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R (ON THE APPLICATION OF EDWARDS) v. HEAD TEACHER OF WHITTON HIGH SCHOOL & ORS [2001] EWHC Admin 899 (2nd November, 2001)

		Neutral Citation Number: [2001] EWHC Admin 899
		Case No: CO/447/2001

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION

Royal Courts of Justice
Strand,
London, WC2A 2LL
Friday 02nd November 2001

5 November 2001

B e f o r e :

MR NIGEL PLEMING Q. C.
(Sitting as a Deputy High Court Judge)
____________________

THE QUEEN ON THE APPLICATION OF
MARCEYA EDWARDS
Claimant

- and -

(1) HEAD TEACHER OF WHITTON HIGH SCHOOL
(2) GOVERNING BODY OF WHITTON HIGH SCHOOL
(3) INDEPENDENT APPEAL PANEL OF THE LONDON BOROUGH OF RICHMOND
(4) SECRETARY OF STATE FOR EDUCATION AND EMPLOYMENT

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

John McKendrick (instructed by Ashok Patel & Co for the Claimant)
Nicholas Bowen (instructed by Mr R J Mellor, Head of Legal Services, London Borough of Richmond upon Thames) for the First, Second and Third Defendants
____________________

JUDGMENT
AS APPROVED BY THE COURT
____________________

MR NIGEL PLEMING Q.C.:

INTRODUCTION

This is an application for Judicial Review, permission having been granted by Mr Justice Munby on the 27th June 2001.

The Claimant is the mother of Simon Edwards who was born on 13th November 1985. He is a school pupil with a statement of special educational needs and he was a pupil at Whitton High School from September 1997 until his permanent exclusion on 7th February 2000.

Whitton High School is a comprehensive school for approximately one thousand pupils aged between eleven and sixteen years of age and, according to the witness statement of Mrs Raynor, the Head Teacher, there were, at the relevant time, approximately 40 pupils with statements of special educational needs and approximately 20 pupils whose main presenting need was some form of behavioural difficulty.

As already mentioned, Simon Edwards was excluded from Whitton High School by letter from the Head Teacher dated 7th February 2000. The Head Teacher is the first defendant in these proceedings. The decision to exclude was appealed by the Claimant to the Discipline Committee of the Governors of the school (the Second Defendant), and the Head Teacher’s decision to exclude was upheld following a meeting on 2nd March 2000. The Claimant, as was her right, then appealed to an Independent Appeals Panel (the Third Defendant) which sat on the 15th December 2000 to hear the appeal. By letter dated 18th December 2000 the Claimant was notified that the appeal panel had decided that the head teacher’s decision to exclude Simon permanently should be upheld.

The Claimant challenges those three decisions on the grounds set out in paragraph 4 of the amended Statement of Grounds:

4.1 The first defendant’s decision to exclude was unlawful as she failed to have regard to DFEE Circular 10/99, and as a consequence failed to carry out an adequate investigation, in particular she failed to even interview Simon before excluding him and secondly, she included in her decision to exclude Simon irrelevant factors, which the guidance specifically stated should not be used as grounds for exclusion.

4.2 The second defendant’s decision is challenged on the same ground as above, because they failed to quash the decision to exclude and furthermore, the composition of the Committee makes it neither independent nor impartial, in breach of Article 6 ECHR.

4.3 The third defendant’s decision is challenged on the same grounds because it also fails to overturn the first defendant’s decision. Secondly, it decided to exclude Simon on two grounds which were not specific in the first defendant’s decision to exclude, thereby disadvantaging the Claimant by not making it clear what case she had to meet and thirdly by accepting events had occurred when no evidence had been placed before the panel, and further by confusing the burden of proof.

4.4 The third defendants failed to provide reasons as to why they rejected the Claimant’s argument before the third defendant, that the exclusion should be overturned, given the various breaches of Circular 10/99. They failed to explain what good reasons they relied upon to depart from the guidance.

4.5 Furthermore, the third defendant’s decision was irrational and/or unreasonable and given the factual conclusions made, no reasonable independent appeal panel would have considered permanent exclusion an appropriate response.

(NB two paragraph 5 in original)

I heard oral submissions in this case on 10th September 2001 and, before preparing this judgment, I have taken the opportunity to re-read the, over 400, pages of documents in the court bundle, together with the outline submissions prepared on behalf of the Claimant and defendants, and the supporting statutory provisions and authorities.

