Panel Consideration Meeting - Privacy/Anonymity and Vulnerable Witness and Hearsay Applications - Teacher H

Definitions

Any reference in this decision to:

• ‘GTC Scotland’ means the General Teaching Council for Scotland;
• ‘Legal Assessor” means a legal assessor appointed by GTC Scotland;
• the ‘Panel’ means the Fitness to Teach Panel considering the case;
• ‘Parties’ means GTC Scotland (or the Presenting Officer nominated to act on its behalf) and the Teacher (and any appointed representative);
• ‘Presenting Officer’ means a person nominated by GTC Scotland to present to a Panel anything reasonably considered relevant to the Panel’s consideration of the case or matter before it.
• the ‘Rules’ (and any related expression) means the GTCS Fitness to Teach Rules 2017 or refers to a provision (or provisions) within them; and
• ‘Teacher’ means the above named teacher to whom this hearing relates.

Background

The Procedural Hearing was arranged to consider the following:

• Teacher’s Privacy & Anonymity Application;
• GTC Scotland's Vulnerable Witness Application; and
• GTC Scotland's Hearsay Application.

Evidence

In accordance with Rule 1.7.17, the Panel admitted all the documents and statements listed below as evidence for the purposes of the hearing:

• Teacher’s Privacy & Anonymity Application, dated 3 June 2024;
• Presenting Officer’s Response to Privacy & Anonymity Application, dated 10 June 2024;
• Final Response from the Teacher, dated 12 June 2024;
• Presenting Officer Case papers;
• Vulnerable Witness Application & Hearsay Evidence Application, dated 5 June 2024;
• Teacher’s Response to Vulnerable Witness Application, dated 11 June 2024;
• Teacher’s Response to Hearsay application, dated 11 June 2024; and
• Presenting Officer’s Final Response, dated 19 June 2024.

Preliminary Matters

The Panel noted that Parties and the Panel agreed that this hearing should proceed virtually, without the requirement for the attendance of the Parties ‘in person’.

The Panel accepted legal advice and having considered the Parties’ joint position, confirmed the hearing would proceed virtually.

Application by the Teacher for Privacy and Anonymity

The Teacher made an application for his fitness to teach hearing to be held in private and for the proceedings to be given anonymity as follows:

(a) For an order to be made in terms of Rule 1.7.3(a) of the GTC Scotland Fitness to Teach Rules 2017 (the Rules) for the full fitness to teach hearing to be heard in private, and

(b) For an order to be made in terms of Rule 1.7.3(b) of the Rules for anonymity of the Teacher in any published decision(s) of GTC Scotland.

The Teacher stated in his written submission:

.... I believe I am permitted to request a procedural hearing; I would like to do this. I am very conscious that my arguments here are not backed up by any physical evidence but would like the chance to speak to the panel about these circumstances in the hope my request for privacy and anonymity be granted....

The Teacher went on to provide detailed submissions regarding the adverse effect that a hearing in public, and the consequent media and other publicity, was likely to have

[Redacted]

The Teacher also highlighted that he was concerned about the impact renewed adverse publicity might have on his current employment.

The Teacher referred to GTC Scotland’s Privacy and Anonymity Practice Statement which states:

‘The fact that a teacher and his/her family will be distressed by the proceedings being held in public or that a private hearing/anonymity would save him from embarrassment are not sufficient reasons for such an application to be granted’ and stated that ‘words like distress and embarrassment don’t even come close to describing his feelings in this case.

In his final response, the Teacher stated that he believed there to be compelling grounds for the hearing to be heard in private, that the circumstances of his case were unique taking into account

[Redacted]

GTC Scotland’s Presenting Officer’s Submissions (in summary)

The Presenting Officer opposed the Teacher’s Application.

The Presenting Officer directed the Panel to the GTC Scotland ‘Privacy and Anonymity’ Practice Statement (Practice Statement). He submitted that in terms of the Practice Statement, the Panel is asked to consider the terms of Articles 10, 6 and 8 of the European Convention on Human Rights

(ECHR) with Article 10 and Article 6 supporting the default position that the Fitness to Teach process will be held in public in the interests of open justice and to ensure that GTC Scotland is operating in a transparent manner.

The Presenting Officer further submitted that it is also recognised that the publication of the decisions is generally in the public interest, and it is necessary to maintain confidence in GTC Scotland as a professional regulator. He submitted that there are exceptions which include where the protection of the private life of the Parties so requires the hearing to be in private.

