The General Teaching Council for Scotland

General Teaching Council for Scotland Fitness to Teach Panel Outcome

Full Hearing

2019
 Teacher   Teacher B
 Registration Number XXXXXX
 Registration category  Primary
 Panel  Maureen Anderson, Tony Bragg and Ian McDonough
 Legal Assessor  James Mulgrew
 Servicing Officer  Kirsty McIntosh
 Presenting Officer  Sarah Phillips
 Teacher's representative  Alastair Milne (Balfour + Manson LLP)

Any reference in this decision to:

  • "GTCS" means the General Teaching Council for Scotland
  • the "Panel" means the Fitness to Teach Panel considering the case
  • the "Rules" (and any related expression) means the GTCS Fitness to Teach and Appeals Rules 2012 or refers to a provision (or provisions) within them
  • the "Register" means the GTCS register of teachers

Allegations

The following allegations were considered at the hearing:

  1. During 2016/17 school session whilst employed by Moray Council as a teacher at School A, you did shout and exhibit intimidating behaviour towards the children in your class, contrary to the School’s Behaviour Policy causing said pupils alarm and distress
  2. On Monday 23 January 2017, whilst employed by Moray Council as a teacher at School A, you did:
    1. Forcefully pull the arm of a pupil in your class Pupil A, and
    2. Push Pupil A into his desk and cause him pain to his torso;
  3. During 2016/17 school session on a date between 16 August 2016 and 23 January 2017 whilst employed by Moray Council as a teacher at School A, you did:
    1. grab and push Pupil B, a pupil in your class, causing him to trip and fall and sustain injury to his head;
    2. place your hand on the chest of Pupil C, a pupil in your class and did push him back into his seat and grab his arm leaving a red mark;
    3. forcefully grab by the arm Pupil D, a pupil in your class and did dig your nails into her arm causing pain;
    4. knowingly or recklessly push together two tables whilst the finger of Pupil E, a pupil in your class was in between the two tables thus squashing his finger and causing pain;
    5. grab the rucksack on the back of Pupil F a pupil in your class and did pull her back into the classroom to the extent that she became unsteady on her feet and almost fell;
    6. push Pupil G on at least four occasions causing him to feel pain;
    7. forcibly grab by the wrist Pupil H, a pupil in your class and drag her back to her seat causing her pain and leaving red marking on her wrist;
    8. push on the back of Pupil I, a pupil in your class causing him to hit his head on a book case;
    9. grab the shoulder of Pupil J, a pupil in your class and pull her backwards;
    10. hit Pupil K, a pupil in your class, on the head and did pinch his arm causing him pain.

And in light of the above, it is alleged that your fitness to teach is impaired and you are unfit to teach, as a result of breaching Parts 1.2, 1.3, 1.6, 2.3 of the General Teaching Council for Scotland’s Code of Professionalism and Conduct.

Teacher's admissions

The Teacher did not make any admissions in relation to the allegations.

Hearing papers

In accordance with Rule 1.7.17, the Panel admitted all of the documents and statements listed below as evidence for the purposes of the hearing:

Presenting Officer’s hearing papers

P1 GTCS Investigation Report, dated 31 January 2018
P2 Statement of Witness 2, undated
P3 Signed statement of Witness 3, dated 19 December 2017
P4 Timeline, disciplinary procedure documentation and investigation report carried out by Witness 3 and The Moray Council
P5 Summary of evidence and correspondence from the Procurator Fiscal’s office
P6 Letter from Representative, dated 30 January 2018
P7 Police Scotland interview transcripts
P8 Signed statement of Witness 1, dated 4 December 2017

Teacher’s hearing papers

T1 Letter of representation from Alastair Milne, dated 30 January 2018
T2 Signed statement of Teacher A, dated 5 March 2019 (redacted)

Servicing Officer’s hearing papers

S1 Notice of Full Hearing dated 20 May 2019 with email delivery and read receipts
S2 Panel Meeting Decision Annex dated 24 April 2019

Preliminary issues

Admissibility of Hearsay Evidence

The Teacher’s Representative raised a number of preliminary issues on the first day of the Full Hearing. The most significant was an objection to the admissibility of hearsay evidence. In the course of determining that issue the Panel considered motions to adjourn by the Presenting Officer. The two issues of admissibility of hearsay evidence and motions to adjourn are related and are considered below.

