Davies v General Teaching Council for England [2010] EWHC 2075 (Admin)

Case No CO/8212/2009[2010] EWHC 2075 (Admin)
IN THE HIGH COURT OF JUSTICE
queen’s bench division
ADMINISTRATIVE COURT
Venue Birmingham Civil Justice Centre
Priory Courts
33 Bull Street
Venue BirminghamDate Wednesday, 10 th February 2010
B4 6DS
Before
MR JUSTICE HICKINBOTTOM
Between
PATRICIA DAVIESAppellantTHE GENERAL TEACHING COUNCILRespondentFOR ENGLANDRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mr Yates (a lay representative) appeared for Appellant.Mr Rory Dunlop of Counsel appeared for Respondent.
Judgment

Introduction

[1]This is an appeal brought by Miss Patricia Davies under paragraph 6 of schedule 2 to the Teaching and Higher Education Act 1998 (“the 1998 Act”) and the General Teaching Council for England (Disciplinary Functions) Regulations 2001 (SI 2001 No 1268) (“the 2001 Regulations”) against decisions of the respondent’s Professional Conduct Committee (“the PCC”) dated 30 June 2009, namely decisions in relation to(i) factual findings in respect of two specific allegations against the appellant, and(ii) the sanction of reprimand imposed for the unacceptable professional conduct found by the PCC on the basis of those factual findings.[2]Before me today, Mr Yates has represented the appellant as lay representative, and Mr Rory Dunlop of counsel has represented the respondent, and I thank them both for their submissions.

Factual Background

[3]The appellant has been employed as a teacher since 1996. In February 2003, she was employed by Sandwell Metropolitan Borough Council as second or assistant head of science at Willingsworth High School, Tipton.[4]On 8 September 2004, she was given a verbal warning; and, the following month, the school received a number of complaints about her conduct in a class, which led to her suspension from duty from 21 October - and a final written warning for gross misconduct on 10 February 2005. Shortly after that date, she returned to work at the school, until 1 March 2006, when she was again suspended from duty whilst a number of disciplinary offences were investigated. Those included two specific allegations.[5]The first allegation was that, on 24 November 2005, during one of her lessons, the appellant ignored a pupil who was on the floor crying and apparently injured in an incident involving the throwing of a chair. The pupil was still on the floor when two other teachers (including a Ms Draycott, a head of year at the school) arrived, having been summoned by other pupils. The pupils in the relevant class were about 11 years of age.[6]The second allegation concerned Ms Kerry Bailey, the Marketing Coordinator for the National Blood Service, and a colleague of hers who both visited the school on 8 February 2006 for a presentation to a class in the appellant’s charge. It was alleged that the appellant was guilty of inappropriate behaviour during that presentation, by being disrespectful and rude to the visitors; for example by indicating to a pupil that she considered the presentation boring.[7]The overall investigation resulted in ten disciplinary charges being made against the appellant, of which five (including the two allegations to which I have referred) were found proved against her by the school governors, who dismissed her as a result. On 8 June 2007, an appeal against that dismissal was dismissed. The appellant lodged a complaint of unfair dismissal to the Employment Tribunal which, following a hearing over 20 days, again found both of those allegations proved. The Tribunal dismissed the appellant’s appeal on 23 March 2009.[8]On 10 to 12 June 2009, there was a hearing before the PCC to consider seven allegations of alleged unacceptable professional conduct against the appellant, including the following (which of course reflect the earlier allegations to which I have referred): (i) Allegation 1:
“During a presentation by the National Blood Service at the School on 8 February 2006, you (a) failed to control your class (b) made inappropriate comments during and after the presentation.” (ii) Allegation 5: “You did not take appropriate action when you became aware that a pupil was injured during a lesson on 24 November 2005.”
[9]On 30 June 2009 the PCC found four of the seven allegations (including allegations 1 and 5) proved. They found that allegations 1 and 5 ( but neither of the other two proved allegations) amounted to unacceptable professional conduct: and decided that, in terms of sanction, a reprimand should be imposed on the Register and should remain on the Register for two years. It is those factual findings in relation to allegations 1 and 5, and the sanction, against which the appellant now appeals. There is no appeal against the PCC’s finding that, insofar as the conduct upon which each of allegation 1 and allegation 5 was based was properly proved, then it amounted to unacceptable professional conduct.