The Presenting Officer submitted that, in light of the overarching principles of openness, transparency and fairness which is the reason for the default position that hearings are held in public, the bar for permitting a private hearing and anonymisation of the written decision is set high.

The Presenting Officer accepted that one of the exceptions (consistent with Article 6 of the ECHR) to the default position that all hearings (and written decisions) are public; is where the protection of the private life of the Teacher is engaged.

He submitted that the allegations in question are serious and so to grant the Teacher’s application the Panel would require to decide that the interests of the Teacher outweigh the interests of the public regarding the hearing and the decision being in public. The Presenting Officer submitted that the need to ensure transparency by adopting the default position in respect of this application is in the public interest. The Presenting Officer further submitted that in light of the serious allegations in this case, a public hearing and the publication of the written decision without the Teacher being anonymised, is therefore necessary to maintain the public’s confidence in the teaching profession, to maintain the public’s confidence in GTC Scotland as a professional regulator and to act as a deterrent effect upon other GTC Scotland Registrants. He submitted that any distress or embarrassment that the Teacher may suffer as a result of the hearing decision being made public, does not of itself outweigh the need to maintain the public interest when considering the serious nature of the allegations. In order to grant a privacy application, the Panel must be satisfied that the potential prejudice to the Teacher outweighs the public interest.

The Presenting Officer referred the Panel to the Practice Statement on Health Matters and Medical Evidence (Health Practice Statement) and the stated requirements of the medical evidence provided in support of such applications. He submitted that it states that any medical evidence provided should set out, should include a specific diagnosis; the severity of the conditions(s); what the treatment is; and what the prognosis is, if the order sought is not granted.

The Presenting Officer further submitted that the strength and quality of medical evidence must correspond to the level and seriousness of the matter at issue, hence the weight of evidence required for an application for privacy/anonymity would be higher than that required for an application for a short extension of time to submit evidence for panel consideration.

In conclusion, the Presenting Officer submitted that in light of the overarching principles of openness, transparency and fairness which is the reason for the default position that hearings are held in public, the bar for anonymisation of the written decision is set high and it would be rare where the applications sought by the Teacher, would be granted.

Panel’s Decision (Privacy and Anonymity)

The Panel took account of the Parties’ written and oral submissions as well as all the documentation, the Rules, GTC Scotland’s Privacy and Anonymity Practice Statement and GTC Scotland’s Health Matters and Medical Evidence Practice Statement.

The Panel accepted the advice of the Legal Assessor and noted that this being the Teacher’s application to the Panel, the onus is on the Teacher to satisfy the Panel that the application for privacy and anonymity should be granted.

The Panel noted the Teacher was unhappy that his fitness to teach matter was still ongoing, having commenced in 2017. [Redacted].

The Panel took account of the points raised by the Teacher in support of his application to proceed with the substantive hearing in private and to have anonymity; [Redacted]

The Panel noted that the Rules provide that fitness to teach hearings will be held in public unless there are reasons identified which satisfy the Panel that in the particular circumstances of the case the interests of a teacher outweigh the public interest in having access to the hearing and justice being done, and being seen to be done.

The Panel considered the Teacher’s submissions regarding [Redacted]. The Panel also took account of the Teacher’s specific concerns regarding the likely adverse effect of publicity [Redacted].

The Panel in applying the test as to whether it was in the interests of justice to proceed wholly or partly in private had regard to the Health and Medical Evidence Practice Statement and noted that the Teacher’s submissions were made without the requisite documentary evidence to support his reasons for proceeding in private and with anonymity. It noted that the Teacher submitted that, whilst aware of the need to submit documentation, he had decided not to, [Redacted].

The Panel, having considered the submissions regarding [Redacted], decided that there was insufficient evidence before it to be satisfied that the Teacher’s right to privacy and request for anonymity outweighed the public interest in being permitted access to the hearing. The Panel noted that [Redacted].

The Panel then considered the Teacher’s submission that [Redacted]. The Panel noted that the Teacher sought privacy and anonymity on the basis that his case would be likely to attract a higher than usual level of media interest and publicity, [Redacted].

The Panel was not satisfied that the Teacher’s ground regarding the heightened media awareness including regarding the 8-year delay of this matter coming to a hearing, and his submissions, was a basis to exclude the public and grant the application for privacy and anonymity.

