Panel Meeting - Admissibility Application - Teacher J

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:

Application from the Presenting Officer for hearsay evidence to be admitted.

The Presenting Officer is applying for the following documents to be admitted, as evidence, in respect of the Full Hearing:

• Police Scotland interview transcript in respect of Pupil B
• Police Scotland interview transcript in respect of Pupil C
• Police Scotland interview transcript in respect of Pupil D

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 meeting:

1. Presenting Officer application - Admissibility, dated 18 October 2024
2. Teacher Response to Presenting Officer’s application, dated 30 October 2024; with appendices: -
   
   • a. Teacher appendix 1. R (Bonhoeffer) v GMC [2011] EWHC 1585 (Admin)
   • b. Teacher Appendix2. El Karout v Nursing & Midwifery Council [2019] EWHC
   • c. Teacher Appendix3. Thorneycroft v NMC [2014] EWHC 1565 (Admin)
3. Presenting Officer Final Response and appendices, undated: -
   
   • a. Steps taken to obtain evidence (appended to Final Response)
4. Teacher Final Response to Presenting Officer application, dated November 2024
   
   • a. Teacher Final Response accompanying document – R Horncastle [2010] 2 A.C.373
5. 5. [Redacted]-Parties Case Papers

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.

Decision

The Panel had regard to the GTCS Fitness to Teach Rules 2017 at rule 1.7.17:

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 also had regard to the GTCS Witness and Hearsay Evidence Practice Statement of 2019.

The Panel considered the Presenting Officer’s application and the Teacher’s response and submissions on the matter raised.

Admissibility of Written Police Evidence for Pupil B

The Panel considered the written police evidence of Pupil B that the Presenting Officer would intend be admitted as hearsay. In their final response the Presenting Officer says of Pupil B that:

…Pupil B responded by email on 25 January 2023 stating that she did not feel comfortable providing a statement and that she had managed to move on and put it all behind her. She further stated that she was not comfortable with the idea of giving evidence in a hearing that could be heard in public in the future…

The Panel discussed and considered that Presenting Officer could have and should have taken further steps to secure the witness’ attendance by exploring the reasons for the witness’s reluctance and possible measures to address these.

The Panel read the written police evidence. The Panel also had regard to what evidence in respect of Pupil B the Presenting Officer has asked to be considered for admission as hearsay, where they have described it as: Police Scotland interview transcript in respect of Pupil B

The Panel was concerned that the police evidence relating to Pupil B was not an interview transcript. Rather, it is a witness statement. By contrast, with the written police evidence relating to Pupils C and D, which are in the form of interview transcripts, the witness statement relating to Pupil B gives no indication regarding what, if any, questions the police interviewer or statement-taker asked of the witness, nor of the nature of any such questions, including whether they might have been leading, nor any indication as to whether the statement is in the witness’s own words, or whether instead it has been, in effect, filtered through the mind of the police officer.

Although the Panel could not find any interview transcript relating to Pupil B in the bundle, the Panel understood that not all police statements obtained from children were necessarily recorded in a ‘question and answer’ interview style or in circumstances where a transcript would be produced. The Panel was satisfied that evidence from children is sometimes recorded on conventional police statement forms, taken by a police officer and signed by the witness and is normal, accepted practice. The police statement provided by Pupil B was signed.

However, the Panel was concerned that they were being asked to consider a piece of evidence, the ‘Police Scotland Interview Transcript in respect of Child B’, that could not be confidently referred to.

The Panel went on to discuss and consider the overall fairness of admitting Pupil B’s police

statement. The Panel had regard to the ‘factors to be considered’ outlined in the Witnesses and Hearsay Evidence Practice Statement and concluded that, despite their being no absolute right to cross examine witnesses in GTC Scotland proceedings, it would nonetheless be unfair in these circumstances not to afford the Teacher the opportunity to test or challenge the witnesses’ evidence.

The Panel decided to refuse the application to admit Pupil B’s police evidence for the reasons that it was not satisfied with the full attempts to secure the witnesses attendance, that the evidence it was being asked to consider was not properly referred to and, if the application related to the police statement of Pupil B, that it would be unfair, in the round, to admit it.

