Andrew Bruce v Secretary of State for Education [2025] EWHC 397 (Admin)

“(1) Every appeal will be limited to a review of the decision of the lower court unless – (a) a practice direction makes different provision for a particular category of appeal; or (b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing. (2) Unless it orders otherwise, the appeal court will not receive (a) oral evidence; or (b) evidence which was not before the lower court. (3) The appeal court will allow an appeal where the decision of the lower court was - (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court. (4) The appeal court may draw any inference of fact which it considers justified on the evidence. (5) At the hearing of the appeal, a party may not rely on a matter not contained in that party’s appeal notice unless the court gives permission.”

“83…..[E]ven where PD 52D requires an appeal by way of rehearing from decisions of professional regulatory bodies, such appeals are not conducted as rehearings in the full sense. Permission is required to adduce any evidence that was not before the lower tribunal and save in exceptional cases the court will not hear oral evidence. The question for the court, whether the appeal is by way of rehearing or review, is whether the decision under appeal is wrong or unjust. The bounds of either form of appeal are defined by the grounds of appeal (CPR 52.21(5)). And the court will accord appropriate respect to the primary findings of fact made by the first instance tribunal which heard the witnesses give evidence. So, in the context of this case, the distinction between an appeal by way of rehearing or by way of review is a fine one….. 84….Nevertheless, Sastry makes clear the distinction is real not illusory. If the appeal is by way of rehearing, the appellate court can be more interventionist than on an appeal by way of review and it will not defer to the judgment of the Panel more than is warranted by the circumstances… 97….In El-Karout the court identified an important point regarding the admission of hearsay evidence that had not been clearly raised by the unrepresented appellant in her appeal, and so the judge invited submissions before determining the issue. That is a proper approach, particularly where a party is unrepresented, but it does not support the appellant’s bold proposition that the court is required to engage in a broad examination of whether the Panel’s decision is wrong or unjust, independent of the grounds of appeal relied upon by the appellant. CPR 52.21(5) makes clear that the parameters of the appeal, whether by way of review or rehearing, are defined by the notice of appeal, albeit the court has power to permit the grounds of appeal to be amended, as I have done in this case.”

“102 Derived from Ghosh [v GMC [2001] 1 WLR 1915 (PC)] are the following points as to the nature and extent of the section 40 appeal and the approach of the appellate court: (i) an unqualified statutory right of appeal by medical practitioners pursuant to section 40 of the 1983 Act; (ii) the jurisdiction of the court is appellate, not supervisory; (iii) the appeal is by way of a rehearing in which the court is fully entitled to substitute its own decision for that of the tribunal; (iv) the appellate court will not defer to the judgment of the tribunal more than is warranted by the circumstances…. 103 The courts have accepted that some degree of deference will be accorded to the judgment of the tribunal but, as was observed by Lord Millett at para 34 in Ghosh, ‘the Board will not defer to the Committee’s judgment more than is warranted by the circumstances’…Laws LJ in Raschid …stated that on such an appeal, material errors of fact and law will be corrected and the court will exercise judgment but it is a secondary judgment as to the application of the principles to the facts of the case (para 20). In Cheatle… Cranston J accepted that the degree of deference to be accorded to the tribunal would depend on the circumstances, one factor being the composition of the tribunal. He accepted the appellant’s submission that he could not be ‘completely blind’ to a composition which comprised three lay members and two medical members….. 109 We agree with the observations of Cranston J in Cheatle that, given the gravity of the issues, it is not sufficient for intervention to turn on the more confined grounds of public law review such as irrationality. The distinction between a rehearing and a review may vary depending upon the nature and facts of the particular case but the distinction remains and it is there for a good reason. To limit a section 40 appeal to what is no more than a review would, in our judgment, undermine the breadth of the right conferred upon a medical practitioner by section 40 and impose inappropriate limits on the approach hitherto identified by the….Privy Council in Ghosh and approved by the Supreme Court in Khan [v GPC [2017] 1 WLR 169].”

“55…[C]ounsel for the Appellant, in the grounds of appeal and in his skeleton, puts his challenge on the basis of Wednesbury unreasonableness and relevant/irrelevant considerations - effectively judicial review grounds. However, in so doing, the Appellant sets the hurdle [he must] overcome at too high a level. Judicial review is not the appropriate approach in the present case. The question for this Court is whether the Decision was ‘wrong’ (or ‘unjust because of a serious irregularity’), and not whether it was one which no reasonable panel could have reached. 56. The appeal here is by way of re-hearing, the most ‘interventionist’ level of appeal court review….Assicurazioni Generali SpA v Arab Insurance Group [2002] EWCA Civ 1642 [suggests] where the appeal court is being asked to reverse findings of fact based upon oral evidence which the judge has heard, the approach of the appeal court is the same, whether it proceeds by way of ‘review’ or…‘rehearing’ (in the CPR sense of those terms). 57. On such an appeal, in general, this means deciding whether the decision below can be said to be wrong. On issues of professional judgment, the Court may need to defer to expertise of the lower court or tribunal. But, on questions of primary fact, the position is different. Whilst the lower court or tribunal is the primary decision maker on questions of fact, the High Court will correct material errors of fact on various grounds, such as insufficient evidence or mistake. 58. Where the decision below depends on preferring the account of X over that of Y on the basis of reliability and credibility, including an assessment of demeanour, I have considered English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409, Mubarak v General Medical Council [2008] EWHC 2830 (Admin) (citing Gupta v GMC [2002] 1 WLR 1691) and In the matter of F (Children) [2012] EWCA Civ 828 (as well as Cheatle [v GMC [2009] EWHC 645 (Admin)]§15). The position can be summarised as follows: (1) The appellate court will be reluctant to interfere with the findings of fact made by the lower court or tribunal: Cheatle, §§15, 23 to 28. (2) There are different schools of thought as to the significance of demeanour; on the one hand, the lower court is best placed to assess credibility, because it has had the opportunity to assess demeanour. On the other hand, demeanour is not necessarily a good or the best test of credibility and it is question of feel, which may be unreliable: compare Mubarak §5 with Cheatle §23. (3) However, the predominant view is that demeanour is a significant factor. For example, the assessment, as genuine, of a witness' distress when giving evidence can be a sound foundation for a finding of truthfulness: Re F §44. (4) Thus, the starting position is that the lower court is in a better position to assess credibility and reliability of witnesses: see in particular Mubarak §5 citing Gupta at §10. (5) However, the appellate court may reach a different conclusion if the circumstances so justify. Demeanour is not conclusive, and it may be that the advantage of having seen and heard the witnesses is not sufficient to explain or justify the conclusion of the court below: see Mubarak §6 citing Thomas v Thomas [1947] AC 484 at 487-488. (6) There will always be inconsistencies of detail in the evidence of witnesses. The task is to the consider whether the core allegations are true: see Mubarak §20 and Re F §45. Finally, to the extent that there is or may be a tension between Mubarak and Cheatle as to the approach on appeal to findings of fact, I give the Appellant here the benefit of any such doubt and will adopt the somewhat more interventionist approach indicated by Cheatle.”

“[On rehearing]..what the High Court does is re-analyse the transcript of the live evidence and read the witness statements and the documents before the tribunal below. So evidentially and procedurally, it is not a rehearing, it is a re-analysis of the evidence without live evidence (generally). This is in contrast to an appeal by way of review, in which the evidence is limited to that relevant to the grounds of appeal and the parties are discouraged from putting before the appellate Court all the evidence before the Court below.”

“[W]hilst your worries are genuine, they are based on a faulty interpretation of what you have seen. [It is] right and proper [he] visit dorms late at night – check you in bed, doors, windows and picking up duvets so you don’t get cold. [He is] a very nice man, very caring/conscientious, very upset that any of you have misunderstood his dorm visits. Any gossip you hear about him doing anything wrong is totally untrue. However, in order that your worries should be at an end, the dorm visits late at night shall be…by a matron or two masters and they will not touch duvets but merely shut windows, doors etc and use a torch to see that you are in bed and quickly leave the dorm.”

“No touching duvets or going close to a bed and the minimum length of time in a dormitory. Don’t stay long in bathrooms or go in showers.”

“Between 11-18th April 2004 in the Easter holidays, he went away with the music group…. on a residential course…[He] urinated in his bed and went and looked for help, was aged 9. He approached Andrew [the Appellant] who was in the next room and he was taken to the bathroom. Andrew asked him to take his clothes off and began to pour lotion on his own hands and started to rub lotion over his body mainly focussing on his genitals for a long time. Then dried with a towel. Went back to bed. He came to check on him. The next day while having a shower Andrew pulled back the curtains.”

“Incident 1 This incident was alleged to have taken place between 4th - 7th June 2015, involving [Pupil A, who] alleges that ‘I was showering, Mr Bruce would walk in just to check we were showering.' During investigation, [the Appellant] refuted this claim, stating `I don't think so, I'm trying to think of a scenario. He says something happened I'm just trying to think of any circumstances where it might have happened.' Incident 2 This incident allegedly took place between 9th -12th June 2016 where it is reported that [the Appellant] entered the hotel room of [Pupil A] and [Pupil B’ and asked them to remove clothing/towels to check they had cleaned sand off their bodies after some time at the beach. During investigation, both boys agreed that [illegible – one] stripped on order, however there is a discrepancy as to whether [illegible - the other] did…When we spoke to [the Appellant], he refuted this claim and stated 'I don't recollect anybody being naked in that situation, I do recall the sand from the bedrooms upsetting the hotel owners but wouldn't have inspected naked children.' Incident 3 It seems incident 3 happened on 11th July 2016…. Both boys recollect AB asking a now ex-pupil [Pupil C] to sit on his knee. It was reported that this was in front of a number of other boys on that trip. During investigation, AB stated ‘I can see situations where it might've been a joke, but I don't remember it happening, others would have been around including staff.”

“1a) Entering and remaining in a pupil’s dormitory bathroom whilst he was showering. Allegation made by ‘Pupil A’. We had just returned from the beach and the two boys in question were covered in sand. It is true to say that I did enter the bathroom but it was more of a question of putting my head round the door to make sure that pupil (‘Pupil A’) was indeed showering. He was showering behind an opaque screen. I certainly did not linger. I have to say, although I didn’t think anything of it at the time and there was nothing in the reaction of the pupil that led me to think he thought anything of it either, I sincerely regret now putting myself in this position and I must acknowledge that I should have realised that being there left myself vulnerable. By way of modest mitigation I would report that a parent had complained to me at the end of a tour to Italy that her son had been in my care for a week and he had not showered once. She was clearly very unhappy about this although her son was older (year 8) than the boys in this investigation (Year 6). 1b i) Asking pupils to remove their towels. Allegation made by ‘Pupil A’: This did not happen. I have never asked a pupil to remove clothing or a towel. In the accounts supplied by the pupils I would point out that this claim is at odds with the account given by ‘Pupil B’. I would suggest the claim that this happened was in response to what could be perceived as a very leading and binary question given by my colleague who had the unenviable task of investigating the matter. bii) Asking a pupil to face me whilst he was naked or wearing only underwear. Allegation Made by ‘Pupil A’ This did not happen. I did not and would not do this. Again, the account from ‘Pupil A’ is at variance with the account given by ‘Pupil B’.”

‘would enter the bathroom and ask was I showering properly. I know it was [him]…I could see him through the shower door’

“…came into our room and said he did not trust we had cleaned ourselves properly after being on the beach. We were told to remove our clothing so he could check that we had properly cleaned ourselves. We were told to remove our boxer shorts. [Pupil B] and I both removed all our clothing. [Mr Bruce] looked us over and then told us to put our clothes back on.”