17 June 2019

The Teacher’s Representative objected to the admissibility of hearsay evidence. The particular evidence struck at was the hearsay accounts from pupils referred to in the allegations. The Teacher’s Representative analysed the particular allegations and the evidence that he understood the Presenting Officer would present in support of them. (At a later stage in the proceedings both the Teacher’s Representative and Presenting Officer carried out a detailed analysis of the evidence bearing upon each allegation. Those submissions are summarised below.) In short, the Teacher’s Representative argued that the hearsay evidence of the accounts of the pupils that was to be presented was far from the best evidence. He referred to the Rules and other legal authority in which the admissibility of hearsay evidence in the context of regulatory proceedings had been considered. The Teacher’s Representative’s submission was that the Panel had two options:

  1. Bring the proceedings to an end immediately given the nature of the evidence;
  2. Start the Full Hearing immediately.

The Presenting Officer expressed surprise at the nature of the objection to the admissibility of the hearsay evidence and the timing of the objection, She referred to discussions between her colleague, who had previously been acting as Presenting Officer before she was appointed, and the Teacher’s Representative in advance of the Full Hearing. In short, her understanding was that any issue the Teacher’s Representative had relating to the hearsay evidence was not to be dealt with as a preliminary issue but to be dealt with at a later stage in the proceedings once evidence had been presented. Her understanding was that the evidence was to be heard under reservation. The Presenting Officer sought an adjournment of the Full Hearing to investigate the availability of the audio-visual recordings of joint investigative interviews of a number of pupils and of transcripts of those interviews.

The Teacher’s Representative conceded that it had originally been his intention to raise the issue regarding the hearsay evidence at the conclusion of the hearing of evidence, i.e. at the end of Stage 1 (fact-finding). However, a more careful consideration of the papers in advance of the Full Hearing had caused him to conclude that the matter required to be raised that morning in advance of the evidence being presented. He submitted that the particular issue had a critical bearing on the fairness of the entire hearing.

However, the Teacher’s Representative opposed the Presenting Officer’s motion to adjourn the Full Hearing due to the period of time that had elapsed since the date of the allegations and the fact that he had raised the issue about the hearsay accounts in a letter dating from January 2018 which was within the Presenting Officer’s hearing papers. He submitted it would be unfair to the Teacher to adjourn the Full Hearing.

The Panel reflected upon the issues raised in private session and then reconvened the hearing in order to pose questions to both parties. In relation to the Teacher’s Representative, the Panel enquired why this issue had not been raised during the case management process. Secondly, the Panel wished to be addressed on the impact that any adjournment would have upon the Teacher.

The Panel had a number of questions for the Presenting Officer:

  1. Why were the pupils not giving evidence?
  2. If videos of the joint investigative interviews were available, why did the Presenting Officer not have them?
  3. What precisely was it that the Presenting Officer wished to recover from Police Scotland?
  4. Why had the material not already been recovered?
  5. What were the likely time scales for the completion of the Presenting Officer's enquiries and recovery of the material identified?

The Teacher’s Representative accepted responsibility for the issue not being raised during the case management process. His view had been that the issue bore upon the weight to be attached to the evidence as opposed to its admissibility. A closer and more careful reading of the papers in advance of the Full Hearing had caused him to change his view. In relation to the impact upon the Teacher, the Teacher’s Representative advised that the Teacher had not had full time employment following her suspension with The Moray Council in April 2017. She had worked part time since and had been the subject of a Temporary Restriction Order (TRO). This had affected her ability to earn an income. She had a mortgage and other outlays and the absence of a full regular income had presented challenges to her. There were consequences to her regarding her outgoings and obligations in relation to her home. The Teacher’s health had also been affected by the process. The Teacher’s Representative referred to a report prepared by Medical Professional 1. The Teacher’s Representative submitted that an adjournment would be detrimental to her health.

The Presenting Officer responded to the various questions posed by the Panel. In relation to the pupils attending to give evidence, she highlighted that the dates of the allegation ranged from August 2016 to January 2017. At that time the pupils were in the primary 3 to primary 4 school group with an age range of between 7-8 years of age. A decision had been taken regarding the vulnerability of the pupils and their ages that it would not be appropriate to call them as witnesses. The Presenting Officer observed that the teacher who had interviewed pupils, Witness 3, noted that the chidren and parents were extremely upset at the interviews, describing it as ‘harrowing’. The Presenting Officer also highlighted the concern expressed by Crown Office and Procurator Fiscal Service (COPFS) about exposing the pupils to the prospect of giving evidence about the matter and this had influenced their decision not to proceed further with a criminal prosecution.

