England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
(Mr Justice Mitchell - 2002/0640)
(Mr Justice Cresswell - 2001/2412)

		Royal Courts of Justice Strand, London, WC2A 2LL
		13th December 2002

Lord Justice Simon Brown:

1. Each of these two appeals is brought by a pupil permanently excluded from his maintained school under the provisions of the School Standards and Framework Act 1998 ("the 1998 Act"). AM, a boy then aged 15, was permanently excluded by his head teacher from Kingsmead School in the London Borough of Enfield on 15 February 2001 for firing two small pellets from a pellet gun at a female fellow pupil. DR, a boy then aged 13, was permanently excluded by his head teacher from St George's Catholic School in the City of Westminster on 23 January 2001 for an indecent assault on a female fellow pupil. In each case the governing body decided that the appellant should not be reinstated and in each case the appellant's subsequent appeal against the governing body's decision was dismissed by the independent appeal panel (IAP).
2. Both appellants are long-since established and progressing well at other schools. Both, however, are concerned lest exclusion from their previous schools (a fact obviously recorded on their school record) were to count against them at some future date.
3. Both brought judicial review proceedings to challenge the respective decisions excluding them. AM's application against the governing body and the IAP was dismissed by Mitchell J in the Administrative Court on 13 March 2002, permission to appeal to this court being given by Sedley LJ. DR's application for permission to move for judicial review (against the head teacher as well as against the governing body and the IAP) was refused in the Administrative Court initially on the documents and then, on renewal, by Cresswell J following an oral hearing on 29 October 2001. It too comes before this court with Sedley LJ's permission, he having directed the "case to proceed in the Court of Appeal". It has seemed to us right in these circumstances to treat Cresswell J's decision as the dismissal of a substantive judicial review application so that DR in this court is an appellant properly so called.
4. Both appeals have been heard together since both raise the same question of principle, a question of some general importance. There are various ways of formulating it. Postulate unfairness in the proceedings before the governing body (or, perhaps, the head teacher) but a fair hearing before the IAP. Is the earlier unfairness "cured" on appeal? Or, to put it differently, will the court on a subsequent judicial review challenge quash a fair appeal hearing as well as the previous unfair determination so as to ensure that the pupil obtains a fair decision at each stage of the process? As Sedley LJ helpfully observed when granting permission to appeal in AM's case:

"If there were no appeal panels, on Mitchell J's finding the governors' decision would presumably be quashed. There is an issue of principle in whether a pupil who appeals should forfeit that possibility. There appear to be inconsistency in the decided cases about whether an unfair initial hearing should be appealed or judicially reviewed. ..."

5. That issue of principle is the only issue remaining in AM's case. DR's appeal raises in addition the question whether permanent exclusion was a disproportionately severe response to the misconduct in his case.
6. With that brief introduction let me turn next to the statutory framework provided by the 1998 Act.
7. Section 64 permits the head teacher of a maintained school to exclude a pupil from the school permanently on disciplinary grounds. Under s65 where the head teacher "decides that any exclusion of a pupil for a fixed period should be made permanent" he must inform the "relevant person" (a parent where the pupil is under 18) of this and of the reasons for it and of his right to make representations about the exclusion to the governing body and the means by which he may do so. The head teacher must also without delay inform the local education authority and the governing body of the decision and the reasons for it.
8. Section 66(2) provides that:

"The governing body shall in any such case -

(a) consider the circumstances in which the pupil was excluded;

(b) consider any representations about the exclusion made to the governing body -

(i) by the relevant person (, or

(ii) by the local education authority;

(c) allow each of the following, namely -

(i) the relevant person, and

(ii) an officer of the local education authority nominated by the authority,

to attend a meeting of the governing body and to make oral representations about the exclusion; and

(d) consider any oral representations so made."

9. Section 66(6) provides:

"If the governing body decide that the pupil should not be reinstated, they shall forthwith-

(a) inform the relevant person, the head teacher and the local education authority of their decision and

(b) in addition, in the case of a pupil who is permanently excluded, give the relevant person notice in writing referring to that decision and stating the following matters-

(i) the reasons for the decision,

(ii) his right to appeal against the decision,

(iii) the person to whom he should give any notice of appeal,

(iv) that any notice of appeal must contain the grounds of appeal, and

(v) the last date on which an appeal may be made."

10. Appeals against the decision of a governing body are provided for in s67 and Schedule 18 to the Act:

"67(1) A local education authority shall make arrangements for enabling the relevant person to appeal against any decision of the governing body under section 66 not to reinstate a pupil who has been permanently excluded from a school maintained by the authority.

(2) Schedule 18 has effect in relation to the making and hearing of appeals pursuant to arrangements made under subsection (1); and in subsections (3) and (4), 'appeal panel' means an appeal panel constituted in accordance with paragraph 2 of that Schedule.

(3) The decision of an appeal panel on an appeal pursuant to arrangements made under subsection (1) shall be binding on the relevant person, the governing body, the head teacher and the local education authority."

