Thomas McGhee, aged 40, who is said to have had an unblemished record as a teacher at St Mary's Primary in Stirling's Raploch area for 19 years, was cleared at Stirling Sheriff Court and charges of misconduct were also dismissed a week later by Central Region officials.
Andrew Gibb, one of Scotland's leading solicitors who represented Mr McGhee in court on behalf of the EIS, said afterwards that he was becoming increasingly concerned at the Crown's failure to obtain a "whole picture" before deciding whether or not to prosecute. Almost invariably, he added, teachers were acquitted on these sorts of charges.
Sheriff Frederick Levene ruled that there had been insufficient corroboration to convict Mr McGhee. The court was told that he had been given a tough P5P6 composite class at the start of the session because it had tried the patience of other teachers. The children who made the allegations were said to be among the worst behaved in the school, one of them having dropped his trousers on one occasion in front of an HMI.
The EIS is particularly concerned at the "double jeopardy" teachers face in having to go through a court appearance followed by a disciplinary hearing in front of their employer. Ken Wimbor, assistant EIS secretary who represented Mr McGhee, said this put teachers under "appalling pressure".
The hearing before Central Region education officials did not automatically dismiss the charges and took three hours, he said, despite the clear finding by the sheriff that the boys' evidence was unreliable and the fact that standard of proof in a court was much higher than was required by an employer.
But Evelyn Boyce, Central's head of school development, defended the authority's approach. It had no option but to investigate a charge of misconduct, a decision which was taken before the outcome of the court case was known. Mrs Boyce said the charges in a court may be very different from those laid by an employer whose interest lay in whether employees abided by their contract of employment and by the policies of the education authority.
The case focuses attention once again on the balance to be struck between child protection and teachers' powers to control classes. The initial investigation of the charges against Mr McGhee was carried out by the family unit of Central Scotland police. Mrs Boyce said this was council policy since the unit is "more skilled in interviewing children and it is independent".
But Ronnie Smith, the EIS general secretary, believes it is this approach which has tilted the balance against the teacher and led to an absence of the common sense which used to prevail.
Mr Smith continued: "There seems to be an anxiety by education authorities to be seen to be taking action in every case with the result that the whole weight of the law is brought to bear on teachers.
"They are in a very, very vulnerable position not just because of what the law can do to them but because of what their employer and the General Teaching Council can separately do to them. It therefore behoves all these parties to take extreme care in investigating and acting upon all allegations that are made." Mr Gibb went so far as to allege that fiscals were being put under pressure to prosecute teachers when any allegation of assaulting a child is made.
Ivor Sutherland, registrar of the GTC, acknowledged that "double jeopardy" put a strain on teachers but pointed out that professional misconduct is still possible even if a case does not lead to a conviction. "A prudent employer would want to tie up loose ends if only for the teacher's sake," he added.
Mr McGhee's case would not be referred to the GTC, Mrs Boyes confirmed, since she had not upheld the charges. But it would have been theoretically possibleand it will be surprising if some members of the council do not now try to block the possibility of such a referral in the future. All cases which end in a conviction automatically go before the GTC.
The EIS guidelines, which would have been forthcoming in any case as a result of a motion passed at the union's June conference, will attempt to set out the manner in which teachers should intervene in their class when there is violence or the threat of violence.
"Our members face a major dilemma when such incidents occur," Mr Wimbor said. "If they do intervene, they are at risk of an allegation of assault. If they don't intervene, they expose themselves to being sued for damages if injury is caused to one of their pupils"