Mr Simon Marsh: Professional conduct panel outcome Panel decision and reasons on behalf of the

Secretary of State for Education

February 2019

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Contents

A. Introduction 3

B. Allegations 3

C. Preliminary applications 4

D. Summary of evidence 6

Documents 6

Witnesses 6

E. Decision and reasons 6

Panel’s recommendation to the Secretary of State 13

Decision and reasons on behalf of the Secretary of State 15

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Professional conduct panel decision and recommendations, and decision on

behalf of the Secretary of State

Teacher: Mr Simon Marsh

TRA reference: 0016362

Date of determination: 14 February 2019

Former employer: St Mary’s Catholic Academy, Blackpool

A. Introduction

A professional conduct panel (“the panel”) of the Teaching Regulation Agency (“the

TRA”) convened on 11 February 2019 to 14 February 2019 at Cheylesmore House,

Quinton Road, Coventry, CV1 2WT to consider the case of Mr Simon Marsh.

The panel members were Mrs Marjorie Harris (former teacher panellist – in the chair), Mr

Steve Oliver (teacher panellist) and Ms Jean Carter (lay panellist).

The legal adviser to the panel was Ms Claire Watson of Eversheds Sutherland

(International) LLP solicitors.

The presenting officer for the TRA was Mr Luke Berry of Browne Jacobson LLP solicitors.

Mr Simon Marsh was present and was represented by Mr Shyam Thakerar.

The hearing took place in public and was recorded.

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B. Allegations

The panel considered the allegations set out in the Notice of Proceedings dated 14

November 2018.

It was alleged that Mr Simon Marsh was guilty of unacceptable professional conduct

and/or conduct that may bring the profession into disrepute, in that:

1. He inappropriately touched pupil(s) by:

a. Placing his hands on or near to Pupil A’s waist whilst she was near the

keyboard/piano.

b. Massaging/rubbing a pupil’s shoulders during a lesson.

c. Playing with the hair of a pupil/pupils.

d. Placing his hand on top of a pupil’s hand.

2. Made inappropriate comments by saying to Pupil C words to the effect of “I’m glad

you’re wearing shorts” when her skirt blew up.

3. His actions, as may be found proven, in Allegation 1 were sexually motivated.

4. His actions in Allegation 1, as may be found proven, were contrary to written

Management Advice given in February 2016 and/or contrary to the

recommendation given in the formal warning in July 2016.

The allegations have not been admitted.

C. Preliminary applications

The panel noted that a number of pupils were identified by name throughout the bundle

of documents. The panel confirmed that these pupils would be anonymised and an

updated anonymised pupil list was prepared.

The teacher’s representative provided a colour copy of a photograph and diagram of the

music classroom. The panel agreed to add this into the bundle at page 183 to replace a

black and white copy of the same document.

Prior to hearing any oral evidence, an application was made by the teacher’s

representative to amend the Notice of Proceedings by amending allegation 1a to ‘Placing

your hands on or near to Pupil A’s waist whilst she was near the piano’. The panel had

the power to, in the interests of justice, amend an allegation or the particulars of an

allegation, at any stage before making its decision about whether the facts of the case

have been proved.

Before making the amendment, the panel was required to consider any representations

by the presenting officer and the teacher’s representative, and the parties had been

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afforded that opportunity. The presenting officer consented to the application on the

ground that ‘piano’ is referred to in written evidence.

The panel considered that the amendment proposed did not change the nature, scope or

seriousness of the allegations and provided clarification. There was no prospect of the

teacher’s case being presented differently had the amendment been made at an earlier

stage, and therefore no unfairness or prejudice caused to the teacher. The teacher

anticipated there had been such an error. The panel therefore decided to amend the

allegation as proposed.

Following oral evidence from witnesses, a further application was made by the presenting

officer to amend the Notice of Proceedings by amending allegation 1a to either “Placing

your hands on or near to Pupil A’s waist” or “Placing your hands on or near to Pupil A’s

waist whilst she was near the keyboard/piano”. The panel had the power to, in the

interests of justice, amend an allegation or the particulars of an allegation, at any stage

before making its decision about whether the facts of the case have been proved.

