Panel Meeting – Paul Graham

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; and
• An application made by the Teacher for parts of the Full Hearing to be heard in private and for certain information to be redacted from the published Full Hearing decision.

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. Presenting Officer’s Application for a Virtual Hearing, dated 2 March 2021
2. Appendix to Presenting Officer’s Application, dated 2 March 2021
3. Teacher’s Response to the Presenting Officer’s Application, dated 16 March 2021

Privacy Application

1. Teacher’s Application for Privacy, undated
2. Presenting Officer’s Response to Privacy Application, dated 9 February 2021
3. Panel Consideration Decision, dated 17 June 2020
4. Statement of the Teacher, dated 23 November 2020

Preliminary Matters

The Panel did not deal with any preliminary matters.

Application for a Virtual Full Hearing

Application

An application dated 2 March 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 by Claire Raftery of Clyde & Co.

• Does the Teacher have any particular needs or vulnerabilities?

No particular needs or vulnerabilities have been raised with the Panel.

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

It is submitted on behalf of the Teacher that due to the number and nature of alleged facts in dispute it would not be possible to adequately take instructions on an ongoing basis in a virtual hearing and that the Teacher’s representation would be prejudiced as a result.

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

The application is in relation to a Full Hearing. The majority of the allegations are admitted, but the issue of sexual motivation will require to be considered in respect of the admitted allegations. The case will commence at the fact-finding stage.

• The estimated length of the hearing?

The Presenting Officer has estimated the hearing to last 4 days. The Teacher’s Representative has estimated a minimum of 6 days.

• The extent and complexity of the issues in dispute?

As the allegation regarding sexual motivation has been denied, this aspect will require to be considered in respect of each of the admitted allegations which may require detailed examination of the underlying facts and circumstances. Issues relating to background, subsequent events and the Teacher’s health are also anticipated. The issues of fitness to teach and potential sanction remain in dispute.

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

The hearing will be mostly in public. The Teacher’s application to hold parts of the hearing in private is dealt with below.

• The volume of documentation to be referred to during the hearing and how documentation will be provided to witnesses for reference, if required?

The bundle will comprise of around 260 pages. It is envisaged that witness bundles will be prepared for the witnesses consisting of their witness statements and any documentation that they will be referred to during their evidence.

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

There are 11 witnesses in addition to the Teacher. All of the witnesses are teachers.

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

It is anticipated that each of the GTCS witnesses will be required only for a short time. It is anticipated that some evidence can be agreed before the hearing. It is anticipated that the Teacher’s evidence may take 1-2 hours.

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

There are no known needs in respect of the witnesses.

• How easily the Panel will be able to assess the credibility and reliability of witnesses?

While the reliability and quality of the virtual link may be a factor, presuming there is no issue with either, it is submitted by the Presenting Officer that it should be entirely possible for a Panel to reach the same conclusions on credibility and reliability as it would do were the evidence being given in person. On behalf of the Teacher, it is contended that conducting the hearing via video link will have a detrimental effect on witnesses’ ability to give evidence and on the Panel’s ability to assess credibility and reliability. It is submitted on his behalf that this impinges upon the Teacher’s right to a fair hearing.

• Do all participants have access to a suitable electronic device, have suitable internet connection, have an appropriate location from where they can participate alone and undisturbed?

It is anticipated a test will be conducted with each party in advance of the hearing to assess this issue. The GTCS witnesses will all have access to a suitable device, have suitable internet connection and have an appropriate location to give their evidence from.

Under reference to Bilta v SVS Securities and others [2021] EWHC 36 (Ch) it was submitted on behalf of the Teacher that in-person cross-examination (and therefore by extension in-person hearings) are the ‘gold standard’ and that the Teacher did not want to settle for a solution that was ‘second best’.

It was further submitted that Covid-19 restrictions were likely to be eased in the near future which would allow for in person hearings to take place.

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 considered that difficulties of obtaining instructions throughout the hearing could be mitigated by alternative means of communication between the Teacher and his Representative and allowing additional adjournments as required. The Panel noted that Fitness to Teach Panels now had considerably more experience in assessing credibility and reliability in virtual proceedings. It did not consider that a Panel’s ability to assess credibility and reliability would be unduly prejudiced. It noted that in the Bilta case to which it was referred stated:

‘I readily acknowledge that the remote solution is “second best”: there may be delays or interruptions in the transmission, or a mismatch in the video and audio feeds (to name but two problems that I have personally experienced). It is not possible to ensure that such possibilities do not arise. What is important, however, is that the judge and the lead advocates should see the same oral evidence so that when submissions as to weight of evidence come to be made, the relevant persons (the lead advocates and the judge) have seen exactly the same thing.’ [ Emphasis as in original]

The Panel and parties would all see the same oral evidence. It further noted that there were advantages to witnesses being able to give their evidence in familiar surroundings particularly in relation to sensitive evidence. There were likely logistical conveniences in proceeding by virtual hearing given the number of witnesses dependant on to what extent Covid-19 restrictions were lifted. It was not certain when and to what extent restrictions would be lifted such as to allow in person hearings to take place. The Panel also took account of the fact that the Teacher was still teaching and that there was a need for the case to proceed without undue delay. There would be a considerable delay in the progress of the present proceedings if the application were to be refused.

Accordingly, the Panel determined to grant the application for the hearing to take place virtually. In the event of substantial easing of Covid-19 restrictions being made prior to any virtual hearing, it would, on that change of circumstances, be open to the Teacher to make a fresh application.

Application for Privacy

Application

An application for privacy was made by the Teacher. The Panel considered carefully the application and submissions made in response. The Panel also had regard to Rules 1.7.2 and 1.7.3 and to the Practice Statement on Privacy and Anonymity.

Decision

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 considered that the application related to only parts of the evidence relating to the Teacher’s health and sex life and the evidence in relation to his [redacted] being heard in private. It determined that the interests of justice and the particular circumstances of the case outweighed the interests of the hearing being held in public and accordingly determined that those matters be heard in private. It also noted that in terms of the GTCS Publication Policy no details of health or private issues would be published.