England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
QUEENS BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		4th June 2009

Mr Justice Hickinbottom:

Introduction

1. The Claimant, A, through his father, challenges the decision of the Independent Appeal Panel for the London Borough of Sutton ("the Panel") of 18 September 2007 which rejected his appeal against the decision of the Discipline Committee of the Board of Governors of B School ("the School") of 20 June 2007 which upheld the decision of the Head Teacher of 18 May 2007 permanently to exclude A from the School.

Factual Background

2. A attended the School from September 2003. Between about January and April 2007, A, then 14 years old and in year 10, brought smoking material onto the School premises, which he sold to a number of other boys. Throughout, he has said that this was a herbal mixture which contained no drug controlled under the Misuse of Drugs Act 1971, purchased from a local shop: and, further, he made that clear to those to whom he supplied. However, a number of the boys indicated that they believed the material they bought was cannabis. In addition to the supply of this material, A arranged for a pupil in year 9 to meet a third party who, he suggested to the other boy, would be able to procure cannabis: and indicated to another younger pupil that he could arrange for him to meet a dealer. Neither of those meetings (which were due to take place off school premises) in the event actually took place.
3. Following various investigations and interviews which took place from 24 April 2007 to which I will return, the Head Teacher decided temporarily to suspend A from the School. In a letter dated 27 April 2007, but in fact given to A's parents (Mr & Mrs S) at a meeting on 3 May, he said:

"I regret to inform you that I have decided to exclude [A] from school. The exclusion is initially for a fixed period of ten days while further investigations are completed. The allegations about [A] are serious ones and he may be facing permanent exclusion for dealing in drugs….

The reason for this exclusion is that [A] has sold 'weed' to other pupils at the school. Money and the drugs have been exchanged on school premises to boys in his own year and possibly to two boys in the year below. It is also alleged that he has made arrangements to buy further supplies, taking one of the year 9 boys with him. [A] and others admit to other non-illegal purchases from a store in Cheam but two of the other boys, now serving fixed term exclusions, say that they paid for and received 'weed' from [A] which they took to be marijuana…."

4. Further investigations and interviews took place, including a long meeting with A and his parents on 3 May, to which I have already referred.
5. On 18 May 2007, the Head Teacher wrote to Mr & Mrs S again, informing them that he had decided permanently to exclude A from the School. The relevant parts of that letter were as follows:

"I regret to inform you of my decision to exclude [A] permanently from school for dealing substances believed to be illegal drugs (and not just a herbal smoking mixture from [a local shop] on the school premises to other pupils of the school. [A] also arranged a meeting for the purpose of procuring drugs and took a younger boy to this meeting.

…

[A] has not had a very good year in terms of his disciplinary record, including an episode of shop lifting, but the permanent exclusion is not seen as a cumulative thing but a response to a single serious breach of school discipline in dealing in forbidden substances on the school premises…"

This letter is of particular importance because, once the reasons for exclusion are identified, new reasons cannot be relied upon by the school (see paragraph 20 below).

6. I deal with the relevant statutory provisions below (paragraphs 13 and following). However, briefly, by virtue of regulation 5 of the Education (Pupil Exclusion and Appeals) (Maintained Schools) (England) Regulations 2002 (SI 2002 No 3178) ("the 2002 Regulations"), the decision of the Head Teacher effectively had to be reviewed by the Governing Body of the School, through its Disciplinary Committee ("the Disciplinary Committee"), which held a hearing on 14 June 2007. At that hearing, A was represented by Ms Jegarajah of Counsel. Mr & Mrs S, and the Head Teacher, also attended. The Disciplinary Committee reserved their decision, which they communicated to Mr & Mrs S by letter dated 20 June 2007, saying:

"The Committee, having taken into account the thorough and lengthy committee proceedings, the additional papers served on the Committee at the meeting's start, the School's published policies and DfES guidance, has decided to uphold [A]'s exclusion.

The reasons for the Committee's decision are as follows:

a) [A] admitted selling an unauthorised drug in the form of smoking materials, which he maintained was a herbal mixture, on School premises for profit.

b) In spite of some conflicting statements there was sufficient evidence to show that the boys who purchased the material from [A] believed they were purchasing 'weed' or cannabis.

c) [A] admitted that he had arranged a meeting with a younger boy present for the purpose of meeting a boy who he believed could supply illegal drugs.

d) In supplying a smoking material of unknown content [A] had risked endangering the health of several boys.

e) [A] had broken the School Rules by bringing smoking materials onto School premises and had breached the Governing Body's substance abuse policy by trading an unauthorised drug on the premises

Before coming to a decision, the Committee satisfied itself that:

although the investigation lacked the rigour of a full criminal investigation there was only a duty on the Headmaster to establish on the balance of probability that the offence had been committed.

there was not a requirement on the Headmaster to report the matter to the police.

the Headmaster was not obliged by DfES Guidance to consider, and record his consideration of, a full range of lesser options than permanent exclusion when a case related to supplying drugs.

The Committee considered that to allow [A] to remain in School would seriously harm the education and welfare of others in the School and that exclusion was an appropriate response to very serious breaches of the School's behaviour policy…."

7. In that letter, Mr & Mrs S were notified of their right to appeal to the Panel, and they duly lodged an appeal. There was a hearing before the Panel on 17 September 2007, at which A was represented by Mr Manjit Gill QC. A and Mr S, and the Head Teacher, were also present.
8. The Panel rejected the appeal and upheld the decision of the Disciplinary Committee permanently to exclude A. In a letter sent to Mr & Mrs S on 18 September, the Panel gave their decisions, findings of fact and reasons as follows:

"Decisions

i) That [A] was responsible for the behaviour complained of, which was in breach of the School's Substance Abuse Policy, and leading to the permanent exclusion that took place on 18 May 2007.

ii) That permanent exclusion was a reasonable response to [A]'s behaviour.

iii) Given (ii) above the appeal is dismissed and [A] should not be reinstated to [the School].

Findings and Reasons

1) That the criteria of [A] was he was acknowledged that he had a reputation within the School as 'hard'. He demonstrated a willingness to set up meetings purportedly for the purchase of illegal drugs, which was consistent with such a reputation, [A] appeared content to have such a reputation within the School.

2) On the balance of probabilities, the Panel found that [A] had dealt substances believed by the Headteacher and the purchasers of the substances to be illegal drugs, on the School's premises.

3) On the balance of probabilities, it had been shown [A] attempted to arrange a meeting for the purposes of procuring drugs, and took a younger pupil to the proposed meeting."

