The General Teaching Council for Scotland

Enhancing professionalism in education since 1965

Procedural Hearing - 30 October 2017

30 October 2017

 Teacher  XXXXXXXX
&npsp;Registration Number XXXXXXXX
 Registration category  Secondary - History
 Panel  Tony Bragg, Nicola Dasgupta and David Brew
 Legal Assessor  James Mulgrew
 Servicing Officer  Dani Tovey
 Presenting Officer  Gary Burton, Anderson Strathern LLP (not present)
 Respondent's representative  Alastair Milne, Balfour & Manson LLP (not present)

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

  • For an order that the evidence of Witness 3 be heard in private in accordance with Rule 1.7.3 of the Rules; and
  • For an order that the identity of Witness 3 be anonymised in accordance with Rule 1.7.3(b); or alternatively
  • 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
  • For an order that the present case be cancelled in accordance with Rule 2.5.1(c).

The Teacher's representative opposed the application.

Evidence

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:

  • PO application for privacy and anonymity of witness.
  • Full Hearing PO Inventory.
  • Full Hearing papers part 1.
  • Full Hearing papers part 2.
  • Statement of Witness 4.
  • Statement of Witness 2.
  • Procedural Hearing decision annexe dated 15 March 2017.
  • Full Hearing Notice dated 14 February 2017.
  • Teacher’s representative’s submissions dated 27 October 2017.

   

Submissions

Presenting Officer’s submissions

Applications (a) and (b)

The Presenting Officer observed that this case had previously attracted considerable media attention. Witness 3’s name is contained within the allegations and, prior to the present GTC Scotland Publication Policy, her name was identified and reported on by the press. Some medical reporting of the allegations have suggested that the allegations against the Teacher had been found proved and Witness 3’s name appeared on some XXXXXXXXX websites which has caused her some considerable distress. It was submitted that any further connection between the witness and the present allegations would impact upon her Article 8 ECHR right in relation to the protection of her private life given the possible impact on her and her family. It was submitted that she is not the focus of these proceedings and that the particular circumstances of the case outweighs the interests of the Teacher and the public in her evidence being heard in public. The Presenting Officer acknowledged that the present application was made in similar terms and was refused by a Panel on 15 March 2017. However, it was submitted that there had been a material change in circumstances since that date. Witness 3 has now categorically stated that she will not attend the Hearing to give evidence in the absence of privacy and anonymity. The Presenting Officer’s position was that it would not be possible to establish the present facts of the case in the absence of Witness 3. The Presenting Officer also referred to Section 9 of the GTC Scotland Fitness to Teach Publication Policy which provides that information can be removed or redacted from that which is published including information which may identify other people connected with the Hearing. Accordingly, it would be unlikely that Witness 3 would be named on the GTCS website either before the Hearing or in the decision after the Hearing.

Application (c)

If applications A and B were refused the Presenting Officer had an alternative application (c) that Witness 3 be treated as a vulnerable witness in accordance with Rule 1.7.29 of the Rules. Witness 3 had expressed her concerns regarding her name being referred to on XXXXXXXXXX websites. The Presenting Officer submitted that, given the concerning and sensitive nature of such websites it would be reasonable for a Panel to infer that the quality of her evidence is likely to be diminished due to the fear or distress of her name appearing again on such websites, particularly in the current technological climate.

Application (d)

If the Panel were to refuse applications (a) and (b), or (c) then the Presenting Officer’s final application (d) was to cancel the Hearing in terms of Rule 2.5.1(c) of the Rules. Witness 3 stated that she would not attend the full Hearing in the event that a privacy application and anonymisation of her identity were not granted. It was submitted that in her absence there would be insufficient evidence to establish allegations 1 and 2. It was submitted that in the absence of Witness 3 her witness statement would not be admitted in evidence. That would be on the basis of the Teacher’s representative’s inability to cross examine Witness 3 and in the broader interest of fairness. If the witness statement were to be admitted, limited weight could be attached to it in the witness’ absence and accordingly it would be unlikely that there would be sufficient evidence to establish the allegations on the balance of probabilities. On that basis the Presenting Officer applied to have the proceedings cancelled.

