Procedural Meeting – Donna Gilchrist

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 Panel Meeting was arranged to consider the following:

• An application from the Teacher that her fitness to teach case be cancelled;
• An application from the Presenting Officer that the Teacher’s full fitness to teach hearing be conducted virtually; and
• An application from the Presenting Officer that the pupil witnesses in the case be treated as vulnerable witnesses.

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:

Case cancellation

1. Email from Teacher regarding cancelling the case, dated 5 July 2021
2. Cancellation Application from Teacher (email), dated 22 July 2021
3. Further email from Teacher regarding cancellation, dated 6 August 2021
4. Presenting Officer’s response to Teacher’s Cancellation Application, dated 5 November 2021
5. Email from Servicing Officer to Teacher regarding Presenting Officer’s response to
6. Cancellation Application (as well as test call for virtual hearing), dated 10 November 2021
7. Chaser email to Teacher re: Presenting Officer’s response to Cancellation Application, dated 5 January 2022.

Virtual hearing and vulnerable witness

1. Virtual Hearing and Vulnerable Witness applications by Presenting Officer, dated 30 July 2021, with appendices thereto:
2. Appendix B (for Virtual Hearing application)
3. Virtual Hearing form completed by the Teacher, dated 16 October 2021
4. Email exchanges between Servicing Officer and Teacher regarding suitability for virtual hearing and opportunity to test out technical devices (and cancellation application), dated 5-10 November 2021
5. Chaser email to Teacher re: test call, dated 5 January 2022.

Servicing Officer’s papers

1. Servicing Officer note explaining procedural matters to be considered, dated 7 January 2022.

Preliminary Matters

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

Application for Case Cancellation

An application dated 22 July 2021 was made by the Teacher for cancellation of the case. The Teacher submitted that from the outset she had refuted the allegations on the basis of their being ‘absurd’, that she was incapable of being in two places at one time and that she had proved the evidence to be ‘invalidated and unreliable as it had been tampered with’.

The Presenting Officer opposed the application for cancellation. She submitted that the test for cancellation was a high one and that there required to be exceptional circumstances made out to justify the granting of a cancellation application. The Presenting Officer submitted that such an application could only be granted where the interest in so doing outweighed the need to maintain public interest in proceeding to a full hearing. The Presenting Officer directed the Panel to the Panel Consideration decision dated 27 January 2021. She submitted that the Panel at that stage did not consider it appropriate to dispose of the case in accordance with Rule 2.3.2(a) because it was of the view that the allegations amount to Relevant Conduct. The Presenting Officer submitted that the Panel should refuse the application for cancellation.

Decision

The Panel had careful regard to all the available information and the parties’ written submissions. It took account of the advice provided, as required, by the Legal Assessor and the Servicing Officer. The Panel had careful regard to the Rules and the GTC Scotland Case Cancellation Practice Statement. It noted that the over-riding objectives of GTC Scotland are to ensure public protection and, in particular, young persons, as well as recognition of the wider public interest. The Panel noted the need to ensure that the Rules are applied fairly and justly with regard to Rules 1.3.7 and 1.3.8.

Rule 2.10.9 of the Rules provides:

‘A Panel may at any time following the referral of a case to it for a hearing decide to cancel a case (and dispose of it on that basis). Before making any such decision, a Panel must have heard from the parties on the matter and must be satisfied that it is in accordance with the general objective and in the public interest to do so.’

The Case Cancellation Practice Statement provides that there is no prescribed list of circumstances in which cancellation of a case may be sought. However, the Practice Statement does provide some outline of situations in which parties may wish to make such an application. The situations suggested include where: there is an insufficiency of evidence in a conduct case; the allegations if proved would not amount to current impairment; there had been a serious procedural irregularity or error of law; or any other matter that had or could have had a material effect on the fair running of a case. In addition, the Practice Statement states that a Panel must have regard to the general objective of the Rules to deal with cases fairly and justly as further defined in Rules 1.3.7 and 1.3.8, and must also consider the public interest.

Having considered the application and submissions made, evidence provided and relevant guidance in the Rules and Practice Statements referred to, the Panel refused the Teacher’s application for cancellation. The Panel were not satisfied that the grounds submitted justified the granting of the application. The Panel noted that there was a substantial factual conflict between the parties which required to be determined by a Panel at a Full Hearing. The Panel noted that the Presenting Officer opposed the application. It noted that the Teacher’s application appeared to rely upon an insufficiency of evidence to proceed with the case and that with no possibility of a Panel finding the facts proved that it would be unfair to proceed with the case. There had been no submissions about any error of law or serious procedural irregulatory that would make the proceedings unfair. The Panel considered that if the allegations were proved they may amount to current impairment. The Panel considered that the Teacher had not established a substantial argument for cancellation. Finally, the Panel was not satisfied that cancellation was appropriate having regard to the public interest in the protection of children from harm, the public’s confidence in the teaching profession and in GTC Scotland as a professional regulator.

