Panel Outcome: Edward Sutherland

Fitness to Teach Panel Meeting

17 March 2021

TeacherEdward Sutherland
Registration Number972073
Registration CategorySecondary – Religious Education
PanelNasreen Anderson, Kathleen McCormick and Ruth Sharp
Legal AssessorAmanda Pringle
Servicing OfficerKirsty McIntosh
Presenting OfficerGary Burton, Anderson Strathern (not present)
Teacher’s representativeClaire McInnes, NASUWT (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.

Applications

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 for the Full Hearing to be held in private; and
  • An application made by the Teacher for anonymity.

Background

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.

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:

Virtual Hearing Application

  1. Panel Decision Annex, dated 15 July 2020
  2. Presenting Officer’s Application for a Virtual Hearing, dated 3 February 2021
  3. Appendix to Presenting Officer’s Application, dated 3 February 2021
  4. Teacher’s Response to the Presenting Officer’s Application, dated 19 February 2021

Privacy/Anonymity Applications

  1. Teacher’s Application for Privacy and Anonymity, dated 2 November 2020 , with appendices thereto:
    • Emails from [redacted], dated 17 April to 16 August 2020
    • Emails and Attachments from [redacted], dated 26 March to 28 November 2020
    • Text Messages from [redacted] dated 15 October to 26 November 2020
    • Letter from [redacted], dated 12 November 2020
    • Emails between Teacher and [redacted] of Police Scotland, dated 1 December 2020 to 29 January 2021
    • Supporting Letter from [redacted], [redacted] Belmont Academy, dated 23 February 2021
    • Supporting Letter from [redacted], [redacted] South Ayrshire Council, dated 23 February 2021
  2. Presenting Officer’s Response to the Teacher’s Application, dated 9 November 2020

Preliminary Matters

The Panel did not deal with any preliminary matters.

Application for a Virtual Hearing

An application dated 10 February 2021 for a virtual hearing 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.

  • Does the Teacher have any particular needs or vulnerabilities?

The Panel was not made aware of any particular needs or vulnerabilities of the Teacher.

  • How will the Teacher and Representative, if any, communicate during the hearing?

This would be arranged between the Teacher and his Representative.

  • The nature of the proceedings and issues to be determined at the hearing?

The proceedings will be a Fitness to Teach Full Hearing in relation to conduct allegations. The Teacher admits one of the allegations, disputing the other.

  • The estimated length of the hearing?

The anticipated duration of the hearing is 4 days.

  • The extent and complexity of the issues in dispute?

The issues before the Panel are relatively straightforward with the Teacher admitting one of the two allegations.

  • Will the hearing take place in public or (partly) in private?

By default, the hearing would take place in public. However, the Panel also requires to determine an application by the Teacher for the Full Hearing to be held 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 papers for the Teacher. The combined bundle of papers consists of 249 pages. It is envisaged that individual witness bundles will be prepared which will include the witness statement and associated documentation that the witness will be referred to during their evidence.

  • The nature of witnesses to give evidence at the hearing?

The Presenting Officer has no witnesses. The Teacher will give evidence himself and has four witnesses. The Teacher has not indicated the nature of his witnesses.

  • How long is each witness estimated to give evidence for?

The Teacher indicated each of his witnesses’ evidence will not exceed 1 hour but has not estimated the length of his own evidence.

  • Do any of the witnesses have particular needs or vulnerabilities?

The Panel was not made aware of any particular needs or vulnerabilities of any witnesses.

  • What confidence is there that each witness will be able to follow questions easily and any documents being referred to?

Based on the manner in which virtual hearings have thus far been conducted, there is great confidence that the Teacher and other professional witnesses will be able to follow questions easily and any documents referred to.

  • How will witnesses be provided with hearing documentation?

The proposed individual witness bundle referred to above will be emailed to each witness shortly before they are due to give evidence.

  • Will all participants at the hearing have access to a suitable electronic device?

Yes. It is envisaged that GTCS and participants will perform checks in advance of any virtual hearings to ensure there are no issues.

  • Will all participants have a suitable internet connection capable of coping with the requirements of a virtual hearing?

Yes. As narrated above, it is envisaged that GTCS and participants will perform checks in advance of any virtual hearing to ensure there are no issues with connection.

  • Will all participants have an appropriate location from where they can participate alone and undisturbed?

It is envisaged that each participant has an appropriate location from where they can participate alone and undisturbed.

In addition, the Panel noted that the Teacher’s Representative consented to the virtual hearing application, subject to the application for privacy and anonymity.

Decision

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 granting the application made.

The Panel did not consider that there were any personal, evidential, practical or technical reasons to refuse the application. Further, given the ongoing issues caused by the Covid-19 pandemic, there would be a considerable delay in the progress of the present proceedings if the application were to be refused.

Accordingly, the Panel decided to grant the application.

Application for the Full Hearing to be Held in Private

An application for privacy and anonymity was made by the Teacher. The Panel considered the application and submissions made in response.

The Teacher’s Representative submitted an application seeking the following: that the Full Hearing be heard in private and that any details which could identify the Teacher, both young people attending and the school itself, and the local authority be anonymised.

The Teacher’s Representative submitted that his private life is likely to be presented at the hearing given the context of the allegations and should be heard in private. That context resulted in a concern that this could lead to both pupils of and the school itself being identified in addition to the local authority as the Teacher’s employer. The Teacher’s Representative raised concerns at the extent of media interest and coverage to date and this being exacerbated by a public hearing. The Teacher’s Representative raised concerns regarding the impact upon the [redacted] the Teacher were his application not to be granted, citing the Teacher’s [redacted]. The Teacher’s Representative referred to the exceptions to the default position that exists of hearings being held in public. The Teacher’s Representative referred to the damaging and negative impact upon the Teacher and other parties stated were anonymity not to be granted.

The Presenting Officer was opposed to the application. The Presenting Officer submitted that the allegations are serious, and the interests of the public outweighed the interests of the Teacher in this case. The Presenting Officer submitted that the Teacher did not provide any substantive [redacted] evidence to support his position about the potential adverse impact a public hearing might have.

Decision

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 had careful regard to the application made, the written submissions by both parties and the supporting papers. The Panel also took account of the provisions within the Rules and guidance provided by GTCS Practice Statements, in particular the Privacy and Anonymity and the Health Matters and Medical Evidence Practice Statements as well as the advice, as required, of the Legal Assessor and Servicing Officer.

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. An order for privacy or anonymity should only be made by exception. 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 Practice Statement explains that ‘Panels must be satisfied that there is a compelling reason for granting such an application (for anonymity) in order to protect an individual’s private life’.

The Panel noted that the onus was upon the Teacher to demonstrate that their application met the criteria set out in the Privacy and Anonymity Practice Statement. Whilst the Teacher’s Representative had made submissions regarding harassment and publicity, the Panel noted that the Teacher has admitted posting material online and further engaging online on a routine and regular basis. The Panel considered the Teacher’s Representative’s submissions did not meet the criteria threshold set out in the Privacy and Anonymity Practice Statement. The Panel had been presented with assertions regarding the Teacher’s [redacted] and potential impact thereupon. The Panel noted that they had not been presented with professional [redacted] evidence in relation to the Teacher’s [redacted]. The Panel considered that this did not meet the criteria threshold set out in the Health Matters and Medical Evidence Practice Statement.  

Accordingly, the Panel considered there were no compelling reasons in the particular circumstances of this case to justify the granting of the application. 

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