Admissibility of Written Police Evidence for Pupil C

The police evidence of Pupil C that the Presenting Officer would intend to be admitted as hearsay was considered by the Panel. The Panel also considered the Presenting Officer’s submissions regarding GTC Scotland’s attempts to secure Pupil C as a witness and them not responding to GTC Scotland correspondence.

In respect of Pupil C’s police interview transcript, the Panel discussed and considered the Presenting Officer’s application for the admission of this evidence as hearsay, and the Teacher’s response. The Panel had regard to the ‘factors to be considered’ outlined in the Witnesses and Hearsay Evidence Practice Statement.

In particular, the Panel had concern for:

Hearsay is more likely to be admissible where there are good reasons for the non-attendance of a witness [etc]. With regard to Pupil C, the Panel noted that, as she did not respond at all, it could know nothing of her reasons. By contrast, the Panel noted that she had been able to make herself available to attend the Teacher’s criminal trial.

Also:

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.

Whilst acknowledging that Pupil C’s evidence potentially relates to a pattern of behaviour on the Teacher’s part, nonetheless, the Panel noted that, insofar as she alleges a complaint regarding the Teacher’s behaviour towards her personally, it is the only direct evidence thereof.

Also:

It is unlikely that it will be fair to admit anonymous hearsay evidence.

Here, the Panel noted that Pupil C’s evidence contains an anonymous element, where she is recorded as having said:

…I've heard stuff but [Redacted]…

The Panel discussed the seriousness of the allegations and the requirement for heightened scrutiny for admitting such evidence as hearsay. The Panel was concerned that, although there was no absolute right to cross examine witnesses in GTC Scotland proceedings, the Teacher would not be afforded the opportunity to test or challenge this witness’s evidence which is disputed by the Teacher.

By reason of its foregoing concerns, and on balance with the factors made out in the Practice Statement, the Panel concluded that it would not be fair, in the round, to admit Pupil C’s interview transcript in the circumstances of this case, and that being so, the Panel decided to refuse the application insofar as relating to Pupil C’s evidence.

Admissibility of Written Police Evidence for Pupil D

The written police evidence that the Presenting Officer would intend be admitted as hearsay was considered by the Panel. The Panel also considered the Presenting Officer’s submissions regarding GTC Scotland’s attempts to secure Pupil C as a witness and them not responding to GTC Scotland correspondence.

In respect of Pupil D’s police interview transcript, the Panel discussed and considered the Presenting Officer’s application for the admission of this evidence as hearsay, and the Teacher’s response. The Panel had regard to the ‘factors to be considered’ outlined in the Witnesses and Hearsay Evidence Practice Statement.

In particular, the Panel had concern for:

Hearsay is more likely to be admissible where there are good reasons for the non-attendance of a witness [etc] With regard to Pupil D, the Panel noted that, as she did not respond at all, it could know nothing of her reasons. By contrast, the Panel noted that she has been able to make herself available to attend the Teacher’s criminal trial.

Also:

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.

Whilst acknowledging that Pupil D’s evidence potentially relates to a pattern of behaviour on the Teacher’s part, nonetheless, the Panel noted that, insofar as she alleges a complaint regarding the Teacher’s behaviour towards her personally, it is the only direct evidence thereof.

Also:

It is unlikely that it will be fair to admit anonymous hearsay evidence.

The Panel noted that Pupil D’s evidence contains an anonymous element, where she is recorded as having said:

…I had heard that [Redacted]…

The Panel discussed the seriousness of the allegations and the requirement for heightened scrutiny.

The Panel were again concerned that, although there was no absolute right to cross examine witnesses in GTC Scotland proceedings, the Teacher would not be afforded the opportunity to test or challenge this witness’s evidence which is in dispute.

By reason of its foregoing concerns, and on balance with the factors made out in the Practice Statement, the Panel concluded that it would not be fair, in the round, to admit Pupil D’s interview transcript in the circumstances of this case, and that being so, the Panel decided to refuse the application insofar as relating to Pupil D’s evidence.