The General Teaching Council for Scotland

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Procedural Hearing - 15 March 2017

Procedural Hearing

15 March 2017

 Teacher  XXXXXXXX
&npsp;Registration Number XXXXXXXX
 Registration category XXXXXXXX
 Panel  Philip Black (Convener), Peter Rankin, Lynda Dalziel
 Legal Assessor  Bryan Heaney
 Servicing Officer  Dani Tovey
 Presenting Officer  Carla Roth, GTCS
 Respondent's representative  Graeme Watson, Clyde & Co

Any reference in this decision to:

  • The "Convener" means the Convener of the Panel;
  • "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

Preliminary matters

The Panel convened for the Full Hearing in the Respondent’s case, which was scheduled to take place on 15, 16 and 17 March 2017. There were a number of preliminary matters to deal with. In the event, the preliminary matters occupied the Panel for the whole of the first day. Various orders were made and, as a result, the Full Hearing needed to be postponed.

Privacy whilst dealing with the preliminary matters

The first matter raised by the parties was privacy. The parties' position was that the preliminary applications for (1) a witness to be ordered to attend and (2) witness privacy and anonymity, should be made in private because to hear them in public would frustrate the purpose of the applications.

A member of the press was present. She was asked if she had any submission to make. She said that there should be as much information as possible in the public domain. She would trust the Panel to make a fair decision.

The Panel ordered that the public be excluded. It did so because making the applications for privacy in public would render the exercise pointless.

The Panel reconvened to tell the press and parties of its decisions. It told those present that the decision would remain under review and a public hearing would be resumed as soon as it could. The public were readmitted after the applications were dealt with.

Motion to have a witness ordered to attend

For the Respondent, Mr Watson moved the Panel to order a witness, Witness 2, to attend the hearing. It had only recently come to his attention that Witness 2 was not going to attend. What was now proposed by the Presenting Officer was to put in a statement and supplementary statement by Witness 2 to stand as her evidence. Mr Watson submitted that the hearsay ought not to be admitted. Witness 2’s evidence was central to the case against the Respondent. It was in the interests of justice that Witness 2 be ordered to attend so that she could be cross-examined. The complaint against the Respondent was serious. If it was proved, the Respondent could be removed from the register.

If no order were made, or an order was made and not obeyed by Witness 2, Mr Watson intended to apply to the Court of Session for an order compelling her to attend. It was suggested that, if the Panel made an order on the first day of the hearing, Witness 2 might be persuaded to come along during the three days that had been set down. If not, the hearing would have to be postponed. Mr Watson said that until Witness 2 was committed to attending, no hearsay of what she had said should be admitted. His motion was made under Rule 3.1.11, which provides:

“The Respondent or the Presenting Officer 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. If a Panel so orders but the person in question does not attend, his/her evidence shall not be used unless the Panel gives permission.”

The Presenting Officer told the Panel how it came to be that Witness 2 was not attending. It was only in the week before the hearing that she had said she was not going to come. Witness 2's reason for not attending was ill-health. There had been no prior mention that Witness 2 would be unable to attend the hearing as a result of ill-health. The development had come as a surprise to the Presenting Officer.

The Presenting Officer took a supplementary statement from Witness 2. The Panel was asked to look at it. Mr Watson said that he had no objection to it being considered but only insofar as it dealt with Witness 2's reasons for not attending the hearing. The rest of the statement was hearsay evidence of the kind that he was objecting to. The Panel received the statement for the purposes of considering only what Witness 2 had to say about non-attendance.

Witness 2's reason for not attending the hearing was ill-health. In her statement, she said the stress of the proceedings would aggravate a pre-existing condition. The only medical evidence she provided was regarding her pension and was dated February 2015.

The Presenting Officer told the Panel that Witness 2 was a registered teacher. It could be misconduct for a registered teacher not to cooperate with GTCS.

The Presenting Officer submitted that if Witness 2 could not attend in person, arrangements could be made for her to participate by electronic communication. This was allowed under Rule 1.7.

The Presenting Officer submitted that Witness 2's evidence was central but was not the only evidence against the Respondent. Others would be able to tell the Panel what Witness 2 had said to them and how she had said it.

The Presenting Officer suggested that the Panel could, if it wanted, make an order that Witness 2 attend and, meantime, get on with the hearing, allowing the hearsay of Witness 2 to be heard reserving questions of admissibility. If she could not be cross-examined, the Panel could, in the end, weigh up all of the relevant factors and decide whether or not to admit the hearsay.

The Presenting Officer told the Panel that there would be practical problems if there were to be a delay. If the case could not be completed in the days set-down she would not - by reason of leaving her post with GTCS - be able to complete the presentation of it.

Mr Watson reserved his position on whether the use of electronic communication for the cross-examination of such an important witness would be "just and equitable" for the purposes of Rule 1.7.5(a). Attendance in person would be preferable. Mr Watson also acknowledged that the need to secure the attendance of Witness 2 might delay proceedings, but he could not have made the motion sooner. Meantime, the proceedings would be hanging over the Respondent.