Before making the amendment, the panel was required to consider any representations

by the presenting officer and by the teacher, and the parties had been afforded that

opportunity. The teacher’s representative opposed the application on the grounds that at

the start of the hearing allegation 1a was amended with the consent of the TRA to

include piano as opposed to keyboard, it would be against the interests of justice and

unfair at the late stage to amend the allegations on the basis that Pupil A had changed

her evidence from what was given in the signed witness statement, that Mr Marsh had

prepared his case on the presumption going by Pupil A’s witness statement that the

alleged incident took place whilst sat in front of a piano and that this context was

important for Mr Marsh’s case.

At the outset of the hearing, the presenting officer did not oppose the first application to

amend allegation 1a on the basis that Pupil A’s written evidence did refer to piano.

However, the panel considered that the presenting officer did not understand at that

stage the significance of the amendment.

The panel was concerned that this application was made at such a late stage in the

proceedings, and exercised caution to ensure that there was no unfairness to the

teacher. The panel noted that the witness statement that was potentially relevant to this

allegation and which was included in the panel bundle had referred to ‘piano’ and

‘keyboard’. The allegation in the original Notice of Proceedings also stated ‘keyboard’.

The reference to ‘keyboard’ had therefore been disclosed to the teacher prior to the

hearing. The panel had in mind that the interests of justice were in favour of this

allegation not being defeated as a result of poor drafting. The failure itself, as alleged in

allegation 1a, and those criticisms remained the same, regardless of whether keyboard

or piano was referred to. The panel felt that it was the nature of the touching which was

the essence of the allegation, but the context was important in deciding whether the

touching was appropriate or not. The panel therefore agreed to the amendment to amend

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allegation 1a to “Placing your hands on or near to Pupil A’s waist whilst she was near the

keyboard/piano”.

The panel considered the proposed amendment, and given the seriousness of the

allegation, was of the view that it was in the interests of justice for the allegation to be

properly formulated. There was a strong public interest in the allegation being

determined. That being said, the panel was conscious that the proposed amendment

altered the factual basis upon which the allegation was founded. For that reason the

panel determined to amend the allegation as proposed to “Placing your hands on or near

to Pupil A’s waist whilst she was near the keyboard/piano”, but suggested that it would be

appropriate for a short adjournment in order for the teacher to have adequate further time

for the preparation of his defence if required.

D. Summary of evidence

Documents

In advance of the hearing, the panel received a bundle of documents, which included:

Section 1: Chronology and anonymised pupil list – pages 1 to 2

Section 2: Notice of Proceedings and Response – pages 3 to 15

Section 3: Teaching Regulation Agency witness statements – pages 16 to 22

Section 4: Teaching Regulation Agency documents – pages 23 to 150

Section 5: Teacher documents – pages 151 to 192

The panel members confirmed that they had read all of the documents in advance of the

hearing.

Witnesses

The panel heard oral evidence from the headteacher of St Mary’s Catholic Academy,

Pupil A and Pupil E. These witnesses were called by the presenting officer. The teacher

also gave evidence.

E. Decision and reasons

The panel announced its decision and reasons as follows:

The panel has carefully considered the case before it and have reached a decision.

The panel confirms that it has read all the documents provided in the bundle in advance

of the hearing.

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Mr Simon Marsh had been employed at St Mary’s Catholic Academy (“the Academy”)

since 1 September 2014 as a teacher of music until his resignation on 12 April 2017. As

a result of a member of staff overhearing a discussion amongst students relating to Mr

Marsh allegedly placing his hands on Pupil A’s waist whilst she was near the

piano/keyboard during a music class, Mr Marsh was suspended on 24 February 2017

and the Academy initiated an investigation into the incident. Mr Marsh had previously

been given management advice in respect of physical contact with students and

subsequently a formal warning for inappropriate proximity to a female student. As a result

of the Academy’s investigation, further incidents pertaining to the allegations came to the

Academy’s attention.

