SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Clarke Lord Philip	[2012] CSIH 21 XA12/11 OPINION OF THE LORD JUSTICE CLERK in Appeal by DOUGLAS TREDINNICK Appellant; against THE GENERAL TEACHING COUNCIL FOR SCOTLAND Respondent; _______

For the Appellant: Party

For the Respondent: Sheldon; Brodies

15 February 2012

Introduction

[1] This is an appeal against a decision of the Disciplinary Sub-Committee of the respondent (the Sub-Committee) dated 18 January 2011 by which it found the appellant guilty of two charges of having struck a pupil in incidents at a secondary school in Aberdeen on 9 and 15 September 2008. The Sub-Committee found that the appellant's actions amounted to relevant misconduct. It directed that the appellant's name should be removed from the Register of the General Teaching Council and that restoration of his name should be prohibited for a period of twelve months.

The history

[2] On 24 July 2009 the respondent notified the appellant that it had received information from his former employer, Aberdeen City Council, that raised the question whether he had committed relevant misconduct within the meaning of section 9B(a)(i) of the Teaching Council (Scotland) Act 1965 (the 1965 Act). The respondent gave the appellant a copy of the information. It related inter alia to the two allegations of assault. The respondent also gave the appellant a leaflet entitled Dealing with Complaints of Alleged Relevant Misconduct from Employers which advised teachers in the position of the appellant to consider seeking advice from a trade union or a professional association.

[3] Thereafter the respondent's Investigating Sub-Committee carried out a preliminary investigation. It too recommended the appellant to consider obtaining independent advice from, for example, a trade union or professional association.

[4] By letter dated 4 December 2009, the respondent notified the appellant that the Investigating Sub-Committee would refer the matter to the Disciplinary Sub-Committee. It said inter alia

"You may wish to give serious consideration to obtaining independent legal advice before responding".

The respondent also enclosed a copy of its Conduct, Competence and Disciplinary Rules 2006 (the 2006 Rules) together with a leaflet that included the following advice:

"It is strongly recommended that you obtain the services of a Union/Professional Association representative or a Lawyer both to advise you prior to and represent you at the Hearing itself."

[5] On 8 October 2010, Brodies LLP (Brodies) on behalf of the respondent notified the appellant that the charges of assault would be considered at a meeting of the Sub-Committee and that a preliminary hearing would take place on 9 November 2010. Brodies invited the appellant to indicate whether or not he admitted the charges; whether he would attend the hearing; whether he would be represented and which witnesses he would call; to make any comments that he wished the Sub-Committee to take into account, and to submit any copy documents, statements or reports to which he might wish to refer. The appellant was advised that if he wished to postpone the hearing, he should make an application in writing. Brodies enclosed a further copy of the 2006 Rules and drew the appellant's attention to the provisions regarding his right to be represented by counsel, solicitor, professional association or some other person.

[6] The appellant replied that he did not admit the charges; that he would not attend the hearing, and that he did not have a representative. He said that he intended to call Mr Higgs and Mr Paul, who were teachers at his former place of work. He also attached a separate signed statement dated 18 October 2010.

[7] On 3 November 2010, Brodies advised that certain pupils were to be called as witnesses to the charges and that the Sub-Committee would be asked to fixed a full hearing for 14 December 2010. The appellant was asked to say if he or his witnesses would be unavailable on that date.

[8] On 5 November 2010 the appellant telephoned Brodies. He said that he was having difficulty in obtaining legal representation and in contacting witnesses. He asked the solicitor at Brodies who was dealing with the case whether he knew of a suitable firm in Aberdeen that could assist him. The solicitor told him that he was not in a position to do that. He advised him that if the hearing date caused him problems he should write to the respondent.

[9] On 10 November 2010 the appellant stated in an email that he did not have "access" to witnesses. He had approached firms of solicitors in Aberdeen but none had felt qualified to represent him.

[10] On 26 November 2010, Brodies wrote to the appellant noting his concerns regarding representation and access to witnesses. They recommended that he should obtain legal advice as soon as possible. They suggested that he should contact the Law Society of Scotland who might be able to put him in contact with a suitable firm. They noted that the appellant wished to call Mr Higgs and Mr Paul as witnesses. They had contacted the relevant school and had been told that neither was willing to appear as a witness on the appellant's behalf. Brodies said that they could not compel witnesses to come forward to assist the appellant. They enclosed copies of the statements of the children and teachers whom they intended to call as witnesses. They told the appellant that he would have the right to cross-examine these witnesses. They confirmed that the full hearing was fixed for 14 December 2010.

[11] On 29 November the appellant applied to the respondent to postpone the hearing. He said that he would be unable to prepare his defence in time with the facilities available to him. The Sub-Committee refused the application.

[12] On 6 December 2010 the appellant notified the clerk to the Sub-Committee that he would not be attending the hearing. He said:

"Without time and access to witnesses I am unable to prepare defense [sic] with or without legal assistance therefore the result as in the past is a foregone conclusion."

The reference to the past is, I infer, a reference to the disciplinary proceedings which led to the termination of his employment by Aberdeen City Council.

[13] In the event the hearing had to be postponed for other reasons. It was held on 18 January 2011. The appellant did not attend.