11. Schedule 18 to the 1998 Act provides:

"1(1) No appeal under section 67(1) against a decision not to reinstate a pupil may be made after the 15^th school day after the day on which the relevant person is given notice in writing under section 66(6)(b).

2(2) An appeal panel shall consist of three or five members appointed by the authority from-

(a) persons who are eligible to be lay members; and

(b) persons who have experience in education, are acquainted with educational conditions in the area of the authority or are parents of registered pupils at a school.

10(1) The appeal panel shall give the relevant person an opportunity of appearing and making oral representations, and shall allow him to be represented or to be accompanied by a friend.

(2) The panel shall also allow -

(a) the head teacher to make written representations and to appear and make oral representations,

(b) the local education authority and the governing body to make written representations,

(c) an officer of the authority nominated by the authority, and a governor nominated by the governing body, to appear and make oral representations, and

(d) the governing body to be represented.

14 The decision of an appeal panel and the grounds upon which it is made shall -

(a) be communicated by the panel in writing to the relevant person, the local education authority, the governing body and the head teacher, and

(b) be so communicated at the end of the second school day after the conclusion of the hearing of the appeal.

15(2) The local education authority shall, in setting any time limits in connection with appeals, have regard to the desirability of securing that appeals are disposed of without delay."

12. Section 68 of the Act requires that all those discharging functions under s64-67 and Schedule 18 ie, the head teacher, the governing body, the LEA, and the IAP, "have regard to any guidance given from time to time by the Secretary of State". That guidance is to be found in Circular 10/99 (as amended), in particular Chapter 6 of the circular and Annex D. Chapter 6 of the Circular includes the following:

"6 A decision to exclude a child should be taken only:

( in response to serious breaches of the school discipline policy and

( if allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school.

Before excluding a child, in most cases a range of alternatives strategies ... should be tried. ( A permanent exclusion can be given for a first offence, for example involving violence, but only when the head teacher has had further opportunity (not in the 'heat of the moment') to consider the incident in question.

If, when they review an exclusion, the Discipline Committee or the independent appeal panel consider that the guidance in this Section and Annex D was not followed, they should normally direct re-instatement.

6.1 Schools must maintain discipline and good conduct to secure an orderly learning environment so that teaching and learning can take place. Schools will therefore need to adopt a range of strategies, including exclusion, to ensure that they are providing a sound learning environment for all pupils. But many pupils excluded from school never get back into education and risk exclusion from mainstream society later in life.

...

Permanent Exclusion

6.6 A decision to exclude a child permanently is a serious one. It is a final step in the process for dealing with disciplinary offences when a wide range of other strategies have been tried and have failed, including the use of a Pastoral Support Programme. It is also an acknowledgement by the school that it can no longer cope with the child. The Secretary of State does not expect a head teacher normally to exclude permanently a pupil for a 'one-off' or first offence."

13. Much of Annex D is referred to in Mitchell J's helpful judgment below. I shall confine myself to paragraph 35:

"The school is responsible for promoting good behaviour and discipline on the part of its pupils and for securing an orderly and safe learning environment for its pupils and staff. In deciding whether to direct re-instatement, therefore, the panel must consider the impact that it may have on other members of the school. The Secretary of State would normally regard it as inappropriate to re-instate a pupil who has been permanently excluded in circumstances involving any of the following:-

( serious actual or threatened violence against another pupil or member of staff; or

( sexual abuse; or

( presenting a significant risk to the health and safety of other pupils by selling illegal drugs; or

( persistent and malicious disruptive behaviour, including open defiance or refusal to conform with agreed school policies on, for example, discipline or dress code."

14. So much for the scheme of the legislation and the ministerial guidance provided under it.
15. Although the central point raised by these appeals is one of general application it is, I think, helpful to set it in the context of the facts found (or assumed) in each of the two cases.

AM's Case

16. The appellant's misconduct was not in dispute: he had fired two 6mm plastic pellets at a fellow pupil at the school, a girl who, he said, had been persistently annoying him and acting offensively towards him. He had decided on the attack two days previously and on the day in question brought the gun into school. At the end of the school day he followed the girl to the bus stop and shot her in the leg. No physical injury was caused although the first pellet struck the girl on the leg, the second missing her. The appellant then threatened her by pointing the gun at her head.
17. The criticisms in this case were directed both at the governing body's hearing and at the hearing before the IAP. So far as the criticisms of the IAP's hearing were concerned, these were fully considered by the judge below and rejected. That seems to me an unsurprising conclusion: the IAP went into the matter with impressive thoroughness for a total of some eight hours spread over two afternoons. The appellant has not sought to re-open these criticisms on appeal and I need not, therefore, discuss them further. The appeal hearing before the IAP is, in short, to be regarded as entirely unimpeachable.
18. Not so, however, the proceedings before the governing body (or Disciplinary Committee as it was called below). As Mitchell J's judgment makes clear, because the respondents were contending that any defects in those earlier proceedings were in any event cured by the later appeal hearing, no evidence was adduced to contradict or challenge the criticisms made of the Disciplinary Committee so that their factual basis had to be assumed true. Three criticisms were thus established. The first and principal one was that at the end of the hearing before the governing body the head teacher remained in the room and spoke to one or more members of the committee. The second criticism was that a lot of documents were only made available to the appellant's father the day before the hearing, something which the judge described as "inconsiderate and unacceptable". The third criticism was of the governing body's refusal to allow the appellant's father to put in three statements made by fellow pupils of his son, statements confirming that the victim had indeed acted offensively towards the appellant which, whatever weight they might have, it was impossible to say were irrelevant. The judge said of each of these three defects in the proceedings that it gave the appearance of unfairness. As to the first, essentially a finding of apparent bias, he observed:

"Once confidence in the fairness of the system is undermined, it is difficult to restore even if there is an appeal by way of a rehearing - the damage is done."

DR's Case

19. As previously stated, this appellant was permanently excluded for indecent assault on a female fellow pupil ("K"). Given that in this case an irrationality challenge arises too, it is necessary to go into the nature and context of the assault in a little detail. I shall take these details from the appellant's own account of the incident given at interview under caution by the police. This interview I should note took place as part of an investigation into K's complaint that she had been raped by a group of five boys at lunch time in a school classroom. The appellant told the police that when he and his four friends went into the classroom a number of girls walked out leaving K inside. One of the boys "shut the door and turned off the lights and S [another boy] got hold of K and started trying to force her to the floor and was touching her. Then, I was on my way out, then I touched her bum then W [another boy] touched K's bum also and then after, about a minute later, I was on my way to the library". A little later in the interview he said: "when S got hold of her, that's when I was going out of the room and I touched her bum while I went out of the room." He touched her, he said, on top of her clothing. The appellant gave essentially the same account in his evidence on appeal to the IAP.
20. The Chairman of the IAP states that they reached the following factual conclusions:

"(i) the incident took place where and when it had been described. Five boys including DR were present. DR had entered the room as one of the group of five boys. There was no reason for him to be in that room;

(ii) DR admitted being present when K was attacked and forced to the floor;

(iii) he admitted acts which amounted to an indecent assault (touching K's bottom);

(iv) he then said that he left the room while the attack was in progress. However, he did nothing to alert any teacher to what was happening, or to raise the alarm in any other way."

21. The Chairman's statement continues:

"Those factors alone were serious matters for the following reasons:

(i) An assault of any kind on any child should be treated as serious breach of School Rules - it also affects discipline in the School;

(ii) It is a breach of health and safety for the school;

(iii) The effect on K was serious - she was very upset and the Police explained that if K had not withdrawn her complaint then they would have gone through with prosecuting the boys involved.

(iv) The incident was bad for School morale and would tarnish the School's image."

22. The decision that DR should be permanently excluded was reached by a majority of the IAP, namely the Chairman and one other. The third member of the panel differed from that view, subsequently stating:

"I very strongly felt that this was an ideal case of 'inclusion' and not of 'exclusion' that may alienate one irrevocably against the system."

