England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		6 June 2007

1. THE DEPUTY JUDGE: The claimant (to whom I shall refer as "O") challenges the decision dated 7 September 2006 of the defendant, the Independent Appeal Panel for the London Borough of Tower Hamlets ("the IAP"). The IAP dismissed his appeal against the decision dated 26 June 2006 of the Governors' Disciplinary Committee of the school ("the Committee"), which in turn had upheld the decision dated 16 May 2006 of the head teacher of the school permanently to exclude O.

The events leading up to the exclusion

2. The school is a federated school made up of three comprehensive voluntary aided schools. O was a pupil in the boys' school for 11 to 16 year-olds. There were 532 pupils in the boys' school, many of whom were from deprived backgrounds. At the relevant time in summer term 2006, O was 14 and a half years of age. Since his admission to the school in autumn 2003, his conduct, as disclosed in his pupil behaviour timeline, had from time to time been disruptive and challenging. On about ten previous occasions he had been involved in instances of physical or verbal aggression, including fighting. From reports made by teachers following his exclusion, it appears that both he and his friend (to whom I shall refer as "A") were unruly in class, and so made it that much harder to teach those in the class who wanted to learn.
3. On 8 May 2006 at about 11am, O was again behaving in a disruptive manner. The assistant director for the curriculum instructed O to leave the school and go home. O's mother was contacted. At about 1pm, O's mother telephoned the school to say that O had not arrived home. O was found in the school and was sent home for the second time. However, O again disobeyed instructions and was to be found in the school at the end of the day.
4. At about 3pm there was a fracas involving on the one side a pupil, K, a friend of O's, and a rival group of three pupils. Two teachers physically separated the boys. K was taken to a teacher's office and kept there until about 3.30pm in order to give the rival group of boys time to leave the school premises. O, who of course should not have been on the school premises, and his friend, A, came to the teacher's office, saying that they were waiting for K. The teacher told the boys to take an alternative route home to avoid meeting the rival group and to avoid any further incidents. They did not follow this guidance, but used the usual gate, where the rival group was still to be found.
5. A very serious fight between the two groups of three boys, involving six in all, then took place at the school gates. A number of staff saw that a fight had broken out and went to break it up. A message was sent over the tannoy system asking senior managers to attend. The community policeman was alerted. The staff, at risk to themselves, had to intervene physically to restrain the rival groups of boys. O was seen jumping on staff cars, and when teachers tried to pull O and A away from the fight, they were aggressive towards the teachers. Of great concern was the fact that a teacher found a knife at the scene of the fight. It was what might be generically called a Swiss Army knife.
6. The head teacher of the school has 24 years' teaching experience and has been head teacher of the school for 15 years. Following usual practice, she took statements from the pupils who had witnessed the fight. The staff who came to deal with the fight also provided statements. O was asked to provide a statement by a teacher, but he ran out of the room and did not do so. The head teacher was particularly concerned to identify who had been in possession of the knife during the fight. She read all the statements made by the pupils. The overwhelming majority of pupils stated that they had seen O in possession of the knife.
7. On 15 May 2006, the head teacher met O and his mother to discuss the allegations and the investigation. They were told about the witness statements. O and his mother denied that he had been in possession of the knife. O said that he did not know who had had the knife. On 16 May 2006, the head teacher made her decision permanently to exclude O. In her decision letter she said:

"[O] was fighting and was using a knife. There were approximately ten people who in their statement of events had made reference to [O] having a knife, and five others have said that he had a weapon."

8. Later in the letter she recorded that O had said that he did not have the weapon, but admitted to throwing it away. She went on to say that other students were frightened of O, and he had a reputation of being violent and a bully. She concluded that to use a knife, fight in school and damage staff cars was totally unacceptable. She also took at the same time a decision to exclude O's friend, A. The third member of O's group was not excluded. None of the three pupils in the rival group who had been involved in the fight was excluded.

