The Teacher said he had been stupid. Witness 4 said that she had been instructed by HR not to discuss the nature of the allegations with the Teacher and to suspend him. She instructed the Teacher not to contact staff. The Teacher was upset at the meeting and asked Witness 4 if he would lose his job. Witness 4 became aware of the allegation concerning “poofy jew” when reading Pupil A’s handwritten statement. The day after the incident, Witness 4 held a staff meeting. She did not take an attendance record of this meeting, which she accepted in hindsight she ought to have done. At that meeting, she read a prepared statement word for word, the terms of which were before the Panel. Thereafter, Witness 4 confirmed that she attended a meeting in the PE department with Witness 1. Witness 4 confirmed that Witness 1 had told Staff Member 1 she could send one text to the Teacher but not to discuss the allegations. Witness 4 sat in on one of the police interviews with a pupil. Witness 4 described the Teacher as one who polarised opinions. She described him as a “Jack the lad” teacher. She acknowledged he would go the extra mile for pupils who were sporty. She explained that the events had had catastrophic consequences for Pupil A who had left the school early as a result. She said she was pretty sure the Teacher had been in the lunch hall when he was called to the meeting with her but she accepted it was a long time ago. Witness 4 repeated in oral evidence that her understanding was that the pupils she interviewed with Witness 3 were at the table with Pupil A and that she thought that information came from Witness 3. However, Witness 3 was clear in his evidence he did not know that and that they were picked at random. The Panel considered that it was not significant how they were selected and that the pupils interviewed were in fact at the table with Pupil A. Witness 4 was clear that both Witness 3 and she read the handwritten statement of Pupil A. This is in direct contradiction to the position of Witness 3. Since the whereabouts of such a written statement was unknown, in view of the Panel the evidence of Witness 3 was to be preferred that in fact he did not get the written statement and that he did not provide details of who was at the table with Pupil A as he did not know that at the time of the interviews. Rather, the statement which Witness 4 read and which made reference to the “poofy jew” was more likely to be the statement which Witness 3 took from Pupil A. The Panel considered that Witness 4 was credible but there were aspects of her evidence which were unreliable. The Panel was also left with the impression that she was keen to present the more negative aspects of the Teacher to the Panel and that this had affected how she gave her evidence. Having said that, the Panel considered that her evidence did not in fact lend much in relation to the matters to be addressed by the Panel. Darren James Marr – the Teacher The Teacher gave evidence in person at the Full Hearing. The Teacher graduated in 2008 and joined School A in a permanent post as a PE teacher in August 2009. He was promoted to head of house in October 2013. The Teacher described his role and responsibilities within the school. He was also tasked in the year 2013 and 2014 with implementing an initiative to improve attendance in the upper school. He was involved with numerous extra-curricular activities including trips abroad. The Teacher also approached the Council and the SQA in relation to introducing the National Progression Award in Exercise and Fitness and this was being run for the second year in the school at the time of the incident in November 2014. The Teacher was suspended following the incident in November 2014 and has not been in a position to teach since that time as a consequence of a Temporary Restriction Order imposed by the GTCS. The Teacher expressed a love for teaching and a desire to return to the profession if permitted. Since the incident, he has been working as a personal trainer and as a verifier of standards in the training of personal trainers. The Teacher described the incident on 12 November 2014 from his perspective. Pupil A was late to the class, as was typical. When asked why he was late, Pupil A said it was nothing to do with the Teacher. In oral evidence, the Teacher said that he had an understanding with Pupil A about this lateness as he was uncomfortable getting changed in front of other pupils. The PE class was divided into table groups and Pupil A was at a table with six or seven other pupils. That table was closest to the Teacher’s desk. The pupils at the table were noisy and the Teacher was concerned that Pupil A was not going to complete the necessary work. The Teacher spoke to Pupil A and his peers on numerous occasions, but they were continually distracting each other. The Teacher said that he had always enjoyed a good relationship with Pupil A. The Teacher approached Pupil A and lightly tapped Pupil A on the back of the head. In oral evidence, the Teacher demonstrated a flick of the wrist and said that his hand could have made contact, once or twice, with Pupil A’s head. The Teacher said that this was to get Pupil A to focus on his work. It was not intended