England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)

		Royal Courts of Justice The Strand London Wednesday, 31 July 2002

1. LORD JUSTICE SCHIEMANN: This is an appeal by a girl who has been permanently excluded from her maintained school by her head teacher pursuant to powers contained in the School Standards and Framework Act 1998. I shall refer to her as T in order to preserve her anonymity. The head teacher took the view that she had been involved in systematic bullying and harassment, and that this had caused considerable distress to those involved and undermined the good order of the school.
2. Pursuant to section 65, he informed her mother and the Local Education Authority and the governing body. The governing body, pursuant to section 66, considered representations made about the exclusion both by the mother and by the LEA. Under the Education (School Government) (England) Regulations 1999, the function of the governing body in a case such as this are to be carried out by a Pupil Discipline Committee. The Governing Body had to decide whether or not T should be reinstated. They took into account various anonymous statements made by fellow pupils. They decided on 9 March 2001 that she should not be reinstated.
3. They informed her mother of their decision and the mother, pursuant to section 67, appealed against a decision of the Discipline Committee to an Appeal Panel. The Appeal Panel heard representations by the mother and the LEA and took into account in reaching their decision the same anonymous statements. The Appeal Panel on 2 April 2001 also decided that T should not be reinstated. Her mother was told the next day. However, the letter informing T's parents of the reasoning of the Appeal Panel was not received until 5 June 2001.
4. Then on 15 June 2001 T issued judicial review proceedings against, first, the decision of the head teacher to exclude her, and second, the decision of the Governing Body that she should not be reinstated and, third, the decision of the Appeal Panel to the same effect. She sought permission, which on 6 September 2001 was refused by Collins J, in respect of each of these. Sedley LJ granted her permission to appeal to this court in relation to the judge's refusal to review the decision of the Discipline Committee because of the lapse of time and adjourned the remainder of the application for permission to this court.
5. So far as the complaint against the head teacher is concerned, it seems to have been only faintly pursued before the judge and was not the subject of any application to this court. So far as the adjourned application to this court is concerned, after we had heard the appeal concerning the decision of the Discipline Committee, we granted permission to appeal the decision of the judge not to review the decision of the Appeal Tribunal to admit the anonymous statements.
6. The parties wished to adduce further evidence on that matter and we gave them a short time to do this. For reasons which we do not fully understand, the matter was not able to proceed as fast as it ought to have done, and it was not until today that we have finally heard that appeal.
7. Meanwhile, no progress has been made in relation to finding a placement for T. She no longer wishes to return to the school from which she was excluded, but clearly needs to go to a school. It can only be hoped that the conclusion of the present proceedings will remove an irrelevancy from that task, and that both her parents and the Local Education Authority try and work together to find something which is suitable for her, because she appears to be a person of some ability.
8. The appeal in relation to the presence of the teacher on the Discipline Committee is what I should deal with next. So far as the decision of the Governing Body is concerned, her major complaint was one of the members of the Discipline Committee was a teacher-governor, a Miss L, who, in her capacity as a teacher at the school, had previous dealings with her. The background to at least some of the bullying was a series of offensive telephones calls made to a pupil, whom I will call X. At some point at any event, in the understanding of the mother, Miss L had taken the view that these calls had been made by T. However, the mother of X stated that the calls had been made not by T but by Y, another pupil at the school. Thereafter there was a fight between T and Y. Y's father had protested to the school at what he regarded as bullying by T. The facts as asserted by the mother in relation to Miss L were that she had wrongly attributed the making of the telephone calls to T and that she was "involved in resolving part of the dispute" between T and two of her class mates which had included the fight.
9. The mother in her written statement in these proceedings says that at the hearing before the Discipline Committee, neither she nor the gentleman who was helping her conduct her case before the committee (and who is, we are told, very experienced in doing this type of work) realised that Miss L had been involved earlier in dealing with the dispute between the class mates. She said this, notwithstanding the fact that she had put before the Discipline Committee a letter from the mother of the recipient of the telephone call which exculpated T and blamed Y, and which made clear that Miss L had been involved in this dispute. In any event, at the hearing, at which T was present, no objection was taken to the presence of Miss L as a member of the committee.
10. Shortly after the hearing, a long letter was written by T's mother and father stating that Miss L knew all about the bullying by Y. Once more, there is no suggestion in that letter that the parents were at all concerned about the presence of Miss L on the Discipline Committee. At the hearing before the Appeal Panel, again no point was taken by the parents about Miss L's presence as part of the Discipline Committee. That point was first taken as the tenth point in a letter written by T's solicitors on 5 June 2001.
11. Another complaint about the proceedings before the Discipline Committee related to the admission of the anonymous statements. That was rejected by the judge. Precisely the same point arises in relation to proceedings before the Appeal Panel and is dealt with later in this judgment.
12. There were yet further complaints before the judge in relation to the proceedings before the Discipline Committee, but they have not been pursued in front of us. The position thus is that, in relation to the proceedings before the Discipline Committee, the only independent point is that relating to Miss L. As to that, the judge in paragraphs 12 to 17 said:

"(12) I will deal first with the argument about Miss L. In my judgment, it is at this stage arguable that she ought not to have sat. Whether in due course a court would find that there was any breach of the law in that regard is another matter. However, the application against the Governing Body is out of time. It seems to me that where a procedural defect leading to fairness is relied on or is identified then the correct procedure is, if so advised, to move then for judicial review, if that is, the unfairness is not recognised and steps are not taken to remedy it. That could have happened, if the point had been made at the time, through a fresh hearing before a fresh committee.

(13) However, unfortunately, and I do not blame the applicant's parents for this, no point was taken at the time. The applicant, one would have thought, would have been aware that Miss L had been involved with her and in her view had reached a decision against her which was not correct, and if there were concerns in that regard that she should not be sitting on the body, then one would have thought that even a lay person would be able to articulate them. However, as I say, that was not done, and no compliant was made at the time. The appeal was pursued to the independent body.

(14) I have been referred to two authorities by Mr Rawlings, first a decision of Potts J in R v The Board of Stoke Newington School ex parte M (1994) ELR 131. That was an allegation that there had been procedural unfairness and, indeed, that was made out. In that case the judicial review application was made against the body in question and an appeal to the local education authority, at that time the LEA, was adjourned pending the hearing of the judicial review. That, as I say, in my view, is manifestly the correct procedure.

(15) ... Mr Rawlings relies on [an observation of Mance LJ who] observed in R v Bradford Justices ex part Wilkinson [1990] 1 WLR 692, the observations being at page 695) that the defendant was entitled to have a proper trial and a proper appeal. Mr Rawlings relies on that to say that, in effect, the appeal cannot cure any defects in the hearing before the governing body and that, therefore, if there was a procedural defect there then, notwithstanding that time has expired, I should give leave to move out of time.

(16) In my view in the context of these hearings, and knowing that there will be a full rehearing of all the relevant issues and of all matters that the appellant wishes to put forward, that principle does not necessarily apply and certainly does not apply where the decision of the Governing Body has not been challenged in time. So much is, in my judgment, consistent with the decision of the Court of Appeal in R v Visitors to the Inns of Court ex parte Calder [1994] QB 1.

(17) Accordingly, as I say, even though it may be that Miss L should not, with hindsight, have been sitting, that challenge, in my judgment, is unquestionably one which should not go ahead and I refuse leave on the ground of delay."

13. The first question which arises before us is whether, given that he accepted that there was an arguable point in relation to Miss L, the judge was right to strike out the claim on the grounds of delay. Sedley LJ gave leave because it seemed to him arguable that in the circumstances where:

(i) a claimant had a remedy against the decision of the Discipline Committee by way of appeal to an Appeal Panel by way of rehearing,

(ii) she exercised that right of appeal and lost,

time should have been extended so as to permit her thereafter to challenge the decision of the Discipline Committee by way of judicial review. With the consent of the parties we have treated this as a discrete point which we should decide ourselves, rather than remit the matter to the Administrative Court.

