Panel Consideration Meeting - Vulnerable Witness, Privacy and Anonymity Applications - Teacher D

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 GTCS Fitness to Teach Rules 2017 or refers to a provision (or provisions) within them.

Background

The Procedural Meeting was arranged to consider the following:

• Teacher’s Vulnerable Witness Application, Privacy Application and Anonymity Application; and
• Presenting Officer’s Privacy Application and Anonymity Application.

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:

1. Teacher’s Vulnerable Witness Application, undated, with appendices including:
   
   • Clinical Psychology Report, dated 3 July 2024
   • Crime recording sheet, undated
2. Teacher’s Privacy Application; and Teacher’s Anonymity Application, dated July 2024, with appendices including:
   
   • Clinical Psychology Report, dated 3 July 2024  
3. Full Panel Consideration Papers, undated
4. Presenting Officer’s Privacy and Anonymity Application; and Presenting Officer’s response to the Teacher’s Applications, dated 29 July 2024
5. Email Correspondence from Presenting Officer to the Teacher’s Representative and the Servicing Officer, confirming his response to the Teacher’s applications, dated 29 July 2024
6. Further Response from Teacher to Teacher’s Applications, and Response to Presenting Officer’s Applications, dated 5 August 2024
7. Confirmation from Presenting Officer of no further response, dated 5 August 2024
8. Virtual Hearing Decision Annex, dated 22 May 2024

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 neither of the Parties requested the procedural hearing in the submissions made. Further to this, the Panel considered that a procedural hearing was not necessary. Therefore, the Panel proceeded to consider the matter on the papers.

Overview of Decision-Making

The Panel noted the terms of the allegations in their current form as appearing in the GTCS notification of panel consideration, dated 12 April 2023, and sent by email to the Teacher’s solicitors, Balfour + Manson LLP (pp.256-258 of the panel papers):

1. On dates between 1 January and 31 August 2018 inclusive, whilst employed as a teacher by [redacted] at [redacted], the Teacher did:
   a) exchange messages via [redacted] app with Pupil A;
   b) exchange messages via [redacted] app with Pupil A;
   c) Carry out the behaviour at allegations 1(a) and 1(b) in the knowledge that Pupil A was an S4 pupil at [redacted].
2. On 13 January 2016, whilst employed by [redacted] as a probationary teacher at [redacted], the Teacher did, during school hours and within the school premises:
   a) take a photograph of himself naked; and
   b) take multiple photographs of himself in a state of undress.
3. The Teacher’s actions at allegation 1 were sexually motivated.

And in light of the above it is alleged that the Teacher’s fitness to teach is impaired and he is unfit to teach as a result of breaching Parts 1.2, 1.3 and 1.6 of the GTCS Code of Professionalism and Conduct (COPAC) 2012.

The Panel also noted that the overall background narrative also entailed allegations by the Teacher against Pupil A, that, in essence, Pupil A inappropriately accessed and used images of the Teacher of a private and sensitive nature.

The Panel also noted the terms of the clinical psychology report by Dr [redacted] M.A.(Hons), D.Clin.Psych., C.Psychol., dated 3 July 2024 (p.8 forwards & p.43 forwards of the panel papers), which was submitted in support of all three of the Teacher’s applications, those being his vulnerable witness application, his privacy application, and his anonymity application. The Panel was satisfied that Dr [redacted] evidence met the requirements of the GTCS Health Matters & Medical Evidence Practice Statement.

Decision - Teacher’s Vulnerable Witness Application

The Teacher applied for vulnerable witness status (in accordance with rule 1.7.29(b)), and for permission to give his evidence by means of video link (the measure sought in accordance with rule 1.7.30(a)). The Panel decided to grant that application in both its parts.

The Panel had regard to the GTCS Fitness to Teach Rules 2017 at rules 1.7.29-1.7.30, and to the GTCS Witness and Hearsay Evidence Practice Statement. The Panel was satisfied that, in terms of Dr [redacted] said report, without vulnerable witness status and the special measure sought, the quality of the Teacher’s evidence would be likely to be diminished because he has a mental disorder (rule 1.7.29(b)(i)). The Panel noted, in particular, para.7.4.2 of Dr [redacted] report:

…in my opinion it is highly likely that seeing or hearing this pupil at the forthcoming GTCS proceedings will cause [redacted] significant anxiety and will trigger a further trauma reaction in him. Such circumstances are likely to make it difficult for [redacted] to attend and to participate effectively in the proceedings…

The Panel noted that the Teacher’s [redacted] is [redacted] and included [redacted].

The Panel also noted that rule 1.7.29(b) subparagraphs (iii), i.e. that the allegations are of a sexual nature, and (iv), i.e. fear and distress in connection with giving evidence, were also apt to be engaged.

Decision Teacher’s Application for Privacy

The Teacher also applied for an order requiring that the hearing be held in private. The Panel decided to grant this application.

The Panel had regard to the GTCS Fitness to Teach Rules 2017 at rule 1.7.3, to the GTCS Privacy & Anonymity Practice Statement, and to Arts.6, 8 and 10 of the ECHR:

Art.6, Right to a Fair Trial

1. In the determination of his/her civil rights and obligations or of any criminal charge against him/her, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice… [etc]

Art.8, Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Art.10, Freedom of Expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises… [etc]

The Panel was satisfied that, in terms of Dr [redacted] said report, it would be in the interest of justice that the hearing be held in private, where the particular circumstances of the case outweigh the default public nature of such a hearing (rule 1.7.3). Here, the Panel noted paras.7.2.1-7.2.5 of Dr [redacted] report.

Decision - Teacher’s Application for Anonymity

The Teacher also applied for an order requiring anonymisation of the eventual decision to be issued upon determination following the hearing. The Panel had regard to the same rules and other materials as stated above under reference to the Teacher’s privacy application, and to the same paragraphs of Dr [redacted] report.

In order to avoid identification of the Teacher, and in the interests of justice, as said, the Panel decided to grant anonymity by restricting disclosure in the decision of the following:

• The Teacher’s name
• The Teacher’s GTCS registration number
• Any username used by the Teacher in digital media
• Any email addressed used by the Teacher
• All IP addresses
• The names of any schools where the Teacher has taught
• The names of any local authority areas in which the Teacher has taught
• The names of the social media platforms, [redacted] and [redacted]

In granting this application, the Panel acknowledged that there was more than just a possible risk that if the Teacher, school, Local Authority etc was identified, then it would be possible to identify Pupil A.

Decision - Presenting Officer’s Application for Privacy

The Panel noted the Presenting Officer’s application for an order requiring that Pupil A’s evidence be heard in private, and the Presenting Officer’s position in respect of the Teacher’s application for an order requiring that the hearing be held in private. Given the Panel’s foregoing decision on the Teacher’s application, it was not necessary to determine this application by the Presenting Officer per se. If the entire hearing is to be held in private, then Pupil A’s evidence shall be heard in private in any event.

Decision - Presenting Officer’s Application for Anonymity of Pupil A

For the sake of completeness and the avoidance of any doubt, the Panel granted this application. The anonymity application granted to the Teacher in this case serves to prevent Pupil A from being identified either directly or indirectly.