Procedural Hearings – Case Cancellation/Vulnerable Witness/ Evidence Applications – Iain Weir

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

Fitness to teach proceedings have been initiated against the Teacher. The allegations relate to alleged sexual activity between the Teacher and Pupil A between 1994 and 1995.

The Procedural Hearing was arranged to consider the following applications:

• Applications made by the Presenting Officer, namely:
  • A Vulnerable Witness Application; and
  • An application for police statements to be used as evidence in chief.
• A Case Cancellation application submitted by the Teacher’s Representative.

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:

Evidence

1. Email containing Presenting Officer’s Application, dated 11 November 2022
2. Presenting Officer’s Vulnerable Witness Application and Application to use Police Statements as Evidence in Chief
3. Response to Presenting Officer’s Applications, dated 3 December 2022
4. Email from Representative containing further detail regarding response to Presenting Officer’s submissions, dated 8 December 2022
5. Email from Representative containing Case Cancellation Application and supporting documents, dated 2 December 2022
6. Case Cancellation Application with the following supporting documents:
   • Letter from Teacher to [redacted] resigning from position, dated 16 December 2016
   • Letter from Rector at St Columba’s School to Teacher accepting resignation, dated 16 December 2016
   • Letter from [redacted] to Ken Muir, Chief Executive GTC Scotland, dated 20 November 2017
   • Letter from GTC Scotland to Teacher re Annual Registration, dated 9 May 2018
   • Letter from GTC Scotland to Teacher re annual registration fee for April 2018 – March 2019, undated but with note saying it arrived on 11 June 2018
   • Email chain between Regulation Services at GTC Scotland and Teacher regarding removal from Register, dated 20 – 26 June 2018
   • Extract from The Public Services Reform (General Teaching Council for Scotland) Order 2011
   • Email containing Presenting Officer’s response to Case Cancellation Application, with supporting documents, dated 15 December 2022
7. Presenting Officer’s Response with the following supporting documents:
   • Extract of the Registration and Standards
   • The General Teaching Council for Scotland Fitness to Teach Rules 2017
   • GTC Scotland Case Cancellation Practice Statement
   • Notice of Procedural Hearing, dated 14 and 15 December 2022 with cover email and delivery receipt
   • Panel Meeting Decision regarding applications for anonymity and privacy in relation to the Procedural Hearing, dated 21 October 2022

Case Management Papers

1. Email with Initial Case Management Directions and delivery receipts, dated 28 October 2022
2. Case Management Directions, dated 28 October 2022
3. Submissions received from Presenting Officer, dated 11 November 2022
4. Email from Servicing Officer to Presenting Officer confirming receipt and reminder to Representative, dated 11 November 2022
5. Chaser Email from Servicing Officer to Representative, dated 16 November 2022
6. Email from Representative to Servicing Officer in response to chaser, dated 17 November 2022
7. Email update from Representative to Servicing Officer, dated 30 November 2022
8. Email from Servicing Officer to Representative final deadline and receipts, dated 1 December 2022
9. Email from Representative to Servicing Officer responding to final deadline, dated 1 December 2022
10. Email from Representative to Servicing Officer asking to resend papers, dated 2 December 2022
11. Email from Servicing Officer to Representative confirming papers resent, dated 2 December 2022
12. Email from Representative to Servicing Officer, dated 2 December 2022
13. Email from Representative containing Case Cancellation Submissions, dated 2 December 2022
14. Email from Representative containing response to Presenting Officer’s Submissions, dated 3 December 2022
15. Email from Servicing Officer asking for further detail regarding response to Presenting Officer’s submissions, dated 5 December 2022
16. Email from Representative containing further detail regarding response to Presenting Officer’s Submissions 8 December 2022
17. Email from Servicing Officer on how to proceed with Procedural Hearing, dated 8 December 2022
18. Email from Representative confirming happy to proceed, dated 8 December 2022
19. Email from Presenting Officer confirming happy to proceed, dated 8 December 2022

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:

• determine any interim or preliminary matter that has arisen in the case;
• resolve any issues of law; or
• consider an application for a case to be cancelled.’

The Panel were content to consider the applications submitted by the Presenting Officer and the Teacher’s Representative mentioned above. At the outset of the hearing, parties were invited to advise the Panel of any further preliminary matters arising. The Servicing Officer noted that additional papers were submitted by the Teacher’s Representative on 3 January 2023 and asked whether a late papers application would be made.

The Teacher’s Representative advised that there was no application to recognise the late papers, which relate to the health of the Teacher. It was no longer the Teacher’s intention to rely on ill-health as a ground supporting the case cancellation application.