The 2006 rules

[14] The 2006 Rules provide that the teacher who is charged can be represented by a lawyer or lay person (Rule 11.9) and can adduce evidence, oral or documentary, including evidence on his own behalf (Rule 11.17.7). The rules of evidence applicable to the Sub-Committee are those that apply in civil proceedings in Scotland (Rule 2.3.1). It follows that the teacher has a right to cross-examine the witnesses led against him. The teacher also has an opportunity to address the Sub-Committee on the evidence (Rule 11.17.10) and, if the Sub-Committee should find that there has been relevant misconduct, a further opportunity to led evidence or make submissions in mitigation (Rule 11.24).

The Sub-Committee's reasons

[15] The Sub-Committee explained that no inference was drawn against the appellant from his non-attendance at the hearing. It said that it had regard to the appellant's statement dated 18 October 2010.

[16] On the first charge concerning pupil X the Sub-Committee heard evidence from three pupils who had witnessed the incident; from the teacher to whom pupil X had complained; and from the teacher who investigated the incident. It noted that there were some discrepancies in the evidence of the pupils, but found that it was consistent in all material respects.

[17] On the second charge concerning pupil Y, the Sub-Committee heard evidence from Y and from a pupil who witnessed the incident; from a teacher to whom that witness had complained, and from the teacher who investigated the incident. It noted that there were inconsistencies in the pupils' evidence but found that these were caused by the passage of time. It also noted that the appellant had accepted that he had made physical contact with Y.

[18] Having found the charges proven, the Sub-Committee considered that a reprimand would not be appropriate in view of the seriousness of the charges. It considered the imposition of a Conditional Registration Order; but in the absence of the appellant it could not be satisfied he could respond appropriately to any conditions that might be imposed. Accordingly it determined that he should be struck off, with the prohibition of restoration to which I have referred.

The grounds of appeal

[19] The grounds of appeal are that (1) the Sub-Committee did not take into account the whole circumstances surrounding the incidents; and (2) that it failed to examine or have examined and to obtain the attendance and examination of witnesses on his behalf, under the same conditions as witnesses against him.

The appellant's submissions

[20] The appellant rehearsed some of the history leading up to the decision appealed against. He said that he had been dismissed by Aberdeen City Council as a result inter alia of the allegations of assault. He had complained of unfair dismissal to the Employment Tribunal, but without success.

[21] The essence of his appeal was that he did not have an adequate opportunity to present his case to the Sub-Committee. If he had been given a sufficient opportunity he might have been able to persuade the Sub-Committee of his innocence. The respondent had not enabled him to obtain legal representation or to procure witnesses on his behalf. This put him at a disadvantage in relation to the witnesses for the respondent. He had tried to contact Mr Higgs and Mr Paul, but without success. He had decided not to attend the hearing because by then he had lost heart.

Conclusions

[22] In my view, it cannot be said that the Sub-Committee failed to take account of the whole circumstances surrounding the incident. No matter how understandable the appellant's loss of heart may have been, his non-attendance put the Sub-Committee in a difficult position. The appellant had already been involved in disciplinary proceedings with his former employers and in consequential proceedings before the Employment Tribunal. The relevant incidents had occurred two years and four months ago. He had had significant time to prepare. Even without legal or other representation, he could still have participated effectively in the Sub-Committee's proceedings. He had the statements of the respondent's witnesses and could have challenged them on any inconsistencies within their accounts or with the accounts of other witnesses. After the witnesses had given evidence he could have addressed the Sub-Committee giving reasons why their evidence ought to be disbelieved. He could also have addressed it in mitigation.

[23] Despite these difficulties the Sub-Committee appears to have considered the appellant's case diligently. It expressly noted his submission of 18 October 2011. It noted that there were discrepancies within the pupils' evidence. It explained why they nonetheless found that evidence to be credible. Its reasons demonstrated that it took account of all the relevant circumstances of which it was aware.

[24] I do not accept that the appellant was denied the opportunity of securing the attendance of witnesses on the same conditions that applied to the witnesses against him. The Rules entitled him to lead witnesses. There is no machinery within the Rules, or any other legal power on the part of the respondent, to compel witnesses to attend. Like any other domestic tribunal, the Sub-Committee relies on the co-operation of witnesses. In that respect it differs from civil or criminal courts. The appellant's own attempts to contact Mr Higgs and Mr Paul failed. Brodies took the initiative to contact them and were told that they were unwilling to appear. In those circumstances, there was nothing more that could be done.

[25] I conclude therefore that the appeal should be refused.

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Clarke Lord Philip	[2012] CSIH 21 XA12/11 OPINION OF LORD CLARKE in Appeal by DOUGLAS TREDINNICK Appellant; against THE GENERAL TEACHING COUNCIL FOR SCOTLAND Respondent; _______

For the Appellant: Party

For the Respondent: Sheldon; Brodies

15 February 2012

Introduction

[26] For the reasons set out by your Lordship in the chair, I agree that the appeal should be refused.

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Clarke Lord Philip	[2012] CSIH 21 XA12/11 OPINION OF LORD PHILIP in Appeal by DOUGLAS TREDINNICK Appellant; against THE GENERAL TEACHING COUNCIL FOR SCOTLAND Respondent; _______

For the Appellant: Party

For the Respondent: Sheldon; Brodies

15 February 2012

Introduction

[27] I agree that, for the reasons set out by your Lordship in the chair, the appeal should be refused.