The Presenting Officer sought to recover the audio-video recordings of joint investigative interviews of 11 pupils which had been carried out by police officers and social workers. No recordings were available to the Presenting Officer for any pupil at that time. Transcripts of the interviews relating to seven pupils were available and within the Presenting Officer’s hearing papers. The Presenting Officer could not confirm at that time what information had previously been requested from Police Scotland. However, the view had been taken that the evidence that had been obtained to date was sufficient to proceed with the Full Hearing as there was no challenge at that stage to the admissibility of the evidence. The Presenting Officer now wished to recover the material identified. This would require liaising with Police Scotland and seeking recovery of material authorised by mandates signed by the parents of pupils involved. Those mandates had previously been submitted to Police Scotland. If there was an issue with the wording of those mandates then fresh mandates would require to be obtained. Mandates had originally been requested from the parents of the 11 pupils but only seven mandates had been returned. She would seek to have mandates completed for all pupils. In relation to timescales, the Presenting Officer indicated that she had liaised with the police officer, Witness 1, who was to give evidence at the Full Hearing, and who had been engaged in the earlier police interview of the Teacher and the majority of the joint investigative interviews of the pupils. The location of the discs containing the audio-visual recordings was known. The Presenting Officer could expedite the submission of a formal request to Police Scotland for recovery of the material, the obtaining of mandates and in particular outstanding mandates. It was submitted that a the material could be recovered in around a week -  which was within the time period already set for the Full Hearing.

The Panel reflected on the submissions made by the parties and legal advice that had been given in relation to the motion to adjourn. The Panel considered the terms of the Postponements, Adjournments and Proceeding in the Absence Practice Statement. The Panel decided to grant the Presenting Officer’s motion for an adjournment in order to investigate and seek to recover the audio-visual recordings of the joint investigative interviews of the 11 pupils. In the particular circumstances the Panel considered that represented a valid reason for an adjournment. The Presenting Officer had no prior knowledge of the objection that was raised by the Teacher’s Representative until shortly before the commencement of the Full Hearing on the first day. Further, the time period that was sought for an adjournment was relatively short and within the time frame already set for the Full Hearing. Given that short time frame any impact upon the Teacher would be minimised. Accordingly, the Panel granted the Presenting Officer’s motion to adjourn until Friday 21 June 2019 which had been assigned as the third day of the Full Hearing.

21 June 2019

When the Panel reconvened on Friday 21 June 2019 the Presenting Officer sought to adjourn the Full Hearing further in order to continue to make enquiries and to recover the audio-visual recordings of the joint investigative interviews and transcripts of them. The Presenting Officer had liaised with Witness 1 and had been told that the audio-visual recordings could be provided within one week. The mandates had been sent to Police Scotland on Thursday 20 June 2019.  In relation to four pupils no mandates were yet available. Accordingly, it would possibly have taken longer than a week to recover those mandates and the associated audio-visual recordings. However, the Presenting Officer would be willing to place a time limit for a response in relation to the recordings relating to those pupils.

The Presenting Officer indicated that the recordings would demonstrate how the accounts were obtained during the joint investigative interviews, the exact words used, the body language of pupils, the tone of voice and also the conduct of persons present during the interviews.

The Teacher’s Representative opposed the motion to adjourn the hearing. The Teacher’s Representative referred to a timeline of events that he invited the Panel to consider. The Teacher had been suspended in February 2017. Interviews had taken place in February and March 2017. The GTCS process was initiated by a standard Notice of Referral in May 2017. A decision to take no further action in relation to the criminal case was taken by COPFS in June 2017. An application for a TRO was made in September 2017. Documentation had been ingathered to support the application for a TRO. The Teacher’s Representative observed that enquiry could already have been carried out about pupils giving evidence and regarding the manner in which the accounts of pupils would be presented to the Panel at future proceedings.

In relation to the recovery of the audio-visual recordings, the Teacher’s Representative submitted that there was no reason why they could not be recovered immediately. He submitted the Panel should not wait for the recovery of mandates from the parents of pupils who had already been asked to provide mandates some time ago. 