14. Mr Sheldon, who then appeared for the respondents, submitted that the judge was right. If someone wished to take a point on the propriety of someone sitting on a Discipline Committee, they should do it before that committee. If that did not result in the Governor withdrawing from the Discipline Committee, then the appropriate course was to move for judicial review promptly, or accept that the problem of the improper member could be overcome by a proper hearing before the Appeal Panel. What was not acceptable was for someone to say nothing before the Discipline Committee, refrain from moving for judicial review, appeal and allow the expenditure of time and money on the appellate basis and then assert, when the appeal goes against her, that it was a requirement of the law that there should be no one on the Discipline Committee who was connected with the child and that therefore, all proceedings, including those before the Appeal Panel, were a nullity. He submitted as a separate point that the involvement of Miss L had, in any event, not been such as to require her to withdraw at any event, in the absence of a new request.
15. Mr Rawlings submitted that Miss L must have realised that she knew T and should thus have withdrawn. He submitted it was perfectly sensible not to move for judicial review until alternative remedies had been exhausted. He submitted that the reason for delay was the time taken by the appellate process and the fact (as he informed us, waiving privilege) that the mother first became aware that the presence of Miss L gave rise to a possible legal ground of challenge when he suggested it shortly before the judicial review proceedings were commenced.
16. These cases turn very much on their own facts. In the exclusion procedure, the head teacher must, by statute, play a part however much he may have been personally involved. He is however expressly prevented by Regulation 48(1) from being part of the Discipline Committee. Strictly speaking, the hearing before the Discipline Committee is not an appeal. It is, as it were, still in-house. It is quite probable that one or more of the persons hearing the case will have had some previous knowledge of the existence of the excluded pupil. They will often know the head teacher. It would clearly be wrong for someone who had put in a statement of the head teacher or to the committee to be a member of the committee. In between those two situations, there will be cases where the involvement with the pupil or the head teacher is closer or less close. The most sensible course is for any member of the committee who has any involvement with either party to withdraw, unless he is satisfied that there cannot be a reasonable doubt about his ability to act impartially. If he considers there can be no such reasonable doubt, it would still be wise to ask the other members of the committee whether they agree, and even if they do, it will often be wise to disclose such links as he has. If there is any objection, then the committee can decide whether or not he should withdraw. This seems to be what was envisaged in Regulation 57(2)(b) and 57(6) of the Regulations to which I have already referred.
17. When it comes to the hearing before the Appeal Panel, the matter is largely regulated by Schedule 18 paragraph 2(7), which would have excluded Miss L from being a member. Even there, no doubt cases may occur when a member should withdraw although not disqualified by statute.
18. There has been much litigation on the questions whether in this circumstance or that a claimant is entitled to two faultless hearings, and on whether the proper course is to appeal and see what happens, or to raise the point by judicial review proceedings at the earliest opportunity. I would not think it right to lay down an inflexible rule. I remind myself of what Lord Wilberforce said in Malloch v Aberdeen Corporation [1971] WLR 1578 at 1595:

"A breach of procedure, whether called a failure of natural justice, or an essential administrative fault, cannot give him the remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The court does not act in vain."

19. For my part, I am not persuaded that the involvement of
20. Miss L in the affairs of T was such that it was perfectly clear that she should withdraw. She may well have assumed that there was no objection by the parents, since they did not voice one. She may well have assumed from the material put in by T's mother and from the presence of T with her mother that the mother knew all about Miss L's contact with her daughter. So far as we know, no attempt was made by the claimant's solicitors to obtain a statement from Miss L.
21. There is moreover no evidence from the mother as to when she became aware of what Miss L's dealings with her daughter have been. Nor is there a clear statement by her as to whether she was of the view that Miss L was anxious to secure the exclusion of her daughter, or had betrayed any prejudice against her daughter in her earlier dealings. My impression from the material which has been put in front of us, is that the mother and her experienced adviser may have regarded the presence of Miss L as a positive advantage, but in any event saw nothing wrong with the presence of Miss L. Only when all else had failed and Mr Rawlings suggested that there might be something wrong in the presence of Miss L on the Discipline Committee, did the point begin to have an attraction. That in itself would not be fatal to a claim that the committee was not properly constituted. There can be things which are objectionable on their face and inhibit the fulfilment of what Parliament was trying to achieve in these disciplinary proceedings. In such a case, the court might interfere. However, for my part, I see nothing which puts the present case into that category.
22. I by no means rule out the possibility that it may sometimes be right to extend time when someone has thought it right to try the appellate process first. That may sometimes be more sensible, although it would be wise for the appellant to give a clear indication straightaway that he also has a potential judicial review challenge to the proceedings before the body whose decision is being appealed. The respondent can decide what is the most sensible way forward.
23. In the present case that was not done. For my part, I am therefore inclined to think that the judge was right to refuse to extend the time. In any event, it was a matter for his discretion. It would not, in my judgment, be open to this court to say that he went outside the bounds of the discretion vested in him. However, even if one were prepared for the purposes of argument to accept that this was wrong, the claimant's case insofar as it was based on the presence of Miss L on the Discipline Committee was not, for the reasons which I have given, such as should have led to the quashing of the decision of that Committee.
24. I turn therefore to the appeal in relation to the anonymous statements. Although this point is argued both in relation to the Discipline Committee and in relation to the Appeal Panel, it is adequate for present purpose to consider the position solely in relation to the Appeal Panel. Although in the present context the problem arises from the use of written statements furnished to the panels by the head teacher, it could equally arise from anonymous statements furnished by the pupil. That is not entirely fanciful when one considers that there are some occasions when pupils have a genuine grouse against a teacher as they see it, but do not wish to advertise their name.
25. The background law comes to this. In principle, in proceedings of this kind, the Discipline Committee and the Appeal Panel are entitled to look at statements without their makers being called to give evidence. They should bear in mind when deciding what weight to give to those statements the fact that no cross-examination has been possible. They are entitled to look at those statements, even if they are anonymous. However, doing so can give rise, not merely to the problems associated with an inability to cross-examine but also to problems arising from the fact of anonymity. The statement may have been made by a well-known liar, or by someone who has a particular reason to entertain a bias against, or indeed a bias in favour of, the pupil concerned. The fact that the maker of the statement is not known to the other side may prevent that other side from calling evidence which would have cast doubt on the reliability of that statement. Thus singular care is required from tribunals which pay regard to such statements.
26. The main complaint made on behalf of T is that it is not apparent from the decision of the Appeal Panel that it was sufficiently alert to the dangers of unfairness to T from the use of these anonymous statements. The relevant parts of the decision letter read as follows (page 155 of the bundle onwards)

