[2024] UKUT 85 (AAC)

The TRA Panel, unlike the DBS, had the opportunity to hear oral evidence from XYZ, which was tested by cross-examination by the TRA’s counsel. It also heard from Father A and the Head Teacher, whose evidence was tested by cross-examination by XYZ’s counsel.

The TRA Panel explained what it made of the witnesses who attended the hearing as follows:

“In the panel’s view, Father A did attempt to assist the panel in their understanding of the facts in dispute. Father A appeared to the panel to be honest in terms of what he was stating he had been told by his daughter.

The panel found [the Head Teacher] to be generally honest in his recollection of events, but his evidence was predominantly limited to what he had been told by others. Whilst [the Head Teacher’s] view, when interviewing [XYZ], was that [XYZ] was accepting of some of the concerns raised, the panel gave this view little credence, as it became evident that this was based on [XYZ’s] body language rather than any actual admissions.

[XYZ] was similarly consistent in his evidence to the panel, both written and oral, although the panel did feel the answers he gave, on occasion, were minimal when he could have provided additional information on matters. However, overall, the panel found him to be forthcoming with his case. The panel also accepted that, considering the unusual and informal approach taken during the School’s investigation, his refusal to answer questions at that stage would not be held against him.”

By contrast, it decided that Pupil A’s evidence was to be given minimal weight:

“Pupil A, who is now over 18 years of age, had not attended to give evidence to the panel and no proper explanation had been given for her absence. She had provided a signed witness statement to be used in these proceedings and was therefore aware that some action was being taken by the TRA against [XYZ].

Pupil A’s evidence, which was strongly disputed by [XYZ] and differed from her earlier accounts of events, was disputed hearsay and the panel could only place minimal weight on it.”

As well as Pupil A’s evidence not having been tested at the hearing, the TRA Panel was troubled by Pupil A's account having changed dramatically from her first police interview (in which she denied any relationship between herself and XYZ) and the later account that Pupil A gave to her father, the police, the Head Teacher and children’s services, upon which the DBS relied to reach its findings of fact.

Given this assessment of Pupil A’s evidence, while the TRA Panel accepted Father A’s and the Head Teacher’s evidence of what Pupil A had told them, it did not accept the truth of her reported statements.

The TRA Panel explained its decision making on the allegations about use of social media as follows:

“Due to the nature of the method by which messages were said to be exchanged between [XYZ] and Pupil A, the panel did not have any documentary evidence that could provide indisputable evidence as to whether messages were exchanged. In determining these two particulars of the allegation, the panel was therefore predominantly reliant on the written and oral evidence given by Father A, [the Head Teacher] and [XYZ], as well as the written evidence of Pupil A” (see page 675 of the appeal bundle).

The TRA Panel summarised its assessment of the evidence as follows:

“In circumstances where the decisive evidence in a disputed case arises from a witness who has altered her account, does not attend to give evidence, and no understandable reason is put forward for this absence, the panel was not persuaded that there was sufficient evidence that messages had been exchanged between [XYZ] and Pupil A by Snapchat. In contrast, [XYZ] had attended to give evidence and be cross-examined, and the panel found him to be generally credible.”

In terms of the allegations of kissing and cuddling (allegations 1d. and e.), the TRA Panel explained its decision making as follows:

“The panel first heard evidence on this allegation from Father A. He explained to the panel that, when Pupil A’s mobile phones were returned to the family by the police he saw one photo of Pupil A kissing [XYZ] on the cheek. Father A described this as a “selfie” taken in a car.

Father A stated that there were other photos but looking at one was “enough” and that he only looked at the photo very briefly.

Father A denied that he was lying in respect of the police telling him to destroy evidence. He told the panel that the police never expected the concerns to reach this far.

In live evidence, [XYZ] maintained his position that there was no photo of any kissing or cuddling with Pupil A as he said it simply did not happen.

The panel noted Pupil A’s witness statement, within which she says that she first kissed [XYZ] in June 2019 and again in August 2019.

Again, the panel did not have concerns that Father A was doing anything other than his best to give his honest interpretation of events. Nevertheless, the TRA’s case at its highest was that Father A, fleetingly, saw a photo of what he took to be a kiss between [XYZ] and his daughter. In the panel’s view, there is a clear difference between being an eye-witness to an ongoing event, as opposed to the same person interpreting what they see on a phone screen following a brief look.