The Panel reflected upon the submissions made and again considered the Postponements, Adjournments and Proceeding in the Absence Practice Statement. 

The Panel granted the motion to adjourn until Thursday 27 June 2019 which was the day that had been assigned as the fourth day of the Full Hearing. The Panel considered that the material sought would assist its determination of the admissibility of the hearsay evidence. Separately, the timescale that was sought by the adjournment was again relatively short and so the impact upon the Teacher would be minimised.

27 and 28 June 2017

On Thursday 27 June 2019 the Panel reconvened. The Presenting Officer presented a timeline of steps that had been taken in relation to the recovery of the audio-visual recordings from 20 June 2019 until 26 June 2019. In short, the Presenting Officer had not recovered the audio-visual recordings. The application for their recovery had been refused by Police Scotland on the grounds that they required the consent of the police officers and social workers shown on the recordings before they could be released. The Presenting Officer had sent mandates to those individuals. The Presenting Officer had been advised that there was a turnaround period of 30 days but that due to the summer period this could be longer. The Presenting Officer had invited a response from those persons she had sent mandates to within 7 days. She had sought the assistance of both Witness 1 and the Head Teacher of the school in order to recover mandates from parents.

The Presenting Officer sought to adjourn the hearing in order to recover the audio-visual recordings. An adjournment of 2 months would be necessary.

The Teacher’s Representative opposed the application for an adjournment. He referred to the history of the allegations and of the proceedings. He amplified earlier submissions by advising that the Teacher had been the subject of a TRO since October 2017. He had sent a letter to GTCS on 30 January 2018 following the intimation of the initial investigation report and notice of referral. The Teacher’s Representative highlighted that it was clear from the terms of that letter that the Teacher denied the allegations. Separately, that letter underlined the concerns regarding the hearsay evidence. The Teacher’s Representative referred to the conduct of proceedings before the present Panel. The Teacher’s Representative invited the Panel to consider whether granting an adjournment would be fair. He submitted that dealing with cases fairly and justly included avoiding undue delay. The Teacher’s Representative submitted that the present motion to adjourn was not compatible with any of those concepts.

The Teacher’s Representative referred to the impact that the adjournment would have on the Teacher. He reiterated that the Teacher was encountering real difficulties with mortgage payments. He again referred to Medical Professional 1’s report. The regulatory process and the continuation of it had had a continued effect on the Teacher’s health. 

The Teacher’s Representative highlighted that the issue with the hearsay evidence had been initially raised in clear and unambiguous terms in his letter of 30 January 2018. The need for this proposed adjournment and delay could have been avoided if those concerns had been addressed at an earlier stage. He submitted that this compounded the unfairness of the process.

The Panel reflected on the submissions made and again considered the Postponements, Adjournments and Proceeding in the Absence Practice Statement. The Panel refused the motion to adjourn by the Presenting Officer. The Panel considered the history of the allegations and the chronology of proceedings before GTCS. The Panel noted that the Presenting Officer had previously sought to recover the material upon which the motion was based. However, it did appear to the Panel that the recovery process had not been sufficiently comprehensive or  reactive. The Panel had granted two earlier motions to adjourn for short periods in order to afford the Presenting Officer further time to recover the material. The time period now sought for an adjournment was for a far longer time period. In addition, given the issues that the Presenting Officer had encountered in relation to the recovery of mandates and the recovery of the material, the Panel was not confident that the material sought would be in the hands of the Presenting Officer within the time period identified. The Panel also reflected upon the impact that the present proceedings had had upon the Teacher and the impact a further delay would have upon her. For all of those reasons the Panel refused the adjournment.

The Panel reconvened and invited further submissions from the parties in relation to the admissibility of the hearsay evidence. No additional submissions were made but the Panel had been presented with submissions from both parties earlier in the proceedings.