9. In considering whether the sanction of permanent exclusion was proportionate, the Panel continued:

"The Panel considered, whether or not in all the circumstances it was proportionate to permanently exclude [A]. The Panel considered in the context of the School and its recent history and the particularly serious circumstances of this case involving younger pupils, it was proportionate in all the circumstances. The Panel considered that the Headteacher's decision to permanently exclude [A] was a measured decision, that the Headteacher had taken into account the seriousness of the incident, particularly involving younger boys, and had considered whether alternative options were suitable, but on balance, considered it was proportionate. Whilst the Panel was reassured that the final decision was taken by the Headteacher and was reliant on the Headteacher's own interviews with the pupils and parents, the Panel noted serious concerns in respect of how the interviews were undertaken. The Panel recognised that whilst the high standard expected as regards interviews under the Police and Criminal Evidence Act would be excessive in a school environment, on balance the Panel considered that the conduct of the interviews and proper note taking were a deficiency in respect of the School and the Panel will be making recommendations to the School in relation to those issues.

The Panel acknowledged that there were inconsistencies with evidence from the pupils. However, on balance the Panel considered that there was a strong weight of evidence as to what substances the boys believed they were purchasing and despite some procedural difficulties that evidence was decisive."

10. It is of course that decision which, with permission from Pitchford J, A now seeks to challenge in this judicial review. However, before I come on to deal with the grounds of challenge, I should complete the relevant chronology.
11. As can be seen from the above quotations, although the Panel found that the material supplied by A was believed by the pupils to whom it was sold to be cannabis, they made no finding as to the actual nature of the substance supplied. They considered that this was irrelevant to their consideration of the issues before them. However, following receipt of a pre-action protocol letter dated 22 October 2007, although the Panel did not consider that the other grounds relied upon were persuasive, they did consider that they had erred in one respect namely in failing to make a finding upon the issue of the true nature of the material A admittedly supplied. In their letter to A's solicitors of 9 November 2007, the Panel through their solicitor accepted that, in deciding the matter on the basis that the actual nature of the material was irrelevant, they had erred. They therefore accepted that their decision of 18 September should not stand, and that there should be a de novo re-hearing at which they agreed the other matters raised in the grounds - such as the appropriate standard of proof - could be raised.
12. However, neither party (i.e. on the one hand A, or rather his father Mr S; and on the other hand the Head Teacher and Governing Body of the School) agreed to this course. Mr S did not want a re-hearing. He sought the quashing of the decision of 18 September and an immediate positive decision allowing A's appeal against the decision to exclude him permanently from the School. He wanted that decision to be expunged from A's school record. In this judicial review, he now seeks a mandatory order requiring the Panel to make such a decision, on the basis that that is the only decision to which any panel could properly come on the evidence before it. Given that two years have now elapsed during which A has moved to another school and he does not seek reinstatement, that is the only substantive relief now sought in this claim. For its part, the School (the First Interested Party) considered that (i) the Panel had no power to revisit their earlier decision, and therefore that decision must stand unless and until quashed by the court, and (ii) in any event, on the merits, the Panel decision was entirely correct and lawful. Before me, despite the Panel's concession, the School therefore sought to uphold the Panel's decision in every respect. I deal with these particular issues as between the Panel and the School in paragraphs 72 and following below.

The Legislative Provisions

13. The School is a maintained school. Section 52(1) of the Education Act 2002 ("the 2002 Act") provides that a head teacher of a maintained school may exclude a pupil for a fixed period or permanently. Section 52(3)(d) and (4)(b) enables regulations to be made as to the procedure on appeals and requiring a head teacher to have regard to any guidance given by the Secretary of State from time to time.
14. The relevant regulations are the 2002 Regulations, to which I have already referred (paragraph 6 above). Regulation 7(2) provides that, in exercising any function under section 52(1), any head teacher, governing body or appeal panel "shall have regard to any guidance given from time to time by the Secretary of State". Regulation 7A (inserted by the Education (Pupil Exclusions) (Miscellaneous Amendments) (England) Regulations 2004 (SI 2004 No 402)) provides that, where it falls to any such decision maker "to establish any fact, any question as to whether that fact is established shall be decided on a balance of probabilities".
15. At the time of the Head Teacher's decision in respect of A (May 2007), paragraph 18 of the Secretary of State's Guidance made under section 52(1) of the 2002 Act, "Improving Behaviour and Attendance: Guidance on Exclusion from School and Pupil Referral Units", was in the following terms:

"The standard of proof to be applied is the balance of probabilities, i.e. if it is more probable than not that the pupil did what he or she is alleged to have done, then the head teacher may exclude the pupil. However, the more serious the allegation, the more convincing the evidence substantiating the allegation needs to be. This is not the same as requiring the criminal standard to be applied but it does mean that when investigating more serious allegations, head teachers will need to gather and take account of a wider range of evidence (extending in some instances to evidence of the pupil's past behaviour), in determining whether it is more probable than not that the pupil has committed the offence."

16. A revised version became effective as from September 2007, i.e. it was in place by the time of the Panel's decision. Paragraph 22 of the new version was in the same terms as paragraph 18 of the earlier guidance, except it concluded as follows:

"This is not the same as requiring the criminal standard of 'beyond reasonable doubt' to be applied. But it does mean that when investigating more serious allegations, in determining whether it is distinctly more probable than not that the pupil has committed the offence, head teachers will need to gather and take account of the wider range of evidence. In some cases this may extend to evidence of the pupil's past behaviour, if relevant to the seriousness of the present allegation."

17. The September 2007 Guidance has specific provisions in relation to Independent Appeals Panels ("IAPs"), in similar terms:

"144. In considering an appeal, the panel should decide, on the balance of probabilities, whether the pupil did what he or she is alleged to have done. However, the more serious the allegation and thus the possible sanction, the more convincing the evidence substantiating the allegation needs to be. This is not the same as requiring the criminal standard of 'beyond reasonable doubt' to be applied, but it does mean that when investigating more serious allegations, head teachers will need to gather and take account of a wider range of evidence (extending in some instances to evidence of pupil's behaviour if relevant to the allegation), in determining whether it is more probable than not that the pupil has committed the offence. If more than one incident of misconduct is alleged, the panel should decide in relation to each one.

145. The panel should consider the basis of the head teacher's decision and procedures followed having regard to the following:

a) whether the head teacher and governing body complied with the law and had regard to this guidance in deciding, respectively, to exclude the pupil and not to direct that he or she should be reinstated. While the law states that the panel must not decide to reinstate a pupil solely on the basis of technical defects in procedure prior to the appeal, procedural issues would be relevant if there were evidence that the process was so flawed that important factors were not considered or justice was clearly not done;

b) the school's behaviour policy….

c) the fairness of the exclusion in relation to the treatment of any other pupils involved in the same incident.

