W (a minor) v The Independent Appeal Panel of London Borough of Wandsworth & Anor

LORD JUSTICE BUXTON: The claimant, who I will endeavour to refer to as "M", was a pupil at the Nightingale School in the London Borough of Wandsworth. The school had, as part of its disciplinary policy, a strict policy with regard to the carrying or possession of knives. In the Behaviour Management Policy of the school, which it is not suggested was not well-known to all those concerned, including M, the following statement is made, this is under the headings of when exclusion may be used:

M was indeed excluded permanently, first of all by a decision of the Headmaster, and then upheld by the school Disciplinary Panel. He was excluded because he had been in possession of a knife on the school premises.

The decision of the school Disciplinary Panel, that is to say a Panel composed of governors of the school, was upheld by the effective defendant in these proceedings, the Independent Appeal Panel of the London Borough of Wandsworth.

It is necessary to say something briefly about that Panel. It is specifically constituted to hear appeals in matters of this sort. It consists of people who, although experienced in education or related matters, have no connection with the school in respect of which the dispute arises.

We are told in this case that the Chair of the Panel was someone who was experienced in social work. What I think is normally called a lay member of the Panel was in fact a qualified lawyer, although we do not know in what capacity. The third member was the Head Teacher of another school.

This incident arose regrettably as long ago as the 7th October 2003. An incident report was made by the lady who is the school secretary, a Ms Siobhan Burford, saying that at about 3 o'clock on that day, M came into the reception area where Ms Burford was in attendance and asked to use the telephone.

Whilst he was using the telephone, Ms Burford noted that M was, in her words, "opening up what I could see was a knife". She, being well aware of the school's policy, asked him to give it to her, but he denied having it. She said she would have to report the matter to the Head Teacher, Mr Murphy. M then said he was going to throw the knife out of the reception area, and pretended to do so. He was again asked to hand over the knife, but he said that he had disposed of it.

M's tutor was a lady called Ms Vivien Wood. She reported that she and M had come down the stairs to the main reception area at about the time of this incident with Ms Burford. But then at about 10 past 3 M came to the staffroom wanting to see her, told her that he had picked up a knife at the bottom of the stairs and that he wanted to hand it in. He showed her where he said he had picked it up. She challenged him, saying that she had not seen him do so when they were coming down the stairs together. They then went together to Ms Burford's office, where he did indeed hand the knife to her.

The incident was reported to Mr Murphy, the Head Teacher, who told M to leave the premises. Mr Murphy had a conversation with M's mother in which initially he took the view that permanent exclusion might not be required in that case. However in evidence that he gave in these proceedings, evidence the status of which I shall have to revert to, he said that he had revised his view, partly after looking at CCTV footage.

M gave an account in writing of his view of the position to the Disciplinary Panel. His document formed part of the dossier, if I may so describe it, that was before the Independent Appeal Panel. He said this:

M then goes on in the statement to express in what, if I may be permitted to say so, are powerful terms the disadvantage at which he thinks himself to be on various scores, and what he conceives to be the unreasonableness of imposing the penalty of permanent exclusion for this particular incident.

The governors' Disciplinary Panel was attended both by M and by his mother. The school wrote to the mother immediately after the hearing on the 17th October 2003, saying that all the available evidence had been considered. That included statements from Mr Murphy, Ms Wood and Ms Burford; and of course, the statement made by M. The letter then said this:

It was noted there that an appeal could be made against that decision to the Independent Appeal Panel. Information was given as to how to go about that; and also it was helpfully indicated that the parent could contact the Advisory Centre for Education, which could give help and support if it was required.

As I have said, the Disciplinary Panel was attended both by M and by his mother. At the appeal to the Independent Appeal Panel, though there was no oral evidence, as it were in chief, questions were asked certainly of the Headmaster who attended. Ms Wood and Ms Burford did not attend. M's mother attended on that occasion and not only took an active part in the proceedings, but also made submissions to the Panel; and the Chair of the Panel in subsequent evidence paid a proper tribute to the concern that M's mother had expressed about his position, and the care that she was taking with regard to the difficulties that her son found himself in.

The decision of the Disciplinary Panel was conveyed to M's mother in a letter dated the 24th November 2003, which I shall refer to as "the decision letter". That referred to representations made by M's mother and by Mr Murphy, the Head Teacher, and said that the Panel had read and carefully considered the case papers circulated to the parties before the hearing. It referred to M's mother's submissions or evidence, and then said this:

It was then recorded that the Panel had considered the Head Teacher's account of the general education provision made for M; and then the letter said this:

The letter then went on to say that in those circumstances the Panel had to consider whether permanent exclusion was a "reasonable response to M's actions", and specifically stated that, in addressing that question, the Panel took into account guidance given by the Department of Education and Skills.