23. In this case it was sought to impugn the decisions of all three bodies: the head teacher, the governing body and the IAP. Each was alleged to have acted unfairly in the matter (the proportionality of the sanction of permanent exclusion aside), the head teacher for example by "failing to conduct a proper and independent investigation"; the governing body and the IAP for having "relied heavily upon the police view of the likelihood of DR's conviction [for indecent assault] had the criminal case proceeded, rather than establishing the primary facts for themselves".
24. For reasons which will become apparent, we found it unnecessary to explore the criticisms made of the head teacher and the governing body (although we should certainly not be taken to have accepted them). As for the criticisms of the IAP's proceedings, I confess to having found these difficult to follow. Once it is recognised that the IAP relied exclusively upon the appellant's own account of the incident and that they imputed to him no criminality beyond that which he admitted, any suggestion that they were unduly influenced by police evidence becomes wholly untenable. The Chairman's observation that, had K not "withdrawn her complaint" (which everyone understood to mean only that she was not prepared to give evidence in court) the boys would have been prosecuted, was in truth no more than a statement of the obvious: the appellant on his own admission could have had no defence to a charge of indecent assault.
25. In this case, as in AM's case, therefore, the IAP's proceedings are to be regarded as unimpeachable whatever deficiencies may be postulated at some earlier stage of the exclusion process. I am not, of course, at this stage dealing with the irrationality (disproportionality) challenge: I shall return to that later, pausing only to note that while all five boys were permanently excluded from the school, only the appellant took the matter even to appeal to the IAP.
26. Against that factual and legislative background I turn to the first and main issue: the effect upon an otherwise unimpeachable appeal decision of unfairness at an earlier stage. It is the appellant's submission in both cases, skilfully argued by Mr Bailin on their behalf, that where the first decision has been affected by a serious breach of the rules of natural justice - as, for example, the governing body's decision in AM's case which suffered from apparent bias through the head teacher remaining with the Committee after the hearing - the court should not regard that unfairness as cured by the appeal hearing, but rather should quash both decisions. Parliament clearly intended that a pupil should only suffer permanent exclusion from school if (a) the head teacher's decision to exclude him were confirmed following a fair hearing before the governing body under s66 of the 1998 Act, and (b) his appeal to the IAP under s67 were dismissed following a further fair hearing. There may be room for two views as to the propriety of permanent exclusion in a particular case. That is exemplified here, subject to the irrationality challenge, by the IAP's majority decision in DR's case. The pupil is entitled to a view fairly arrived at on both occasions. He should have two fair chances of reinstatement, two bites of the cherry. If the governing body's decision was affected by apparent bias or some other obvious unfairness, then, quite apart from his right of appeal, he should have a hearing before that body on the merits. He could, instead of appealing to the IAP, have sought judicial review of the governing body's decision. On Mitchell J's findings below, that challenge ought properly to have succeeded. He should not now be penalised for having instead sought reinstatement by a non-litigious route, namely by exercising his statutory right of appeal. This court in R(Cowl) -v- Plymouth City Council [2002] 1 WLR 803 stressed the importance of avoiding litigation wherever possible. If in cases like the present the court finds unfairness in the governing body's decision cured by a fair appeal, pupils and their parents will be driven to seek judicial review of the earlier hearing. When it is pointed out that on the appellants' argument the excluded pupil would get not just two, but three, bites of the cherry - since, if he failed again before the governing body, he would then become entitled to a further appeal to the IAP- Mr Bailin responds: better so than that the pupil be encouraged to seek judicial review of the first decision. If then it is suggested that any such challenge to the first decision would in any event probably be refused on the grounds that the appeal procedure provides an appropriate alternative remedy, Mr Bailin responds, in the words of Lord Oliver in Leech -v- Governor of Parkhurst Prison [1988] AC 533, 581, "that is tantamount to saying that for practical purposes, the jurisdiction [the court's supervisory jurisdiction, there over the prison governor despite a right of petition to the Secretary of State; here over the governing body] does not exist".
27. It is clear that in certain cases unfairness at an original hearing cannot be "cured" through appeal proceedings. Lord Wilberforce stated in the Privy Council in Calvin -v- Carr [1980] AC 574, 592:

"... their Lordships recognise and indeed assert that no clear and absolute rule can be laid down on the question whether the defects in natural justice appearing at an original hearing, whether administrative or quasi-judicial, can be 'cured' through appeal proceedings."

28. Their Lordships regarded, however, as "too broadly stated" Megarry J's dictum in Leary -v- National Union of Vehicle Builders [1971] Chancery 34, 49:

"If the rules and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal? ... As a general rule ( I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body."

29. Leary was a trade union case and, as Lord Wilberforce observed, that principle may be correct in that sort of case "where movement solidarity and dislike of the rebel, or renegade, may make it difficult for appeals to be conducted in an atmosphere of detached impartiality and so make a fair trial at the first - probably branch - level an essential condition of justice". Lord Wilberforce, however, identified two other categories of case, first, "where the rules provide for a re-hearing by the original body, or some fuller or enlarged form of it", where the court would probably conclude "that the first hearing is superseded by the second, or, putting it in contractual terms, the parties are taken to have agreed to accept the decision of the hearing body, whether original or adjourned"; secondly, "intermediate cases" in which the court might conclude either that in the end there had been "a fair result, reached by fair methods, such as the parties should fairly be taken to have accepted when they joined the association", or that "the defect is so flagrant, the consequences so severe, that the most perfect of appeals or re-hearings will not be sufficient to produce a just result".
30. As, however, Lord Bingham CJ was to point out in R -v- Hereford Magistrates' Court ex parte Rowlands [1998] QB 110, 124: "All these observations [of Lord Wilberforce] were directed to administrative and domestic proceedings. The board was not dealing with cases in which a criminal penalty had been imposed following an unfair procedure".
31. Ex parte Rowlands is the authority upon which Mr Bailin places the greatest reliance. The applicants in both cases then under consideration had challenged on natural justice grounds their convictions before the magistrates, not having exercised their right of appeal to the Crown Court. The Divisional Court was concerned in particular with an argument, based on R -v- Peterborough Magistrates' Court ex parte Dowler [1997] QB 911, that judicial review in such circumstances was impermissible: the appellant should instead appeal to the Crown Court. Much of Lord Bingham's judgment is illuminating, but for present purposes the following brief citations must suffice:

"The court [in ex parte Dowler] held, first, that there was no principle, let alone authority, to suggest that a person was entitled to more than one fair trial. There was no reason in law or in sense for a defendant to be given an extra life. While different considerations might apply to domestic and other specialist tribunals, the court placed reliance on the observations of Lord Wilberforce in Calvin -v- Carr ... There are, in our opinion, three objections to this reasoning. The first is that Parliament has expressly conferred a right to retrial in the Crown Court on appeal following a trial before justices, and in providing for two trials Parliament must be taken to have intended that there should be two trials not vitiated by unfairness or procedural irregularity."