On re-reading these papers, I was struck again by a slight sense of unreality that pervades these proceedings. At the time when the application for permission was considered by Mr Justice Munby, the Claimant’s position was that she wanted Simon to return to Whitton High School and that he would like to return there and continue with his education – see paragraph 8 of her second witness statement dated 26th June 2001. However, by the time of the hearing before me on the 10th September 2001 the position had changed and I was informed that the Claimant had decided that she no longer wanted Simon to return to Whitton High School and, further, he had already started at another school (or was in the process of being assessed for admission to that new school).

When Simon gave evidence before the independent appeal panel on the 15th December 2000, he was asked about the permanent exclusion and in response to questions from the solicitor representing the school, and indeed his own counsel, stated that he had learned his lesson from being permanently excluded, and that he had benefited from a permanent exclusion rather than some form of fixed or internal exclusion.

I was informed by the Claimant’s counsel, Mr McKendrick, that the application was now “mainly concerned with restoring Simon’s reputation and that if permanent exclusion was allowed to stand, there would be a ‘mark’ over him in that it shows that, according to the school, the governors and the independent appeal tribunal, Simon could not be educated in mainstream education”. Before the Independent Appeal Tribunal, Mr McKendrick had referred to Simon’s ‘civil right to clear his name’. Proceeding on the basis that there is a civil right to reputation, it is then necessary to examine with a little care, the history of Simon’s behaviour at Whitton High School, and, thereby, some impression may be formed as to his reputation. Before doing that, one further aspect of the case, which adds to this sense of unreality, is that at the conclusion of his submissions in reply, Mr McKendrick stated that his client did not object to the production by the third defendants of what has been referred to as the ‘tab 2’ documents which particularise Simon’s behaviour between the 20th January 2000 and the 4th February 2000. He did not seek an adjournment to address the content of those documents and, of some importance, he accepted that the documents did paint a picture of Simon’s behaviour and attitude which would justify permanent exclusion. From those submissions, it appeared to me that the Claimant was accepting: first, that the content of the “tab 2” documents was broadly accurate; and secondly, that those documents (which were, of course, available to the head teacher) supported a decision to exclude Simon permanently. The challenge therefore appeared to be confined to comparatively sterile procedural objections to the manner in which the three decisions had been reached.

STATUTORY FRAMEWORK

The power to exclude pupils is addressed in Sections 64-68 of the School Standards & Framework Act 1998.

64.

1. The head teacher of a maintained school may exclude a pupil from the school for a fixed period or permanently.

2. …..

3. A pupil may not be excluded from a maintained school (whether by suspension, expulsion or otherwise) except by the head teacher in accordance with this section.

4. In this Act “exclude”, in relation to the exclusion of a child from a school, means exclude on disciplinary grounds (and “exclusion” shall be construed accordingly).

65.

1. Where the head teacher of a maintained school excludes any pupil, the head teacher shall (without delay) take reasonable steps to inform the relevant person of the following matters –

a) the period of the exclusion (or, if the pupil is being permanently excluded, that he is being so excluded);

b) the reasons for the exclusion;

c) that he may make representations about the exclusion to the governing body, and

d) the means by which such representations may be made.

2. …….

3. Sub-section 4 applies where the head teacher –

a) ….

b) excludes a pupil permanently

c) …

4. Where this sub-section applies, the head teacher shall (without delay) inform the local education authority and the governing body of the following matters –

a) the period of the exclusion (or, if the pupil is being permanently excluded, that he is being so excluded), or

b) his decision that any exclusion of a pupil for a fixed period should be made permanent,

(and in either case) of the reasons for it.

5. …..

6. …..

66.

1. Sub-sections 2-6 apply where the governing body of a maintained school are informed under Section 65(4) of any exclusion or decision to which that provision applies.

2. 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 in pursuance of Section 65(1)(c) or 2(b) 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.

3. …

4. …

5. …

6. 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 a 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.

7. …

8. …

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 sub-section 1 …

3. …

4. …

68.

1 This section applies to any function of -

a) the head teacher or the governing body of a maintained school,

b) a local education authority or

c) an appeal panel constituted in accordance with paragraph 2 of Schedule 18,

conferred by or under any sections 64 to 67 and Schedule 18.