“[The Appellant] asked us both if we had enjoyed the beach. I can recall confirming that I did enjoy the beach, though it was quite hot. I do not recall if Pupil A responded. [The Appellant] said something to us both like 'Have you got all the sand off?' I do not recall if either of us responded. Mr Bruce crossed the room and walked over towards Pupil A…. As he was doing this, I briefly turned my back to look in the closetfor my shorts. I did not find the shorts and turned back around to face Mr Bruce and Pupil A. I saw Mr Bruce reach out and lift a section of Pupil A's towel away from his body, so it was possible to see a section of Pupil A's naked lower body. [He] dropped the towel back down again and Pupil A held it next to his body with one hand. [He] said to Pupil A something like…'Spin in a circle'. ….Pupil A held on to his towel with one hand (Pupil A is left hand dominant). The rest of Pupil A's towel was trailed down to the floor. Because Pupil A was only holding on to his towel with one hand, large sections of Pupil A's naked lower body were exposed. Pupil A did a full body spin around on the spot. The spin lasted about 5 seconds. I don't recall Pupil A saying anything; he was giggling. Mr Bruce squatted down slightly and picked up a handful of Pupil A's towel, the section of the towel between Pupil A's hand and the floor. Mr Bruce stood up again and used this towel to do two rapid brushes from the middle of Pupil A's back down to the top of his bum. As [he] was just over a head taller than Pupil A, he had to lean over Pupil A to reach that far down ...I did not see [him] use his other hand on Pupil A. All the contact I saw between Pupil A and [him] was through the towel; there was no skin-on-skin contact. At the end of the 5 seconds, Pupil A pulled his towel back up around himself properly, covering his whole lower body again. [The Appellant] then walked towards me [and] said something like ‘Can you take your towel off so I can check if you have sand?' With one hand I lifted the towel off my shoulders. I held the towel in my hand and let my arm fall back to my side, so the towel was trailing down to the floor. Without being asked to, I performed a quick 3-4 second spin on the spot like Pupil A had. [The Appellant] was farther away from me than he was to Pupil A when he did the spin. [He] did not touch me or come any closer. [He] did not ask me to take off my underpants; I kept these on the entire time. [He] then said to both of us 'Thank you' and then left the room.”

“In Easter 2004 when I was aged around 9/10 years old, I attended a residential course…during which [the Appellant] was the Musical Director. On one of the nights, I was looking for help as I had wet my bed. I was staying a large dorm room with around 10 other children which had a common room in the middle of it. [The Appellant’s] room was next door to the dorm and there was a bathroom next to this. I cannot remember whether the bathroom was an ensuite and a part of [his] bedroom, or whether the bathroom was just next door to his room. Next to that was a communal shower room and locker room. I went to get help from [him] in the night as he was staying next door to our dorm, and he was assigned to me pastorally. In my mind, I was expecting that he would help me to clean up the sheets. I remember that I knocked on his door for help and then the next thing that I remember was ending up the bathroom. I don’t quite remember how I got there, but I do recall feeling very confused by it. [He] asked me to take my clothes off in the bathroom, which I did. I was stood in the middle of the room and [he] proceeded to lather me up with soap whilst using his hands. I found this very odd at the time as I was capable of cleaning myself. [He] paid particular attention to my crotch and groin area, and he touched my genitals when he was cleaning me. It felt like prolonged abuse to that particular area of my body. I remember very distinctly that he used Lavender soap which has become a bit of a trigger for me in later life. Whilst it was happening, I felt very uncomfortable. It was hard to pinpoint how long it lasted because I just froze up and felt humiliated and embarrassed…..I felt very confused by the whole incident at the time.…. I can’t recall whether [he] dried me with a towel or whether I did this myself. I was then left in the bathroom whilst [he] left. I believe that he was changing my bedding, but I cannot be certain of this. When I went back to my room, I got into my bed, and I was crying and rocked myself to sleep…. At some point, [he] came round with a torch into the dorm whilst I was crying. He checked up on me and asked if I was okay. I can’t remember if there was any other conversation before [he] went back into his room. The following morning, I was taking a shower. The showers were in a communal washroom where each individual shower was separated by a shower curtain. I was taking a shower and [the Appellant] pulled the shower curtain open whilst I was in there. I recall being a bit shocked and taken aback as I was not sure who was opening the curtain. I believe I was facing him, and he asked me whether I was okay. I remember that he stared at my body up and down whilst I was naked. I cannot recall how long this lasted, but I do not think that it was too long.”

“You are guilty of unacceptable professional conduct and/or conduct that may bring the profession into disrepute in that whilst employed as A Director of Music at [the School]: 1. You engaged in inappropriate and/or unprofessional behaviour towards one or more pupils, including on one or more occasions: a. In or around June - July 2015 entering and/or remaining in the dormitory bathroom whilst Pupil A was showering. b. In or around June - July 2016 by: i. Entering Pupil A and B's hotel room and asking Pupil A and/or B to remove their towels. ii. Telling Pupil A and/or B to face you and/or turn around or words to that effect whilst he was naked or only wearing underwear. iii. Lifted Pupil A's towel away from his body whilst he was drying, exposing his naked lower body. iv. Used a towel to brush and/or wipe down Pupil A's back. c. In or around June - July 2016 by asking Pupil C to sit on your lap and/or suggesting that he should. d. In or around Easter 2004 by: i. Asking Pupil D to remove his clothes after he had wet the bed. ii. Using your hand to rub and/or apply lotion and/or soap to Pupil D's body and/or genitals. iii. Pulling back the shower curtain and looking at Pupil D whilst showering. 2. You behaved as may be found proven at la and/or 1 b and/or l c and/or 1d above despite previous advice and/or guidance and/or warnings regarding similar behaviour in or around 1990. 3. Your behaviour as may be found at la and/or 1 b and/or lc and/or 1dabove was sexually motivated and/or conduct of a sexual nature.”

“I was very sad to read this account from Pupil D. I am sorry to say I do not recall him or the incident. If he approached me, I would have provided appropriate assistance to him such as replacing bed linen. He alleged in his report that I touched him inappropriately. I strongly deny this. The matter was investigated by the Police and no further action was taken. As far as asking him to remove his clothes is concerned, which I have no specific recollection of dealing with this, I would probably have helped him find something clean to wear but he will have undressed and dressed himself and most probably whilst I was dealing with the bed. I did not apply any lavender soap to his body….In fact I do not think I have ever used lavender soap. I certainly would not have had any and it doesn’t sound like he had some either so I am not sure where this would have come from. Regarding pulling back the shower [curtain] the following morning, the only thing I can think of here is that I may have called in and asked if he had shower gel or shampoo and may then have passed some around the curtain. It should be remembered that this was a very young member of the course at 9 years old and any action I took will have been in an endeavour to provide the best care for him.”

“I’m surprised to see in the pack issues relating to an allegation back in 1990. It seems to me that this case is is based on the witness statements and accounts from Pupils A, B and D and on their testimony over the next two days. The issues in the pack relating to 1990 are not really relevant to that case, but I have never even known the names of the complainants back in 1990. They are not appearing in this case. All their evidence, I would suggest, is therefore hearsay. …It’s essentially propensity evidence which gives a prejudicial effect and whether that outweighs their probative value. These issues were investigated at the time and no fault was found on my part. There was no action taken against me of any kind. Erm, in the chronology, it is claimed I was given advice to do the bathroom supervision. I have to say that is news to me and nobody will be giving evidence to say this happened. So, I’m very surprised why this is even being raised in the context of this case. It seems to me that that is actually significantly prejudicial, and the case should be about dealing with the complaints from the three pupils. I respectfully ask if you could give that your consideration”

“Thank you, the issue is, I think, Miss Quirk, that this evidence— or sorry, allegation is prejudicial. It relates to an event which stretches back to 1990. I can’t speak for the Panel, but I have to accept that I struggled to find any evidence in the bundle which relates to a specific warning given in 1990, but obviously, you may wish to cover that in your representations. Erm, do you want to address this then at this stage, please ?”

“This is an issue that has been raised this morning bearing in mind that this draft bundle, has been before [the Appellant]’s representation from January of this year. As you know, there is an opportunity to respond to the draft bundle and request any documents be removed. Sometimes you have a disputed bundle, for example, before you. That has not happened…. In terms of relevance,you will be drawn to Allegation 2 [which] relates to the behaviour at 1a, 1b, 1c and 1d occurred essentially despite previous advice or guidance or warnings regarding similar behaviour in or around 1990. So, in terms of the documentation relating to 1990, we are not asking you to make findings that that conduct occurred. That information is relevant in the sense that there were concerns raised in 1990 and you need to be aware of those concerns as to whether it was, erm, similar conduct to what is being placed before you in terms of A, B and D. You then need to ascertain if a warning was given in respect of that conduct and that relates specifically to Allegation 2. [The documentation] is handwritten notes at pages 184 to 193, which I am proposing to take to you throughout the course of my closing and opening. Those…may be difficult to read for some Members of the Panel given they are handwritten but there are references to the advice that was given to [the Appellant] particularly on pages 188 and 189 of the bundle and there is a reference to what was said in conversation to [him]. We accept that that will be hearsay evidence before the Panel but, of course, pursuant to [paragraph 4.18 of the 2018 procedural rules, that ‘The panel may admit any evidence, where it is fair to do so, which may reasonably be considered to be relevant to the case’] in terms of admitting evidence, you only need to be satisfied that it is fair to do so and reasonably considered relevant to the case. So, we invite you to accept the evidence as hearsay but also accept that there may be weight that you adopt to this hearsay evidence or do not and you will assess the weight of that evidence when considering the allegations. But we say in terms of the evidence to 1990, it goes to Allegation 2 which you have to consider whether guidance or warnings or advice were given in respect to similar behaviour that occurred in respect of Pupil A, B and D. So, it is the similarity of that conduct and whether advice or guidance was given in respect of that.”

“No touching duvets or going close to a bed and the minimum length of time in a dormitory. Don’t stay long in bathrooms or go in showers.”

“I have no formal advice to give on the allegations of whether…it is prejudicial or not. However, this is the case that the TRA has brought before it and as the Panel will be aware and the parties will be aware, it is for the TRA to prove on the balance of probabilities, that Allegation 2 has been proven. So, I believe that we would be right to commence with the evidence and hearing of the claim itself.”

“The allegations that are before the Panel, the onus is upon the TRA to prove to the Panel, on the balance of probabilities, that these allegations did occur….So, when the Panel retires to consider its decision, it will have had the opportunity of hearing from the witnesses but also importantly, from your point ofview, your representations and your evidence… So, we’re not, at this stage, deciding anything until we’ve heard all the evidence, but I would say the onus is on the TRA to prove to us, on the balance of probabilities, these allegations have been made out. Simply because they’re put in a form, does not mean, in any imagination, that we will necessarily find them proved. We have a discretion, that’s what the hearing is about.”

“Mr Bruce, we have given careful consideration to your representation concerning possible, prejudicial effect upon these proceedings if we were to allow Allegation 2 to proceed in its present form and, as I explained earlier, this is just, at this stage, preliminary application. We do not feel that it is prejudicial at this stage. Obviously, as I stressed to you earlier on, when you come to give your evidence, you can give evidence to that effect and make representations, which the Panel will decide upon, and I would stress, obviously, that the onus of proving these allegations rests upon the TRA. If the Panel feel that they have not met that requirement, then obviously the Panel has the power to dismiss the allegation. But for the purpose of this application, at this stage, the Panel does not take the view that it is prejudicial to proceed…”

“You will have information within the bundle regarding, potentially, the school investigation, the police investigation and whilst their evidence, which was produced during their investigations, is relevant in this case, any decisions that they made should be placed outside of your mind. Your decision should be based on the evidence before you, the evidence you have heard and your judgement. You should not be influenced by previous decisions which, possibly, were made on a different standard of proof and also with different evidence before that individual or organisation. You should assess these allegations afresh.”

“CB [Pupil B’s account] doesn’t agree with your version of events, does it, because it says you were wearing— you were naked, you didn’t have shorts on, whereas your version of events says you had shorts on. Pupil A I’d got boxer trousers, with a towel around me. CB...Yes, forgive me, but this says specifically wearing no other clothes, so you were in the towel and that was it, according to h— his statement….Do you accept that’s— that’s inconsistent with your version of events ? Pupil A Erm, it’s different but once again, Pupil B almost certainly hadn’t seen me with the without the towel on, so he would not have known at the time if I had boxer shorts on because all he could see was a towel. You’d have to ask Pupil B…. CB Then [Pupil B says in his statement] “I saw Mr Bruce reach out and lift a section of Pupil’s A towel away from body, so it was possible to see a section of Pupil A’s naked lower body.”

