QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN on the application of H
(a minor, by his mother and litigation friend, N)
|- and -
THE INDEPENDENT APPEAL PANEL FOR Y COLLEGE
Peter Oldham (instructed by DMH) for the Defendant
Hearing dates: 5th May 2004
Crown Copyright ©
Mr Justice NEWMAN :
The School's Decision
"Reason for the Exclusion
As you know from my earlier letter, [H] was involved in letting off a firework in school. Until we met on Wednesday, he had repeatedly claimed that he knew absolutely nothing of the firework. He said in our interview, however, that he had seen the firework and that he had held the fuse. He claimed, however, that he thought it was only a fuse. I am afraid I do not believe this. He agreed that he had supplied the matches".
The Panel Hearing
"The Panel's decision was taken after the Members had considered, very carefully, all of the documentary and oral evidence that was presented to them, by all of the parties concerned at the hearing last Tuesday, in particular that given by [H], your legal representative Mr Lawson and the College representatives.
The Panel took particular note of the detailed account given by the College's Headteacher, who advised that he was in the near vicinity when the fuse/firework was ignited. He also advised of the investigations that he conducted, both immediately following the incident and subsequently, to establish who had been involved.
The Panel also took note of the statements, given by [H] and by others, some of which were at variance with each other in relation to [H's] involvement in lighting the fuse/firework and precisely where he was at the time the ignition happened. [H's] statement admitting that he supplied matches, which it is believed were used to light the fuse/firework, was noted, as indeed was his statement, made on two separate occasions, to the effect that he 'cupped' his hands around the match as it was lit – albeit acknowledging that [H] maintains this latter statement was made 'under duress'.
The Panel were made fully aware of the importance attached by the College to the safety of its pupils and its staff and of the action taken following previous incidents when fireworks had been ignited on site and nearby. The attention of the Panel was drawn, in particular, to a formal Notice displayed on College premises, the contents of which had also been drawn orally by the Headteacher and members of staff to the attention of pupils. The Notice referred to a previous incident; that fireworks were not permitted on site; and the consequences for pupils who ignored the Notice. The relevant sections in the College's Anti-Bullying/Behaviour policies were also drawn to the attention of the Panel.
The Panel were advised that [H's] school record did not show any previous behavioural incidents and that he was considered to be a promising student who was expected to do well in his GCSEs. The Panel noted, with regret, that he was experiencing some home difficulties.
Your legal representative drew the attention of the Panel to recent Court of Appeal case (of R(S) v The Governing Body of YP School). The Panel took this into account in making their decision.
Having taken all of the relevant factors into account the Panel decided, unanimously, that they were sure [H] was responsible for the actions described by the College. By the same unanimous decision, the Panel also decided that the decision of the Disciplinary Committee of the College was the correct one and would be upheld".
"They weighed this evidence against the evidence presented by the College, including that contained in the written statements of the two pupils who did not wish to reveal their identities, and made their own assessment based on the totality of the evidence".
"The letter makes clear that the Panel took all related factors into account and I drew specific attention to documentary and oral evidence that was considered; to the many questions that were asked and the answers that were given at the hearing; and the great importance that the Headteacher and the College give to the safety of its pupils and staff. I also mentioned that the Panel was made aware of the relevant sections of the College's Anti-Bullying/Behaviour policies which, of course, includes specific reference to the potential consequences for pupils who are involved in a single serious incident of violent or dangerous behaviour. Having taken all these factors into account, the Panel decided that H was responsible for the actions described by the College and that the serious nature of the incident justified permanent exclusion".
Grounds of Challenge
"The Panel then reviewed in detail the evidence that had been presented to them that morning. The Panel also took into account the statement made by Lawson [counsel Mr Lawson] concerning the 'balance of probabilities' and 'beyond all reasonable doubt'. The legal adviser [Mr Hayward] stated that if the incidents constituted a 'criminal' offence, the Panel had to take their decision on the basis of 'beyond all reasonable doubt'. The Panel were then asked to answer the following two questions:
(i) Was the pupil responsible for the actions that have resulted in permanent exclusion; and
(ii), if so, was permanent exclusion the correct response?
On (i) the Panel agreed unanimously it was clear that at least a fuse was involved and that, by his own admission, [H] had handed over matches. Two witness statements said he lit or was involved in it being lit. Also in his own statement (made on two occasions), he stated that he cupped the match whilst the fuse was being lit – albeit he considered that he made this statement under duress. The behaviour policy of the school stresses the need to provide and preserve a safe environment. Under the circumstances, the Panel decided that H was responsible for the actions for which he had been permanently excluded, beyond reasonable doubt.
On (ii), whether permanent exclusion was the correct response, the Panel unanimously decided it was, in view of the seriousness of the incident, including the danger to pupils and members of staff and that formal notice had been given (of the consequences)".