The Presenting Officer identified the evidence that she would rely upon in relation to each allegation. The hearing papers contained: witness statements; accounts of pupils and parents obtained during the school investigation; associated documentation prepared during the school investigation; and transcripts of the joint investigative interviews of Pupils B, E, F, G, H, I and J. Further, a copy of the police summary of evidence contained within the police report to the Procurator Fiscal was included. That had been completed by Witness 1 who was to be called to give oral evidence. Witness 1 had conducted a number of the joint investigative interviews of pupils and had interviewed the Teacher. He would speak to the demeanour of pupils during interviews. Whilst transcripts were not available for the joint investigative interviews of Pupils A, C, F and K, Witness 1 could speak to his report that contained summaries of the interviews of those pupils. The Presenting Officer would also lead oral evidence from Witness 2 who had conducted the disciplinary process with the Teacher and could speak to associated documentation that was within the hearing papers. That witness had also spoken to other witnesses in relation to the persons and associated documentation. Finally, the Presenting Officer intended to lead oral evidence from Witness 3 who was Acting Head Teacher at the school, who had conducted interviews with 18 pupils and eight parents and could speak to the provenance of other documentation prepared during the investigation. He would speak to meeting with pupils and parents and could speak to their demeanour at interview.

The Presenting Officer then turned to address the evidence that would be led in relation to each allegation in turn. In relation to allegation 1, Witness 1 had interviewed a number of pupils who spoke to the Teacher being a ‘shouty’ teacher. He had also interviewed the Teacher during which she had admitted to being a ‘shouty’ teacher and struggling to control the class. Witness 3 and Witness 1 could speak to accounts provided by other persons to the effect that the Teacher was ‘shouty’, loud and angry.

In relation to allegation 2, there was no transcript of the joint investigative interview of Pupil A. Pupil A was not interviewed by Witness 3. Witness 1 would speak to the summary of evidence within the report he prepared which describes the complaint made by Pupil A which was found within the allegation. The Presenting Officer would also lead evidence from Witness 3 who interviewed Pupil A’s father.

In relation to the various sub-allegations within allegation 3, the Presenting Officer intended to lead Witness 1 and Witness 3 to speak to the interviews that they had conducted with each particular pupil in support of the allegation. Further, in relation to some of the sub-allegations a parent of the particular pupil had been spoken to and had provided an indirect account. In relation to some of the sub-allegations, transcripts of the joint investigative interviews of the particular pupils were available.

The Presenting Officer highlighted the terms of Rule 1.7.17 to the Panel and the terms of the Fact Finding in Fitness to Teach Practice Statement relating to admissibility of evidence and hearsay evidence.

The Presenting Officer acknowledged that admissibility was based upon the common law requirements of relevance and fairness. She submitted that a hearing could still be fair even when reliance was placed upon hearsay evidence. It was a question of balance. The Presenting Officer invited the Panel to have regard to the interests of those involved and of GTCS in its role as a professional regulator. The Presenting Officer contended that there was no absolute rule that indicated a person was denied a fair hearing if they were unable to cross examine a witness. The Presenting Officer submitted that there were compelling reasons in this case that prevented the Teacher from cross examining the witnesses. At the time of the allegations the pupils were in primary 3 or primary 4 within the age range of 7-8 years of age. A decision had been taken by GTCS that due to the age of the children it would not be appropriate to call them. The Presenting Officer submitted that this was a reasonable decision. Pupils had already provided accounts to the school and to the police. Witness 3 had indicated that pupils and parents were extremely upset during the interviews. He had used the word ‘harrowing’. The decision not to call the pupils was made on the basis that giving evidence might have been distressing for them. The Presenting Officer submitted that the pupils had been cross-examined by Witness 1 which offers some protection to the Teacher. It was submitted that the pupils would not have lied to the police officer. She highlighted that the transcripts of joint investigative interviews had not been filtered through the mind of the person transcribing. The transcripts were an accurate account of what had been recorded during those interviews.

The Presenting Officer also submitted that the evidence of the pupils was not the sole and decisive evidence in relation to the allegations. The Presenting Officer submitted that the transcripts of the joint investigative interviews should be held as admissible by the Panel, though the Panel could determine the weight to attach to them.

The Presenting Officer submitted that to refuse to allow the evidence would not be in the interests of the pupils nor of GTCS acting as a professional regulator.

The Teacher’s Representative repeated his earlier contention that to admit the hearsay accounts would be unfair and would deny the Teacher the right of a fair Hearing. That right was not optional and was a mandatory requirement. The Teacher’s Representative highlighted Rule 1.3.9. His submission was that even if the Presenting Officer secured the additional material of the audio-visual recordings of joint investigative interviews, his challenge to the evidence would remain as no individual was being led to provide direct evidence in relation to any allegation.