2. In discharging any such function, such a person or body shall have regard to a guidance given from time to time by the Secretary of State.

GUIDANCE

The main source of guidance is to be found in Circular 10/99 (issued by the DFEE in July 1999, with later updates). This is a lengthy document and it is unnecessary to set out extensive extracts from it in this judgment. Particular emphasis was placed by the Claimant on Part 6 (the use of exclusion), and annex D which deals with the procedures for excluding a pupil whether by the head teacher, or by the appellate bodies namely the governing body of the school or the independent appeal panel. From Part 6 there is a clear message that any decision to exclude a child should be taken only in response to serious breaches of a school’s discipline policy and after a range of alternative strategies have been tried and have failed and, perhaps of central importance, that to allow the pupil to remain in the school would seriously harm the education or welfare of the pupil or of others in school. Paragraphs 6.4 and 6.6 are of particular significance.

6.4 Exclusion should not be used for

minor incidents such as failure to do homework or to bring dinner money;

poor academic performance;

lateness or truancy …;

pregnancy ….;

breaching school uniform policy including hairstyle or wearing jewellery;

punishing pupils for the behaviour of parents, for example, by extending a fixed period exclusion until the parents agree to attend a meeting.

6.6 A decision to exclude a child permanently is a serious one. It is a final step in a 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.

Paragraph 6.10 deals with the particular problems faced by pupils with special educational needs:

6.10. The level of exclusions for pupils with a statement of SEN is extremely high; the most recent data show that the permanent exclusion rate for such pupils was seven times higher than for pupils without a statement. Other than in the most exceptional circumstances, schools should avoid permanently excluding pupils with statements. In most cases, the head teacher would be aware that the school, whether main stream or special, is having difficulty managing a statemented pupil’s behaviour well before the situation has escalated. Schools should try every practical means to maintain placements, including seeking LEA and other professional advice as appropriate. Where this process has been exhausted, the school should liase with the LEA about initiating an ‘interim’ annual review of the statement.

11. There are more than 50 paragraphs in Annex D dealing with the procedures for excluding a pupil, I will mention just three, dealing with the procedure at the Independent Appeal Panels hearing.

34. The remit of the Appeal Panel is to consider whether the pupil should be reinstated, not to “clear the pupils name”. An appeal hearing would not be appropriate if:

it became clear that the parent did not wish the child to be reinstated …

35. In considering an appeal, the panel should decide whether the pupil actual did what they are accused of doing. If more than one incident of misconduct is alleged, the panel should decide on each incident. If satisfied on the balance of probabilities that the pupil did what they are alleged to have done, then the panel should decide whether considering all relevant factors, permanent exclusion is a reasonable response to that conduct. Relevant factors must include:

whether permanent exclusion was used in accordance with the Secretary of State’s guidance - where there is doubt the appeal panel should direct to reinstate;

the broad interests of other pupils and staff in the school, as well as those of the excluded pupil;

the school’s published disciplinary policy;

where other pupils were involved in the same incident and were also disciplined, the fairness of the permanent exclusion in relation to sanctions imposed on the other pupils involved.

36. To reach a decision, the panel may need to hear evidence from those directly or indirectly involved, including the pupil. The Discipline Committee may not introduce new reasons for the exclusion. However, the parent and the LEA may put forward new information that may not previously have been available. If this happens, the Discipline Committee should be given an opportunity to respond.

A FAIR HEARING

I proceed upon the basis that the correct approach to the issue of a fair hearing is as set out by the Court of Appeal in R -v- Head Teacher and Independent Appeal Committee of Dunraven School, ex parte B [2000] ELR 156. The overriding requirement for the investigation and for the appellate and review process when dealing with the exclusion of a pupil in one of fairness. The appellant bodies need to be satisfied that there was an evidential basis for an initial decision by the head teacher to exclude the pupil and, in the course of the appeal, there has to be a fair opportunity for the pupil to exculpate himself, a right to be heard by the parent in the review process is worthless, as held by the Court of Appeal, unless the parent knows in some adequate form what was being said against the child. Moreover, it is unfair for the decision maker to have access to damaging material to which the person at risk, the pupil through his parent, had no access. Of course, as noted by Lord Justice Sedley page 190F: “It is a proposition too obvious to require authority that what fairness demands in a particular situation will depend on the circumstances”.

