Admissibility of evidence - factors to be considered

The overriding consideration of the panel is to ensure that the proceedings, as a whole, are fair. When considering the admission of hearsay evidence, this requires a careful balancing exercise which explores the reasons for the witness’s absence, the importance of the evidence in determining the issue and whether there are any counterbalancing measures, including strong procedural safeguards, that will allow for a fair and proper assessment of the reliability of the evidence⁶.

The factors which should be considered by the panel when determining the issue of fairness have been discussed in a range of cases and are summarised below. While these cases have produced helpful guidance on determining fairness, each case referenced has been determined on its own unique facts and the panel must also determine issues of admissibility and fairness based on the particular facts and circumstances of the case before it.

• Fairness is to be considered in the round, having regard to all of the relevant factors⁷. A Panel must evaluate the overall fairness of proceedings, including the way in which evidence was obtained, having regard to the rights of the teacher, but also to the interests of the public, victims, and where necessary, to the rights of witnesses⁸
• The nature and quality of the hearsay evidence will be a key factor in assessing the fairness of admission. The better the quality of the evidence the more likely it will be that admission will be fair. Relevant considerations will include why and how it was recorded⁹. Prior statements may be regarded as higher quality where they:
  
  • are video or audio recorded rather than in writing
  • are taken in a formal setting or under formal conditions
  • are taken by a trained professional, such as a police officer or social worker
  • have had the involvement of a responsible adult or supporter, where the statement is from a child
  • show steps have been taken to verify the statement’s accuracy by signing or initialling¹⁰.
• There is no absolute right to cross-examine witnesses in disciplinary proceedings¹¹
• There is no absolute prohibition on hearsay evidence, even where it is the sole or decisive piece of evidence¹².
• If the hearsay is the sole or decisive evidence, careful consideration ought to be given to whether it ought to be admitted. Where the hearsay is the sole or decisive evidence it is more likely that admitting the evidence would be unfair, however this will depend on the facts and circumstances of the case¹³.
• If the allegations are of a particularly serious nature then admission of hearsay evidence is subject to heightened scrutiny¹⁴.
• The admission of hearsay evidence requires the balancing of various interests. There is a strong interest in respect of the teacher’s right to a fair trial, and the chance to properly challenge the case against them. The panel should also take into account that there is a public interest in ensuring that the public, and in particular children, are protected from teachers who pose a risk of harm to them¹⁵.
• Regard ought to be had to the steps taken to secure the attendance of the witness¹⁶. Hearsay is more likely to be admissible where there are good reasons for the non-attendance of a witness¹⁷. These can be practical reasons (such as the witness being unavailable on the date in question due to a pre-existing commitment¹⁸). It is our position that this also applies for broader reasons of public interest.  
• The determination of weight to be attributed to any hearsay evidence once it is admitted can be considered as a protective factor in favour of the teacher, however unfairness cannot always be mitigated by simply attaching less weight to the hearsay evidence when it is considered at a full hearing¹⁹.  
• The extent to which the contents are in dispute and whether there are particular concerns about the credibility of the witness will be relevant considerations and will call for additional scrutiny²⁰.
• Hearsay is more likely to be admissible where it is supported by other pieces of primary evidence. In other words, if there are other direct witnesses who speak to the same events as the hearsay account, and these direct witnesses are available for cross-examination, then it will be less likely that admission of hearsay will be unfair²¹. Additionally, if there are strong similarities between the account provided by a witness in a hearsay statement and an account given by another witness describing comparable conduct displayed by the same person between whom there is no evidence of collusion, this can be an important factor supporting a hearsay statement. This holds even more true if the latter witness gives evidence in person and that witness’s reliability is tested by cross-examination²².
• It is unlikely that it will be fair to admit anonymous hearsay evidence²³.
• The absence of the Teacher at the hearing may also be a relevant factor but it is unlikely to be decisive²⁴.

Please note that the factors listed above are not exhaustive and there may be additional factors to consider in individual cases. Where a panel is considering the overall fairness of admitting hearsay evidence of a child, the factors listed in the section ‘Hearsay evidence of children’ should be considered in addition to those outlined above.

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