[Redacted]

Whilst the Panel were sympathetic to the Teacher’s situation and his rationale [Redacted], the Panel was not satisfied that the Teacher had provided a basis for the Panel to grant a privacy and anonymity order.

The Panel refused the Teacher’s application for privacy and anonymity.

GTC Scotland's ‘Vulnerable Witness’ Application

The Presenting Officer made an application in terms of Rule 1.7.29 of the Rules to have the following witnesses treated as vulnerable witnesses:

• a. Pupil E
• b. Pupil F

The Presenting Officer submitted that Rule 1.7.29 of the Rules provides that a Panel may, of its own volition or on the application of any party, treat as ‘vulnerable’:

(b) any witness whose quality of evidence is likely to be diminished for any of the following reasons:

iii. the allegation(s) is/are of a sexual and/or violent nature, and he/she is an alleged victim;’

The Presenting Officer referred the Panel to GTC Scotland’s ‘Witnesses & Hearsay Evidence Practice Statement’ and Rule 1.7.30 of the Rules, which state that, provided the Parties have been given the opportunity to make representations on the matter, a Panel may adopt such measures as it considers necessary to enable it to receive evidence from a ‘vulnerable witness’. The Presenting Officer stated that these ‘special measures’ may include but will not be limited to the:

• (a) Use of video links;
• (b) Use of pre-recorded evidence, provided always that such witness is available at the hearing for cross-examination and questioning;
• (c) Use of interpreters; and
• (d) the hearing of evidence in private.

The Presenting Officer submitted that Pupil E and Pupil F should be treated as vulnerable witnesses under Rule 1.7.29 (b) of the Rules. The Presenting Officer submitted that the allegations include allegations of a sexual nature. He submitted that that both Pupil E and Pupil F had expressed concerns about giving evidence in a public setting. The Presenting Officer further submitted that both witnesses had indicated that they do not feel able to engage in the process, and attend the hearing to give evidence, if they are not afforded privacy and anonymity to freely answer questions put to them.

The Presenting Officer submitted that the nature of the allegations is likely to diminish the quality of their evidence if the measures detailed are not implemented.

The Presenting Officer invited the Panel to treat Pupil E and Pupil F as vulnerable witnesses. In relation to necessary measures, the Presenting Officer sought:

• (a) that both witnesses are permitted to give their evidence in private;
• (b) for their names to be anonymised from any written decision arising from the hearing.

The Teacher’s Submission (summary)

The Teacher referred to his written submission. The Teacher submitted that, in relation to Pupil E, there were no allegations of a sexual and/or violent nature and submitted that the witness was not an alleged victim. The Teacher stated that the allegations of a sexual nature, which he denied, concerned Pupil A, not Pupil E.

The Teacher further submitted that Pupil F was not directly involved in any allegations, therefore she could not be treated as a ‘vulnerable witness’ as she was not an alleged victim of anything and especially not in relation to allegations of a sexual and/or violent nature.

The Teacher submitted that he could see no reason for either witness to be treated as vulnerable. The Teacher referred to the Presenting Officer’s application that, “The allegations include allegations of a sexual nature” but stated this was not true regarding any allegations involving Pupil E and Pupil F.

The Teacher stated the witnesses were now women aged 27-28 years old and could see no reason why they should be treated as vulnerable witnesses. The Teacher acknowledged that the witnesses may feel uncomfortable giving evidence, but there was nothing to support that they were either in fear or distress about doing so.

Panel Decision

The Panel took account of the Parties’ written and oral submissions as well as all the documentation, the Rules and the Witness and Hearsay Evidence Practice Statement. The Panel accepted the advice of the Legal Assessor and noted that this being GTC Scotland’s application to the Panel, the onus is on GTC Scotland to satisfy the Panel that the applications for vulnerable witness status and special measures for both Pupil E and Pupil F should be granted.

The Panel had regard to the Rules 1.7.29 and 1.7.30 regarding Vulnerable Witnesses and also referred to the allegations with reference to Pupil E and Pupil F.