32. That was at p123. At p125 Lord Bingham continued:

"It is ... relevant to note that if the defendant appeals to the Crown Court, while he will obtain a fair retrial, he will not obtain redress for the unfairness in the magistrates' court of which he complains, since the Crown Court has no supervisory jurisdiction over the conduct of magistrates' courts. ( Ex parte Dowler ( should not in our view be treated as authority that a party complaining of procedural unfairness or bias in the magistrates' court should be denied leave to move for judicial review and left to whatever rights he may have in the Crown Court. So to hold would be to emasculate the long-established supervisory jurisdiction of this court over magistrates' courts, which has over the years proved an invaluable guarantee of the integrity of proceedings in those courts. (

Two notes of caution should however be sounded. First, leave to move should not be granted unless the applicant advances an apparently plausible complaint which, if made good, might arguably be held to vitiate the proceedings in the magistrates' court. Immaterial and minor deviations from best practice would not have that effect ... This court should be generally slow to intervene, and should do so only where good (or arguably good) grounds for doing so are shown. Secondly, the discretion whether or not to grant relief by way of judicial review is always, in the end, a discretionary one. Many factors may properly influence the exercise of discretion, and it would be both foolish and impossible to seek to anticipate them all. ( We do not, however, consider that the existence of a right of appeal to the Crown Court, particularly if unexercised, should ordinarily weigh against the grant of leave to move for judicial review, or the grant of substantive relief, in a proper case."

33. Mr Bailin not surprisingly fixes upon the phrase in that final sentence, "particularly if unexercised", the suggested implication being that even if the right of appeal has been exercised, judicial review may properly be invoked to quash the earlier decision. Closer analysis of the judgment, however, and of the various decisions to which it refers, to my mind makes it apparent that Lord Bingham was in fact contemplating not a concluded appeal to the Crown Court but rather the possibility of a pending appeal, notice of such appeal having been given in due time. Lord Bingham had earlier cited R -v- Mid-Worcestershire Justices, ex parte Hart [1989] COD 397 where Parker LJ had said:

"I do not propose, because it is unnecessary, to go into the question of whether the existence of the pending appeal is a bar to proceeding by judicial review in the sense that it is an inevitable bar, for it appears to me that in some cases it may be possible for a judicial review to proceed notwithstanding such an appeal."

34. Lord Bingham had also noted with regard to R -v- Barnes, ex parte Lord Vernon (1910) 102 LT 860:

"By the time the applicant sought to make the order of certiorari absolute his appeal to quarter sessions had been dismissed and his conviction affirmed. In that situation the Divisional Court was of opinion that it would be useless to make the rule absolute to quash the order of the justices since the conviction at quarter sessions would still stand."

35. Rowlands, therefore, provides no authority for the proposition that, a fair but unsuccessful Crown Court appeal notwithstanding, a conviction before the magistrates remains susceptible to judicial review and, moreover, were it to succeed, would carry in its wake the quashing too of the subsequent appeal decision. Nor, indeed, was Mr Bailin able to cite to us any authority from any field of public or administrative law in which such a result has been achieved. Nothing daunted, however, he submits that where, as here, the appellant has exercised his right of appeal with a view to avoiding litigation (the appeal to the IAP being contrasted in this respect with a Crown Court appeal), the court should stretch the principle established in Rowlands to the further extent necessary to encompass the present challenge. He urges in this connection the grave consequences for a pupil of permanent exclusion from school - suggested by Mitchell J below to be sometimes "even more [damaging] than the fact of a conviction for a criminal offence" - and he points also to the very real difficulties faced by a child were he, without appealing to the IAP, to seek judicial review of an unfair decision of the governing body: difficulties of funding, difficulties even in discovering the possibility of judicial review (unrepresented, save by his father, as he would almost certainly be and with nothing in the governing body's notice of decision - see s66(6) set out in paragraph 9 above - to alert him to any rights of redress save only the possibility of an appeal to the IAP if brought within 15 days); and difficulties in any event because of the courts' extreme reluctance to entertain judicial review challenges unless statutory appeal rights have already been exhausted.
36. Mr Bailin further points out that what Lord Bingham said as to a defendant not obtaining on appeal "redress for the unfairness in the magistrates' court of which he complains, since the Crown Court has no supervisory jurisdiction over the conduct of magistrates' courts" (see paragraph 32 above) is no less true of a pupil who appeals to the IAP: the IAP likewise is not concerned to review the way the governing body arrived at its decision but only to determine its correctness. It has been common ground before us that this is so notwithstanding that under the guidance set out in Chapter 6 of the Circular (see paragraph 12 above), if the IAP consider that the Discipline Committee have not themselves followed the guidance (which would clearly require them to arrive at a fair decision), "they [the IAP] should normally direct re-instatement". This, it is agreed, does not imply any sort of supervisory role.
37. Powerfully and persuasively though these arguments were advanced, I for my part cannot accept them. Rather it seems to me that the respondents are correct in their analysis of the law. The true position is this: the court's task in cases like the present is to examine and construe the statutory scheme as a whole so as to discern from it Parliament's intention. The effect of the 1998 Act is to establish, in contested cases of permanent exclusion, a three-stage procedure: decisions successively by the head teacher, the governing body and the IAP (although the first two stages can sensibly be regarded as a single process given that any case of permanent exclusion is automatically referred to the governing body). Plainly Parliament did not intend either hearing (or, indeed, the head teacher's initial decision) to be unfair. But that is by no means to say that Parliament intended a pupil aggrieved by the head teacher's or governing body's decision then to invoke the courts' supervisory jurisdiction rather than proceed to appeal. It is, on the contrary, clear that Parliament intended the aggrieved pupil to seek his remedy before the IAP. In one sense, of course, he then obtains no redress for the earlier unfairness. But what he does obtain is a fresh and fair decision on the merits of the case by a statutory body custom-built for the purpose. The IAP is a tribunal entirely independent of the head teacher and the governing body. It has expertise in the matter of school discipline - is, indeed, trained for the purpose (see paragraph 20 of Annex D). It entertains the appeal on a de novo basis to the extent of hearing all the evidence for itself. It enjoys full powers such as enable it to make a final decision to reinstate which is then binding on all parties. And it operates within an appropriately tight timetable.
38. I regard the authority closest in point here to be not Rowlands, but rather Lloyd -v- McMahon [1987] AC 625. The House of Lords there was concerned with an auditor's certificate under the Local Government Finance Act 1982 certifying sums due from councillors for delaying the making of a rate and, more relevantly for present purposes, the appeal mechanism - an appeal to the Divisional Court - provided for by s20(3) of the Act. There, as here, following the appeal, the initial decision was said to have been unfairly arrived at. Lord Keith said, as p697:

"Upon the view which I take, that the district auditor's decision was not vitiated by procedural unfairness, the question whether such unfairness, had it existed, was capable of being cured by the appeal to the High Court does not arise directly for decision. It is, however, my opinion that the particular appeal mechanism provided for by s20(3) of the Act of 1982, considered in its context, is apt to enable the court, notwithstanding that it finds some procedural defect in the conduct of an audit which has resulted in a certificate based on wilful misconduct, to inquire into the merits of the case and arrive at its own decision thereon. Section 20(3)(b) empowers the court to 'confirm the decision or quash it and give any certificate which the auditor could have given'. ... [T]here is no limit to the further material which may be introduced so as to enable the whole merits to be fully examined. There is no question of the court being confined to a review of the evidence which was available to the auditor. In the circumstances, it would be quite unreasonable and not in accordance with the intent of the enactment to hold that the court, where an issue is raised as to the fairness of the procedure adopted by the auditor, is confined to a judicial review species of jurisdiction so as to have power only to quash or affirm the auditor's certificate without entering upon its own examination of the merits of the case. No doubt there may be cases where the procedural defect is so gross, and the prejudice suffered by the appellant so extreme, that it would be appropriate to quash the auditor's decision on that ground. But in my opinion the court has a discretion, where it considers that justice can properly be done by its own investigation of the merits, to follow that course."

39. Lord Bridge too concluded that the auditor had acted fairly but then continued at p708:

"I return to the question of more general importance whether, if there had been any unfairness in the procedure followed by the auditor, this would necessarily have led, as the Divisional Court thought, to the quashing of the certificate or whether, as the Court of Appeal concluded, the full hearing of the appeal to the court on the merits was in law able to make good any deficiency in the auditor's procedure. ... The question how far in domestic and administrative two-tier adjudicatory systems a procedural failure at the level of the first tier can be remedied at the level of the second tier was considered by the Privy Council in Calvin -v- Carr ( in which all the relevant previous authorities on the subject are reviewed. I do not find it necessary in this case to examine the general principles there discussed, nor would I think it appropriate in this case to seek to lay down any principles of general application. This is because the question arising in the instant case must be answered by considering the particular statutory provisions here applicable which establish an adjudicatory system in many respect quite unlike any that has come under consideration in any of the decided cases to which we were referred. We are concerned with a point of statutory construction and nothing else."

40. At p709 Lord Bridge concluded:

"In every case it must be for the court, as a matter of discretion, to decide how in all the circumstances its jurisdiction under s20(3) can best be exercised to meet the justice of the case. But I am clearly of opinion that when the court has, as here, in fact conducted a full hearing on the merits and reached a conclusion that the issue of a certificate was justified, it would be an erroneous exercise of discretion nevertheless to quash the certificate on the ground that, before the matter reached the court, there had been some defect in the procedure followed."