to be malicious. The Teacher said that he accepted the behaviour was unacceptable and should never have happened but that he had intended to be lighthearted. Pupil A said to the Teacher “can you not hit me?” and the Teacher realised, at that point, that Pupil A was upset. The Teacher said he was not clear whether it was as a result of what the Teacher had done or about the work in class. At this point, the Teacher knelt beside Pupil A to talk to him and then the Teacher proceeded to place a small bowl on Pupil A’s head. This was also intended to be light hearted. He then said to the Pupil A “come on huffy you”. The Teacher said that Pupil A did not react and the class continued for approximately 35 minutes. He did not think at the time he had done anything wrong; although, he realises that now. The Teacher said that he now understood that he had demonstrated poor judgement and he would now err on the side of caution and seek support. In his statement, the Teacher indicated that Pupil A had misinterpreted his actions. The Teacher went on to describe events after the incident. He was called to a meeting with Witness 3 and Witness 4 that afternoon. The Teacher said that he was in the PE department when called to the meeting and not in the dining hall as suggested by others. He had been in the dining hall earlier but did not recall speaking to pupils who had been in the class at the time of incident. The Teacher says that he was told, at the meeting with Witness 3 and Witness 4, that an allegation of inappropriate contact with a pupil had been made. It came as a complete shock to him. The Teacher then said that his mind was racing and he cannot recall the remainder of the conversation. The Teacher said that he did not recall (despite the evidence of Witness 3 and Witness 4 ) asking Witness 3 and Witness 4 if the allegation related to Pupil A and that he had said he had been stupid. He was then suspended. The Teacher said he was told by Witness 4 not to have contact with school staff. Witness 1 contacted the Teacher by telephone. The Teacher said that this call occurred on the evening of Wednesday 12 November. She told him to get a good lawyer. Thereafter, the Teacher was arrested and charged. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXX XXXXXXXXXXXXXXXXXXXXXXX. Ultimately, the Teacher was acquitted of all criminal charges. The Teacher went on to describe his contact with staff at the school. Staff Member 2 contacted him asking him how he was. The Teacher understood that Staff Member 2 had been given permission to do so by Witness 1. The Teacher visited Staff Member 2 at his home at Staff Member 2’s invitation. They discussed who might provide character references for the Teacher for his up and coming court case. The Teacher also saw Witness 6 at their local football team matches; although, he did not discuss the allegations with her. The Teacher made reference to his discussion with Witness 7 and explained that he had attended XXXXX between 25 November 2014 and 24 March 2015. Staff Member 3 contacted the Teacher in or around the time of the allegations relating to Pupil A. The Teacher said that he asked Staff Member 3 to keep an ear out for him as he had been told a number of pupils had provided statements to the police supporting the allegations. Staff Member 3 told him that two pupils in her class had said what was happening to the Teacher was wrong. The Teacher asked her to provide a character reference. Staff Member 3 was attending a ski trip, which the Teacher was aware a number of pupils who had been in the class on the day of the incident, were attending. The Teacher said that he told Staff Member 3 she could speak to a certain pupil if she wished. His position was that he did not instruct her to do so. The Teacher said he was simply sharing his thoughts with her. The Teacher said that he did not intend to encourage Staff Member 3 to speak to pupils and she did not do so. The Panel had before them a text message between the Teacher and Staff Member 3. The position of the Teacher was that this could be interpreted in two ways. He accepted that he should not have sent the message to Staff Member 3. The Teacher was also contacted by Staff Member 4. She offered to help him by speaking to pupils who had been in the class at the time of the incident, and he accepted this offer. They exchanged text messages and Staff Member 4 kept the Teacher up to date with pupils she had contacted. The Teacher said he did not ask her to stop her contact with pupils. Rather, he accepts that he asked supplementary questions and encouraged her to obtain further information. The Teacher considered the written exchanges produced to be confusing and in the wrong order although he accepted he should not have sent the messages to Staff Member 4. He sought to apologise and said that he deeply regretted his actions. He stated that it had had dire consequences for both of their employments. The Teacher accepted that he ought not to have contacted members of staff but he was anxious to obtain references. In hindsight, he should have left this to his solicitor. He accepted that he had been instructed by management not to contact staff. The Teacher spoke about the impact