England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		10 December 2008

Miss Belinda Bucknall Q.C. :

1. This judicial review arises out of the permanent exclusion of the Claimant from "T School", a Church of England maintained comprehensive school within the area of the education authority of the London Borough of Bexley.

The statutory regime

2. Section 52(1) of the Education Act 2002 gives the head teacher of a maintained school power to exclude a pupil permanently. Section 52(3) requires regulations to be made providing for the procedures to be followed when the power is exercised.
3. The relevant regulations are the Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulation 2002 ("the 2002 Regulations"). Paragraph 7 of the 2002 Regulations requires the head teacher of a maintained school or the governing body of such a school or an appeal panel constituted in accordance with the Schedule to the Regulations to have regard to any guidance given from time to time by the Secretary of State. Appeal panels are independent of the school in question, are arranged by the local education authority and hear appeals where the governing body or the governors' discipline committee upholds a permanent exclusion. The composition of appeal panels requires there to be one member in a three person panel, or two in a five person panel, who has relevant experience as a head teacher of a maintained school and one member in a three person panel, or two in a five person panel, who has relevant experience as a governor of a maintained school, with one person being a lay person.
4. In September 2006 the Secretary of State published guidance ("the 2006 guidance") which provides as follows.

"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…

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…

12. There will, however, be exceptional circumstances where, in the head teacher's judgment, 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 … a member of staff…

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 case where a head teacher has permanently excluded a pupil for:

(a) One of the above offences…

…the secretary of state would not normally expect the governing body or an independent appeal panel to reinstate the pupil."

Part 5 of the guidance relates to the proceedings of independent appeal panels and so far as relevant provides as follows.

"135. Where panels accept that the individual committed the offence in question they must consider whether the response is proportionate… Once satisfied on all these points it would be unusual for the panel to vary the governing body's decision. In particular the panel should not reinstate the pupil without good reason.

136. In deciding whether or not to direct reinstatement the panel must balance the interests of the excluded pupil against the interests of all the other members of the school community."

The school's behaviour policy

5. "T School" had a number of written strategies, covering a variety of different topics. Relevant to the present case are Strategy 5 Classroom Expectations, Strategy 8(A) Policy on Exclusions and the "T School" Code. Strategy 5 provides that for a successful learning environment, pupils are expected to be polite to all people at all times. It further states that "There is no excuse for rudeness, disrespect or insolence towards members of staff". Strategy 8(A) expressly states that acts of real violence might be examples of such a serious breach of discipline that it would be prejudicial to the work of the school if the sanction of permanent exclusion were not used. The school code states simply and clearly "No…physical… violence".

The relevant events

6. G ("the Claimant") was born on 8^th August 1994. He is now 14. In the Spring of 2007, when he was 12 years old, he was a pupil at "T School". He had no record of violence but his behaviour was poor and disruptive of the other pupils in his class despite persistent efforts by the staff to help him modify his behaviour, as demonstrated by the fact that between 6^th and 28^th March 2007 he was mentioned 15 times in the class report book for unacceptable behaviour.
7. On 18^th April 2007 during the last class of the day the Claimant, who was suffering from an attack of hay-fever, asked for leave from the teacher to get some wet tissues to relieve his eyes. She gave leave, the Claimant left the classroom, got the wet tissues and returned to class. When the class came to an end the Claimant, while on his way out of the classroom, threw the wet tissues, which he had wadded into a small ball, back into the classroom. It hit the teacher in her left eye with such force that it blinded her in that eye, fortunately only for a matter of minutes, dislodged her hard, gas-permeable contact lens with the result that her eye was scratched or irritated, causing her considerable pain and discomfort, and ended up lodged in her eye socket. Her eye was still painful an hour and a half later. I have taken this account from the teacher's standard form report of the incident made on the same day (which attached the projectile) and from her witness statement dated 25^th June 2007) both of which were in evidence before the Defendant. The teacher was understandably shocked and upset. These injuries and their impact on the teacher are not in issue although an attempt was made during the course of the hearing to suggest that they were of low order.
8. The ball of wadded up wet tissues was subsequently produced at the hearing before the Defendant. It is relevant to mention here that both in the judicial review pleading and during oral submissions at the hearing of the judicial review the Claimant's counsel persisted in referring to the object thrown as "a wet tissue" or simply "a tissue". Neither is an accurate description of the projectile which was both rather more solid and more aerodynamic than its individual constituent parts.
9. An investigation into the incident was initiated by the teaching staff. The victim did not see who had thrown the projectile nor, it appears, did anyone else. Very shortly after the incident the Claimant came back to the class room of his own volition and volunteered the information that he was not the person responsible for throwing the object which struck the teacher ("his first account"). When the Claimant was first questioned by the teaching staff about the incident, he changed his story and admitted that it was he who had thrown the projectile but said that he was aiming for the wastepaper bin, thought he had thrown it a bit hard and had hit his teacher by accident ("his second account"). A number of his fellow pupils, however, gave statements to the effect that he had told them that he had thrown the projectile at the teacher. When the Claimant in the presence of his mother was confronted by those statements by the head teacher at a meeting on 30^th April 2007 he changed his account and admitted that he had thrown it at his teacher ("the third account").
10. Returning to the events in chronological order, on the day after the incident, 19^th April 2007, the Claimant was excluded from school for a period of six days until 30^th April 2007, that being the earliest date on which the Claimant's mother could attend the school with her son to discuss the matter with the head teacher. The meeting took place, the admission referred to above was made and on the following day, 1^st May 2007, the head teacher, by letter, excluded the Claimant permanently, pursuant to the powers granted by section 52 of the Education Act 2002. The Claimant, via his mother, exercised his right of appeal pursuant to paragraph 5 of the 2002 Regulations, and appealed to the school's governing body. That body reviewed the head teacher's decision and by a letter dated 21st May 2007, gave notice that they upheld it.
11. The Claimant, via his mother, appealed to the Defendant. The hearing took place on 4^th July 2007 and the Defendant sat until after 11pm to finish. Both parties were represented by counsel and the Claimant was called to give evidence before the Defendant. Amongst the documents put before the Defendant was the head teacher's exclusion statement which contains the following passage.

