Procedural Panel Meeting– Vulnerable Witness and Privacy - Billy Dewar Riddick

Definitions

Any reference in this decision to:

• ‘GTCS’ means the General Teaching Council for Scotland;9
• 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:

• Privacy Application
• Vulnerable Witness Application

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:

• Applications by the Presenting Officer with supporting evidence
• Teacher's Applications and Response to the Presenting Officer’s applications
• Supplementary Response to the Presenting Officer’s applications
• Final Comments from the Presenting Officer

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 the 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.

Decision

Application for Privacy

The Panel considered an application from both the Presenting Officer and the Teacher that any part of the hearing relating to the Teacher’s [redacted] should be heard in private. The applications were made in terms of Rules 1.7.2 and 1.7.3 and the GTCS Practice Statement on Privacy and Anonymity.

Both the Presenting Officer and the Teacher’s Representatives provided written submissions.

The Presenting Officer referred the Panel to a [redacted] and the Teacher’s own evidence of [redacted].

The Presenting Officer submitted that it would be appropriate in the circumstances for the parts of the hearing which relate to [redacted] to be heard in private. It was submitted that the interests of justice could be properly served with those elements which do not relate to [redacted] of the Teacher being heard in public session. The Presenting Officer further submitted that proceeding in this manner would strike an appropriate balance between the need for openness and transparency in the operation of Fitness to Teach Hearings with the Teacher’s right to privacy.

The Teacher’s Representative submitted that the Teacher’s circumstances are exactly those envisaged in the practice statement.

The Teacher’s Representatives argued that Article 6 of the European Convention on Human Rights (EHCR) provides that everyone is entitled to a fair and public hearing. However, the press and public may be excluded from all or part of the hearing in order to protect the private life of the parties.

The Teacher’s Representatives further submitted that Article 8 provides that everyone has the right to respect for their private and family life, their home and their correspondence. It was submitted that the Panel had a duty to uphold the Teacher’s right to respect his private and family life and to allow parts of this case to be heard in private so far as they relate to [redacted].

The Teacher’s Representatives further submitted that there was no public interest in elements of the hearing relating to [redacted] taking place in public that would justify curtailing his Article 8 rights. It was submitted that this evidence concerned matters which are extremely [redacted] to the Teacher and that it would be disproportionate for the public interest to outweigh the Teacher’s very real and substantial private life interests. It was further submitted that any public interest would be served by the fact the allegations would be considered at a hearing.

The Teacher’s Representative also submitted that the Panel must also consider the proportionality of granting this application and that excluding these elements of evidence from the public domain would be no more than necessary and thus, proportionate. It was argued that it would be it would be straightforward to identify the parts of evidence that ought to be heard in private. It is also entirely proportionate to the interests of justice to redact any of these private details from the public determination.

The Panel accepted the advice of the Legal Assessor. He referred the Panel to Rules 1.7.2 and 1.7.3 and the GTCS Practice Statement on Privacy and Anonymity.

The Panel carefully considered the written submissions of both parties.

Rules 1.7.2 and 1.7.3 state:

1.7.2 Subject to the provision set out below or as provided otherwise elsewhere in these Rules, hearings will be held in public.

1.7.3 A Panel may, at any stage of proceedings on its own initiative or on application to it, make an order with a view to preventing or restricting the public disclosure of any aspect of proceedings. A Panel may do this so far as it considers it necessary where it is satisfied (having given the relevant parties an opportunity to make representations and in compliance with all relevant Convention rights) that it is in the interests of justice to do so and the particular circumstances of the case outweigh the interests of the Teacher and the public in the hearing being held in public. Any such decision (and the reasons for it) will be announced in public or made publicly available.

Such orders may include (but will not be limited to) –

(a) An order that a hearing be conducted (in whole or in part) in private;

(b) An order that the identities of specified parties, witnesses or other persons referred to in the proceedings should not be disclosed at such proceedings to the public (by the use of anonymisation or otherwise) and whether before, during or after those proceedings; and

(c) An order for measures seeking to prevent witnesses at a public hearing being identifiable by members of the public.

Unless a Panel orders otherwise, any vulnerable witness referred to in proceedings will be subject to the measures specified at (b) and (c) above.

The Panel took into account the submissions of both parties and all relevant documentation before it, in particular [redacted] dated 8 February 2022 and the Teacher’s comments about [redacted] in the documents provided to the Panel. It also took into account the terms of Article 6 and 8 of the ECHR. The Panel considered that issues relating to [redacted] fell within Article 8 and that he had a right to protection of his private life. The Panel also considered that with specific regard to the issue of the Teacher’s private life [redacted], his interests outweighed the interests of the public in having evidence to these issues held in public.