146. Where the panel accept that the individual committed the offence in question, they must consider whether the response is proportionate and also be satisfied that the disciplinary process has been carried out without any procedural irregularities of a kind that affect the fairness of the procedure or the governors' findings. 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 reasons.

…..

148. In deciding on:

whether or not to uphold an exclusion and then,

whether or not to direct reinstatement if the exclusion is not upheld

the panel must balance the interests of the excluded pupil, taking into account the seriousness of the incident leading to the exclusion, the pupil's past behaviour and the consequences for him or her of the exclusion, against the interests of all the other members of the school community including the risk of undermining the head teacher's authority and the general climate of discipline within the school."

18. There is specific guidance in relation to the circumstances which can lead to permanent exclusion. In the pre-September 2007 Guidance, this was in the following terms:

"11. A decision to exclude a child permanently is a serious one. It will be usually 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 acknowledgment 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 judgment, it is appropriate to permanently exclude a child for a first or 'one off' offence. These might include:

….

c) supplying an illegal drug

….

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."

19. The September 2007 Guidance was in similar terms save that the first sentence of paragraph 11 (which became paragraph 14 in the new version) is expanded as follows:

"A decision to exclude a child permanently is a serious one and should only be taken where the basic facts have been clearly established on the balance of probabilities."

20. The Guidance also provides (paragraph 139):

"The school may not introduce new reasons for the exclusion."

21. The Secretary of State issued a separate document, "Drugs: Guidance for Schools". In that Guidance, "drugs" is defined so as not to be limited to controlled drugs but to refer to "all drugs including medicines, volatile substances, alcohol, tobacco and illegal drugs". Where a school has a drugs incident:

"Schools are recommended to conduct a careful investigation to judge the nature and seriousness of each incident… The emphasis should be on open-ended, rather than closed or leading questions. Schools should consider separating any pupils involved in the incident and ensuring that a second adult witness is present." (paragraph 5.3).

"Schools should make a full record of every incident… Notes should include the time, date, place and people present, as well as what was said." (paragraph 5.7).

22. In considering the most appropriate response, one factor to take into consideration is, "Is the drug legal or illegal?" (paragraphs 5.3 and 5.4). The guidance also stresses that:

"A decision to exclude a child permanently is a serious one.

Permanent exclusion should usually be the final step in the process for dealing with disciplinary offences after a wide range of other strategies have been tried without success. Supplying an illegal drug is a serious breach of school rules and it may be one of the exceptional circumstances where the headteacher judges that it is appropriate to permanently exclude a pupil, even for a one-off or first-time offence. In making this judgment the headteacher should have regard to the school's policy on drugs and consider the precise circumstances of each case, including the nature of the incident and the evidence available. This may also include the precise nature of the supply…

Where pupils are permanently excluded for supplying an illegal drug, 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 IAP] to reinstate the pupil…." (paragraph 5.9; emphasis in the original).

23. The School's own Substance Abuse Policy at the relevant time made it clear that, "The school is opposed to the misuse of substances including, but not limited to, controlled drugs and alcohol, by members of the school and to the illegal supply of these substances". It also indicated, in line with the Secretary of State's Guidance above, that "supplying of illegal substances to another pupil" is something that, even for a first offence, may result in permanent exclusion. Paragraph 12 of the School Rules provided that:

"Smoking is forbidden when students are in school uniform; and no student may smoke, or have smoking materials, drugs or alcohol in school or when involved in any school activity."

Grounds of Challenge

24. In the original claim, the Claimant relied upon several grounds of challenge to the Panel's decision, which can be summarised as follows:

(1) Procedural Fairness: The investigation by the School was so flawed that the Panel erred in placing any reliance upon the evidence collected as a result of it.

(2) Standard of Proof: In relation to the findings it was required to make, the Panel erred applying the balance of probabilities test - the criminal standard of proof ought to have been applied. However, insofar as the civil standard of proof was appropriate, the Panel in any event misapplied that test.

(3) Reasons for Exclusion: The Panel erred in upholding the Disciplinary Committee's decision because the Head Teacher's reason for permanently excluding A was that he had supplied illegal drugs on School premises, and (a) on the evidence no Panel could be properly satisfied that A had supplied illegal drugs on School premises, and (b) in addition to this basis, the Panel had relied upon the fact that A had taken another boy to a meeting off School premises with a person who may have been able to supply illegal drugs which was an irrelevant factor in that that did not form part of the Head Teacher's reasons for exclusion.

(4) Proportionality: The Panel's approach to the issue of proportionality was flawed. In particular, they merely considered whether the Head Teacher had acted reasonably in permanently excluding A, rather than themselves reconsidering whether such a sanction was reasonable and proportionate.

(5) Failure to make relevant findings: Insofar as the Panel failed to make a finding as to the true nature of the material supplied (i.e. whether it was or was not cannabis), they erred in law.

25. I will deal with these grounds in turn.

Ground 1: Procedural Fairness

26. I will come on to deal with the Head Teacher's reasons for permanently excluding A in more detail in due course: but briefly his letter referred to two separate matters, namely (i) A arranging a meeting for the procuring of drugs, which a younger pupil also attended, and (ii) A's dealing substances believed to be illegal drugs (see paragraph 5 above).
27. In relation to (i), A accepted that he had spoken with two boys and had said that he would arrange meetings for them, although in the event no meetings were in fact arranged. A said that he did not know of any drug dealers, and he was in fact just "showing off" to younger boys by saying to them he could introduce them to other boys who might be able to assist them in obtaining drugs. In relation to the evidence as to what actually happened as between A and the other pupils there was no significant issue.
28. In relation to (ii), A accepted that he had sold smoking material to other pupils. However, there was one important issue upon which the evidence of both A and the other pupils was important, namely what the other pupils believed the material to be. A said throughout that the material was not cannabis, but smoking material that contained no controlled drugs which he had bought from a local shop and sold on to the other pupils. He accepted that he had a reputation in the School for being a "hard man", and wished to promote that: he thought that, by supplying the material to other pupils, he could make some money and enhance his reputation (A's Statement 11 September 2007, paragraph 6). He also accepted that he used the word "weed" in describing the material, but said that he made it clear to the purchasers that they were not purchasing cannabis but only legal smoking mixture. Evidence from the other boys as to what they believed the material to be was clearly important. The core of A's complaint about procedural fairness focused on how this evidence was obtained and deployed.
29. On 24 April 2007, there was some incident at the School involving a boy, N, that resulted in both N and other pupils being interviewed by members of staff (but not the Head Teacher) the following morning. Those interviews took place without parents or responsible adults being informed or invited to attend. No contemporaneous note was taken of the meetings. During those interviews, A became implicated in supplying some form of material to other boys. A signed a short statement on 25 April, saying: "I have given what was perceived to be drugs to [O] outside room 60 and he paid me for them". The same day O, another pupil at the School, signed a short statement saying: "I have received drugs from [A] outside room 61 and paid him for them. I have paid [N] for drugs but never received them outside the library".
30. After making his statement, A was made to wait in the School foyer until the afternoon, when he was interviewed again: and, on request, he made a further statement. In short, he said that the material was not "illicit", but a harmless legal smoking mixture that had no psychoactive effects, bought from a local shop, and which he sold to O, S and K, all other pupils at the School. That afternoon, O also made a fuller statement, headed "Cannabis Incident":

