Procedural Hearings – Case Cancellation – Teacher B

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 GTCS Fitness to Teach Rules 2017 or refers to a provision (or provisions) within them.

Background

The Procedural Meeting was arranged to consider the following:

Case Cancellation Application by the Presenting Officer

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:

• Application by the Presenting Officer for the case cancellation of the case, including:
  • Chronology
  • Presenting Officer's Full Hearing Papers:
    • Statement obtained from [redacted] (undated)
    • Statements obtained from [redacted], dated 12 June and 12 October 2021
    • Statement obtained from [redacted], dated 3 November 2021
    • Statement obtained from [redacted], dated 21 October 2021
    • Email from [redacted] to Investigating Officer dated 8 June 2021
    • Emails between Investigating Officer and [redacted] dated 6-12 July 2021
    • Teacher’s statement in response to the interim report, dated 10 August 2021
    • Email from [redacted] to Investigating Officer, dated 26 February 2021
    • Reference from [redacted], dated 17 November 2021
    • Reference [redacted], undated
    • Notice of investigation, dated 11 May 2020
    • Notice of panel consideration, dated 12 November 2021
• Teacher’s response to application, dated 10 January 2024, including:
  • Supplementary statement by Teacher B
  • Character reference
• Final response from the Presenting Officer  
• Letter from the Teacher's representative regarding timescales

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 matter on the papers.

Presenting Officer’s submissions

The Presenting Officer made the following written submission:

The Presenting Officer makes a Case Cancellation Application in the above case under Rule 2.10.9 of the Fitness to Teach Rules 2017 (the 2017 Rules) and in line with GTC Scotland’s Case Cancellation Practice Statement, on the basis of the continued non-engagement of Pupil A and an expressed unwillingness to attend the Full Hearing.

Rule 2.10.9 of the 2017 Rules states “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 be satisfied that it is in accordance with the general objective and in the public interest to do so.”

Rule 2.5.1 of the 2017 Rules states “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”. It is under this Rule that the Panel are invited to consider this application.

Allegations

The allegations which were considered and referred for a Fitness to Teach Panel hearing are:

‘On dates unknown between 2002 and 2005 whilst employed by [redacted], and in the course of his employment, the Teacher did:

(a) force Pupil A to perform oral sex on him; and
(b) insert his penis into Pupil A’s vagina without her consent.

In light of the above it is alleged that the Teacher’s fitness to teach is impaired, and he is unfit to teach as a result of breaching Parts 1.2, 1.3, 1.4, 1.6 and 2.3 of the General Teaching Council for Scotland’s Code of Professionalism and Conduct (COPAC) 2012.'

Chronology

A witness statement was obtained from Pupil A which was signed and returned in 2020. However, the statement was not dated. There was some considerable delay in the Investigating Officer further progressing the investigation due to difficulty in continuing to engage Pupil A in the process. Emails sent to Pupil A were often responded to with suspicion and hostility and the Investigating Officer was required to consider at one point whether progression of the case would be possible. However, in July 2021, Pupil A confirmed that she would be able to engage provided appropriate supports are put in place to assist her in the giving of her evidence at any full hearing.

Following the Notice of Hearing being issued on 9 November 2023, contact was made with the relevant witnesses, including Pupil A, to confirm the dates of the Full Hearing and to seek completion of the relevant witness response form. Pupil A was contacted by email on 9 November 2023.

Pupil A responded on 9 November 2023 as follows, ‘I wouldn’t be able to continue this, especially as a witness.’

The Presenting Officer contacted Pupil A on 13 November 2023 to invite her to engage in a telephone discussion to discuss her concerns. Pupil A responded on 13 November 2023 as follows, ‘[redacted]’

The Presenting Officer made further attempts to contact Pupil A by email on 17 November 2023 and 15 December 2023. The Presenting Officer also attempted telephone contact with Pupil A on 15 December 2023. Despite these attempts, Pupil A has not reengaged in the process or provided any indication that she is willing to attend the Full Hearing. Any response from Pupil A rests with her correspondence dated 13 November 2023 detailed above.

A copy of the correspondence with Pupil A was before the Panel.