Findings of fact

Our findings of fact are as follows:

The panel has found the following particulars of the allegations against you proven, for

these reasons:

1. Inappropriately touched pupil(s) by:

a. Placing your hands on or near to Pupil A’s waist whilst she was near the

keyboard/piano.

The panel heard evidence from Pupil A that Mr Marsh placed his hands on or near to her

waist whilst she was near the keyboard, moving her to the side, and evidence from Mr

Marsh that he placed his hands near to Pupil A’s waist whilst she was near the piano to

move her to the side. The placing of the hands on or near to Pupil A’s waist was not

disputed. The panel accepted Mr Marsh’s evidence as to the location and scenario in

which he placed his hands on or near to Pupil A’s waist, as the evidence from Pupil A

had been inconsistent on the location at various stages, such as her written witness

statement differing from her oral evidence. Therefore, the panel believed that on the

balance of probabilities, Mr Marsh was more likely than not to have placed his hands on

or near to Pupil A’s waist whilst she was near the piano. The panel went on to consider

the context in which this event occurred.

The panel heard evidence from Mr Marsh that he had placed his hands on or near to

Pupil A’s waist to guide her away from the piano to demonstrate playing the piano with

two hands. The panel also heard evidence that Mr Marsh was concerned about Pupil A

injuring herself, particularly as a previous incident had occurred in which a pupil had

fallen in the nearby music classroom. However, the panel believed that it was not

necessary for Mr Marsh to physically move Pupil A. The panel took into consideration the

representations made from Mr Marsh’s representative not to conflate necessity with

inappropriateness. Nevertheless, the panel considered that it was not appropriate to

touch the pupil on or near to the waist under such circumstances unless the pupil was in

imminent danger. The panel did not consider that Pupil A was in such danger and that

the touching of Pupil A on or near to her waist could have been avoided. The panel heard

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evidence from Mr Marsh that he had said words to the effect of “let me demonstrate”, but

considered that this was not sufficient for Pupil A to make the connection between her

needing to move and/or Mr Marsh’s touching to move her.

Therefore, the panel found allegation 1a to be proven.

b. Massaging/rubbing a pupil’s shoulders during a lesson.

The panel heard evidence from Pupil A that Mr Marsh placed his hands on her shoulders

and demonstrated a thumb movement. The panel also heard evidence from Mr Marsh

which was contrary to this and categorically stated that he did not massage or rub a

pupil’s shoulders, but would tap a pupil’s shoulder to gain their attention in class. The

panel preferred the evidence from Pupil A in relation to the incident of massaging/rubbing

her shoulders. Although there was a discrepancy in Pupil A’s evidence as to whether Mr

Marsh had massaged her shoulders, the panel considered that this was due to different

questioning techniques in the investigations, and the panel sought clarification on the

movement of Mr Marsh’s hands.

The panel believed that Pupil A gave a true description of the massage/rub, clearly

describing a placing of hands on her shoulders and demonstrating an upward movement

of the thumbs. The panel considered that the thumb movement demonstrated was quite

distinct from a tap on the shoulder.

The panel noted the representations from Mr Marsh’s representative that there had been

an element of collusion amongst pupils and a time gap between the interviews of the

pupils by the Academy and the police had allowed opportunity for the pupils to discuss

the events. The panel heard evidence from the headteacher of the Academy that the

parents and pupils were advised not to discuss the matters under investigation. The

panel considered that whilst it was likely that some of the pupils had discussed the

events with each other, it was satisfied that there was no evidence of collusion. There

was overall consistency in statements given and there was no evidence that the pupils

interviewed had a motive for making false allegations. This was further corroborated by

the police’s view that there was ‘no obvious signs of collusion’.