"The decision to permanently exclude [the Claimant] was taken after extensive investigations took place following the incident [The Deputy Head] and I met with [the Claimant and his mother] on Monday 30^th April and by his own admission [the Claimant] acknowledged that his actions were deliberate and directed at the teacher. [The Claimant's mother] said that [the Claimant] had written an account of events for her. The facts of the incident were agreed at the meeting. [The Claimant] showed no real signs of remorse at his actions.

…

The safety, security and well being of teachers and pupils are of paramount importance at Trinity, as they are at any school. As can be seen from the attached summary of the incident, [the Claimant] has shown a complete disregard for the "T School" Code. The school cannot tolerate such behaviour if a duty of care to all is to be maintained. It is with great regret and with due regard to statutory guidance that I am asking the governors to uphold the permanent exclusion of [the Claimant] from "T School" because of the seriousness of the breach of the School's disciplinary code and the great distress caused to a teacher by the behaviour of [the Claimant]."

12. By paragraph 146 of the 2006 guidance the Defendant was required to let all parties know of its decision by the end of the second working day after the hearing. The Defendant in fact did so on the following day. As set out in its letter it found that (1) the Claimant had deliberately thrown the ball of wadded up wet tissues at the teacher (2) this amounted to "one off serious actual violence against … a member of staff" (i.e. it fell within the scope of paragraph 12 of the 2006 guidance) and (3) it merited permanent exclusion. Accordingly it upheld the decision of the Governors' Disciplinary Committee and dismissed the appeal.
13. It is that decision which the Claimant challenges by way of judicial review.
14. The Claimant has now gained admission to another school but the relief sought by the judicial review is nevertheless pursued with the aim of clearing his school record of the permanent exclusion.

The application for judicial review

15. The Claimant's application for judicial review seeks a declaration that the Defendant's decision to exclude the Claimant from "T School" permanently was disproportionate in all the circumstances and an order quashing the decision of the Defendant and referring the matter back to a freshly constituted independent appeal panel.
16. The grounds relied upon in the Judicial Review Pleading went beyond a challenge to the proportionality of the response. They were that the Defendant (1) had wrongly failed to consider adequately or at all whether the Claimant intended harm or whether it was just an accident (2) had acted irrationally or unreasonably in concluding that what the Claimant had done amounted to "one off serious actual violence against … a member of staff" and (3) had imposed a sanction that was disproportionate in all the circumstances. As the case was developed at the hearing it went beyond even those grounds but I will consider each ground in turn and at the same time also consider the additional matters raised.
17. The Claimant accepts that the Defendant's decision is only impeachable if it can be shown that the Defendant wrongly failed to take into account relevant matters or took into account irrelevant matters or acted irrationally or unreasonably in the sense that it acted in a way that no reasonable decision-maker would have so acted ("the Wednesbury principle").

(1) Did the Defendant wrongly fail to consider adequately or at all whether the Claimant intended harm or whether it was just an accident?

18. The Defendant listed the matters about which there was no issue. These were the fact that the Claimant was the child who had thrown the projectile which hit the teacher and the fact that the Claimant had given three different accounts. There was, accordingly, no dispute about the identity of the child or the fact that the Claimant's own version of events had changed, leaving open the question of which account was correct. In light of the undisputed facts it went on to consider the matters that remained in issue and which it considered most pertinent. These were:

i) Did the Claimant threw the wad (the Defendant's term for the projectile) at the teacher rather than at the bin and it simply happened to hit her by accident?

ii) Was the wad thrown with some force?

iii) Were the circumstances in which the second statement was obtained such as to render it unreliable as evidence for the panel?

iv) At the meeting on 30^th April 2007 did the Claimant in the presence of his mother admit to the fact that he threw the wad at his teacher?