The events leading to the challenged decision

9. The decision excluding O, and also that excluding A, was considered by the Committee. O and A instructed separate solicitors in connection with the proceedings before the Committee. The original hearing was scheduled for 8 June 2006. However, the hearing was adjourned and the matter was restored for a substantive hearing on 23 June 2006. Before the Committee was a statement from the head teacher, and all the statements made by both pupils and staff concerning the fight to which she had had regard in reaching her decision.
10. Also before the Committee was a witness statement of 6 June 2006 from O, and statements from the head teacher and certain members of staff commenting on O's statement. In his statement O said that another boy, J, had flipped a knife at him, that J definitely had the knife in his hand, that he had cut O with it, and that he (O) had managed to grab J's hand and pull the knife out of the hand and then he threw the knife away.
11. The Committee also had before it the grounds of appeal dated 19 June 2006, submitted by AP Law. Among other things in the grounds of appeal, AP Law said that O denied having a knife, and that a number of statements suggested that there was uncertainty as to whether or not O did in fact have a knife. However, the grounds of appeal did not suggest that the head teacher failed to evaluate properly the statements made by pupils, or that she had given undue weight to statements made by pupils involved in the fight, particularly the three pupils in the rival group.
12. At the hearing before the Committee, both O and his mother were present. O did not give any oral evidence, but a representative, Ms Paulette Douglas, made submissions on his behalf. On 26 June, the Committee decided to uphold the decision to exclude O. The reasons were that:

"... on a balance of probability the panel are unanimously agreed that [O] was in possession of a knife during the course of the incident in question."

13. The Committee concluded that the possession of a knife and O's behaviour during the fight was of such a serious nature as to warrant the head teacher excluding him.
14. As noted, the Committee also heard the case of O's friend, A. For that hearing Ms Janata Ali, education caseworker at Tower Hamlets Law Centre, made a detailed written submission dated 5 June 2006, running to eight pages, on behalf of A. The only material reference to O in that submission was to the following effect:

"He [that is A] did not see the knife on O. However, the witness statements confirm that it is more likely that O had the knife and not A."

15. At A's hearing before the Committee on 23 June 2006, A did not himself attend, although his mother and Ms Ali were present. Ms Ali read her submission of 5 June 2006 and reiterated that A did not have the knife. On 26 June 2006 the Committee upheld the head teacher's decision of exclusion of A from the school. The Committee found that A had been directly involved in a very serious and violent incident, but made no finding that A had been in possession of the knife. The Committee heard the cases of A and O on the same day, but separately. I note that the representatives of A and O did not before or at the respective hearings suggest that the cases should be heard together, and did not complain afterwards that the cases had been heard separately.
16. O decided to appeal to the IAP. On 14 July 2006, AP Law submitted grounds of appeal. These grounds were, for the most part, a repetition of the grounds of appeal submitted to the Committee. Paragraph 17 repeated verbatim that O denied having a knife, and that a number of statements suggested there was some uncertainty as to whether or not he did in fact have one. At paragraph 46 of the grounds it was contended that the Committee should have been satisfied beyond reasonable doubt that O had been in possession of a knife. However, the grounds of appeal did not suggest that the head teacher or the Committee failed to evaluate properly the statements made by pupils, or that she or the Committee had given undue weight to statements made by pupils involved in the fight, particularly the three boys in the rival group.
17. O's friend, A, also decided to appeal to the IAP. It is clear that the parents of O and A were in touch with each other, and that O's mother knew that A was appealing to the IAP and that A's appeal was to be heard separately on the same day as O's appeal. It would be surprising in these circumstances if AP Law did not know that A was, or might well be, appealing, and it is extraordinary if AP Law was proceeding on the alternative footing that A was not appealing. In any event, AP Law could have ascertained the position by asking O's mother, who, as I have noted, was aware of the situation, or indeed by making enquiry with the clerk to the IAP, who was making administrative arrangements for both appeals. In any event, AP Law on behalf of O, and for that matter Tower Hamlets Law Centre on behalf of A, did not invite the IAP to hear the appeals of O and A together, or even raise with the IAP the question whether, if there were to be two appeals, the IAP intended to hear them separately. There was certainly plenty of time to take such steps because the appeals were not heard until 7 September 2006.
18. On 19 July 2006, Mr Terry Bryan, pupil services manager of Tower Hamlets Education Directorate, wrote to AP Law saying that the appeal had been passed to Mr Stephen Payne, the clerk to the IAP. The IAP was to have before it the same primary documentation as was before the Committee. So far as O's appeal was concerned, that documentation of course included his own statement.
19. The IAP met on 7 September 2006. Minutes of the hearing were prepared and were before this court. Apart from the IAP, those attending were Mr Bryan, Mr Payne (to whom I have referred), the head teacher, a school governor, Mr Michael Brotherton (as advocate for the school), O, his mother, and O's representative (Mrs Paulette Douglas).
20. Mr Brotherton presented the case for the school. Ms Douglas, on behalf of O, was then given the opportunity to question the head teacher. According to the minutes of the hearing, the head teacher referred specifically to the statements of the pupils, who said that O had a knife in his possession. As far as can be seen, the head teacher was not probed by Ms Douglas on the reliability of these statements, and in particular was not asked about the statements made by the three members of the rival group, or whether, if those statements were not taken into account, the weight of the evidence still supported the conclusion that O had been in possession of the knife.
21. Ms Douglas presented the case for O, and O himself read a prepared statement in which he denied having been in possession of a knife. The parties then summed up their respective cases and the hearing lasted about one hour.
22. Following a short deliberation, the IAP reached its decision. I extract the principal findings as follows:

"The Panel noted that O had twice been told to leave the premises, but failed to do so. Had he left the school immediately after his lunch and went home, he would not have been on the school premises at the time of the fight ...

The panel further noted that O had left the safety of the school environment willingly. He could have returned once he saw the group of boys of whom he had experienced a confrontation previously. They accepted that O had been cut during the fight, but there was no evidence as to how this occurred. They did however note that the overwhelming majority of the pupils believed that O had a knife in his possession. On the balance of probabilities the panel considered that it was likely that O was carrying a knife, which is against the school's behaviour policy. The knife was a swiss army style penknife, which could have been the nail clippers referred to by one of the witnesses ...

In conclusion, they considered that if O were to remain at [the school], he could have an adverse effect on the welfare and education of others at the school. Consequently, the panel decided to agree with the Governors and confirmed the permanent exclusion."

23. I should add here that the appeal of A had been heard on the same day by the same panel. For this hearing, Ms Ali on behalf of A had made a written submission dated 4 September 2006, which was in fact no more than a verbatim repetition of her submission to the Committee. The only material reference to O was therefore that which I have already quoted. A again did not attend the hearing, but his mother was present. At the hearing of A's appeal, Mr Brotherton, advocate for the school, at one point referred to the fact that the majority of the witness statements recorded that O was in possession of the knife. Ms Ali in her oral submissions also pointed out that 13 witness statements recorded that O was in possession of the knife. The IAP dismissed A's appeal and upheld the exclusion.
24. On the evening following the appeal, O's mother telephoned A's mother to discuss how A's appeal had gone and to ask who had been present at the hearing. The two mothers appreciated that the panel members were probably the same for both appellants.

The events following the challenged decision

25. Following some correspondence that I can omit, on 20 October 2006 AP Law wrote a pre-action letter. The letter ran to more than five pages, but nowhere in the letter is there to be found any allegation that the IAP had followed an unfair procedure in not hearing the appeals of O and A together, notwithstanding that O's mother knew that the appeals of O and A had been heard separately and, through discussions with A's mother, had reason to believe that the appeals had been heard by the same panel.
26. There is no reference in the pre-action letter to the case of R(S and B) v Independent Appeal Panel of Birmingham City Council [2006] EWHC 2369 (Admin); [2007] ELR 57, decided on 31 August 2006 by Beatson J, who held on the facts of that case that the same panel should have heard the separate appeals of five pupils arising out of a single incident in order to ensure that the results of the appeals were consistent. Nor is there to be found any allegation that the IAP misdirected itself about the weight to be given to the statements made by pupils, to the effect that O had been in possession of a knife: in particular that the IAP had misdirected itself as to the weight to be given to statements made by the three members of the rival group.
27. However, on 24 October 2006 AP Law wrote to Mr Bryan, seeking confirmation of the identity of the panel members who heard the appeal of O and A respectively. Then on 22 November 2006, AP Law wrote to the legal services department of Tower Hamlets, referred to S and B, and contended for the first time:

"What should have been considered was whether or not the most practical way forward in the light of the fact that the exclusions derive from the same facts is whether to hear the appeals together."