on himself of the allegations and their aftermath in considerable detail. He was concerned about his career and saw his hard work “slipping away” as well as his financial stability. He was under pressure and took the XXXXXXX offered by the Council. XXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. The Teacher said that he was remorseful because of the position that his actions had put himself in and he regretted the impact his actions had had on others. When prompted, the Teacher stated that he regrets that Pupil A had been bullied. The Teacher said that he should have known better. The Panel considered that, in the main, the Teacher was a credible witness and had not sought to mislead the Panel. He had believed the position that he advanced before the Panel. The Panel considered that the Teacher viewed the allegations from his own perspective and the Panel considered that the Teacher sought to minimise his conduct, explaining it by reference to how he was feeling at the time or to offer explanations (such as the text message to Staff Member 3) in a way which was difficult to reconcile with the documentary evidence. These factors made the evidence of the Teacher difficult to rely on. The Teacher was, in the view of the Panel, mainly concerned with setting out the very considerable impact the situation had had on him. Witness 5 Witness 5 gave evidence in person at the Full Hearing. Witness 5 was a pupil at School A at the time of the incident and was in the class at the time. He is now at college. Witness 5 had been taught by the Teacher at various stages of his time at school. In S6 he was a pupil in the exercise and fitness leadership course which the Teacher taught. The Teacher was one of his favourite teachers. Witness 5 described the Teacher as popular with his pupils. Witness 5 was not aware that Pupil A had made a complaint about the Teacher until sometime after the date of the incident. He has not spoken to the Teacher about the incident or any of the other teaching staff either at the time or to date. Witness 5 was prepared to give evidence at the criminal trial but was not required to do so. He gave a statement to the solicitors acting for the Teacher and a copy of that statement was available to the Panel. Witness 5 explained that he was at a separate table from Pupil A; however, he had a clear view of Pupil A. He explained that Pupil A had arrived late for the class and had been spoken to by the Teacher. Pupil A was typically late. There was a lot of chatting coming from the table where Pupil A was sitting. The Teacher was walking around the class. Pupil A was not sticking to his work and was chatting to his friends. Witness 5 said that he saw the Teacher pat Pupil A’s head once to get him to focus on his work. Witness 5 said that it did not look like it would hurt and did not look like anything you would complain about. He was surprised a complaint had been made. Witness 5 said that Pupil A did not react and that there was no exchange of words. Witness 5 said that he did not hear any inappropriate remark being made by the Teacher. Witness 5 did not see a bowl being placed on Pupil A’s head. After Witness 5 saw the tap on Pupil’s head, Witness 5 got on with his work. The Panel considered Witness 5 to be credible and reliable in the evidence that he gave. He answered the questions he was asked and was straightforward in his responses. However, in the view of the Panel he did not witness the entire incident. It is clear that a bowl was placed on Pupil A’s head. This is admitted by the Teacher. As Witness 5 did not witness this, it is clear that he did not see the entire interaction between the Teacher and Pupil A. The witness himself admitted that he looked up and then got on with his work. Witness 6 Witness 6 is a teacher in the Physical Education department of School A and was in that position at the time of the incident. She worked with the Teacher. Witness 6 taught the Sports Leadership course with the Teacher. The Teacher was responsible for approaching the Council and the SQA to gain approval for the course to be run in school and, thereafter, in implementing and teaching the course. She described the Teacher as a very motivational and effective teacher. She said that he had responsibility for extra-curricular activities including running exercise classes for staff at lunchtime. Witness 6 said that she had not discussed the incident in November 2014 with the Teacher. Witness 6 was at the meeting in the PE department led by Witness 1 and this was when she heard that the Teacher had been suspended. She confirmed that, at that meeting, Witness 1 told the staff that there should be no discussion with the Teacher about the incident and that to do so would be a disciplinary matter. She recalled that a member of staff asked Witness 1 if they could send the Teacher a text message and Witness 1 had said this was acceptable so long as it was to check on his welfare. Witness 6 took from this discussion that Witness 1 was concerned for the Teacher’s welfare and that, provided that the texts concerned his welfare and not the allegations, then it was acceptable to contact the Teacher. Witness 6 said that if that had not been her understanding