The General Teaching Council for Scotland

Enhancing professionalism in education since 1965

Procedural Meeting - 9 March 2018

Procedural Meeting

09 March 2018

 Teacher  XXXXXXXX
Registration Number XXXXXXXX
 Registration category XXXXXXXX
 Panel  Lily Proudfoot; John Kilpatrick; Lynda Dalziel
 Legal Assessor  Julie McKinlay
 Servicing Officer  Dani Tovey
 Presenting Officer  Gary Burton, Anderson Strathern LLP
 Respondent's representative  Graeme Watson, 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 applications of the Presenting Officer and the Teacher.

The Presenting Officer made the following application:

(i) to allow the witness Witness 2 to give her evidence by video conference in accordance with Rule 1.7.6 of the Rules.

The Teacher’s representative made the following application:

(i) for the Full Hearing to take place in private in accordance with Rule 1.7.3.

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:

1. Notice of hearing dated 1 March 2018
2. Proof of service of notice – email delivery/read receipts
3. Teacher Privacy Application
4. Teacher Documents and Privacy Application Articles
5. Privacy Application Submissions
6. Procedural Hearing Decision Annex dated 28 February 2017
7. Statement of Witness 2 dated 19 May 2015

Preliminary matters

Private hearing

The Panel decided to allow the applications to be made in private because it considered that to do otherwise would frustrate the purpose of making those applications.

The applications made were considered by the Panel based on the written and oral submissions of the parties at the Procedural Hearing which was held in private.

Late Paper

The Teacher’s representative made an application for a late paper to be allowed. There was no objection to the late lodging of the document which was a XXXXXXXXXX from the XXXXXXXXXX dated 10 March 2017. The Panel considered that the document was relevant to the application for the Full Hearing to be heard in private. Furthermore, there being no objection to the document being allowed, that it was fair to allow the document to be lodged.

 

Decision

The application by the Presenting Officer

The Presenting Officer made an application for the Panel to allow the evidence of Witness 2 to be heard by video conference in accordance with Rule 1.7.6. The application was not opposed. The Panel determined that the evidence of the witness Witness 2 should be heard by video conference.

The Presenting Officer submitted that the witness suffers from XXXXXXXXXX and had been unable to attend a previous hearing in this matter as a result. The witness is content to give evidence and is speaking to a relatively narrow point. The witness would be able to access the relevant papers.

The Panel had regard to Rule 1.7.6 and the Use of Electronic Communications Practice Statement. The Panel heard representations from the parties. The Panel considered that it was just and equitable for the witness to give evidence by video conference given her health. The use of video conference would allow all those attending to see and hear the witness give her evidence and it was fair to allow her to do so by video conference in the circumstances.

The application by the Teacher’s representative

The Teacher’s representative made an application for the Full Hearing to be heard in private. The basis of the application was that the Teacher had, on the publication of the Notice of Full Hearing in March 2017, been the subject of XXXXXXXXXX and that there was a real threat to the private and family life of the Teacher of such further abuse in the event that the rearranged Full Hearing was heard in public.

A previous application for the Full Hearing to be heard in private had been made and considered by a Procedural Hearing on 28 February 2017. The basis of the application on that occasion was the health of the Teacher. The Procedural Hearing refused the application for the Full Hearing to be heard in private.

In accordance with Rule 2.5.3, a determination by a Panel of a procedural matter will bind any subsequent Panel unless the Panel considers that there has been a material change in circumstances and it is just for the application to be re-considered.

The Teacher’s representative submitted that, as the basis for the application was entirely different and did not relate to the health of the Teacher, this constituted a material change in circumstances such that the Panel was entitled to determine this application. The Presenting Officer agreed with that position.

Having regard to the basis of the application, the Panel’s view was that there had been a material change such that it was not required to dismiss the application and that it was not bound by the previous determination that the Full Hearing should be in public.

The Panel proceeded to hear the application.

The Panel carefully considered the submissions of both parties as well as all of the information contained within the hearing papers. In reaching its decision, the Panel had regard to the overriding objective of the Rules, to Rules 1.7.2 to 1.7.4, and to the GTCS Conducting Hearings in Private Practice Statement.

The Panel decided that the Full Hearing should be conducted in private. The reasons for the decision are as follows.