Preliminary Matters

[10]Before I turn to deal with the grounds of appeal upon which the appellant relies, it may help if I make four preliminary points.[11]First, the PCC’s rules of procedure are set out in the General Teaching Council for England Disciplinary Procedure Rules 2008, enacted under the 2001 Regulations. Rule 28(1) provides as follows:
“The Committee may admit any evidence where it is fair to do so, which may reasonably be considered to be relevant to the case before it, whether or not such evidence would be admissible in a court of law.”
That provision gives the PCC a wide discretion as to the evidence it admits, and the form in which it is admitted. Rule 35 creates a presumption against children or other potentially vulnerable witnesses appearing at a hearing to give evidence. Those two rules read together mean that before the PCC, if not invariably, often the evidence of children will be in written form only.[12]Second, the appellant seeks to challenge factual findings relating to her as a teacher, as found by her professional disciplinary body. Under the 1998 Act and 2001 Regulations, the respondent has been appointed by Parliament to discipline and regulate her particular profession: and PCCs appointed by the respondent are, by (amongst other provisions) regulation 8 of the 2001 Regulations, required to have the requisite expertise and experience so to do. Two of the three members of the PCC in this case were experienced teachers> One was a member of the respondent Council. Charged by Parliament with the specific disciplinary function, it has been said, with some justification, that such bodies are best-placed to judge appropriate standards for the relevant profession (see, for example, Raschid & Fatnani v The General Medical Council [2007] EWCA Civ 46 at [16]-[20]): and certainly their determination in relation to matters involving professional judgment is worthy of considerable respect.[13]Third - and a related point - this appeal is governed by CPR Rule 52.11, which, so far as relevant to this case, provides that:
“Every appeal will be limited to a review of the decision of the lower court [in this case, that means the PCC], unless… the court considers that in the circumstances of an individual appeal it would be in the interest of justice to hold a re-hearing.”
As I understand it, the nature of the appeal was canvassed before His Honoyr Judge Oliver-Jones QC sitting as a Deputy High Court Judge on 2 December 2009, who confirmed that this appeal would be by way of review and not re-hearing. In those circumstances, short of an error of law, the extent to which this court can look at new evidence and interfere is very restricted indeed.[14]Fourth and finally, in respect of a number of the PCC’s findings, the appellant’s complaint is as to the adequacy of their reasons. Professional bodies such as the PCC do have a duty to give reasons, but that duty does not require them to give a judgment that might be expected, for example, in a court of law. The parties must simply be able to understand why one party has won and the other has lost (English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409 at 2417). In considering its reasons, the PCC needs simply to ask itself: “Is what we have decided clear? Have we explained our decision and how we have reached it in such a way that the parties before us can understand clearly why they won or why they have lost?” (Phipps v The General Medical Council [2005] EWCA Civ 397 at [85]); but, reflecting the sentiments of English & Emery Reimbold, that does not require the PCC to identify “…why, in reaching its findings of fact, it is thought to accept some evidence and reject other evidence” (R (Luther) v The General Medical Council [2004] EWHC 458 Admin at [22] per Elias J, as he then was). Luther predates Phipps but, as a general proposition, it remains good; although of course subject to the important caveat that it may be necessary in a particular case to elaborate to ensure that a party does understand why he has won or lost.[15]I now turn to deal with the specific grounds of appeal. I shall deal with the grounds as they relate to allegations 1 and 5 first, before proceeding to deal with the challenge to the sanction imposed.