"The panel were informed by the head teacher that T had been involved in a serious fight with another pupil and had been bullying and harassing other pupils, both in and out of school. He stated that a number of girls were in this group and that many of them played some part in the incidents. However, he was satisfied that T had been the main participant. The head teacher had received a letter dated 22 January 2001 from X's father. You had this letter which was addressed to T's mother and one of the parent-governors. The letter made a number of allegations about T bullying X. The head teacher then interviewed a number of pupils to obtain statements from them about the situation. He informed the panel that it had been very difficult to investigate the allegations, as a number of pupils refused to make written statements for fear of reprisals and their parents had supported these decisions. He described the "atmosphere of fear" which meant that some pupils would give verbal statements, but refuse to make a written statements. A number of written statements were included in the case papers."

The panel carefully considered the statements you had produced from other pupils and their parents.

Miss A [who I interpolate is the deputy head teacher] informed the panel, that the fight with X had taken place on 15 January 2001 after school. It had started in the playground and moved to the street."

27. Then there is a description of the fight.

"Miss A reported that one other girl, (not X) had also been excluded for a fixed term for her part in this fight.

T gave her account of this fight to the panel. Then:

"Miss A stated that T's behaviour had been generally difficult to manage. She was verbally aggressive, refused to comply with teachers' instructions, often late to lessons, and disruptive when challenged.

The panel were informed that on the basis of the report from B School, T had been placed into class 7KB and then she had started at E School. This was a class of 12 pupils, who had been identified as being in need of additional support and who had received behaviour and anger management as part of the support programme offered to this group."

"Miss A added that you removed T from class 7KB and requested that her name be taken off the special education Needs register."

28. A little later on in the decision we find:

"The panel decided that T had been responsible for hitting X during the fight after school. They also decided that she was a key member of the group involved in bullying: the evidence from the anonymous witness statements supported this, although the additional statements supported the contention that T was not the only pupil involved in the bullying. The panel did not accept the representatives contentions that E School failed to deal with incidents of bullying or that the head teacher had been intimidated by X's father into acting against T. The panel decided that X's father's statement had later initiated the investigations carried out by the teacher and his staff.

The panel then had to consider whether permanent exclusion was a reasonable response to T's behaviour. The panel took into account the Department for Education and Employment's Guidance, particular Circular 10/99. In reaching a decision on this matter, the panel were of the view that factors had to include the broader interests of the school, in terms of the need to establish and maintain discipline and safeguards the welfare of other pupils and members of staff as well as T's interest.

The panel agreed that permanent exclusion was an appropriate response to T's behaviour. Although not serious enough in itself to result in permanent exclusion, the fight with X had involved physical and psychological bullying. This had triggered the school's investigation and this investigation had uncovered a range of incidents of harassment and bullying. The panel concluded, from the written and oral evidence, that it was distinctly more probable than not that T had been the key person in these incidents and had incited other members of the group.