The panel noted that the written evidence from other pupils was hearsay evidence and

that the panel had not had the opportunity to see how that evidence had withstood testing

by cross-examination. The panel therefore was careful in considering hearsay evidence,

and placed greater weight on Pupil A’s evidence, but noted that the hearsay evidence

corroborated the evidence given by Pupil A.

The panel considered the context of the action Pupil A demonstrated and considered the

massaging/rubbing of pupils’ shoulders to be inappropriate. The panel considered this

action to be a personal action, not sought and an invasion of a pupil’s personal space.

The panel found allegation 1b to be proven.

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c. Playing with the hair of a pupil/pupils.

The panel heard evidence from Pupil E that Mr Marsh had ‘swished’ her hair on more

than one occasion and saw Mr Marsh ‘swishing’ the hair of other pupils. The panel also

heard evidence from Mr Marsh that he had never intentionally made contact with a pupil’s

hair, but may have caught their hair when walking behind them or tapping them on the

shoulder to gain their attention. The panel preferred the evidence from Pupil E and

considered the explanation given by Mr Marsh to be less credible. The panel considered

that the ‘swishing’ of hair took place on more than one occasion and would have been a

positive action from Mr Marsh for such contact to take place.

The panel again noted the representations from Mr Marsh’s representative in relation to

potential collusion. However, the panel noted that the pupils, in particular Pupil E, were

consistent in describing how Mr Marsh had played with their hair. The panel felt that Pupil

E’s evidence was credible and saw no evidence of Pupil E disliking Mr Marsh as a

teacher.

The panel noted from evidence given by Mr Marsh that he had created an environment

where he made reference to pupils’ hair to engage with them, but the panel considered

that it was then Mr Marsh’s responsibility to manage that culture appropriately.

Furthermore, the panel considered that this environment created demonstrated the

blurring of boundaries between teacher and pupil.

The panel considered the playing with pupils’ hair to be inappropriate and could be easily

misconstrued. The panel noted that Pupil E had described the playing with her hair as a

‘swish’, a single hand movement across the back of the hair, and considered this

evidence to be credible. However, the panel believed that this action was inappropriate

as it demonstrated overfamiliarity.

The panel found allegation 1c to be proven.

2. Made inappropriate comments by saying to Pupil C words to the effect of

“I’m glad you’re wearing shorts” when her skirt blew up.

The panel heard evidence from Mr Marsh that he did say to Pupil C words to the effect of

“I’m glad you’re wearing shorts” when her skirt blew up to alleviate any embarrassment

she may have felt, believing this to have been seen by a large number of students

through a window in the drama hall. Mr Marsh further stated that this was a “throwaway

comment”.

The panel considered that in the context, it would have been better for Mr Marsh to say

nothing. The panel noted that the student was wearing shorts and so any embarrassment

felt at her skirt being blown up would have been minimal. The panel considered that his

comment was ill advised and unnecessary, and further drew attention to Pupil C that he

had seen her skirt being blown up by the wind, making the situation worse for Pupil C.

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The panel considered that Mr Marsh had made an assumption as to Pupil C’s feelings,

and did not consider his comment to be appropriate or helpful.

The panel found allegation 2 to be proven.

4. Your actions in Allegation 1, as may be found proven, were contrary to

written Management Advice given in February 2016 and/or contrary to the

recommendation given in the formal warning in July 2016.

The panel heard evidence from Mr Marsh that he had taken the management advice into

account and was able to give clear examples as to when he had taken the advice into

account. The panel noted that Mr Marsh was receiving support from the Head of Service

at Blackpool Music Service and a mentor from within the Academy, which he had

initiated.

However, the panel noted that the management advice that ‘you should avoid physical

contact with students and consider the way in which you position yourself when helping

students with their work’ was relevant to allegations 1a to 1c, as well as the formal

warning which related to close physical proximity to a pupil. The panel considered each

of the allegations 1a to 1c as against the management advice given and the formal

warning.

