[2024] UKUT 377 (AAC)

This was purely an error of fact case. The Appellant’s position was that the DBS had made a mistake of fact in concluding that he had harassed the two girls on social media and in the street; he denied having a sexual interest in young girls and denied that he had asked the girls for marijuana or asked one of them for sex.

In deciding this appeal, we have taken into account all the documentary material before us, including the written arguments contained in the DBS’s response to the appeal and the Appellant’s amended grounds, additional documentary evidence and oral evidence. We have taken into account all that was said at the hearing including the written and oral submissions of the Respondent’s representative as well as those of the Appellant.

We have had the benefit of all the documentary evidence which was before the DBS which was properly and fully disclosed pursuant to the Upper Tribunal’s directions. We have had, in addition to that, additional documentary evidence from the Appellant and the valuable benefit of hearing oral evidence from the Appellant which was tested by way of cross-examination and probed by further questions asked by the Upper Tribunal’s panel members.

Here, we are dealing with a dispute of fact. We are not restricted to a consideration of the material which was before the DBS when it made its findings of fact and its decision (see paragraphs 42 and 51(c) of the decision of the Upper Tribunal in PF). We have the DBS reasoning as set out in its decision letter before us and we have taken account of it, in the context of the evidence as a whole (para 49 of PF). We bear in mind that aspects of the DBS’s reasoning may assist us in making our own assessment of the evidence which is before us and which is now supplemented by additional evidence over and above that which was before the DBS. We have borne in mind that it is for the Appellant to show, on a balance of probabilities, that the DBS has made a mistake of fact.

We considered first of all, the appeal against the finding that the Appellant had harassed two girls on social media and in the street. We considered the evidence in support of that allegation. We read the ‘chats’ and considered the Appellant’s explanation of their meaning and his evidence about the events which occurred.

The Appellant sought to blame the two girls for introducing him to the Snapchat application and then using inappropriate language with him, calling him ‘baby’ and ‘boyfriend’ but we found such use minimal within the printed chats and concluded that a 30-year old man should have realised the immaturity of the girls and taken into consideration that he was the adult and was responsible for his own conduct and behaviour. Even if the girls had sought to befriend him, it was his responsibility, as the adult, to maintain boundaries and ensure that there were no inappropriate exchanges between them.

The majority of the exchanges with Girl A occurred over a period of time from the last week in January through to February. The Appellant’s evidence is that he joined the Snapchat app on the 23 January 2022 at the instigation of the girls.

The contents of the chat recorded on the 24 January 2022 with the boys about football, includes a reference to the Appellant finding Girl A on Instagram, which corroborates Girl A’s version of events and contradicts his own version that he was given the number by her boyfriend. There is no doubt that the direct contact between the Appellant and Girl A started then, the question is whether it amounted to harassment.

Noting the tone, for instance where the Appellant was demanding that the girl show him her face in their exchanges, the timing, the content and the volume of the exchanges with Girl A, together with the Appellant’s oral evidence at the hearing that he was hoping to demonstrate himself as a good friend and hoping that the exchanges would develop into a relationship, amounted to conduct which can be described as harassment and also potentially, as grooming of the girl. Girl A’s stated fear of walking the streets and leaving her job at the pub if the Appellant was about, add to a picture of harassment.

The Appellant’s evidence was internally inconsistent. The Appellant vehemently denied the allegations made against him that he harassed the girls both in social media and in the street. He stated that he had stopped the text conversations with Girl A, when he found out she had a boyfriend but the evidence from the printed “chats” indicates otherwise. He was actively continuing the chats with Girl A even though he was aware that she had a boyfriend and discussed the relationship with both of them, albeit in an attempt to ensure the continuation of that relationship. His stated motive however was to try to ingratiate himself with Girl A in the hope that a relationship would develop with him over time.

We concluded that the Appellant’s evidence about his conversations with Girl A was unreliable, because he said two inconsistent things: the first was that he had stopped contacting Girl A when he found she had a boyfriend. The second was his assertion that he had no sexual interest in young girls, yet in oral evidence he stated that his motive for intervening in the relationship between Girl A and her boyfriend was in the hope that she would trust him as a good friend and that a relationship would develop between them.