28. I then turn to the applicable law. Section 52(1) of the Education Act 2002 ("the 2002 Act") provides that the head teacher of a maintained school may exclude a pupil from the school for a fixed period or permanently. The Regulations issued pursuant to section 52 of the 2002 Act are the Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations 2002, SI 2002/3178 ("the Regulations").
29. By Regulation 5 of the Regulations the governing body is to consider whether or not the pupil should be reinstated. Regulation 6 governs appeals to Independent Appeal Panels. A local educational authority shall make arrangements for enabling the relevant person to appeal against any decision of the governing body under Regulation 5 not to reinstate a pupil who has been permanently excluded (Regulation 6(1)).
30. By Regulation 7, in exercising any functions under section 52 of the 2002 Act or under the Regulations the head teacher, governing body, LEA and IAP are to have regard to any guidance given from time to time by the Secretary of State. The Schedule to the Regulations governs the constitution and procedure of appeal panels. By paragraph 8 of the Schedule the appeal panel shall meet to consider an appeal on such date as the local education authority may determine.
31. Paragraph 9(1) states that, for the purpose of fixing the time in which the hearing of an appeal is to take place, the LEA shall take reasonable steps to ascertain times when (a) the relevant person or (b) any other person who wishes and would be entitled to appear and make oral representations would be unable to attend.
32. Paragraph 12 of the schedule provides that:

"Two or more appeals may be combined and dealt with in the same proceedings if the appeal panel consider that it is expedient to do so because the issues raised by the appeals are the same or connected."

34. Paragraph 15 of the Schedule states:

"(1) Subject to paragraphs 7 to 14, all matters relating to the procedure on appeals shall be determined by the local education authority."

35. The current version of the Secretary of State's guidance, entitled "Improving Behaviour and Attendance: Guidance on Exclusion from Schools and Pupil Referral Units" ("the guidance") was issued on 6 September 2006. This was the day before the IAP hearing in this case. None of the parties were aware that a new version of the guidance was available. However, all material paragraphs are identical to the paragraphs contained in the previous version of the Secretary of State's guidance, issued in October 2004. The only difference is the paragraph numbering, and I refer to the paragraph numbering on the 2006 version of the guidance.
36. Paragraphs 9 to 14 of the guidance are as follows:

"The decision to exclude

9. A decision to exclude a pupil should be taken only:

a) In response to serious breaches of the school's behaviour policy; and

b) If allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school.

10. Only the head teacher, or teacher in charge of a PRU, (or, in the absence of the head teacher or teacher in charge, the acting head teacher or teacher in charge) can exclude a pupil.

11. A decision to exclude a child permanently is a serious one. It will usually be the final step in a process for dealing with disciplinary offences following a wide range of other strategies, which have been tried without success. It is an acknowledgement by the school that it has exhausted all available strategies for dealing with the child and should normally be used as a last resort.

12. There will, however, be exceptional circumstances where, in the head teacher's judgement, it is appropriate to permanently exclude a child for a first or 'one off' offence. These might include:

a) Serious actual or threatened violence against another pupil or a member of staff

b) Sexual abuse or assault

c) Supplying an illegal drug

d) Carrying an offensive weapon (for advice on what constitutes an offensive weapon, please refer to the advice in School Security: Chapter 6

Schools should consider whether or not to inform the police where such a criminal offence has taken place. They should also consider whether or not to inform other agencies, eg Youth Offending Teams, social workers, etc.

13. These instances are not exhaustive, but indicate the severity of such offences and the fact that such behaviour can affect the discipline and well-being of the school community.

14. In cases where a head teacher has permanently excluded a pupil for:

a) One of the above offences; or

b) Persistent and defiant misbehaviour including bullying (which would include racist or homophobic bullying) or repeated possession and/or use of an illegal drug on school premises

the Secretary of State would not normally expect the governing body or an Independent Appeal Panel to reinstate the pupil."

37. Part 5 of the guidance deals with independent appeal panels. Paragraph 100 provides that:

"If the issues raised by two or more appeals are the same or connected, the panel may decide to combine the hearings. In such cases the panel should check that no-one objects to this approach, and be aware of possible conflicts between the parties involved."

38. Paragraph 111 of the guidance, in relation to the role of the clerk, provides that:

"The clerk provides an independent source of advice on procedure for all parties. Further information on the role of the clerk can be found in Checklist 9 of the ISCG training pack. The clerk should not have served as clerk to the governing body hearing."