The panel noted that the themes coming through from the management advice and

recommendations in the formal warning process were relevant to the situations in

allegation 1a to 1c. This was the third occasion where an issue had been brought to his

attention in a short period of time. The panel considered that Mr Marsh was aware of the

advice and warning given, but did not act on this advice and the recommendations in

relation to the physical contact and awareness of his personal space. Mr Marsh had

worked at the Academy following the management advice and formal warning through to

February 2017 and had the opportunity to act on the advice given and change his

behaviour.

The panel heard evidence from Mr Marsh that he was only given the recommendation

document drafted by the investigating officer at the Academy on the morning of his

second disciplinary hearing and was not provided with a copy of the document to keep.

However, the panel considered that Mr Marsh did have the opportunity to review the

document immediately prior to the disciplinary hearing and to discuss this during his

disciplinary hearing.

The panel noted that Mr Marsh was told consistently about concerns regarding his close

physical proximity to pupils. These concerns were raised with him as part of formal

disciplinary procedures. Although the earlier formal warning related to a specific

allegation, the general theme was regarding the physical proximity to pupils, which were

covered in the recommendations. The panel notes that the recommendations were not

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included in the formal written warning in July 2016, but formed part of the overall

investigation process and discussed with Mr Marsh.

The panel did not consider that Mr Marsh had adapted his behaviour in accordance with

the advice given. The panel considered that Mr Marsh’s actions in allegation 1a to 1c

were contrary to the written Management Advice given in February 2016 and/or contrary

to the recommendation given in the formal warning in July 2016.

Therefore, the panel found allegation 4 to be proven.

The panel has found the following particulars of the allegation(s) against you not proven,

for these reasons:

1. Inappropriately touched pupil(s) by:

d. Placing your hand on top of a pupil’s hand.

The panel heard evidence from Mr Marsh as to the reasoning behind placing his hand on

top of a pupil’s hand and an explanation as to how this was done, by touching the end of

the pupil’s fingers to manoeuvre their fingers to the correct position on the keyboard and

not placing his hand flat on top of a pupil’s hand as this would not assist with playing the

keyboard. The panel also heard evidence from Pupil E as to how Mr Marsh would place

his hand on top of a pupil’s hand and considered this to be consistent with Mr Marsh’s

evidence. The panel considered this evidence to be credible.

The panel noted the context in which Mr Marsh placed his hand on top of a pupil’s hand.

The panel heard evidence from Mr Marsh, in which he clearly articulated that this was a

last resort to assist the pupils after they had exhausted all other methods of his teaching,

such as the diagrams Mr Marsh had created.

The panel noted that the ‘Guidance for safer working practice’ and guidance from the

Head of Service at the Blackpool Music Service allowed scope for physical contact with

pupils in music to demonstrate technique in the use of a piece of equipment when it is

necessary. The panel considered that Mr Marsh had taken this advice into account and

used physical contact as a last resort when demonstrating technique in the use of the

keyboard. In this context and taking into account the evidence as to how Mr Marsh would

position his hand on top of a pupil’s hand; the panel did not consider this to be

inappropriate touching.

Therefore, the panel did not find allegation 1d to be proven.

3. Your actions, as may be found proven, in Allegation 1 were sexually

motivated.

The panel did not consider that any of Mr Marsh’s actions, as found proven in allegation

1, were sexually motivated. It was not alleged that Mr Marsh’s actions were in pursuit of a

future relationship with the pupils.

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The panel concluded that there was absolutely no evidence that Mr Marsh’s actions were

in pursuit of sexual gratification. The panel noted that Mr Marsh did not engineer the

situations and there was no evidence of any follow up to his actions. The panel noted that

Mr Marsh’s action in allegation 1a was instinctive. In relation to allegation 1b and 1c, the

panel considered that at times Mr Marsh was overfamiliar with pupils with the intention of

being liked as a teacher and “eccentric” as described by the headteacher of the Academy

in his oral evidence, but his actions were not sexually motivated.

Therefore, the panel did not find allegation 3 to be proven.

