[2024] UKUT 171 (AAC)

We do not attach any significance to the John Winkle message. The only information about it is the screenshot. The only link to RR is the coincidence of timing and the spelling of KK’s name. No one checked either RR’s phone or KK’s. No one traced RR’s social media history. No one tried to identify the underlying account from which the message was sent. We do not know whether RR was told about the message at the disciplinary hearing. If he was, he was not asked about it. KK did not say how long after talking to RR the message had arrived, so we cannot judge whether RR would have had time to send the message.

It is not clear to us that DBS made a finding that RR sent this message and that it based its decision on it. If it did, it made a mistake of fact. The evidence relating to the message is insufficient on its own to allow us to attribute it to RR on the balance of probabilities. Taking it in the context of the evidence as a whole barely raises the probability above a suspicion. RR suggested that it had been a prank among the students, as they were always on their mobiles and texting each other. We do not accept that. It is merely speculation.