GTC Scotland

The General Teaching Council for Scotland

General Teaching Council for Scotland Fitness to Teach Panel Outcome

           

Panel Meeting Outcome

17 July 2020

 Teacher Tracie McGee
 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
 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
  • 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

In advance of the Full Hearing resuming this Panel Meeting was arranged to consider the following applications:

  • An application made by the Presenting Officer for the remainder of the Full Hearing to be held virtually; and
  • An application made by the Applicant’s Representative for the remainder of the Full Hearing to be held in private.

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 Application for a Virtual Hearing, dated 1 July 2020
  2. Applicant Response to Application for a Virtual Hearing, dated 3 July 2020
  3. Applicant Application for Private Full Hearing, dated 6 July 2020
  4. Presenting Officer response to Application for Private Full Hearing, dated 9 July 2020

Application for Virtual Full Hearing

Following the adjournment of the Full Hearing from 11 March 2020, matters were superseded by the Covid-19 pandemic and the Government lockdown restrictions that were put in place. Accordingly, the timescale proposed by the Panel on 11 March 2020 was unable to be complied with.

As a result of this delay, the Presenting Officer applied for the Full Hearing to be resumed as a virtual hearing by the use of electronic communications. She did so with reference to Rule 1.7.6 which allows any part of a hearing to be conducted by electronic communications provided; (a) parties are given the opportunity to be heard and the panel considers such a proposal is just and equitable in all the circumstances; (b) the proposed method of communication allows the parties, witnesses and the Panel to hear one another simultaneously and; (c) the proposed method allows members of the public to hear the proceedings.

The Presenting Officer further indicated in her written submissions that it was suggested the hearing be conducted by way of Microsoft Teams as had been used by other GTCS panels dealing with procedural hearings during this same period since the Government restrictions came into operation.

The Applicant’s Representative did not oppose the application in principle. He did so on the basis that the Applicant was very anxious to have the case completed as quickly as possible in the hope that this would allow her to take up the probationary position that has been offered to her and which she is due to commence on 10 August 2020, subject to the Panel’s decision on facts and her fitness to teach. The Applicant’s Representative further indicated that his agreement to proceeding with the remainder of the Full Hearing by way of electronic communications was subject to the proviso that the hearing should be completed by 31 July 2020 and that, in all the circumstances, the Panel announce its decision orally at the conclusion of the hearing rather than await the written decision within the normal 28 day period following its conclusion.

Panel Decision

The Panel had regard to the parties’ written submissions as well as the legal advice provided. It was very conscious of the unique situation that this case was now in as a result of the Covid-19 pandemic and the very difficult position this now placed parties in, through no fault whatsoever. It was also conscious of the need to ensure that the hearing, having commenced, required to be dealt with fairly and justly. The public interest also demanded that there was a need to ensure the remainder of the hearing was dealt with as expeditiously as possible.

In these particular circumstances the Panel agreed that it was in the interests of justice for the remainder of the hearing to be conducted by electronic communications as outlined. It noted that this was agreed to by the Applicant and the Panel also considered it was in her interests for the matter to be concluded as soon as possible, having regard to the history of the case and the prospect of the offer of employment which was available to her.

In making this decision the Panel considered that it had already seen the Applicant commence her evidence under oath on 10 March 2020 and that it would continue to see her by way of the proposed Microsoft Teams meeting. It was conscious that this method had been successfully used in in other GTCS procedural hearings during this period, albeit not where live evidence had been taken from a witness.

The Panel noted that the only live witness was intended to be the Applicant and it was confident that the remainder of her evidence could be completed successfully by way of video-link. In doing so it was conscious of the need to ensure that this is done fairly.

In relation to the other issues raised by the Applicant’s Representative, the Panel was aware that it was not possible for the hearing to be concluded by 30 July 2020 and that parties were now content for this date to be extended to 5 August given the availability of those involved in the hearing. Given the very tight timescale before the possible date for commencing her probationary role as a teacher the Panel undertook to ensure that a written determination is issued to parties prior to 10 August 2020. The Panel further agreed that, in the highly unusual circumstances of this case, an exception be made that the Panel’s ultimate decision should be announced orally to parties at the end of the hearing, scheduled for 5 August 2020.