Decision

The Panel decided that the witness should be ordered to attend. Her evidence was important. The best evidence would be her oral evidence. How she responded to cross-examination might be significant. The statement and medical evidence, such as it was, did not specifically and satisfactorily explain why the witness could not give evidence. It did not deal with the issues of whether any special measures or electronic communication would allow her to participate.

The Panel decided to ask the Servicing Officer to write to the witness at once by email reminding her of her obligations under the GTCS Code of Professionalism and Conduct (COPAC) and request that the witness produce a specific medical report stating why she could not attend and why she could not give evidence by electronic means if that was the case. The Servicing Officer was asked to follow the email up with a telephone call.

The Panel decided that it would not make a decision about whether Witness 2 would be allowed to participate by electronic communication. It might not arise.

Given that it was relatively early in the day, the Panel decided that it would sit on and hear other preliminary motions. The witness might pick up the email and decide to come along in the afternoon or on the next day.

Motion for witness privacy and anonymity — Witness 3 and Witness 2

The Presenting Officer made a motion that the evidence of Witness 3 and Witness 2 be heard with the public excluded and that they not be named in connection with the proceedings. That the proceedings were coming up had been picked up by various websites. XXXXXXXXXX had prepared a fair and balanced report stating that the case was soon to be heard. But other websites had mentioned Witness 3’s name alongside that of the Respondent and suggested that the complaint against the Respondent had been found proved. They used this purported finding in support of an XXXXXXXXXX and XXXXXXXXXX argument. To be connected with this kind of publicity could be damaging to Witness 3 and her family. If she were granted privacy and anonymity the story would be less likely to be repeated on these or other websites of a similar kind. The Presenting Officer submitted that the same considerations applied in the case of Witness 2; she too should be granted privacy and anonymity. She added that Witness 3 was reluctant to participate if she was not granted privacy and anonymity.

The Panel was taken to rules 1.7.2 and 1.7.3 and it was submitted that, although the default position was that the hearing would be in public, the interest in transparency and open justice were outweighed by the witnesses’ right to private and family life.

Mr Watson's position was that, if the motion were to be granted, the only fair way to proceed would be for the whole hearing to be in private. It would not be fair to his client to be named when the witnesses accusing him of serious misconduct would be allowed privacy and anonymity. He and the witnesses were all innocent of any misconduct. As well as that, given that names and spellings and usages were central to the evidence, it would be impossible to effectively anonymise the witnesses in an intelligible public decision.

Decision

The Panel considered the GTCS Conducting Hearings in Private Practice Statement. It decided to refuse the applications for privacy and anonymity. There had to be compelling grounds for privacy and anonymity. The Panel was not satisfied that compelling grounds had been demonstrated. Even if it were desirable to do so, it was too late to do anything about the web publicity. Transparency and truth would be the best antidote. It would be better if matters were to be ventilated in public so those who searched for and found the names of the witnesses and the Respondent on websites like those that had been pointed out by the Presenting Officer would also be able to find the matter on the GTCS website.

By the time that the Panel delivered its decision on privacy and anonymity it was mid-afternoon. Witness 2 had not been in touch. Having heard submissions, the Panel decided that it was very unlikely, even if Witness 2 decided to appear, that the hearing could be dealt with in the time allowed. For instance, some of the witnesses who had been scheduled for day one could not come back on day two or three and Witness 3 wanted to take legal advice about her position as a witness.

The Panel decided that the best way to proceed was to hear the Presenting Officer's motion to have an additional statement and witness added to her list out of time.

Additional witness and documents

The witness who the Presenting Officer wanted to add was a Senior Human Resources Officer at XXXXXXXXXX. She had been involved in the investigation into the events that had given rise to the Panel proceedings. It was only when it became apparent to the Presenting Officer that Witness 2 might not participate as a witness and she had undertaken inquiries to see what alternative sources of evidence there might be that she had realised that the witness she now wanted to add had material evidence to give. She had previously made inquiries with XXXXXXXXXX before but had not been allowed access to the report compiled by the witness. XXXXXXXXXX had now consented to the use of the report and material ingathered by the witness. The Respondent had been given the report in 2013 so it was not new to him.
 
Mr Watson opposed the motion. He said that the material related to exchanges in June 2013 and was not relevant to any issue focused by the complaint. If the material were to be allowed to be received late, he would inevitably have to conduct further investigation and preparation in response.

Decision

The Panel was not satisfied at this stage that the material was necessarily irrelevant. The Presenting Officer wanted to introduce the new material to strengthen the GTCS case. She had only obtained it late in the day. She could not reasonably have tendered it any sooner. Mr Watson would have had a good point about prejudice were it was not for the fact that the hearing was going to have to be postponed. The Panel decided that the material would be admitted reserving all questions of relevancy to the Full Hearing.