The claimant's case

39. Although in these proceedings a number of grounds have been from time to time advanced to challenge the decision of the IAP, by the time of the hearing before me, Mr Clive Rawlings, who appeared on behalf of O, restricted his attack to two principal points, which I summarise as follows. First, the procedure adopted by the IAP was flawed. The IAP, through its clerk, should have drawn the attention of O (or rather of his representatives) to paragraph 12 of the schedule and to paragraph 100 of the guidance, which I have just quoted, and should have invited O or his representatives to consider whether the appeals of O and A should be heard together.
40. Furthermore, the IAP should itself have actively considered whether the two appeals should be heard together, and if the IAP had done so, submitted Mr Rawlings, the IAP could only have fairly concluded that the two appeals should be heard together. Mr Rawlings relies heavily on the case of S and B in relation to this first argument.
41. Secondly, Mr Rawlings submitted that the IAP misdirected itself in the evaluation of the evidence. The IAP should have directed itself, or should have been directed, that the statements made by pupils involved in the fight needed to be treated with caution. This was not a point deployed in the pre-action letter, although it was trailed to some extent in the claim form.

Decision

42. As to Mr Rawlings' first argument, in my judgment the IAP has no general duty to draw to the attention of an appellant or of his or her representatives every procedural rule or practice that might be relevant to the conduct of an appeal before the IAP. Courts, Tribunals and other adjudicating bodies typically have significant procedural powers that can affect the conduct of proceedings before them, and they have a general responsibility for efficient case management and for ensuring the fairness of proceedings. In certain circumstances the Tribunal may draw the attention of parties to points of procedure or practice, and invite the views of the parties on the procedure to be followed. I would not wish to discourage the IAP from doing so in appropriate cases in the interests of efficiency and fairness. No one could have criticised the IAP if, in this case, it had through its clerk reminded the parties of paragraph 100 of the guidance and had expressly indicated that unless it decided in the light of any representations from the parties that there were good reasons for proceeding otherwise, the IAP would hear the appeals separately.
43. However, Mr Rawlings must go further and show that, in the circumstances of this particular case, the IAP was under a legal duty to draw the attention of the appellants or of his representatives to paragraph 12 of the Schedule and paragraph 100 of the guidance, and to invite them to consider their application to the pending appeal. In S and B Beatson J inclined to the view, without deciding the matter, that the appellants, the head teacher and the LEA should have been given the opportunity to make representations as to whether the appeals in that case should have been heard together or at least by the same panel: see paragraph 53 of the judgment. However, in that case one parent, Mr B, had specifically enquired with the clerk to the panel whether the appeals would be heard separately or together. Mrs B and Mrs S, the mother of another appellant, had specifically requested that the appeal should be heard together. Notwithstanding that the issue had been expressly raised, and that the parents of two appellants had specifically requested that the appeals should be heard together, neither the clerk to the panel nor the LEA drew the attention of the parties to paragraph 12 of the Schedule or to paragraph 100 of the guidance, or invited representations about their application to the relevant appeals. On the contrary, the parents were left with the distinct impression that the appeals could not, under the procedural rules, be heard together: see paragraphs 29 to 34 and 53 of the judgment.
44. In those circumstances, it is not difficult to see why the learned judge was minded to conclude that there was a material unfairness in the interlocutory steps leading to the appeals being separately heard by separately constituted panels, and that the clerk to the IAP had not discharged her duty under paragraph 111 of the guidance to act in an even-handed way to all the parties in the appeal.
45. By contrast, in the present case none of the parents of O and A raised the question whether the appeals should be heard separately or together, although it is clear on the evidence that the mother of O and the mother of A knew that both boys were appealing to the IAP against their exclusions from the school, and it was open to either or both of them to raise that question with either the clerk to the IAP or the LEA.
46. Furthermore, O was represented by experienced education solicitors, AP Law, who knew or ought to have known about paragraph 12 of the Schedule and paragraph 100 of the guidance. It is difficult to believe that AP Law did not know or have reason to think that A also was appealing or might well be appealing to the IAP. In any event, AP Law could have readily ascertained whether A was also appealing by asking O's mother or by enquiry with the clerk to the IAP. As I said, the point about joint appeals first surfaced in November 2006, some substantial time after the hearings had taken place. In addition, there had been separate proceedings before the Committee -- a procedure to which no one had objected before or after those proceedings.