The Teacher’s Representative raised a separate preliminary matter. The case cancellation application was provided to GTC Scotland at 5.04 pm on 2 December 2022, 4 minutes after the extended deadline for receipt. The explanation provided was pressure of business. The Teacher’s Representative invited the Panel to receive the case cancellation application, albeit late. The Presenting Officer did not oppose late receipt.

The Panel considered the submissions from the parties and the legal advice provided. The Panel was satisfied with the reason provided by the Teacher’s Representative for the late submission of the case cancellation application. The Panel granted the application to receive the case cancellation application although late, in line with Rule 1.3.5. Parties had provided written submissions in advance of the hearing and Parties were also given the opportunity to provide oral submissions at the hearing before the Panel retired to consider all matters.

Case Cancellation Application

The Panel first considered the Case Cancellation application.

Submissions on behalf of the Teacher

The Teacher’s Representative lodged a written application together with supporting documents on 2 December 2022. The application was supplemented with oral submissions. The Panel was invited to disregard the section of the written application relating to the health of the Teacher on the basis that it was no longer insisted upon as a ground of the application.

The Teacher’s Representative advanced the application on two grounds: (i) procedural irregularity and (ii) error of law.

In relation to procedural irregularity, the Teacher’s Representative submitted that the Teacher had an expectation that he would be removed from the Register. The sequence of events was outlined for the benefit of the Panel. By letter dated 16 December 2016, the Teacher intimated his intention to resign from his teaching post in June 2017. In January 2017, he was suspended from his post following the instigation of criminal proceedings against him. The Teacher’s Representative submitted that it was around this time that a referral to GTC Scotland was made. On 15 November 2017, the criminal proceedings ended in an acquittal following a successful no case to answer

submission. In June 2018, the Teacher asked that his name be removed from the Register, but GTC Scotland refused to do so.

The Teacher’s Representative submitted that GTC Scotland acted ultra vires (beyond its powers) by refusing the Teacher’s request for removal from the Register. The Teacher was said to have resigned his post for reasons unrelated to the present allegations. He was not dismissed. He sought to remove his name from the Register and understood from GTC Scotland correspondence in May and June 2018 that his name would be removed if he did not pay his registration fee. It was further submitted that the Teacher was not qualified to be on the Register because he had not engaged in the mandatory updating process. The Teacher’s Representative submitted that in these circumstances, the Teacher should have been removed from the Register.

In relation to error of law, the Teacher’s Representative submitted that by bringing proceedings against the Teacher, GTC Scotland acted in breach of sections 8(a) and 8(b) of the Public Services Reform (General Teaching Council for Scotland) Order 2011 (the ‘2011 Order’) which provide:

‘8. The GTCS must perform its functions in a way which –

• is proportionate, accountable, transparent and consistent;
  • is targeted only where action is needed;…‘

The Teacher’s Representative submitted that no action is required in relation to the Teacher. The Teacher intended to retire in June 2017 and was contractually bound to do so in light of the acceptance of his resignation. The Teacher has not in fact been involved in teaching since 23 June 2017 and has no intention of returning to the profession. The Teacher’s understanding is that since June 2018, he has not been entitled to be on the Register. It was also submitted that the public interest has been served by virtue of the Teacher’s acquittal in the criminal proceedings. The Teacher’s Representative submitted that the proportionate, accountable and targeted action is that the case cancellation application should be granted.

Submissions on behalf of the Presenting Officer

The Presenting Officer opposed the application. The Presenting Officer adopted his written response submitted on 15 December 2022 and supplemented it with oral submissions. The Presenting Officer began by highlighting the nature of the allegations to which these proceedings relate. It is alleged that the Teacher engaged in sexual activity with a pupil between 1994 and 1995.

The Presenting Officer submitted that there was no procedural irregularity in GTC Scotland’s approach. The Teacher was aware of the possibility of a fitness to teach procedure in February 2017, shortly after the commencement of criminal proceedings and his suspension from his teaching post. At the time of the correspondence in May and June 2018, the Teacher was aware that he was subject to a fitness to teach investigation. Even if the Teacher understood the GTC Scotland letter received on 11 June 2018 to mean that he would be removed from the Register, the position was clarified in an email from GTC Scotland dated 26 June 2018 which informed the Teacher that he would not be removed from the Register due to the ongoing fitness to teach investigation.