then she would have had to raise the matter with Witness 1 as she was aware that she would meet the Teacher outside school as they attended the same sporting event regularly. She did see the Teacher after the incident but did not discuss it with him. The Panel considered the witness to be credible and reliable. It was clear that she could not speak directly to the incident and that her evidence was largely as someone supportive of the Teacher and one who had worked with him. Witness 7– evidence heard in private Witness 7 is a General Practitioner. Notably, she is not the Teacher’s GP but a personal friend. Witness 7 met the Teacher in 2007 as they are the original members of a club for swimmers over the age of 18. Witness 7 described the Teacher as a very enthusiastic and popular member of the team as well as being very passionate and supportive of the club. The Teacher contacted Witness 7 on 16 November 2014 and asked if he could see her. She was surprised as he had never sought her help before. The Teacher visited her at home. She described the Teacher as XXX XX XXXXXX XXXX XXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXXXXXXXXXXXX XXXXXXXXXXXXXXX XXXXXXXXXXXXXXX XXXXXXXXXX XXXXXX XXX XXXXX XXX XXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXX XXXXX XXXXXXXX XXXX XXXXX XXXX. Witness 7 asked him what had happened and he said that he had lightly tapped a pupil on the head and placed a bowl on his head to encourage him to focus. He also told her that he was alleged to have called the pupil a “poofy jew” and he was astounded by that. He told her that he would be very surprised if he had said that. She said that he would have no reason to lie to her. Witness 7 said that her feeling was that he was having an XXXXXXXXXX reaction to recent events. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. She described the Teacher as a more quiet and withdrawn person as a consequence of these events. He had recalled to her that he had thoughts of self-harm but this was him reporting to her about six months after the event. The Panel considered that the witness was credible and reliable throughout although the Panel was mindful that she was not the GP of the Teacher and accordingly her evidence was limited to the extent that it described the Teacher’s presentation on the day he visited her home. The Panel had no difficulty in accepting that on that day he presented in the manner described to Witness 7. 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. Allegation 1i The Panel noted that the Teacher admitted allegation 1i. However, the Panel considered that it was appropriate to consider the nature and extent of that “inappropriate physical contact” in more detail not least because there was a difference between the Teacher and other evidence before the Panel as to that matter. The Panel was mindful that the nature and extent of the physical contact would inform the next stage in proceedings. The Panel Members did not hear direct evidence from Pupil A or any of the other pupils that gave statements to Witness 3 or the police. They did hear from Witness 5 who was a pupil in the class at the time of the incident albeit he was not at the table with Pupil A and was not interviewed by the police in the days after the incident. The Panel considered the GTCS Fact-finding in Fitness to Teach Conduct Cases Practice Statement. In particular, the Panel required to consider the statements provided by pupils to the police and to Witness 3 in circumstances where they had not heard from the pupils directly. The Panel was satisfied that Pupil A had been asked questions by Witness 3 on the day of the incident and that Witness 3 had noted the questions and the answers as they were given. In addition, the Panel was satisfied that Witness 3 had been present during the interview with Pupil SP and Pupil SM on the day of the incident and had noted the discussion as it happened. Further, the Panel was satisfied that the police had taken statements from various pupils and that each of these had been confirmed in the Provenance section of the statement as having been signed. The Panel was accordingly prepared to have regard to those statements. The Teacher accepted that he had placed a bowl on Pupil A’s head. It was of note that Witness 5 did not witness that aspect of the incident despite the fact that there is no doubt that it happened. Pupil DW, when interviewed by police, also did not mention the bowl aspect of the incident. In the view of the Panel, the significance of this is that Pupil DW and Witness 5 were the pupils who stated that the Teacher made contact with Pupil A’s head on one occasion only. Pupil A and the Pupils LA, JS, SP and CA all support the fact that the Teacher hit Pupil A on more than one occasion and, in fact, repeatedly. The statements of the pupils (other than Pupil DW) to the police were broadly consistent with each other as regards the incident insofar as it related to the Teacher’s physical contact with Pupil A and the placing of the bowl on his head. It was of note that the statements made by the pupils in the days after the incident were not identical in their terms, which the Panel considered suggested that there was no collusion between