"Given the school's belief on the grounds of probability that H was involved in the incident, his failure to co-operate …"
That this was the basis upon which the school and headteacher had come to the conclusion is confirmed in the statement or report provided to the Panel by the headteacher and in the Clerk's notes recording his evidence, to which Mr Lawson drew attention, where the headteacher is recorded as saying: "Considered on basis of probability". It is also plain from the statement which the headteacher has provided to this court that his account was that he could not be certain about every detail of what had happened, but that he was certain that H was jointly responsible for setting off the firework.
"The Panel decided that on the balance of probabilities H had been involved in lighting the firework, but I have to say that our decision in this respect was verging on the 'beyond reasonable doubt' test. The Panel heard submission from H's counsel that we should apply the beyond the reasonable doubt test pursuant to the decision in a recent case. The Panel took advice from the solicitor to the Panel who indicated to us that it was sufficient for us to decide on the balance of probabilities".
It is this piece of evidence which Mr Lawson submitted was flatly contradicted by the terms of the Clerk's notes, which I have already set out in paragraph 13 above.
"Lord Bingham of Cornhill has observed that the heightened civil standard and the criminal standard are virtually indistinguishable. I do not disagree with any of these views. But in my view pragmatism dictates that the task of magistrates should be made more straightforward by ruling that they must in all cases under section 1 apply the criminal standard. If the House takes this view it will be sufficient for the magistrates, when applying section 1(1)(a), to be sure that the defendant has acted in an anti-social manner, that is to say in a matter that has caused or is likely to cause harassment, alarm or distress to one or more persons not of the same household as himself".
The Court of Appeal were obviously strongly influenced by McCann when reaching their conclusion in R(S).
"Having taken all the relevant factors into account, the Panel decided, unanimously, that they were sure H was responsible for the actions…" [emphasis added]
In paragraph 4 of her witness statement, Sarah McDermott states:
"The Panel decided that on the balance of probabilities H had been involved in lighting the firework, but I have to say that our decision in this respect was verging on the 'beyond reasonable doubt' test".
A test verging on the 'beyond reasonable doubt' test represents what could be regarded as the heightened civil standard of proof which, following Lord Bingham's observation, appears to me to be indistinguishable from the criminal standard of proof. Thus, whilst there is confusion there is nevertheless, so far as the process is concerned, in my judgment, sufficient certainty that in coming to the conclusion that H was involved in setting off the firework the Panel were sure that he was so involved.
"One Year 10 has been excluded for thirteen days for lighting a firework in school yesterday. He will also have to attend a Governors' Disciplinary Hearing.
It is forbidden to have a firework in school; pupils who bring fireworks will be excluded for 5 - 10 days. Any pupil who lights a firework in school will be excluded for a minimum of fifteen days. Also pupils excluded for these reasons will have to attend Governors' Disciplinary Hearings.
If a pupil is hurt as a result of a firework, the person responsible will be permanently excluded".
Ground 4 – The Inadequacy of the Reasons
"Permanent exclusion was, in the circumstances, a reasonable course of action for the school. "
"By the same unanimous decision, the Panel also decided that the decision of the Disciplinary Committee of the College was the correct one and would be upheld".
He drew attention to the terms of the second letter, which was in these terms:
"Having taken all these factors into account, the Panel decided that H was responsible for the actions described by the College and that the serious nature of the incident justified permanent exclusion".
The argument presented upon the basis of these passages in the letter requires, for its success, that the court ignore the detailed reference which was made by the Panel to the formal Notice which was displayed on the College premises, the fact that the pupils, including H, were to be taken to be aware of the terms of the Notice and also that the Panel had taken into account the College's anti-bullying behaviour policies which contain warnings as to the penalties which could arise for serious misconduct. When challenged by the letter from solicitors for the claimant about an alleged lack of explanation and absence of reasons showing why the Panel had upheld the permanent exclusion, the Clerk to the Panel responded in the letter dated 9th January 2004 as follows:-
"My letter dated 18th December 2003 does give the Panel's reasons for deciding that the decision to exclude was the correct one. The letter makes clear that the Panel took all the related factors into account and I drew specific attention to documentary and oral evidence that was considered; to the many questions that were asked and the answers that were given at the hearing; and the great importance that the Headteacher and the College give to the safety of its pupils and staff. I also mentioned that the Panel was made aware of the relevant sections of the College's Anti-Bullying/Behaviour policies which, of course, include specific reference to the potential consequences for pupils who are involved in a single serious incident of violent or dangerous behaviour. Having taken all these factors into account, the Panel decided that H was responsible for the actions described by the College and that the serious nature of the incident justified permanent exclusion".