Panel Consideration Meeting - Virtual hearing and Vulnerable Witness Application - John Kerr

Definitions

Any reference in this decision to:

• ‘GTC Scotland’ means the General Teaching Council for Scotland;
• the ‘Panel’ means the Fitness to Teach Panel considering the case; and
• the ‘Rules’ (and any related expression) means the GTC Scotland Fitness to Teach Rules 2017 or refers to a provision (or provisions) within them.  

Background

The Procedural Meeting was arranged to consider the following:

An application made by the Presenting Officer for a virtual Full Hearing; and

An application made by the Presenting Officer for Pupil B to be treated as a vulnerable witness, and to be permitted to give their evidence in private and their name be anonymised from any written decision arising from the hearing.

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:

The presenting officer’s application

Email to the Teacher and delivery receipt

Preliminary Matters

The Panel carefully considered the terms of Rule 2.5.1:

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

(a) determine any interim or preliminary matter that has arisen in the case;

(b) resolve any issues of law; or

(c) consider an application for a case to be cancelled.

Unless a party has (in the relevant application) requested that a procedural hearing be held or a Panel considers that such a hearing is necessary in the particular circumstances, the above matters will be considered by a Panel at a meeting based on the written representations made by the parties in compliance with case management directions set for this purpose.  

The Panel noted that the Teacher had not provided a response to the Presenting Officer’s Applications. An email was sent to the Teacher, via his Representative, notifying him of the Applications and the case management discussion. The Presenting Officer’s Applications were received by the Teacher on 12 November 2024. The Teacher’s Representative was sent the Applications and responded on 3 December 2024 but provided no submissions. The Servicing Officer followed up with the Teacher’s Representative on 11 December 2024 but no submissions were sent by the Teacher’s Representative. The Panel decided that the Teacher had had notice of the Applications in terms of the Rules.

The Panel noted that neither of the Parties requested a procedural hearing to take place with the parties present. Further to this, the Panel considered that a procedural hearing was not necessary. Therefore, the Panel proceeded to consider the matter on the papers.  

Virtual Hearing Application

Background  

By default, GTC Scotland conducts all its fitness to teach hearings in person in its dedicated Hearings Suite at its office in Edinburgh. However, in line with Rule 1.7.6, a Fitness to Teach Panel may order that all or any part of a hearing may be conducted by the use of electronic communications provided the method adopted allows the parties, the Panel and any witnesses to attend remotely, and, where the hearing is in public, allows the public to view proceedings.

Electronic communications are commonly used for witnesses to give evidence by participating from a remote location. In addition, an entire hearing may be conducted via electronic communication. Such a hearing is described as a ‘virtual hearing’.

An application for use of electronic communications in relation to a participant taking part in a hearing from a remote location or for a virtual hearing is made by the party who wants to use electronic communication. In certain cases, a proposal is made by GTC Scotland. The relevant procedure and criteria for determining such applications are set out in the Use of Electronic Communications in Hearings Practice Statement.

Application

An application dated 12 November 2024 for a virtual hearing was made by the Presenting Officer. The Panel considered the application and submissions made in response which addressed, in particular, the following factors:

• Is the Teacher represented?

The Teacher is represented.

• Does the Teacher have any particular needs or vulnerabilities?

The Panel was not made aware of any particular needs or vulnerabilities in respect of the Teacher.

• How will the Teacher and Representative, if any, communicate during the hearing?

It is a matter for the Teacher and his Representative as to how they will communicate during the hearing.

• The nature of the proceedings and issues to be determined at the hearing?

The hearing will be a full hearing at Stage 1 as the allegations are not admitted.

• The estimated length of the hearing?

The hearing is estimated to last 4 or 5 days.

• The extent and complexity of the issues in dispute?

There are factual disputes between the parties but the issues are not overly complex.

• Will the hearing take place in public or (partly) in private?

The hearing is likely to take place in public.

• The volume of documentation to be referred to during the hearing and how documentation will be provided to witnesses for reference, if required?

The volume of documentation to be referred to during the hearing amounts of 73 page and ‘Mini’ evidence bundles containing any documentation parties wish to direct witnesses to will be collated and emailed to witnesses immediately before they are due to give evidence.  

• The nature of witnesses to give evidence at the hearing?

The witnesses are professional witnesses and pupils who are likely to be comfortable using electronic communication to give evidence at the hearing. The Panel did not have specific timings for each witness. If any of the witnesses have specific vulnerabilities, then measures can be put in place whether the hearing is in person or virtual.

• How long is each witness estimated to give evidence for?

It is anticipated that witnesses will be expected to give evidence for no more than 1-1.5 hours.

• Will all participants at the hearing have access to a suitable electronic device?

It is envisaged that all participants will have access to a suitable electronic device. GTC Scotland are able to carry out test calls ahead of the hearing if required.

• Will all participants have a suitable internet connection capable of coping with the requirements of a virtual hearing?

It is envisaged that all participants will have a suitable internet connection. GTC Scotland are able to carry out test calls ahead of the hearing if required.

• Will all participants have an appropriate location from where they can participate alone and undisturbed?

It is envisaged that all participants have an appropriate location from which they can join the hearing. In guidance issued to all participants, GTC Scotland make it clear that parties and witnesses must be in a private location where they can be alone and will not be disturbed.

• How easily the Panel will be able to assess the credibility and reliability of witnesses

The Panel did not think that assessing issues of credibility and reliability of witnesses would be affected by either a virtual or in person hearing.

Decision

The Panel appreciated that it should balance all of the relevant factors outlined above, the interests of the parties and the public interest in deciding whether or not to grant the Application.

The Panel carefully considered the Application and submissions made in response to it. The Panel had regard to the Rules and to the Use of Electronic Communications in Hearings Practice Statement as well as the advice, as required, of the Legal Assessor and Servicing Officer.

The Panel decided that the balance of the various factors and interests to be assessed in determining the Application weighed in favour of granting the Application made.

The Teacher was given the opportunity to respond to the Application, but elected not to set out his views on a virtual hearing. However, given the information the Panel have, as set out above, the Panel did not think that a virtual hearing would be less fair than an in person hearing for both parties. Further, a virtual hearing might make it easier for witnesses and the Teacher to participate in the hearing.

Accordingly, the Panel granted the Application for the hearing to take place virtually.

Vulnerable Witness Application

Decision

The Panel decided to grant the Vulnerable Witness Application in respect of Pupil B. The Application sought to have Pupil B give their evidence in private and for their name to be anonymised from any written decision arising from the hearing so that Pupil B could not be identified. The Teacher did not respond to this Application.

In reaching its decision the Panel took into account the GTC Scotland Witnesses and Hearsay Evidence Practice Statement and Rule 1.7.29 which 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 and/or where the quality of the evidence is likely to be diminished for a variety of reasons including that they are the alleged victim of behaviour of a sexual and/or violent nature.

The Panel noted that the allegations regarding Pupil B were of a sexual nature. The Panel decided that if Pupil B was not granted vulnerable witness status and therefore not given anonymity and made to give evidence in public, that the quality of Pupil B’s evidence was likely to be diminished. The Panel therefore granted the Vulnerable Witness Application in respect of Pupil B to allow their evidence to be given in private and for Pupil B’s name to be anonymised during the hearing.  

The Panel noted that the Application also requested that Pupil B’s were to be anonymised in the public version of the full hearing decision.The Panel noted that anonymising Pupil B’s name from any decision published by GTC Scotland is in line with the ordinary position set out in the GTC Scotland Fitness to Teach Publication Policy which seeks to prevent the identification of pupils or students, and therefore considered this part of the Application redundant.