“CB: Is it your recollection that Pupil A was wearing boxer shorts? Pupil B: At this point, I wouldn’t be able to recall but, you know….from the first interview that I had where I state that he was wearing boxer shorts, that would, in theory, be my best recollection of it because it was closest to the time of the incident. So, erm, I’m probably saying that he must’ve been wearing pants then. But I can’t say for certain whether he was or wasn’t…. I don’t know about others but, you know, typically if I shower, I— I wouldn’t put pants on and then re-wrap my towel around myself. So, whether he had— ooh. Whether he had pants on or not, I couldn’t give you a confident response. CB Well, if you can’t be confident whether he had pants on or not, you can’t be confident that he didn’t have anything on, can you? Pupil B Erm, I’m confident that he had— had a maximum only pants, nothing more than that. CB [Pupil A’s statement] says, “We were told to remove our clothing.”

“CB..Have you found that PTSD has affected your memory with things? Pupil D: Erm, no. I think the significant triggers are really obvious to me…. The general specific details with a memory can become, for me, like around like an event, such as the significance of this, erm, so I remember the significant event but, you know, like exact conversations, more specific nuances within that event are harder to remember. One thing that I worked through [with psychiatrists] is the false memory. Erm, you can create false memory by trying to think too hard on those nuances around the significant situation. So— and that could lead to sort of misunderstanding it. So, outside of the— this raw memory that I have… I think she tried to not explore too much around that. CB Right, I just need to understand some more about this false memory. Why were you going through a false memory process with a psychiatrist? Pupil D No, it’s discussing how, erm, false memories can be a thing in any— erm, for anyone if they— erm, like so say if I create some confirmation bias around something that I wasn’t 100% sure of, then that could result in a false memory at a later date….[T]hese are psychiatric terms or, erm, exercises that were introduced to me. So, rather than myself having anxieties around something like a false memory…These were exercises where…let’s not explore too deeply into stuff that’s unclear because that can result in that. So, it was exercises…with… my psychiatrist, at the time CB And at that time, you hadn’t told your psychiatrist about this incident that you allege? Pupil D Erm, so the timeline with that, erm, yeah, that would have then been at that time, yeah CB You hadn’t talked to her at that time ? Pupil D: I think that once— once we were going through talking about the incident, I had informed them. So, erm, timeline, yeah, I’ll just line it out. So, I had the operation then went to go and see my psychiatrist. Was seeing him for a few months, erm, and that was partly around the OCDs related to needing the bathroom, etcetera and trying to figure that out. I was receiving [Cognitive Behavioural Therapy]….I can’t remember exactly the month that I started seeing them, it was data I can easily get hold of, erm, but then, erm, the following— erm, a couple of months later, it was then that I’d sort of come to this realisation that, erm, this event— not realisation, it was more that I— I was feeling a lot clearer about how this event occurred, erm, and, erm, I then was able— I then told my psychiatrist and psychologist during my therapy which, yeah, was based around the CBT. So, that is then when we went on to talk more about my details…. CB So, was it around 2017 that you told your psychiatrist for the first time ? Pupil D Yeah, yeah, so, erm, it was around— erm, so I started seeing them in 2016, again the psychiatrist. Erm, I told a friend a believe vaguely off the top of my head, early 2017/late 2016, erm, and then spoke to my psychiatrist within— erm, yeah, erm, the week after that or so.”

“Pupil D: You know…I’m sure my psychiatrist would be happy to share dates of appointments or anything like that, or any specific medical information, because obviously I’m not a medical expert and I’m just trusting in their discretion— well not discretion, in their expertise to make sure that I am, you know, having the best treatment that I can. ChairThank you. I’m sure the TRA and Miss Quirk has noted that and obviously will consider it.”

“HQ…You gave a lot of evidence at the start of your cross-examination and that evidence stemmed to kind of the effects on memory, essentially….In terms of your witness statement, how are sure are you that the event in the bathroom, in terms of the touching and lotion or the soap, and the event in the shower the next day occurred, as you put in your statement ? Pupil DI’m 100% sure that these occurred. I have no doubt in my mind that these events occurred. The point I made around memory was of trying to pin down specific— erm, the more specific details that went along with the event, but the actual event did occur.”

“SR: Do you think your relationship with Mr Bruce prior to these events was any different compared to any other student or pupil ? Pupil D Erm, prior to the events ? Erm, I think— I seem to remember that he thought I was, erm, quite good and, in my mind, I got attention from him in a positive way. Erm, I wouldn’t say it was of a grooming nature, I wouldn’t put, you know, that status on it but I wouldn’t say there was a negative around it at all. it just felt like a positive— positive relationship. SR Okay, and afterwards ? Pupil D Then afterwards, as I recall, yeah, some went back to that kind of same relationship I’d say, yeah.”

“Pupil A gives an account of me walking into the bathroom, he says, on a number of occasions. In my initial response to this back in 2018, I acknowledged that I had entered the bathroom. This acknowledgment was a big mistake on my part and at the time, I was taking advice from my local union representative. I had explained to him that I might have been visible through the open door to the bathroom and he felt there was little difference between that and being in the room. Whether he is right on that, I’ll leave to your judgement. He felt that in this case, it could go against me to deny it. However, I didn’t actually enter the room. I may have had a conversation through the open door, to the effect that time was moving on and Pupil B should get a move on, and it is possible that might have been visible through the opaque screen. It would have been a momentary thing and like the pupil, I thought nothing of it at the time.….You’ve heard from Pupil A that I entered the bathroom on numerous occasions. First of all, I would point out that I never entered the bedroom that led to the bathroom without being invited in. Pupil A suggested this is not the case, but Pupil B refers to how I knocked on the door, which he opened before I entered. That was how I approached the rooms.…..[Pupil A] says I asked him if he was showering properly, not a likely conversation, and then says he knew it was me because he could see me through the translucent door. Well, presumably, it would have been the conversation that was the bigger give away. This doesn’t really make sense. He claims I told them to remove their boxer shorts. Well, this absolutely did not happen and if it had happened, I would have expected it to be in the accounts from both pupils. He says clearly that both pupils removed all their clothing. No. In Pupil B’s account, he was wearing pants with his towel around him. He doesn’t suggest I asked him to remove any clothing, because I didn’t, and neither did I ask Pupil A to remove clothing either. I want to be very clear on this. At no point did I see either pupil naked. So, why does Pupil A say it? What is clear is that there were a number of leading questions in the interview with the school….by asking, ‘Did he ask you to take your clothes off?’, a closed question, Pupil B opted for the binary answer, ‘Yes,’ and this is the position he goes on to defend, even until his account before this committee. I would suggest that that really highlights the dangers of closed and leading questions. It would have been quite possible to say, ‘Can you remember what Mr Bruce said to you? did he ask you to do anything? would you like to tell us more about what happened and why?’.”

“Chair I appreciate the point that you make and obviously, if Mr Bruce had been legally represented, this wouldn’t be the situation. The problem that I’m sure you recognise is that Mr Bruce is not represented, so he’s playing the twin role, as it were, at both being a witness and putting himself in the shoes as a representative and it’s very, very, difficult for someone who doesn’t have a legal background to understand that distinction. I think at this stage, subject to any advice I may receive from the Legal Adviser, that I would like to allow Mr Bruce to continue in order that we can hear what he has to say, erm, and it may well be that we have further questions later on. I’m minded at this stage to allow him to continue to do so, albeit he’s heard the comments which have been made and no doubt understands the distinction. Mr Dave [the Legal Adviser] any comments you want to make? PDNo, I don’t have any comments. Thank you, Sir. ChairThank you. Mr Bruce, I’ve emphasised, I think, from the very outset of this case that you’re not represented. We understand that you’re not represented, and we do want to give you every opportunity to be heard. Ordinarily, there would not be any leeway if— if you weren’t represented but, on this occasion, I think we will allow you some leeway. Erm, it’s a very, very difficult distinction to draw when you’re giving evidence, erm, as opposed to making a closing submission. Ordinarily, a closing submission is the person would summarise all the evidence and make representations to us, but obviously, your role is a difficult one. So, I will, erm, allow you to continue at the moment. If it does become more of an issue, then we may have to consider it further. So, if you’d like to continue. ABThank you. If I could just say, equally from my part, I’m very happy to— if you would prefer me to stop there and, erm, move to questioning, we could do that and I could these comments [later] ChairNo, no, I think it’s important that you— it’s not for me to tell you how to conduct the case and I’m— because obviously, that would be a conflict of interest and I don’t want to step into the arena. The only thing I would suggest you have provided responses to the allegations in the bundle. It may be of assistance to you if you refer to that document when going through your evidence so that you can perhaps, erm, extend on what you’ve said or offer further explanations, but the point you made about the questions as to why Pupil A has said what he said because of a leading question, that probably is something that— that would fall really under a closing submission. Erm, but obviously it’s a matter for you. You— as I say, we’ll give you the leeway at the moment to carry on, erm, but it might— might be helpful to look at that response document that you did and— and explore further that particular point you made there.”

“[H]e gives a detailed report on how I brushed sand off Pupil A with a corner of a towel. So, you would think this would be a key point for Pupil A to report but he doesn’t mention it. The Pupils say they discussed it together on a number of occasions and yet, in spite of this, there are such significant differences in the two accounts. In the account from both pupils, they say they didn’t think anything of it at the time. Well, these pupils were not six or seven years old, they were 12, and I suggest that at 12, if your teacher enters your bedroom and tells you to remove all your clothing, you would not think this is perfectly normal behaviour. I think it’s significant in the case of Pupil B that he said he didn’t think anything of it at the time, and he’d mentioned when questioned he has not heard anything to change his mind about this. So, he still doesn’t think anything of it.”

“Chair: You said in your statement, in relation to Pupil D, that you did not recall him on the incident, erm, and then to go on to say if he approached me, I’d have provided appropriate assistance to him, such as replacing bed linen. Erm, so really, I think in terms of your evidence, if we start with Pupil D… You say in your statement that you do not recall him or the incident. Is that your evidence today? AB It is. I mean, I’m— I’m sorry that I don’t— I don’t recall him. Erm, he says that we met on a number of occasions. I’d suggest that this was probably the first one because he was quite young at the time. Erm, but, erm, you know, I saw so many pupils on various courses – I used to do two of these courses at least a year – erm, and, erm, you know, I— I don’t have a memory of him at all, I’m afraid. Chair: No. And you have no memory of the, erm, alleged incident as described by Pupil D? AB: Not— not at all. I don’t suggest that he wouldn’t have come to me if there was a problem in the night, erm, and I don’t suggest that I wouldn’t have helped him. Erm, but I see his accusations as being wild accusations, and I totally reject what he— his— his version of what happened.”

“Chair: And again, just to confirm you state that at no time did you ask either of them to remove clothing. Erm, and again, just for the sake of you giving evidence, confirm that that is correct? AB: That’s absolutely true. I didn’t ask them to remove any clothing.”

“HQ…Yes, Mr Bruce, and for the avoidance of doubt, I completely appreciate you firstly say Pupil A and B give different accounts… Pupil A suggested that as a Year 7 pupil, he wouldn’t necessarily challenge a teacher because they’re in a position of power. Now, as a Year 7 pupil, that’s not really an unusual thing to say, is it, Mr Bruce? ABIt’s not particularly unusual but you get complete, erm, scales of differences with how people react in these situations. My recollection of Pupil A was that he was not backwards in coming forwards, shall we say. HQNow Pupil B described you as nice, welcoming, open to conversation. Essentially, he described you very much as a good teacher. Again, in terms of Pupil B, is there anything you recall in your mind an incident or event, that may be a reason why Pupil B has some sort of malice towards you? ABNo….. HQ[In an interview at School] you simply say Pupil A is a reasonable guy. Is it therefore fair to say that there was nothing that you could, erm, recollect as a source of malice for Pupil A either? ABThat’s absolutely the case, yes. ‘Guy’ is not a word I use. He may have been ‘a reasonable chap’ or ‘reasonable person’, ‘boy’. It’s one of a few transcript errors here. But anyway, yes, I certainly hold that view. HQNow, Mr Bruce, as you understand, this Panel have to ascertain, on balance, whether the allegations are proven or not. Now do you accept if these allegations are proven, a scenario where a teacher has seen pupils naked, erm, touched Pupil D in a certain manner, do you accept that would be serious misconduct? ABI do. HQAnd do you accept that as a teacher with your experience in 2004 and 2015/16, would know that it would be inappropriate acting that way towards a pupil? ABYes.”

“HQ: And you will see under the bit [of the notes] that is redacted we have the words, “Other incidents: stares in showers and bathrooms.”

‘Don’t touch duvets or stay near a bed. Don’t stay long in bathrooms or go in shower. Get torch that works’

“You have some hearsay in the Bundle from individuals you have not heard from in these proceedings and therefore, you’ve not been able to test that. This Panel is able to consider any evidence that is relevant to the case and if it’s reasonably fair to do so. So, you can accept hearsay but of course, you may want to consider what weight you place upon that hearsay evidence and ascertain whether there is corroborative evidence within the Bundle or you’ve heard anything from the witnesses, including Mr Bruce, this week that may support that evidence that you have….Panel, I deal with the advice and guidance Allegation 2 in respect of the 1990’s and this allegation is proffered mainly on documentary evidence. You have handwritten notes, and I appreciate handwriting can be difficult to understand, but I hope you were assisted in the questioning with Mr Bruce in taking you through those. But what the notes say is that there are concerns raised regarding dormitory checks of a night with Mr Bruce and some additional concerns. There is a concern [he] made a pupil undress in front of him because he had not had a shower and he was told to turn around and face him. Similar conduct to what Pupil A and B say happened. There is a complaint about Mr Bruce and it simply says, “Stares in the showers and bathrooms.”

“When looking at credibility, you may want to consider consistency of accounts and demeanour of the individuals you’ve heard from. In my submission, the TRA’s witnesses were clear and willing to make reasonable concessions. They were frank and— and their demeanour was reasonable to the circumstances seeking, essentially, to assist you as a Panel. You may be asked to consider, in terms of the witnesses, whether a witness has lied and that may be to conceal or falsify information, the questions put to witnesses that were avoided or simply misunderstood. You may think that is relevant in the process. And in terms of that demeanour, physical signs of emotion may or may not be apparent in a witness. Witnesses may display emotions because an innocent person fears being disbelieved or a guilty individual has apprehension about being detected, and they’re just a number of reasons that may impact on someone’s emotion or demeanour. A more seasoned mistruth teller may be more calm, because it’s quite natural to them. It is very different for different people and that is the difficulty that presents when you are assessing demeanour and credibility. It is a matter for the Panel that may be a matter that causes difficulty in your assessments. So, assess carefully the evidence you’ve heard and come to a reasoned decision on those points…. Now in terms of the discrepancies between Pupil A and B, which has been a big topic throughout this hearing, Pupil A says that he was asked to take— both pupils were asked to take off their boxer shorts. Now he also says that he does not recall what Pupil B was wearing on the lower half. Pupil B provided greater detail in that he says some information Pupil A did not. He says Mr Bruce lifted Pupil A’s towel, revealing his naked body. He asked him to spin, which Pupil A did recall in oral evidence but wasn’t in his statement and Mr Bruce used the towel to brush and/or wipe Pupil A’s back. Now we say in multiple accounts given from memory can be subject to discrepancies. Again, this could be due to lapse of time or memory. This could be due to the age of the individual and taking that particular statement. Now there is some question regarding Pupil A and B discussing their accounts between themselves or with others at the time they were in school. Now if there is any suggestion to you that Pupil A and B have colluded, surely their accounts would be more lined up, they’d be lined up to a tee to ensure that they essentially got the story straight. On balance, we invite you to accept the reasoning provided by the pupils for understanding that a child who has indicated that something happened to him is trying and/or successfully blocking part of that account from their memory, maybe to protect themselves. The more damaging parts, you will note, in terms of Pupil A are the ones he could not recall, the ones where the physical touch took place. Pupil A says that in 2015/16, he didn’t think much about it but clearly by 2018, he thought enough to disclose it to his parents, who then disclosed it to the school. Certainly, he’d recalled it two years earlier and it must have been on his mind. He wanted to forget but he couldn’t forget it all. Whereas Pupil B’s mind, he says, was still open. He didn’t affect him. He had no reason to block anything out and it goes back to how individuals themselves may deal with sit— situations in their own mind and the responses to them can be very different. And again, there’s been much about Pupil A and B’s discrepancies but look also at how very much the accounts align. Both pupils say that Mr Bruce came to their room whilst showering. Mr Bruce, of course, accepts that he would go to pupils’ rooms on— on some occasions. Both pupils give a similar proximity to where they were all standing in the room. Both pupils say there was some warning or concern about sand and again, Mr Bruce has confirmed the issues surrounding the sand. They both say Pupil B was not wearing, erm, a top at the time and he had no clothes on, erm, from the waist up. They both say Mr Bruce looked them over, either naked or half naked, for sand. So, they say there was some looking in respect of sand but there seems to be some issues as to what they recall each other were wearing. And Mr Bruce acknowledged that he would sometimes go into rooms but on this occasion, we say there was no reason for him to do so. He, in fact, couldn’t recall why he did. In 2015 incident, erm, certainly in terms of whatever message was needed to be given to Pupil A in respect of is he showering, is he ready, that could have been relayed at the door….. Pupil D, in our submission, was a clear, consistent and candid witness before this Panel. He was willing to accept that the police evidence, when he made his first disclosure, is likely to be more accurate. Refresh your mind, Panel, to the [ABE] interview of Pupil D which you have on video but also the private session of his evidence which I don’t intend to go into detail given it was heard in private session, but particularly the questions in respect of memory and triggers in respect of Pupil D’s account. Now, Pupil D was reasoned and he was confident that he was 100% sure that these events happened. He confirmed the content of his witness statement which states the situation was he was attending a residential trip, which was approximately four days long. He was sleeping in the dormitory, which he showed you on the plan, with other pupils. During the evening or during the night, he had wet the bed which he found very embarrassing. He went to seekhelp from Mr Bruce, who we know was assigned as pastoral, but he was in another room but in close proximity. He had a good relationship and in fact spoke quite highly of Mr Bruce in oral evidence. He described him as positive, in fact, really positive, engaging, light-hearted. And why would Pupil D, sorry, not seek assistance from a trusted adult in that situation? He recalls, but did not know how, except that he would have walked there himself, ending up in Mr Bruce’s bathroom where he was asked to take his clothes off. He says Mr Bruce lathered him, in his statement, with soap using both hands but he was drawn to the reference of lotion being used but to him, he said essentially quite bluntly to you, they are the same things in his mind and certainly similar. All he remembers is that it smelt of lavender, which is quite a specific detail that Pupil D recalled…. Now in terms of Pupil D’s accounts, again we submit they are consistent. Pupil D gave a statement tothe police six years earlier than this week, five years before this TRA statement. And he was quite open to you in saying he hadn’t seen that write-up of his account with the police or the sketch since that he had made it six years ago but his account still was consistent.”

“[The Presenting Officer] highlighted…that findings from an earlier investigation were not significant because of the difference in threshold of evidence. Well, there is indeed that difference, but I suggest it is relevant to remember that in the police investigation all my devices were taken and thoroughly searched for anything incriminating, as were printed photo albums with my wife and my daughters and DVDs with family videos. Everything was checked and nothing was found to cause— any concern. So, I’m genuinely sorry to hear of [Pupil D’s] mental health issues and saddened to hear he attribute those, at least in part, to his experience on a course. He talked about these issues and I admire him for being able to open up about them….It sounded to me like he is receiving good help. He described some of his issues and said that these issues, in some form, existed prior to attending the course and he also mentions, although he rode back from it at the end of his testimony, false memory syndrome as an issue. A false memory syndrome is defined as follows. The experience, usually in the context of adult psychotherapy, of seeming— seeming to remember events that never actually occurred. These pseudo memories are often quite vivid and emotionally charged, especially those representing acts of abuse or violence committed against the subject during childhood. Now, when I was arrested and questioned over this issue, my wife and my daughters and I went through a very difficult period while I— while it was investigated and life for us has not really been the same since, but I think it might have been helpful to know that this serious condition is one of his issues. There’s been reference to advice it is claimed I received back in 1990. As I mentioned under questioning, bathing arrangements were very different in those days. The bathrooms were communal, pupils generally shared a bath. A member of staff was always present in the room. I don’t have specific memory of any advice being given. I do remember that the Head and I had conversations and that a number of alterations were made to night-time routine. We all then took a more distant approach to supervision. This matter was subject to a police investigation and no charges were brought against me. And, again, I mention all my devices were taken and they were all examined and there was nothing on them to cause any concern. This has been an extraordinary stressful time for me personally and I hope you don’t mind me saying that and it’s taken a huge toll on my wife and three wonderful daughters and I would ask the Panel, therefore, to think very carefully, as I’m sure they will, to remember the following. Pupil A’s account differs greatly from that of Pupil B, despite the conferring. Pupil A says he didn’t think anything of it at the time. Pupil B was instructed to attend an interview by the way, he didn’t volunteer it and he wasn’t given any choice. He was called in, in an attempt to verify the account of Pupil A, which he didn’t. He too says he didn’t think anything of it at the time and most significantly, he still doesn’t.”

“Allegation 1: You engaged in inappropriate and/or unprofessional behaviour towards one or more pupils, including on one or more occasions: a. In or around June — July 2015 entering and/or remaining in the bathroom whilst Pupil A was showering. The panel heard evidence from Pupil A that he attended a residential trip to Belgium during which Mr Bruce was a supervising teacher. The shower in Pupil A's hotel room was broken and therefore he needed to use a shower in another pupils' room. Pupil A stated that the shower had a screen that was lightly frosted. Pupil A stated that you could see through the screen. Pupil A, in written evidence, stated that he closed the door whenever he was showering. Pupil A alleged that whilst he was showering, Mr Bruce would come into the bathroom on multiple occasions and ask if he was showering properly. Pupil A said he knew it was Mr Bruce because he could see him through the screen. Mr Bruce stated in evidence that he would often walk between rooms to encourage pupils to be ready to move on to the next activity, such as getting ready for dinner. In written evidence, Mr Bruce admitted to putting his head around the door to ensure Pupil A was showering. Mr Bruce commented that he did not linger. In oral evidence, Mr Bruce stated that he did look through the door or the crack to see if Pupil A was showering but did not enter the room. The panel found that Pupil A's evidence was credible and consistent in terms of the accounts he gave in relation to this allegation. The panel considered the evidence and on the balance of probabilities found that Mr Bruce did look at Pupil A whilst he was showering by opening the door to look inside and therefore concluded that Mr Bruce did enter the bathroom. The panel therefore found that Mr Bruce's actions were inappropriate and unprofessional towards Pupil A and therefore, the panel found allegation 1.a. proved. 1b. In or around June — July 2016 by: i. Entering Pupil A and B's hotel room and asking Pupil A and/or B to remove their towels. ii Telling Pupil A and/or B to face you and/or turn around or words to that effect whilst he was naked or only wearing underwear. iii. Lifted Pupil A's towel away from his body whilst he was drying, exposing his naked lower body; iv. Used a towel to brush and/or wipe down Pupil A's back. The panel heard evidence from Pupils A and B that they attended a residential trip to Normandy during which Mr Bruce was a supervising teacher. Pupils A and B were sharing a hotel room together. During the trip the pupils and teachers went to the beach. Mr Bruce told the panel that sand was an issue in the hotel rooms. He asked the pupils to dust the sand off at the beach and to remove the remainder by going straight to their rooms and having a shower. Pupil B gave evidence that as he was the first in the room he had his shower. After Pupil B finished, he went into the bedroom to towel himself and get changed as Pupil A had his shower. Pupil A stated in evidence that after the shower, he was only wearing his boxer shorts. Mr Bruce came into the room and said that he did not trust that they had cleaned the sand off themselves properly. Pupil A alleges that Mr Bruce told him and Pupil B to remove their clothing so he could check if they had properly cleaned themselves, including being told to remove their boxer shorts. Pupil A stated that both the pupils removed all of their clothing, Mr Bruce looked them over and told them to put their clothes back on. Pupil B stated in evidence that Mr Bruce knocked on the door and Pupil B opened the door inviting Mr Bruce in. Pupil B stated that Pupil A only had a towel wrapped about the lower half of his body with no other clothes on. Pupil B alleges that Mr Bruce asked if they had got the sand off them. Mr Bruce then walked up to Pupil A who was on the other side of the room and lifted a section of Pupil A's towel so that you could see his naked lower body. When Mr Bruce dropped the towel, Pupil A held the towel in one hand and therefore exposing a large section of Pupil A's lower body. Pupil B then alleges that Mr Bruce asked Pupil A to spin in a circle. During the spin, Mr Bruce picked up a section of the towel and gave Pupil A two brushes down the middle of his back. Pupil B also stated that he was asked to take his towel off and check if he had sand on him. Mr Bruce denies that he would walk into a pupils' room without knocking. He also denies that the allegations occurred as described by Pupils A and B. The panel note the inconsistencies between the accounts of Pupils A and B. The panel also notes that the events in question occurred seven years ago. Therefore, time may have had an impact on memories. However, the panel has found that the account by Pupil A and Pupil B to be consistent with other statements they have made about the events of 2016. The panel gave careful consideration of the evidence that it heard in respect to allegation 1.b.iv. Pupil A did not give direct evidence to support this allegation, in the absence of such evidence the panel was not satisfied that the allegation had been proved. Having considered the oral evidence and the evidence within the bundle, the panel on the balance of probabilities concluded that Mr Bruce: • did enter into Pupil A's and B's hotel room and ask Pupil A to remove his towel. • told Pupil A to turn around or words to that effect when he was naked or only wearing underwear. • lifted Pupil A's towel away from his body exposing his naked lower body. On the balance of probabilities, the panel found that Mr Bruce's actions were inappropriate and unprofessional, therefore, the panel have found allegation 1.b.i., 1.b.ii., 1.b.iii. proven. c. In or around June — July 2016 by asking Pupil C to sit on his lap and/or suggesting that he should. The panel heard evidence from Pupils A and B regarding this allegation. The panel note that no evidence was provided from Pupil C. Pupil B provided a sketch of the dining area, showing that the pupils in attendance were seated separately. The girls were on one side of the room and the boys on the other, and the teachers sitting separately. Pupil B stated in evidence that Pupil C had got up from his chair to use the toilets. It was during Pupil C's absence that Mr Bruce came over to the boys' table and sat in Pupil C's seat. When Pupil C came back from the toilet, Pupil B's evidence is that Mr Bruce said "come and sit on my lap" to Pupil C. Pupil B witnessed Pupil C sitting on Mr Bruce's knee. Pupil A states that Pupil C was in his chair when he was asked by Mr Bruce to stand up and told Pupil C to sit on his lap. When asked by the panel if the dining area was noisy, Pupil A said there were about 15 boys there but could not say if it was noisy. Mr Bruce stated that he sat on Pupil C's chair whilst he was in the toilet. When Pupil C came back, Mr Bruce stated that there may have been some banter and he may have acted as a ventriloquist with Pupil C being at his knee but not on his knee or lap. Mr Bruce denies that he asked or suggested to Pupil C to sit on his lap. The panel accept Pupils A's and B's account that Pupil C was at some point sitting on Mr Bruce's lap. However, the panel on the balance of probabilities was unable to determine if Mr Bruce had asked Pupil C to sit on his lap or make a suggestion that Pupil C should. Therefore, this allegation is not proved. d. In or around Easter 2004 by: i. Asking Pupil D to remove his clothes after he had wet the bed. ii. Using your hand to rub and/or apply lotion and/or soap to Pupil D's body and/or genitals. iii. Pulling back the shower curtain and looking at Pupil D whilst showering. The panel heard from Pupil D about these allegations. The panel were told by Pupil D that in Easter 2004 he attended a residential course. For the duration of the course, it was Pupil D's recollection that Mr Bruce was the musical director. At the time, Pupil D was aged between years old. During the night, Pupil D had wet the bed. He sought assistance from Mr Bruce, who was responsible for a group of boys sleeping in the wing. Pupil D was seeking assistance to change the bed sheets. Pupil D stated that Mr Bruce asked him into his bathroom where he asked Pupil D to take off his clothes, which he did. Once naked, Mr Bruce placed soap on Pupil D's body and in particular his crotch and groin area. Pupil D's evidence was that Mr Bruce touched his genitals when he was cleaning him. Pupil D stated that he remembered that the soap smelled of lavender. Pupil D stated that he was uncomfortable about the experience at the time and froze up feeling humiliated and embarrassed about the situation. The bedwetting was embarrassing but Mr Bruce's actions made it worse. Pupil D was told by Mr Bruce to stay in the bathroom and Mr Bruce changed the bed sheets during this time. Then Pupil D returned to his bed, cried and rocked himself to sleep. At some point, Mr Bruce came back around with a torch to make sure that Pupil D was okay. At the time, Pupil D was still crying. Mr Bruce's evidence of this allegation was that he did not remember Pupil D or the incident of Pupil D wetting the bed. Pupil D's evidence was that the next day, whilst he was taking a shower in the communal washroom, Mr Bruce pulled open the shower curtain and stared at him. Mr Bruce gave evidence that he did not remember this incident. He offered a scenario whereby he may have been checking on Pupil D to see whether or not he required shower gel or shampoo. In such a case he would have passed these through the curtain without looking. The panel heard that Pupil D has been suffering from mental health issues in his early to mid-twenties. After speaking to a psychiatrist and psychologist, Pupil D attributed his mental health issues to the incidents that occurred in Easter 2004 as set out in his evidence. Pupil D also explained why he had not reported the incident earlier. Pupil D stated that after speaking to one of his closest friends about the incident and telling his psychiatrist, he reported the matter to the police. The panel considered Pupil D's oral evidence as compelling. Pupil D gave credible and reliable evidence. The panel found that Pupil D's evidence consistent with no significant changes and was not discredited in any way by Mr Barlow's cross examination. Pupil D explained the delay in coming forward and the panel found this understandable in the circumstances. The panel considered the circumstances of the residential trip in respect of this allegation. The panel concluded this was consistent with an educational setting. The panel found that Mr Bruce's actions were inappropriate and unprofessional towards Pupil D and therefore, on the balance of probabilities the panel found allegations 1.d.i., 1.d.ii. and 1.d.iii. proven.”

“3. Your behaviour as may be found at la and/or 1 b and/or 1 c and/or 1d above was sexually motivated and/or conduct of a sexual nature. The panel has found the allegations 1a,1.b.i, 1.b.ii, 1.b.iii. and 1.d. proven. The panel has considered the facts of allegations 1a, 1.b.i, 1.b.ii, 1.b.iii, and 1.d. individually and has found that Mr Bruce's conduct was in pursuit of sexual gratification. The panel has found that on the balance of probabilities Mr Bruce's behaviour was sexually motivated and was conduct of a sexual nature. Therefore, the panel has found this allegation proved.”

“In the light of the panel's findings against Mr Bruce, which involved entering a bathroom to see Pupil A showering in 2015. In 2016, telling Pupil A to remove his towel, to turn around whilst he was naked, and moving Pupil A's towel to expose his naked lower body. In 2004, using his hands to apply soap to Pupil D's body and genitals, and pulling the shower curtain whilst Pupil D was showering. The panel found that Mr Bruce did these actions for sexual gratification, that his behaviour was sexually motivated and conduct of a sexual nature…. ..[A] strong public interest consideration in declaring proper standards of conduct in the profession was also present as the conduct found against Mr Bruce was outside that which could reasonably be tolerated. Whilst there is evidence that Mr Bruce had ability as an educator, the panel considered that the adverse public interest considerations above outweigh any interest in retaining Mr Bruce in the profession, since his behaviour fundamentally breached the standard of conduct expected of a teacher, and he sought to exploit his position of trust….. Even though some of the behaviour found proved in this case indicated that a prohibition order would be appropriate, taking account of the public interest and the seriousness of the behaviour and the likely harm to the public interest were the teacher be allowed to continue to teach, the panel went on to consider the mitigation offered by the teacher. There was no evidence that Mr Bruce's actions were not deliberate. There was no evidence to suggest that Mr Bruce was acting under extreme duress, e.g. a physical threat or significant intimidation. The panel considered the good character evidence provided within the bundle in the form of three letters. Although the panel saw evidence of good character, it noted that in evidence, only the author of the first letter was informed about the allegations in full, the other two individuals only received a précis of the allegations. The panel noted that only the last letter was from a colleague who worked with Mr Bruce at the School and referred to his valuable contribution to the musical and pastoral life of the School, but contained no specific references to his abilities as a teacher. Mr Bruce has demonstrated no insight or reflection or remorse into his behaviours and actions as found proven. In particular there was no insight into the harm he may have caused Pupils A and D. In particular considering Pupil A stated in evidence that he wishes to forget the experience and Pupil D has suffered in his mental health due to the actions of Mr Bruce. ….The panel was of the view that, applying the standard of the ordinary intelligent citizen, it would not be a proportionate and appropriate response to recommend no prohibition order….The panel was of the view that prohibition was both proportionate and appropriate. The panel decided that the public interest considerations outweighed the interests of Mr Bruce. The sexual nature and voyeuristic behaviours and conduct of Mr Bruce was a significant factor in forming that opinion. Accordingly, the panel made a recommendation to the Secretary of State that a prohibition order should be imposed with immediate effect. The panel went on to consider whether or not it would be appropriate for it to decide to recommend a review period of the order…. The panel found that Mr Bruce was responsible for: • entering a bathroom to see Pupil A showering. • telling Pupil A to remove his towel, to turn around whilst he was naked, and moving Pupil A's towel to expose his naked lower body. • using his hands to apply soap to Pupil D's body and genitals, and pulling the shower curtain aside whilst Pupil D was showering. The panel found that Mr Bruce did these actions for sexual gratification, and that his behaviour was sexually motivated and conduct of a sexual nature. The panel believes that this is a case of serious sexual misconduct and sexual misconduct involving a child. The panel took into account the issue of mitigation, however no significant mitigation was provided for the panel to consider. The lack of insight and genuine remorse shown by Mr Bruce meant that the panel could not be satisfied that there would not be repeated behaviours and/or conduct that could put pupils at risk of harm again. The panel decided that the findings indicated a situation in which a review period would not be appropriate and, as such, decided that it would be proportionate, in all the circumstances, for the prohibition order to be recommended without provisions for a review period.”

“‘Penalty' is not really an appropriate word to describe disciplinary measures that are imposed under the various regulatory schemes. The primary object of those measures is not to penalise for misconduct. It is to protect the public and the reputation of the profession in question: see the judgment of the Privy Council in Gupta v General Medical Council [2002] 1 WLR 1691 at [21].”

“The disciplinary tribunal should play a more proactive role than a judge presiding over a criminal trial in making sure that the case is properly presented and that the relevant evidence is placed before it.”

“Thisargument…relied on an assumed analogy with a criminal trial, the validity of which...was seriously called in question by the decision of the House of Lords in R v. GMC Exp Gee [1987] 1 WLR. 564.” (It is clear the Privy Council in Langford had not been referred to Gee). Reza shows both that the strict rules in Criminal Courts do not necessarily apply to professional regulatory proceedings and as I discuss later, evidence may be admissible even if it would not be in a Criminal Court. As I also discuss later, a legal adviser’s advice to a panel is not the same as a Judge’s directions to a Jury, as his advice does not bind the panel and he does not sum-up the evidence: Fish v GMC [2012] EWHC 1269 (Admin) at [34]. (b) Art.6 European Convention of Human Rights provides, so far as material: “6.1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law….[my italics] 6.2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 6.3. Everyone charged with a criminal offence has the following minimum rights…. (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him…”

“13. We accept, of course, that to be debarred from gaining one’s livelihood in an activity in which one has done so for much of one’s life is a serious matter. However…we are not persuaded…that the proceedings instituted by the SFA against M Fleurose are properly to be regarded as involving a criminal charge or offence. 14. [However] it is common ground…the disciplinary tribunal was involved in the determination of M Fleurose’s civil rights for the purposes of Article 6. Therefore, clearly, the proceedings had to be fair. We accept…that it was for the SFA to prove their case…[and] to inform M Fleurose in good time of the nature of the charges, he must have adequate time and facilities to prepare his defence, [and] a proper opportunity to give and call evidence and question those witnesses called against him. What fairness requires will vary from case to case and manifestly the gravity and complexity of the charges and of the defence will impact on what fairness requires.”

“[I]n cases like the present, as well as those involving more disparate complaints, all the matters alleged will be heard and considered together. This leaves room for the juxtaposition of allegations which, though not qualifying as similar fact evidence, are like enough in character to cause prejudice. This will necessitate a strict warning to the [disciplinary] committee and also, where appropriate, the identification of similar fact principles when the evidence has been given….”

“The Committee may receive oral, documentary or other evidence of any fact or matter which appears to them relevant to the inquiry into the case before them: provided that, where any fact or matter is tendered as evidence which would not be admissible as such if the proceedings were criminal proceedings in England, the committee shall not receive it unless, after consultation with the legal assessor, they are satisfied their duty of making due inquiry into the case before them makes its reception desirable.”

‘The Prejudicial Hearsay Ground’

“The Respondent’s prosecuting authority prepared a bundle containing (and the Panel allowed them to rely on) material which should not have been admitted as its admission was neither fair nor relevant, namely: (i) opinion evidence; (ii) allegations of misconduct not pleaded against the Appellant; (iii) repetitive hearsay evidence in the form of police logs; and (iv) hearsay evidence on past advice given to the Appellant”

“4.17. The standard of proof is that applicable to civil proceedings, namely, the ‘balance of probabilities’. The burden of proof is on the presenting officer. This means that it is for the presenting officer to demonstrate that the facts of the case are more likely to have happened than not. 4.18. The panel may admit any evidence, where it is fair to do so, which may reasonably be considered to be relevant to the case. 4.19 Evidence not disclosed in accordance with paragraph 4.20 will be admitted only with the permission of the panel at the hearing.”

"Upon receiving the advice of the legal assessor, and subject only to the requirements of relevance and fairness, a Practice Committee considering an allegation may admit oral, documentary or other evidence, whether or not such evidence would be admissible in civil proceedings…"

“This case is based on the witness statements and accounts from Pupils A, B and D and on their testimony over the next two days. The issues in the pack relating to 1990 are not really relevant to that case, but I have never even known the names of the complainants back in 1990. They are not appearing in this case. All their evidence, I would suggest, is therefore hearsay. …It’s essentially propensity evidence which gives a prejudicial effect and whether that outweighs their probative value. These issues were investigated at the time and no fault was found on my part. There was no action taken against me of any kind. In the chronology, it is claimed I was given advice to do the bathroom supervision. I have to say that is news to me and nobody will be giving evidence to say this happened….It seems to me that that is actually significantly prejudicial….”

“We recognise that in the decision letter, there is nothing to suggest that the disciplinary committee were in fact influenced by their knowledge of the earlier police warning and that they were given adequate directions as to the test which they should apply in determining th[e pleaded] complaint. However, it is axiomatic that, in proceedings of this nature, justice must not merely be done, but must be seen to be done. In our opinion, even though the disciplinary committee may have applied the correct test, justice was not seen to be done because the members of the disciplinary committee had before them material which was irrelevant and which was prejudicial to the appellant. They were never told to disregard that material, and accordingly one cannot exclude the possibility that some, if not all the members of the disciplinary committee were influenced to some extent by that objectionable material. For all these reasons we are satisfied that the decision of the disciplinary committee must be quashed.”

“[W]here the evidence tends to prove an offence very similar to that which is charged, particularly if the conduct is of a perverted or addictive nature, when the natural reaction is to conclude that, if the accused is ‘that sort of person’ he is guilty of one offence if guilty of the other and therefore, in mutual corroboration cases, guilty of both or all, as the case may be. Hence the search for similar fact evidence (most frequently in connection with sexual cases)…to distinguish cases where it is fair to adduce the evidence of other offences from those in which that evidence would create unfair prejudice. The conflict is always between judicial caution in the interests of the accused and admission of evidence..common sense and logic….indicate to be relevant. The decision has been rightly called a question of degree.”

“You behaved as may be found proven at la and/or 1 b and/or l c and/or 1d above despite previous advice and/or guidance and/or warnings regarding similar behaviour in or around 1990.”

“In terms of relevance, you will be drawn to Allegation 2 [which alleges] the behaviour at 1a, 1b, 1c and 1d occurred essentially despite previous advice or guidance or warnings regarding similar behaviour in or around 1990. So, in terms of the documentation relating to 1990, we are not asking you to make findings that that conduct occurred. That information is relevant in the sense that there were concerns raised in 1990 and you need to be aware of those concerns as to whether it was similar conduct to what is being placed before you in terms of A, B and D. You then need to ascertain if a warning was given in respect of that conduct….” (my italics) Therefore, the hearsay evidence relating to the 1990 allegations (including the 2018 Police statements) was not being proffered to prove the truth of the 1990 allegations as such, but rather the asserted fact that the Appellant had ‘advice and/or guidance and/or warnings regarding similar behaviour in or around 1990’, namely that: “No touching duvets or going close to a bed and the minimum length of time in a dormitory. Don’t stay long in bathrooms or go in showers.”

“I have no formal advice to give on the allegations of whether…it is prejudicial or not. However, this is the case that the TRA has brought…it is for the TRA to prove on the balance of probabilities, that Allegation 2 has been proven. So, I believe that we would be right to commence…”

“I would advise that in reaching its determination, the Panel gives consideration to the relative weight it places on the evidence before it. So in considering hearsay evidence, the Panel should take account of the fact that the person who is the direct source of the evidence is not before it and, therefore, the Panel has not had the opportunity to question or assess that person’s credibility. Equally, the evidence was not tested by cross-examination and thus the Panel has not had the opportunity to see how it withstood that form of challenge. The Panel must, therefore, consider whether the evidence is relevant and whether it would be fair for such evidence to be admitted. If admitted, hearsay evidence should be treated with caution giving it close scrutiny to determine its reliability and compatibility with factors presented in other evidence. The Panel will then decide what weight, if any, should be attached to such evidence when making its findings of fact…..If admitted, hearsay evidence will usually carry less weight than evidence that has been tested. However, there is no rule of law that prevents the Panel from relying upon hearsay solely or to a decisive degree if it is satisfied with the strength of that evidence. Similarly, the Panel may feel greater weight should be attributed to witness evidence that has been tested orally before it compared to the witness evidence of those who have not been called to give evidence and, therefore, which the Panel has not had the opportunity to directly challenge.”

“The panel has carefully considered the written evidence provided within the bundle of the notes taken by the headteacher in 1990. Although the panel has found some of the content illegible, it does note the headteacher wished to talk to Mr Bruce about matters. However, it is unclear what the content of any discussions was with Mr Bruce. The panel has not been provided with minutes of any meeting, nor a formal letter setting out the advice and/or guidance and/or warnings given at the time. Therefore, on the balance of probabilities the panel find this allegation not proved.”

“The panel considered the good character evidence provided within the bundle in the form of three letters. Although the panel saw evidence of good character, it noted that in evidence, only the author of the first letter was informed about the allegations in full, the other two individuals only received a précis of the allegations. The panel noted that only the last letter was from a colleague who worked with Mr Bruce at the School and referred to his valuable contribution to the musical and pastoral life of the School, but [it] contained no specific references to his abilities as a teacher.”

“61 [The Court below] also cited…Lord Macmillan in Thomas v Thomas [1947] AC 484, 491, where, after mentioning some specific errors which might justify the intervention of an appellate court, his Lordship added that the trial judge may be shown ‘otherwise to have gone plainly wrong’…. 62 Given that the [Court below] correctly identified that an appellate court can interfere where it is satisfied that the trial judge has gone ‘plainly wrong’, and considered that that criterion was met in the present case, there may be some value in considering the meaning of that phrase. There is a risk that it may be misunderstood. The adverb ‘plainly’ does not refer to the degree of confidence felt by the appellate court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached… 67 It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.”

“i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong. ii) The adverb ‘plainly’ does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached. iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it. iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him. v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable….”

“…[A]ppeals are conducted on the basis of the transcript of the hearing and that, unless exceptionally, witnesses are not recalled…. In all such cases the appeal court readily acknowledges that the first instance body enjoys an advantage which the appeal court does not have, precisely because that body is in a better position to judge the credibility and reliability of the evidence given by the witnesses. In some appeals that advantage may not be significant since the witnesses' credibility and reliability are not in issue. But in many cases the advantage is very significant and the appeal court recognises that it should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body. This reluctance to interfere is not due to any lack of jurisdiction to do so. Rather, in exercising its full jurisdiction, the appeal court acknowledges that, if the first instance body has observed the witnesses and weighed their evidence, its decision on such matters is more likely to be correct than any decision of a court which cannot deploy those factors when assessing the position. Similarly, in GMC v Jagjivan [2017] 1 WLR 4438 at [40] the Divisional Court said in the context of a ‘review-type appeal’ by the GMC from a Fitness to Practice Panel under s.40A Medical Act 1983 (albeit it said ‘rehearings’ under s.40 were similar): “i)…A court will allow an appeal under CPR Part 52.21(3) if it is ‘wrong’ or ‘unjust because of a serious procedural or other irregularity’…. ii) It is not appropriate to add any qualification to the test in CPR Part 52 that decisions are ‘clearly wrong’… iii) The court will correct material errors of fact and of law…Any appeal court must however be extremely cautious about upsetting a conclusion of primary fact, particularly where the findings depend upon the assessment of the credibility of the witnesses, who the Tribunal, unlike the appellate court, has had the advantage of seeing and hearing… iv) [In] what inferences are to be drawn from specific facts, an appellate court is under less of a disadvantage. The court may draw any inferences of fact which it considers are justified on the evidence: see CPR Part 52.11(4). v) In regulatory proceedings the appellate court will not have the professional expertise of the Tribunal of fact. As a consequence, [it] will approach Tribunal determinations about whether conduct is serious misconduct; or impairs a person’s fitness to practise; and what is necessary to maintain public confidence and proper standards in the profession and sanctions, with diffidence: see…Khan v GPC [2017] 1 WLR 169 [36]… vi) However there may be matters, such as dishonesty or sexual misconduct, where the court ‘is likely to feel that it can assess what is needed to protect the public or maintain the reputation of the profession more easily for itself and thus attach less weight to the expertise of the Tribunal …’: see...Khan at [36(c)]. As Lord Millett observed in Ghosh v GMC [2001] 1 WLR 1915 at 1923G, the appellate court “will afford an appropriate measure of respect of the judgment in the committee … but the [appellate court] will not defer to the committee’s judgment more than is warranted by the circumstances.”

