Panel Decision: Edward Sutherland

Fitness to Teach Panel Meeting

25 March 2022

TeacherEdward Sutherland (not present)
Registration Number972073
Registration CategorySecondary – Religious Education
PanelAlison Reid, Joanne Sharp and Helen James
Legal AssessorAmanda Pringle
Servicing OfficerHannah Oakley
Presenting OfficerGary Burton (not present)
Teacher’s representativeClaire McInnes

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

The Procedural Meeting was arranged to consider the following:

  • An application made by the Teacher for him to be granted vulnerable witness status in his fitness to teach full hearing; and
  • An application that, if such status is granted, the Teacher’s evidence be heard in private.

Evidence

In accordance with Rule 1.7.17, the Panel admitted all the documents and statements listed below as evidence for the purposes of the hearing:

  1. Teacher’s vulnerable witness application, dated 4 March 2022
  2. Appendix to the Teacher’s application containing supporting evidence
  3. Presenting Officer’s submissions in response to the Teacher’s application, dated 9 March 2022
  4. Email from the Teacher’s Representative, dated 16 March 2022, confirming no further comments to add following Presenting Officer’s response
  5. Panel Meeting decision annex regarding procedural applications, dated 17 March 2021.

Preliminary Matters

The Panel were not required to deal with any preliminary matters.

Decision

The Teacher’s Representative submitted that the Teacher identifies himself as a vulnerable witness in relation to fear or distress in connection with providing evidence. She submitted that the Teacher had been the victim of abusive ‘trolling’ online since the case was at the investigation stage due a malicious leak to the press. The Teacher’s Representative submitted that, should the Teacher be given vulnerable witness status, Rule 1.7.30 (d) should be implemented, namely that the Teacher be allowed to give his evidence in private during the full hearing.

The Teacher’s Representative submitted that the case is politically sensitive and concerns the Teacher’s anti-racist activism with ‘Friends of Israel’ groups. She submitted that the Teacher has been the victim of hateful abuse online and in the media as a result of the fitness to teach process and that it was essential for him to give evidence free from the fear and distress of the potential actions of individuals in response to the evidence, and the misuse of such evidence and his image. The Teacher’s Representative submitted that the Teacher was likely to be targeted by individuals and hate groups, who represent a threat to the private life of the Teacher beyond that generally experienced by teachers going through the fitness to teach process. In documentation submitted as supporting evidence to the application, the Panel had sight of various examples of comments on social media and online message boards, as well as press articles concerning the case.

The Presenting Officer opposed the Teacher’s application, and highlighted that the previous Panel had refused the Teacher’s application for the full hearing to be conducted in private. The Presenting Officer submitted that there has not been any material change in circumstances which would mean that part of the hearing, namely the Teacher’s evidence, requires to be heard in private. He submitted that no evidence had been provided in support of the Teacher’s position that giving evidence in public would have an adverse impact on his ability to give evidence, and on [redacted]. The Presenting Officer submitted that the allegations are of a serious nature, and a full public hearing is necessary to maintain the public confidence in the teaching profession and GTC Scotland as a regulator, as well as to act as a deterrent for registrants.

The Panel gave careful consideration to the parties’ submissions, the provisions within the Rules, the advice of the Legal Assessor and Servicing Officer as necessary, and guidance provided by GTC Scotland Practice Statements, in particular the Witnesses and Hearsay, Health Matters and Medical Evidence, and Privacy and Anonymity Practice Statements.

Rule 1.7.29 states:

‘A Panel may, of its own volition or on the application of any party, treat as vulnerable:

a) Any witness under the age of 18; and
b) Any witness whose quality of evidence is likely to be diminished for any of the following reasons:

i. he/she has a mental disorder;
ii. he/she has a significant impairment of intelligence and/or social functioning;
iii. the allegations(s) is/are of a sexual and/or violent nature, and he/she is an alleged victim; or
iv. fear or distress in connection with giving evidence.’

The Privacy and Anonymity Practice Statement states:

‘The default position set out in the fitness to Teach Rules (the ‘Rules’) is that fitness to teach hearings are held in public. However, Panels have a discretion to make orders with a view to preventing or restricting the public disclosure of any aspect of proceedings where certain criteria are met…’

There is a high bar to overcome in persuading a Panel to move away from the default position. The Practice Statement identifies what may amount to circumstances to justify exceptions to the general rule. One potential reason is ‘where protection of the private life of the parties so require’ (influenced by the Human Rights Act 1988 and Article 6(1) of the European Convention on Human Rights). The Panel noted that the application for the Teacher to be allowed to give his evidence in private was dependent on whether it granted the Teacher’s vulnerable witness application in the first instance.

The Panel considered that no medical evidence had been provided in support of the application, and that the assertions made in the application with regards to the Teacher’s fear and distress in connection with giving evidence did not meet the criteria set out in the Health Matters and Medical Evidence Practice Statement. The Teacher had identified himself as a vulnerable witness, but the Panel did not have any evidence before it from an appropriate [redacted] practitioner in relation to the potential impact on the Teacher of giving evidence in public.

The Panel considered that every teacher subject to the hearing process would experience distress, and they struggled to see a case that the Teacher would be caused undue fear and distress when giving evidence. The Panel acknowledged that the Teacher had been subject to abusive comments online, but did not consider that there was evidence before them of a clear threat against the Teacher in the context of the full hearing. The comments the Panel had sight of dated back to 2019 and 2020, and the Panel considered that the assertion that the Teacher would be targeted was purely speculative; they did not have evidence before them to suggest there was a real and substantial risk that the Teacher would be targeted by individuals or groups during or as a result of giving evidence at the full hearing, nor that his evidence or his image would be misused. The Panel noted the observation of the previous Panel that the Teacher had admitted to posting material and continuing to engage online. The Panel considered that the Teacher had chosen to enter these particular online forums and had made the decision not to step out. He therefore had a certain element of control over that which was worrying him.

Accordingly, the Panel considered that there was insufficient evidence to support the Teacher’s vulnerable witness application, and it was therefore refused. The Panel also considered that the public interest factor in the Teacher giving evidence in public was strongly engaged, and outweighed the interests of the Teacher.

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