The panel were clear that the school had acted to investigate the incidents of bullying as soon as they were aware of them. The Discipline Policy was clear on this matter and the school had to consider the welfare of other pupils. The panel also considered that given the history of T's behaviour, your relationship with the school and your response to the additional support provided for T, it would not be in her interests to return to this school."

29. That is the end of my excerpts from the letter.
30. From this decision letter, it appears that the exclusion was the result of a combination of two factors. First, a fight which had taken place in school between T and another. Second, the head teacher's view that T had been behaving like a bully for a long period of time. The submissions before us concentrated on the latter. The point was rightly made that had it not been for the background of an alleged history of bullying, the exclusion would not have taken place.
31. The material before the tribunal included evidence from the head teacher, the deputy teacher, a Miss B and the three anonymised statements. It is worth quoting from Miss B's material which was put before the Appeal Panel only to say that she was concerned with the class 7KB, to which reference has already been made. She says that it was decided that T was to be integrated into 7BW and removed from the SEN register. The second pupil from the group 7KB was then reintegrated into the tutor group. This was unsuccessful because T intimidated this pupil, both verbally and physically. Using the evidence from their time in 7KB, it has to be said that this pupil was not easily frightened, but she was by T.
32. The three anonymised statements with which we have to deal are found on pages 125, 126, 127 and 128, set out as follows:
33. Student Statement:

"T is in some of my classes of the subjects I hate the most (P.E. and maths) and she doesn't make it easy for me. She is very loud and disruptive and is very good at making people feel uncomfortable, and she can also tell if you are uncomfortable or have low self-confidence. She hadn't said a lot to me but you feel like she could at any time and that's enough for me not to want to go to school when I have these lessons. (Especially Mondays) I think she affects a lot of people, some a lot more than me but they are too afraid to do anything about it - I nearly didn't, but I didn't want her to come back again. It would make me feel a lot better if she didn't. In my maths lesson she once was really horrible to C, she was kicking her chair, calling her names and humiliating her in front of everyone. She is always rude to our maths teacher - Ms Rodriguez and the teacher lets her get away with it as well as other bullying that goes on.

She also used to play dares in the same class and once one of her friends was dared by her to pull out one of my friend's hair bands and mess up her hair and that made my friend feel uncomfortable too.

Recently while she has been off, school has been a lot easier to cope with and I wish it would stay that way by her not coming back again.

Thank you."

34. Student statement:

"In English once I was sitting next to D and T wanted to sit next to D so she started shouting at me and starting pinching me. Also in German once we were split into groups for a test and our group one the test and T alone started beating up a girl who was in our group. The reason I am frightened of her is because she has got powerful friends."

35. Student statement:

"At first they were good mates, and then T didn't like E and then C wanted to hang around with E regularly. C started saying nasty things about T and a few weeks later T and E became mates and E told T what C had said about her and I'm admitting that I said a few things as well. T and C fell out, after that they argued. One time E and T were coming back from games (P.E.) and C was in front of them and they were punching her in the back and saying rude things to her. T rang C at lunchtimes to confront her about the things she said and told her we all never like C. So C never came in and at one lunchtime we even went to C's house to speak to her, not to fight. Then the cussing and arguing just carried on happening. T or them lot didn't like me hanging around with C so they used to like go F why are you hanging around with that sket. Then the big fight began.

Most people are scared of T because of her attitude and she's loud, demanding, sticks up for herself and if her friends are in trouble she sticks up for them. People don't like T but are afraid to tell her. But if you are really good friends with her she sticks up for you, she's kind, she's a nice person.

If she ever gets into big arguments with bigger people then she has her big brother, her sister and lots of older friends.

T has treated C wrongly and had done so to two other students. The language she would use against them would be like slapper, sket, bitch, etc. and bring the pupils to tears until they don't come to school."

36. Student statement:

"T used to bully me by kicking and slapping me and making threats, she started bullying me in year 7 and in year 8. In 7BW she bullied my so much that I moved tutor group into PS. In the gyms one day me and T that T had a fight with was talking and she brought T into it, then she started laughing about how she used to run and then when we were in the changing rooms T came in and started saying, why was you make jokes on how I was running in the gyms and I said that I wasn't but she said that I was lying about it and slapped on the back of the head and pushed me against a wall and was shouting at me in my face so I told Ms G and she said she would have a word with her but she didn't so she carried on bullying. So I went to Miss B and she had a word with T and because I had told on her she was after me to get me again but I was frightened. And I would on several occasion would hide from her so she couldn't hurt me. She would put her finger on me and push me around in year 8 most of the time when she sees me."