The Panel therefore granted the application for the hearing to be heard in private in so far as it relates to [redacted].

Vulnerable Witness Application

The Presenting Officer made a further written application for 3 witnesses to be treated as vulnerable witnesses.

The Presenting Officer referred to the allegations that state:

'The Allegations against the Teacher which are relevant to this application are as follows:

1. Between in or around September 2017 and in or around April 2018, whilst employed at [redacted] Primary School, The Teacher did;
a. State to colleagues, including but not limited to Colleague 3, that his wedding ring was a ‘slut magnet’, or words to that effect.

4. On 29 March 2018, whilst on a work night out with colleagues at The Anglers bar, Annan, the Teacher did:
a. Make comments of an abusive or upsetting nature in that he did;

v. In respect of Colleague 5, ask her what it felt like to have anal sex, or words to that effect.

d. Make unwanted physical contact with female colleagues in that he did;
i. In respect of Colleague 6;

1. Repeatedly place his arm around her shoulders despite her having told him to ‘get off’, or words to that effect, and her having physically removed his arm from her shoulder; and
2. Grab her buttocks.

ii. In respect of Colleague 12, grab her lower back and/or buttocks on at least one occasion; and
iii. In respect of Colleague 5, repeatedly put his arm around her despite her shrugging him off.

8. The Teacher’s actions at allegations 1(b), 4(a)(v), and 4(d) were sexual and/or sexually motivated.’

The Presenting Officer applied in terms of Rules 1.7.29 and 1.7.30 to have Colleagues 3, 5 and 6 treated as vulnerable witnesses and have a supporter present.

The Presenting Officer submitted that the witnesses should be treated as vulnerable witnesses as the Allegations relating to these witnesses are of a sexual nature and they are the alleged victims.

The Presenting Officer further submitted that the Panel had discretionary power to allow this measure, provided within Rule 1.7.30. Rules 1.7.30 states that a Panel can “adopt such measures as it considers necessary to enable it to receive evidence from a vulnerable witness”.

The Presenting Officer referred to the GTCS Witnesses and Hearsay Evidence Practice Statement and submitted that when considering the use of evidence from vulnerable witnesses, fairness to the Teacher must be balanced and weighed up with the potential negative impact that appearing before a Fitness to Teach Panel and undergoing questioning about difficult or traumatic events may have on witnesses, in particular vulnerable witnesses. It was submitted that the Panel had to have regard to the underlying purpose of the regulatory process, namely public protection. The Presenting Officer further submitted that there is a public interest in the panel having the best possible evidence, but this is balanced against ensuring that children and vulnerable adults are not put through processes which may cause them emotional or psychological harm.

The Teacher’s Representative’s written submissions referred to the case of Basson v GMC [2018] EWHC 505 in which it was stated that;

‘A sexual motive means that the conduct was done either in pursuit of sexual gratification or in pursuit of a future sexual relationship.

It was submitted that the words allegedly used could be found to be inappropriate, ill-advised or unacceptable rather them meet the definition set out in Basson. The Teacher’s Representative further submitted that if this was accepted that there was doubt as to whether the application was properly made out.

The Panel accepted the advice of the Legal Assessor he referred it to Rules 1.7.29 and 1.7.30, the GTCS Witnesses and Hearsay Evidence Practice Statement and the case of Basson.

The Panel carefully considered the written submissions of both parties.

Rules 1.7.29 and 1.7.30 state:

1.7.29 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

1.7.30 Provided that the 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 determined that the alleged comments met the criteria for allegations of a sexual nature. The Panel further considered that it was in the public interest that any hearing should have the best possible evidence before it. The Panel considered that this would be best achieved by Colleagues 3, 5 and 6 being treated as vulnerable witnesses. The Panel considered that if Colleagues 3, 5 and 6 were not treated as vulnerable witnesses, there was a potential for the quality of their evidence to be diminished due to the nature of the allegations.

The Panel further considered that the provision of a supporter for these witnesses would also facilitate the provision of the best evidence from these witnesses.

The Panel therefore granted the Presenting Officer’s application for Colleagues 3,5 and 6 to be treated as vulnerable witnesses. It further directed that these witnesses should have a supporter present and that supporter should be someone who has no prior knowledge of the case.