The Presenting Officer submitted that in line with Rule 12.4.2 of the GTC Scotland Registration and Standards Rules (the ‘Registration Rules’), there are circumstances in which GTC Scotland may retain a teacher on the Register. Rule 12.4.2 provides:

‘12.4.2 Provided that GTC Scotland is satisfied that there are no unresolved (or pending) matters relating to the Registrant that are (or will likely be) subject to its fitness to teach procedures, where a Registrant has requested in writing that they be removed from the Register in such form as GTC Scotland may specify, GTC Scotland will so remove them as soon as reasonably practicable.

Where there is an unresolved (or pending) matter relating to the Registrant that is (or will likely be) subject to GTC Scotland’s fitness to teach procedures, the Registrant may be retained on the Register to the extent required for that process to be concluded.’

The Presenting Officer submitted that GTC Scotland acted within its powers by retaining the Teacher on the Register to allow the fitness to teach process to conclude.

The Presenting Officer submitted that continuation of the proceedings does not amount to a breach of the 2011 Order. The terms of section 8 of the 2011 Order should be balanced against Rule 1.3.8 (the general objective) and paragraph 5.3 of the Case Cancellation Practice Statement. The Presenting Officer submitted that it would not be in the public interest to grant the case cancellation application and that the allegations were sufficiently serious to merit consideration by a Panel at a Full Hearing.

Response on behalf of the Teacher

The Teacher’s Representative recognised the nature of the allegations but submitted that in all the circumstances, and in line Rule 12.4 of the Registration Rules, the Teacher could expect to be removed from the Register following his request. The Teacher’s Representative also submitted that the procedural irregularity and error of law had a material effect on the case.

Decision

The Panel carefully considered the written and oral submissions made by the parties together with the supporting documents. The Panel had regard to the Rules, the Registration Rules, the 2011 Order and the GTC Case Cancellation Practice Statement. The Panel also had regard to the legal advice provided in relation to the Rules (particularly Rules 1.3.7 and 1.3.8) and the Case Cancellation Practice Statement (particularly paragraphs 2.4, 5.2 and 5.3).

Rule 2.10.9 provides:

‘A Panel may at any time following the referral of a case to it for a hearing decide to cancel a case (and dispose of it on that basis). Before making any such decision, a Panel must have heard from the parties on the matter and be satisfied that it is in accordance with the general objective and in the public interest to do so.’

The Case Cancellation Practice Statement provides that there is no prescribed list of circumstances in which cancellation of a case may be sought but outlines situations in which a teacher may wish to make such an application. One such situation is where ‘A serious procedural irregularity or error of law is deemed to have had a material effect on the case and there is no other option to remedy it’. The Practice Statement directs that a Panel must have regard to the general objective of the Rules to deal with cases fairly and justly (as further defined in Rule 1.3.8) and that it must also be satisfied that cancelling the case is in accordance with the public interest (taking account of the considerations further specified in paragraph 5.3).

Taking account of the application together with the relevant rules, legislation, and guidance (as noted above), the Panel refused the Teacher’s application to cancel the case. The Panel was not satisfied that the grounds advanced, taken together or individually, justified the grant of the application. In reaching this conclusion, the Panel was particularly mindful of the serious nature of the allegations.

The Panel considered firstly whether there had been a procedural irregularity. The Panel considered that Rule 12.4.2 of the Registration and Standards Rules is clear. It is within the powers of GTC Scotland to retain a teacher on the Register where there is an unresolved or pending matter relating to the Registrant that is (or is likely to be) subject to fitness to teach proceedings.

On 9 May 2018, the Teacher was informed by letter that his Annual Registration fee was due. However, it also stated ‘As there is an ongoing investigation into your fitness to teach, you should note that if we do not receive your payment your name will be retained on the Register of Teachers

until the investigation is concluded.’ On 11 June 2018, the Teacher received a further letter from GTC Scotland requesting payment of his registration fee for the period April 2018 to March 2019 and informing him that if payment was not received by 29 June 2018, his name would be removed from the Register. On 12 June 2018, the Teacher contacted GTC Scotland requesting de-registration. On 26 June 2018, GTC Scotland informed the Teacher that his request for de-registration would not be processed due to an ongoing fitness to teach investigation.

The Panel concluded that GTC Scotland acted within its powers by retaining the Teacher’s name on the Register despite his non-payment of a registration fee and non-participation in mandatory updating procedures. At the time of his request for removal there was an existing fitness to teach investigation (of which the Teacher was aware, as indicated by the letter of 9 May 2018).

The Panel noted that the Teacher’s understanding of the situation may have been confused by the letter dated 11 June 2018 which appears to have been a proforma letter generated to request payment of the registration fee. However, the position was clarified by GTC Scotland at the latest on 26 June 2018. To the extent that correspondence from GTC Scotland caused the Teacher to understand that his name would be removed from the Register, that mistaken understanding persisted for a short period. Having regard to the general objective and the public interest, the Panel was not satisfied that there was a procedural irregularity of sufficient seriousness to warrant grant of the case cancellation application.