The panel accepted that, whilst a copy of the purported photo would be highly beneficial, such first-hand documentary evidence was not necessarily needed for this allegation to be proved. However, this allegation did require stronger evidence than a father and his interpretation of a photo. The panel did feel that Father A’s interpretation of the photo may have been influenced by circumstances leading up to his brief look at it.

The panel also noted that Pupil A, within the record of her fast-track interview, made no mention of her kissing, or being kissed by [XYZ] nor cuddling. While the panel appreciated that this account was likely to be a replication of other evidence before it regarding Pupil A’s first account to police, it did also re-emphasise that Pupil A’s account had not been consistent throughout the proceedings and had dramatically changed.

For confirmation, and for the reasons given previously, the panel considered [the Head Teacher] to give honest evidence as to what he had been told by Pupil A. However, in the circumstances, his evidence was given limited weight as, again, it was his recollection of what he had been told by Pupil A.

In the panel’s view a witness’s fleeting glance of a photograph on a small mobile phone screen, and the fact that a photo is in itself a momentary recording of an event, was insufficient to persuade the panel that the TRA had discharged its burden on these particulars of allegation.

Such serious allegations, especially when denied, require substantial evidence to determine them proved. Such evidence was not present in this case and, as a result, the panel do not find either allegation proved.”

Allegation 2 was that the conduct which XYZ had been found to have engaged in (i.e. that described in allegation 1 a.) was conduct of a sexual nature and / or was sexually motivated. The TRA Panel did not find this allegation to have been made out. It explained that:

“A person meeting up with another person, in a car or otherwise, in the absence of any other factors, is clearly not behaviour that is sexual in nature and the panel did not find the first part of allegation 2 proved.

With regard to [XYZ]’s behaviour being sexually motivated, there was insufficient circumstantial evidence for any proper inference to be drawn that this was the case. While the proven conduct was clearly ill-advised and inappropriate, there was no discernible pattern to it, or the surrounding behaviour, to determine that it was sexually motivated.

The panel therefore determined all of allegation 2 to be not proved.”

Given its finding that XYZ’s conduct amounted to misconduct, it then went on to consider whether that misconduct was so serious that it amounted to unacceptable professional conduct or conduct that may bring the teaching profession into disrepute. It decided that it was neither.

The TRA Panel clearly took a very different view of the evidence from the DBS and it reached findings which directly contradicted those of the DBS. However, this doesn’t necessarily establish that the findings of the DBS were mistaken.

XYZ attended the hearing before the Upper Tribunal and gave evidence under affirmation. He adopted his witness statement made on 16 October 2023 as his evidence in chief and made himself available for cross-examination by Mr Serr on behalf of the Respondent and for questioning by the panel. We were therefore able to make our own assessment of his evidence.

XYZ explained that he had gone into ski coaching on leaving college and later decided to undertake a degree in quantity surveying. He qualified as a quantity surveyor but he didn’t enjoy the work and so returned to sports coaching, both in skiing and cricket. He started teaching sport in schools in 2015 under the supervision of a qualified teacher. He took his first classes unsupervised in 2016, and qualified as a teacher in March 2017.

He taught pupils in years 3-11 (the pupils being aged between 8 and 16). He explained that all pupils leave the School at the end of their GCSE year (Year 11).

His evidence was that he had taught PE to Pupil A at some time between 2016 and 2017, when she would have been 13-14 years old, but he had little contact with Pupil A at that time. Pupil A did not initially choose PE as one of her GCSE subjects, but in January 2018 (when she was 14 or 15 years old, and in Year 10) she dropped music GCSE and took up PE GCSE instead.

XYZ said that when Pupil A decided to switch from music to PE, the Head Teacher asked him to give her extra lessons so that she could catch up on the first term of the GCSE PE course, which she had missed. He explained that these were classroom-based theory sessions. The lessons took place twice a week in the mornings before the start of regular lessons. He said that, while the lessons were 1:1, he and Pupil A were not in the classroom alone. He said there would be other staff around and his room was opposite the Head Teacher’s office. The doors would be left open in line with the School’s protocols. As well as these lessons, he taught Pupil A 5 group lessons a week with her GCSE cohort.

When asked by Mr Serr whether he developed a close relationship with Pupil A during this period, he said he got to know her “no more than another pupil”. He said that, towards the end of her GCSE course, Pupil A would sometimes speak about her parents and her GCSEs, but not so much in 1:1 situations.

When challenged by Mr Serr about his reference in paragraph 8 of his witness statement to her mentioning family in some 1:1 sessions, he said that the 1:1 sessions took place in a room with other people present, that he listened to what she said, but these comments were not particularly directed at him. He said Pupil A would talk about her mother nagging her about her GCSEs. He denied her having talked about boyfriends or other personal things.