The Teacher’s Representative Submissions:

Applications (a) and (b)

The Teacher’s representative opposed the applications. The representative highlighted that the Presenting Officer had not specified the way in which the witness’ exposure would adversely affect her private and family life nor why the balance was tipped in her favour over the interests of the Teacher and the public in a public Hearing. The Teacher’s representative also highlighted that there must be a “compelling reason” for privacy to protect an individual’s private life. It was submitted that the Presenting Officer had not established such a “compelling reason” in this case. It was further submitted that the witness had already lost her privacy as a result of the previous publications. Further, it was not in the interests of justice for part of the Hearing to be held in private only. That would be likely to encourage further distortion of the position.

The Teacher’s representative referred to Rule 2.5.3 of the Rules which states that it must be just for a preliminary matter to be reconsidered and that there must be a material change in circumstances. It was submitted that there had been no material change in circumstances here.
The fact that a witness refused to attend the Hearing before her professional regulator because she did not have the protection of privacy and anonymity could not constitute a material change in circumstances.

Further, the Teacher’s representative invited the Panel to consider the effect of the Publication Policy when assessing the present application.

Application (c)

The Teacher’s representative opposed this application. It was not accepted that the witness would experience fear or distress to the extent that the quality of her evidence would be diminished when giving evidence. The representative questioned why this issue was not raised during the earlier application in March. Further, it was highlighted that the Presenting Officer was not offering any evidence to support the request that the witness should be treated as vulnerable. In particular the Teacher’s representative highlighted the absence of any medical evidence in support of the application. It was submitted that this application was an attempt to circumvent the requirements of Rule 1.7.3 on the basis that the requirements had not been met.

Application (d)

The Teacher’s representative opposed this application. It was submitted that the witness was threatening to frustrate the Hearing should the privacy application be refused. It was accepted that the witness’ evidence was central to the allegations. However, cancellation of proceedings in light of a threat of non-attendance would perpetuate the problem. It was also submitted that cancellation against that background would contravene the over-riding objective of the 2017 Rules and the principles of natural justice.

Decision

The Panel took account of all of the documentation provided to it, as outlined above. In addition, the Panel had regard to the relevant Rules as well as the GTCS practice statement on Conducting Hearings in Private, the practice statement on Health Matters and Medical Evidence and the Fitness to Teach Publication Policy.

Application (a) and (b)

Rule 1.7.2 outlines the provision that hearings will be held in public. However, rule 1.7.3 goes on to say that:-

“A Panel may, at any stage of proceedings on its own initiative or on application to it, make an order with a view to preventing or restricting the public disclosure of any aspect of proceedings. A Panel may do this so far as it considers it necessary where it is satisfied (having given the relevant parties an opportunity to make representations and in compliance with all relevant Convention rights) that it is in the interests of justice to do so and the particular circumstances of the case outweigh the interests of the Teacher and the public in the hearing being held in public. Any such decision (and the reasons for it) will be announced in public or made publicly available.

Such orders may include (but will not be limited to) –

(a) An order that a hearing be conducted (in whole or in part) in private;
………………………………”


As provided for by rule 1.7.3, the Panel’s decision with respect to the application must comply with the rights set out in the European Convention on Human Rights (ECHR). Article 6 of the ECHR sets out that:-

“……everyone is entitled to a fair and public hearing…….Judgment shall be pronounced publicly but the press and public may be excluded…….in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice”.

The exception to the rule (that all hearings are held in public) that was being relied upon by the Presenting Officer in relation to the witness was where “the protection of the private life of the parties so require”. The GTCS practice statement on Conducting Hearings in Private outlines examples of when it might be appropriate for a hearing to be held in private. One of those exceptions is entitled “Protection of Private Life”. The practice statement states that in order to accede to a privacy application on the basis of the protection of the private life of an individual, the Panel must be satisfied that there is a compelling reason for doing so. The practice statement earlier narrates that neither distress nor embarrassment are generally sufficient reasons for a Hearing to be held in private. Further, the fact that a private Hearing could prevent damage to reputation is not generally a sufficient reason unless the reputation would suffer disproportionate damage as a result of the Hearing being held in public. 