the pupils. In those circumstances, the Panel considered that weight could be given to their statements, given that they were broadly consistent with each other and the fact that the ones which were not could be explained by the fact that those witnesses (not having seen the bowl being placed) did not see the entire incident. The Panel considered that the Teacher had sought to play down the incident. He had not originally thought he had done anything wrong and throughout his evidence had sought to explain the conduct as a poor attempt to lighten Pupil A’s mood and have him focus on his work. The Panel did not consider that the Teacher was reliable in his recollection of events. A number of pupils were consistent in their position that the Teacher had made repeated contact with Pupil A’s head. It should be noted that they were also consistent that this was not done with force. There was no evidence before the Panel that injury was caused. It was, however, clear that it was sufficient to cause Pupil A upset and embarrassment. The Teacher accepted Pupil A had been upset. Although, the Teacher did not, in evidence, acknowledge that this was wholly as a result of his conduct. Whilst Witness 5 and Pupil DW had not seen repeated contact, it was clear to the Panel that they had not seen the entirety of the incident as they had not seen the bowl placed on Pupil A’s head either. The Panel preferred the evidence of the pupils in their statements to Witness 3 and to the police. In all the circumstances, the Panel found allegation 1i proved. In particular, the Panel found that there had been contact between the open hand of the Teacher and the back of Pupil A’s head and that this had been done repeatedly and that this, along with the placing of the bowl on the pupil’s head, had caused the pupil upset and embarrassment. The Panel considered that although no injury had been caused, the contact was inappropriate and deliberate. Allegation 1ii The Teacher denied allegation 1ii. The Panel had regard to the pupil statements given to the police and to Witness 1. Pupil A was clear as to what had been said. However, on the basis that the Teacher denied making the comment, the Panel sought support for the allegation within the statements of others who were present. The pupils spoken to by Witness 3 on the day of the incident made no mention of the comment being made despite being asked if anything else had been said or was out of the ordinary. The Panel had regard to the police statements. Only one pupil (not being Pupil A) made mention of the comment without being asked a leading question about the comment by the police. One pupil, even after being led, said that they did not hear the comment. The Panel did not consider that they could place weight on the evidence of the pupils in those statements where they had been asked leading questions. Whilst there was a pupil who had made mention of the comment without prompting, the Panel had not heard from that pupil and had not been given the opportunity to ask him questions at the Full Hearing. Neither that pupil nor Pupil A had been subject to cross examination. With the lack of consistency across the statements regarding allegation 1ii, the Panel did not consider that, on the balance of probabilities, the allegation had been proved. The Panel accordingly found allegation 1ii not proved. Allegation 2i The Panel noted that the Teacher admitted allegation 2i. The Panel was of the view that whilst there was some confusion among some staff (notably Witness 6) as to whether they could contact the Teacher and what he could be contacted about, there was no doubt that the Teacher had been told not to contact staff. He had been told not to do so both in the meeting with Witness 4 and in writing in correspondence from the Council. The Teacher accepted that he had contacted staff contrary to management instructions. Allegation 2ii The Panel noted that the Teacher admitted the allegation 2ii to the extent that it involved contact with Staff Member 4. The Panel also found this allegation proved in respect of Staff Member 3. In particular, the Panel gave careful consideration to the text communication between the Teacher and Staff Member 3. There was no dispute as to the fact that the text before the Panel was a communication between Staff Member 3 and the Teacher. The position of the Teacher was that he was not inciting her to contact pupils and had not directly requested that she did so. However, the Panel considered that, on a reasonable reading of the text, the Teacher was indeed inciting Staff Member 3 to contact pupils who witnessed the incident. It was clear from the interview that Staff Member 3 gave to the police that she considered that she was being asked by the Teacher to do so. The Panel considered that the fact that she did not in fact do so was irrelevant. The text was clear in its terms and the Panel did not agree with the Teacher that the text could be read in different ways. The Panel considered the text message was clear. The Panel found allegation 2ii proved in respect of Staff Member 3 and Staff Member 4. Findings on Fitness to Teach Given that the Panel found that allegations 1i, 2i and 2ii were proved, the Panel invited