47. Finally, and this is a point which I will explore further in a moment, there was nothing in the intrinsic circumstances of the appeals that would have led the IAP to believe that it was imperative to seek the views of the parties on whether the appeals should be heard together. This last aspect again contrasts with the case of S and B, where on an objective appraisal it was obvious that, if the appeals were not heard at least by the same panel, there was a serious risk, which in the event materialised, of inconsistent results: see paragraphs 54 to 59 of the judgment.
48. For these reasons there was, in my view, no duty in this case on the IAP to draw the attention of the parties to paragraph 12 of the Schedule or paragraph 100 of the guidance, and to invite representations as to whether the appeals of O and A should be heard together. The IAP was entitled to proceed on the basis that O was content to continue to have his case heard separately, and that if it was no longer considered to be in the best interests of O that his appeal would be heard separately from that of A, O's representative would have taken active steps to raise the matter with the IAP.
49. I should add that, even if the IAP had drawn the attention of the parties to paragraph 12 of the Schedule and to paragraph 100 of the guidance, and had invited representations about their application in this case, I am not satisfied that, at the time, O would in fact have requested that the appeals should be heard together. O's mother, in her witness statement, says that she would have asked for the appeals to be heard together, but that was said long after the hearing of the appeal and with knowledge of its outcome. If at the relevant time this had been considered an important matter, I believe that steps would have been taken actively to pursue it.
50. Nor, in my judgment, was it unfair to O that in the event his appeal was not heard together with that of A. The starting point on this issue is that the Regulations treat the decision to exclude as an individual decision in respect of a particular pupil and confer rights of appeal on the affected pupil in his or her individual capacity: see Regulations 2(1)(a) and (b), Regulation 3, Regulation 5(3), Regulation 5(6)(b)(ii) and Regulation 6(1). The Regulations are therefore focused on the particular circumstances of the individual pupil. This is to be expected where the decision has such potentially serious consequences for the child or young person in question.
51. Furthermore, many parents would reasonably expect that the decision to exclude their child would be examined on an individual basis at a separate hearing. It may also often be the case that material confidential to the particular child is produced for an appeal and referred to during the course of the appeal. The joinder of appeals would run the risk that such material might be disclosed to and discussed in the presence of third parties. Child appellants and their parents would again be likely to be antipathetic to such a procedure. There are therefore, in my view, good reasons why generally speaking individual and separate appeals are desirable.
52. The starting point for criminal trials is of course different. Two or more defendants charged with the same or related offences will almost invariably be tried together. If there are separate trials the cost of proceedings will be at least doubled, the witnesses will have to testify twice, and there is a risk of inconsistent verdicts. These considerations do not have the same force for appeals to the IAP, where the proceedings are not typically lengthy, there may be little or no oral evidence, and consistency can be assured by having the same panel hear related appeals.
53. In the criminal context, it is defendants who from time to time apply for separate trials because, for example, they wish the statements of co-defendants, as hearsay technically inadmissible against them, not to be heard at all by the jury, or they fear that the various co-defendants will blame each other and so guarantee universal conviction, or that they will suffer guilt by association with those co-defendants of proven bad character.
54. Paragraph 12 of the Schedule does give the IAP a discretion to combine two or more appeals and to deal with them in the same proceedings if the appeal panel consider that it is expedient to do so because the issues raised by the appeals are the same or are connected.
55. In this case the issues were connected. O and A were friends and had been involved together with a third boy in a serious fight with a rival group of three boys. Neither denied that he had been involved in the fight. The issue in A's case was whether his individual involvement, taken together with his individual record of conduct at the school, justified exclusion. The issue in O's case was whether his individual involvement, taken together with his individual record of conduct, justified exclusion. There was no compelling reason in principle why the appeals should not be heard separately, albeit by the same panel, particularly as the crucial issue in the case of O was whether he had been in possession of a knife during the course of the fight.
56. Mr Rawlings argued that it was unfair to O that the appeal of A was heard separately, albeit by the same panel. Something might have been said or produced at A's appeal that was unfavourable to O upon which O would have had no opportunity to respond, or something might have been said or produced that was favourable to O upon which O might not have had an opportunity to capitalise.
57. The first answer to this argument is that the IAP had to decide each appeal on the material that was relevant to the appeal in question. In deciding O's appeal, the IAP could not have regard to material relevant to A's appeal, unless the IAP had drawn O's attention to any such material and had given him a fair opportunity to deal with it. There was of course a substantial amount of common material, including the witness statements of pupils present at the scene of the fight. In any event, the IAP had before it the same documentation on the appeals as had been before the Committee. A had said that he did not see O in possession of the knife, and A's representative had done no more than refer to the witness statements of pupils who said that they had seen O with the knife. There was therefore nothing in the material before the IAP at the time of the appeals that would have led it to believe that anything would be said or produced at A's appeal that was not already well-known to O and that could have had any material effect on O's appeal.