41. Mann LJ in R -v- Bradford Justices, ex parte Wilkinson [1990] 1 WLR 692, 695 said of Lloyd -v- McMahon:

"It is to be observed that those remarks are confined ... to domestic or administrative proceedings. In my judgment domestic or administrative proceedings are a long way from judicial proceedings. I believe that a defendant is entitled to have a proper trial and a proper appeal."

That judgment was cited with approval by Lord Bingham in Rowlands.

42. By the same token that "domestic or administrative proceedings are a long way from judicial proceedings", so too I recognise that the adjudicatory system under consideration in Lloyd -v- McMahon is in certain respects quite unlike that under the 1998 Act, most notably in that the appeal in that case lay to the Divisional Court rather than, as here, to a statutory appeal panel. I nevertheless see a closer parallel between this case and Lloyds -v- McMahon than between either of them and the criminal justice system with which Rowlands was concerned.
43. If, of course, in any particular case the prior procedural unfairness can be shown in some way to have tainted the subsequent appeal process, then the appeal decision itself will necessarily be unsustainable. As Lord Wilberforce said in Calvin -v- Carr (see paragraph 29 above) there may be cases where "the defect is so flagrant, the consequences so severe, that the most perfect of appeals or re-hearings will not be sufficient to produce a just result". No doubt Lord Keith had that passage in mind when he said in Lloyd -v- McMahon that "there may be cases where the procedural defect is so gross, and the prejudice suffered by the appellant so extreme, that it would be appropriate to quash [the first-tier] decision on that ground". Save in circumstances such as those, however, I for my part find it difficult to think of any case in which a decision reached upon an otherwise fairly conducted appeal by an independent tribunal following a full merits hearing should be impugnable by reference to unfairness at an earlier stage. Calvin -v- Carr itself was concerned with contractual disputes and private law rights rather than public administration and the only rationale suggested there for a category of cases requiring "two fair hearings" was that (as in trade union cases) the prejudice resulting from an adverse first decision could carry over to infect the second stage. Such an approach was accordingly "an essential condition of justice": the only way of ensuring even one fair hearing. Judicial review was never an option in Calvin -v- Carr, any more than it had been in Leary.
44. That, however, is not the position under the 1998 Act and I would unhesitatingly reject Mr Bailin's fallback argument that the apparent bias affecting AM's case before the governing body was so serious as must inevitably have contaminated the subsequent appeal hearing. Rather I share the view expressed in paragraph 21 of the judgment below that, despite "accepting the factual core of each of the complaints as I do, neither individually nor cumulatively did they in my judgment taint the hearing before the IAP. These defects were curable and cured on appeal".
45. I would therefore hold that the appellants' rights to a fair determination of their respective cases against permanent exclusion were satisfied in each case by the IAP hearing and determination. I recognise that, had they not appealed and instead sought judicial review of the (assumed to be) flawed decisions by the governing body, the more difficult question would then have arisen as to whether the court should properly exercise its supervisory jurisdiction or should rather leave the applicants to their right of appeal under the statute. For my part, whilst conscious of the risk that, were the courts never to permit such challenges, governing bodies might come to be regarded (and to regard themselves) as for all practical purposes immune from the review jurisdiction (see Lord Oliver's speech in Leech referred to in paragraph 26 above), I would expect cases where review is thought appropriate to be very few and far between. Save in a case where the governing body is plausibly said to have acted quite improperly, or where the court's guidance on some real point of principle is required or, as in R -v- London Borough of Newham ex parte X [1995] ELR 303, where not merely was permission to move for judicial review granted but also interim relief to enable the pupil to return to school to pursue his GCSE course work, the court's proper response will almost always be to leave the applicant to his statutory remedy.
46. I turn finally to the irrationality challenge in DR's case. I propose to deal with it comparatively shortly. As Brooke LJ observed in R -v- Dunraven School ex parte B [2000] ELR 156, 198:

"The general rule, when Parliament has entrusted a decision-making process to a specialist body, is that the courts will be reluctant to interfere with the decisions made by that body. It is operating in a field with which it (and not the courts) is familiar, and this is particularly the case where sensitive relationships are concerned."

47. It was Brooke J who had granted permission to move and interim relief in the earlier case of ex parte X, remarking:

"that there is here a strong prima facie case that there has been a breach of the rules of fairness in the way that this child has been treated and a prima facie case that the penalty is disproportionate to the offence, although that must, essentially be a matter for the school authorities."