Findings as to unacceptable professional conduct and/or conduct that may bring the profession into disrepute

Having found a number of the allegations to have been proven, the panel has gone on to

consider whether the facts of those proven allegations amount to unacceptable

professional conduct and/or conduct that may bring the profession into disrepute.

In doing so, the panel has had regard to the document Teacher Misconduct: The

Prohibition of Teachers, which the panel refers to as “the Advice”.

The panel is satisfied that the conduct of Mr Marsh in relation to the facts found proven in

allegation 4, involved breaches of the Teachers’ Standards. The panel considers that by

reference to Part Two, Mr Marsh is in breach of the following standards:

Teachers uphold public trust in the profession and maintain high standards of

ethics and behaviour, within and outside school, by

o treating pupils with dignity, building relationships rooted in mutual respect, and

at all times observing proper boundaries appropriate to a teacher’s

professional position;

o having regard for the need to safeguard pupils’ well-being, in accordance with

statutory provisions.

Teachers must have proper and professional regard for the ethos, policies and

practices of the school in which they teach.

Teachers must have an understanding of, and always act within, the statutory

frameworks which set out their professional duties and responsibilities.

The panel is satisfied that the conduct of Mr Marsh in respect of allegation 4 amounts to

misconduct of a serious nature which fell significantly short of the standards expected of

the profession.

The panel was not satisfied that the conduct of Mr Marsh found proven in relation to

allegations 1a to 1c and 2, fell significantly short of the standards expected of the

profession and therefore did not find that these allegations amounted to unacceptable

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professional conduct. The panel carefully considered the allegations and the context in

which they occurred before reaching this decision.

The panel has also considered whether Mr Marsh’s conduct displayed behaviours

associated with any of the offences listed on pages 10 and 11 of the Advice. The panel

has found that none of these offences are relevant.

Accordingly, the panel is satisfied that Mr Marsh is guilty of unacceptable professional

conduct.

Having found the facts of allegation 4 proved, the panel find that Mr Marsh’s behaviour in

acting contrary to management advice and warning amounts to unacceptable

professional conduct.

The panel has taken into account how the teaching profession is viewed by others and

considered the influence that teachers may have on pupils, parents and others in the

community. The panel has taken account of the uniquely influential role that teachers can

hold in pupils’ lives and that pupils must be able to view teachers as role models in the

way they behave.

The panel therefore finds that Mr Marsh’s actions in allegation 4 constitute conduct that

may bring the profession into disrepute.

Having found the facts of allegation 4 proved, the panel further find that Mr Marsh’s

conduct amounts to both unacceptable professional conduct and conduct that may bring

the profession into disrepute.

Panel’s recommendation to the Secretary of State

Given the panel’s findings in respect of unacceptable professional conduct/conduct that

may bring the profession into disrepute, it is necessary for the panel to go on to consider

whether it would be appropriate to recommend the imposition of a prohibition order by the

Secretary of State.

In considering whether to recommend to the Secretary of State that a prohibition order

should be made, the panel has to consider whether it is an appropriate and proportionate

measure, and whether it is in the public interest to do so. Prohibition orders should not be

given in order to be punitive, or to show that blame has been apportioned, although they

are likely to have punitive effect.

The panel has considered the particular public interest considerations set out in the

Advice and having done so has found some of them to be relevant in this case, namely

the maintenance of public confidence in the profession and declaring and upholding

proper standards of conduct. The panel also considered the public interest consideration

of retaining the teacher in the profession to be relevant in this case.

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In light of the panel’s findings against Mr Marsh, which involved acting contrary to

management advice and a formal warning, there is a strong public interest consideration

in respect of declaring and upholding proper standards of conduct, as the conduct found

against Mr Marsh was outside that which could reasonably be tolerated.

Similarly, the panel considers that public confidence in the profession could be seriously

weakened if conduct such as that found against Mr Marsh was not treated with the

utmost seriousness when regulating the conduct of the profession.

