Panel Meeting – Virtual Hearing and Vulnerable Witness Application: Keith Gilmour

Definitions

Any reference in this decision to:

• ‘GTC Scotland’ or ‘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 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 Presenting Officer for the substantive hearing to be held virtually; and
• An application made by the Teacher that he is granted the status of a vulnerable witness in so far that his evidence-in-chief is given in the form of a written statement.

In line with Rule 1.7.6, 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’.
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. In certain cases, a proposal is made by GTC Scotland. 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 hearing:

1. Presenting Officer’s application for a virtual hearing, dated 16 June 2022, with Appendix B
2. Response from the Teacher’s Representative, dated 22 July 2022
3. A Vulnerable Witness Application email from the Teacher’s Representative, dated 14 July 2022
4. July 2022, including [redacted]
5. Presenting Officer’s response to the Teacher’s application 
6. Email from the Teacher’s Representative with amended Vulnerable Witness Application, dated 27 September 2022
7. Email communication between the Parties and the Servicing Officer regarding the extent of the procedural matters.

Preliminary Matters

The Panel carefully considered the terms of Rule 2.5.1:

‘At any stage of proceedings, a Panel of its own volition, on the Convener’s direction or
upon the application of a party (in such form as may be specified by the Servicing Officer),
may:
(a) determine any interim or preliminary matter that has arisen in the case;
(b) resolve any issues of law; or
(c) consider an application for a case to be cancelled.

Unless a party has (in the relevant application) requested that a procedural hearing be held or a Panel considers that such a hearing is necessary in the particular circumstances, the above matters will be considered by a Panel at a meeting based on the written representations made by the parties in compliance with case management directions set for this purpose.’

The Panel noted that neither of the Parties requested a procedural hearing in the submissions made. Further to this, the Panel considered that a procedural hearing was not necessary. Therefore, the Panel proceeded to consider the matters on the papers.

Vulnerable Witness Application

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 allegation(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.’

Rule 1.7.30 states:

‘Provided that the parties have been given an opportunity to make representations on the matter, a Panel may adopt such measures as it considers necessary to enable it to receive evidence from a vulnerable witness. These measures may include but will not be limited to:

(a) use of video links;
(b) use of pre-recorded evidence, provided always that such witness is available at the hearing for cross-examination and questioning
(c) use of interpreters; and
(d) the hearing of evidence in private.’

In support of his application, the Teacher produced [redacted].

The Presenting Officer took no issue with a written statement being relied upon by the Teacher as examination in chief.

Decision

The Panel carefully considered the application. The Panel had regard to the Rules and the GTC Scotland Practice Statements, in particular the Health Matters and Medical Evidence and Witnesses and Hearsay Evidence Practice Statements, as well as the advice as required of the Legal Assessor and Servicing Officer. The Panel also considered the Privacy and Anonymity Practice Statement and the Fitness to Teach Publication Policy regarding the disclosure of the identity of a vulnerable witness.

The Panel took into account the guidance provided by GTC Scotland’s Health Matters and Medical Evidence Practice Statement. This practice statement details the requirements of the medical evidence provided in support of any applications. It states that the medical evidence should set out ‘(i) a specific diagnosis; (ii) the severity of the conditions(s); (iii) a specific explanation of how the condition(s) impact upon the attendance at the hearing and/or engagement with the hearing process (as well as any recommendations as to reasonable adjustments that could or should be made to facilitate attendance/engagement); (iv) what the treatment is; and (v) what the prognosis is.’

The Panel took account of the provisions of Rule 1.3.7 that the general objective of the Rules is to deal with cases fairly and justly and in terms of Rule 1.3.8 that includes, so far as practicable, dealing with them in ways which seek informality and flexibility in proceedings and ensures that parties are able to participate fully in proceedings.

The Panel took account of the provisions of Rule 1.7.3 that a Panel, unless it orders otherwise, would normally order that the identity of any vulnerable witness should not be disclosed at such proceedings to the public and for measures seeking to prevent a vulnerable witness at a public hearing being identifiable by members of the public. The Panel took into consideration the Privacy and Anonymity Practice Statement and the Fitness to Teach Publication Policy which provides that the default position is that fitness to teach hearings are held in public and that Panels must be satisfied that there is a compelling reason for granting a restriction on publication in order to protect an individual’s private life and that the publication of Fitness to Teach information helps GTC Scotland to meet their statutory responsibilities and protect the public.

