You are here: Home > Regulation > Outcomes > Decisions > Full Hearing Full Hearing Full Hearing 8 & 9 July 2018 Teacher XXXXX Present (represented) Registration number XXXXX Registration category Secondary Panel David Hughes-Hallett (Convener), Frieda Fraser and Arthur Stewart Legal Assessor Julie Mckinlay Servicing Officer Kirsty McIntosh Presenting Officer Gary Burton, Anderson Strathern Respondent's representative Andrew Faux (Barrister) instructed by Sarah Linden - ASCL 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 issue The Teacher’s representative made the following application: (I) an application for a late paper to be allowed as a preliminary matter Late Paper The Teacher’s representative sought to lodge a document headed “Prize-Giving Event in School 1 on Wednesday 28 August 2013”. The Teacher’s representative submitted that the document was one which was referred to in the Teacher’s statement at paragraph 42 and was given to the Teacher by Witness 2. It relates to the explanation provided to the Teacher by her as to how the monies were used. The document ought to have been produced with the witness statement of the Teacher. However the Teacher lives abroad and all of the preparations for the case have had to be conducted long distance. It is relevant to the Teacher’s position. The Presenting Officer had no objection to the document being allowed late. The Panel had regard to Rules 1.7.17 and 1.7.22. The Panel heard from both parties and considered the explanation given. The Panel considered that the document was relevant to the matters to be determined by the Panel. Given that there was no objection to the document being allowed and the document being relevant, the Panel considered that it was fair to allow the document to be lodged although late. Allegation The following allegation was considered at the hearing: Between April 2012 and April 2014, both dates inclusive, whilst employed as a Head Teacher by Highland Council at School 1, you did: a. Embezzle the sum of £225 after cashing a cheque (School Fund Cheque number 013936) for £300 and only administering £75 to pupils in respect of a school prize giving; b. And in light of your actions at 1(a) above you acted dishonestly by misappropriating the money belonging to your employer. And in light of the above, it is alleged that your fitness to teach is impaired and you are unfit to teach, as a result of breaching Parts 1.3, 1.4, 1.5 and 1.6 of the General Teaching Council for Scotland’s Code of Professionalism and Conduct. Teacher’s admissions The Teacher denied the allegation. 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 Internal Audit – Irregularity Report and Inappropriate Expenditure, dated 24 April 2014 P3 Internal Audit – Irregularity Report – School Fund, dated 24 April 2014 Teacher’s hearing papers T1 Statement of XXXXXXXXXXXXXX T2 CV of XXXXXXXXXXXXXX T3 Letter from Chair of Governors, dated 25 February 2010 T4 E-mail from Witness 2 to Teacher, dated 6 May 2014 T5 E-mail from Witness 3 to Teacher, dated 7 May 2014 T6 Document headed “Prize-Giving Event in School 1 on Wednesday 28 August 2013” (Late paper) Servicing Officer’s hearing papers SO1 Notice of Hearing, dated 11 June 2018 SO2 Notice of Hearing Response Form, dated 14 June 2018 SO3 E-mail delivery receipt dated 11 June 2018 SO4 Postponement application outcome, dated 27 June 2018 Summary of evidence The Presenting Officer relied upon the evidence disclosed within the papers. No oral evidence was led. The Presenting Officer read the statement of Witness 1 into evidence. The statement was signed and dated 26 June 2017. In particular at Page 14 of the Internal Audit, Irregularity Report - School Fund dated 24 April 2014 the audit visit and the cheque is discussed. That was the extent of the case presented by the Presenting Officer. Application for No Case to Answer After hearing the case presented by the Presenting Officer the Teacher’s representative made an application for the case to be dismissed on the basis that there was no case to answer. The Teacher’s representative submitted that there was no evidence to conclude that on the balance of probabilities the Teacher embezzled the money. The Teacher’s representative acknowledged that the statement by Witness 1 and the audit report alleged criticism of the Teacher’s financial management of the school. One of his difficulties has been to avoid the desire on the Teacher’s part to respond to these matters. The allegation is however very narrow in scope. The evidence as to the allegation is contained in Paragraphs 11, 17 and 23 of the statement of Witness 1. The statement indicates that clerical staff privately raised an issue during the audit visit. The Teacher claimed that the cheque was for prize giving. The statement goes on the give an explanation to account for the cash payment. No one appears to know if £75 was indeed handed to the pupils. It is unclear what happened to the remainder of the money. The Teacher’s representative submitted that Witness 2 was however prosecuted although there was no evidence as to the basis of that prosecution and the GTCS have not chosen to find out. The Teacher was not prosecuted. The Teacher’s representative submitted that there was clearly evidence to justify a charge against Witness 2 but not against the Teacher. What is not disclosed in the evidence is a proper assertion that the Teacher stole the money or evidence to infer that he stole the money. There is no evidence as to whose signature is on the cheque. Despite the passage of time the cheque has not been produced. It is not known to whom the cheque was made out. The Teacher’s representative noted that the test to be applied is that within R v Galbraith  1 WLR 1039. The case should be dismissed there being no case to answer. The Presenting officer was given the opportunity to respond. The Presenting officer stated that whilst there was no specific rule in respect of an application of no case to answer, in fairness it is competent to make such an application. In relation to the test to be applied the Presenting officer made reference to the case of R v Galbraith. The Presenting officer submitted that the evidence was contained within the witness statement of Witness 1. He advised that in paragraph 11 of the statement in particular it is said that the Teacher advised that the cheque had been used for school prize giving. The DHT had given Witness 1 a list of those who received those cash prizes and this amounted to only £75. The Presenting officer submitted that the Teacher’s position was that he did sign blank cheques. The Panel was invited to refuse the application for no case to answer. Decision The Panel carefully considered the submissions of the parties. The Panel considered that although there was no express provision within the Rules to consider an application to dismiss a case on the basis that there was no case to answer at this stage, that it was a competent application to make. The Panel may regulate their own procedure and having regard to the General Objective the Panel considered that it was appropriate to consider the application for no case to answer in the interests of dealing with the case fairly and justly. The Panel had been referred to the case of R v Galbraith in which the approach to a no case to answer submission by the courts is considered. In particular if there is no evidence that what is alleged has been committed by the party accused then the case will not proceed. The Panel had regard to the evidence contained within the witness statement and the Internal Audit, Irregularity- School Fund dated 24 April 2014. The Panel considered that there was no evidence to find the allegation against the Teacher proved. Whilst there was no explanation within the evidence as to what had happened to the sum of £225 (following the pupils receiving prize money in the sum of £75) there was no evidence to implicate the Teacher in the embezzlement of the balance on the sum of £225.00. In the event that allegation 1a cannot be proved, it follows that allegation 1b cannot be found proved. Accordingly, the Panel considered that the application to dismiss the case on the basis that there is no case to answer should be granted. The case is accordingly dismissed.