When Mr Serr asked XYZ whether he had directed Pupil A to the school counsellor, he said that he had not, but he did approach the Head Teacher about the issues raised by Pupil A. He said that, as a newly qualified teacher, he had a mentor, but he was “not 100% sure” that he raised anything about Pupil A with his mentor, and thought he had discussed these matters only with the Head Teacher.

Under questioning by Mr Serr, XYZ said that he didn’t recall having been given any instructions about the importance of professional boundaries with female pupils, but said he had attended a safeguarding course.

Mr Serr put to XYZ that Pupil A said (at page 537 of the appeal bundle) that:

XYZ accepted he had a Snapchat account but said this was used only in the context of his cricket team, which was nothing to do with the School. He accepted that it would have been inappropriate for him to exchange greetings on Snapchat in the way that Pupil A had alleged, but he denied having any contact with Pupil A on social media. He said Pupil A’s account was a fabrication.

When Mr Serr put to XYZ Pupil A’s assertions that they had used a ‘calculator’ app to message each other undetected and had kissed, XYZ said these claims were untrue and “never happened”.

Mr Serr asked XYZ whether anything in his interactions with Pupil A, or anything said by colleagues, had led him to believe that Pupil A might have a tendency to fantasise, but he said it had not, and he couldn’t remember ever saying anything to the Head Teacher to this effect.

Mr Serr questioned XYZ about the reference at page 497 of the appeal bundle (which formed part of the TRA Decision) to his being unsure how Pupil A became aware of some personal information about him, and XYZ clarified that the information in question was about his brother having recently died.

XYZ accepted that in February or March of 2019, a few months before Pupil A was due to sit her GCSEs, she talked to him about her mum and dad, but he did not get the impression that Pupil A had “crossed a boundary”. XYZ said he would have done something about it if he thought that she had.

XYZ denied Pupil A’s account that they had arranged for him to give Pupil A lifts in his car. He pointed out that this allegation didn’t feature in Pupil A’s first statement to the police.

XYZ accepted that he gave Pupil A a lift in his car once before her GCSE exams, but explained that this was with other pupils and was in the context of going to get lunch from McDonald’s for the class as a pre-exam treat. He said the trip had the express permission of the Head Teacher.

XYZ also accepted he met Pupil A on two occasions either at, or near, football matches. One occasion was at the Stadium of Light and the other was in in London. On both occasions Pupil A was with her family and XYZ was with his friends. He said that at the match at the Stadium of Light he spoke to Pupil A, Father A and Pupil A’s brother. Both the encounters were, he said, entirely coincidental and unplanned. When Mr Serr suggested that they could be seen as deliberate meeting, XYZ explained that Sunderland fans tended to congregate at or near a particular bar in London when the team was playing in London, so it wasn’t especially surprising that he and Pupil A’s family encountered each other there. He added that the following day he had bumped into the Head Teacher at Wembley without arranging to meet him. Further, around three months ago, he had seen Pupil A and her family on a train.

XYZ accepted that he had given Pupil A lifts in his car alone on two occasions in the summer after her GCSEs. He said both meetings were, again, coincidental and unplanned.

XYZ said that on one occasion, in early August 2019, he was shopping for new cricket trousers in Newcastle when he bumped into Pupil A. They spoke and he agreed to give her a lift to Sunderland. When Mr Serr asked whether he dropped her at her house, XYZ said he took her to the address she told him, which was near a hotel. He said he didn’t know whether that was where she lived, and he didn’t ask her. He just dropped her where she asked to be dropped. He said it wasn’t a professional thing to do and, “looking back”, he wouldn’t do it again. He denied Pupil A’s allegation that he took her to McDonalds or the Metro Centre, and denied Father A’s inference that he might have taken Pupil A to an ice cream parlour.

XYZ said that on another occasion, on 13 August 2019, he was driving in his car on his way back to Sunderland after a game of golf when he saw Pupil A waiting at a bus stop. He again offered her a lift. He said Pupil A told him she was going to be early to meet her cousin, so he drove “the longer way around”, taking the A19 towards Hartlepool then to the south of Sunderland on the coast road, and he dropped her off in Sunderland. He said he “wasn’t 100% sure” that he had gone directly into Hartlepool, but that it was possible he had gone into part of Hartlepool.