The Panel appreciated that it should carefully and proportionately balance all 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 determined that [redacted] as the medical evidence provided to the Panel met the requirements set out in the Health Matters and Medical Evidence Practice Statement. It was content to proceed with the information available to it.

The Panel accepted that the Teacher be treated as a vulnerable witness [redacted]. However, the Panel ordered that no measure is approved to prevent the disclosure of the identity of the Teacher, in accordance with the default position that fitness to teach hearings are held in public, that the Panel was not satisfied that there is a compelling reason for granting a restriction on publication in order to protect the Teacher’s private life, and that the publication of Fitness to Teach information helps GTC Scotland to meet their statutory responsibilities and protect the public.

Accordingly, the Panel granted the application for the Teacher to be designated vulnerable witness status, and for his evidence-in-chief to be given in the form of a signed written statement. For the avoidance of doubt, in accordance with Rule 1.7.3, the Panel ordered that, regardless of the Teacher’s vulnerable witness status, the full hearing take place in public, and that the identity of the Teacher will be disclosed in proceedings.

Application for a Virtual Hearing

The terms of Rule 1.7.6 provides that:

‘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 part of the hearing is to be held in public, the method used also allows the public to hear proceedings’

An application dated 16 June 2022 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 Christie Wishart, Thompsons Solicitors

• Does the Teacher have any particular needs or vulnerabilities?

These were noted above under the vulnerable witness application but raised no specific issues for a virtual hearing.

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

It is a matter for the Teacher and his Representative as to how they will communicate during the hearing. The Panel expect that the manner of communication will be agreed between the parties.

• The nature of the issue(s) to be determined e.g., procedural or final outcome?

The Application is in relation to a Full Hearing. The allegations are not admitted in full and the hearing will therefore commence substantively at stage 1.

• The length of the hearing

A running order has not yet been prepared. The Presenting Officer considers that 6 days will be required to conclude this hearing.

• The extent and complexity of the issues remaining in dispute

There is a factual dispute regarding the actions of the Teacher, but this is not considered to be overly complex. Thereafter, if the allegations are found proved, the Panel will require to assess the issues of impairment and thereafter sanction, if applicable.

• The length of time witnesses are expected to give evidence for

It is not anticipated that each of the witnesses for GTC Scotland will be required to give evidence for more than 2 hours. The Panel was not provided with any detail regarding the duration of the Teacher’s witnesses’ evidence, if any.

• Nature of the witnesses (vulnerable; professional; expert); and the needs of those witnesses

The witnesses consist of one pupil witness, a parent witness and two professional witnesses. The Panel were not made aware of any particular needs or other vulnerabilities in respect of any 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 will be entirely possible for a Panel to reach the same conclusions on credibility and reliability as it would have had the evidence been given in person.

• 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 confidence that the Teacher and other witnesses will be able to follow questions easily and any document referred to.

• Will the hearing take place in public or private?

The hearing will take place in public.

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

The combined papers extend to 287 pages at this time. It can be identified in advance what documents a remote participant requires access to. ‘Mini’ evidence bundles containing any documentation parties wish to direct witnesses to will be collated and emailed to witnesses immediately before they are due to give evidence.

• 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?

A test can be conducted with each party in advance of the hearing to assess this issue if necessary. It is anticipated that all witnesses will have suitable means to give evidence, have suitable internet connection and have an appropriate location to give their evidence from.

The Panel also noted that the Teacher’s Representative had indicated on the Teacher’s behalf that he supported the application for a virtual hearing as it would allow him to be in familiar surroundings and so help to reduce the anxiety that these proceedings could bring.

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. 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. The Panel observed that the Teacher’s Representative had indicated on the Teacher’s behalf that he would be engaging in the fitness to teach proceedings and had no objection to them being held virtually. In accordance with Rule 1.7.6, a virtual hearing would still allow the parties, any witnesses, and the Panel to hear each other and the public to hear the proceedings.

Accordingly, the Panel granted the application for the Teacher’s full hearing to be conducted virtually.