"I first bought 1 spliff off [A] before half-term. It started when I asked [A] whether he could get me any weed. He said yes and that it was £2.50 a spliff. I paid him the money 2 days later…. [A] told me that it was weed, but I wasn't 100% sure. He gave it to me outside [Mr D's] room. I kept it in my blazer pocket for the next couple of days before smoking it with [A] after school one time. I enjoyed it, so a week or 2 later I asked [A] whether he could get me any more. He asked how many I wanted, and I told him I wanted 2. I paid him almost straight away £5. I think he got them to me the next day but I'm not really sure. I then smoked it on Saturday with friends from outside of school in Kingston. I haven't asked for any from [A] since…"

O went on to describe another incident involving "weed", but not involving A.

31. O was interviewed again in the presence of his mother on 27 April. The typed up notes of that meeting include the following exchange:

"What made him think it was weed?

I asked for weed and [A] said he could get me some. I thought it was real.

You have been to [the local shop] with [A] - was the so called "weed" not just smoking substitute from there?

No, I don't think so."

32. O was temporarily excluded for a fixed term that day. To complete the picture with regard to O's evidence, on 13 June (after the Head Teacher's decision permanently to exclude A from School), O retracted his evidence about his belief that the material was cannabis, saying in a further statement: "[A] never told me that the rolls which he gave me were actually weed, and the rolls had no real effect on me, so I have reason to believe that they weren't real".
33. Going back to 27 April, that day pupil S was also interviewed. As there had been an earlier disciplinary incident involving S, there had been a previous request that he only be interviewed with his parents present - and he was. That resulted in a statement by S dated 1 May 2007, in which he said that before Christmas 2006 he had received a "small packet of weed from [A]" which he had thrown away out of fear: but he had been asked by A if he wanted some more after Christmas and he paid him £10 for a packet which he again threw away. He had also heard pupil K ask A for "more weed".
34. K was interviewed in the presence of his parents on 30 April. He told a story of being asked by A, before Christmas, to take a packet to Croydon to give to a hooded man outside a particular shop - which he did. That story was also supported by S, but both boys shortly afterwards accepted that that story was false. In his 30 April statement, K also referred to the meeting A had arranged with someone for the procurement of "weed", and of going with A to the meeting place to which the third party did not show up. That was the meeting referred to in the Head Teacher's letter of 18 May, which A accepted he had arranged. In his statement, K also said this about the material which A had supplied:

"[K] says that [A] uses the word "weed" to describe what he is providing the others. [K] says [A] is open to him and would not need to fake it. [K] has smelt the fruitiness and assumed it was weed. [K] says that [S] also uses the term weed."

35. A was interviewed by the Head Teacher in the presence of his parents and other teachers on 3 May. He accepted that he had sold the material to O, S, N and K - but denied it was anything other than a herbal smoking mixture from the local shop, and said that he told the purchasers as much. He described how he had made arrangements for K to meet "someone who knows about drugs", because K wanted "real weed in a bag", but that person never showed up to the arranged meeting: and also O had asked him for "weed" and A had texted O to say that "Ye I have a nu dealer". In his statement of 10 May, A dismissed that as a joke, saying that he had never had a dealer, new or old. At the end of that meeting, Mr & Mrs S were given a letter dated 27 April temporarily excluding A from the School (see paragraph 3 above).
36. A made a further statement on 10 May, largely to the same effect as his previous statements - and indicating the following, in relation to one approach for "weed" he received in January:

"I would point out that I never understood the term 'weed' to be anything other than a playful reference to the legal herbs that I had obtained earlier. I realise that 'weed' can mean cannabis but in the context of the discussion I understood it to be a joking reference to the legal herbs."

37. On 11 May, S and K were notified of fixed term exclusions for purchasing substances from A.
38. On the basis of this evidence, the Head Teacher decided permanently to exclude A, and the Panel decided to reject A's appeal against that exclusion.
39. Mr Gill submitted that the Panel erred in law in so doing, because the evidence relied upon should have been ignored as being of no weight because (i) it was obtained from oppressively and unfairly conducted interviews, and (ii) it was in any event fatally defective because of the inconsistencies within it - and much of it came from one pupil who had retracted his statement as to his belief that the material was cannabis (O), and two who had admitted lied about the Croydon venture (K and S).
40. With regard to the first subground, it has to be remembered that the Panel is not a criminal court. It properly remarked that the Police and Criminal Evidence Act 1984 did not apply to its proceedings (see paragraph 9 above). There is "no warrant for extending the special evidential requirements which govern criminal proceedings to school disciplinary proceedings and there is much to be said against the suggestion" (R (M) v Independent Appeal Panel, Governing Body and Head Teacher of CH School [2005] ELR 38 at [12] per Newman J).
41. In relation to the suggestion that the interviews of the pupils were oppressive, although there was the suggestion that O's initial statements were obtained during interviews that were oppressive (and he later retracted parts of what he had said), the main claims of oppressive conduct were made by A himself. For example he was made to sit in the foyer for several hours between interviews on 27 April. However, if the conduct of the teachers was oppressive - and the evidence of any oppression is scant and uncompelling - it certainly had little impact on A, who gave and maintained his version of events (particularly with regard to the true nature of the material supplied, and what he had led the purchasers to believe) throughout. There is no evidence that the procedure was rendered unfair in that particular regard.
42. In any event, more broadly, Mr Gill before me frankly accepted that, in respect of the manner in which the evidence was obtained, his submissions to me were all points that he raised before the Panel, which appears from the record of proceedings to have been the case. In its decision letter (paragraph 9 above), the Panel noted with serious concern the deficiencies in the School's investigation, including that it had not complied fully with the relevant guidance in, for example, not having a full note of interviews taken, a deficiency particularly relied upon by Mr Gill, who also criticised the School's failure to have parents or responsible adults notified and present at interviews with pupils at an earlier stage in the process. However, in the context of school exclusion proceedings, the Panel were entitled to acknowledge those defects, and still give the weight to the evidence of the pupils that they thought appropriate. Unfortunate as these deficiencies were, they fell far short of robbing the evidence obtained from the various pupils of all possible weight.
43. In relation to the evidence of the boys who purchased the material, again Mr Gill made the points to the Panel that he made to me - the inconsistencies, the statement of O suggesting that he did not believe the material was cannabis and the fact that evidence came from two boys (K and S) who had admitted that they had lied about a significant matter, namely the Croydon venture, which they had made up. However, the Panel were well-acquainted with evidence obtained from children, including the particular difficulties that attended such evidence, and the particular caution with which such evidence must be approached - and in their decision letter they acknowledged the problems with the evidence in this particular case. They had the benefit of hearing evidence from A. Looking at the record of proceedings and the post-hearing discussion of the Panel, there can be no real doubt that the Panel considered all of the procedural deficiencies and evidential difficulties, yet still came to the conclusion that, in their view, "there was strong weight of evidence" that the boys purchasing the material believed that they were buying cannabis.
44. As I have said, Mr Gill accepted that all of the points with regard to procedural fairness raised before me, he put squarely to the Panel, as I would have expected him to do. There is no evidence that they had not taken those submissions into account when making their factual findings, nor any evidence that they approached the evidence in any way incorrectly. Procedural deficiencies in themselves do not ground a judicial review, if they do not result in unfairness. Many such deficiencies are curable (R (DR) v Head Teacher and Governing Body of St George's Catholic School [2002] EWCA Civ 1822, especially at [43]). In this case, I am quite satisfied that the Panel properly took into account the procedural and evidential deficiencies Mr Gill identified, but nevertheless were satisfied that the evidence they considered reliable was sufficient to satisfy the balance of probabilities test in relation to the allegations as to what A had done. Disappointing as the findings by the Panel might be for A, they were findings which, on the evidence before them, the Panel were entitled to make.
45. For those reasons, the challenge on this ground fails.

