“The panel’s decision was wrong because it failed to consider, in determining the allegations of unacceptable professional conduct, whether SAL1 had experienced duress at the time of her conduct. Further, when the panel purported to consider ‘duress’ at the sanction stage, they were wrong to: A. limit their consideration to “extreme duress “rather than “duress”; B. shift the burden of proof onto the Appellant to satisfy them that “extreme duress” was proved on the balance of probabilities.”
“On one or more unknown dates in 2016, [SAL1] sent one or more communications of a sexual nature using Facebook messenger to one or more children who she knew or ought to have known were about 16 years old”
“Regretfully, I sent one communication of a sexual nature to one person who I was told was 16 year. [sic] I believe this was sometime in 2016”
“I glean from that statutory provision that it is for the [SSE] to decide whether a prohibition order is to be made in relation to a teacher who has been guilty of the relevant conduct. That decision is the [SSE’s] decision.”
“This advice sets out the factors to be considered by a professional conduct panel (panel), which is an independent panel convened by the TRA for the purpose of the regulation of teacher misconduct. The primary purpose of the advice is to inform panel considerations, findings and recommendations to the Secretary of State whether to impose a prohibition order on a teacher. A senior official, who acts as the decision maker on behalf of the Secretary of State, also uses this advice when considering the panel's recommendation and in deciding whether to make or set aside a prohibition order.”
“A prohibition order is likely to be appropriate when the behaviour of the person concerned has been fundamentally incompatible with being a teacher. The primary purpose of a prohibition order is to safeguard pupils and students, maintain public confidence in the teaching profession and uphold proper standards of conduct. Section 5 (iii) ‘Is a prohibition order appropriate?’ provides more detail about how this is considered.”
“43. Taking account of the nature and severity of the behaviour including the level of risk of repetition, a panel may determine that a recommendation for a prohibition order will not be appropriate where most or all of the following criteria are apparent (this list is not exhaustive): • the teacher’s actions were not deliberate; • the teacher was acting under extreme duress e.g. physical threat or significant intimidation to perform unlawful activities; • the teacher demonstrates exceptionally high standards in both personal and professional conduct and has contributed significantly to the education sector.”
“… In this case, the Panel’s conclusions prevent the appellant ever practising his profession again and, in view particularly of the conclusion that he engaged in sexual activity with a pupil, they have a profound impact on his reputation. In my judgment, given the gravity of the matter, the interests of justice require that this appeal should be by way of rehearing.”
“the consequences of a prohibition order and the reputational harm resulting from findings of misconduct do not without more necessitate an appeal by way of re-hearing. To decide otherwise would be to create a new category where the appeal is to be by way of re-hearing rather than review and to do so notwithstanding the fact that this could have been done by way of practice direction if that had been regarded as necessary or appropriate.”
“In respect of the message [SAL1] admitted to sending, her evidence was that this message was not sent of her own free will. [SAL1] stated that, at the material time, she was in a coercive and controlling relationship “that [she] was unable to escape from”. [SAL1] submitted that, at the time the message was sent, she was under “extreme duress” from Individual A.”
“The panel did not have a copy of the message before it. However, it was satisfied on the balance of probabilities and in light of [SAL1] ’s admissions that the message “are you a virgin” was sent via Facebook messenger in 2016. The panel was further satisfied that this amounted to a communication of a sexual nature. The question “are you a virgin related to whether the recipient had had sex or not and was, therefore, inherently sexual in nature. Finally, the panel was satisfied, on the balance of probabilities, that the message was sent to a child who SAL1 knew or ought to have known were around the age of 16; although the panel could not establish the recipient of the message, the panel was satisfied that this allegation was proven on the basis that [SAL1] admitted that Individual A told her the message was being sent to a 16 year old child. The panel concluded that [SAL1] did, by her own admission, send this message. The panel took account of [SAL1’s] evidence that she sent the message under extreme duress but considered that the extent to which [SAL1] was acting under duress was a matter that would more appropriately be considered at the third stage of the professional conduct panel hearing (if, indeed, the matter reaches that stage) in accordance with paragraph 43 of the Teacher Misconduct: The Prohibition of Teachers, which is referred to as “the Advice”.”
“Your behaviour as may be found proven above at allegation 1..was sexually motivated”
“The panel considered the written and oral evidence of [SAL1]. [SAL1] denied this allegation, stating that she was coerced into sending a message which she acknowledged was sexual in nature, but stated that this was only sent out of immediate fear of repercussions from Individual A, further details of which are set out in respect of allegation 1. [SAL1] denied any sexual attraction to teenage boys and denied that the message was sent for her “own wants or gratification”.”
“The panel noted that the message [SAL1] admitted sending, which stated “are you a virgin”, was objectively sexual nature in that it related to whether or not the recipient had had sex. The panel went on to consider [SAL1’s] explanation for the conduct as set out in respect of allegation 1 above. The panel did not accept [SAL1’s] explanation. The panel had found, as a matter of fact, that an experienced female teacher had sent a message to someone they believed to be a 16-year-old boy to enquire as to whether they had had sex. The panel considered all of the evidence presented to it and found that the words used, along with the sending of the message (and subsequent failure to the report the message), indicated sexual motivation in the absence of any other plausible innocent explanation. The panel noted that [SAL1] had not provided any other innocent explanation for her conduct. The panel considered that, on the balance of probabilities, the conduct was either in pursuit of sexual gratification or in pursuit of a sexual relationship.”
“Sorry Madam [inaudible] are you going to advise us on the duress aspect; Not at this stage, no:”
“I do have a question to ask if you finish. The issue of duress was raised, I want to ask in relation to that if the Panel find duress is present, then does that means that the Allegation is disproved or does the duress only go towards mitigation?”
“5. It is for the defence to raise the issue of duress. Once raised it is for the prosecution to disprove. The defence ought to be left to the jury if there is any evidence of it. However, if no reasonable jury could conclude on the evidence that the threat was "imminent" and/or that a sober person of reasonable firmness, sharing the characteristics of the defendant, would have been driven to commit the crime because there was, for example, reasonable opportunity for avoiding it, then the defence need not be left.”
“Ground 2: The panel’s decision was wrong because it failed to take into account significant evidence undermining the allegations against the appellant including: a. Expert evidence about the impact of Mrs A’s coercive and controlling relationship. b. Contemporaneous evidence of Mrs A’s coercive and controlling relationship. c. Evidence of Mrs A’s having sought professional help in relation to her mental health at the time of the conduct alleged. d. The character evidence adduced in relation to Mrs A.” a. Expert evidence about the impact of Mrs A’s coercive and controlling relationship. b. Contemporaneous evidence of Mrs A’s coercive and controlling relationship. c. Evidence of Mrs A’s having sought professional help in relation to her mental health at the time of the conduct alleged. d. The character evidence adduced in relation to Mrs A.”
“[SAL1] is a patient who has been registered with our practice since 1996. She was first diagnosed with depression after delivery of her babies in 2010. She had further episode of depression diagnosed in 2013 which continued on and off until 201,8 and during that period of time she found it difficult to engage with treatment and was seen infrequently in the surgery. However, after that date she was seen in 2018 and 2019 with ongoing depression and anxiety. She engaged with the surgery and saw the doctor on a regular basis. She engaged with the mental health team and received a lot of support and help from the community mental health team and the primary care liaison workers.”
“Suffering from a depressive disorder in its own right would not lead someone into inappropriate conduct; however, suffering from depressive features may affect an individual’s judgement and decision making. Nevertheless, I do not conclude that having a depressive disorder would have affected [SAL1’s] capacity to understand the wrong associated with sending a message of this kind. The effect of the controlling and coercive relationship in the context of the mental disorder however is likely to have had an adverse effect on [SAL1’s] conduct. [SAL1]argues that she complied and acquiesced to [Dr B’s] commands due to her fear of the repercussions if she did not. The fact that she was depressed and vulnerable at that time, would have made it more difficult for her to defend herself against the orders of [Dr B].”
“Yes I believed that you know there, there could be potential and that was, it was the potential. I didn’t know conclusively who the recipient was, only what [Dr B] was telling me. But I've always accepted that there was a potential and that's always been something that I've been incredibly you know sorry for. I assessed the risk at the time and I made a bad judgement. You know in my risk assessment at the time was there's something really bad going to happen here to me, my family, [Dr B] himself if I don’t do what he's asking me to do. And I balanced that against the risk of an unknown recipient, something that [Dr B] was telling me although I didn’t know conclusively but I just felt that that was, that was a risk and I accept that it was a bad judgement.”
“In the absence of a plausible innocent explanation for what he did, the facts spoke for themselves. A sexual motive was plainly more likely than not; I would go so far as to say that that inference was overwhelming.”
“[SAL1] states that she sent the Facebook message to a 16-year-old boy, who was the friend of [Dr B’s] son. This was between May and September 2016. She could not recall the name of the recipient as [Dr B] was in full control of this. Although she claimed that [Dr B] typed the recipient’s name, she accepted that she sent it”