QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF J||(CLAIMANT)|
|THE HEAD TEACHER OF THE SCHOOL AND COLLEGE||(1st DEFENDANT)|
|THE GOVERNING BODY OF THE SCHOOL AND COLLEGE||(2nd DEFENDANT)|
|BIRMINGHAM CITY COUNCIL EXCLUSION APPEALS COMMITTEE||(3rd DEFENDANT)|
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The 1st and 2nd DEFENDANTS did not appear and were not represented
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"[S] came over to Post 16 very upset, physically shaking. She said, 'I am not going over there again.' I asked her what was wrong and she told me what had happened.
"I took her to Martineau [a building at the school] to see Mr Hall [a teacher] and after we told Mr Hall [S] and I came out of his office and [N] was sitting on the seated area in the entrance hall. [S] tried to leave the building really fast, but Mr Hall asked her to look into the direction of [N] to confirm it was him. [S] said yes straight away and then left ..."
"Me and [N] were on the top floor messing around and I tripped him up and he fell on a girl.
"She was walking along the corridor by the stairs.
"Me and [N] were pushing each other around. [N] fell towards the girl with his hands out. N touched her chest when he fell. He wasn't concerned, but was laughing.
"[N] spoke to the girl, but I am unsure what was said. I think he knew her. The girl looked shocked, she called him by name and told him to move. We all went downstairs and went our separate ways."
"Me and [P] was walking to the top floor, he tripped me up and a girl called [S] I don't know her second name, I just know her from primary school. I accidentally felt her breast and I said sorry and that was it. You can ask [S]."
Those were the statements which had been given to N's representatives before the meeting.
"(1)Can an exclusion appeal committee such as the Defendant fairly decide an appeal when
(a) no person who witnessed either the incident for which the exclusion was imposed or its aftermath, or any person who investigated that incident, is present to give evidence and be questioned on behalf of the excluded pupil, and
(b) the person who does give evidence in support of the exclusion does not know what questions were asked and what answers were given, except as recorded by other persons?
"(2)If such an exclusion could theoretically be fair, was the exclusion of the Claimant fair in the circumstances?
"(3)Did the Defendant take into account an irrelevant factor in the form of the strength of [the Head Teacher's] belief in the cogency of the evidence?"
I can dispose of this third point relatively shortly. It is quite true that before the Appeals Committee the Head Teacher had stated her belief as to cogency of the evidence. That was, in one respect, relevant because it obviously went to explain why it was that the Head Teacher herself had thought that permanent exclusion was necessary. But it seems to me simply unarguable that in some way the Appeals Panel had wrongly taken into account the Head Teacher's own belief in the cogency of the evidence as in some way guiding, or perhaps even distorting, the Appeals Committee's own assessment of the evidence. Reading both the notes and the decision letter, it is plain, as I see it, that the Appeals Committee made its own assessment of the evidentiary materials before it; and there is nothing in the point that in some way they allowed themselves to take into account the Head Teacher's own belief in the cogency of that evidence as in any way wrongly informing the Appeals Committee's own decision.
"It is a proposition too obvious to require authority that what fairness demands in a particular situation will depend on the circumstances. In relation to permanent exclusion from a grant-maintained school Parliament has made it clear -- as the common law would otherwise have done, given what is at stake in such cases -- that the pupil, through his or her parent, has a right to be heard. Such a right is worthless unless the parent knows in some adequate form what is being said against the child. Where what is being said has taken at least two different and arguably inconsistent forms, fairness will ordinarily require enough disclosure to reveal the inconsistency."
In the course of giving his judgment, Brooke LJ said this, at page 208 in the reports:
"While I would hate to see these hearings dominated by lawyers, there are certain minimum standards of fairness that have to be applied, and for the reasons given by Sedley LJ, with which I agree I agree, I would allow the appeal.
"I am aware that there are four matters that relate to B's conduct after he was permanently excluded which make it unlikely that the school will be over-eager to readmit him. He behaved in the way he did, however, after being severely punished for an offence which he maintains he did not commit, and when he was not told the nature of the case against him."