Investigating harmful sexual behaviour: A…

Under Fiona Scolding QC’s guidance, Fiona and I undertook a review of harmful sexual behaviour at Westminster School. As part of that work, Fiona and I were struck by the immense challenges and responsibilities that schools face given that these events often occurred off the school premises, in private and with no one else present. A further challenge was complications of working alongside other agencies such as children’s services and occasionally the police. We wanted, therefore, to provide some practical guidance for schools on how a school should approach these episodes if they are required to investigate.

First, all schools are under a statutory responsibility to safeguard pupils in their charge (in relation to maintained schools, s.175(2) Education Act 2002). This means difficult investigations cannot be shirked or allowed to drift. Despite the paucity of information or contradictory evidence, the school will have to confront that a finding of fact will need to be made to ensure that the school is safeguarding its pupils.

Second, all schools should have a protocol in place for contacting the police (preferably the RASSO officer) as well as children’s services. This protocol should cover when an internal investigation will be suspended pending the outcome of a police or children’s services investigation. As a policy document, there may be circumstances where it is necessary to depart from this protocol and this may involve undertaking an investigation whilst the police are investigating simultaneously. There should be a clear decision log outlining what decisions were taken, when and by whom.

Third, there should be a clear policy on when pupils' mobile phones will be searched, when and by whom (there is a statutory power to search the contents of mobile phones (s.550ZC(6E) Education Act 1996).

Fourth, when undertaking the investigation it is useful to separate the ‘investigator’ (such as a deputy head) from the ‘judge’ (who has to be the Head Teacher in maintained schools). This ensures that the investigator’s evidence is properly challenged by the Head Teacher and that any pupil accused has the opportunity to respond to any findings. Given the sensitivity of the issues involved, we called for suitably skilled external investigator to be available to schools in the most sensitive of cases.

Fifth, do not interview the complainant in the Head Teacher’s office of somewhere similar. They are not in trouble and should not be treated as such.

Sixth, whilst undertaking an investigation it is very unlikely that the complainant will need to be cross-examined by the alleged perpetrator (or their representative) provided they are interviewed by the investigator. A complainant’s previous sexual history is exceptionally unlikely to be relevant.

Seventh, have a very clear policy on when both the complainant and the alleged perpetrator will be instructed not to attend during an investigation. This is lawful in certain circumstances (R (CHF and CHM) v The Headteacher and Governors of Newick CE Primary School and East Sussex Council [2021] EWHC 2513 (Admin).

Eighth, make a conclusion on the balance of probabilities. Where there is no corroborating evidence, this may well involve deciding which of two contradictory stories is the most plausible.

For more information on the review undertaken by Fiona Scolding QC and me see here and our presentation on running an investigation here.

Joe Thomas is a barrister at Landmark Chambers.