58. In the event, nothing was said or produced at A's appeal that was not already well-known to O and that could have had any material effect on O's appeal. A did not appear at his appeal, although he was represented. The representative's only reference to O was the observation that a number of witness statements recorded that O was in possession of a knife. This was a fact well-known to O. The fact that O's appeal was heard separately from that of A was therefore unlikely to cause unfairness to O and did not in fact cause any unfairness.
59. In conclusion on this aspect I would also add that this is a case where I am entirely satisfied that the outcome of O's appeal would have been no different if his appeal had been heard together with that of A. A had said that he did not see O with the knife. A's representative pointed out that most of the witness statements recorded that O was in possession of the knife. However, that fact was obvious on the material before the IAP and was well-known and indeed constituted the crux of the case against O. Joining the appeals would not have put O in any different position and would have been of no assistance whatsoever to his defence.
60. Those representing O have had for some time all the materials relating to the two appeals. However, no explanation has been advanced as to how in fact O was prejudiced by his appeal having been heard separately, or how O's position would have been materially improved if the appeals had been joined. Even if therefore I had concluded that the appeals should have been joined, I would have denied relief on the basis that, in the event, O suffered no detriment at all by reason of the putative failure.
61. The second ground relied upon by O is that the IAP misdirected itself or was not properly directed on the weight to be given to the statements made by pupils after the fight, which referred to O having been in possession of a knife. As I understand this ground, it is said that the IAP should have directed itself, or should have been directed by the clerk to the IAP, that caution needed to be exercised in relation to the statements made by those pupils involved in the fight, particularly those pupils in the rival group of boys who would have an incentive to misrepresent what had happened and to seek to put as much blame as possible on O.
62. There were in all 22 statements made by pupils. These statements were in evidence both before the Committee and the IAP. The statements were anonymous, but no objection was taken to this anonymity before the Committee or the IAP. The head teacher was questioned by O's representative at the hearing before the IAP on, among other things, the way in which she had conducted the investigation into the incident. However, according to the minutes, as I have explained, she was not asked about the reliability in general of the statements made by pupils, and she was not asked in particular about any statements made by those involved in the fight.
63. Reliance was placed on behalf of O primarily on O's statement denying that he had the knife and on the fact that no members of staff, who of course arrived when the fight had already been continuing for some time, had seen O in possession of the knife. In my view, it is understandable why O's representative at the hearing before the IAP did not seek to focus on the statements made by pupils because such a course would simply have highlighted the weight of the evidence that it was O who was in possession of the knife. Of the 22 statements, 12 stated that O was in possession of the knife, and two more referred to his possession of a "clipper", which given that the weapon was a type of Swiss Army knife probably also indicated that he had a knife. Even if three of the statements were made by the boys in the rival group, nine other witnesses stated that O was in possession of a knife during the course of the fight, and two more refer to a weapon that was probably the knife seen by the other nine.
64. There was nothing in the material before the Committee or the IAP to suggest that the evidence given by these other pupils was inherently unreliable. I would be very surprised if it had not been obvious to the panel, with its experience, that those boys directly involved in the fight might well have had a purpose of their own to serve when they made statements about the incident, even if the panel did not refer specifically to that possibility in its decision. The real risk in the present context arises when such statements are the only evidence against an accused person. This is illustrated by the practice in criminal courts where it may be appropriate for the judge to warn a jury to exercise caution before acting upon the evidence of a witness, who may have a purpose of his own to serve, if that evidence is unsupported by other credible material: see R v Makanjuola 3 All ER 730 at 733, and R v Cheema [1994] 1 All ER 639 at 647 to 649. Here, the other credible material, namely the statements made by pupils not involved in the fight, was in conflict with O's statement denying that he had the knife.
