Decision: Derek Curran (Panel Meeting)
GTC Scotland Fitness to Teach Panel Outcome
9 March 2021
|Teacher||Derek Curran (not present)|
|Registration Category||Secondary – Mathematics and Computing|
|Panel||Kathleen McCormick, Michele Knight, Diane Molyneux|
|Servicing Officer||Aga Adamczyk|
|Presenting Officer||Gary Burton, Anderson Strathern|
|Teacher’s representative||Faisal Sameja, Association of School and College Leaders (not present)|
Any reference in this decision to:
- ‘GTCS’ 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.
The Panel Meeting was arranged to consider the following:
- An application made by the Presenting Officer for a virtual Full Hearing.
By default, GTCS conducts all its fitness to teach hearings in person in its dedicated Hearings Suite at its office in Edinburgh. However, 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’.
At present, due to Scottish Government restrictions and guidelines on public interaction and concerns about public safety as a result of the Covid-19 pandemic, hearings in person cannot currently take place at the GTCS office.
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. The relevant procedure and criteria for determining such applications are set out in the Use of Electronic Communications in Hearings Practice Statement.
The Fitness to Teach Full Hearing in the Teacher’s case had commenced and been interrupted by the Covid-19 pandemic. The Full Hearing had commenced on 4 March 2020 and continued on 5 March 2020. The remaining dates had been discharged. The present application sought to resume the Full Hearing and for further proceedings to be held virtually.
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:
- Presenting Officer Application for a Virtual Hearing, dated 8 December 2020, including:
- Appendix B
- Response from Teacher, dated 11 January 2021, including:
- Greg Wallace v Secretary of Education 
- Bank Mellat v HM Treasury .
The Panel did not deal with any preliminary matters.
An application dated 8 December 2020 for the remainder of the Full Hearing to be held virtually 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 by a Barrister.
- Does the Teacher have any particular needs or vulnerabilities?
The Teacher is not understood to have any particular needs or vulnerabilities.
- How will the Teacher and Representative, if any, communicate during the hearing?
As agreed between the parties.
- The nature of the proceedings and issues to be determined at the hearing?
The proceedings will be the resumption of a Fitness to Teach Full Hearing to determine allegations relating to the Teacher’s alleged conduct which may bear upon his fitness to teach.
- The estimated length of the hearing?
The hearing is expected to last a further 3 days.
- The extent and complexity of the issues in dispute?
The Full Hearing had been interrupted part way through stage 1 of the proceedings. Further evidence is to be presented in relation to stage 1. The Panel was advised that the matter would ultimately turn on the assessment of the credibility and reliability of witnesses. Accordingly, all stages of the fitness to teach process may be determined.
- Will the hearing take place in public or (partly) in private?
The hearing will take place in public; however, parts of the hearing dealing with the information relating to the Teacher’s family matters will be heard in private.
- The volume of documentation to be referred to during the hearing and how documentation will be provided to witnesses for reference, if required?
The documentation to be considered by the Panel will include papers for the Presenting Officer and the Teacher. The papers consist of 671 pages.
- The nature of witnesses to give evidence at the hearing?
The Teacher and a Teacher’s witness are to give evidence.
- How long is each witness estimated to give evidence for?
The Teacher is expected to give evidence for 2 hours. The other witness is expected to give evidence for 1 hour.
- Do any of the witnesses have particular needs or vulnerabilities?
The Panel was not made aware of any particular needs or vulnerabilities.
- What confidence is there that each witness will be able to follow questions easily and any documents being referred to?
There is great confidence that the Teacher and other teacher witness will be able to follow questions easily and any documents referred to.
- How will witnesses be provided with hearing documentation?
The Teacher will have access to the hearing papers. An individual witness bundle will be emailed to the teacher witness shortly before they are due to give evidence.
- Will all participants at the hearing have access to a suitable electronic device?
It is anticipated that each participant has access to a suitable electronic device. It is envisaged that GTCS and participants will perform checks in advance of any virtual hearing to ensure that such a hearing is at that time viable.
- Will all participants have a suitable internet connection capable of coping with the requirements of a virtual hearing?
It is anticipated that every participant will have access to a suitable internet connection.
- Will all participants have an appropriate location from where they can participate alone and undisturbed?
It is anticipated that every participant has access to an appropriate location to participate from.
The Teacher’s Representative opposed the application for the remainder of the Full Hearing to be conducted virtually. The Teacher’s Representative advised that following the interruption of proceedings, GTCS had written to the Teacher advising that his case was not suitable for a virtual hearing as it had been part-heard. Thereafter, the present application dated 8 December 2020 was intimated to the Teacher. It was submitted that it was not just and equitable for the remainder of the Full Hearing to be conducted virtually. The Teacher’s Representative contended that there was a vast difference between starting a case virtually and resuming a part-heard case in a different format to that in which it started. In particular, it was highlighted that the witnesses relied upon by the Presenting Officer had already given evidence in person. However, the witnesses relied upon by the Teacher, namely, himself and another witness would give evidence virtually were the application to be granted. It was said this would place the presentation of the Teacher’s case at a substantial disadvantage. The Teacher’s Representative referred to Article 6 of the European Convention on Human Rights and in particular the concept of equality of arms. It was submitted that there would be a degradation of the fairness of the proceedings if the application was granted. The Teacher’s Representative stated that it was already more than one year since the start of the Full Hearing and that there would be no significant advantage in reducing the delay by holding a virtual hearing. The appropriate approach would be to refuse the application and allow the proceedings to continue after a further short delay when the public health concerns caused by the pandemic were alleviated.
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 refusing the application made.
The Panel was persuaded by the submissions made by the Teacher’s Representative. The Panel was aware of the procedural history and the apparent inconsistency in dealing with witnesses at the same stage in different ways. The Panel did not accept the submissions that there would necessarily be a degradation in the fairness of proceedings if the application was granted, but could readily accept that might be the perception of the Teacher and perhaps of a reasonably informed member of the public. There had already been a delay in proceedings and at this stage further delay, relatively speaking, would not have a significant impact upon the effect of the overall delay. If the public health concerns were to persist for a longer period, then the interests of justice may weigh in favour of granting a virtual hearing application. However, at this time, the Panel was of the view that the balance of the various factors was in favour of refusing the application.
The Teacher’s Representative invited the Panel to issue a direction that GTCS provide parties and the Panel with a transcript of the proceedings from 4 and 5 May 2020. The Panel noted that a substitute Legal Assessor would require to provide legal advice to the Panel when the full hearing resumed due to the non-availability of the initial Legal Assessor. In addition, the Panel was conscious of the delay that there will have been when the full hearing resumes. In order to offset any effect of such a delay, the Panel considered that it would benefit parties, Legal Assessor and Panel if a contemporaneous account of the earlier proceedings was available. This would support participants’ recollections, aid submissions and assist the analysis of evidence and submissions. To that end, the Panel ordered, in the particular circumstances of this unusual case, that GTCS makes available to parties the recording of the earlier proceedings. In addition, the Panel recommended that GTCS has a transcript of the earlier proceedings prepared and made available to the parties, the Legal Assessor and the Panel.