[2024] UKUT 171 (AAC)

Our conclusions

We have had the advantage of hearing RR give his evidence, especially in response to Ms Hartley’s cross-examination. We consider that the balance of probabilities favours RR. We have come to that conclusion after considering the evidence as a whole. The following are the more significant points that we have taken into account.

RR has a clean record of complaints during his career. His account of his time at the summer school was given in his own words and in part under cross-examination. It is coherent and contains admissions that are against him. His account is more plausible than KK’s account of a crude, bullying approach after a short acquaintance. His version of offering to help would be more likely to succeed than hers if he had wanted to establish a romantic attachment.

Moreover, it is impossible to understand KK’s account on its own. We need to know about the interview session in order to understand the significance of swapping places in class. It also provides a context for what would otherwise be disjointed sequence of statements by KK.

We do not have KK’s account in her own words or even any confirmation from her that the statement of 30 June is accurate. She was not questioned during the disciplinary hearing or as part of that process or, for all we know, at all. It is surprising that CM did not ask KK to clarify what had happened on the Monday. Nor did KK explain why she waited until 30 June to complain. She says she was uncomfortable, but did not complain sooner and does not say that she tried to change classes. We note that, even by her account, there was no repetition of RR’s behaviour and he did not make use of her telephone number. [We have explained why we place no reliance on the John Winkle message.]

We have made our assessment against the background of lack of investigations that could have provided more and better evidence. In particular, examining the telephones of the participants could have clarified the origin of the John Winkle message one way or another. If KK had been given a chance to expand on her statement, she might have resolved some of the uncertainties that we have considered. It is possible that she could have misconstrued the conversation about scholarships. She might have interpreted RR’s eagerness to help his student for inappropriate pestering. Her delay in complaining might have been out of embarrassment at giving out her phone number. She could also have answered concerns about the motive she might have to make up her complaint. RR’s account of strained relations between Greeks and Afghans might account for it. KK says nothing about that and the disciplinary process did not provide the chance for her to respond to what RR says.

Our findings

We have made our own findings in accordance with Disclosure and Barring Service v RI [2024] EWCA Civ 95.

RR criticised DBS for finding that the events took place on ‘an unspecified date between 27 and 30 June 2022’. He pointed out that the date was 27 June. We accept that. KK said it had happened on that date. We have no reason to doubt that and no one has suggested any other date. We consider this to be a lack of precision rather than a mistake of fact. It is, though, significant for this reason: it means that KK did not complain to CM until three days later. During that time, she remained in RR’s class. By his account, she remained in his Drama class despite having a right to a different teacher.

RR accepted that he had singled out KK to work with. He needed to work with one of the students during the interview session, because of the odd number. But he had been free to choose which one that should be. From his gestures during evidence to us, he indicated that he had asked KK to change place. He did not say why he did that.

Asking KK if she would be his girlfriend would not have been part of the scripted interview. It would have been an inappropriate question for the students to ask each other and, given the proximity of the other students around them, it would have been risky to introduce it. The same reasoning applies to asking her if she was single during the scripted interview.

RR did compare KK with the Bollywood actress. In that sense, he was complimenting her looks. But this took place as part of an introductory session involving the whole class and was not specifically targeting KK.

KK mentioned her wish to study law during the interview session. That was why RR asked KK to stay at the end of the class in order to offer support in applying for scholarships. He gave her a missed call so that she could send draft applications to him. It was her suggestion to use the telephone for that purpose. She was not under pressure.

Those findings in part differ from, and in part provide a context for, those made by DBS. In those circumstances, it is necessary to remit the matter to DBS for a new decision.