The Panel concluded that GTC Scotland was not prohibited from exercising its power under Rule

12.4.2 to retain the Teacher’s name on the Register by the fact of the Teacher’s resignation or the reasons for it. The Panel observed that one purpose of Rule 12.4.2 was to ensure that teachers could not avoid fitness to teach procedures by removing themselves from the Register. It is in the public interest that fitness to teach investigations and proceedings are brought to a conclusion. Were it not so, the Panel observed that there would be nothing to prevent teachers reapplying to the Register in Scotland or applying for registration in another jurisdiction, regardless of a stated intention to cease teaching.

The Panel considered the submissions made in relation to an error of law. The Panel observed that the submission before it was not that there was insufficient evidence to proceed to a Full Hearing. Rather, it was whether proceedings were needed and proportionate in light of a number of factors identified by the Teacher’s Representative. The Panel noted that its task at this stage is limited to deciding only whether the case should be cancelled or go forward to a Full Hearing.

The Panel considered that the Teacher’s acquittal in the criminal proceedings was not a basis to cancel the case. The fitness to teach process is distinct from the criminal process. Fitness to teach proceedings involve a different legal test and a different standard of proof. Public interest considerations distinct from those in a criminal case apply (including those listed at paragraph 5.3 of the Case Cancellation Practice Statement).

When balanced against the public interest, the Panel concluded that the Teacher’s stated intention to retire from the profession was not a reason to grant the application. Retirement does not exempt a teacher from the fitness to teach process. The Panel observed that Rule 12.4.6 of the Registration and Standards Rules makes provision for a teacher to be reinstated to the Register within 2 years of removal for the purposes of the fitness to teach process, where it is in the public interest. This provision points away from retirement or cessation of teaching as factors warranting the cancellation of a case, particularly one involving serious allegations. The Panel concluded that the Teacher’s reasons for retirement and whether he was contractually bound to retire in June 2017 were factors similarly outweighed by the public interest in the case proceeding to a Full Hearing.

The Panel concluded that it was in accordance with the general objective to refuse the case cancellation application. The allegations against the Teacher are of sexual nature and involve a pupil. Accordingly, it is proportionate to the complexity of the issues to allow the case to proceed to a Full Hearing.

The Panel determined that standing the serious nature of the allegations against the Teacher, it was not in the public interest to cancel the case. On balance, the public interest favoured the case proceeding to a Full Hearing. The Panel had particular regard to the public interest factors set out in paragraph 5.3 of the Case Cancellation Practice Statement:

• ‘The protection of members of the public (in particular, children and young people), both in terms of the teaching setting and beyond;
• The maintenance of the public’s confidence in registrants and in the integrity of the teaching profession;
• The maintenance of the public’s confidence in GTC Scotland as a professional regulator;
• The need to declare and uphold proper teaching standards; and
• The deterrent effect that the case may have upon other GTC Scotland registrants.’

The Panel determined that there had been no error of law. In the circumstances of the case, fitness to teach proceedings are needed and it is proportionate to allow the case to proceed to a full hearing. The Panel refused to grant the case cancellation application.

Vulnerable Witness Application

Submissions

An application dated 11 November 2022 was made by the Presenting Officer to treat Pupil A as a vulnerable witness. The Presenting Officer submitted that the following special measures would be the most appropriate for the purposes of taking the evidence of Pupil A:

• that Pupil A’s husband is permitted to act as a supporter and sit beside Pupil A as she is giving evidence; and
• a screen is provided to separate Pupil A from the Teacher.

The Teacher’s Representative had no opposition to the application in principle, or to the use of the special measures identified. However, the Teacher’s Representative objected to the identity of the proposed supporter. It was submitted that there was a risk that Pupil A’s husband would be in a position to discuss Pupil A’s evidence with her and to coach her away from the hearing. In addition, Pupil A’s husband had heard all the evidence presented in the criminal case, as a member of the public. It was further submitted that Pupil A’s husband was not a fit and proper person to act as a supporter due to a conviction for fraud although no evidence to support this conviction was before the Panel. There was no objection to Pupil A’s sister, or a more distant person, acting as supporter.

The Presenting Officer informed the Panel that upon notification of the opposition, he had discussed with Pupil A the possibility of another individual acting as supporter. Pupil A is of the view that her husband is the best person to provide support to her. The Presenting Officer submitted that Pupil A has a small group of people from whom she could draw support. Many of those individuals were involved in the criminal proceedings and are on the potential witness list appended to the Presenting Officer’s written submission. Pupil A’s husband on the other hand was not a witness in the criminal proceedings and will not be a witness in the present proceedings.