Allegation 1

[16]The appellant makes a number of criticisms about the manner in which the PCC dealt with allegation 1 - the allegation concerning conduct during the National Blood Service visit - for example, there had been an inadequate investigation; some important witnesses were not called; and the PCC misunderstood the nature of the evidence of at least one pupil.[17]I can deal with this ground shortly because, although the respondent does not accept the grounds relied upon, in paragraphs 19 and following of Mr Dunlop’s skeleton argument of Mr Dunlop, the respondent does accept that the reasoning of the PCC was inadequate in relation to their findings in respect of allegation 1.[18]The evidence in relation to this allegation was unusual - because the only evidence to contradict the appellant’s evidence (which was given orally) was hearsay evidence from a witness who could have been (but in the event was not) called (Ms Bailey) and minors who had not signed or dated their witness statements. The respondent frankly - and in my view properly - accepts that, in those circumstances, although not generally under an obligation to give reasons for preferring the evidence of one witness to another, fairness to the appellant demanded that the PCC should give reasons for preferring the hearsay evidence to the evidence of the appellant in relation to allegation 1.[19]The respondent therefore concedes that the appeal should be allowed in relation to allegation 1. I shall deal with the consequences of that concession and the appropriate disposal and order after I have considered the grounds of appeal relating to allegation 5.