  1. Everyone has the right to respect for his private and family life, his home and his correspondence; and
  2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The Panel considered the guidance outlined in the practice statement on Health Matters and Medical Evidence.  It states that medical evidence should take the form of an appropriately detailed letter from a medical practitioner setting out the following:

  • A specific diagnosis;
  • The severity of the condition(s);
  • A specific explanation of how the condition(s) impacts upon attendance at the hearing and/or engagement with the hearing process (as well as any recommendations as to reasonable adjustments that could or should be made to facilitate attendance/engagement);
  • What the treatment is; and
  • What the prognosis is.

It also states that the medical practitioner should also have reached his/her conclusions following an appropriate examination/consultation methodology in order to ensure he/she is well informed.  It states that the strength and quality of medical evidence must correspond to the level and seriousness of the matter at issue. For example, the weight of evidence required for an application for a private hearing will be higher than that required for an application for a short extension of time to submit evidence for Panel consideration.

Rule 2.5.3 of the Rules states:-

“Where the Panel determines and considers a procedural or preliminary matter in terms of the provisions above, such determination will bind any subsequent Panel Hearing of the case unless it considers that there has been a material change in circumstances and it is just for it to be reconsidered.   Where an application is made in terms of Rule 2.5.1 above which has already been determined and there has been no such change in circumstances specified, the Servicing Officer may dismiss the application.   

The Convenor may dismiss an application to determine a procedural or preliminary matter where he/she is of the reasonable opinion that it:

(a) has already been determined and the material change in circumstances requirement referenced above is not engaged
(b) lacks specification; or
(c) is frivolous or fictitious.

Where any application is dismissed by the Convenor in terms of the above, the parties will be notified of the decision in writing.”

The Panel decided to refuse the applications for privacy and anonymity in relation to Witness 3. The Panel noted the decision of the previous Panel at the Procedural Hearing on 15 March 2017 and concluded that the factors set out by the Presenting Officer did not amount to a material change in circumstances which made it just for the matters to be reconsidered. Further, the Panel considered the additional information and submissions that had been made in support of the application did not amount to compelling grounds that were required.   The Panel noted that there was no medical or other evidence submitted in support of the application.   

Application (c)

In relation to vulnerable witnesses in Rule 1.7.29 of the Rules states:-

“A Panel may of its own volition or on the application of any party, treat as vulnerable:

(a) Any witness under the age of 18; and
(b) Any witness whose quality of evidence is likely to be diminished for any of the following reasons:
i. He/she has a mental disorder;
ii. He/she has a significant impairment of intelligence and/or social functioning;
iii. The allegation(s) is/are of a sexual and/or violent nature, and he/she is an alleged victim; or
iv. Fear or distress in connection with giving evidence”.

Rules 1.7.30 and 1.7.31 then set out further procedures relating to vulnerable witnesses.   

The Panel decided to refuse the application for Witness 3 to be treated as a vulnerable witness. There was an insufficient basis set out within the application to meet the criteria in Rule 1.7.29.   The Panel noted that there was no information provided as to what fear or distress the witness would suffer, the impact that would have upon her and most crucially how that would affect the quality of any evidence she were to give.  Again the Panel observed that there was no medical evidence provided in support of this particular application.   Nor was the particular special measure to be adopted in relation to the witness set out in Rule 1.7.30 specified.   

Application (d)

Rule 2.5.1 of the Rules specifies:-

“At any stage of proceedings, a Panel of its own volition, on the Convenor’s direction or upon the application of a party (in such form as may be specified by the Servicing Officer), may:

……consider an application for a case to be cancelled”.

Rule 1.3.7  of the Rules states:-

“These Rules have the general objective of enabling GTC Scotland, Convenors and Panels, with the assistance of the parties, to deal with cases fairly and justly”.

Further, Rule 1.3.9 sets out that GTC Scotland, the Convenors and Panels must give effect to this general objective when exercising any power under the Rules and interpreting and applying them with the assistance of parties.

The Panel decided to refuse this application.  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.   

For all of the reasons set out above the Panel refused the various applications set out in the Presenting Officer’s submissions dated 19 October 2017.