The starting point for the Panel’s consideration was Rule 1.7.2, which sets out that hearings will be held in public. This is the default position. However, Rule 1.7.3 provides that:-

“All or any part of a hearing may be conducted in private where the Panel is satisfied, having given the relevant parties an opportunity to make representations, that either:-

(a) publicity would prejudice the administration of justice; or
(b) there is a need to protect the privacy, confidentiality or other interests of a party, third party or witness concerned,

And that the interests of the Respondent and the public in the hearing being held in public are outweighed………..”


The practice statement makes clear that panels have discretion to exclude press and public from all or part of a hearing by exception where certain criteria are met. The practice statement makes clear that the decision of a Panel that all or part of a hearing should be held in private must be consistent with Article 6(1) of the ECHR. It might be appropriate for a private hearing application to be allowed where the protection of the private life of the parties so require. The Panel was clear that it must be satisfied that there is a compelling reason for deciding that all or part of the hearing should be held in private in order to protect an individual’s private life.

The Panel was also clear that simply being distressed or embarrassed by the proceedings was not sufficient to justify the conclusion that a hearing is held in private. It was acknowledged that the proceedings before the GTCS can be distressing for parties but that that in itself was not sufficient to depart from the starting point that the hearing and decision be public. It was also noted that whilst a private hearing could protect the Teacher’s reputation that would only be relevant where the damage to the reputation of the Teacher would be disproportionate as a result of the Full Hearing being in public.

The Panel considered, having regard to the evidence before it and the submissions on behalf of the Teacher, that the interests of the Teacher and the protection which ought to be afforded to his private and family life outweighed the interests of the public in the Full Hearing being conducted in public. The Panel did circumstances if the Full Hearing was conducted in public.

It appeared to the Panel that as a direct result of the publication by the GTCS of the Notice of Full Hearing in March 2017 the content of which included XXXXXXXXXX. The Panel was of the view that given the close proximity in time in which the articles appeared to the date of publication of the Notice that it was the GTCS notice being made public which had prompted these articles.

One of the articles appeared to suggest that the Teacher was actively seeking to discredit those in Britain who were opposed to XXXXXXXXXX. The Panel considered that whilst the articles themselves did not feature in the mainstream media and would therefore not necessarily be read by the general public, the Panel accepted the submission by the Teacher’s representative that in the event that a search was carried out of the Teacher’s name these articles appeared within the first XXXXXXXXXX search engine. They were accordingly easily accessible via the links provided by the search engine.

The Panel was appalled by the XXXXXXXXXX content of the articles and the unsubstantiated allegations they made about the Teacher. The Panel also considered that it was likely that, in the event that the Full Hearing was to proceed in public, such a hearing would attract publicity and potentially result in further articles of this unacceptable and completely inappropriate nature.

The Panel further considered that the reputational damage that would be suffered by the Teacher if such allegations were to be repeated in the future was disproportionate to the interests of the public in the hearing proceeding in public. The Panel did not consider that it was appropriate for the Teacher and his family to be subjected to such hateful publicity as a result of the GTCS proceedings. The Panel had to be satisfied that there was a compelling reason based on sufficient evidence to depart from the default position that GTCS Hearings are held in public and, in the circumstances, the Panel considered that such a compelling reason existed.

Accordingly, the Panel was satisfied in the particular circumstances of this case that there was a basis in terms of rule 1.7.3 to depart from the position set out in rule 1.7.2 that the hearing be conducted in public.

The Panel noted from the Conducting Hearings in Private Practice Statement that in announcing or publicising a decision following the Full Hearing that a panel should ensure that it does not frustrate the purpose or reasons that underpinned the private hearing decision. It was, however, open to the Panel determining the Full Hearing to decide that the decision should be made public. In the circumstances of the present case, the Panel requested that the Panel determining the Full Hearing should give proper consideration as to the decision being made public (in whole or in part). In the view of this Panel, this would have the potential to address the public interest by communicating the evidence, decision and reasons for it publically thus enabling fair and accurate reporting of the matter. That, however, should be a matter for the Panel hearing the evidence and making the decision at the Full Hearing and parties should be prepared to make appropriate submissions on that matter at the conclusion of the Full Hearing.