XYZ said that, while he now accepted that giving Pupil A the lift home from Newcastle was inappropriate, this hadn’t occurred to him in the period between that lift and his giving her a lift from the bus stop. He said that if he had thought it to be inappropriate, he wouldn’t have done it. He said he just didn’t think it “a big deal”, and he had been naïve. It was an error of judgement, and he would change it if he could.

Mr Serr put to XYZ that he had only quite recently completed his teacher training, and his training on safeguarding and the importance of boundaries would have been fresh in his mind. XYZ said his background was specifically in sports coaching, and that it was common for him to have to take athletes to skiing or cricketing events in his car. Mr Serr put to XYZ that these lifts were different to the lifts he had given Pupil A because they were given in the context of his role as a sports coach, while the lifts to Pupil A were nothing to do with his role as her PE teacher. XYZ accepted this.

Mr Serr put to XYZ that the first time he admitted to giving any lifts to Pupil A was before the TRA panel. Prior to that he had given “no comment” interviews to the police and he had not taken the opportunity to refute or explain the allegations made at his meetings with the Head Teacher. XYZ said he went “no comment” in the police interviews on advice from his solicitor. He said that at the meetings with the Head Teacher he was there to listen, again on advice, and he was “not in a good place”. He robustly denied making any “admission” that “something happened” and clarified that the supposed “admission” claimed was based not on anything he had said but rather on the Head Teacher’s supposed interpretation of his “body language”.

XYZ pointed to deficiencies in the process relating to his dismissal by the School. He noted that there were two different versions of the supposed letter of dismissal, and he received neither version, although he said he did receive his P45. He said he wasn’t stable at the time, he was getting counselling, and it didn’t even cross his mind to challenge his dismissal, even though he was a member of a union.

In re-examination XYZ said that the early August meeting was not witnessed by anyone, so the only people who knew about it were himself and Pupil A. He said he was not trying to hide anything from the tribunal.

In response to questions from the panel, XYZ said he hadn’t ever picked up any other students outside school, other than to games or events in the context of his coaching/teaching role. When asked why he decided to do so with Pupil A he said he probably thought that it was OK because, having completed her GCSEs, she was no longer a pupil at the School.

As discussed above, we are not bound by the TRA Panel’s findings, but we should have regard to them and give them the weight that is appropriate in all the circumstances. The question we need to ask ourselves is not whether the TRA Panel was entitled to come to the findings that it reached on the evidence before it, but rather whether anything in the TRA Decision demonstrates that the Barring Decision was based on any finding of fact that was “mistaken” or “wrong”.

The TRA Panel did not make many positive findings of fact: it found, based on XYZ’s admissions in the “Statement of Agreed Facts” document, that XYZ engaged in an inappropriate relationship with Pupil A by giving her lifts in his car on two occasions in August 2019. However, it did not find these meetings to have been planned and it did not find that the relationship between XYZ and Pupil A was sexual in nature. Neither did it find the other allegations (that XYZ instructed / invited Pupil A to communicate with him via Snapchat, that he communicated with Pupil A using Snapchat, or that he kissed or cuddled Pupil A) to be made out.

Although the TRA Panel assessed the witnesses at the hearing to be broadly honest and reliable, the findings it made (or declined to make) were based principally on its assessment that Pupil A’s evidence should be given only minimal weight and the burden being on the TRA to prove the allegations, rather than any particularly compelling evidence being given by the witnesses who gave oral evidence before it. We were also concerned that the TRA Panel’s explanation of its reason for finding the allegations of communications between Pupil A and XYZ on social media to be unproven included a statement that ”the panel did not have any documentary evidence that could provide indisputable evidence as to whether messages were exchanged”. This indicates that the TRA Panel might have applied a much higher standard than the civil standard which it should have applied when deciding whether the allegations were true.

We too heard evidence from XYZ, and we were able to form our own view on him as a witness and on the reliability of his evidence. The TRA Panel found XYZ to be “forthcoming” in his evidence (albeit that it also noted that “the answers he gave, on occasion, were minimal when he could have provided additional information on matters”) (see page 675 of the appeal bundle). We did not find him to be “forthcoming”.

XYZ accepted, as he had done in the TRA proceedings, that he gave Pupil A lifts alone in his car outside school on the two occasions in August. In response to questioning from the panel about whether he had ever given lifts to other lone pupils, XYZ said he had. However, these lifts were given to athletes in the context of his role as a coach, and were to fixtures or events. Crucially, they had a professional justification and so were entirely different in character to the lifts given to Pupil A. XYZ accepted that the lifts he gave to Pupil A were nothing to do with his job.