It noted that the grounds submitted by GTC Scotland in respect of Pupil E and Pupil F, being vulnerable witnesses, was in terms of Rule 1.7.29(b) iii that ‘the allegation is of a sexual nature, and she is [they are] an alleged victim[s]’. It also noted that in oral submissions GTC Scotland referred also to Rule 1.7.29(b)(iv): ‘fear or distress in connection with giving evidence’. The Panel noted that the amended allegations, as currently drafted in respect of Pupil E and Pupil F, are not allegations of a ‘sexual nature'. Accordingly, the Panel was not satisfied that either Pupil E or Pupil F were eligible to be treated within that definition and therefore eligible to be treated as ‘vulnerable’.

The Panel then went on to consider the other grounds in respect of Rule 1.7.29 regarding ‘any witness whose quality of evidence is likely to be diminished’ for any of the ‘identified reasons’ in Rule 1.7.29 of the Rules, being treated as ‘vulnerable’. It noted that neither Rule 1.7.29 (a) nor Rule 1.7.29(b)i, nor (b) ii was applicable.

The Panel then considered the ground in terms of Rule 1.7.29(b)(iv): fear or distress in connection with giving evidence. The Panel, whilst recognising that attending a hearing to give evidence may be stressful, having considered the submissions and documentation, was not satisfied that there was information before it to allow it to conclude that it would cause a likelihood of either Pupil E’s or Pupil F’s quality of evidence to be diminished from ‘fear or distress in connection with giving evidence’.

Accordingly, the Panel refused GTC Scotland’s vulnerable witness’ application in respect of Pupil E and Pupil F.

Presenting Officer Application for the Admission of Hearsay Evidence

The Panel was asked to consider the Presenting Officer’s hearsay application in respect of the following:

1. The evidence provided by Pupils A-D to [Witness 1] during the course of his investigation and their respective Police Scotland statements to be admitted as hearsay evidence.

The Presenting Officer respectfully invited the Panel to consider the following key principles when considering the application:

• Public Interest - GTC Scotland has a duty to regulate teachers in the public interest and, in so doing, is accountable to the public and the profession for maintaining standards and ensuring that teachers are fit to teach. The protection of children and young people and their educational wellbeing, along with reputation of, and the public trust in, the teaching profession, sits at the heart of GTC Scotland fitness to teach regulation;
• Seriousness of the Allegations - in this case, the allegations are of a serious nature and affect public confidence which merits a full hearing to test the evidence and to determine the credibility and reliability of the evidence;
• Standard of Proof - the standard of proof in fitness to teach hearings is on the balance of probabilities. It is no more and no less than that;
• Admissibility of Evidence - subject to the requirements of relevance and fairness, a Panel may admit oral evidence, documentary or other evidence, whether or not such evidence would be admissible in civil or criminal proceedings in the UK. It will depend upon the facts and circumstances of each particular case; and
• Matter of Weight - the Panel will need to decide at the fitness to teach hearing, the weight to be attached to their evidence.

In his written submission, the Presenting Officer submitted that the overarching responsibility of GTC Scotland is to maintain and improve teachers’ professional standards and protect the public. This key principle should be at the forefront of the Panel’s mind. The Presenting Officer referred to the GTC Scotland Practice to Teach Threshold Policy at page 1, specifically:

‘Our Fitness to Teach procedures are carried out in the public interest which means:

• Protecting the public (in particular, children and young people)
• Maintaining the public’s confidence in teachers and in the integrity of the teaching profession
• Maintaining proper teaching standards
• Maintaining public confidence in the GTCS as a professional regulator’

Admissibility of Evidence

The Presenting Officer referred the Panel to the GTC Scotland Fact Finding in Fitness to Teach in Conduct Cases Practice Statement, specifically page 2 of the guidance, under the heading ‘Admissibility of Evidence’.

Evidence that is “admissible” is what may be lodged for a Panel to consider in determining the case presented.

The Practice Statement sets out that:

Subject to the requirements of relevance and fairness, and upon receiving the advice of a Legal Assessor as appropriate, a Panel may admit at a hearing oral, documentary or other evidence whether or not such evidence would be admissible in court or criminal proceedings in the United Kingdom’. It is clear therefore that a Panel is therefore not bound by the same rules of evidence that apply in court proceedings.

It was outlined in the Presenting Officer’s submission that evidence is ‘relevant’ if it is in some way logically connected to the allegations under consideration. In his submission, the Presenting Officer outlined the documentation which is sought to be admitted is both relevant and connected to the allegations under consideration. However, the Panel needed to consider the requirement of ‘fairness’ and that requires an assessment of whether items of evidence can be fairly relied upon by the Parties seeking to do so and whether in all the circumstances of how the evidence has been obtained would be fair to admit it.