Basis for application

GTC Scotland adheres to its key principles of maintaining and improving teachers’ professional standards and protecting the public by carrying out its fitness to teach proceedings in the public interest. In short, this means (i) protecting the public; (ii) maintaining the public’s confidence in teachers and in the integrity of the teaching profession; (iii) maintaining proper teaching standards and (iv) maintaining public confidence in GTC Scotland as a professional regulator.  GTC Scotland must also carry out its functions proportionally, transparently, consistently and targeted only where needed.

Part of the functions being carried out in the public interest includes continual assessment of each case. Further, Rule 1.3.7 of the 2017 Rules states that the Rules have the general objective of enabling GTC Scotland and panels, with the assistance of the parties, to deal with cases fairly and justly. It is submitted that this objective covers all parties to proceedings and includes the effect on and takes account of the public interest.

Based on the non-engagement of Pupil A, GTC Scotland considers that there is insufficient evidence to proceed with the case and it is therefore considered that the possibility of a panel finding facts proved to be so low that it would not be fair or proportionate to proceed with the case.

It will be noted by the Panel that there are no other direct witnesses to the allegations. The only direct evidence in this case comes from Pupil A. Pupil A’s mother, [redacted], has disengaged from the fitness to teach process and her statement is undated and unsigned. In any event, any evidence that she can provide regarding the allegations would be considered hearsay. The evidence [redacted] does contradict the evidence of Pupil A, particularly in relation to [redacted] assertion that all children were in the playground at playtime and lunchtime and that she cannot confirm whether there were any walk-in cupboards in the classrooms. This has also been confirmed to an extent by the Teacher in his response to the Interim Report, along with further information regarding his time at the school and whether it would have been possible for him to act in the manner alleged without coming to the attention of other adults. [redacted] does also make reference to the locked cupboard within the infant open area that staff would not have a key for, which supports the information provided by the Teacher.

There is also evidence from both [redacted], who worked as classroom assistants with the Teacher in his class. Both witnesses have stated that children were never left alone in a classroom at playtime or lunchtime and that they cannot recall any cupboards in the classroom. Both have stated that whilst they remember Pupil A, nothing about her particularly stands out to them and that neither had any concerns about the Teacher’s teaching whilst they were in his classroom.

In the absence of a sufficiency of the evidence in respect of the allegations due to the non-engagement of Pupil A as a witness at the Full Hearing, allowing the opportunity to be cross examined and the Teacher’s position put to her, it is submitted that this case should be cancelled on the basis that it would not be fair nor proportionate to proceed to a Full Hearing.

Under Article 7 of the Public Services Reform (General Teaching Council for Scotland) Order 2011, GTC Scotland must have regard to the interests of the public when performing its functions. In this assessment consideration is given to whether or not proceeding to a full hearing is necessary for the protection of members of the public, necessary to maintain confidence in the profession and necessary to maintain confidence in the regulator.

In terms of maintaining confidence in the teaching profession and its regulator, GTC Scotland has fully investigated the complaint against the Teacher. The conduct of that investigation is part of satisfying the public that teachers will be held to high professional standards. It is as important, however, that GTC Scotland be seen to act proportionately and not to pursue a fitness to teach case where, given an assessment of the evidence, allegations cannot be proved on the balance of probabilities. It is therefore the view of GTC Scotland that pursuing same would not be in the public interest or necessary to protect the public.

In light of the above, it is submitted that it would not be necessary to protect the public nor in the public interest to proceed with the allegations as detailed above and therefore an application is made for these proceedings to be cancelled.’

The Teacher’s Representative’s submissions

The Teacher’s representative made written submissions as follows:

‘The application is not opposed and is indeed supported by [the Teacher].

We adopt [the Case Presenter’s] arguments. The Complainer is the only witness to the alleged events giving rise to the allegations. Without the engagement of the Complainer, there is no prospect of the allegations being proved. In the circumstances, it would not be proportionate to proceed with the case. These proceedings have caused considerable distress and anxiety to [the Teacher] and to his family. They have been ongoing since 11 May 2020. [The Teacher] has been the subject of a Temporary Restriction Order (to which he consented) since 5 October 2020. Since the outset of these proceedings, [the Teacher] has lived in fear of the allegations entering the public domain. Notwithstanding the measures which have been put in place to protect [the Teacher’s] confidentiality, there is always the risk that if the hearing in this matter proceeds the allegations will enter the public domain which would have serious consequences for both [the Teacher]and his family. In all of the circumstances, the Application for Cancellation should be granted.’

