Hampshire Teacher Challenges TRA Referral Over Private Online Communications

The Client

Our client was an experienced teacher in Hampshire with an otherwise unblemished professional and regulatory record. He was referred to the Teaching Regulation Agency following concerns arising from private online communications with an individual who was subsequently discovered to be 15 years old.

The communications had taken place over a short period of approximately four days through OmeTV, a video-chat platform presented to users as being restricted to adults over the age of 18.

Our client’s position throughout was that he genuinely believed he was communicating privately with another consenting adult.

The Allegations

The TRA alleged that, while employed as a teacher, our client had:

• made a number of highly inappropriate and sexually explicit comments to Child A;
• requested nude photographs from Child A on one or more occasions; and
• engaged in conduct which was sexual in nature and/or sexually motivated.

There was no dispute that some of the messages sent by our client were explicit and sexual. The central issue, however, was the context in which those communications had occurred and, critically, what our client reasonably believed about the recipient’s age at the time.

Our client had met Child A through OmeTV. The platform required users to confirm that they were over 18 before accessing the service.

During the subsequent communications, there was a brief video exchange and photographs were also shared from an Instagram account. Our client’s position was that nothing about Child A’s appearance, behaviour or manner of communication caused him to suspect that she was under 18. He therefore believed throughout the interaction that he was communicating with another consenting adult.

It was only when he subsequently received a message from Child A’s mother informing him that she was 15 that he became aware of her true age. By that point, he had already stopped communicating with her.

Our Defence Strategy and Work

The representations focused on an important distinction between the nature of the communications themselves and our client’s state of knowledge at the time they were sent.

There was no attempt to minimise the explicit nature of some of the messages. Our client accepted that, viewed with the knowledge that the recipient was a child, they made deeply uncomfortable reading.

However, the regulatory assessment also had to consider the circumstances as our client genuinely understood them at the time. His position was that the messages had been exchanged in a purely private context, through what he believed to be an adults-only platform, with somebody he genuinely and reasonably believed was an adult.

The communications had no connection with his teaching role, his school or any pupil he taught. There was no suggestion that he had used his professional position to facilitate the contact.

We also drew attention to the approach taken by the criminal law to sexual communication with a child. Section 15A of the Sexual Offences Act 2003 expressly recognises the relevance of whether an adult reasonably believed the other person to be aged 16 or over.

Our representations submitted that the same factual issue was highly relevant when determining whether the case should proceed before a Professional Conduct Panel. There was no evidence identified which demonstrated that our client knew, or had reason to believe, that Child A was underage.

We also challenged the evidential basis for a number of aspects of the TRA case.

In particular, the representations highlighted that:

• the TRA bundle contained no evidence of Child A’s date of birth;
• neither Child A nor her mother appeared to have provided a formal statement to the police;
• there was no admissible evidence establishing that our client had requested intimate photographs; and
• there was no admissible evidence capable of establishing that our client did not reasonably believe Child A was over the relevant age.

Those evidential issues were important because a case should not be referred to a Professional Conduct Panel simply because serious allegations have been made.

The Decision-Maker must consider whether there is a realistic prospect of the factual allegations being established and, if so, whether there is a realistic prospect that the conduct would ultimately justify prohibition from teaching.

Our submissions were that neither test was met.

Insight and Remediation

Our client was profoundly affected when he discovered Child A’s true age.

He had also been arrested and interviewed by the police in connection with an allegation of sexual communication with a child. Although he had never intended to communicate sexually with a minor, the experience brought home to him the potentially serious safeguarding consequences of online interactions.

He undertook substantial reflection following the incident. In particular, he recognised that online age-verification systems cannot provide an absolute safeguard and that, as a teacher, he needed to exercise a heightened degree of caution even in his private life.

He permanently stopped using similar messaging applications to ensure there was no possibility of the same circumstances arising again. His remorse was not based simply upon the fact that the matter had come to the attention of the authorities. It arose from his recognition that a child had ultimately been exposed to material which he had intended only for another adult.

His employer’s disciplinary outcome also recorded that he had shown genuine remorse and was genuinely sorry for his error of judgment.

The Regulatory Argument

Our representations invited the TRA to consider the case in its proper context.

The conduct occurred entirely within our client’s private life. It did not involve a pupil at his school, an abuse of his position as a teacher or any intention to communicate with a child.

Had the recipient been the adult our client believed her to be, the private communications would not themselves have created a professional regulatory issue.

We therefore submitted that the circumstances did not establish unacceptable professional conduct or conduct capable of bringing the teaching profession into disrepute.

Even if the Decision-Maker took a different view on that question, the representations further submitted that there was no realistic prospect of a Professional Conduct Panel concluding that prohibition from teaching would be necessary or proportionate.

Our client had no previous regulatory or disciplinary findings, had engaged with his employer, demonstrated genuine remorse and insight, and had taken practical steps to ensure there could be no repetition.

Outcome

The TRA Decision Maker agreed with our submissions and discontinued all the allegations.

Comments from Jared McNally

“This was a case in which context was absolutely critical. The communications themselves were plainly explicit, but the central regulatory question could not be answered simply by looking at those words in isolation.

Our client’s case was that he genuinely believed he was communicating privately with another adult through a platform presented as being restricted to adults. There was no connection with his pupils or his professional role and no intention whatsoever to communicate with a child.

It was also important to scrutinise the evidence carefully. Serious allegations do not remove the need for a regulator to establish that there is a proper evidential basis for referring a teacher to a Professional Conduct Panel.

Our representations therefore addressed both the evidence and the wider question of proportionality, including our client’s previously unblemished record, his insight, remorse and the steps he had taken to ensure that nothing similar could happen again.”

Jared McNally, Clifford Johnston & Co.

Clifford Johnston & Co is a leading defence firm in Criminal and Professional Disciplinary Law, based in Manchester and representing clients across England and Wales on a privately funded basis. We provide strategic advice and robust representation to teachers facing Teaching Regulation Agency investigations and Professional Conduct Panel proceedings.