Ground 2: Standard of Proof

46. In his original application, the Claimant's first ground was that, in applying the "balance of probabilities" standard of proof to all matters in school exclusion cases, regulation 7A of the 2002 Regulations infringed Article 6 of the European Convention on Human Rights. It was submitted that a school exclusion case fell within the ambit of a criminal matter for Article 6 purposes, and the standard of proof to be applied should consequently be the criminal standard, i.e. before responding by excluding a pupil, the relevant decision maker (head teacher, governing body or IAP) must be sure that the pupil did what he or she is alleged to have done.
47. That ground was not pursued before me, in the light of the recent decision of R (LG) v The Independent Appeal Panel for Tom Hood School [2009] EWHC 369 (Admin) ("LG"), in which Silber J found that proceedings before a panel were not either a "a determination of a criminal charge" or indeed "a determination of civil rights and obligations" for the purposes of Article 6, and consequently that article was not engaged: regulation 7A therefore does not infringe Article 6, and imposes a balance of probabilities standard of proof in school exclusion matters, including those before panels: and, even absent regulation 7A, the common law would in any event have applied the civil standard in such cases. As I understand it, permission to appeal that decision has been refused on paper by a single judge of the Court of Appeal and, although the unsuccessful claimant in that case is renewing the application to the full court, Mr Gill did not seek to pursue that argument in this court before me. I need therefore say nothing further about it, except to say that I find the reasoning of Silber J cogent and compelling.
48. However, Mr Gill did submit that the Panel had failed properly to apply the standard of proof in the circumstances of this case. That was put in a variety of ways, in a spectrum from something not far short of a submission that the criminal standard of proof should be directly applied, through shades of probability (e.g. that a "near certainty of fact" is required (Written Submissions, paragraph 25) or a variable standard of proof is required depending on "the seriousness of the subject matter and consequences etc" (Written Submissions, paragraph 31)), to a submission that, to satisfy the balance of probabilities in a case such as this "something like the approach adopted in the criminal courts will often… be necessary" (Written Submissions, paragraph 29). In any event, he submitted that, when considering whether A had done what he was alleged to have done, the Panel erred in applying a "simple" balance of probabilities.
49. I have some sympathy with Mr Gill - although more with the various head teachers, governors and IAPs who have to find facts and make determinations in exclusion cases every day - because the courts have not always spoken on this issue with the clearest unison voice. One reason for this is an apparent tendency to confuse, or at least make a correlative link between, seriousness of an allegation and its probability. There is no necessary or even logical connection between the two (see In re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35; [2008] 3 WLR 1 ("In re B") at [72] per Baroness Hale). The courts (and in particular the House of Lords recently) have made it clear beyond any doubt that there are only two standards of proof - balance of probabilities and the criminal standard - and, where the standard is balance of probabilities, then that "always means more likely than not" (Secretary of State for the Home Department v Rehman [2003] 1 AC 153 at [55] per Lord Hoffman: see also In re B at [13] per Lord Hoffman), "neither more nor less" (In re B at [70] per Baroness Hale).
50. In In re B, Baroness Hale, with her customary clarity and lucidity, strongly and compellingly advocates that, where the balance of probabilities is the relevant standard, "The simple balance of probabilities test should be applied" (see her discussion at [69]-[73], the quote coming from [73]). Of course, a particular case may require that especial care is taken in considering whether the available evidence is sufficient to satisfy the balance of probabilities hurdle, perhaps best put by Lord Carswell in In re D [2008] UKHL 33; [2008] 1 WLR 1499 at [28] (with whom the whole House agreed). Having considered some of the cases in which "misunderstandings" had arisen over the standard of proof, Lord Carswell said:

"It is recognised by these statements that a possible source of confusion is the failure to bear in mind with sufficient clarity the fact that in some contexts a court or tribunal has to look at the facts more critically or more anxiously than in others before it can be satisfied to the requisite standard. The standard itself is, however, finite and unvarying. Situations which make such heightened examination necessary may be the inherent unlikelihood of the occurrence taking place…, the seriousness of the allegations to be proved or, in some cases, the consequences which could flow from acceptance of proof of the relevant fact. The seriousness of the allegation requires no elaboration: a tribunal of fact will look closely into the facts grounding an allegation of fraud before accepting that it has been established. The seriousness of consequences is another facet of the same proposition: if it is alleged that a bank manager has committed a minor peculation, that could entail very serious consequences for his career, so making it less likely that he would risk doing such a thing. These are all matters of ordinary experience, requiring the application of good sense on the part of those who have to decide such issues. They do not require a different standard of proof or a specially cogent standard of evidence, merely appropriately careful consideration by the tribunal before it is satisfied of the matter which has to be established."