The Presenting Officer referred the Panel to the guidance at the bottom of page 2 of the Practice Statement on Fact Finding in Fitness to Teach Conduct Cases.

A Panel may be presented with a wide range of evidence, some of which provides direct proof of the facts alleged in the complaint and some of which is more circumstantial in nature. For example, a Panel may hear from a witness who speaks directly to the alleged event (e.g. “I saw the assaulted pupil X”) as well as another witness who speaks indirectly to that same event (e.g. “I saw pupil X leaving the scene in a distressed state”). The Panel will need to assess all the evidence in order to make its findings and will often need to consider all of the items of evidence together in carrying out this exercise.

The Presenting Officer further referred the Panel to page 4 of the Practice Statement on Fact Finding in Fitness to Teach Conduct Cases under the heading ‘Hearsay Evidence’.

Hearsay evidence is evidence of what one person says that another person has said to them or to put it another way what somebody else has been heard to say. That evidence is not normally allowed in criminal court proceedings in Scotland but as noted earlier in this Practice Statement, a Panel is not bound by the same rules as applied to such proceedings. Hearsay evidence may therefore be admitted in fitness to teach complaint proceedings, and a Panel may accept it as evidence to use in the fact-finding exercise. If the Panel decides to accept such evidence, it will need to think carefully about what weight should be attached to it with reference to the guidance’

The Panel were referred to the GTC Scotland Practice Statement on Witnesses and Hearsay Evidence at pages 7 and 8.

As a general rule, hearsay evidence may be admissible within regulatory proceedings, including GTC proceedings. However, the decision as to whether the hearsay evidence is or is not admissible will depend on the facts and circumstances of each particular case. The only requirement of evidence is set down in Rule 1.7.17, is that it is relevant and fair. The overriding consideration will be the duty on the Panel to ensure that the proceedings are fair. Some of the factors to be considered are:

• Regard ought to be had to the steps taken to secure the attendance of the witness

• 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 case.

• There is no absolute prohibition on hearsay evidence, even where it is the sole or decisive piece of evidence.

• Fairness is to be considered in the round, having regard to all of the relevant factors.

• If the allegations are of a particularly serious nature then admission of hearsay evidence is subject to heightened scrutiny.

• 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 scrutiny.

• Hearsay is more likely to be admissible where there are good reasons for the non-attendance of a witness. These can be practical reasons (such as the witness being unavailable on the date in question due to a pre-existing commitment). It is the position of the GTCS that this also applies for broader reasons of public interest.

• 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 unfair.

• The absence of the Teacher at the hearing may also be a relevant factor but it is unlikely to be decisive.

• 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 recorded.

Relevant case law on admission of Hearsay Evidence

The Presenting Officer referred to the relevant case law in this area, R (Bonhoeffer) v GMC [2011] EWHC 1585 (Admin), Nursing & Midwifery Council v OgoBonna [2010] EWAC CIV 1216, El Karout v Nursing & Midwifery Council [2019] EWHC 28 (Admin) and the case of Thorneycroft v NMC [2014] EWHC 156 (Admin).

Documentary evidence where witnesses are not attending

The Presenting Officer referred to documentary evidence and how such material should be dealt with where witnesses are not attending, critically, that there is an important distinction between the admissibility of hearsay evidence and the weight to be attached to it. The question on weight is: the evidence having been admitted, what weight will it be given. Page 4 of the Practice Statement on fact finding crucially states that if a Panel is asked to accept the evidence of a witness based on a written statement only and the Panel is satisfied that the witness provided the written statement and it has been accurately recorded, the Rules are clear that they can be regarded as part of the evidence in the case if the Panel determines it can be admitted. A Panel will, however, still have to make determinations about the credibility and reliability of the evidence concerned but that is an issue of weight which can be addressed to the Panel in the Fitness to Teach hearing during closing submissions at stage 1.

The Presenting Officer submitted that where evidence is admitted, the weight attached will depend on other surrounding factors and evidence which relate to the same fact, or facts, which are sought to be proved. Further, the panel may also take account of where a witness is not attending to give oral evidence but where they have, for instance:

• Given prior witness statements – as there is in this case; and
• Given reasons for non-attendance and information regarding the extent of enquires made to have that witness attend.

