Decision: Ross Spittal (Panel Meeting)
Fitness to Teach Panel Outcome
16 December 2020
|Registration Category||Secondary (Mathematics)|
|Panel||Arthur Stewart, Michelle Farrell and Kathleen McCormick|
|Legal Assessor||Gareth Jones|
|Servicing Officer||Isobel Allan|
|Presenting Officer||Sarah Donnachie, Anderson Strathern (not present)|
|Teacher’s Representative||Claire Raftery, Clyde and Co (not present)|
- ‘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.
- An application made by the Teacher’s Representative regarding the admissibility of certain evidence.
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.
In accordance with Rule 1.7.17, the Panel admitted all the documents and statements listed below as evidence for the purposes of the meeting:
- Presenting Officer’s Application for a Virtual Hearing, dated 17 September 2020
- Presenting Officer’s Application Form for a Virtual Hearing (Appendix to Application) dated 17 September 2020
- Response from Teacher’s Representative, dated 6 October 2020
- Teacher’s Representative’s application regarding admissibility of evidence dated 14 September 2020
- Unredacted statement of Witness 1
- Redacted statement of Witness 1
- Presenting Officer’s response to the Teacher’s Representative’s application on admissibility of evidence.
There were no preliminary matters for the Panel.
Application for Virtual Hearing
An application dated 17 September 2020 for a virtual hearing was made by the Presenting Officer.
In the application, the Presenting Officer highlighted that Rules 1.7.6 and 1.7.7 allow for a hearing to be conducted virtually. These Rules state as follows:
Rule 1.7.6 – All or any part of a hearing may be conducted by use of electronic communications provided that –
a. The Panel has given the parties an opportunity to make representations on the matter and the Panel considers it just and equitable for electronic communications to be used,
b. The method used allows the parties, the Panel and any witnesses to hear each other; and
c. Where all or any of the part of the hearing is to be held in public, the method used also allows the public to hear proceedings.
Rule 1.7.7 – Where all or any part of a hearing is conducted by use of electronic communications, for the purpose of these Rules, the meaning of being ‘present’ at a hearing (and any related expressions) will be construed accordingly.
By reference to the Use of Electronic Communications in Hearings Practice Statement (August 2020), the Presenting Officer also highlighted the following factors:
- The Teacher is represented;
- The allegations are admitted, and the hearing will commence substantively at stage 2;
- The hearing could be concluded within 4 days;
- As the Teacher admits the allegations, only the issue of impairment and potentially sanction require to be addressed;
- The evidence of only two witnesses will be led, neither of are expected to take longer than half a day given that the facts are not in dispute;
- None of the witnesses for GTC Scotland have any needs that would make a virtual hearing unsuitable;
- Unless determined otherwise, the hearing will be in public;
- The combined bundle of papers is limited to 197 pages and the relevant documents from that bundle will be made available to witnesses; and
- The GTCS witnesses will have access to appropriate facilities to allow them to participate in a virtual hearing and a check can be made in advance of the hearing to ensure that the internet connection is suitable and working.
Having regard to all these factors and the current difficulties in arranging face-to-face hearings, it was submitted by the Presenting Officer that the application for a virtual hearing should be granted.
As well as having sight of the application, the Panel also noted that the Teacher’s representative had been given an opportunity to make representations and had provided a short response indicating no opposition to the application.
In reaching a decision the Panel had regard to the GTCS Fitness to Teach Rules 2017, and to the guidance set out in the Use of Electronic Communications in Hearings Practice Statement.
The Panel was satisfied, for all the reasons advanced in the application, that it is just and equitable to conduct the full hearing in this case virtually by means of Microsoft Teams. The Teacher’s Representative is not opposed to the application and there is no reason given for why either the Teacher or any of the GTCS witnesses would be disadvantaged by the proceedings being conducted virtually. The Panel, the Teacher and the witnesses will all have access to the relevant documents, which are limited in number to 197 pages, and the Panel tasked with considering the allegations will have an opportunity to assess the credibility and reliability of all witnesses.
In reaching a decision the Panel also had regard to the general objective of GTCS, to deal with cases fairly and justly, which includes, so far as practicable, dealing with cases in ways which (a) are proportionate to the complexity of the issues; (b) seek informality and flexibility in proceedings; (c) ensure that parties are able to participate fully in proceedings; and (d) avoid delay, so far as compatible with the proper consideration of the issues. It was the Panel’s view that a fair hearing could be achieved within a timescale that expedites the decision in respect of the Teacher by conducting the hearing virtually.
However, whilst the Panel was content to grant the application, it noted that one of the witnesses to give evidence is [redacted]. Given the nature of the allegations and the evidence the witness is likely to give, the Panel considered that if any additional support is required for her to give her evidence, that could be arranged by GTCS in advance of the hearing.