Allegation 5

[20]With regard to allegation 5, as I have said, it was alleged that on 24 November 2005 the appellant ignored an 11 year-old girl pupil, who was on the floor crying and apparently injured during one of her lessons.[21]The evidence relied upon by the presenting officer before the PCC included that of four of the pupils who were present in the classroom - that evidence being in written form, unsigned, undated, and without a mark of parental approval - and the evidence of Ms Draycott, who was one of the two teachers who arrived in the class after pupils had sought assistance.[22]The evidence of the pupils was broadly to the effect that there had been an incident involving many from the class coming to the front of the classroom, and an altercation between two pupils, with the result that one (a girl) fell to the floor, whereupon the other (a boy) threw a chair at her, which struck her leg: but the focus of the complaint was that the appellant did not go to the girl, instead writing out detention slips and giving them to any pupils who went towards her. They (the pupils) said they were telling the appellant that the girl was injured.[23]Ms Draycott’s evidence was that, in response to a number of students from the appellant’s class who came to her tell her of the incident in the appellant’s class, she went to the appellant’s classroom. She came into the room and became actively involved, whilst the appellant did nothing in respect of the apparently injured girl. She saw the girl on the floor and checked for her injury. She was told a version of events by various pupils after the event, similar to that reflected in the pupils’ statements to which I have referred. Her concern was “…that several student had informed [the appellant] that [the girl] was hurt on the floor but that she had ignored them to carry on writing detention slips” (Ms Draycott’s Statement, 19 May 2008, paragraph 12).[24]The appellant’s version of events was very different. She said that she did attend to the girl, and Ms Draycott did not become actively involved, merely popping her head around the classroom door.[25]There was therefore a stark difference between the core accounts in the evidence of Ms Draycott and the appellant that could not be reconciled. One was being truthful, and one was not. Credibility was a clear issue for the PCC.[26]The appellant raises the following concerns about the findings of the PCC in relation to this allegation as grounds of appeal.[27]First, she contends that the PCC failed to apply the correct standard of proof. However, in my judgment, there is no evidence at all that they did err in the way she suggests. In paragraph 2 of the section on legal advice in their decision of 30 June 2009, the PCC correctly identify where the burden of proof lies - on the presenting officer, and not on the teacher - and, in paragraph 3, they go on correctly to identify the standard, i.e. the balance of probabilities, which they correctly describe in terms of “more likely than not”. There is nothing to suggest that they failed properly to apply that standard in their fact-finding. This ground is, in reality, merely an aspect of another ground to which I will come shortly, namely that, on the evidence before the PCC and on the proper standard of proof, the PCC could not properly have come to the findings that they did as to Ms Draycott’s credibility and as to what happened that day.[28]Second in relation to allegation 5, the appellant asserts that the PCC “…seem to have accepted the judgment of the Employment Tribunal, insofar as they upheld the same allegations as were upheld in that judgment.” The PCC erred, the appellant submits, because “the [PCC] were unaware that [she] had requested a revised judgment to correct factual accuracies and that [she was] appealing the judgment of the Employment Tribunal to the Employment Appeal Tribunal [“the EAT”].” She also complains of the manner in which the presenting officer referred to the Employment Tribunal judgment, effectively urging the PCC to come to the same factual conclusions as the tribunal.[29]The appeal to the EAT was, in the event, unsuccessful (although now, as I understand it, their dismissal on the basis that there is no ground of appeal is the subject of challenge in the High Court): but that, in any event, is not the reason why this ground of appeal is bad. It is certainly arguable that the PCC could properly have regard to the reasoned findings of the Employment Tribunal (on the basis of In Re (a Solicitor) [1993] QB 69, especially at pages 77-78 and 80) as evidence in this case. The appellant, legally represented, in any event agreed to the inclusion in the evidence of the Employment Tribunal judgment which she, in a number of respects, relied upon. In those circumstances, the appellant cannot have any complaint about the PCC having regard to the findings of the Employment Tribunal (see R (Sinha) v The General Medical Council [2008] EWHC 1732 (Admin), particularly at [48]-[53]).[30]But, in any event, it was incumbent upon the PCC to make their own findings of fact on the evidence before them - the findings of the Employment Tribunal on the evidence before it were, of course, not binding on the PCC, and created no form of estoppel. Although the PCC’s decision records that they “allowed the introduction of the Employment Tribunal judgment”, and despite any advocacy by the presenting officer, good or bad, there is nothing in the decision of the PCC to suggest that they, in making the findings they did, did not exercise their own judgment in relation to the issues they had to decide on the evidence before them. This was an experienced panel> There is simply nothing to suggest that the Employment Tribunal judgment had any significant influence, or indeed any influence at all, upon the PCC’s decision-making process. Subject to the inadequate reasons ground (in respect of which the Employment Tribunal judgment was again relied upon by the appellant, and to which I will come), the introduction of the Tribunal judgment was, therefore, immaterial.