“58. Where the decision below depends on preferring the account of X over that of Y on the basis of reliability and credibility, including an assessment of demeanour, I have considered English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409, Mubarak v General Medical Council [2008] EWHC 2830 (Admin) (citing Gupta….) and In the matter of F (Children) [2012] EWCA Civ 828 (as well as Cheatle [v GMC [2009] EWHC 645 (Admin)]§15). The position can be summarised as follows: (1) The appellate court will be reluctant to interfere with the findings of fact made by the lower court or tribunal: Cheatle, §§15, 23 to 28. (2) There are different schools of thought as to significance of demeanour; on the one hand, the lower court is best placed to assess credibility, because it has had the opportunity to assess demeanour. On the other hand, [it] is not necessarily a good or best test of credibility and is question of feel, which may be unreliable: compare Mubarak §5 with Cheatle §23. (3) However, the predominant view is that demeanour is a significant factor. For example, the assessment, as genuine, of a witness' distress when giving evidence can be a sound foundation for a finding of truthfulness: Re F §44. (4) Thus, the starting position is that the lower court is in a better position to assess credibility and reliability of witnesses….Mubarak §5… (5) However, the appellate court may reach a different conclusion if the circumstances so justify. Demeanour is not conclusive, and it may be that the advantage of having seen and heard the witnesses is not sufficient to explain or justify the conclusion of the court below: see Mubarak §6… (6) There will always be inconsistencies of detail in the evidence of witnesses. The task is to the consider whether the core allegations are true: see Mubarak §20 and Re F §45.”

“Their Lordships…have rejected… that there is a general duty to give reasons in cases where the essential issue is….the credibility or reliability of the evidence in the case. None the less…the committee can always give reasons, if it considers it appropriate to do so in a particular case….[T]here may indeed be cases where the principle of fairness may require the committee to give reasons for their decision even on matters of fact.”

“[I]n straightforward cases, setting out the facts to be proved…and finding them proved or not proved will generally be sufficient both to demonstrate to the parties why they won or lost and to explain to any appellate tribunal the facts found. In most cases, particularly those concerned with comparatively simple conflicts of factual evidence, it will be obvious whose evidence has been rejected and why….When, however, the case is not straightforward and can properly be described as exceptional, the position is and will be different.”

“26. As regards reasons concerning the credibility of witnesses: (1) Where there is a dispute of fact involving a choice as to the credibility of competing accounts of two witnesses, the adequacy of reasons given will vary. In English, Lord Phillips stated that ‘it may be enough to say that one witness was preferred to another, because the one manifestly had a clearer recollection of the material facts or the other give answers which demonstrated that his recollection could not be relied upon’. On the other hand, Southall at §55, and Gupta at §13 and 14 suggest that even such limited reasons are not necessarily required in every case. (2) Secondly, whilst…it is a common practice in tribunal decisions on fact, there is no requirement for the disciplinary body to make, at the outset of its determination, a general comparative assessment of the credibility of the principal witnesses. Indeed, such a practice, undertaken without reference to the specific allegations, has been the subject of recent criticism in Dutta. [I interpose to stress what I have already said: that both Dutta and indeed Khan were really concerned about privileging demeanour over documents. Morris J continued with an observation with which I respectfully agree:]…. In my judgment, consideration of credibility by reference to the specific allegations made is an approach which is, at least, equally appropriate. (1) Where there is a dispute of fact involving a choice as to the credibility of competing accounts of two witnesses, the adequacy of reasons given will vary. In English, Lord Phillips stated that ‘it may be enough to say that one witness was preferred to another, because the one manifestly had a clearer recollection of the material facts or the other give answers which demonstrated that his recollection could not be relied upon’. On the other hand, Southall at §55, and Gupta at §13 and 14 suggest that even such limited reasons are not necessarily required in every case. (2) Secondly, whilst…it is a common practice in tribunal decisions on fact, there is no requirement for the disciplinary body to make, at the outset of its determination, a general comparative assessment of the credibility of the principal witnesses. Indeed, such a practice, undertaken without reference to the specific allegations, has been the subject of recent criticism in Dutta. [I interpose to stress what I have already said: that both Dutta and indeed Khan were really concerned about privileging demeanour over documents. Morris J continued with an observation with which I respectfully agree:]…. In my judgment, consideration of credibility by reference to the specific allegations made is an approach which is, at least, equally appropriate. 27. Finally, an appeal court will not allow an appeal on grounds of inadequacy of reasons, unless, even with the benefit of knowledge of the evidence and submissions made below, it is not possible for the appeal court to understand why the judge below had reached the decision it did reach. It is appropriate for the appeal court to look at the underlying material before the judge to seek to understand the judge's reasoning and to ‘identify reasons for the judge's conclusions which cogently justify’ the judge's decision even if the judge did not himself clearly identify all those reasons.”

“So unfettered by any criminal analogy was there anything wrong with the legal assessors direction in this case ? Was it unfair ? Does it cast doubt upon the Panel’s decision ?”

“Subject to paragraphs 4.50 - 4.56 and 4.73 - 4.74 [the PCP’s duties to proceed at the start of the hearing with a standard explanation and its duties at the end in relation to its decision-making], the procedure at the panel hearing will be determined by the chair, who will direct the parties to adopt an investigative rather than an adversarial approach.”

“The disciplinary process is an adversarial one. It was a matter for the NMC to decide what evidence it chose to rely upon to prove the charges... It was entitled to select the witnesses it intended to call. It took the risk that it would be unable to prove the charges and in some cases it failed to do so. If Ms Suddock wished to adduce evidence from other witnesses, or documentary evidence, to support her version of events there was nothing to stop her. If the documents in question were not available to her, but were within the NMC’s possession or control and were relevant, it was under an obligation to disclose them to her. If it failed to do so, her remedy was toseek an order from the panel compelling their production…. The NMC cannot be blamed for failing to call witnesses who might have supported Ms Suddock. It was under no obligation to do so and its failure…did not make the disciplinary process unfair. Nor can it be blamed for Ms Suddock’s failure to askthe panel to admit hearsay evidence.”

“Regulatory proceedings of the type with which I am concerned are quintessentially inquisitorial. So, the rule [against admissibility of Coroner verdicts] does not apply to them. This is put beyond doubt by the General Medical Council (Fitness to Practise) Rules Order of Council 2004… R.34(1) which provides that: “The Committee or a Tribunal may admit any evidence they consider fair and relevant to the case before them, whether or not such evidence would be admissible in a court of law”

“79. Where a defendant is prosecuted for a crime the precise charge or charges and the evidence relied upon to support them are matters for the prosecution. The defence can make admissions. Prosecution and defence can agree facts. The procedure is adversarial and the judge plays a passive role in the factual inquiry. If the defendant is convicted the judge sentences him for the offences of which he has been convicted in the light of the evidence that has been given at the trial. 80. The procedures for disciplinary proceedings under the various statutes …are not identical. In general, they involve a preliminary investigation of conduct of the practitioner [under] complaint…If it is decided to bring disciplinary proceedings, a charge will be proffered which alleges the facts relied upon as demonstrating professional misconduct. Admissions may be made by the practitioner, facts may be agreed and evidence may be called. The disciplinary tribunal will be faced with an act or omission, or more typically a course of conduct, which it is alleged constitutes professional misconduct. The disciplinary tribunal should play a more proactive role than a judge presiding over a criminal trial in making sure that the case is properly presented and that the relevant evidence is placed before it.”

“(4) The court must adopt such procedure at any hearing as it considers appropriate to further the overriding objective. (5) At any hearing where the court is taking evidence this may include- (a) ascertaining from an unrepresented party the matters about which the witness may be able to give evidence or on which the witness ought to be cross-examined; and (b) putting, or causing to be put, to the witness such questions as may appear to the court to be proper.”

“…[T]he suggestion that the judge might adopt an inquisitorial role can be understood as a suggestion that the judge might actively question the LIP during the openings at the start of the trial, as a means of teasing out what the LIP’s case really is. But this has nothing to do with the judge acting as an inquisitor of witnesses during the subsequent evidential phase of a trial.”

“The tribunal may regulate its own procedure and shall conduct the hearing in the manner it considers fair having regard to the principles contained in the overriding objective….[It] shall seek to avoid undue formality and may itself question the parties or any witness so far as appropriate in order to clarify the issues or elicit the evidence. [It] is not bound by any rule of law relating to the admissibility of evidence in proceedings before the courts.”

“29 Rule 41 does not… allow a tribunal to make inquiries on its own behalf into evidence which was never volunteered by either party. [It] may, in an appropriate case, ask the parties whether they have thought about particular evidence, or even possibly whether in an appropriate case the parties or one of them would wish an adjournment in order to obtain it. But it is not, as the Employment Judge appeared to think, for the [ET] itself to investigate the evidence and rely on its own investigations. The tribunal is…to act as the adjudicator not as advocate. Actively seeking fresh evidence on one or other party’s behalf is inevitably likely to lead towards the latter. 30…It is important that the obligations of a tribunal to deal sensitively with litigants in person and those who may be vulnerable for one reason or another, not least through mental illness, should not be confused with adopting an inquisitorial procedure.”

‘The Panel failed to adopt an inquisitorial approach and did not explore aspects of the teacher’s evidence to establish the nature of his work as a boarding master and the requirement, throughout his career, to supervise children washing, including presence when they were in a state of undress’

‘The PCP failed to adopt an inquisitorial approach and did not inquire into the teacher’s wider personal life, insofar as that was relevant to the allegation that he was sexually attracted to young children’

“The Panel should have in mind the evidence of the teacher’s character and consider whether such evidence has any bearing on the teacher’s credibility or propensity to have carried out the alleged facts or to the circumstances in which the teacher found himself.” (my italics). However, the legal adviser returned to this issue in his last direction on misconduct: “The Panel have seen three pieces of written evidence that the teacher is of good character. The Panel may consider whether such a statement has any bearing on the teacher’s credibility or propensity to have carried out the alleged facts or the circumstances in which the teacher found himself. If the Panel does not consider the statement of any such relevance, any evidence of the teacher’s general good character is not relevant to the question of culpability either when considering whether the allegations have been proven to the relevant standard and nor when considering the issues of unacceptable professional conduct and/or conduct that may bring the profession into disrepute.” (my italics) Moreover, the Presenting Officer had suggested the PCP consider the knowledge of the writers of the reference as to the allegations; and I will repeat what the PCP said: “The panel considered the good character evidence provided within the bundle in the form of three letters. Although the panel saw evidence of good character, it noted that in evidence, only the author of the first letter was informed about the allegations in full, the other two individuals only received a précis of the allegations. The panel noted that only the last letter was from a colleague who worked with Mr Bruce at the School and referred to his valuable contribution to the musical and pastoral life of the School, but [it] contained no specific references to his abilities as a teacher.”

‘The Panel took no, or no sufficient, account of the Appellant’s good character’

‘where advice based on Lucas is given, it needs to be relevant to the issues in the case and fashioned accordingly’

“Whilst a disciplinary tribunal must take good character evidence into account in its assessment of credibility and propensity…and…it is an error not to do so, it is not required slavishly in its reasons to give a self-direction to that effect (although if it does do so, there can be no room for argument) … It is sufficient, where the matter is raised on appeal, if the appeal court is able to infer from all the material that the Tribunal must have taken good character properly into account.”

“When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A stepfather is usually less likely to have …raped…his under-age stepdaughter than….to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation. Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.”

“Lord Nicholls’ nuanced explanation left room for the nostrum ‘the more serious the allegation, the more cogent the evidence needed to prove it’, to take hold and be repeated time and time again… It is time for us to loosen its grip and give it its quietus……Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies….As to the seriousness of the allegation, there is no logical or necessary connection between seriousness and probability. Some seriously harmful behaviour, such as murder, is sufficiently rare to be inherently improbable in most circumstances. Even then there are circumstances, such as a body with its throat cut and no weapon to hand, where it is not at all improbable. Other seriously harmful behaviour, such as alcohol or drug abuse, is regrettably all too common and not at all improbable. Nor are serious allegations made in a vacuum. Consider the famous example of the animal seen in Regent’s Park. If it is seen outside the zoo on a stretch of greensward regularly used for walking dogs, then of course it is more likely to be a dog than a lion. If it is seen in the zoo next to the lions’ enclosure when the door is open, then it may well be more likely to be a lion than a dog.”