the Parties to make submissions in relation to the Teacher’s current fitness to teach. At this stage, the Teacher’s Representative made an application to the Panel to consider additional papers in respect of the Fitness to Teach stage of proceedings. The additional papers consisted of a reflective piece by the Teacher, references from individuals and details of materials the Teacher had read and considered during his absence from teaching. The Presenting Officer had no objection to the lodging of the additional papers but reminded the Panel that general character references were relevant only at the disposal stage of proceedings. The Panel considered that the additional papers were relevant to the Fitness to Teach stage of proceedings and that it was accordingly fair to allow the additional papers at this stage in proceedings. The Teacher did not give additional oral evidence. 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. The Panel addressed the relevant considerations in relation to fitness to teach, as outlined in the GTCS Indicative Outcomes Guidance. The Teacher accepted that, at the time of the allegations, his conduct fell short of the professional standards expected of a registered teacher. The Teacher also accepted that his fitness to teach was currently impaired. The Panel carefully considered the parts of COPAC referred to within the allegation. The Panel concluded that the Teacher had breached the following parts of COPAC: you must maintain appropriate professional boundaries, avoid improper contact or relationships with pupils and respect your unique position of trust as a teacher (1.2) 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 (1.3) you must uphold standards of personal and professional conduct, honesty and integrity so that the public have confidence in you as a teacher and teaching as a profession (1.4) you should be professional, honest and act with integrity in your dealings with GTC Scotland, other regulatory (or similar) bodies and employers (including prospective and past) (1.5) you should maintain an awareness that as a teacher you are a role model to pupils (1.6) you should aim to be a positive role model to pupils and motivate and inspire them to realise their full potential (2.3) as a member of the children’s workforce in Scotland you should recognise your role as a professional in delivering better outcomes for children and young people (2.5) The Teacher had made inappropriate physical contact with Pupil A. Whilst the Panel accepted that this was not done with force, the contact was made repeatedly and was followed by placing a plastic bowl on a pupil’s head in front of his peers and to his upset. The Panel was of the view that this conduct would have humiliated and embarrassed him before his peers. By acting in this way, the Teacher had failed to act as a role model and had failed in his role as a professional delivering better outcomes for pupils and encouraging them to meet their potential. The Panel considered that whilst the Teacher was not directly responsible for the bullying to which Pupil A was subsequently exposed, it was clear that this had been as a direct consequence of complaining about the conduct at the hands of the Teacher. Further, the Teacher had compounded matters by ignoring management instructions not to contact staff members which had put them in a difficult position and had exposed them to a risk of a potential disciplinary action being taken against them. The Panel considered that the Teacher’s conduct in inciting two fellow teachers to contact pupils (one of whom acted on that encouragement) was extremely serious as he did so being fully aware that a police investigation was ongoing. As a consequence, the Panel did consider that the Teacher’s conduct, at the time of the allegations, fell significantly short of the professional standards expected of a registered teacher. The Panel next considered whether the conduct was remediable, had been remedied and whether there was a likelihood of recurrence. The Panel considered that there was no history of inappropriate physical contact between the Teacher and pupils before the incident in November 2014. The Panel was prepared to accept the position of the Teacher that he had learned his lesson and would not act in a similar way again. The Panel took assurance from the fact that it was clear to them that the aftermath of the incident, the involvement of the police, his employer and the GTCS had had a significant negative impact on his life and he had suffered as a consequence. As such, the Panel was satisfied the Teacher was unlikely to repeat conduct involving inappropriate physical contact with a pupil. The Panel was clear that their conclusion that the conduct was unlikely to be repeated was based upon the detrimental effect that being reported for such conduct had had on the Teacher rather than a demonstration of insight and regret about the impact of his conduct on Pupil A. The Teacher would therefore be more likely to be concerned about the repercussions for himself in the event that the conduct was repeated. The Panel was not satisfied that the same could be said of the conduct in Allegation 2. The Panel considered that the Teacher had