Home > Regulation > Outcomes > Procedural Hearing Outcome - 7 May 2020 General Teaching Council for Scotland Fitness to Teach Panel Outcome Procedural Hearing Outcome 7 May 2020 Teacher Tracie McGee (not present) Registration Number 185119 Registration category Applicant - Primary Panel Arthur Stewart (Convener), Michelle Farrell and Helen James Legal Assessor Robert Frazer Servicing Officer Kirsty McIntosh Presenting Officer Catriona Watt, Anderson Strathern Teacher's representative Darren Wapplington (NASUWT) 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 and Appeals Rules 2012 or refers to a provision (or provisions) within them Background The Procedural Hearing was arranged to consider an application made by the Presenting Officer for the Panel to consider a legal point relating to the burden of proof. Due to the ongoing Covid-19 pandemic, it was agreed between the Servicing Officer and the parties that the hearing would be conducted remotely. 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: PH1 Presenting Officer submissions, dated 21 April 2020 PH2 Presenting Officer list of authorities, dated 21 April 2020 PH3 Full Hearing Decision, dated 10 and 11 March 2020 PH4 Certificate of decision of the SSSC Conduct Sub-Committee, dated 17 February 2020 PH5 Presenting Officer Full Hearing Papers, dated March 2020 PH6 Applicant Representative’s submissions, dated 28 April 2020. Preliminary Matters None arising. Background The case had commenced as a Full Hearing on the 10 and 11 March 2020. The Panel had required to deal with a number of preliminary issues on these dates. A cancellation application was made by the Applicant’s Representative, on behalf of the Applicant, which, having heard full submissions from both parties, was refused by the Panel. Thereafter, of its own volition, the Panel proposed an amendment to the allegations which was not opposed by either party and was therefore granted. The Applicant initially admitted the allegations in full and, as a result, the hearing progressed to stage 2 (Fitness to Teach), and the Applicant started to give evidence on the issue of her fitness to teach. During the course of her evidence at this stage, it became apparent that she did not admit all of the allegations in full. The Convener of the Panel led the Applicant through each of the allegations and it was established that some of the allegations were denied entirely, and others in part. As a result, the Panel determined that those allegations that were not fully admitted would require to be proved in the usual manner as part of the Fact-Finding stage of the hearing process. Following this change of position, the Presenting Officer, on behalf of GTCS, made an application to adjourn the hearing until a later date to enable her to consider her position and lead additional evidence if she chose to do so. The Applicant’s Representative opposed the application. Having considered all matters, the Panel determined that it was fair and in the interests of justice to grant the application to adjourn. In doing so, the Panel set a timetable so that the Parties could liaise with the Servicing Officer regarding certain matters, in order to allow the case to resume as a Full Hearing as soon as practicable. Having considered her position, the Presenting Officer then requested this Procedural Hearing, in terms of Rule 2.5.1. The purpose of the Procedural Hearing was to allow her to make an application to request that a ruling be made by the Panel on whether, in the particular circumstances of the case and, with regard to Rule 1.7.20, the burden of proof of the allegations had shifted from GTCS to the Applicant. Submissions The Presenting Officer adopted her written submissions which had been supplied to the Panel in advance of the Procedural Hearing. She explained that the allegations were based on the decision of a Conduct Committee of the Scottish Social Services Council (SSSC) dated September 2016 in which the allegations now faced by the Applicant had been proven, as a result of which her fitness to practise as a social worker was found to be impaired. With reference to Rule 1.7.20, the Presenting Officer submitted that in circumstances where an adverse finding was made by another regulatory body it was sufficient for a certified copy of such a decision to be produced and relied upon by GTCS. In doing so, she submitted that the onus for challenging that finding, which included the present allegations, rested on the Applicant. As a result, she submitted that it was unnecessary for GTCS to lead further evidence in support of the allegations. The Presenting Officer referred the Panel to the authorities she had provided in support of her application. In particular, she referred to the law as set out in Stair’s Memorial on the Laws of Scotland at paragraph 117 on Statutory Certificates which states that in such cases which allow for certificates to take the