“39 It is clear that civil standard of proof is the same whatever the seriousness of the allegations. Depending on the particular facts of the case an allegation may be inherently improbable and so a tribunal may need more cogent evidence that it occurred. But there is no necessary connection between the seriousness of an allegation and its improbability. It follows that a more serious allegation does not require stronger evidence in order to be established; it all depends on the facts of the case. 40. On the evidence in this case, and in a hearing of this nature, I do not accept that it would have been appropriate for the PCP to take as a starting point the assumption that most teachers do not sexually abuse their students in common areas and therefore the conduct alleged by Pupil A probably did not occur. Rather, the PCP should have had in mind both the burden and standard of proof and approached the evidence adduced without preconceived assumptions. In my judgment, the PCP adopted the correct approach of evaluating the evidence both individually and as a whole.”

‘The Panel failed to adopt an inquisitorial approach and did not, upon learning of Pupil D’s assertion that he was under treatment for ‘false memory syndrome’, seek out medical evidence, the disclosure of which may have assisted their inquiry’ and (g): ‘In any event, the Panel failed to account for, or take sufficient account, of Pupil D’s description of being under treatment for false memory syndrome’

“The panel heard that Pupil D has been suffering from mental health issues in his early to mid-twenties. After speaking to a psychiatrist and psychologist, Pupil D attributed his mental health issues to the incidents that occurred in Easter 2004 as set out in his evidence. Pupil D also explained why he had not reported the incident earlier. Pupil D stated that after speaking to one of his closest friends about the incident and telling his psychiatrist, he reported the matter to the police. The panel considered Pupil D's oral evidence as compelling. Pupil D gave credible and reliable evidence. The panel found that Pupil D's evidence consistent with no significant changes and was not discredited in any way by Mr Barlow's cross examination. Pupil D explained the delay in coming forward and the panel found this understandable in the circumstances. The panel considered the circumstances of the residential trip in respect of this allegation. The panel concluded this was consistent with an educational setting. The panel found that Mr Bruce's actions were inappropriate and unprofessional towards Pupil D and therefore, on the balance of probabilities the panel found allegations 1.d.i., 1.d.ii. and 1.d.iii. proven.”

“CB..Have you found that PTSD has affected your memory with things? Pupil D: Erm, no. I think the significant triggers are really obvious to me…. The general specific details with a memory can become, for me, like around like an event, such as the significance of this, erm, so I remember the significant event but, you know, like exact conversations, more specific nuances within that event are harder to remember. One thing that I worked through [with psychiatrists] is the false memory. Erm, you can create false memory by trying to think too hard on those nuances around the significant situation. So— and that could lead to sort of misunderstanding it. So, outside of the— this raw memory that I have… I think she tried to not explore too much around that. CB Right, I just need to understand some more about this false memory. Why were you going through a false memory process with a psychiatrist? Pupil D No, it’s discussing how, erm, false memories can be a thing in any— erm, for anyone if they— erm, like so say if I create some confirmation bias around something that I wasn’t 100% sure of, then that could result in a false memory at a later date….[T]hese are psychiatric terms or, erm, exercises that were introduced to me. So, rather than myself having anxieties around something like a false memory…These were exercises where…let’s not explore too deeply into stuff that’s unclear because that… Then in re-examination, Pupil D was asked and answered this: “HQ…[H]ow are sure are you that the event in the bathroom, in terms of the touching and lotion or the soap, and the event in the shower the next day occurred, as you put in your statement ? Pupil DI’m 100% sure that these occurred. I have no doubt in my mind that these events occurred. The point I made around memory was of trying to pin down specific— erm, the more specific details that went along with the event, but the actual event did occur.”

‘The PCP wholly failed to give adequate explanation as to: i) how it arrived at its conclusions on the facts’

“As to the credibility of a witness, in Dutta, the tribunal had approached a resolution of the central factual dispute by starting with an assessment of the credibility of a witness’ uncorroborated evidence about events 10 years earlier and only then went on to consider the significance of unchallenged contemporaneous documentation. The tribunal’s assessment of the witness’ credibility was based largely, if not exclusively, on her demeanour when giving evidence….The Dutta case involved a conflict between a witness’ recollection and unchallenged documentation and in that case, Justice Warby held it was an error of principle to ask “Do we believe the witness?” before considering the documents and stressed that reliance on a witness’ confident demeanour was a discredited method of judicial decision making. In Khan v GMC, the registrant faced allegations of a sexual misconduct made by three complainants, A, C and D. His defence was that the allegations had been fabricated or exaggerated. The tribunal declared Witness D, who had been the first witness to complain, to be credible and consistent before it considered any of the evidence that she had given. However, the tribunal had heard evidence from two other witnesses who flatly contradicted Witness D’s evidence. The tribunal failed to deal adequately or at all with this conflict…Similarly the tribunal stated that it had found Witness A to be a confident, credible witness before considering any of the allegations in detail. It did not deal with a direct conflict of evidence between her and the police officer to whom she made a complaint. As to Witness C, who had accepted lying on oath in related proceedings before the employment tribunal and fabricating the contents of an anonymous letter that implicated the registrant, the…tribunal had assessed her demeanour…and found that she has been adamant that she had been truthful in her evidence. Justice Knowles reiterated that reliance on a witness’ confident demeanour is a discredited method of judicial decision making, all the more so in the case of a witness who admitted lying on oath. In the case of Joseph v GMC, in considering Dutta, the High Court observed “Where memory is concerned, strength and vividness are not a reliable indicator of accuracy. The process of litigation itself creates biases, emotion and rationalisation…it creates biases, emotion and rationalisation must be allowed for and demeanour is not a sure guide of truthfulness.”

‘The Panel failed to take proper account of the delay, in part occasioned by the slowness of the TRA’s processes’

“[T]he Panel is concerned with events which are said to have to taken place a long time ago. The Panel must appreciate that because of this, there may be a danger of real prejudice to the teacher. This possibility must be in the Panel’s mind when it decides whether the Presenting Officer has proven whether the facts alleged are more likely than not to have happened. The Panel should make allowances for the fact that with the passage of time, memories fade. Witnesses, whoever they may be, cannot be expected to remember with crystal clarity events that occurred many years ago. Sometimes the passage of time may even play tricks on memories. The Panel should also make allowances for the fact that - from the teacher’s point of view, the longer the time since an alleged incident, the more difficult it may be for him to answer it. The Panel only has to imagine what it would be like to have to answer questions about events that are said to have taken place seven to twenty years ago to appreciate the problems that this may cause by delay. Even if the Panel believes that the delay in the case is understandable, if the Panel decides that because of this that the teacher was placed under a real disadvantage in putting their case forward, take that into account in their favour when deciding if the Presenting Officer has proven whether the facts alleged are more likely than not to have happened”

“[R]egarding the allegations of a sexual motivation, as with all findings of fact, the Panel is required to consider this question applying the balance of probabilities. The [High] Court … found it helpful in…GMC v Haris to refer to the definition of ‘sexual’ in s.78(1) Sexual Offences Act 2003: “Touching or any other activity is sexual if a reasonable person would consider that, a) [whatever] its circumstances or any person’s purpose in relation to it it is because of its nature sexual or b) because of its nature, it may be sexual and because of its circumstances or the purpose of any person in relation to it or both, it is sexual.” …[T]he Panel may find it helpful to ask itself whether, on the balance of probabilities, reasonable persons would think that actions found proven could be sexual. If so, the Panel will need to go on to ask itself a second question: Whether in all the circumstances of the conduct in the case, it is more likely than not the teacher’s purpose of such actions was sexual. The Panel must consider whether, in the absence of any direct evidence, sexual motivation should be inferred from the circumstances of the case. The court in Basson v GMC said that “The state of a person’s mind is not something that could be proved by direct observation. It can only be proved by inference or deduction from the surrounding evidence.”

“31. Basson was a case in which the finding was that the doctor had fleetingly touched the leg of a female patient when there was no clinical reason to do so and made a comment about her wearing a short skirt. The MPT found sexual motivation was proved, notwithstanding that (in contrast to the present case) it treated the doctor as a witness of honesty…. The doctor’s appeal was dismissed: indeed Mostyn J went so far as to say it would have been arguably wrong for it to have reached another conclusion. 32. Similarly in Jagjivan the MPT had accepted a female patient’s account of how a cardiology registrar had made inappropriate suggestions to her as to how her heart rate could be raised, by pointing to her nipples and vagina and suggesting that she could put pressure on them to get excited; despite this, they did not find proved the allegation that the doctor’s actions were sexually motivated. The Divisional Court reversed that finding on the basis… there could be no motivation other than a sexual one….”

“iv) [In] what inferences are to be drawn from specific facts, an appellate court is under less of a disadvantage. The court may draw any inferences of fact which it considers are justified on the evidence: see CPR Part 52.11(4).

“In reaching its conclusions…. the Tribunal ignored the fact that the best evidence as to Dr Haris’s motivation was his behaviour. As a matter of common sense, when a patient presents with pain in the upper back in consequence of a fall, there is no reason whatsoever for a doctor to examine her vagina, or to fondle her buttocks or breast. The behaviour was not just capable of being reasonably perceived to be overtly sexual, it was overtly sexual, and there is no other way in which it could have been perceived. A doctor, of all people, would have known that.”

“3. Your behaviour as may be found at la and/or 1 b and/or 1 c and/or 1d above was sexually motivated and/or conduct of a sexual nature. The panel has found the allegations 1a,1.b.i, 1.b.ii, 1.b.iii. and 1.d. proven. The panel has considered the facts of allegations 1a, 1.b.i, 1.b.ii, 1.b.iii, and 1.d. individually and has found that Mr Bruce's conduct was in pursuit of sexual gratification. The panel has found that on the balance of probabilities Mr Bruce's behaviour was sexually motivated and was conduct of a sexual nature. Therefore, the panel has found this allegation proved.”

“Plainly, the desirability for the [Lucas] advice to be given in any case needs to be considered in the context of the case being heard by the Panel, but where advice based on Lucas is given, it needs to be relevant to the issues in the case and fashioned accordingly.”

“HQ [D]o you accept if these allegations are proven, a scenario where a teacher has seen pupils naked and touched Pupil D in a certain manner, do you accept that would be serious misconduct? ABI do.”

‘a reasonable person would consider that whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual’

‘because of its nature, it may be sexual and because of its circumstances or [its] purpose….or both, it is sexual’

“The panel found that the offence of sexual activity and voyeurism were relevant.”

“In the light of the panel's findings against Mr Bruce, which involved entering a bathroom to see Pupil A showering in 2015. In 2016, telling Pupil A to remove his towel, to turn around whilst he was naked, and moving Pupil A's towel to expose his naked lower body. In 2004, using his hands to apply soap to Pupil D's body and genitals, and pulling the shower curtain whilst Pupil D was showering. The panel found that Mr Bruce did these actions for sexual gratification, that his behaviour was sexually motivated and conduct of a sexual nature….”

‘The Respondent was ‘wrong to impose a prohibition because the Panel were wrong to find allegation [3] proved….as set out above’

“In this case, I have placed considerable weight on the panel's comments "Whilst there is evidence that Mr Bruce had ability as an educator, the panel considered that the adverse public interest considerations above outweigh any interest in retaining Mr Bruce in the profession, since his behaviour fundamentally breached the standard of conduct expected of a teacher, and he sought to exploit his position of trust." I have also placed considerable weight on the finding "The panel found that Mr Bruce did these actions for sexual gratification and that his behaviour was sexually motivated and conduct of a sexual nature. The panel believes that this is a case of serious sexual misconduct and sexual misconduct involving a child. I have given less weight in my consideration of sanction to the contribution that Mr Bruce has made to the profession. In my view, it is necessary to impose a prohibition order in order to maintain public confidence in the profession…. I have considered the panel's comments "…[N]o significant mitigation was provided for the panel to consider. The lack of insight and genuine remorse shown by Mr Bruce meant that the panel could not be satisfied that there would not be repeated behaviours and/or conduct that could put pupils at risk of harm again.”