Application of the Law to the present case

The Presenting Officer submitted that following the outcome of the Teacher’s criminal trial [Redacted], contact was made with Police Scotland to confirm the outcome of the proceedings, and disclosure of relevant documentary evidence.

A response was received dated 24 April 2019, which stated, ‘no criminal prosecution took place in relation to any allegation against [Redacted]. Following a telephone call with Police Scotland’s Data Protection department on or around 30 April 2019, Police Scotland confirmed that the reference to ‘no criminal prosecution’ in their letter was intended that to mean that there was no conviction, and therefore no criminal record. As the outcome of the criminal proceedings did not result in conviction, Police Scotland would not, initially, disclose any documents or information in relation to the criminal proceedings.

Documents in relation to two disciplinary processes have been provided by [Redacted] Council.

A statement was obtained from [Witness 1], dated 3 May 2017. Contact details were not available for Pupil A, B, C or D. [Witness 1] facilitated initial contact with Pupil D. Pupil D then facilitated contact with Pupil A and Pupil B. Numerous attempts have been made in the course of email correspondence between June 2019 and August 2020 to have Pupils A and D engage. In around October 2019, Pupil D advised that neither she nor Pupil A wanted anything to do with the investigation. Despite follow up communication indicating that they were prepared to provide a statement, numerous subsequent attempts to engage with Pupil A and Pupil D have not resulted in their engagement.

Clarification on the allegations considered at Court were sought from, [Witness 1], which highlighted the earlier allegations involving Pupil E which did not form part of the investigation undertaken by [Redacted] Council. [Witness 1] facilitated contact with Pupils E and F, who provided statements and a copy of messages which they had found.

Applying the facts and circumstances of the case to the evidence sought to be admitted, the Presenting Officer submitted:

1. Regard ought to be had to the steps taken to secure the attendance of the witness. Hearsay is more likely to be admissible where there are good reasons for the non- attendance of a witness. Pupils A - D have left school and contact details were not initially available. [Witness 1]  facilitated initial contact with Pupil D by passing her contact details to contact the investigating officer. Pupil D provided contact details for Pupil B. Following initial engagement, Pupil D indicated that neither she nor the other witnesses wished to engage.
   Following further contact in April 2020, Pupil D indicated that she was prepared to provide a statement. Pupil D facilitated contact with Pupil A, who also indicated that she was prepared to provide a statement. Despite numerous emails with Pupils A and D, they have not engaged by providing a statement;
2. If the hearsay is the sole or decisive evidence, careful consideration ought to be given to whether it ought to be admitted - copies of messages between the Teacher and Pupil A were deleted. The hearsay evidence of Pupils A to D taken together are sole and decisive in relation to allegations 1(g) to (i). The hearsay evidence is however from different sources, and it is possible to test the evidence by comparing the content of the signed minutes of meetings with each of the Pupils A to D, and with their police statements. Allegation 1(g) is also similar in character to allegations 1(a) to (e). There is no absolute prohibition on hearsay evidence, even where it is the sole or decisive piece of evidence;
3. If the allegations are of a particularly serious nature, then admission of hearsay evidence is subject to heightened scrutiny – the allegations in this case are particularly serious and sexual in nature;
4. 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 scrutiny – from the responses contained within the papers, the Teacher admits that he exchanged text messages with Pupil A between the periods June 2016 to August 2016. The Teacher admits that he stored Pupil A's contact details on his mobile phone around 1 July 2016 under the name ‘[Redacted]’. The Teacher deleted all of the text messages with Pupil A from his phone. Whilst the Teacher admits there was text message communication, he denies ever receiving or sending to Pupil A any texts which could be considered to be inappropriate or sexual in nature. The content of the deleted messages is therefore in dispute;
5. It is unlikely that it will be fair to admit anonymous hearsay evidence – the hearsay evidence of Pupils A – D is contained in minutes of meetings and police statements which they have signed. The hearsay evidence is not anonymous;
6. Hearsay is more likely to be admissible where it is supported by other pieces of primary evidence. There are no other direct witnesses who speak to the content of the messages set out in the hearsay evidence of Pupils A – D. The nature of the messages is however similar to the nature of the messages exchanged with Pupil E, which are spoken to by primary evidence;
7. The absence of the Teacher at the hearing may also be a relevant factor but it is unlikely to be decisive – the Teacher has provided a response, and it is understood would be attending or represented at a hearing; and
8. The nature and quality of the hearsay evidence will be a key factor in assessing the fairness of admission – the hearsay evidence takes the form of minutes of meetings between the pupils and [Witness 1]. [Witness 1] has provided a statement and will be a witness, who can be cross-examined on the content of the minutes and what was said at the meeting. The minutes have been signed by each of the pupils, indicating that they have reviewed the content for accuracy. In addition, an audio recording of a telephone call between Pupil C and Pupil A discussing the content of the text messages is produced. Further, the Police Scotland statements have been properly recorded by an independent third party conducting a criminal investigation. On the face of it, the quality of the hearsay evidence is therefore good.

