Witness evidence

Relevant rules and law

The legal tests relating to witness evidence are set out in the GTC Scotland Fitness to Teach Rules 2017 (the Rules) and The Public Services Reform (General Teaching Council Scotland) Order 2011 (the Order):

• Rule 1.7.17 allows for the admission of oral and documentary evidence regardless of whether it would be admissible in civil or criminal proceedings in UK courts, subject to the requirement that admission of such evidence is both fair and that the evidence is relevant.
• Rule 1.7.23 allows for any fact to be proved by the evidence of a witness being provided in writing (assuming such evidence would be permitted were the evidence given orally) unless the Convener or panel orders otherwise
• Rule 1.7.24 allows for a party to apply to the panel for permission to cross-examine a witness or ask that the person be ordered to attend a hearing to provide their evidence orally. If the witness is ordered to attend but does not, their evidence will not be used without the permission of the panel.
• Rule 1.7.29 details the circumstances in which a panel may treat a witness as a vulnerable witness. These are where:
  
  • the witness is under the age of 18
  • the quality of the witness’s evidence is likely to be diminished due to the fact that:
  • they have a mental disorder
  • they have a significant impairment of intelligence and/or social functioning
  • they are the alleged victim of behaviour of a sexual and/or violent nature
  • they are suffering from fear or distress in connection with giving evidence.
• Rule 1.7.30 sets out various measures which can be put in place to assist vulnerable witnesses in giving evidence, including but not limited to: video links, pre-recorded evidence (provided that the witness is available for cross-examination at the hearing), use of interpreters and hearing the evidence in private.
• Where necessary, any party may apply to the Court of Session to order the attendance of a witness at a hearing (schedule 4 part 2(5)(a) of the Order), assuming that the person would not be entitled to refuse doing so in actions before the Court of Session.

Assuming the above legal tests are met, it will be competent to lead evidence from any witness, including vulnerable witnesses, in Fitness to Teach proceedings. In addition, as a public authority for the purposes of Section 6 of the Human Rights Act 1998 and Section 6 of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 (UNCRC Act) it is unlawful for us to act incompatibly with European Convention on Human Rights (ECHR) or the United Nations Conventions on the Rights of the Child (UNCRC) requirements when exercising a relevant function, which would include our Fitness to Teach hearings.

Our approach in respect of vulnerable witnesses

When considering the issue of asking vulnerable witnesses to provide evidence as part of Fitness to Teach proceedings, in particular witnesses who are children¹, decision makers ought to have regard to 2 primary factors. Firstly the protection of the interests of the teacher (such as the teacher’s interest in being able to cross-examine a witness) and secondly the protection of the interests of the witness, including their health and wellbeing. These factors must be balanced fairly, without automatically favouring the interests of any individual over another.

When considering the use of evidence from vulnerable witnesses, fairness to the teacher must be balanced and weighed up with the potential negative impact that appearing before a Fitness to Teach panel and undergoing questioning about difficult or traumatic events may have on witnesses, particularly vulnerable witnesses. It is important also to have regard to the underlying purpose of the regulatory process, namely public protection.

When considering what witness evidence ought to be gathered in the course of an investigation, or led at a Fitness to Teach hearing, regard must be had to the wider public interest (see article 7 the Order). There is a clear public interest in ensuring that a Fitness to Teach panel is provided with the best possible evidence, however this must be weighed against the public interest in ensuring that children and vulnerable adults are not unnecessarily put through processes which may cause them emotional or psychological harm.

To this end, we will place witnesses into 3 categories where certain presumptions will apply.

Presumption 1

Presumption 1 relates to those witnesses who we will never seek to obtain statements from as part of Fitness to Teach proceedings, no matter how relevant. These are witnesses who are highly unlikely to be able to provide evidence which would be of assistance in the determination of the case. The persons falling within the category are as follows:

• Children under the age of 5.  In this circumstance and where considered appropriate, parents/guardians/carers would be approached to give statements regarding what, if anything, was reported to them and any other information that they are in a position to provide relevant to the allegations.
• Any person who is incapable of communicating substantively or understanding the proceedings.

Presumption 2

Presumption 2 relates to those witnesses who we may seek to obtain statements from as part of the investigation process and subsequently ask to attend a Fitness to Teach hearing, if necessary. However, we will not seek to compel them to attend a hearing by court order if they are unwilling to participate. The witnesses falling under this presumption are:

• children over the age of 5
• adults who are, in the view of GTC Scotland are likely to be, vulnerable witnesses with reference to the definition set out in the Fitness to Teach Rules set out above
• adults who have significant health issues impacting on their ability to participate

We will attempt to obtain the views of any child or vulnerable adult within this category to find out if they are willing to provide a statement and participate in a Fitness to Teach hearing², providing them with the information they need to make an informed decision about their involvement. We will outline measures which may assist them in providing a statement, such as taking a statement in person and having a supporter present when the statement is taken. We will also, as a matter of course, apply to have these witnesses treated as vulnerable witnesses where the test is likely to be met and will inform the witness of what measures may be available to them, for example, giving their evidence from a remote location or having a supporter.

Where, after additional measures have been offered and the witness remains unwilling to participate, we will not seek to compel these witnesses to attend Fitness to Teach hearings or to engage with the Fitness to Teach investigation by way of a court order.

In respect of children, if we were to raise a court action seeking to compel a child witness to give evidence, the court would have to consider the child’s best interests in determining whether to make such an order³. If a child is unwilling to give evidence, it would be unlikely that the court would require them to do so⁴. We consider that our approach therefore is appropriate, proportionate and in the public interest. We will however ask the witness to provide us with reasons for their decision, unless it appears to us from the information we already hold that continued contact from us will cause emotional or psychological harm to the witness. In these exceptional circumstances, no further steps will be taken to contact them after their response.

Presumption 3

The last presumption relates to:

• adults who do not fall under Presumption 2
• teachers and other regulated professionals.

Where there are witnesses within this category, we will ask them to participate in the investigation. Again, where such witnesses refuse to participate in the proceedings, we will correspond further with them to seek to encourage and support them to take part.

However, where all other alternative means have been exhausted, we may seek a court order authorising the taking of evidence from them and ordering them to attend at a Fitness to Teach hearing to give evidence in person.

We expect current and former registered teachers, and other persons registered with professional regulatory bodies, to participate in Fitness to Teach proceedings if requested to do so as part of what is expected of them as a professional. Our Code of Professionalism and Conduct (COPAC) requires that teachers be professional, honest and act with integrity in their dealings with us and not knowingly hinder, or refuse to engage with us in our regulatory functions . Where registered teachers refuse to provide a statement or fail to respond, we will contact their employer to make them aware of our request and ask for their assistance in securing a statement from the teacher or other regulated professional. Where all attempts to engage with the teacher or other regulated professional have been exhausted, we are likely to seek a court order to compel participation.

Any decision to seek a court order would be a last resort and would be taken after considering the particular facts and circumstances of the case.

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