The General Teaching Council for Scotland

Enhancing professionalism in education since 1965

Procedural Meeting - 14 December 2017

Procedural Hearing

14 December 2017

 Teacher  XXXXXXXX
&npsp;Registration Number XXXXXXXX
 Registration category  Secondary - History
 Panel  Michelle Herron, John Doherty, Peter Hempsey
 Legal Assessor  Julie McKinlay
 Servicing Officer  Gillian Sim
 Presenting Officer  Gary Burton, Anderson Strathern LLP
 Respondent's representative  Claire Raftery, Clyde & Co

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

Background

 
The Procedural Meeting was arranged to consider the application of the Presenting Officer.

The Presenting Officer made the following application:

(a) for an order that the witness Witness 3 attend the full hearing to give her evidence orally in accordance with Rule 1.7.24 of the Rules. 

Evidence

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

a) Application of the Presenting Officer
b) Notice of Full Hearing
c) Procedural Meeting Outcome
d) Response from Teacher’s representative 

Preliminary matters

The application made by the Presenting Officer was considered by the Panel, based on the written submissions lodged by the parties, at a meeting held in private. 

Decision

The Panel decided to grant the application and to order the witness Witness 3 to attend the full hearing to give her evidence orally in accordance with Rule 1.7.24 of the Rules.

The Panel had regard to the terms of Rule 1.7.24 of the Rules which provides that “a party may apply to the Panel for permission to cross-examine a witness or ask that the person be ordered to attend a hearing to provide his/her evidence orally.”

The Panel noted the outcome of the Fitness to Teach Panel at the Procedural Hearing on 30 October 2017. That Procedural Hearing had been arranged to consider a number of applications made by the Presenting Officer which applications were refused. The applications were as follows:-

(a) For an order that the evidence of Witness 3 be heard in private in
accordance with Rule 1.7.3 of the Rules; and
(b) For an order that the identity of Witness 3 be anonymised in
accordance with Rule 1.7.3(b); or alternatively
(c) For an order to treat Witness 3 as a vulnerable witness in
accordance with Rule 1.7.29(b) (iv) of the Rules; or alternatively
(d) For an order that the present case be cancelled in accordance with Rule 2.5.1(c).

At that time the Presenting Officer acknowledged that the application insofar as it related to (a) and (b) had been made in similar terms and was refused by a Panel on 15 March 2017. The Presenting Officer renewed those applications on the basis that there had been a material change of circumstances.

The applications were refused by the Panel on 30 October 2017. However, the Panel considered that it was important for the case to proceed. The Panel observed that a failure by a witness to co-operate with these proceedings could amount to misconduct in terms of the GTC Scotland Code of Professionalism and Conduct 2012. Further, the Panel noted that procedures were available which would allow the Presenting Officer to take steps to secure the attendance of the witness at a full Hearing. The first step would be for the Presenting Officer to apply in terms of Rule 1.7.24 that a Panel order that a witness attend a Hearing to provide his/her evidence orally.

Accordingly the Presenting Officer has made the current application in accordance with Rule 1.7.24.

The Panel was of the view that the allegations were of a serious nature and that it was important that matters proceed to a full hearing as expeditiously as possible. The Panel noted that the Presenting Officer was of the view that “in the absence of Witness 3, in the interests of fairness, it is likely that her witness statement would not be admitted as evidence due to the inability of the Teacher’s representative to be able to cross-examine her. In any event, if the witness statement was admitted, limited weight could be attached to it in her absence and it is submitted that it would be unlikely to be sufficient to establish the serious allegations on the balance of probabilities.”

It seemed to the Panel that in light of the position of the Presenting Officer as to the critical nature of the evidence to be given by Witness 3 and in order for the matter to proceed to a full hearing on what are serious allegations, as well as the interests of fairness all in accordance with the general objective, that it was necessary for Witness 3 to give her evidence orally to allow her evidence to be the subject of cross examination.

The Panel noted, having regard to the application by the Presenting Officer, that Witness 3 had been notified of the decision of the Panel of 30 October 2017 on 31 October 2017 and that Witness 3 had stated that she would not attend the full hearing. The full hearing had subsequently been postponed pending the present application.

It was accordingly necessary and appropriate, in the view of the Panel, to grant the application and to order that the witness Witness 3 attend the full hearing to give her evidence orally in accordance with Rule 1.7.24 of the Rules.

The Panel also was of the view that in advising Witness 3 of the outcome of the Panel Meeting today that such notification should properly advise her of the implications of any failure to comply with the order. In particular, the Panel considered that it was appropriate to make the witness aware that in terms of the the GTC Scotland Code of Professionalism and Conduct 2012 that as a registered teacher, she must not knowingly hinder, or refuse to engage with GTCS in the discharge of its regulatory functions and that, in addition, the GTCS has the power to make an application to the Court of Session to order any person to attend proceedings in order to give oral evidence in terms of Schedule 4, paragraph 2 of the Public Services Reform (General Teaching Council for Scotland) Order 2011 (SSI 2011/215).