My attention was also drawn to a number of other authorities - both by Mr McKendrick for the Claimant and by Mr Bowen for the Defendants. It is unnecessary to refer to those authorities in this judgment save, in passing, to mention the decision of Mr Justice Newman in R (on the application of B) -v- Head Teacher of Alperton Community School and others [2001] ELR 359 where, at page 383 (paragraphs 49 to 57), his lordship addresses the question of “right to reputation”, in which he concluded that “a finding of misconduct amounting to a serious breach of discipline affects the reputation of a child” (at paragraph 49) but that the civil law right to the enjoyment of reputation is not infringed in the course of proceedings which are not directly decisive of reputation and where the potential for damage is recognised by proper procedural protection being accorded in those proceedings - see paragraph 57.

At the heart of this application for judicial review, therefore, is really the single question. Was there here a fair process followed by the head teacher (assuming her decision to be susceptible to challenge by judicial review), and/or by the appellate authorities? I accept that other questions arise in relation to the rationality of the decisions taken.

FACTUAL BACKGROUND

As Simon was not excluded from Whitton High School on the basis of a single incident - although the decision seems to have been triggered by an incident (which Simon disputes) which is said to have taken place on the 4th February - it is necessary to look at the history leading to that final decision.

Simon was born on the 13th November 1985 and, therefore, at the time of the decision to exclude in February 2000 he was 14 years old. By the date of this permanent exclusion Simon had been made the subject of a number of internal and fixed term exclusions, the last being an internal exclusion on the 28th January 2000. There is reference in the papers to 13 internal and fixed term exclusions between Simon’s arrival at Whitton High School and the 3rd December 1999. I will take the list of fixed term exclusions from Mr McKendrick’s outline submissions, at page 3.

23rd June 1998 temporarily excluded for one day

1st October 1998 temporarily excluded for two days

22nd January 1999 temporarily excluded for three days

10th May 1999 temporarily excluded for five days

21st June 1999 temporarily excluded for 10 days

8th October 1999 temporarily excluded for 10 days

3rd December 1999 temporarily excluded for 15 days.

Simon returned to school on the 20th January 2000, after the completion of his latest period of exclusion. Within days there was evidence of a further deterioration of behaviour (or continuation of poor behaviour) and, in particular, over the period of the 27th January to the 4th February 2000 there was a series of incidents which preceded what, at least on one view of the facts, was the inevitable decision that there would be either a further lengthy period of fixed term exclusion, or a permanent exclusion from Whitton High School.

The material parts of the head teacher’s letter (7th February 2000) are as follows:

“I am sorry that you did not return my telephone call last Wednesday 2nd February nor attend the scheduled meeting this afternoon Monday, 7th February as I wished to inform you of the contents of this letter directly. In monitoring and reviewing Simon’s behaviour since his return to school on the 20th January 2000, I am now writing to inform you that I am left with no alternative but to permanently exclude Simon from Whitton School.

This permanent exclusion follows seven previous fixed term exclusions from the school since June 1998. Despite all our efforts and the extra targeted support agreed with you both at the Governors’ Discipline Committee meeting on 11th January 2000 and through subsequent communications, Simon continues to behave in an unacceptable manner at Whitton School. In the seven school days, Thursday 27th January to Friday 4th February Simon has:

been placed on internal exclusion twice. One internal exclusion was for being rude to a member of staff and disrupting a lesson, the second for truanting a lesson.

truanted from the Sanctuary on the 1st February

truanted from three lessons including one on 27th January

arrived at school late on five out of seven occasions. Simon only signed in late once it was a health and safety issue. This has made the mentoring arrangements very difficult to manage

disrupted two PE lessons and one Science lesson. On 31st January in PE and 27th January in Science Simon constituted a health and safety risk. Simon has also been given two Bad News Slips in English.

not come properly equipped on any day with the correct equipment, bag and Personal Organiser. he has failed to bring in his PE kit

been in a group of five boys who set off the fire alarm (informed you in telephone call 2nd February)

had several recorded incidents of rudeness or non co-operation with staff. The latest incident of abuse occurred in the Dinner Hall at lunchtime. A lunchtime supervisor complained that Simon had thrown something at her and hit her. Simon loudly denied it and then said in a teacher’s hearing “she’s a fat old sausage. I’ll give her one up the arse”.