51. That I find to be the most helpful guidance as to the proper approach to be adopted by tribunals, courts, and other decision makers who, in making findings, have to apply the balance of probabilities standard of proof, often in cases which are potentially serious for at least one of the parties.
52. Mr Gill referred me to a number of other citations - some from the highest courts - which, with respect, I do not find as helpful. Some suggest that the balance of probabilities standard is not "finite and unvarying". For example, in R (S) v The Governing Body of YP School [2003] EWCA Civ 1306 Laws LJ said (at [4] and [5]), "[T]he degree of probability required equates with the criminal standard of proof…. [T]he head teacher and governors must be sure that the child has done what he has been accused of before so finding". Further, in A v Head Teacher and Governors of Lord Grey School [2006] UKHL 14; [2006] 2 AC 363 Lord Scott said (at [67]) that the sanction of expulsion should not be imposed upon a child "unless there is a fair certainty that the pupil is guilty of the offence". The earlier case was in fact heard before regulation 7A of the 2002 Regulations was introduced in 2004: but in any event insofar as these cases may suggest that the standard of proof in school exclusion cases is anything other than balance of probabilities, they have been disapproved and corrected by cases such as In re B and In re D. It is noteworthy that, in In re B, Lord Scott simply agreed with Baroness Hale, adding (at [17]) that he was "convinced also that any attempt by me to add anything of my own would no more than muddy the waters that she has left so limpid".
53. Further, I am especially reluctant to add anything that may detract from the simplicity of the balance of probabilities test as set out by Baroness Hale in In re B and Lord Carswell in In re D. Entirely for my own part, I do not find all of the comments made in earlier cases as to the correct approach to the application of the balance of probabilities test helpful despite sometimes expressly seeking to clarify the correct approach for the assistance of those who have to apply the civil burden of proof in various circumstances. For example, I was referred to the opinion of Lord Hoffman in In re B ( a case concerning a fact-hearing to determine whether the threshold criteria for care proceedings under section 31(2) of the Children Act were satisfied) in which, having made clear "that there is only one civil standard of proof and that is that the fact in issue more probably occurred than not", he continued (at [13]):

"… but I agree with the observation of Lord Steyn in [R (McCann) v Crown Court at Manchester at [37]], that clarity would be greatly enhanced if the courts said simply that although the proceedings were civil the nature of the particular issue involved made it appropriate to apply the criminal standard."

54. Of course, it may possibly be that if head teachers, governors and independent appeals panels were required to apply the criminal standard of proof in relation to allegations made against a pupil, that would be a simpler task than applying the civil standard of proof in the manner set out particularly by Lord Carswell in In re D - although I return to that question below (Paragraph 55). However, in relation to these matters, the correct standard of proof is not the criminal standard. Regulation 7A requires decision makers in this area to apply the civil standard (which, for the reasons set out by Silber J in LG, they would in any event be required to apply at common law). Applying the respective standards of proof to a particular allegation requires an entirely different intellectual and analytical exercise. In my respectful view, to suggest that the civil standard of proof equates to the criminal standard of proof in cases in which serious allegations are made or serious consequences possible is improperly and unhelpfully to elide seriousness with probability of a particular allegation, which is the very illogicality identified by Baroness Hale in In re B (see Paragraph 49 above).
55. In any event, I remain unconvinced that the proper application of the civil standard of proof in a case of serious allegations or consequences will necessarily be more difficult that applying the criminal standard. Where serious allegations are made, or serious consequences may flow from findings of fact in relation to allegations made, one would hope that any decision maker would exercise appropriately careful and anxious scrutiny of the evidence before making findings, whatever the relevant standard of proof (although of course on particular evidence he may more easily be able to say that the hurdle provided by the criminal standard - are you sure? - is not overcome). But even if the task may be a difficult one, in relation to exclusion of pupils from a school, Parliament has given the power to exclude to the head teacher (section 52(1) of the 2002 Act) subject to confirmation by the governing body (regulation 5 of the 2002 Regulations), and subject to an appeal to an IAP (regulation 6). IAPs are specialist bodies enjoined to hear appeals from exclusion decisions, and in particular make findings in relation to allegations often having heard evidence from young pupils and assessed their truthfulness. Whilst not judicial bodies, they have public law functions (see R v Head Teacher and Independent Appeal Committee of Dunraven School ex p B [2000] ELR 156 at pages 182F-183D): they have considerable experience in these matters and are worthy of substantial respect. Parliament has required the balance of probabilities test to apply to all issues of fact, whether found by head teacher, governing body or IAP (Regulation 7A). It must be assumed that Parliament not only wished the decision makers to apply the civil standard of proof, but also had confidence that they could properly do so within the ambit of school exclusions assigned to them.
56. Mr Gill submitted that the Panel in this case failed properly to apply the correct standard of proof. I cannot agree. The relevant Secretary of State's Guidance to which the Panel had to have regard is set out above (paragraphs 15-17). Mr Gill conceded that "the Guidance, so far as it goes, may not be incorrect" (Written Submissions, paragraph 24). That concession was well made. As by now will be evident, in my view the Guidance properly sets out both the standard of proof (i.e. the balance of probabilities test) and also the correct approach to that test in accordance with the guidance of Lord Carswell in In re D. There is appropriate reference to the importance of gathering and considering relevant evidence with particular care if the allegations are serious (see, e.g., 2007 Guidance, paragraphs 14, 22 and 144 (which paragraph particularly relates to appeal panels), quoted in paragraphs 15-17 above). Mr Gill's concession may have been faint: but my firm view is that the Guidance as a whole fairly and fully sets out the correct approach to the relevant decision makers' task.
57. There is no evidence that the Panel failed to take into account this Guidance. In the record of proceedings before the Panel, it is noted at the beginning of the hearing:

"Balance of proof and guidance given in relation to the burden of proof being a civil burden of proof and not a criminal burden of proof."

That makes clear that the panel had the correct standard of proof very much in mind. It is clear from the record of proceedings, and their decision latter of 18 September 2007, that they were acutely aware of the need to look at the evidence with particular case and scrutiny before making any findings of fact. As I have pointed out (see paragraphs 26 and following above), the Panel acknowledged that there were deficiencies in the way in which the investigation was conducted by the school and inconsistencies in the evidence, but nevertheless concluded on the crucial issue as they saw it:

"However, on balance the panel considered that there was a strong weight of evidence as to what substances the boys believed they were purchasing and despite some procedural difficulties that evidence was decisive".