The Teacher’s Submission regarding GTC Scotland’s Application for the Admission of Hearsay Evidence

The Teacher referred to his written submission and stated that very serious allegations had been made against him. He stated that all 4 witnesses A, B, C and D had made allegations of some sort in the statements they gave to [Witness 1] in the [Redacted] Council Investigative Report.

The Teacher stated that he has always disputed the allegations and was successful in his appeal against dismissal by [Redacted] Council in November 2016.

The Teacher submitted that since making their statements to [Witness 1] in August/September 2016, the 4 witnesses have not been questioned or challenged about the accuracy of their statements. The Teacher submitted that he found it grossly unfair that for a hearing which will have major implications on him [Redacted], that it is being proposed that none of the witnesses mentioned need attend the hearing to give evidence.

The Teacher quoted the Presenting Officer’s application in relation to Rule 1.7.17:

If the hearsay evidence 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 case.

The Teacher submitted that this evidence is the only evidence offered in the case against him regarding allegations made in 2016 and couldn’t see how he could get a fair hearing if the witnesses could not be cross-examined.

The Teacher continued to refer to the Presenting Officer’s application and the Witness and Hearsay Practice Statement:

If the allegations are of a particularly serious nature, then the admission of hearsay evidence is subject to heightened scrutiny.

The Teacher submitted that the allegations are of a serious nature and the witnesses should be present to explain why allegations were made.

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 scrutiny.

The Teacher submitted that he had argued previously that the witnesses’ testimony wasn’t true. He stated that much of what is presented is already hearsay evidence, and there is now a scenario of hearsay evidence being the only evidence in this case.

The Teacher stated that he also raised concerns with [Redacted] Council about the way in which their investigation took place and submitted evidence to show that statements were sent to [Redacted] Council to be amended before being added into the Investigative Report. The Teacher referred to witness statements and emails from 4 teachers at [Redacted] who had their statements sent to “[Redacted]” to be amended. These are headed Appendix 4 – Appendix 9 as part of his appeal to [Redacted] Council. The Teacher submitted that witness statements were signed by Pupils A-D, days, even weeks after the date of interview and it was his belief these statements were also ‘amended’ by someone at [Redacted] Council. The Teacher submitted that these factors cast major doubt on the statements provided by witnesses A, B, C and D and the integrity of those statements. The Teacher submitted that if the witnesses could not be questioned on the content of their statements, there must be significant doubt about admitting these as hearsay evidence.

Hearsay is more likely to be admissible where there are good reasons for the non-attendance of a witness’

The Teacher submitted that there had been attempts to contact witnesses A, B, C and D but they appeared unwilling to take part in proceedings. They have been given opportunity to make statements but haven’t done so and that this does not appear to be a good reason for nonattendance.

Hearsay is more likely to be admissible where it is supported by other pieces of primary evidence.

The Teacher submitted that there were no other pieces of primary evidence. The Teacher disagreed with the Presenting Officer that the nature of messages sent to pupils were similar and were all being disputed by him.

The nature and quality of the hearsay evidence will be a key factor in assessing the fairness of admission.

The Teacher submitted that the statements provided by Pupils A-D were contradictory and the allegations raised by Pupils B-D came from things that someone else told them and were denied by Pupil A.

The Teacher further submitted that he had previously raised concerns about the way [Witness 1] conducted his investigation. He submitted that he had concerns that he is being called as a witness to talk about someone else’s evidence when the integrity of the investigation is being disputed. The Teacher submitted that the Presenting Officer said that the statements ‘were signed by each of the pupils, indicating that they have reviewed the content for accuracy’. The Teacher submitted that, in his case, [Witness 1] met him in a supermarket car park where he quickly read over the statement and was told, ‘Just sign it, if there’s anything you’re not happy with you can bring it up at your disciplinary hearing’.