In my view Simon’s behaviour represents a continuing failure to meet the school’s basic expectations and standards of behaviour requirements. I am unable to guarantee Simon’s safety as he is persistently late to school and truants lessons. His behaviour in relation to some fellow pupils is unacceptable and his rudeness to various staff is intolerable. These factors combined with Simon’s record in the school have lead to my decision to permanently exclude Simon.”

The eight bullet points in that letter are supported by the contemporaneous documents which I have already referred to in this judgment as the “tab 2” documents attached to the outline submissions lodged on behalf of the Defendants. Mr McKendrick did not object to the production of these documents and did not object to my consideration of them. The content of those documents (save as expressly challenged before the Independent Appeals Panel) did not appear to be the subject of any challenge by the Claimant.

Three of the documents give the flavour of the problem which was faced by the school. The significance of the dates of these documents is that one incident precedes the internal exclusion which took place on Friday the 28th January 2000 and the second two are on the Monday 31st January and the 4th February just before the decision to exclude was made - on the following Monday.

First, the report of the events of 27/01/00. This is a “Bad News Slip” completed by Mrs Portman Smith: “Continual interruptions - calling out name calling other people - answering back - wandering around lab - impossible to teach! Total lack of co-operation and refusal to do as asked. Unsafe in lab”.

Next, I turn to the 31st January 2000. Another “Bad News Slip” by his teacher M. Fowler: “Simon’s presence in the classroom is becoming increasingly worrying. He shows total disregard for the safety of himself, the class and me. He did not [do] a single stroke of work in the lesson. I have tried very hard to provide work that he can achieve success in, but he has ignored this. His only intention is to disrupt, aggressively, and provoke a reaction from me.”

Finally, the 4th February 2000. Another “Bad News Slip”, this time by a teacher with the name of “S Grade” [this may not be the correct spelling of the teacher’s name]: “Simon talked over me throughout lesson until he was ‘purple slipped’. He used offensive language, especially to another pupil. Because he was reprimanded he called me sexist and racist which definitely wasn’t the case!”

The Claimant appealed the decision of the head teacher to the governing body and a hearing took place on the 2nd March 2000. The minutes of the Governors’ Disciplinary Committee meeting are set out at pages 92 to 93 of the Court bundle. There is a brief letter dated the 3rd March 2000 which reads as follows:

“Dear Ms Edwards,

Following the meeting on Thursday 2nd March of the School’s Disciplinary Committee I write to confirm the Committee’s decision to uphold the permanent exclusion of Simon for the reasons listed below:

1. Continuing serious breach of School’s Discipline Policy

2. Alternative strategies have been tried

3. Health and Safety issues regarding Simon’s own welfare and those of other pupils in the school.

You have the right to appeal to an independent Appeals Panel Committee …”

The Claimant exercised her right to appeal to the Independent Appeal Panel and, after a period of lengthy delay a hearing took place on the 15th December 2000. The notes of that hearing, as transcribed from the legal advisor’s contemporaneous notes, are at pages 382 to 405. The head teacher, Mrs Raynor, gave evidence, as did Simon and the Claimant. Individual teachers did not give evidence and, indeed, were not present at the Independent Appeals Panel hearing. It is perhaps not surprising that they were not present considering the repeated requests by the legal advisor to the Appeal Panel to the Claimant’s solicitors to enquire if there were incidents which were disputed because if they were then witnesses may have to be called - see, for example, the letter dated the 1st September 2000 (at page 55 of the bundle). On the 13th December 2000, the Claimant solicitors were informed that only the head teacher and a member of the Discipline Committee would be attending the hearing, together with a solicitor from the Council’s legal services department.

The Independent Appeal Panel heard the appeal and decided that the head teacher’s decision to permanently exclude Simon should be upheld. The material parts of the decision letter dated the 18th December 2000 are as follows:

“The Appeal Panel noted your counsel’s observation, although not objection, regarding the school being represented by a solicitor employed by the local authority and concerns about impartiality. The Chair of the Appeal Panel stressed however the independence of the Panel. In reaching its decision the Appeal Panel first had to consider whether Simon was responsible for the behaviour complained of and then, if so, whether permanent exclusion was a reasonable response to that behaviour.