19. As to the first issue, the Defendant concluded on a balance of probabilities that the Claimant had thrown the wad at the teacher (that is to say it took his third account as the truth and not his second account) and the Claimant's counsel stated at the Judicial Review hearing that that finding was not disputed.
20. As to the second issue, the Defendant took into account (1) the distance over which the projectile had to travel between the position of the Claimant who was walking out of the room when he threw it and the position of the teacher and (2) the force with which the teacher said it struck her. Having done so it concluded that the projectile had been thrown with some force. It rejected the Claimant's evidence that the projectile had been thrown with a casual underarm, backwards movement as he was walking out of the classroom, on the basis that that evidence was inconsistent with its finding that the projectile had been thrown with some force.
21. At the hearing the Claimant's counsel submitted that (1) whether or not the projectile was thrown with some force was an irrelevant matter and (2) in any event there was no evidence about it except that of the teacher. As to the first point, I do not agree. Since the Claimant had been permanently excluded because of a one off act, the Defendant had to consider whether what had been done constituted "serious actual violence" within the scope of paragraph 12 of the guidance. The degree of force used in throwing the projectile at the teacher is clearly relevant to that question. As to the second point, the Claimant's case appeared to be that there was insufficient evidence to justify the Defendant's conclusion. Again I do not agree. The evidence of the teacher who received the projectile in her left eye, felt the impact and suffered the frightening though fortunately comparatively short lived consequences, was undoubtedly evidence that the Defendant was entitled to take into account in considering the force with which the Claimant had thrown the projectile, as was the distance over which it had to travel to strike her with the force she described.
22. Since it is not contended that the Defendant erred in finding that the Claimant threw the projectile at the teacher, nothing turns on the third or fourth issues, save to note that they were issues that properly fell to be considered and were dealt with reasonably. The absence of challenge to that finding also enables me to dispose of the complaint that the Defendant failed to consider the Claimant's antecedent record and thus failed to comply with paragraph 18 of the 2006 guidance. That paragraph is concerned with cases where there is an issue as to whether the pupil did what he is alleged to have done, as to the standard of proof to be applied to such an issue and as to the additional evidence (such as the pupil's past record) that might need to be obtained to satisfy the standard of proof. Accordingly it is irrelevant in a case where there is no challenge to the finding that the Claimant did what he was alleged to have done.
23. Implicit in the Defendant's finding that the Claimant deliberately threw the projectile at the teacher with some force is the conclusion that he intended to hurt her or at best was wholly reckless as to whether or not hurt was caused. Accordingly there was no failure on the part of the Defendant to consider whether the harm was caused accidentally. In paragraph 27 of the Judicial Review Pleading, there is a complaint that the opinion of the teacher that the Claimant had deliberately aimed at her eye was unreliable because she did not see the Claimant throwing the projectile and there was no independent corroboration of her opinion. This complaint might have justification if the Defendant had found that the Claimant had deliberately aimed for the teacher's eye but it did not, nor did it need to do so. In consequence there is nothing in this complaint.
24. As to the complaint that the Defendant did not explore the question of the Claimant's motive, what the Defendant said in its reasons about motive was this.

"Whilst there appeared to be no motive for the incident the Panel did not conclude that this was relevant given that they considered it did amount to …"one of serious actual violence against a member of staff."

It was contended on behalf of the Claimant that this amounted to a failure on the part of the Defendant to take into account a relevant matter because motive was critical to the question of whether the Claimant intended to hurt his teacher and it was claimed (albeit without referring me to any evidence in support of the claim and rather inconsistently with what he actually did) that the Claimant bore no animosity towards his teacher.

25. This submission seems to me to confuse two different concepts. Intention goes to the question of whether an act is done deliberately rather than accidentally. Motive merely provides the reason (if any) why an act is done. The former is concerned with state of mind; the latter with rationale. The exceptional circumstance referred to in paragraph 12(a) of the 2006 guidance clearly involves an intentional targeting of the victim ("violence against"); mere undirected violence, even if by chance a member of staff becomes a victim of it, will not fall within the scope of the paragraph. Intention, therefore, had to be investigated and the Defendant did so. In contradistinction, the wording of paragraph 12(a) does not require an investigation into the reason why a pupil intentionally used force against a member of the school staff. Furthermore, the Claimant was represented at the hearing before the Defendant by solicitors and counsel and gave evidence and the Defendant expressly noted in its reasons that he was given a proper opportunity to exculpate himself. If, therefore, he had a motive for throwing the projectile with some force at his teacher which could or might have minimised the seriousness of that act, he could have explained it. The fact that he did not do so entitled the Defendant to proceed on the basis that there appeared to be no motive. Accordingly, the Defendant's approach to motive was justified, with the result that this complaint is not made out.
26. In sum nothing in the submissions made on behalf of the Claimant under this heading persuade me that the Defendant took into account any irrelevant matter or failed to take into account a relevant matter.