The Teacher’s Representative submitted that the opportunity to allow a party to cross examine a witness is required for a fair hearing. It is necessary that there is an effective means of testing the reliability of the evidence. The Teacher’s Representative submitted that the witnesses whom the Presenting Officer intended to lead oral evidence from would not contribute anything to the evidence in support of the allegations.

The Teacher’s Representative responded to the Presenting Officer’s reference to Witness 3 describing the interview process as ‘harrowing’ for pupils. He responded that Witness 1 had interviewed pupils and had described their accounts as matter of fact. The Teacher’s Representative submitted that there was no indication within the available transcripts of pupils being upset, anxious or distressed. He submitted that there was no indication that the pupils were incapable of giving evidence provided that they had support. The Teacher’s Representative highlighted that some pupils when asked during their interview had indicated that they would be willing to speak to the police again. There was no indication of reluctance or inability to give evidence.

Accordingly, the Teacher’s Representative submitted that there was no proper foundation for concluding that the pupils should not be involved in the process. He submitted that GTCS should have approached each pupil individually and assessed each pupil individually in relation to whether or not they were or were not capable of giving evidence as opposed to treating them as a single entity.

The Teacher’s Representative submitted that the hearing process must be fair. He highlighted that if allegations were found proved then the consequences to the Teacher would be grave. He contended that there was a conflict in the evidence. The Teacher’s Representative highlighted that there was a need for there to be compelling reasons as to why a party was not able to cross examine a witness. The Teacher’s Representative submitted that no compelling reasons had been provided by the Presenting Officer.

The Teacher’s Representative also highlighted the contaminating effect that certain evidence relating to one allegation may have on a Panel’s assessment of other allegations. The Panel would require to take this into account in assessing the admissibility of the hearsay evidence.

The Teacher’s Representative also analysed the evidence that was to be presented in relation to the particular allegations. His submission was that there was no direct evidence to be given by live witnesses in relation to any of the allegations. In relation to allegation 1, the Teacher’s Representative accepted that the Teacher had admitted to the police during interview that she had become a ‘shouty’ teacher. However, there had been no admission made during that interview of intimidating behaviour. Aside from the Teacher’s admission, the other evidence bearing upon this allegation was entirely hearsay evidence. In relation to allegation 2, the Teacher’s Representative’s submission was that the sole and decisive evidence was the hearsay evidence from Pupil A. There was no other evidence that supported this particular allegation. In relation to the various sub-allegations of allegation 3, the Teacher’s Representative’s analysis was slightly different to the Presenting Officer’s analysis. The Teacher’s Representative indicated that in relation to some sub-allegations, more than one pupil spoke about an incident. The Teacher’s Representative pointed to discrepancies between those various accounts. In any event the accounts were all hearsay accounts as none of the pupils were to be called to give live evidence. The Teacher’s Representative also highlighted that there was no evidence of distress to be provided in relation to the pupils.

The Teacher’s Representative submitted that it was not fair to admit the hearsay accounts of the pupils in this case when those accounts were disputed. The hearsay evidence was the sole and decisive evidence in relation to each of the allegations. No matter how many accounts had been provided by a pupil or by pupils they were all hearsay accounts. Accordingly, the Teacher’s Representative submitted that the Panel must be extremely cautious and should refuse to admit the hearsay accounts in evidence.

The Panel considered the full and helpful submissions made by the parties and the material that was contained within the Hearing papers. Further, the Panel had regard to the guidance provided by the Legal Assessor. The Panel considered the Rules and guidance provided within the Fact Finding in Fitness to Teach Practice Statement in relation to the admissibility of evidence and in relation to hearsay evidence. The parties’ submissions and guidance from the Legal Assessor had touched upon a number of separate legal authorities. The Panel considered Nursing and Midwifery Council v Ogbonna [2010] EWCA Civ 1216; R (on the application of Bonhoeffer) v General Medical Council [2011] EWHC 1585 (Admin); Thorneycroft v Nursing and Midwifery Council [2014] EWHC 1565 (Admin); Graham v HM Advocate [2018] HCJAC 69 and El Karout v Nursing and Midwifery Council [2019] EWHC 28 (Admin). From those authorities, the Panel identified some principles that had been referred to in relation to the determination of the admissibility of hearsay evidence within regulatory and other proceedings.