Regarding Simon’s behaviour, the Appeal Panel noted the incidents listed in the letter of permanent exclusion dated 7th February. These had all occurred in the seven school days between Thursday 27th January and Friday 4th February; Simon having returned to school on 20th January.

Regarding the incident in the dining hall on the 4th February the Appeal Panel heard that Simon denied both throwing a biscuit at the lunch-time supervisor and making the abusive remarks to her. He admitted however that the exchange became heated. In the absence of any evidence from the school regarding this incident (although there was no indication from the grounds of appeal form dated 19th March that this incident was being disputed) the Appeal Panel could not be satisfied that Simon had thrown the biscuit or made the abusive comments. The Appeal Panel heard that the head teacher would have permanently excluded Simon even if the incident in the dining hall had not taken place. Similarly with the fire alarm incident (again no indication that this was being disputed) although Simon admitted that he was in the vicinity there was no evidence that he had set the alarm off or had encouraged others to do so. Regarding lateness, truancy, and the failure to bring equipment the Appeal Panel noted chapter 6 of DFEE Circular 10/99 (Social Inclusion: Pupil Support) which states that exclusion should not be used for such matters. What was not disputed by Ms Edwards was Simon’s rudeness to members of staff and disruption to lessons during this period (PE and Science) and the health and safety risk that this caused. In the Appeal Panel’s view these were significant, not trivial, breaches of the school’s code of conduct.

Regarding the head teacher’s response to Simon’s behaviour, the Appeal Panel took into account DFEE Circular 10/99, particularly section 3 (which gives guidance on pupils in particular risk groups such as children with a Statement of Special Educational Needs and ethnic minority children, both of which applied in Simon’s case) and Section 5 (the pastoral support programme and assistance from outside agencies). The Appeal Panel also took into account the further guidance issued by the DFEE in January and August this year.

The Appeal Panel noted that, prior to the permanent exclusion, Simon had received seven fixed term exclusions and six internal exclusions. Although your counsel submitted that different strategies had not been tried, and that this may have been due to a change in Headship, the Appeal Panel was satisfied that appropriate strategies open to the school at the time had been set up to try to avoid Simon’s permanent exclusion. As a pupil with a Statement of Special Educational Needs Simon had an IEP (Individual Educational Plan). At a meeting on the 11th January, following the 15 day fixed term exclusion, a pupil support plan was drawn up and this included daily support, which was in addition to the requirements of the Statement; one to one mentoring; the homework club at lunchtimes which was intended to provide a calm structured environment; and weekly meetings with Mrs Gayle, Simon and yourself.

These strategies had not resulted in an improvement in Simon’s behaviour and the Appeal Panel was satisfied that permanent exclusion was a reasonable response.”

In addition to the contemporaneous note of the proceedings before the Independent Appeal Tribunal, the Defendants relied upon the witness statement of Mr Christopher Warner, the Panel’s legal advisor who, at paragraphs 37 to 53 provides an extended commentary of the events of the 15th December 2000 and the deliberations of the Panel.

In relation to the appeal hearing before the Independent Appeal Panel I have also considered a witness statement prepared by Lynne Ferguson who chaired the meeting on the 15th December 2000. The following are extracts from paragraphs 14 and following of that witness statement:

“14. The letter of permanent exclusion referred to several recorded incidents of rudeness and non co-operation with staff and disruption of two PE lessons and a science lesson. Ms Edwards was legally represented and questions could have been put to the head teacher regarding these incidents also. It was our view, during our deliberations, that these incidents were not being denied. The grounds of appeal sent to Mr Warner in March 2000 … did not appear to us to be contesting any of the incidents listed in Ms Raynor’s letter and there was nothing in the minutes of the Discipline Committee … to suggest otherwise. Further, Simon had been asked several questions during his evidence and had generally admitted his poor behaviour.

15. We then had to consider whether permanent exclusion was a reasonable response to that behaviour. We felt that the most recent incidents of rudeness, non co-operation with staff, and disruption of lesson could not be looked at in isolation but had to be seen in the context of Simon’s past behaviour and the strategies the school had tried to avoid permanent exclusion.

16. … These lesser sanctions had clearly not brought about a change in Simon’s attitude or behaviour and Simon himself admitted, in answer to a question from Neil Sandford, that the permanent exclusion had done him good. He now realised that if he did not get back into school he would have no future.

