[2024] UKUT 441 (AAC)

The Tribunal clarified two issues with Counsel before taking oral evidence. The first was that we had no copies of the text messages which allegedly support a conversation between the appellant and the first complainant. They are referred to in the bundle and we will deal with the references in the analysis.

Mr Serr, for the DBS, confirmed that he did not propose to ask the appellant about an incident that occurred when he was a young child as he was of the view he had had no opportunity to present a defence, he was very young and given his age it would be dangerous to rely on it, although he did not make a general concession that the Tribunal should not take it into account. We agree with Mr Serr that given the DBS did not take this into account, that the incident was old and he was young that it would be dangerous for us to rely on this in any way. The Tribunal do not rely on this piece of evidence in our findings.

The appellant affirmed his statement we were given on the morning of the hearing. He told us he was currently working as an apprentice technician testing steel and will have been working for the same employer for a year in November 2024. He is the father of two children one of whom is not his biological child, whom he wants to adopt. He would be unable to do this if he was on the children’s barred list. He sees both children regularly. Social services were involved for about a year but are not anymore as they do not consider him a threat to the children. He is in a relationship with a supportive partner, (not the mother of the children) and has been in this relationship for two years.

He confirmed that he was voluntarily interviewed by the police, investigated by the safeguarding part of a football club and the FA as a result of the allegations.

The documents include an interview by the FA at page 70 of the bundle. The interview was a zoom call. The appellant told us that there were connection issues, and he had a lot going on in his life at that time and so he was not “100% focused” on the investigation. It was difficult being investigated as he knows the allegations are not true, but he understands that kids need to be kept safe as he is a father.

He was 15 years old when the first allegations were said to have been committed. By the time he was charged he was 18 years old. He was trying to pursue a career in football and was also a father, so it was a difficult time for him.

With respect to the second allegation by his previous girlfriend’s sister he said he was upstairs, and he didn’t put his hands anywhere near her although in his written statement he said that he did put his hands on her shoulders. He was immature at the time, and he made a joke.

The appellant was asked what motivated him to pursue the appeal. He said that he wanted to adopt his son and he could not do this with the barring in place. He said he decided to follow a different career given the decision of the FA but that football was his life.

He confirmed that he attended a SEN school due to a diagnosis of ADHD at the end of primary school. He took medication for this through school but does not anymore. His ADHD still affects him, but he has strategies to deal with it. He confirms that the complainant in this allegation did not attend the same school. There were only about 3 girls there and he was 100% sure that she was not one of them. This was relevant as there was a reference in the evidence that the complainant and the appellant met at school.

He denies he messaged the complainant. He did not know her, and he cannot shed any light on the text messages.

During cross examination he explained that in July 2018 when the first and more serious allegation was said to have occurred, he was 15 years old. He had been diagnosed with ADHD before secondary school but could not recall whether he was taking medication over this time. He said he was excluded from primary school and expelled before this SATS. He said he couldn’t recall the behaviour that led to his being expelled but he could not concentrate, he would distract others and then be sent somewhere else. He was asked if this was because of fighting and he did not think it was.

After being expelled he went to a place for pupils not in school and eventually got a place at a SEN school around the age of 12. He stayed at this school until he left secondary education in year 11 when he was 15 or 16. He did not sit GCSE’s as his attendance was “topsy turvy”. This was because he dealt with his mental health by running away. He was depressed and self-harmed by trying to strangle himself with his jumper. There was a “chill out” room at school where he would go when this happened. He thinks he was under the care of CAMHS and thought he had a mental health nurse but could not remember their name. The only medication he took was for ADHD. He was put on a football course aimed at kids with additional needs which helped him a lot although he still struggled at school.

Mr Serr referred the appellant to his first police interview in February 2019 and his description of arguing. In the interview he described that arguments with his sister would make him a bit more aggressive than arguments with his mum, that he would scream and shout at her, that he chased a referee around the pitch threatening to kick his head in after a decision went against him. In answer to a question whether he could remember any other occasions when the decision had not gone his way and he reacted he said, “not really”. In answer to questions he said he had had physical fights with male friends but never with a girl.