Contemporaneous texts from Girl A to Girl B confirm that she did not provide her number to the Appellant, but that he found her on Instagram and contacted her directly and called her using that platform. We concluded that we preferred the evidence of Girl A and B and that both the social media interaction and exchanges in the street amounted to harassment of them because the contact was high volume and became unwanted, leading to Girl A’s blocking of him on Instagram.

The girls’ evidence was that the Appellant had asked the two girls when he met them, what was their age. His evidence was that they had not told him, their evidence was that they had told him 15, because they thought that would mean he would leave them alone. We preferred the evidence of the two girls because they would have no reason to fabricate that element of the evidence and the Appellant’s printed texts indicate that this was a question that he often posed when communicating with girls.

There were some elements of the girls’ disclosed “chats” which could be interpreted in more than one way and we were aware and took into consideration that we did not have all the dialogue or the full chat conversations in evidence before us. There was, however, sufficient evidence in the “chats” of the Appellant’s attempts to befriend and develop his relationship with Girl A and also requests that she introduce him to eligible girlfriends at her school, and interspersed with those messages, texts to other young girls who told him that they were under 18. These conversations lend support to the conclusion and finding that he had a sexual interest in young girls.

Moving on to the second ground of appeal, the evidence about the request for sex had been presented as evidence by Girl A, directly to the employer during an interview with Girl A’s mother, held on the 31 March 2022.

The internal inconsistency in the Appellant’s evidence was that in his initial evidence he denied any sexual interest in the girls but in answer to the tribunal’s questions, he admitted that he had been hoping to develop a relationship with Girl A, who had been described by him as “beautiful”. His denial of his interest in teenage girls is not credible, because in the “chats” presented in evidence, there are examples of the Appellant checking the ages of the girls with whom he was communicating, he suggested that they could introduce him to friends at school and was open about seeking to find himself a girlfriend and his readiness to wait for someone until they reached the age of 18. All of these elements indicate an interest in young girls and reflect the fact that he was aware that they were under the age of 18 years.

Girl A’s evidence in the telephone interview by the employer was that the Appellant had asked her to sleep with him and in the second, recorded conversation, she stated that the Appellant had also asked Girl B for sex. We preferred the evidence of Girl A and accept it as more likely than not that the Appellant had asked both girls for sex.

The final ground was that the Appellant had not asked teenage girls for marijuana. We noted that texts made contemporaneously between the girls referred to a request for marijuana. There was no explanation offered by the Appellant why such an exchange would have taken place between them at the time if it had not been true.

We preferred the evidence of the girls because Girl A’s version of events was consistent and was corroborated by the Appellant’s own evidence, the evidence contained in the screen shots and chat conversations and the evidence in the employer’s investigation interview that a request for marijuana had been made and find on a balance of probability that the Appellant asked the girls for marijuana.

In the investigation interview by the employer, the Appellant did not contest the allegations made against him in relation to the two young girls. The Appellant’s oral evidence at the hearing was that he had denied the allegations in the course of the interview, but that no record was made of his denials. We did not find that assertion credible given the level of detail in the interview record. It is very unlikely that such an important denial would not have been recorded by the employer’s note taker. We concluded that no such denials had been made in the course of the interview.

The employer’s investigation resulted in a finding of gross misconduct and the Appellant’s summary dismissal. The Appellant did not appeal against the dismissal decision on the 4 April 2022, despite being told that a right of appeal existed both during the interview with the employer on the 1 April 2022 and in the decision letter given to him subsequent to his interview. Reference was made in the course of the investigation interview and letter to the allegations about marijuana and sex, yet the Appellant did not contest those allegations. Furthermore, he did not respond to the Minded to Bar letter nor make any representations until after the deadline had passed. Not until he received a report from a new employer did he present his grounds of challenging the DBS decision to bar.

The Appellant’s explanation for not challenging the evidence against him was that he was relying on his brother to assist him. His brother was however, reluctant to do anything for fear of losing his own job. We noted that the Appellant was able to express himself very clearly in the tribunal hearing, giving oral evidence before the tribunal and did so without the support of others. We accept that his new manager had assisted him in the preparation of his written amended grounds of appeal but he