[31]For all of those reasons, the Employment Tribunal ground has not been made out.[32]Third, the appellant contends that the proceedings were unfair, because she was unable to present witnesses who may have assisted her case, as her suspension and subsequent dismissal prevented her from having contact with staff and pupils. Whilst I accept that the teachers and pupils, who were the only potential eyewitnesses to the events that founded allegation 5, were more readily available to the respondent than the appellant, there is no evidence that the appellant was prevented from approaching potential witnesses, or that the respondent was less than cooperative in relation to any formal requests concerning potential witnesses that the appellant made of the respondent or indeed the school. A request was made to make pupils available for the Employment Tribunal proceedings, and the tribunal gave directions designed to arrange for access to those children, with appropriate safeguards. That this avenue was not fruitful in those proceedings does not detract from the opportunity that was made. No similar request was made in respect of the proceedings before the PCC. The applicant, through Mr Yates, accepted that there is no evidence that any pressure was put on any potential witness not to give evidence for the appellant before the PCC. It was a different question as to whether she should be able, freely, to contact staff and children. As in the Employment Tribunal, some discipline over contact was necessary, particularly in relation to the children. Furthermore, the appellant was throughout the PCC proceedings and hearing represented by her union, which provided a solicitor and counsel for her hearing. No complaint was made to the PCC at that time about the lack of facilities or access to witnesses made available to the appellant. There is no merit in this ground.[33]Fourth, the appellant makes a number of related contentions about the evidence of Ms Draycott and the pupils, relied upon by the presenting officer before the PCC. In relation to allegation 5, this is the primary ground upon which she relies. It has a number of strands.[34]The appellant contends, first, that Ms Draycott’s accounts were both internally inconsistent and inconsistent between the various versions she gave in her statements and at the various hearing, for example in relation to the number of pupils that came to see her reporting the incident - there were no numbers given in her original, but numbers given of 6 to 10 and 10 to 13 in later versions - precisely where she was when the pupils saw her, whether she arrived with or before the second teacher who attended the classroom, and whether she said at the scene that the girl pupil victim ought to be put into the recovery position. These were only examples of the discrepancies and contradictions to which the appellant referred, but they give a flavour of the discrepancies that were relied upon.[35]Ms Draycott was cross-examined in relation to a number of the contradictions in her evidence before the PCC. There is no doubt that the gist of these discrepancies was fairly before the PCC. I accept that there were a considerable number of discrepancies. However, although no doubt it was more unusual than most events, this incident was one event in a busy school. Discrepancies in evidence are not unusual, even with witnesses who are doing their best to tell the truth. It may be necessary to look at other evidence that may shed light on the credibility and reliability of a witness, and for the fact-finder to consider the extent to which discrepancies go to the core account of a witness, and if they do not, the extent to which they might undermine that witness’s credibility.[36]In addition, the appellant submits that the pupil’s evidence was inconsistent with the evidence of Ms Draycott, and indeed supportive of her (the appellant’s) evidence, to an extent. For example, the girl victim said in her statement at the end:
“She [the appellant] came to me. Sarah told you [Ms Draycott]. Then my mum came.”
That, Mr Yates submitted, was at least suggestive that the appellant may have gone to the girl before Ms Draycott did. Further, only two of the pupil statements refer to Mis Draycott being there. None refers to Ms Draycott helping the girl onto a school, as Ms Draycott said she did. Although, as Mr Dunlop properly submitted, these statements were clearly focused on what the appellant, and not what Ms Draycott, did or did not do, Mr Yates suggested that this evidence potentially supported the appellant’s version of events, namely that Ms Draycott did not do more than look around the door, and did not actively assist in the classroom. .[37]The appellant submits that the account of Ms Draycott was inherently implausible, because a teacher such as the appellant does not, as a matter of practice, leave a potentially injured child to her own devices. But any implausibility must have been apparent to the experienced panel. There is nothing to suggest that they failed to take that into account in making their factual findings on the balance of probabilities. I repeat that the appellant was throughout represented before the PCC by counsel.[38]Yet further, the appellant took several statements from pupils during the next lesson. As I understand it, these were used at the Employment Tribunal hearing, but not at the PCC hearing because they had been obtained in the next lesson and without parental consent. In the circumstances there was, so I was told this morning, a flat refusal by the union representative to use those statements at the PCC hearing, and so they were not produced to the Committee. The appellant was, therefore, left with the four statements of the pupils relied upon by the presenting officer, but none she herself had obtained. However, the non-use of those statements was the result of a strategic decision by the appellant’s representative. The PCC cannot have erred in not taking that evidence into account. It was not before them. Nor was there any possible unfairness in the proceedings in that evidence not being relied upon (in respect of which, again, the comments of Irwin J in Sinha at paragraphs [48]-[53], including his quotation from R v Secretary of State for the Home Department ex parte Al-Mehdawi [1991] AC 876 in paragraph 48, are pertinent).