The Balance of Probabilities

Do we look upon allegations of sexual misconduct the same when there are different victims involved?

There’s been a recent case in the UK over allegations made against a teacher for serious professional misconduct. This case was heard by a professional conduct panel, and also in the criminal courts. These two bodies serve different purposes and have different processes. But ultimately they both seek the truth — although they have different standards of proof to be met. I have written previously on the significance of the definition of proof in different courts, and how it can lead to different, but valid, verdicts for the same crime in different types of court. And we’ve seen a similar thing in this case.

The case is also interesting because the perpetrator is a woman. It’s rare, but it does happen, and it’s just as serious. Allegations were made, in 2016, against a 26-year-old teacher, Eleanor Wilson, that she had formed an inappropriate relationship with a 16-year-old pupil, and that they had had sex while on a school trip. I know that there will be those who think “waheeeeeeeey! Nice one, lad” but this is still an extremely serious transgression, and the effects on the pupil were marked, as one would expect. I’m sure that the Men’s Rights Arseholes will be crowing over this one example of a woman committing a sexual crime against a boy, thereby proving once again that they couldn’t give a shit about actual men’s rights.

It might also help us to better understand the importance of believing victims, by considering it from a different angle.

The National College for Teaching and Leadership* (NCTL) has the power to investigate and discipline teachers that are reported to it for misconduct. It cannot bring criminal charges, but it can suspend teachers from the register, or ban them completely. This case is interesting because of the mismatch in outcomes of the professional conduct panel, and the criminal trial. The end result seems unsatisfactory, but the systems have worked as intended. In order to make sense of the outcome, we need to look more closely at the purpose and processes of each type of hearing.

The charges brought against Wilson were different in the two courts. In ordinary language, she was accused of having a sexual relationship with one of her pupils. The allegation was upheld by the disciplinary panel, but not by the criminal court. Why?

There are a few reasons:

1. The NCTL makes its decisions based on the balance of probabilities, whereas a criminal court passes judgement to the standard of beyond all reasonable doubt;
2. The purpose of the NCTL is to set and maintain standards for the teaching profession, and the role of a criminal court is to determine if a defendant has broken the law;
3. The law related to sexual consent and people in positions of responsibility is specific and more stringent than general laws related to the age of consent in the UK;
4. The NCTL has a safeguarding role to perform, whether a teacher’s misconduct meets the standard of ‘criminal’ or not.

Different charges were put before each court. We’ll start with the criminal charges, because they are briefer. Wilson was accused of four counts of sexual activity with a child under 18 while in a position of trust. This is a relatively new crime in the UK, introduced in 2001, and it specifically concerns the abuse of trust committed by someone in a position of responsibility if they have a sexual relationship (even a consensual one) with someone under their care who is aged below 18.

Ordinarily, the age of consent in the UK is 16, and so people who work in certain professions must not have a sexual partner who is aged 16 or 17 unless they are married to them (this is the only exception; people aged 16 and 17 can get married in the UK with parental consent).­ Prior to 2001, Wilson would not have committed a criminal offence, but she would still almost certainly have lost her job. Whether or not the NCTL would have disciplined her as severely as they did in this case is unknown.

And now on to the charges related to professional misconduct. There were two charges brought: unacceptable professional conduct and conduct that may bring the profession into disrepute. The report on the disciplinary panel’s decision gives details of the alleged actions that support these charges (it’s a long read). The items in bold are the ones she admitted to, which constitute serious misconduct by themselves:

1. Engaged in inappropriate physical conduct with Pupil A and/or other inappropriate conduct during a trip in July — August 2015 in that she:
a. consumed alcohol;
b. permitted pupils to consume alcohol;
c. kissed Pupil A on the plane on the way back from the trip on or around 2 August 2015;
d. had oral sex with Pupil A in the airplane toilet on the way back from the trip on or around 2 August 2015;
e. had sexual intercourse with Pupil A in the airplane toilet on the way back from the trip on or around 2 August 2015:
2. Engaged in an inappropriate relationship with Pupil A in 2015 and / or 2016 in that she:
a. met pupil A on a one to one basis in her office;
b. shared her personal mobile number with Pupil A;
c. regularly communicated with Pupil A outside of school;
d. disclosed personal details of her life to Pupil A;
e. took Pupil A on one or more outings;
f. consumed alcohol with Pupil A;
g. kissed Pupil A on one or more occasions;
h. touched Pupil A, including rubbing his leg;
3. Her conduct at allegations 1 and 2 as may be found proven was sexually motivated;
4. In or around May 2016 she informed the school’s principal that:
a. she had not been meeting Pupil A outside school when in fact she had been;
b. she had not had sexual intercourse with Pupil A when in fact she had;
5. Breached confidentiality in relation to allegations against her regarding her relationship with Pupil A, in that she discussed the allegations with Pupil A;
6. Asked Pupil A:
a. to keep their relationship secret;
b. to deny their relationship if asked about it;
7. In doing allegations 4, 5 and 6 as may be found proven she was dishonest in trying to conceal her relationship with Pupil A.

Wow, that is one hell of an accusation. Having followed reports on the case as the trial was ongoing, I thought that it really did not look good for the teacher. And that’s even with the harsh reporting restrictions we have in this country. Anyway, long story short, the tribunal found her guilty of all charges and ruled that she should be prohibited from teaching for life.

When the case went to a criminal trial, the jury were unable to return a majority verdict, and so a “not guilty” verdict was recorded. The Crown Prosecution Service stated that they will not seek a retrial, and because the crimes for which Wilson was tried are not on the Schedule of Qualifying Offences for Retrial of Serious Offences, even if new evidence emerges she will not be tried again for these offences (double jeopardy rules were removed in 2005 for 30 serious offences — it still applies for all other crimes).

None of that means these crimes did not happen. The professional conduct panel decided that it was more likely than not that Wilson was guilty of the charges. Because of the risk she poses to other children and the integrity of the teaching profession, the tribunal enforced the highest penalty. They have to err on the side of caution, for public safety and trust; but a different standard applies in a criminal trial, that of beyond reasonable doubt.

I think it’s important to talk about these different outcomes, because it may help some to understand why a “not guilty” verdict, or untried allegations, do not mean that we can take it on trust that no impropriety took place. Safeguarding rules have really been sharpened up in the UK as a result of widespread sexual abuse of vulnerable people. One of the most prolific offenders, Jimmy Savile, never had to face justice in his lifetime, but almost everyone he worked with knew about his crimes.

The attitude at the time was that sexual misconduct was just one of those things, a bit of banter and nothing to complain about. This culture of “boys will be boys” and “locker-room talk” permitted the rape and sexual abuse of thousands of children. It was only since this came to light in the media that the government introduced stricter standards for people in positions of trust, which means anyone who works in a young offenders institution, hospital, or educational institution; or who acts as a legal guardian. In addition, many roles require candidates to undergo background checks if they involve contact with children and/or vulnerable people, even if it is indirectly. We just decided as a nation that we would no longer tolerate sexual abuse by those with care responsibilities — and that’s a pretty good thing to agree on. It’s a shame it took us so long.

A huge part of this wholesale change in how we deal with allegations of abuse by trusted community figures was that we decided to believe victims and witnesses when they came forward. Again, for those at the back, believing victims does not mean that we consider all allegations to be equal to guilt, but that we investigate them properly. You’d think that should be the case anyway, but for decades, it was not.

The matter of believing victims does not seem controversial in the case of children and vulnerable adults who say they have been abused by someone in a position of trust. We can see from the educational tribunal and criminal trial in the case of Eleanor Wilson, that a thorough investigation takes place if there are credible allegations, and that we don’t just assume guilt if somebody is accused of an offence.

What we can also see from this case is how difficult it can be to prosecute cases with compelling evidence due to the different ways of categorising the offence, and different standards of proof to be met, in different courtroom settings. I hope this example helps people to understand why we must take such allegations seriously, and why a “not guilty” verdict can be handed down when the defendant is, in fact, guilty. And for the last time, why we must believe victims.

* The NCTL was disbanded in 2018 and its functions taken over by the Department for Education and the Teaching Regulation Agency.