Given that the TRA Panel’s assessment of the weight to be given to Pupil A’s evidence was heavily influenced by her having changed her evidence from her initial response to being challenged by her father (that there was nothing going on between her and XYZ) to making the allegations, we feel bound to point out the turnaround in XYZ’s evidence: although he provided “no comment” responses in his interviews with the police and the Head Teacher, in his representations to the DBS he categorically denied the allegations not only of having an inappropriate relationship with Pupil A, but also of having given Pupil A lifts in his car. He now accepts that he did give lifts to Pupil A, and he accepts (albeit in retrospect only) that his relationship with Pupil A was inappropriate, and that he hasn’t given lifts to other pupils without a professional justification for doing so.

Given these admissions, we find XYZ’s response to Mr Serr’s questioning about whether he had developed a close relationship with Pupil A (“no more than another pupil”) to lack credibility.

We do not accept XYZ’s evidence that he did not appreciate at the time that giving lifts to Pupil A was inappropriate. Having recently completed training in safeguarding in the course of his qualification as a teacher, XYZ would have been fully aware at the time he gave the lifts to Pupil A that giving lifts to a lone 16-year-old pupil or former pupil was inappropriate. Given that, we consider that the fact that he chose to give lifts to this lone pupil was compelling evidence that he had developed an unusually close, and inappropriate, relationship with Pupil A.

We were troubled by the long detour (into, or near to, Hartlepool) which XYZ now admits to taking when he gave Pupil A the lift on 13 August 2019. His explanation for doing so was that Pupil A told him that, because she was now travelling by car rather than the bus, she would be early to meet her cousin, so he decided to take a longer route. We find this explanation to be unconvincing and untrue.

XYZ could have dropped Pupil A off early at her destination, but he chose instead to extend the drive. We find that XYZ took this lengthy and indirect route because he wanted to spend time alone with Pupil A. We find that he was motivated to spend time alone with Pupil A because he was, as Pupil A claimed, in an inappropriate personal relationship with her, a relationship which he knew to be wrong. In the absence of any credible explanation from XYZ of his actions we infer that his pursuit of a personal relationship with Pupil A was sexually motivated. We can see no other reason why a teacher would engage in such reckless unprofessional behaviour.

XYZ’s case in his representations was that all Pupil A’s allegations were concocted by her for unknown reasons. She made specific allegations about the use of apps to communicate in secret and the giving of lifts outside school, as well as kissing XYZ on four occasions (but, she insisted, nothing further than that). XYZ’s evidence to us was that both occasions on which he gave lifts to Pupil A were unplanned and purely coincidental, just as he maintained that his meeting Pupil A and her family at two football matches was unplanned and coincidental. In the light of the evidence as a whole, we find this to be improbable. It is much more likely in our view that XYZ and Pupil A were communicating with each other to arrange to meet. Had they done so in the way alleged by Pupil A this would explain the lack of any record of communications on XYZ’s and Pupil A’s mobile phones.

We find it more likely that Pupil A was telling the truth about:

XYZ had also argued at an earlier stage that the Barring Decision was in error of law because it was irrational and Wednesbury unreasonable for the DBS to find that XYZ had an “exploitative attitude” or a “significant sexual interest in teenage girls”.

This argument was premised on XYZ’s position that his relationship with Pupil A was limited to his professional relationship with her and his having given her lifts in his car on two occasions outside school, which were purely coincidental and not motivated by any sexual interest in Pupil A.

As explained above, like the DBS, we consider it more likely than not that XYZ was in an inappropriate relationship with Pupil A and he kissed her on four occasions, albeit that no further sexual activity occurred.

It was neither irrational nor unreasonable for the DBS to find that XYZ had a sexual interest in Pupil A. Further, having found that XYZ had a sexual interest in Pupil A (a teenage girl), and had engaged in sexual activity with her, it was entitled to infer that he had a “significant sexual interest in teenage girls”. That is the case even in the absence of any evidence or allegation that he had pursued sexual relationships with any other teenage girls. XYZ’s willingness to cross professional and moral boundaries to exploit the imbalance of power between himself and Pupil A to satisfy his own ends was an adequate basis for the DBS’s finding that XYZ had an “exploitative attitude”.

Nothing in the TRA Decision, and nothing in the other new evidence before us, persuades us that the Barring Decision was based on any material mistake of fact.

The Barring Decision is therefore confirmed, and the appeal is dismissed.