Teachers Defence ServiceDigested Case Law: JB v The General Teaching Council for Scotland  CSIH 114
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Scottish Case Law
Teachers Defence Service represents teachers in General Teaching Council for Scotland (GTCS) Professional Conduct Inquiries.
Below we summarise the main elements of the case of: JB v The General Teaching Council for Scotland  CSIH 114 This case is relevant to Scotland but may be of interest to teachers across the UK.
The appellant had applied for registration but was refused by a Fitness to Teach Panel and prohibited from making a further application for a period of 2 years. He complained about the conduct of his hearing, but his appeal was dismissed on all grounds.
In 2003 JB was accused by his two sisters and his brother of sexually abusing them when they were children. As a result of the investigation into these allegations the appellant was indicted in the High Court. After trial in 2005 he was convicted of charges relating to each of the complainers and he was sentenced to 11 years imprisonment. In 2009 his conviction was quashed on the ground of defective representation at his trial. Authority was given to the Crown to raise a new prosecution as a result of which, after a retrial in 2010, all the charges against the appellant were found not proven.
JB’s registration with the GTCS having lapsed while he was imprisoned, after his acquittal in 2010 the appellant applied for re-registration as a teacher. When the GTCS became aware of the history of the appellant they considered the question of his fitness to teach and in August 2011 the investigating sub-committee agreed to refer the case to the disciplinary subcommittee for further consideration. The appellant did not attend the hearing in December 2012.
In 2012 the Fitness to Teach Panel of the GTCS directed that the appellant’s application for registration be refused and that he should be prohibited from making a further application for a period of two years.
The panel accepted that the GTCS had a duty to investigate the serious sexual allegations which had been drawn to their attention along with allegations that the appellant had engaged with offensive and inappropriate correspondence to the GTC Scotland whilst it was seeking to discharge its regulatory functions.
By a majority, the panel found that the allegations had been proven on a balance of probabilities. The panel determined that the appellant’s conduct fell significantly short of the standards expected of an applicant for registration and that he was therefore unfit to teach.
The appellant appealed the decision. At the earlier stages of his appeal the appellant was represented by solicitors and counsel who lodged the appeal, however, the appellant attended and represented himself at the appeal hearing.
He adopted the submissions in a note of argument without further development and advanced a number of separate submissions of his own. The effect of his submissions was to introduce an additional ground of appeal, namely, bias on the part of GTCS personnel and committee members.
In dismissing the appeal, the Court, Paton LJ, Bracadale LJ and Wheatley LJ considered each of the grounds of appeal:
The first ground argued was the that the serious sexual conduct alleged did not fall within the definition of a relevant complaint for the purposes of the 2012 rules. However, the court considered that as by the time the 2012 rules came into force the appellant’s case was under consideration by the disciplinary sub-committee. Accordingly, the 2012 rules definition of a relevant complaint had no bearing on the appellant’s case [paragraph 33].
The second ground of appeal was that the GTCS had misdirected itself as to the meaning of and correct test to be applied in determining whether an individual was unfit to teach. The correct standard was set out in article 18(3) of the 2011 Order as being “expected of a registered teacher”. In the court’s opinion nothing turned on the use of language by the panel which clearly applied the correct test [paragraph 34].
The third ground of appeal was that the GTCS had erred in law in finding the appellant unfit to teach as the serious sexual conduct complained of was of such an age as to render any prospect of the appellant receiving a fair hearing negligible in violation of article 6 of ECHR. The court considered that although old, the allegations were of a very serious nature and, on any view, relevant to the question of the appellant’s fitness to teach. The appellant chose not to engage in the proceedings. The court was unable to see any basis on which it could be said that he did not have the opportunity to have a fair hearing [paragraph 46].
The fourth ground of appeal was that the panel had failed to have any, or any proper regard, to the appellant’s statement sent by letter dated 8 December 2012. However, the court agreed with the respondent’s submission that the letter of 8 December 2012 did not bear to be a submission or representation to the panel but was one of a very large number of lengthy letters written by the appellant [paragraph 35].
The fifth ground of appeal was that the GTCS erred in finding that the appellant’s correspondence rendered the appellant unfit to teach in that they fell “short of the standards expected of an applicant”. However, it was the view of the court that the content and tone of the letters written by the appellant were far from moderate. Irrespective of the extreme stress under which the appellant must have been functioning, the court was satisfied that the panel was entitled to come to the conclusion that the letters written by the appellant were offensive and inappropriate and demonstrated behaviour which fell significantly short of the standards expected of a registered teacher [paragraph 52].
The sixth ground of appeal was that the GTCS had failed to provide adequate reasons for its decision. In particular, it had failed to specify what material and information it had before it in connection with the complaints and how it approached that material and information. However, the court was satisfied that when the decision of the panel is read as a whole the informed reader, such as the appellant, would be in no real or substantial doubt as to the reasons on which the panel arrived at its decision [paragraph 50].
The court then considered the new ground of bias. The court stated that where the issue of bias is raised the test to be applied is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased (Porter v Magill  2 AC 357, per Lord Hope of Craighead at p 494) [paragraph 36].
Once these matters were drawn to the attention of the GTCS they were bound to investigate them. Given the serious nature of the allegations, by investigating them, the GTCS was carrying out its statutory obligation.
The court was unable to accept the contention of the appellant that the decision of the panel was the inevitable result of bias on the part of the employees and committee members of the GTCS and that the decision of the panel was tainted by the behaviour of the employees. Having read the correspondence, the court was unable to detect bias on the part of the officials of the GTCS who communicated with the appellant. The officials were doing no more than would be expected of an investigating officer making contact with a potential witness in the course of carrying out a proper inquiry into allegations which had been drawn to the attention of the GTCS [paragraph 38].
The appellant’s criticism of the Crown Office was misconceived. It does not follow that because the Crown Office provided the GTCS with the police summary in relation to the allegations against the appellant that the Crown Office were prejudiced against him and were not acting independently [paragraph 39].
There had been a hearing scheduled in July 2012 but there had been issues which resulted in the appellant being asked to leave the building. The panel had recused itself. At the resumed hearing in December 2012 the appellant advised the panel that he would not be attending stating, “Given the nature of GTC committee members inevitable criminal deeming of criminal fabrications got up in conformity with an established criminal threat and the criminal abuses done to me as a consequence of my attendance at Clerwood House at 19th and 27th July 2012 it is unsafe for me to repeat the error. I will not expose myself to further such criminal abuses.” The appellant also advised that there would be no point in his taking part because he would not be permitted to cross-examine his sister in relation to the allegations of a sexual nature. However, the court concluded that by doing so, he denied himself the opportunity to put to his sister that her evidence was untrue. He denied himself the opportunity to confront her with the threat that she had made, and admitted under oath having made, to ruin his life and his career. He denied himself the opportunity to put his own position before the panel and to make submissions to them [paragraph 43].
It was the opinion of the court that the members of the panel were independent of the GTCS; they would not have had any dealings with the appellant’s case before. They were assisted by a legal assessor. The case was presented by a presenting officer. In the court’s view the decision of the panel in July to recuse itself was, in itself, indicative of an independent approach by the Fitness to Teach Panel [paragraph 44].
The court therefore considered that there was no real possibility that the decision of the panel was in itself biased or was the inevitable outcome of bias at earlier stages. The court was unable to detect any real or apparent bias in the case [paragraph 45].
For those reasons the court was of the opinion that none of the grounds of appeal were well founded and the appeal was refused.
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