37. It was submitted by Mr Rawlings that these anonymised statements were inadmissible. However, in my judgment the concept of inadmissibility, worked out in cases where an option is keeping the material from the eyes of the jury, is not a useful one in the present context. Clearly the panel had to look at the statements, and this is common ground. There can be cases where to give them any weight in the absence of an identification would be so unfair to the pupil as to make it improper to do so. These cases can involve difficult choices between fairness to those who face exclusion and fairness to others. They are very fact sensitive and the decision maker must, in each case, be conscious of any possible unfairness.
38. For my part, I am not persuaded that in the present case, looking at these particular statements involved such unfairness. Mr Rawlings did not object to the fact that the statements were put in without the possibility of cross-examination. He concentrated on evidence T might had been able to call, if only she had the names of the writers of the statement. When asked to identify what sort of evidence might have been called, he was, understandably, vague, to which comment he might well respond in the absence of knowing names, it is difficult to know how one would have responded. It seems to me that the best evidence, namely herself, T was able to call and did, although reference is made to various teachers in the statements, who apparently would be, as it were, on the side of T, apparently no attempt was made to secure statements from them. It must, I think, be presumed in the absence of evidence to the contrary that the head teacher will not place before the panel statements from pupils known to him to be unreliable or to have some disconnected grudge. If a head teacher had a reason to suspect such a thing, then he should tell the Appeal Panel of his concerns.
39. Mr Rawlings makes the fair point that the decision letter does not in terms show the panel grappling with the question of unfairness. Nor does the second statement of the chair of the Appeal Panel, a Miss H. This statement addresses more whether the statements were admissible or at all. This is, however, wholly understandable since the submissions which have been addressed to her were to the effect that they were not admissible unless signed and that Queen v Dunraven [2000] ELR 156 so decided. It did not.
40. In paragraphs 7 to 9 of her written statement she says:

"In this case the panel sought advice from the clerk and the solicitor. We were advised that Dunraven hinged on statements which were shown to the panel, but not to the excluded child or his parents or representatives. I understand that the case gives guidance on the use of statements but does not state it is a requirement that all statements be signed or that the maker of the statement be identified and I believe I was told this at the time. I am also aware of the guidance set out in paragraph 44 of Circular 10/99 and would have looked at it on 2nd April 2001. I have a copy of the guidance which I always bring to hearings. That guidance reads as follows:

44 Where adult witnesses do not appear in person, the panel must rely on their witness statements. In the case of witnesses who are pupils of the school, it would generally be appropriate for the panel to rely on their written statements. Pupils may appear as witnesses if they do so voluntarily and with their parents' consent. All written statements must be attributed and signed, unless the school has good reason to wish to protect the anonymity of pupils. Appeal Panels should be sensitive to the needs of child witnesses to ensure that the child's view is properly heard. The general principle remains that someone accused of something is entitled to know the substances and the source of the accusation."

41. That is the end of the quotation from the circular.
42. Miss H goes on:

"The other panel members and I were satisfied that there was good reason to protect the anonymity of pupils. The head teacher gave evidence on this point and the statements themselves showed fear of reprisals. In the circumstances the panel decided that they were right to take the statements into account. However I was aware of the need to consider the weight to be given to the statements in carrying out a balancing exercise to decide the facts. The panel were advised by the solicitor that it was appropriate to attribute different weight to different evidence. More weight should be given to the evidence of a live witness who is cross-examined and can be questioned by the panel. Less weight should be given to the evidence we had, statements which were unattributed and where the makers did not attend the hearing.

Consequently the panel were clear that the anonymous statements were not particularly strong evidence. However out statements were not based on the statements alone. We took into account the whole of the evidence before us. I recall two other elements which were significant. The first is that the claimant to some extent admitted the allegations. I recall that she admitted fighting with X and involvement with telephone calls. In addition, the head teacher gave evidence of conversations with other pupils who were too scared to give written statements. I found the head teacher a credible witness and believed his account of these matters. I was aware that his reports were again evidence which was not in itself strong as we had no statements from those pupils and they did not appear."