Decision

The Panel accepted the advice of the Legal Assessor. He referred it to the GTC Scotland Case Cancellation Practice Statement which sets out the way in which an application for cancellation should be made and determined, and the considerations which should be taken into account by the Panel in reaching its decision. It is said within the Practice Statement that such applications will usually be considered on the papers.

In reaching its decision the Panel took into account the written submissions of the Presenting Officer and the Teacher’s Representative and the documentation before it. It also took into account the Rules and the Case Cancellation Practice Statement.

The Panel noted that the Practice Statement states as follows:

‘5.2 The panel must discuss the case in private in order to determine the outcome of the Case Cancellation Application. When considering whether the application should be granted or refused, a panel must consider:

• The representations that have been made, together with any relevant evidence submitted;
• The relevant section of the Rules (Rule 2.10.9 for conduct cases and Rule 3.8.8 for competence cases) along with this practice statement and any other relevant practice statement (for example, the health matters and medical evidence practice statement);
• Whether, in the particular circumstances of the case, it is satisfied that it is in accordance with the general objective and in the public interest to cancel the case.

As indicated above, the Panel must consider the general objective of the rules, set out at Rule 1.3.7, which states:-

‘These Rules have the general objective of enabling GTC Scotland, Conveners and Panels, with the assistance of the parties, to deal with cases fairly and justly.’

Rule 1.3.8. goes on to state:-

‘Dealing with a case fairly and justly includes, so far as practicable, dealing with it in ways which:

(a) are proportionate to the complexity of the issues;
(b) seek informality and flexibility in proceedings;
(c) ensure that parties are able to participate fully in proceedings; and
(d) avoid delay, so far as compatible with the proper consideration of the issues.’

5.3 In addition to the general objective, the panel must be satisfied that agreeing to the cancellation of the case is in accordance with the public interest, which will involve consideration of the following:

• The protection of members of the public (in particular, children and young people), both in terms of the teaching setting and beyond;
• The maintenance of the public’s confidence in registrants and in the integrity of the teaching profession;
• The maintenance of the public’s confidence in GTC Scotland as a professional regulator;
• The need to declare and uphold proper teaching standards; and
• The deterrent effect that the case may have upon other GTC Scotland registrants’.

The Panel considered that the allegations were serious. However, it was aware that the burden of proving the allegations was on the Presenting Officer.

The Panel took into account the steps taken by the Presenting Officer to contact Pupil A and to have Pupil A engage with the regulatory process. The Panel determined that the Presenting Officer had made numerous attempts to contact Pupil A for this purpose over a considerable period of time all of which had been unsuccessful. In these circumstances, the Panel concluded that Pupil A had completely disengaged from the regulatory process.

The Panel was satisfied that, as reflected by the Presenting Officer’s submissions, there were no other direct witnesses to the allegations. It accepted that the evidence of Pupil A’s mother would be regarded as ‘hearsay’ and that she had also disengaged from the regulatory process and the only available evidence from her was an undated and unsigned witness statement. The Panel noted that the evidence of a further witness appears to contradict that of Pupil A and also took into account the Teacher’s assertions that he could not have acted as alleged without this coming to the attention of other adults. The Panel also took into account that the evidence of other witnesses is not supportive of the Teacher being able to act as alleged.

In these circumstances, the possibility of any Panel finding the facts of the allegations proved was low.

The Panel also took into account the General Objectives of the Rules as set out in Rules 1.3.7 and 1.3.8 and that it required to act fairly and justly and take into account fairness to the Teacher.  

The Panel was satisfied that public confidence in the profession and the GTC Scotland as a regulator would be maintained by the full investigation of the complaint against the Teacher and the various attempts made to obtain the engagement of witnesses in the regulatory process. In these circumstances, the Panel considered that it was not in the public interest to pursue the allegations nor was it justified by public protection.

The Panel determined that in all the circumstances it would not be fair, proportionate or just to the Teacher to pursue the allegations further. The Panel therefore granted the Presenting Officer’s application for the proceedings to be cancelled.

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