[39]With regard to the four pupil statements that were before the PCC, the appellant doubts whether they were “randomly selected”, and of course they were at least pupils who purported to have seen something about which they could give evidence. However, as I have said, the appellant had a route of access to pupils if she wished to avail herself of it, which she did not. The appellant also contends that no evidential weight could - changed to should in Mr Yates’s oral submissions - be given to the pupils’ statements because they were unsigned, undated, and there is no evidence that they were taken with parental consent. As I understand it, some of those specific concerns were raised by the appellant’s counsel at the PCC hearing, but not all (for example, as to when the statements were made). That may have been for good reason, as it would or may have meant, it seems to me, another attack on the integrity of other teachers.[40]But in any event the PCC cannot be criticised for anything they did with regard to these statements. It has been said in the context of disciplinary proceedings in relation to pupils, that there is “…no warrant for extending the special evidential requirements which govern criminal proceedings to school disciplinary proceedings and there is much to be said against the suggestion” (R (M) v the Independent Appeal Panel, Governing Body and Head Teacher of CH School [2005] ELR 38 at [12] per Newman J). To a large extent, that is because much of the available evidence in such cases is inevitably that of children. That applies equally to disciplinary proceedings for teachers. Further, as I have indicated, expressly under the PCC’s Procedural Rules, before the PCC there are no strict rules of evidence.[41]The evidence of these pupils was clearly relevant to the allegation, and the form of the evidence (and, of course, the weight to be attached to it) was a matter for the PCC itself. The PCC particularly noted (in paragraph 4 of the legal advice section of their decision) that hearsay evidence was admissible before them, but it had to be treated with caution because they had not heard oral evidence nor had there been any opportunity for the appellant to test the evidence in cross-examination. The PCC clearly approached this evidence with a proper degree of care and caution, but, subject to that, they were entitled to take the pupils’ evidence into account - it was admissible - and give it the weight they considered appropriate.[42]Indeed, that is the answer to this entire ground. It was for the PCC to consider all of the relevant evidence in relation to allegation 5 and give particular evidence - whether it be that of Ms Draycott or the pupils, or of course the appellant herself - the weight that they, the PCC, considered appropriate. That exercise the PCC duly performed: and made findings against the appellant. Despite the deficiencies in parts of the evidence that the appellant has pointed out, the PCC were entitled to prefer the evidence of Ms Draycott to that of the appellant herself. They heard the oral evidence, which I have not. The findings made by the PCC in relation to allegation 5 were - and were, in my judgment, clearly - open to them to make. I understand that the appellant does not agree with those findings, but such a difference of view does not mean that the PCC erred in law in making the findings that they did. This is a review, and therefore I can only interfere if the PCC erred in law. On this ground, they did not arguably do so.[43]Although the proper assessment of evidence was a matter for the PCC and not me, I should perhaps add that, even if this matter were one of appeal by way of rehearing rather than review, particularly given the respect that this court accords to the judgment of specialist disciplinary tribunals such as this, it is very unlikely that this court would have come to a different conclusion from the PCC on this issue.[44]Turning to the fifth and final ground upon which the appellant challenges the findings in relation to allegation 5, in my judgment the PCC did not err by failing to give adequate reasons for preferring the evidence of the pupils to that of the appellant. The crucial evidence in relation to this allegation was that of Ms Draycott and the appellant. Both gave evidence, and they suggested very different, irreconcilable versions of events. The PCC said that they found Ms Draycott credible. In making that finding they were entitled to take into account the supportive evidence of the pupils, insofar as they regarded it as such, although its weight was, of course, undermined by the nature and limitations of that evidence. In the circumstances, as I have indicated, the PCC were not under a duty to give elaborate reasons why they found one witness credible and another not, and why they accepted the evidence of one witness and not another. From the reasons given by the PCC, the appellant is well aware of why, in relation to this allegation, she “lost”. The fact that the Employment Tribunal judgment was referred to by the PCC does not mean that, even with a paucity of reasons for the acceptance of Ms Draycott’s credibility given, there can be any assumption that the PCC merely followed the findings of the Employment Tribunal. There is nothing to suggest that they did.[45]For those reasons, I do not consider that the appellant has made good any of her grounds in relation to allegation 5