43. In my judgment, it has not been shown that Miss H's approach was unfair. This case shows the difficulties attendant on the use of unattributed statements; indeed, a statement not subject to cross-examination. Clearly, if the panel can reach a firm decision one way or the other, quite apart from any such statements, then it will be well advised to say so. In such circumstances it will be relieved of the difficult task of deciding what weight to give to the statements.
44. For these reasons, I would dismiss the appeal from the judgment of the judge, both in relation to the Discipline Committee and in relation to the Appeal Panel.
45. LORD JUSTICE SEDLEY: I agree. Because of the importance of these issues, both to T who is the appellant in this case and to pupils facing exclusion in other cases, I add a few words of my own.
46. So far as concerns the decision announced by the Court earlier, that it would dismiss the appeal against Collins J's refusal to enlarge the time for applying for judicial review, it is possible -- we have not heard or invited argument on it -- that the very recent decision of the House of Lords in (Burkett) v Hammersmith and Fulham Council [2002] 1 WLR page 1593, might cast a different light on the reasoning which my Lord, Schiemann LJ, has explained. We had earlier concluded that the judge had been entitled not to extend time.
47. I agree in any event that there is insufficient evidence to show that in fact Miss L was disqualified from participating. I would nevertheless strongly and respectfully endorse the note of caution which Schiemann LJ has sounded about the risks involved in the participation in a school Discipline Committee of a teacher who is familiar with the pupil. The right course is always to err on the side of caution, for it is not necessarily going to be an answer that the pupil or the parent failed to object. Disqualification does not always depend upon the taking of an objection.
48. So far as concerns the Appeal Panel hearing, the head teacher and the school, like the Local Education Authority, have an objective and neutral role to play. The head teacher is not and should not think of him or herself as under siege and has no need to become a partisan for the initial decision to exclude the pupil. The head teacher's role is to place all relevant facts before the panel, nothing less and nothing more.
49. As this court has said in the past, where anonymous statements are tendered the choice is between two courses each of which is going to be unfair in some degree to somebody, either the pupil who is appealing or the pupil whose evidence is being tendered, and possibly also the school. The panel's task, not an easy one, is to find the least unfair course. The duty of fairness, especially where anonymous statements are tendered as they were here, means that the school and the Local Education Authority must ensure that the panel is told anything which might qualify or cast doubt upon the anonymised statement, for example if the author has been involved in bullying or is known to tell tall stories. The school must be scrupulous about this. Parents will be entitled to the head's (or perhaps deputy head's) candid answer about the reliability of the unnamed authors of statements where the panel decides to admit them.
50. For my part, I would reject Miss Laing's submission that, because in extradition proceedings anonymous statements are admissible, the appeal panels have no discretion to exclude them in school appeals, and that the only question for the panel is the weight of the statements once admitted. In paragraph 29 of our decision in S, T and P v Brent and Others, we spoke of "disregarding" anonymised statements. We did so in order not to get involved in the technical distinction between on the one hand looking at a statement (as the panel has in any event got to do) and then refusing to admit it, and on the other hand admitting it but then refusing to give it any weight.
51. Since appearances matter, it should in my judgment be regarded as wrong and therefore unfair to consider giving any weight at all to anonymised statement which are damaging in specific respects which in the judgment of the panel the pupil cannot be expected to deal with without knowing who the author is. It does not matter whether this is regarded as a question of admissibility or of weight.
52. More general allegations, on the other hand, of the sort that are present in the anonymous statements in the present case, although they always require caution in the absence of the author's identity, may be admitted if the panel consider them relevant and have made an informed and careful judgment of the balance of fairness and unfairness which is involved.
53. The panels must consider this, case by case, with care. It is not sufficient simply to let such statements in routinely, and then purport to give them less weight than other evidence. What is necessary in each case is a thought-out decision whether or not to exclude them, with the help, no doubt in many cases, of the legal adviser to the panel.
54. In the present case, the anonymous statements were not by any means the only evidence. It was open to the appellant's representative to ask the head teacher or the deputy head about the reliability of the authors of the statements, although, as I have said, it should be regarded as the school's duty to inform the panel about such things. The anonymous statements make no specific allegations of a kind which are incapable of challenge if one does not know who the author is. It seems to me there was no obvious injustice, even had the panel analysed the matter in these terms such as to call for exclusion of the statements. The omission to which Mr Rawlings draws attention did not therefore result in injustice in the present case. But this is not to say that panels do not need to attend with care to this problem whenever it arises.
55. I too would therefore dismiss the appeal.
ORDER: Appeal dismissed.