Decision

The Panel had careful regard to the parties’ submissions, the Rules (in particular Rules 1.7.29 and 1.7.30), GTC Scotland’s Practice Statement in relation to Witness and Hearsay Evidence and to the legal advice provided in relation to the Rules and Practice Statement.

Under reference to Rule 1.7.29, the Panel was satisfied that the quality of Pupil A’s evidence could be diminished on the basis that the allegations are of a sexual nature, she is the alleged victim and that she is likely to suffer fear and distress in connection with giving evidence. The Panel granted the application to treat Pupil A as a vulnerable witness. In accordance with Rule 1.7.3, the Panel

ordered that Pupil A would be subject to the measures specified at Rule 1.7.3 (b) and (c). For that reason, Pupil A’s identity has been anonymised in this decision.

The Panel observed that the Rules and Practice Statement do not reference the use of a supporter or a screen but that the special measures listed at Rule 1.7.30 are indicative only. The Panel considered the general objective to deal with the case fairly and justly. It also referred to the guidance in the Practice Statement that when considering issues relating to vulnerable witnesses it ought to balance two primary factors being ‘firstly the protection of the interests of the Teacher…and secondly the protection of the interests of the witness, including their health, wellbeing and general welfare.’

In balancing these interests, the Panel was satisfied that it would be appropriate to allow the use of a supporter and a screen.

The Panel noted that the Rules and Practice Statement are silent on the identity of a supporter. The Panel considered carefully the ways in which this issue might impact the interests of the Teacher and Witness A. The Panel concluded that it is in the interests of all participants in the proceedings, including the Teacher, that Pupil A is enabled to give her best evidence.

The Panel considered the potential risks to the Teacher of Pupil A’s husband acting as her supporter. The Panel noted that the risks of coaching or of a witness discussing his or her evidence with another person whilst on oath exist in any formal proceedings whether or not that other person acts as a supporter. The risk is mitigated against by the usual warning given to a witness not to discuss his or her evidence whilst on oath and by the possibility of cross examination of the witness. The Panel observed that while they had been informed by the Teacher’s Representative that the husband of Pupil A had a criminal conviction for fraud, the Panel had no evidence before them regarding this. The Panel was not satisfied that a prior conviction would necessarily prevent an individual from acting as a supporter given that the role of the supporter in proceedings is a passive role. The Panel concluded that the previous conviction of Pupil A’s husband did not prevent him from acting as a supporter as his character had little relevance to his suitability as a supporter.

The Panel considered the suggestion that Pupil A’s sister could act as her supporter. However, Pupil A’s sister was noted to have been a witness in the criminal proceedings and is included on the list of possible witnesses appended to the Presenting Officer’s application. Given her potential involvement in the present process, the Panel did not consider that it would be appropriate for Pupil A’s sister to act as her supporter. The Panel also considered the possibility that a third party could act as supporter but concluded that a third party could not provide the same level of emotional support as could be provided by Pupil A’s husband.

The Panel determined that, on balance, Pupil A’s husband should be permitted to act as her supporter subject to the practical direction that at the commencement of her evidence: (i) Pupil A will be given a warning not to discuss her evidence with anyone whilst on oath (or subject to an affirmation), including during breaks and overnight; and (ii) Pupil A’s husband will be given a warning not to prompt or seek to influence Pupil A’s evidence, or to otherwise discuss it with her whilst she is under oath (or subject to an affirmation).

Application to treat police statements as evidence in chief

An application dated 11 November 2022 was made by the Presenting Officer to use the available police statements of those witnesses listed at Appendix 1 to the application as their evidence in chief at the Full Hearing. The application was supplemented briefly in oral submissions and was unopposed.

Decision

The Panel considered the application, the Rules, the GTC Scotland Practice Statement relating to Witness and Hearsay Evidence and the legal advice provided in relation to Rule 1.7.17.

The Panel considered the general objective to act fairly and justly and went on to consider each of the factors relating to hearsay evidence contained in the Practice Statement. The Panel noted that there was no objection raised as to the fairness of using the police statements in this way. The Panel was satisfied that proportionate efforts had been made to obtain fresh statements for the GTC Scotland proceedings. However, practical difficulties arose from the time that had passed since the date of the alleged events and since the criminal trial. The Panel noted that the weight to be attached to police statements must still be applied by the Panel at the Full Hearing. The Panel was satisfied that the application to use police statements as evidence in chief should be granted.