place of oral evidence and, where such evidence is not considered conclusive, then corroborative evidence is unnecessary but ‘evidence in rebuttal may be led’. In addition, she referred to the case of GMC v Spackman  AC 627 and the quotation from the judgement of Simon LJ at paragraph 635 in which he stated: ‘It seems obvious, in these other circumstances, that, while the council might well treat the conclusion reached in the courts as prima facie proof of the matter alleged,it must, when making “due inquiry” permit the doctor to challenge the correctness of the conclusion and to call evidence in support on his contention. The previous decision is not between the same parties. There is no question estoppel or res judicata. In such cases the decision of the courts may provide the council with adequate material for its own conclusion if the facts are not challenged before it, but, if they are, the council should hear the challenge and give such weight to it as the council thinks fit.’ The Presenting Officer recognised that Rule 1.7.15 states that the onus of proving factual allegations that are in dispute rests on GTCS but that had to be read in conjunction with Rule 1.7.20 which could be regarded as an exception to Rule 1.7.15. It was, therefore, her position that in the particular circumstances of this case the onus of disproving or challenging the allegations lay with the Applicant. In response, the Applicant’s Representative opposed the application. He adopted his written submissions which he expanded upon. In essence, he submitted that Rule 1.7.15 was clear in its terms; namely that the burden of proof of any allegations which were in dispute lay with GTCS. He further submitted that Rule 1.7.20 made clear that a certified decision of another regulatory body was considered as prima facie evidence of the allegations but not conclusive proof of them. This could be contrasted with Rule 1.7.18 where it is explicitly stated that an extract conviction or copy of the certificate of a criminal conviction certified by a competent officer of the relevant court was to be regarded as conclusive proof of the conviction and the criminal offence. The Applicant’s Representative indicated that dependent on the Panel’s decision, a further application to cancel the case might need to be considered by the Applicant. Decision The Panel considered the application and the issues around the relevant rules very carefully. It took account of parties’ written and oral submissions, as well as the legal advice provided. In particular, it considered the legal dictionary definitions of ‘prima facie evidence’ provided by the Legal Assessor: ‘a phrase sometimes used to denote evidence which established a prima facie case in favour of the party adducing it’ (Mozley & Whitely’s Law Dictionary 9th edition) ‘evidence of a fact that is of sufficient weight to justify a reasonable inference of its existence but does not amount to conclusive evidence of that fact’ (Oxford Dictionary of Law Enforcement 2007) The Panel noted there was no guidance note in relation to the application of Rule 1.7.20. The Panel recognised that the Rule is rarely used and it was, therefore, important to properly set out its reasons and understanding of the relevant rules and the procedure that flows from them. Firstly, the Panel considered Rule 1.7.15. It considered that this Rule, which precedes Rule 1.7.20, was very explicit in its terms. The burden of proving any facts which are in dispute rests with the Presenting Officer for GTCS. The standard of proof required is the balance of probabilities. The only exception that is set out in the Rule is that of a Subsequent Registration Application where the burden (of proving fitness to teach) rests with the applicant who is applying to come back onto the Register. The Panel noted that there is nothing else within this Rule to suggest that the burden or onus of proof changes when dealing with a case under Rule 1.7.20 (a decision from another regulatory body). Secondly, the Panel took account of Rule 1.7.17 which states that, subject to requirements of relevance and fairness, a panel hearing a case may admit oral, documentary or other evidence, whether or not such evidence would be admissible in civil or criminal proceedings in the United Kingdom. In other words, the Panel considered, that neither party is to be constrained in relation to the sort of evidence it might choose to introduce and rely on at a Full Hearing, provided it was relevant and fair to do so. This included documentary evidence which, where not spoken to by a witness, would be treated as hearsay evidence. Thirdly, the Panel noted that Rules 1.7.18 and 1.7.19 specifically deal with an allegation brought by reason of a criminal conviction. It noted that in terms of Rule 1.7.18 (a) an extract or certified conviction is conclusive proof of that conviction and, in terms of Rule 1.7.19 the only evidence