58. I am quite satisfied that the Panel not only had the correct standard of proof in mind, but that they also applied that standard properly, giving the evidence before them appropriate careful scrutiny before making findings that the allegations they were considering were made were made good. There is simply no reason to believe the contrary.
59. I shall return to the application of this standard of proof to the evidence in relation to the allegations made against A, when I deal with Ground 4 (see paragraphs 68 and following below). However, for the reasons I have given, the Claimant has failed to make good Ground 2.

Ground 3: Reasons for Exclusion

60. Mr Gill relied upon two grounds focusing on the reasons for exclusion, which can conveniently be dealt with together, namely (i) the Panel decision was irrational because, on the evidence before them, no Panel could be properly satisfied that A had supplied illegal drugs on School premises, and (ii) the Panel took into account an irrelevant matter, namely the fact that A had taken another boy to a meeting off School premises to procure illegal drugs.
61. Each of these grounds is based upon the premise that the Head Teacher's reason for permanently excluding A was that he had, on School premises, dealt in illegal drugs, i.e. drugs controlled under the Misuse of Drugs Act 1971. Mr Gill submitted that, on the basis of the evidence before them, even on the balance of probabilities, no reasonable head teacher or panel could have found that the drugs A supplied to the other pupils were in fact controlled. Furthermore, it was common ground that, once the Head Teacher had given his reasons for excluding a pupil, those reasons could not be supplemented in any way (see paragraph 20 above). Therefore, on the basis that the Head Teacher excluded A for dealing in illegal drugs, the Panel was wrong to take into account his accepted conduct in arranging a meeting between a younger pupil and someone who knew about illegal drugs, off the school premises.
62. However, in my judgment that founding premise is false. Although I accept that the later paragraph quoted in paragraph 5 above could have been better drafted, in my view the Head Teacher's reasons for excluding A are set out in the first paragraph of his letter of 18 May 2007. Given the nature of the letter, one might expect to see the reasons for exclusion set out at the beginning : but in any event the Head Teacher makes it clear that he is excluding A "for" dealing substances believed to be illegal drugs and arranging a meeting for the purpose of procuring drugs. The reference in the later paragraph to the exclusion being "a response to a single breach of school discipline in dealing with forbidden substances on the school premises" does not, when read in context, derogate from the first paragraph: it merely indicates that the Head Teacher did not take into account earlier disciplinary issues that there had been with A, which had nothing to do with the supply of unauthorised drugs or other materials. The reference to "single breach" cannot on any view be referring to a single incident - as, even without the meeting, there was evidence of several separate incidents of A supplying material to other boys. In my view the letter of 18 May makes tolerably clear that the reasons for the permanent exclusion, which are both contributory to the decision, are that A had (i) dealt substances believed to be cannabis to other pupils, and (ii) arranged a meeting out of school for the purpose of procuring drugs and took a younger pupil with him.
63. Whilst of course the important document to construe is that letter of 18 May and the Head Teacher's reasons set out there, and that document has to be construed on its own terms, it comes as some comfort that that construction corresponds with the Head Teacher's true intention. That is clear from his internal report dated May 2007, which concludes:

"Boys have approached [A] for weed and have been sold things (spliffs and bags of leaf), taking it to be weed. When larger quantities have been asked for [A] has, on two occasions, made arrangements for this to happen. These last two sentences are the core reason why [A] deserves to be permanently excluded from [the School]."

64. More importantly, A was in fact under no misapprehension as to the allegations he faced. Mr S well understood that the reason A was excluded was because of his supply of "weed" to fellow pupils and that he "arranged a meeting to obtain drugs for a year 9 boy outside school" (Mr S's statement Undated but faxed by his solicitors on 11 September 2007 at paragraph 2: see also Mr S's Statement dated 13 December 2007 in support of these proceedings also at paragraph 2). In any event, there was no doubt that the reasons for the Head Teacher's decision included the arrangement of this meeting at the hearing before the Disciplinary Committee (see Minutes of Meeting of 14 June 2007 at paragraph 47), or at the hearing before the Panel (see Record of Proceedings at page 3, the exchange between Mr Gill and the Head Teacher). The issue was fully aired. Similarly, at the hearings it was clear that the other constituent part of the Head Teacher's reasoning was that the material supplied was believed by the purchasers to be cannabis (rather than that it positively was cannabis) (see Minutes of Disciplinary Committee Meeting of 14 June 2007 at paragraphs 43 and 47: and Record of Proceedings before the Panel at page 1, the Head Teacher's Case). Whilst of course it is the reasoning in the 18 May 2007 letter which matters - and I consider that letter clear - it is again a comfort to know that, in any event, A suffered neither misunderstanding nor any prejudice in fully putting his case in response.
65. In my view, the Head Teacher's reasons for excluding A were clear from his letter of 18 May 2007, namely that he had (i) dealt substances to other pupils believed by them to be cannabis, and (ii) arranged a meeting out of school for the purpose of procuring drugs and took a younger pupil with him. Each limb played an effective part in the decision permanently to exclude A. Consequently, A can have no complaint that the Panel took into account (ii): they were bound to do so. However, on a proper reading of the Head Teacher's reasons, I cannot accept Mr Edwards' submission that the two reasons he relied upon were independent, each being sufficient in the Head Teacher's mind to warrant permanent exclusion. With respect, that clearly was not the case. The Head Teacher took into account both aspects in deciding permanently to exclude A.
66. In relation to the claim that no reasonable panel could have found that the material supplied by A was a controlled substance, this fails for a somewhat simpler reason: the Panel made no such finding. I shall return to this when I come to deal with Grounds 4 and 5 (see paragraphs 68 and following below), but suffice it here to say that the Panel merely found that he had supplied material which the pupil purchasers believed to be cannabis. For the reason I have already given, that was a finding of fact open to the Panel to make on the evidence before them.
67. For those reasons, this ground also fails.