When asked by Mr Serr whether it was fair to say he had problems with aggression he said his sister knew how to wind him up. He said the fights were very few and far between, but he did remember chasing the referee in primary school. He said once he was taking medication he was more under control with his emotions, and he started taking this when he was 12/13 when he was just starting secondary school.

Mr Serr took the appellant to his interview at page 222 of the bundle where he was asked about sex. He said he could not remember saying the things in the interview, but he was under a lot of pressure, and it was a long time ago. When asked about how many times he had had sex and the names of the girls he said he didn’t know. Mr Serr said it was surprising he didn’t know the names of the girls, but the appellant referred to the length of time and the pressure he was under at the time. He said he would have had sex with the children’s mother but he could not remember the interview.

He was then taken by Mr Serr to the police interview of the complainant in November 2018 (a few months after the incident).

The complainant in this interview said that she met the appellant through a named friend who had apparently introduced them, that they had met at the park near the beginning of July and that they were friends on snapchat. The appellant denied knowing the friend, that he met the complainant at the park or that he talked to her on snapchat, but he did have contact with boys and girls on snapchat.

He said he never went to the park named by the complainant which is near where he lived. He did go to another park with his brother and his friends. He was asked why she would have made this up and said that he did not know her so he did not know why. He did not know her or where she lived. He did look her address up after the acquittal and it was a 40 minute walk from his home. He denied ever being at her house.

He was asked whether he owned a black tracksuit at that time as that was what he was described as wearing and said he did but pointed out that every kid at that age owns a black tracksuit. He did not own the brand of underwear the complainant refers to in her interview.

He denied the other allegations put to him. He was taken to page 228 of the bundle and where the officers put text messages to him. The appellant had given his telephone to the police voluntarily although in the interview they described the telephones as being seized. The officers say, “She’s provided me with a screenshot of this [the appellant] that she’s described in her video interview with that telephone number. Whose is that telephone number …?” They go onto say: “Tell me why [the complainant] would say that this [appellant] with your telephone number has raped her?” The appellant answers “I don’t know.”

Mr Serr asked the appellant how she got his telephone number and he said he did not know. He said he was shown the marks across her chest but reiterated that he did not have anything to do with them or know how they happened. He denied any text message conversation with the complainant. He said if they were snap chat conversations the number would not have come up and the messages disappear. He said he did not have a conversation with the complainant as he did not know her. He thinks the messages he was shown were from her phone.

We do not have the text messages or what they said. In the interview with the appellant the interview says that the text messages were read out to the appellant but does not include the content of the text messages. There are references to them saying that they said the text messages confirmed that nonconsensual sex had taken place, that the person, purportedly the appellant, apologised and said he was not taking his medication. The appellant denied he had a text message conversation at all.

He said when not taking medication he would play on his xbox or use music. He also denied seeing text messages but was shown snapchat messages. He said further investigation of the phone was going to be carried out by his defence but that did not happen as the case did not proceed.

Mr Serr then referred to page 58 which is and updated an unsigned summary from the South Yorkshire Police. The summary says:

“[the appellant] was voluntarily interviewed by the South Yorkshire Police on 14.02.2019 denying ever meeting the complainant or even knowing her. Both the complainant and [the appellant’s] mobile phones were forensically examined. Text messages from both mobile phones indicated that sexual intercourse had taken place, and that the complainant did not consent. … When presented with the text messages [the appellant] did not accept sending the messages.”

The statement then goes onto confirm that the complainant identified the appellant, retracted her statement saying she did not want to report the matter to the police in the first place and accepted that she tried to contact the appellant as she wanted an apology from him. She later withdrew her retraction but then refused to engage and so no evidence was offered, and the appellant was acquitted. Before the trial but after the allegation was made, the complainant did contact the appellant’s girlfriend telling her that he got her pregnant. She must have found her from his facebook page where he said he was in a relationship with her. The complainant then started a fake account on face book and messaged the appellant. The appellant told his solicitor and he never responded to the message. He was told that if he did contact her, he would be arrested. Some contact was confirmed in one of the statements of the complainant withdrawing support for the case in a statement dated 14/11/2020 at pp 53 where she says that she had contacted him telling him she is retracting her account and hoping he would apologise.

Mr Serr noted that the appellant was permanently barred from football and took him to the interview by the FA in January 2023. In that he was asked about the text messages and did not deny texting her. The note of the interview is as follows: