[2024] UKUT 85 (AAC)

The DBS found that XYZ had engaged in inappropriate conduct of a sexual nature involving a child by engaging in sexual activity with Pupil A by kissing her on 4 occasions, but in its ‘Final Decision’ letter there is very little explanation of how the decision maker assessed and weighed the evidence.

However, an analysis of the evidence is provided in the Barring Decision Process document. The DBS relied principally on:

DBS also had 22 supportive character references from colleagues, parents of pupils, employers and ski pupils that spoke to XYZ’s professionalism and his passion for teaching and coaching. None of them voiced safeguarding concerns.

The DBS acknowledged that XYZ “refutes all the allegations in full and denies that any of the aforementioned conduct or alleged facts are correct as recorded in any of the attachments, annexes and submissions within the ‘minded to bar’ letter, save that [Pupil A] was a year 11 pupil at [the School] until June 2019 and [XYZ] was a P.E. Teacher at the School until September 2019.”

The DBS acknowledged that there were limitations to the evidence before it, including that it had no first-hand evidence either from Pupil A or Father A, but it decided that the account of the allegations made by Pupil A provided by the police was “credible”. The DBS considered that there was no reason why Pupil A would fabricate her account, especially since she had initially denied any kind of inappropriate relationship with XYZ and had been upset that these matters were discovered. The DBS thought that Pupil A only admitted to the contact with XYZ when Father A told her that he had seen her get into a white Audi car with XYZ.

While the DBS acknowledged that they had no evidence (other than the hearsay evidence of Pupil A’s allegations) of any messages or calls being exchanged on Snapchat or the “calculator” app, they noted that XYZ’s mobile number had been stored on Pupil A’s mobile phone under the name “Tony”, which the DBS decided was intended to disguise that the number in question was XYZ’s.

At the time that the DBS made the Barring Decision XYZ had made a bare denial of the allegations against him. There was no burden on XYZ to prove the allegations to be false or to provide an explanation as to why Pupil A, or indeed Father A, might fabricate allegations against him.

However, the DBS was entitled to consider the evidence before it, which was limited to written evidence, and it had a broad discretion as to how to evaluate that evidence. It found the indirect written evidence of what Pupil A and Father A had said to be credible, and it was persuaded not only that the things they are reported to have said were indeed said, but also (on the balance of probabilities) that the allegations reported to have been made were true.

The DBS found, based on the written evidence available to it, that XYZ had, while employed as a teacher, entered into a relationship with Pupil A, a year 11 pupil, including messaging with her, meeting her outside school, giving her lifts in his car, and kissing her on 4 occasions. It decided that this amounted to conduct of a sexual nature involving a child.

While another decision maker may well have come to a different assessment of the evidence and arrived at different findings of fact based on its assessment, the way that the DBS assessed the evidence, and the findings of fact it made, were within the range of options reasonably open to it when it made the Barring Decision.

While acknowledging that there was no evidence to indicate that XYZ had behaved in this way before, the DBS inferred from these primary findings that XYZ had a “specific sexual interest in teenage girls”, which gave rise to:

While the DBS’s decision making could have been better explained, and while its findings were not the only findings open to them on the evidence, we are satisfied that the findings on which the Barring Decision were based were open to the DBS based on the evidence before them.

Since the date of the Barring Decision further evidence in relation to the allegations has become available. We are entitled to consider that evidence to decide whether, notwithstanding that the findings made by the DBS were open to them on the evidence before them, any of those findings were mistaken. That includes the TRA Decision.