65. In my judgment, the IAP in these circumstances did not need explicitly to direct themselves or to be directed on the particular weight that should be given to the statements made by those involved in the fight, in particular by the three boys in the rival group. It was necessary to consider the weight of the evidence taken as a whole. Even if the statements of those three boys were wholly discounted, between nine and eleven other pupils saw O in possession of the knife. The weight of that evidence then had to be balanced against O's denial that he had a knife. It seems to me that only one conclusion was reasonably open, namely the one in fact reached by the IAP. There was therefore no error of law in the way in which the IAP approached the statements made by the pupils.
66. It also follows that, even if as a matter of law the IAP should have directed itself or should have been directed to treat with caution the statements of those pupils involved in the fight, I do not believe that the outcome of O's appeal would have been different. The overwhelming weight of the evidence of the other pupil witnesses was that O was in possession of the knife. There was nothing to suggest that this body of evidence was in any way unreliable, and the IAP could not reasonably have avoided reaching the conclusion that, on the balance of probability, O did have the knife in the course of the fight.
67. For those reasons I dismiss this application for judicial review.
68. MR LEWIS: My Lord, I am very grateful for that. So we will have an order dismissing the application. I am instructed to ask for costs. I understand the boy is legally aided, so it would be the usual order: costs not to be enforced without permission of the court. Since he brought the claim and lost, the normal rule is costs follow the event.
69. THE DEPUTY JUDGE: Yes.
70. MR LAWSON: One moment, my Lord, if you would. (pause)
71. My Lord, thank you. My Lord, as to costs, I accept, as I think I must, the submission that my learned friend has made. Thank you for the time to consider that in some detail. The appropriate order would of course be the order that the liability and quantification of the costs be suspended until further order and not to be enforced without leave of the court, subject to section 11 of the Access to Justice Act. But I am sure my learned friend and I can supply it, if it would assist, to draw up the order in the usual way.
72. THE DEPUTY JUDGE: Yes.
73. MR LAWSON: There are two other matters. One is I understand that the defendant was represented by both leading and junior counsel at the hearing of the matter, and it may be that my Lord would wish to indicate to anyone, if such an assessment ever were to be carried out, that there was not a need in this case for two counsel to represent the defendant. The issues are of course important, but one would have expected that, as with the claimant, it would have been possible for a senior junior certainly to deal with the matter.
74. MR LEWIS: My Lord, I am not sure that there is a need for a certificate for two counsel. It is a matter for the costs judge and quite frankly this was a complicated case; it did involve Birmingham, and in my submission it was entirely appropriate that Tower Hamlets decided to take the services (inaudible).
75. THE DEPUTY JUDGE: Yes, I am not going to make any indication.
76. MR LAWSON: My Lord, the other matter is that I ask for detailed assessment of the claimant's costs pursuant to the 2000 Regulations.
77. THE DEPUTY JUDGE: Yes.
78. MR LAWSON: I am obliged. My Lord, there are two other applications: one is an application for permission to appeal. The basis, shortly put, is this: these hearings occur on a daily basis in numbers of many dozens, certainly. There were, accordingly to a recent report in the Times, 400,000 fixed term exclusions in the country last year. Very few of these -- pretty self-evidently very, very few of them come to this court. The decisions of this court on these matters are vital and important guidance for people carrying out hearings in schools and on behalf of education authorities in Independent Appeal Panels.
79. The judgment that my Lord has given suggests that permission is appropriate also on the basis that there are some issues of general importance which have been raised. In particular, there is the question of whether or not it is the duty of representatives to raise certain points of procedure before the panel or the duty of the panel to bring them to the attention of those appearing before them. The question of whether that varies if the parties are represented, and also perhaps the need to examine further the potential conflict between this judgment and the judgment in the Birmingham case to which my Lord has referred in the judgment, and in particular on those bases we seek permission to appeal.
80. THE DEPUTY JUDGE: I am not going to give you permission. You will have to go and ask the Court of Appeal.
81. MR LAWSON: My Lord, the final matter is the order under the Children and Young Persons Act 1933. That order is currently on the basis that it is to be maintained until further order. My learned friend has suggested that I might refer the court back to it, and I do so, inviting the court to continue it on the basis that there should be no reference to any facts likely to lead to the identification of any of the children referred to in this judgment.
82. THE DEPUTY JUDGE: That must be right.
83. MR LEWIS: We are content with that. Can I just confirm the order just for the associate's purpose and to make sure that you have actually made the order as I understand it, my Lord. As I understand it, my Lord, you have dismissed the application.
84. THE DEPUTY JUDGE: Yes.
85. MR LEWIS: You have ordered that the claimant pay the defendant's costs, but not to be enforced subject to quantification. You granted detailed assessment of the claimant's publicly funded costs. You have refused permission to appeal and you have continued the anonymity order.
86. THE DEPUTY JUDGE: That is correct, yes.
87. MR LEWIS: And we can see the associate afterwards if necessary, but I see him scribbling. You have made all those orders, my Lord?
88. THE DEPUTY JUDGE: Yes, I have.
89. MR LEWIS: Thank you.