20. … Nevertheless we felt that permanent exclusion was a reasonable response to Simon’s behaviour. We did not regard the behaviour complained of as trivial: the breaches of the school’s code of conduct was serious. Consideration has also been given to the education and welfare of other pupils, and staff, at the school, and we felt that to return Simon to Whitton would not be consistent with “securing an orderly and safe learning environment” (Paragraph 18 of the Supplement to DFEE Circular 10/99 issued in August 2000).”

ANALYSIS AND CONCLUSIONS

The Claimant’s complaint in relation to the decision of the head’s teacher is that the decision letter dated the 7th February 2000 reveals that the head teacher took account of irrelevant considerations - for example the failure to bring correct equipment into school, and questions of truancy. If the head teacher had excluded those factors then she would not have come to the conclusion that the very serious sanction of permanent exclusion was an appropriate response to mere examples of rudeness and disruption. Mr McKendrick goes further and submits that, as established before the Independent Appeal Tribunal, there was no evidence to support the specific conclusions in relation to the “fat sausage” example of abuse or, that Simon had been in some way responsible for the setting off of the fire alarm. Again, if those two incidents are taken out of the letter of the 7th February, Mr McKendrick submits that there must have been an error of law by the head teacher in permanently excluding Simon, rather than imposing a lesser sanction.

Mr McKendrick also submits that the decision taken by the head teacher was procedurally unfair because she failed to carry out a proper investigation into the allegations and, further, failed to give Simon and/or the Claimant an opportunity to answer the allegations on Monday the 7th February 2000 (or shortly after that date) before the decision was taken and the letter was written. In support of his submissions Mr McKendrick relies not only on the authorities already referred to but also on the judgment of Mr Justice Moses in R -v- Roman Catholic Schools, ex parte S [1998] ELR 304, at page 312B-F.

Put shortly, the Claimant’s case is that not only was there a failure to investigate the incidents but also there was no serious incident, no serious breach of the school’s disciplinary process, which could have justified a decision permanently to exclude Simon from the school.

I do not accept these criticisms of the head teacher’s decision, or of her decision making process. The decision to exclude Simon permanently must be looked at in the light of Simon’s history at the school and incidents which may not be considered the most serious if taken in isolation, assume greater significance when they reveal, as is clearly the case here, that Simon was so disruptive, and so abusive that it had become impossible to teach him at Whitton High School. As Mr Bowen notes in his written submissions, at page 11 the evidence discloses that the school had tried many different strategies to contain Simon in main stream education but all had failed. I am satisfied that the head teacher did have sufficient information upon which the decision to exclude could be taken, and that although it may have been preferable for the Claimant to be given a longer period of time within which to respond to the head teacher’s concerns, it was really time for a decision to be taken.

Even if the “fat sausage” and “fire alarm” incidents are excluded from consideration, there was material available to the head teacher upon which she could reasonably and fairly reach the decision that exclusion was the right course – in Simon’s long term interests, and in the interests of other pupils at the school. The real issue for the head teacher was whether or not that exclusion should be yet another lengthy period of fixed term exclusion, or permanent exclusion. It was not unreasonable for the head teacher to conclude that the time had come to exclude Simon permanently.

In relation to the Board of Governors the Claimant’s criticisms are really a repetition of those levelled against the head teacher. Having read the minutes of the meeting of the Governors’ Discipline Committee I am satisfied that the criticisms set out in the Claimant’s grounds and written and oral submissions in relation to that decision are not made out.

I turn now to the criticisms made by the Claimant of the proceedings before, and the decision of, the Independent Appeal Panel. An important aspect of the complaint is to the effect that because the IAP had decided not to proceed on the basis that the allegations in relation to the “fat sausage” incident or the “fire alarm” incident had been made out the decision to uphold the exclusion was for reasons which were substantially different from the head teacher’s reasons and, therefore, “the IAP has no power or discretion to uphold an exclusion for substantially different grounds, in effect excluding for quite different reasons.” See paragraph c(5) on page 11 of the Claimant’s written submissions. I prefer the Defendant’s arguments on this point. It seems to me clear that the Independent Appeal Panel’s role is not merely supervisory. I go further in that it seems to me that it cannot be right that if, for example, the head teacher has excluded on the basis of seven reasons and the Appeal Panel are not satisfied as to, say, three, of those reasons, then the appeal must succeed.