Challenge to the Admissibility of Evidence
An application dated 14 September 2020 was made by the Teacher’s Representative in relation to the admissibility of certain evidence. The Panel considered the application and the submissions made in response by the Presenting Officer.
In her letter dated 14 September, the Teacher’s Representative drew the Panel’s attention to certain passages of the witness statement provided by the witness Witness 1, [redacted], which it was submitted were inadmissible on grounds of relevance and fairness. Within these paragraphs the witness refers to the Teacher searching for Young Person A (the pupil that he now accepts kissing and having a sexual relationship with on at least two occasions at his home) on social media, messaging her via Glow and the discovery of a number of emails between them, some of which were sexual in nature, on the Teacher’s personal email account. It was also submitted that emails exchanged between the Teacher and Young Person A are inadmissible on the same grounds.
Whilst it was recognised by the Teacher’s Representative that the discovery of the emails might be relevant to show how the witness found out about the sexual relationship between the Teacher and Young Person A, it was submitted that the fact they were communicating online and the content of the emails, does not form a basis of any of the allegations which the Teacher faces, is highly prejudicial and is evidence that will be refuted. Furthermore, the evidence is likely to trespass into the Teacher’s past relationship with the witness, which is private.
It was therefore submitted that pursuant to Rule 1.7.17, the passages highlighted in the witness statement together with the emails, should not be admitted in evidence and in any event, they have no relevance to Stage 2 of the fitness to teach process.
In response to the application, the Presenting Officer submitted that none of the evidence within the bundle of documents ought to be redacted, and that it is fair and not prejudicial for any future Panel to have sight of all the papers.
It was submitted that the evidence of the witness relating to the online communications between the Teacher and Young Person A is relevant to the issue of impairment because her evidence explains how the relationship, which was otherwise being kept secret, was discovered and reported. In particular, the evidence highlights the fact that but for the discovery of the online communications, the Teacher would not have reported the relationship and only did so after the witness advised that she would.
It was submitted that whilst the fact the Teacher was communicating online with Young Person A is not amongst the allegations to be presented at the full hearing, it is so intrinsically linked to the sexual relationship allegation, now accepted by the Teacher, that it is fair for these aspects to be included and considered by the Panel. Also, the fact that the Teacher was actively searching for Young Person A on social media and engaging in extensive dialogue with her over time, is relevant to the issue of impairment because it shows that the incidents outlined in the allegations did not arise spontaneously.
Finally, with regards to the emails themselves, it was submitted that they demonstrate the full extent of the relationship between the Teacher and Young Person A in the months leading to the referral, at a time when the Teacher was teaching and managing the pupil’s education.
In reaching a decision, the Panel had regard to all the information placed before it and to the submissions of both parties. The Panel also had regard to Rule 1.7.17.
The Panel noted that the allegations are admitted by the Teacher and a future Panel will therefore proceed to determine the next stage of the fitness to teach process, namely the issue of impairment and fitness to teach.
Having carefully considered the passages of the witness statement in issue, and the extensive emails between the Teacher and Young Person A, for all of the reasons given by the Presenting Officer the Panel was in agreement that the evidence is relevant to the issue of impairment and it would be fair to admit it.
At Stage 2, the Panel will have to consider the seriousness of the allegations in the context of the public interest. The Panel will also have to consider whether the conduct found proved is remediable, whether it has been remedied and the likelihood of similar conduct being repeated in the future. In order to decide those issues any future Panel must have a full understanding of the nature and extent of the relationship between the Teacher and Young Person A. It is clear that the evidence of the witness and the email exchange, which is extensive, will provide the Panel with that understanding.
Furthermore, the Panel agreed with the Presenting Officer that the evidence of the witness about how the relationship was discovered and why the Teacher reported it, is relevant to the issue of impairment. The fact the Teacher may have been forced into a position of reporting the relationship, as opposed to doing so of his own volition, is potentially relevant to the issue of risk of repetition and insight, which are relevant factors at Stage 2.
The Panel did agree that the evidence to be given by the witness should not descend into a discussion about her private life with Teacher and was reassured by the response of the Presenting Officer that the witness will not be giving evidence for that purpose. In the event the witness at the full hearing does stray into evidence that is irrelevant, objection can be taken at that point.
Also, if there are matters arising from the evidence given by the witness, which are disputed, there will be an opportunity to ask questions of the witness and the Teacher will have an opportunity to give evidence at Stage 2, should he elect to do so.
Accordingly, for all the reasons stated, the Panel decided to refuse the application made by the Teacher’s Representative.