thatcan be presented by a teacher in rebuttal of such an extracted or certified conviction is evidence to prove that the teacher is not the person who has been convicted. In other words, the Panel considered that, where a teacher has been a convicted of a criminal offence that represents, (i), conclusive proof of that offence having been committed by the teacher and, (ii), can only be challenged on the basis of wrong identity. The Panel considered that this differs from Rule 1.7.20. Finally, the Panel then considered Rule 1.7.20. It noted that this dealt with the circumstances where a teacher has been subject to previous finding by another professional regulator and, as a result of such a finding, was now subject to allegations which might impact on his/her fitness to teach. The Rule made clear that a certificate of the determination properly signed by the other regulator ‘will be admissible as prima facie evidence of the facts referred to in the determination’. The Panel considered this specifically distinguished it from other non-certifcated documents which, having regard to rule 1.7.15, whilst admissible, would not have the same weight or inference attached to them. The Panel considered that, with regard to all of the above, Rule 1.7.20 meant that firstly, the Presenting Officer could present the relevant certificate in support of the allegations and, secondly, this would be sufficient to justify a reasonable inference that the facts in relation to those allegations were true. However, unlike Rule 1.7.18, a determination made by another professional regulator did not amount to conclusive proof of those facts. For these reasons, the Panel determined that the burden or onus of proof still rests on the Presenting Officer, which was in accordance with Rule 1.7.15. The Panel took into account the authorities provided by the Presenting Officer in support of her position. In particular, it considered that the commentary set out in Stair’s Memorial at paragraph 17; ‘where a certificate is described as sufficient or prima facie evidence, corroborative evidence is unnecessary but evidence in rebuttal may be led’; represented the correct understanding as to how Rule 1.7.20 is to be applied. The Presenting Officer does not need to lead further evidence in support of the allegations, but the certified decision of the SSSC was not to be considered as conclusive proof of those allegations. The Applicant was therefore entitled to challenge (rebut) the allegations and may lead such evidence,with reference to Rule 1.7.17, as she decides. The Panel further considered that the quotation from the case of GMC v Spackman (ut supra) supported the proposition stated in Stair above. In making ‘due inquiry’, the Panel considered that the Applicant is permitted to challenge the correctness of the decision by the SSSC and is entitled to present evidence in support of her challenge. It will be for the Panel, having heard and taken account of all the evidence, to then determine if the facts are found proved to the necessary standard of the balance of probabilities (Rule 1.7.15). In summary, the Panel concluded that the burden of proof, in this case, rests throughout on the Presenting Officer. In accordance with Rule 1.7.20, the Presenting Officer is entitled to rely on the certified decision of the SSSC in support of the allegations that the Applicant faces and does not require to lead any other corroborative evidence. In return, the Applicant is permitted to challenge the facts on which the decision was based and is also entitled to lead what evidence she chooses in support of her position (subject to Rule 1.7.17). Beyond these comments, the Panel did not consider it appropriate or its role to direct either party as to what evidence they may choose to present in support of their respective positions. That is a matter for each party in the exercise of their professional judgement. Finally, the Panel was aware that given the Full Hearing commenced on 10 March 2020, there is a need to deal with this matter as expeditiously as possible. It therefore proposed, in terms of Rule 2.4.2, that the case may benefit from a Case Management Discussion on a date to be confirmed in order that parties may report to the Convener on their preparedness for the resumption of the Full Hearing itself. The Panel suggested that this include confirmation of the evidence each party intends to rely on and disclosure of the nature of that evidence to the other party. The Panel is further aware of the present difficulties caused by the restrictions around Covid-19 and recognises that this will inevitably impact on the dates when the Full Hearing may properly and safely resume. Given that this Full Hearing began prior to the Government’s lockdown restrictions were put in place, it is hoped that this matter can be given priority once restrictions are lifted and it is considered safe and practical to do so.