Grounds 4 and 5: Proportionality and Failure to Make Relevant Findings

68. These two grounds can appropriately be considered together.
69. As I have indicated, the Panel made no finding as to whether the material supplied by A was actually cannabis. As I understand it, at the time of their decision, the Panel did not consider that this was a relevant issue before them, because the exclusion was based upon A supplying material which, whatever its true nature, the purchasers believed was cannabis. The true nature of the material was not relevant to that issue.
70. However, upon early reflection, the Panel accepted that they had erred in failing to make that finding. I agree. Having made the primary findings of facts as to the allegations upon which the permanent exclusion was based (which did not require them to make a finding as to the true nature of the material, only as to the purchasers' belief as to what they were purchasing - a finding duly made by the Panel), the Panel were bound to consider whether the sanction was reasonable and proportionate (see Exclusions Guidance, paragraphs 146 and 148, and Drugs Guidance, paragraph 5.9; quoted in paragraphs 17 and 22 above). That was an exercise that required more than review of the Head Teacher's or Discipline Committee's view. They had to consider that issue de novo.
71. There is apparently a dispute between the parties (A and the School) as to what was said by the Head Teacher at the end of the hearing before the Panel. Although this is not recorded in the record of proceedings, Mr S and his legal representatives recollect that, in his closing comments to the Panel, "the Head teacher stated that he would not have taken the decision to exclude [A] permanently if he had thought the substances which [A] admitted to supplying on the school premises were merely herbal smoking substances" (Fisher Meredith LLP letters to the Panel's Solicitor dated 22 October 2007 page 2, and 14 November 2007 pages 1-2). The School do not accept that anything to this effect was said. However, two points should be made. First, whatever was said by the Head Teacher at the hearing, the Panel was bound to consider the issue of proportionality of response themselves. In their letter of 9 November 2007 to Fisher Meredith LLP, the Panel accept that they erred in law in not making a specific finding as to the true nature of the material supplied. It is clear from that concession that such a finding may have affected their view on whether permanent exclusion was an appropriate sanction for what they have found A did. It may have affected the exercise of their discretion in this regard. Second, in argument before me, Mr Edwards for the First Interested Party appeared to accept that, had the Head Teacher known (presumably, on the balance of probabilities) that the material was not cannabis, then his decision to exclude may have been different. It is also perhaps worthy of note that the School's Substance Abuse Policy appears to focus upon the supply of illegal drugs in relation to the possibility of permanent exclusion. Whilst that does not mean that such exclusion will never be appropriate in a case involving drugs that are not controlled, that certainly suggests that the true nature of any drugs dealt may be relevant to the response or sanction.
72. Mr Edwards for the First Interested Party (the Head Teacher and Governing Body of the School) submitted that the concession by the Panel was not well made for two reasons. First, he submitted that the true nature of the material was not relevant to the allegations made in respect of A upon which the sanction was based. That is true - but, as I have indicated, the true nature of the material might affect the proportionality of the response and the appropriate sanction, which is a separate issue. As to that, Mr Edwards submitted that the only role of the Panel was to consider whether the sanction imposed by the Head Teacher was reasonable and proportionate, and could only interfere if no head teacher could properly have imposed that sanction. However, that is not what the Guidance requires. Panels are cautioned against reinstating pupils without good reasons (Paragraph 146), and that, if the panel considers the sanction proportionate "it would be unusual for the panel to vary the governing body's decision" (also Paragraph 146). But those are with respect self-evident points. The Guidance is clear as to the principle, the full paragraphs being quoted at paragraph 17 above but the relevant extracts being as follows:

"146. Where the panel accept that the individual committed the offence in question, they must consider whether the response is proportionate….

148. In deciding on… whether or not to uphold an exclusion… the panel must balance the interest of the excluded pupil… against the interests of all the other members of the school community…."

73. That imposed upon the Panel an obligation to reconsider the issue afresh, and come to their own decision as to the appropriateness and proportionality of any response.
74. For those reasons, I consider the Panel's concession that they erred in law was entirely correct.
75. Although in the event it is immaterial to the outcome of this application, I was not otherwise convinced as to the merits of Mr Gill's challenge in relation to proportionality. He suggested that the Panel had considered only reasonableness and not proportionality. The concept of reasonableness can, of course, in appropriate circumstances subsume that of proportionality: but in any event, although paragraph (ii) of the section of the decision latter dated 18 September 2007 referred to permanent exclusion being "a reasonable response to [A's] behaviour", from the last paragraph on page 2 of the letter it is clear beyond peradventure that the Panel considered - and considered carefully - the issue of proportionality of response (see paragraphs 8-9 above). The Disciplinary Committee's representative at the Panel hearing apparently said that the matter which had caused the Committee the most concern was whether the Head Teacher had considered all options other than permanent exclusion: but, be that as it may, it was for the Panel to reconsider the issue afresh. There is again no reason to believe that they did not have full regard to the Secretary of State's Guidance in doing so. Other than on the basis of the Panel's concession, I would not have found the proportionality ground of challenge made good.

Relief

76. However, Mr Edwards submitted that, even if the Panel erred in the manner they conceded and I have found, relief in this court always being discretionary, I should deny the Claimant relief, on two grounds.
77. First, given the facts as found by the Panel, Mr Edwards submitted that no reasonable panel could come to any view on response other than permanently to exclude A. I cannot agree with that. Permanent exclusion is the most serious sanction which can be imposed on a pupil and the guidance makes clear that resort should be had to it only exceptionally. The Panel now accept that the true nature of the material supplied by A might have had an influence on the sanction they considered appropriate and, entirely properly, they consider that, after proper submissions, a new panel ought to make that finding and take whatever finding they do make into account when exercising their discretion on response. I agree. Certainly, whilst I am anxious not to give the Claimant false optimism (because this will be essentially a matter for the IAP in due course), I cannot say that the only possible proper sanction would be permanent exclusion.
78. Second, Mr Edwards submitted that to remit the matter back to another panel now, some two years after the relevant events, would be unfairly prejudicial to the School, particularly in the light of the fact that A (in reality, Mr & Mrs S) failed to avail themselves of the opportunity for the matter to be remitted in November 2007 when the Panel originally made their concession, despite having sought a rehearing as an alternative disposal in the pre-action protocol letter of 22 October 2007. Mr Gill responded with a submission that it would be A who would be unfairly prejudiced if the matter were to be reheard now, and in those circumstances the decision of the panel should simply be quashed and not remitted for rehearing.
79. I am afraid that I do not find either submission compelling. In relation to Mr Edwards' submission, I appreciate that Mr & Mrs S were not interested in a rehearing in November 2007 - but neither were the School, which threatened to judicially review any decision of the Panel to quash its own decision and remit the matter to another panel for hearing. Furthermore in relation to both submissions, whilst the passage of time makes all proceedings more difficult for parties with the memories of all fading, neither the School nor the Claimant produced any evidence of specific prejudice in terms of (e.g.) particular witnesses or documents now being unavailable.
80. Consequently, having found that the Panel erred in law, I find there is no good reason for denying the Claimant the relief offered by the Panel in November 2007. In the circumstances, I shall quash the Panel's decision of 18 September 2007, and remit the matter to the Defendant for A's appeal to be reconsidered by a fresh panel at an entirely de novo hearing.
81. I shall hear submissions upon the precise form of the order, including provision for costs, if they cannot be agreed.