Accordingly, the Panel refused the Teacher’s application for cancellation.

Application for Virtual Hearing

An application dated 30 July 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 not represented.

• Does the Teacher have any particular needs or vulnerabilities?

The Teacher has not made any submission that any needs or vulnerabilities are relevant to the virtual nature of the hearing.

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

This is not applicable, as the Teacher is not represented. However, if the Teacher decides to obtain representation, the method of communication during a hearing would be a matter for the Teacher and representative.

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

This would be a Fitness to Teach Full Hearing on the Teacher’s conduct to commence at Stage 1.

• The estimated length of the hearing?

The anticipated duration of the hearing is 5 days.

• The extent and the complexity of the issues in dispute?

There is a factual dispute with regard to the Teacher’s actions. The issues are not overly complex and are spoken to by various witnesses.

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

The hearing will take place in public.

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

The Presenting Officer’s bundle extends to 416 pages.

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

There are nine witnesses; five professional, one parent and three pupils.

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

It is estimated that each witness will give evidence for no longer than 1 hour.

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

The Panel noted a vulnerable witness application made for the three pupil witnesses. The Panel were not made aware of any particular needs or vulnerabilities of the remaining six 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 each participant will be able to follow questions posed and documents referred to easily.  

• How will witnesses be provided with hearing documentation?

The proposed individual witness bundle will be emailed to each witness shortly before they are due to give evidence. The Teacher has indicated that she will be unable to receive documents electronically.

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

It is anticipated that each participant has access to a suitable electronic device. In addition, it is noted that GTC Scotland and participants can perform checks in advance of any virtual hearing if required to ensure that such a hearing is at that time viable.

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

It is anticipated that each participant has access to a suitable internet connection and that test calls can be conducted by GTC Scotland prior to the hearing if required.

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

It is anticipated that each participant has an appropriate location from where they can participate alone and undisturbed and that this will be checked during a test call if required. If participants do not have access to an appropriate location, it is expected that they make alternative arrangements.

The issue of the assessment of the credibility and reliability of witnesses at a virtual hearing was considered. It was considered that it will be possible for a Panel to assess credibility and reliability because a number of virtual hearings have taken place and there has been no issue of this nature.

Decision

The Panel appreciated that it should balance all the relevant factors outline 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 the 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. The Panel did not consider that there were any personal, evidential, practical or technical reasons to refuse the application. In addition, the Panel observed that the Teacher had requested to give her evidence to the Panel virtually. Further, given the ongoing issues caused by the Covid-19 pandemic and emerging variants, there would be a considerable delay in the progress of the present proceedings if the application were to be refused. The Panel noted the Teacher’s position that due to the nature of her electronic device documents could not be sent to her electronically. The Panel considered that all relevant documentation be sent to the Teacher by secure post in advance of the full hearing. The Panel noted that the Teacher was currently using a PlayStation to access the internet, but had indicated she should be able to obtain a webcam and microphone. The Panel considered that the Teacher should have sufficient time to obtain suitable equipment, and that any issues doing so could be raised with the Servicing Officer.

Accordingly, the Panel granted the application for the hearing to take place virtually.

Vulnerable Witness Application

A vulnerable witness application dated 30 July 2021 was made by the Presenting Officer in relation to the three pupil witnesses. The Panel considered the application and the Teacher’s response. The Panel also had regard to the advice, as required, of the Legal Assessor and the Servicing Officer.

Decision

The Panel had careful regard to the application made and the Teacher’s response. The Panel also took account of the provisions within the Rules and guidance provided by GTC Scotland Practice Statements, in particular the Witness and Hearsay Evidence Practice Statement.

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…’

Rule 1.7.30 states:

‘Provided that parties have been given the 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.’

The Panel decided to grant the application and ordered that the three pupils would give their evidence virtually with a supporter present. The Panel noted Rule 1.7.31, which states that ‘where – (a) a witness is defined as a vulnerable witness; (b) the Teacher is not represented; and (c) a Panel considers it necessary, the Teacher will not be allowed to examine or cross examine the witness. In such circumstances, examination or cross examination of the witness will be undertaken by such means, or by such person, as the Panel considers appropriate’. The Panel noted that the parties had not specifically made representations on this, and considered that the requirement for this and any additional measures with regard to the vulnerable witnesses would be appropriate for the Panel at the Full Hearing to determine. The Panel noted the Teacher had not indicated her position with regard to the Presenting Officer’s application, but had been given the opportunity to do so.

Accordingly, the Panel granted the application for the three pupil witnesses to be treated as vulnerable witnesses.