The panel did not consider there to be a strong public interest consideration in respect of

the protection of pupils as, although the behaviours found proven in allegation 1 were

inappropriate, they did not reach the threshold of unacceptable professional

conduct/conduct that may bring the profession into disrepute and the panel did not find

that Mr Marsh’s actions were sexually motivated.

Furthermore, the panel considered that there was a strong public interest consideration in

retaining the teacher in their profession, since no doubt has been cast upon his abilities

as an educator and he is able to make a valuable contribution to the profession.

In view of the clear public interest considerations that were present, the panel considered

carefully whether or not it would be proportionate to impose a prohibition order taking into

account the effect that this would have on Mr Marsh.

In carrying out the balancing exercise the panel has considered the public interest

considerations both in favour of and against prohibition as well as the interests of Mr

Marsh. The panel took further account of the Advice, which suggests that a prohibition

order may be appropriate if certain behaviours of a teacher have been proven. In the list

of such behaviours, relevant in this case is:

Serious departure from the personal and professional conduct elements of the

Teachers’ Standards.

The panel has seen evidence that shows the teacher was previously subject to

disciplinary proceedings and issued with a formal warning. The panel noted that the key

theme behind these disciplinary hearings related to inappropriate physical proximity to

pupils and that Mr Marsh had received the management advice prior to the formal

warning. However, the panel considered that Mr Marsh had taken some of the

management advice on board, and that, outside of the specific facts of this case, Mr

Marsh did have a good record.

Even though there were behaviours that would point to a prohibition order being

appropriate, the panel went on to consider whether or not there were sufficient mitigating

factors to militate against a prohibition order being an appropriate and proportionate

measure to impose, particularly taking into account the nature and severity of the

behaviour in this case. In light of the panel’s findings, the panel did consider that there

were strong mitigating factors.

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The panel accepts that Mr Marsh’s actions were not deliberate, in that he did not

appreciate the impact of his actions. The panel considered that Mr Marsh had reflected

on his actions and was remorseful about the effect that his actions had on individual

pupils.

The panel has been referred to the character references contained in the hearing bundle.

The panel noted that these four character references were overwhelmingly positive of Mr

Marsh; his teaching ability and his passion for his career in teaching. A former student

and fellow musician made reference to Mr Marsh having gone ‘above and beyond’ to give

students he taught a ‘valuable music education’, and Mr Marsh’s former union

representative stated that he ‘worked tirelessly to provide musical opportunities to all

pupils’. Another character reference, made by an associate at the Blackpool Music

Service, referred to Mr Marsh as having ‘always shown the best qualities of teaching

such as kindness, dedication and true passion to his subject’.

In his oral evidence, the headteacher of the Academy was very positive about the

significant contribution Mr Marsh had made to the school. The panel noted the

considerable extra-curricular activities organised by Mr Marsh and his enthusiasm for

teaching. Mr Marsh was energetic and had taken on a lot of responsibility within the

Academy. The panel believed that Mr Marsh had made a huge contribution in his

specialist area and was a hard working teacher.

The panel first considered whether it would be proportionate to conclude this case with

no recommendation of prohibition, considering whether the publication of the findings

made by the panel is sufficient.

The panel is of the view that applying the standard of the ordinary intelligent citizen

recommending no prohibition order is a proportionate and appropriate response. Given

that the nature and severity of the behaviour is at the less serious end of the possible

spectrum and in light of the mitigating factors that were present in this case, the panel

has determined that a recommendation for a prohibition order will not be appropriate in

this case. The panel considers that the publication of the adverse findings is sufficient to

send an appropriate message to the teacher, to demonstrate the standards of behaviour

that are not acceptable and meet the public interest requirement of declaring proper

standards of the profession.

The panel believed that Mr Marsh had shown insight into his behaviour in not following

the advice received and was remorseful of its impact on the students involved.

Decision and reasons on behalf of the Secretary of State

I have given very careful consideration to this case and to the recommendation of the

panel in respect of sanction.

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In considering this case, I have also given very careful attention to the Advice that the

Secretary of State has published concerning the prohibition of teachers.