48. The question in all these cases, as Lord Donaldson made plain in the context of employment law in Piggott Brothers Limited -v- Jackson [1992] ICR 85, 92 is whether the reviewing court can characterise the decision under challenge as "certainly wrong", "perverse" as opposed to being "a permissible option".
49. For my part I find it impossible to regard DR's permanent exclusion as "certainly wrong". A fellow pupil was raped and the appellant was one of a group of five boys who, with obvious ill-intent, had shut her alone with them in a darkened classroom where the attack took place. True, he eventually dissociated himself from the incident by leaving the room before the rape actually occurred. But he knew a serious attack was in progress and he did not depart before himself committing an indecent assault upon her. When, moreover, he left he took no steps to alert anyone to the continuing attack upon the girl. He simply left her to her fate.
50. R -v- London Borough of Camden ex parte H [1996] ELR 360 involved a successful challenge by a victim's parent to the governing body's decision to reinstate two 13-year old boys whom the head teacher had permanently excluded from school (for firing pellets at H, a vulnerable 11-year old fellow pupil). Kennedy LJ was critical of the governing body for not taking into account the views of H and his father:

"In my judgment this was an important line of inquiry because when the matter was considered in the round the evidence might have indicated that in reality a choice had to be made between maintaining H in the school and reversing the head's decision in relation to [the two 13-year olds]. That would be the situation if the evidence showed that if [the two boys] returned H for good reason and not simply because of parental pressure, would not be able to stay. If that did turn out to be the position then, as it seems to me, the governors and the LEA might well have concluded that in justice to H, and in order to 'maintain discipline and good conduct to secure an orderly learning environment in the school' they should not interfere with the decisions made by the head. Otherwise, put in the vernacular, what would parents be saying about the school which after such an incident banished the disadvantaged victim and welcomed back the perpetrators?"

51. In my judgment the decision taken by the majority of the IAP in DR's case was entirely reasonable, "a permissible option". Their reasoning set out in paragraph 20 and 21 above seems to me entirely satisfactory. Whether or not the case falls precisely into a particular category identified in paragraph 35 of Annex D (see paragraph 13 above) matters not; it can certainly be regarded as one of comparable seriousness. K and her parents would surely have been devastated had she been required to face these boys for the remainder of her schooldays. Four of the five did not challenge their exclusion. I do not think that DR is entitled to challenge his either.
52. I would dismiss both these appeals.

Lord Justice Kay:

53. I agree.

Lord Justice Keene:

54. I agree fully with the judgment of Simon Brown L J. I would only emphasise two points. First, these appeals are not concerned with the issue arising in most of the authorities cited to us, including Rowlands, namely whether relief by way of judicial review should be granted of a decision when a statutory right of appeal on the merits exists. Normally in that situation, where the appellate body is also empowered to grant as full a remedy as the earlier decision-maker, the courts will as a matter of discretion expect the right of appeal to be exercised and will consequently refuse relief. It is only where some special reason exists, such as the need for a speedy determination which cannot be achieved through the statutory appeal process, that the courts will be prepared to intervene at that stage by judicial review: see R –v- Secretary of State for Home Department, ex parte Swati [1986] 1 WLR 477. But in the present cases, the statutory right of appeal was exercised. We are concerned with the later stage in the process.
55. Secondly, when that is the situation, it is very difficult to see how a proper decision arrived at by the IAP after a fair hearing could be liable to be quashed because of a defect in the earlier decision-making process, unless that defect has in some way infected the appeal decision. So long as an independent appeal body is entrusted with the task of dealing with the merits of the case fully and de novo, and it then does so in a way which by itself is not open to challenge on normal judicial review grounds, that appeal decision should not be struck down unless it has been contaminated in some real sense by the defect in the earlier decision-making process. Indeed, why should it be quashed when the applicant has had a full merits appeal heard by such a body? To quash it merely because of the earlier defect would seem to rob the appeal process of any sensible purpose.
56. I too would dismiss both appeals.

ORDER :

DR's case:

57. appeal dismissed;
58. there be a detailed legal aid assessment of the appellant's costs in accordance with the Community Legal Services Costs Regulations 2000 paragraph 3 the appellant pay the respondent's costs. The appeal to be assessed, the amount of any such costs to be adjourned and determined pursuant to section 11(1) of the Access to Justice Act 1999 and regulation 10. The Community Legal Services Costs Regulations 2000 and not to be enforced without the leave of the court.

In AM's case there is a the identical order as to the first three paragraphs. Paragraph 4 is then to be added leave to appeal to the House of Lords is refused.

ORDER:

In DR's case:

(1) that the appeal be dismissed;

(2) that there be a detailed legal aid assessment of the appellant's costs in accordance with the Community Legal Services (Costs) Regulations 2000;

(3) that the appellant pay the respondent's costs of the appeal, to be assessed, the amount of any such costs to be adjourned and determined pursuant to section 11(1) of the Access to Justice Act 1999 and regulation 10 of the Community Legal Services (Costs) Regulations 2000 and not to be enforced without the leave of the court.

In AM's case:

(1) that the appeal be dismissed;

(2) that there be a detailed legal aid assessment of the appellant's costs in accordance with the Community Legal Services (Costs) Regulations 2000;

(3) that the appellant pay the respondent's costs of the appeal, to be assessed, the amount of any such costs to be adjourned and determined pursuant to section 11(1) of the Access to Justice Act 1999 and regulation 10 of the Community Legal Services (Costs) Regulations 2000 and not to be enforced without the leave of the court.

(4) Permission to appeal to the House of Lords refused.

(Order not part of approved judgment)