The Teacher submitted that this did not give him confidence in any statement from [Witness 1] investigation.

The Teacher concluded that for the aforementioned reasons, and with regard to GTC Scotland’s Rules and practice statement, the hearsay evidence should not be admitted.

Panel’s Decision (on GTC Scotland’s Admission of Hearsay Application)

The Panel took account of the Parties’ written and oral submissions as well as all the documentation, the Rules and the Witness and Hearsay Evidence Practice Statement.

The Panel accepted the advice of the Legal Assessor and noted that this being GTC Scotland’s application to the Panel for the admission as hearsay, (i) the hearsay evidence of Pupils A, B, C & D, made to [Witness 1] during the course of his investigation and (ii) Pupils A, B, C & D’s respective Police Scotland statements, the onus is on GTC Scotland to satisfy the Panel that this application should be granted.

The Panel noted that the Teacher had been subject of a police investigation [Redacted] and was charged [Redacted]. In the course of the police investigation, a number of witness statements were formally recorded including from Pupils A, B, C and D.

The Panel also acknowledged that a disciplinary investigation had been conducted by the local authority and a number of statements had been recorded from pupils.

The Panel acknowledged that in regulatory proceedings, the civil test is applied regarding the standard of proof of evidence, which is ‘on the balance of probabilities'. Whereas in a criminal trial, the higher test for evidence is applied, which is ‘beyond reasonable doubt.’

The Panel had regard to Rule 1.7.17 which states that subject to the requirements of relevance and fairness, a Panel may admit oral, documentary or other evidence, whether or not such evidence would be admissible in civil or criminal proceedings in the United Kingdom.

The Panel considered the fairness of the hearsay application in accordance with the Witness and Hearsay Evidence Practice Statement, and specifically to the following points:

• Regard ought to be had to the steps taken to secure the attendance of the witness.
• 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 case;
• There is no absolute prohibition on hearsay evidence, even where it is the sole or decisive piece of evidence;
• There is no absolute right to cross-examine witnesses in disciplinary proceedings.
• Fairness is to be considered in the round, having regard to all of the relevant factors.
• If the allegations are of a particularly serious nature, then admission of hearsay evidence is subject to heightened scrutiny;
• 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 scrutiny;
• It is unlikely that it will be fair to admit anonymous hearsay evidence;
• Hearsay is more likely to be admissible where there are good reasons for the non- attendance of a witness. These can be practical reasons (such as the witness being unavailable on the date in question due to a pre-existing commitment). It is the position of the GTCS that this also applies for broader reasons of public interest;
• 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 unfair.
• The absence of the Teacher at the hearing may also be a relevant factor but it is unlikely to be decisive; and
• 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 recorded.

In considering the hearsay application, the Panel acknowledged that the allegations in the Teacher’s case were very serious. The allegations refer to the Teacher allegedly texting three separate pupils (A, E, F) in breach of professional standards and boundaries, and, in relation to Pupil A, alleged texts of a ‘sexual nature’.

The Panel noted the attempts made by GTC Scotland to secure the engagement and attendance of the witnesses (Pupils A to D) and were satisfied that reasonable attempts had been made to secure their attendance. The Panel, whilst not presented with the reasons for the witnesses non engagement, were satisfied of their likely non-attendance. The Panel noted that GTC Scotland’s current position is that it does not intend to compel the witness attendance of Pupils A to D.

The Panel was content that the evidence of Pupils A to D, was not, individually, the sole and decisive evidence in the case and came from different sources. The Panel recognised that the Teacher disputed the contents of the statements and acknowledged the issues of fairness raised by the Teacher in terms of the opportunity to cross examine witnesses.

However, the Panel noted that there was no absolute right to cross examine witnesses and, in relation to the disciplinary investigation statements, [Witness 1] would be a witness who could be cross examined in relation to the accuracy and integrity of those statements. The Panel noted that the police statements had been formally recorded and signed in the course of the criminal investigation and were satisfied that the overall weight of any hearsay evidence could be fairly considered and assessed by a future Panel accordingly.

After consideration, the Panel were satisfied that the pupils’ hearsay evidence was relevant and, in the round, would be fair to admit into the proceedings.

Having considered the Parties’ submissions and applying the Witness and Hearsay Practice Statement, the Panel allowed the Presenting Officer’s application for the admission of the hearsay evidence..