Sanction

[46]As I have indicated, the appellant accepts that that conduct amounts to unacceptable professional behaviour. I now therefore turn to consider the appeal against sanction. Again, some preliminary comments may assist.[47]First, by paragraph 6(2) of Schedule 2 to the 1998 Act, I can make any order I consider “appropriate”.[48]Second, it is important to bear in mind the purpose of disciplinary proceedings. The primary objective of imposing a sanction on a professional is to maintain the standing of the profession to which he or she belongs and the confidence of the public in that profession, although the need to protect individual pupils in terms of ensuring no repetition is also a purpose (Bolton v The Law Society [1994] 1 WLR 512 especially at pages 518 to 519, Raschid & Fatnani cited above at [18], and Cheatle v The General Medical Council [2009] EWHC 645 (Admin) at [33]). The impact of a sanction on the teacher is also relevant, because the PCC can only impose a sanction that is proportionate. But, as the primary objectives concern the wider public interest, the impact of a sanction on a teacher has been said not to be “a primary consideration” (Cheatle at [38] and [40]). Those principles are broadly reflected in the respondent’s Indicative Sanctions Guidance (especially at paragraph 1.3), which were expressly referred to in the PCC’s decision (legal advice section, paragraph 8).[49]Third, as I have already stressed, the PCC is a professional disciplinary tribunal whose professional judgment (especially with regard to sanctions) is worthy of considerable respect. This court is, therefore, slow to interfere with a sanction imposed by the PCC, and will do so only where the panel’s decision is clearly inappropriate (see the cases I have already cited, but especially Cheatle at [15] and [35]).[50]In its decision of 30 June 2009, the PCC determined that “in view of the seriousness of [allegations] 1 and 5” a reprimand should be imposed on the appellant to remain on the Register for two years. That order, of course, reflected the aggregate seriousness of both proved allegations.[51]For the reasons I have given, I have allowed the appeal in relation to allegation 1, and the respondent accepts that in the circumstances the PCC’s findings in relation to allegation 1 must be quashed.[52]Nevertheless, Mr Dunlop invited me to find that, on the basis of the findings in relation to allegation 5 alone, the reprimand sanction imposed need not be disturbed by this court. Given the specialist nature of the PCC, to which I have referred, and the fact that Parliament has entrusted the imposition of sanctions to them and not to this court, I could only leave the sanction intact if I were persuaded that the PCC would have imposed that sanction on the basis of the allegation 5 findings alone in any event.[53]Mr Dunlop submitted that that was the case: because in their decision they said that they viewed allegation 5 with particular seriousness, regarding it as totally unacceptable conduct (see the penultimate paragraph of their decision on allegation 5). Therefore, he submitted, I could be satisfied that it was “very likely” that a reprimand in the terms imposed would have been imposed on the basis of allegation 5 alone.[54]However, I am not so persuaded. The sanction imposed reflected what I have called the aggregate seriousness of two incidents of unprofessional conduct. I cannot say that the PCC would have imposed a reprimand for only such incident. The question of sanction in relation to allegation 5 must be remitted for consideration by the PCC.[55]That leads me to return to the disposal of allegation 1. Having taken instructions, Mr Dunlop said that the respondent’s preferred course would be for me to send this matter back to a PCC with the same constitution as that that made the 30 June decision, for them to consider sanction on proved allegation 5 alone. That, of course, would mean the abandonment by the respondent of allegation 1: but the respondent has very much in mind that this matter concerns events of several years ago, and it is in everyone’s interests (but particularly perhaps those of the appellant) that there should be finality; in other words, closure of this procedure. He hoped, given this court’s slowness to interfere with sanctions imposed by the PCC, that a reconsideration by the PCC of the sanction restricted to allegation 5 alone should see the end to this matter.[56]After careful reflection, I consider that that is the appropriate course. Of course, allegation 1 was serious; but set against that there is the importance of this matter being brought to an early and final conclusion, and, given the respondent’s stance in relation to disposal, I propose to send the matter back for reconsideration of sanction in relation to allegation 5 alone.[57]That leads to the final issue as to whether the sanction should be considered by a PCC similarly constituted to that which arrived at the 30 June 2009 decision, or a differently-constituted panel. The latter would have the advantage of not being tempted to adopt a course that may be regarded as one of self-justification. However, the former course - to refer it to the same panel - has in my view the overwhelming advantage of it being referred back to a panel that has considered all of the evidence in detail in this matter, and to a professional panel that I am sure will resist any temptation at self-justification.[58]For those reasons, although I will certainly hear any submissions in relation to the form of the order, I would propose to refer this matter back to the same panel for its consideration of the sanction in relation to allegation 5 alone, and I will simply quash that panel’s decision in relation to allegation 1.

Order

Appeal granted in part.

Cited in 1 later judgment