Continuing examples of disruption, of rudeness, of abuse to teachers and other pupils, and of general disruption, were factors which could reasonably and rationally support a decision to move from extended but temporary exclusion, to permanent exclusion.

Perhaps the most important criticism of the Independent Appeal Panel’s decision is that they “reversed the burden of proof”. Mr McKendrick submits that the burden of proof was on the school/governing body to prove that Simon had been rude and disruptive during the period 27th January 4th February 2000, but that no evidence was offered in support of the allegations in the exclusion letter. Until an evidential burden was raised, submits Mr McKendrick, the Claimant had no need to respond, and that as no evidence had been produced in relation to the incidents, therefore none of the allegations had been proved, and Simon should have been exonerated of all responsibility, or blame.

I could see some force in this submission if the Claimant had made it clear, or at least indicated, which incidents (if any) in the 7th February letter were disputed. But here, the Claimant was given ample opportunity – in letters dated 1st September, 20th September, and 30th November – to identify the areas of dispute because, if they were disputed, “witnesses may have to be called by the school”. There was no indication at all that any incidents were disputed and, in those circumstances, the Panel were entitled to conclude that the incidents which were not challenged during the course of the hearing were to be taken as being accepted by Simon and the Claimant. It would be a sorry state of affairs if schools were obliged to bring along to Independent Appeals Panels all witnesses – teachers, pupils, and staff – unless there was a positive admission from the excluded child, and his or her parent(s). On the facts of this case, I am satisfied that the procedures were fair, and that the conclusion reached by the Panel was open to them on the available evidence – even although the Panel were apparently not shown the “tab 2” documents. This criticism by the Claimant is rejected.

I also reject the Claimant’s submission that there is some inadequacy in the reasons for the decision by the IAP. Further, and finally, I do not uphold the complaints by Ms Edwards that the Independent Appeal Panel’s decision was unreasonable or irrational as developed in paragraph 7(f) of the written submissions. In particular, it seems to me that the Panel could have concluded that the continuing rudeness and disruption by Simon, in the light of his previous extremely poor disciplinary record was conduct which could justify and should justify a permanent exclusion.

The Claimant complains there have here been breaches of, or non compliance with, particular sentences in the guidance in DFEE Circular 10/99. I am not satisfied that that is the case. However, even if there had been some minor deviation from the guidance it was not such as to justify the conclusion that the decision of the head teacher, the governors, or the Independent Appeal Panel, was flawed so that those decisions should be struck down in these judicial review proceedings.

I did have a concern that there might here have been a degree of “double punishment” in relation to the incident of abuse and general bad behaviour referred to in the letter of the 27th January 2000. Simon was internally excluded on Friday 28th January 2000 but it would appear that the same incident which lead to that exclusion was brought back into account when Mrs Raynor made the decision to exclude Simon permanently from school. However, it is reasonably clear that the decision taken on the 7th February 2000 was based on the cumulative effect of a number of incidents which had taken place and therefore, in my opinion it would be wrong to attempt too fine a process of balancing in relation to the impact of any one incident on the decision to exclude.

I have reached the conclusion set out above without the need to consider whether or not there were procedural failings in this case caused by the Claimant’s failure to ask questions in relation to the incidents upon which eventual reliance was placed by the Independent Appeal Tribunal. In other words, it has been unnecessary to consider the Defendants’ fall-back position based on R -v- The Secretary of State for the Home Department, ex parte Al Mehdawi [1990] 1 AC 876.

What then of Simon’s reputation? I accept that a pupil’s reputation is of considerable importance, and worthy of protection as in the case of the student who is sent down from university. However, by the time of the decision to exclude Simon in February 2000, his reputation as a pupil at Whitton High School was already seriously marred by the long record of exclusions, and, of course, by the incidents which lead to those exclusions. The fact that Simon’s reputation was less than unblemished does not mean, however, that he had forfeited his right to be treated fairly and reasonably, and indeed to be treated as if he was alleged to be a “first time offender”. At the end of the day, therefore, the Claimant’s understandable desire to protect Simon’s reputation adds little to the argument or to the analysis. I am satisfied that Simon and the Claimant were treated fairly, and I am also satisfied that the decision to exclude Simon permanently was not irrational, and not unreasonable.

For all these reasons the application for a judicial review is dismissed.