(2) Did the Defendant act irrationally or unreasonably in concluding that what the Claimant had done amounted to "one off serious actual violence against … a member of staff"?

27. The short answer to this is that it did not. The Defendant was entitled in light of its finding that the Claimant deliberately threw the projectile at his teacher to conclude that this was actual (as opposed to merely apprehended) violence against a member of staff. The Defendant was further entitled, in light of its finding that the projectile was thrown with some force and the evidence of the consequences for the teacher, to conclude that the violence was serious.

(3) Did the Defendant imposed a sanction that was disproportionate in all the circumstances?

28. The Defendant's approach to the sanction was as follows.
29. First, and in consistently with the guidance in paragraph 134 of the 2006 guidance, it considered the approach of the school. This was that (1) the Claimant's conduct constituted one off serious actual violence (2) it thus passed the threshold for permanent exclusion (3) the conduct was a serious breach of the school's behaviour policy and (4) allowing the Claimant to remain in the school would seriously harm the welfare of the Claimant and others at the school. As to the latter point, the evidence before the Defendant was the head teacher's exclusion statement set out above. It is also right to point out that the composition of an independent appeal tribunal is designed to ensure that there is a significant level of expertise on the panel. In consequence the Defendant was able to bring to bear on its assessment of the school's approach the experience of its qualified members.
30. Next the Defendant applied its own judgment to whether that approach was justified in light of the facts both admitted and found. In so doing it expressly took into account the statutory guidelines for a one off incidence of violence. It concluded that the throwing of the projectile at the teacher with some force amounted to "one off serious actual … violence against … a member of the staff" which merited permanent exclusion. In other words it, too, found that the threshold test for exclusion on the ground of a one off incident of serious actual violence was met.
31. Finally it turned to consider, as required by paragraph 135 of the 2006 guidance, whether (1) permanent exclusion was proportionate and (2) whether the disciplinary process had been carried out without any procedural irregularities of a kind that affected the fairness of the procedure or the school governor's findings. As to the first point and the question of proportionality, the Defendant, carried out that balancing act and in so doing took into account as it was required to do by the guidance in paragraph 136 of the 2006 guidance, the impact that such an incident would have on the school as a whole, other pupils and the staff. The evidence before it on that point was the passage from the head teacher's exclusion statement cited above to which it was entitled to add its own collective professional experience. It concluded that permanent exclusion was a proportionate response to the incident in question. As to the second point, although there was a complaint made at the hearing before the Defendant that there had been a procedural irregularity in the proceedings before the governing body in that one member of the governing body had been asleep during the proceedings the Defendant rejected that claim and it was not renewed before me. The Defendant was satisfied that there was no procedural irregularity.
32. Its overall conclusion was that the incident in question was the sort envisaged by the guidelines where a head teacher could reasonably exercise his judgment permanently to exclude the pupil.
33. The Claimant's case under this heading proceeded on the basis that

"All the Claimant did was to throw a wet tissue which hit a teacher and her eye hurt for a day or two …he didn't mean any harm by his careless action …he did not intend to hurt the teacher or anyone else…."

If this recital of facts was correct, the contention that the decision to exclude the Claimant permanently was disproportionate and Wednesbury unreasonable might have had some weight, but the facts are not stated correctly. I have taken these submissions from the Judicial Review Pleading but similarly flawed factual assertions appear in the skeleton (see for example paragraph 26) and were repeated during oral argument.

34. The description of the projectile as a "wet tissue" perpetuates the fallacy already referred to that it was an item that would not seem to be capable of causing injury. The language of the submission suggests that the contact between the teacher and the "wet tissue" was accidental and in so doing disregards the finding which is not challenged that the Claimant deliberately targeted the teacher, the reasonably found fact that he did so with some force and the implicit finding that he thereby intended to hurt her. Finally, it employs language which seeks to trivialise the evidence of the teacher as to the pain she experienced, her temporary blindness and the scratching or irritation of her eye.
35. By contrast, taking the facts as they were admitted or reasonably found, expressly or implicitly, to be, the Defendant's decision that permanent exclusion was proportionate to the one off serious violence against the teacher, is not one that in my judgment can be said to be irrational or unreasonable.
36. In sum the Claimant has failed to demonstrate that the decision of the Defendant was irrational or unreasonable in any respect. Accordingly, the Claimant's claim for relief must fail.