spoken extensively about the negative impact that the events leading to these proceedings had had on him personally. However, he had sought to explain away his actions by reference to his health and his feelings of XXXXXXXX during the period of time in question. Whilst the Panel was content to accept the evidence of Witness 7 xxxxxxxxxxxxxxx xxxxxxxxx xxxxxxxxxxx xxxxxxxxxxxxxxxx xxxxxxxxxxxx xxxxxxxx xxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, there was no xxxxxxx evidence before the Panel such that they could conclude that his judgment was impaired to such an extent which would explain or justify conduct over a period of time in ignoring management instructions and inciting others to speak to pupils whilst a police investigation was ongoing. Whilst the Panel could accept, as the Teacher explained, that he was under pressure, this did not, in the view of the Panel, excuse his conduct. Whilst it may be unlikely that the precise circumstances giving rise to the incitement of others might arise in the future, the Panel did not consider that the Teacher had shown a sufficient level of insight into his conduct such that if a similar situation was to present itself, he might not act in a similar manner. The Panel had regard to the reflective piece but considered that it was inadequate in demonstrating true and genuine insight and remorse and, in particular, in demonstrating a proper understanding of the effect that the conduct had had on Pupil A, and the two teachers at the centre of allegation 2. Notably, the Teacher said that Pupil A had misinterpreted his actions thus appearing to place some responsibility for the allegation on Pupil A. The Teacher had, in the view of the Panel, sought to downplay the allegations and had offered a tortured explanation as to the meaning of the text message to Staff Member 3. The Panel considered that the Teacher had shown insufficient insight into the effect of his conduct on Staff Member 3 and Staff Member 4 albeit he did mention them at the Hearing. The Panel considered that they were secondary in his mind to the effect of his conduct on his own life and career. For all these reasons, the Panel could not be satisfied that the Teacher had shown a sufficient level of insight, done enough to remediate the conduct or to satisfy the Panel that it would not be repeated. The Panel also considered the public interest and whether the public interest demanded a finding that the Teacher was unfit to teach. The Panel considered each of the public interest factors set out in the GTCS Indicative Outcomes Guidance and reminded itself of the importance of the public interest in regulatory proceedings. The Panel did not consider that that there was a risk of the inappropriate physical contact being repeated for the reasons explained, and thus there was not a requirement of a finding in the public interest to protect the public. However, having regard to the need to maintain the public’s confidence in the teaching profession and in the GTCS as the professional regulator as well as having regard to the deterrent effect that a finding may have, the Panel considered a finding that the Teacher was unfit to teach was necessary in the public interest. In the view of the Panel, the public would expect allegations of this nature to give rise to a finding that the Teacher was unfit to teach with particular regard to the allegation 2 and the conduct of the Teacher following the initial allegation. In effect, the Teacher compounded the initial allegation by his actions and caused considerable harm to others as a consequence of implicating them in such behaviour and in interfering in an investigation. Accordingly, for the reasons set out above, the Panel determined that the Teacher’s conduct falls significantly short of the standards expected of a registered teacher and that he is therefore 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, his name 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 directed that the Teacher should be prohibited from making an application for re-registration for the period of six months from the date of its decision. The Panel considered that a longer time period was inappropriate. The Panel had regard to the fact that the conduct occurred a number of years ago and the Teacher had been unable to teach for about four years due to a Temporary Restriction Order. On the basis that the Panel considered that the Teacher had not shown sufficient insight into his conduct and the impact on those whom the conduct had affected, the Panel considered that the period of six months was sufficient to allow him to reflect and to apply to be re-registered. The Panel did not wish to impose a longer period of prohibition which could deter the Teacher from addressing the impairment simply by virtue of the fact that too much time had passed and which would act as an additional barrier to a return to teaching. The Panel was mindful that the Teacher had produced a number of positive references in relation to his teaching and a number of pupils had described him in positive terms. However, the Teacher would require to satisfy any future Panel that he is fit to teach. 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.