In this case, the panel has found some of the allegations proven, but has found that only

one of the proven facts, Allegation 4, amounts to unacceptable professional conduct and

conduct that may bring the profession into disrepute. In respect of those matters found

proven but not amounting to unacceptable professional conduct or conduct likely to bring

the profession into disrepute, I have put them all from my mind entirely.

The panel has made a recommendation to the Secretary of State that Mr Simon Marsh

should not be subject to a prohibition order. Therefore the panel recommends that for

Allegation 4, the findings of unacceptable professional conduct and conduct likely to bring

the profession into disrepute should be published and that such an action is proportionate

and in the public interest.

In particular, the panel has found that Mr Marsh is in breach of the following standards:

Teachers uphold public trust in the profession and maintain high standards of

ethics and behaviour, within and outside school, by

o treating pupils with dignity, building relationships rooted in mutual respect, and

at all times observing proper boundaries appropriate to a teacher’s

professional position;

o having regard for the need to safeguard pupils’ well-being, in accordance with

statutory provisions.

Teachers must have proper and professional regard for the ethos, policies and

practices of the school in which they teach.

Teachers must have an understanding of, and always act within, the statutory

frameworks which set out their professional duties and responsibilities.

The panel did find that the conduct of Mr Marsh in respect of Allegation 4 fell significantly

short of the standards expected of the profession.

I have to determine whether the imposition of a prohibition order is proportionate and in

the public interest. In considering that for this case, I have considered the overall aim of a

prohibition order which is to protect pupils and to maintain public confidence in the

profession. I have considered the extent to which a prohibition order in this case would

achieve that aim taking into account the impact that it will have on the individual teacher.

I have also asked myself, whether a less intrusive measure, such as the published

finding of unacceptable professional conduct and conduct that may bring the profession

into disrepute, would itself be sufficient to achieve the overall aim. I have to consider

whether the consequences of such a publication are themselves sufficient. I have

considered therefore whether or not prohibiting Mr Marsh, and the impact that will have

on him, is proportionate and in the public interest.

17

In this case, I have considered the extent to which a prohibition order would protect

children. The panel has observed, “ that pupils must be able to view teachers as role

models in the way they behave.”

A prohibition order would therefore prevent such a risk from being present in the future. I

have also taken into account the panel’s comments on insight and remorse, which the

panel sets out as follows, “ The panel believed that Mr Marsh had shown insight into his

behaviour in not following the advice received and was remorseful of its impact on the

students involved.”

I have therefore given this element considerable weight in reaching my decision.

I have gone on to consider the extent to which a prohibition order would maintain public

confidence in the profession. The panel observe that it, “has taken into account how the

teaching profession is viewed by others and considered the influence that teachers may

have on pupils, parents and others in the community.”

I have had to consider that the public has a high expectation of professional standards of

all teachers and that the public might regard a failure to impose a prohibition order as a

failure to uphold those high standards. In weighing these considerations, I have had to

consider the matter from the point of view of an “ordinary intelligent and well-informed

citizen.”

I have considered whether the publication of a finding of unacceptable professional

conduct, in the absence of a prohibition order, can itself be regarded by such a person as

being a proportionate response to the misconduct that has been found proven in this

case.

I have also considered the impact of a prohibition order on Mr Marsh. I have read all the

panel’s comments on positive references for Mr Marsh, including, “that Mr Marsh had

made a huge contribution in his specialist area and was a hard working teacher.”

A prohibition order would prevent Mr Marsh from teaching and would also clearly deprive

the public of his contribution to the profession for the period that it is in force.

For these reasons, I have concluded that a prohibition order is not proportionate or in the

public interest in order to achieve the intended aims of a prohibition order.

In my view the published findings of unacceptable conduct and conduct likely to bring the

profession into disrepute in respect of Allegation 4 is proportionate and in the public

interest.

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Decision maker: Alan Meyrick

Date: 19 February 2019

This decision is taken by the decision maker named above on behalf of the Secretary of

State.