The Panel acknowledged that in particular circumstances, consideration had to be given by a Panel to the admissibility of hearsay evidence as opposed merely to the weight to be attached to hearsay evidence. Further, where the admissibility of hearsay evidence is at issue, the Panel acknowledged that this was a matter that should be determined in advance of or at the outset of a hearing. The Panel noted that some of the authorities referred to situations where the Respondent in regulatory proceedings was unrepresented and the proposal was to present hearsay evidence. In that event the authorities suggested that a Panel should of its own volition consider the admissibility of hearsay evidence in the context of a particular allegation in advance of the hearing of evidence.

In relation to the particular circumstances of the present case, the Panel decided that the hearsay evidence of the individual accounts provided by the pupils was inadmissible and would not be admitted in evidence.

The Panel noted what was said in Rule 1.7.17, namely:-

‘Subject to the requirements of relevance and fairness, a Panel may admit oral, documentary or other evidence, whether or not such evidence would be admissible in civil or criminal proceedings in the United Kingdom.’.

The Panel considered that the admissibility of evidence is subject to the general common law requirements of relevance and fairness. Further, the Panel considered that what is fair is fact sensitive and will depend on the circumstances in an individual case, particularly, the nature and subject matter of the proceedings. The Panel acknowledged, as was underlined in the authorities, that there was no absolute rule under Article 6 of the European Convention on Human Rights (ECHR) or under common law entitling a person facing disciplinary proceedings to cross-examine a witness. Further, in deciding whether or not to admit hearsay evidence, the Panel considered that it was entitled to take into account the fact that it could give less weight to the evidence than if the maker of the statement was available to be cross-examined.

The Panel further acknowledged that the existence of a good and cogent reason for the nonattendance of a witness is an important factor. However, the absence of a good reason would not automatically result in the exclusion of the evidence. Further, in serious cases, the Panel accepted that there would need to be compelling reasons to prevent a Teacher from cross-examining a witness whose evidence was critical to establishing an allegation if there were no problems associated with securing the witness’s attendance.

The Panel was of the view that the allegations in the Teacher’s case were serious allegations. The Panel was not satisfied in the present case with the reasons as to why pupils were not present to give evidence. The Panel was not satisfied that the Presenting Officer had given compelling reasons in relation to why neither pupils nor their parents had  been invited to give evidence in person. This was not to say that a reason did not in fact exist in relation to a particular pupil or parent. It appeared to the Panel that greater inquiry should have been made into whether or not the pupils could and should give evidence in order to identify and specify particular reasons relating to each pupil as to why that pupil would not be giving evidence personally.

The Panel acknowledged that courts had been reluctant to uphold decisions to admit hearsay evidence where (i) the evidence was not admitted or accepted, and (ii) the hearsay evidence in question was the sole or decisive evidence in relation to an allegation.  In the context of these particular proceedings, the accounts of the individual pupils were the sole or decisive evidence in relation to particular allegations. The allegations were specific. The Panel considered whether counter-balancing measures existed in other evidence in the present proceedings. The Panel decided that there were none. There was no direct evidence to be led in relation to the allegations. Parents who had spoken to their child after the time of an allegation and to whom a disclosure had been made by their child were not to be called to give evidence about the circumstances surrounding that disclosure nor other circumstances surrounding their child’s demeanour around that time. Further, colleagues of the Teacher at the time of the allegations who may have observed behaviour were not to be called to give evidence. The Panel noted that interviews of pupils had been conducted by the school. The contemporaneous notes of those interviews were not lodged. The Panel also noted that there were inconsistencies in accounts provided by pupils and between pupils.The Panel noted that there were errors in the accounts of pupils and in associated documentation from the school relating to the spelling of pupils’ names, such that it was impossible to distinguish with confidence between individuals with similar-sounding forenames. Further, the audio-visual recordings of joint investigative interviews were not available. Accordingly, the Panel could not study the demeanour of pupils whilst they were being interviewed.

Accordingly, in the particular circumstances of the case and having regard to the requirements of fairness in proceedings, the Panel concluded that it would be unfair to admit the hearsay accounts of the pupils, that they were accordingly inadmissible and that they would not be presented in evidence.

Summary of evidence

Following the Panel’s decision in relation to the preliminary issue the Presenting Officer chose not to lead any other evidence in support of the allegations.

The Teacher’s Representative accordingly invited the Panel to find the allegations not proved.

Findings of fact

The Panel found the allegations not proved.