Application for Privacy

The Applicant’s Representative made a separate application for the remainder of the hearing to be held in private. He did so under Rule 1.7.3 which allows a panel to consider such an application where it is in the interests of justice to do so and where the particular circumstances of the case outweigh the interests of the Applicant and the wider public in the hearing being conducted in a public forum, as envisaged by Rule 1.7.2. This application was opposed by the Presenting Officer.

In his written representations the Applicant’s Representative submitted that the principle concern was that members of the public would be able to freely access the virtual hearing without restriction or any control being exercised by GTCS or the Panel. In such circumstances, he submitted, that there was a risk that the evidence and content of the hearing could be recorded and/or distributed to other members of the public in such a fashion that the hearing itself would be compromised. In addition, he submitted that the Applicant herself could potentially be intimidated in giving her evidence if the hearing was capable of being viewed by pupils, staff and others associated with her potential employer for the next academic year. In his submission this was inherently unfair to the Applicant.

In her written response the Presenting Officer submitted that the application did not meet the threshold for the entire hearing to be held in private as envisaged by the GTCS Practice Statement on Privacy and Anonymity.

The Presenting Officer further submitted that appropriate safeguards would be put in place in relation to anyone wishing to view the virtual hearing and that it was the intention of GTCS to ensure that (i) the notice of the resumed hearing would be published on its website in the usual way; (ii) anyone wishing to be connected to the virtual hearing would require to notify GTCS at least 24 hours in advance in order that they then be sent a secure link to join the hearing; and (iii) GTCS and the Panel Convener would issue written and oral directives on the conduct and expectations of anyone so attending.

The Presenting Officer further submitted that Rule 1.7.2 made clear that hearings shall be in public unless the Panel was satisfied by the criteria set out in Rule 1.7.3. If anything of a private nature were to be discussed during the hearing itself then the Applicant or the Panel, of its own volition, could raise the issue in order to allow that particular part of the hearing to be conducted in private, if it was appropriate to do so.

Panel Decision

The Panel gave careful consideration to the application, the parties’ written submissions and the legal advice provided. It took account of Rules 1.7.2 and 1.7.3 as well as the relevant GTCS Practice Statement on Privacy and Anonymity. The Legal Assessor referred to the case of Wilford v Financial Services Authority [2013] EWCA Civ 674 and, in particular, the passage at paragraphs 5 which states:

‘The starting point is the principle of open justice, that is the principle that proceedings are conducted and determined in public.’

The Panel considered that the principle of open justice was an important principle in UK law and was only to be restricted in very particular circumstances. It noted that, with reference to the GTCS practice note, Article 6 of the European Convention on Human Rights (‘ECHR’) states that the principle should only be interfered with in the following circumstances:

  1. In the interests of morals, public order or national security;
  2. Where the interests of juveniles so require;
  3. Where the protection of private life of the parties so require; or
  4. Where, in the opinion of the court/forum special circumstances exist which would prejudice the interests of justice.

The Panel did not consider that (a) or (b) were relevant to the application. In relation to (c) the Panel did not consider that there was anything within the application to suggest that the Applicant’s right to a private life would be interfered with. If matters of a private nature were raised during the hearing, she and/or the Panel would have the opportunity to address such issues at that time.

In relation to (d), the Panel did not consider there was anything contained in the application to suggest that special circumstances existed to suggest that the interests of justice would be prejudiced by the hearing continuing to be held in public. In making this decision the Panel noted that the hearing had already commenced in public on 10 and 11 March 2020. It noted that the Applicant is not in employment at the present time and so no pupils, staff or parents of pupils will be aware of these proceedings. It further noted that GTCS had taken steps to put in place arrangements for members of the public attending a virtual hearing which would require anyone wishing to attend to notify GTCS in advance and comply with the necessary guidelines in order to ensure the hearing is conducted in a fair and just manner. In other words, the Panel considered that the virtual hearing could not be viewed by members of public who had not contacted GTCS in advance as they would not have the necessary link to view the proceedings. As such, the virtual hearing was in no different position to that of the public hearing which took place on 10 and 11 March 2020, with the exception of the content of the advance notice which was an explicit requirement of the virtual hearing process.

On this basis the Panel was satisfied that special circumstances did not exist to suggest or indicate that the interests of justice would be prejudiced by the hearing continuing to be dealt with in a public forum and in accordance with Rule 1.7.2.

For the above reasons the Panel determined to refuse the application for privacy. In doing so the Panel noted that the Applicant is entitled to make a further application for privacy at any time during the course of the resumed hearing, provided there has been a change in circumstances..