The letter then went on to refer to the Behaviour Management Policy, already quoted, and said that in its view consideration had to be given to the interests of the school, in the establishment and maintenance of discipline, and also to safeguard the welfare of pupils and members of staff.

In all those circumstances, it was decided unanimously that the decision of the Disciplinary Panel had been correct and that it be upheld. That letter, as I say, was written by the clerk to the Appeal Panel who, as we were told, is an experienced employee of Wandsworth Council.

Permission was sought to move for judicial review, the matter with which we are now engaged, largely on the basis that the decision, as set out in the letter, did not on its face appear to have been taken on a rational or supportable basis. That point was thought to be arguable by Mr Justice Collins, who granted permission for these proceedings to go forward. That was largely, or I think possibly exclusively, looking at the decision letter.

Being conscious that the decision letter was, in the view of the learned judge, at least arguably inadequate to explain the decision, the Local Authority, acting on behalf of the Independent Panel filed a significant amount of further evidence, principally but not exclusively evidence by the Chair of the Independent Panel, a Ms Mathias, which gave a good deal of further detail about the reasoning process of the Panel and about the factual conclusions that, according to Ms Mathias, it had reached.

Although a number of arguments were ventilated at an earlier stage of the proceedings, by the time that the matter came for substantive hearing before Mr Justice Owen the grounds of challenge had effectively been narrowed down to two, which the judge explained in paragraphs 23 and 24 of his judgment, which I will set out. The redrafted ground of challenge to the decision by the IAP is that:

The judge then went on in paragraph 24 of his judgment to explain a further alternative submission in these terms:

As to that first ground of challenge, that is to say that the matter was decided solely on the basis of the School Behaviour Policy without any regard to proportionality or reason, the judge rejected that conclusion in a passage in paragraphs 25 to 29 of his judgment. In that determination he referred to and relied on the witness statement of Ms Mathias. Whether he should have done that, or could safely do that, is a matter that is in contention in this appeal and to which I shall have to return.

But save for that point I did not understand any other complaint to be made about that part of the judge's findings. And in any event, subject, as I say, to the question of whether he could safely refer to what Ms Mathias had said, I do not think that any ground could be adduced to undermine the judge's crucial conclusion.

I turn then to what was originally the second point, that has loomed very large in the argument in this appeal; that is to say, the contention that it has not been demonstrated that the Independent Appeal Panel made the necessary findings of fact to ground its decision. If of course it did not find the facts that based its conclusion, then no doubt that would be a ground of irrationality about which complaint could properly be made.

This argument devolves very largely on the question of the status of the evidence adduced by the Panel, and more particularly that of Ms Mathias. As I understand the way in which the case developed, it was originally contended, that that evidence should not be admitted at all, because it is an ex post facto explanation of what the Panel did, and effectively the Panel's decision should stand or fall on the basis of its formal decision letter, already read. Further elucidation of that was simply not admissible.

The judge did not accept that argument. He said in paragraph 22 of his judgment that it was in his view unobjectionable to advance evidence directed to inform the court about what had actually happened, as opposed to seeking to rationalise or justify a decision made on one ground by adducing another ground that might have been used but in fact was not.

Since the admissibility of this evidence, in the sense of whether the court can look at it, is not now in issue, it is not necessary formally to rule upon that conclusion of the judge. But for my part I would respectfully say that he was entirely right to take that view. The warnings about admissibility of ex post facto evidence, to be found most conspicuously in the case of Ermakov are indeed principally directed at rationalisation or attempted explanation (usually by an official, rather than by members of the Committee), when there is no evidence that the Committee in fact had that matter in mind.

Ms Brown however opens up quite a different front, which she also adduced in front of the judge. She says that the evidence, although looked at by the judge, was on its face and in the circumstances unreliable, and should not have been relied on by him.

That contention lies at the centre of this appeal, because in her evidence Ms Mathias gave a detailed and circumstantial account of what had happened at the Panel over which she presided, and what the reasons of the members of the Panel were for reaching the conclusion that they did.

It is not necessary to set out all of that. But in order to do justice to the argument that we have heard, it is necessary to quote some of it. In doing that, I readily acknowledge that in Ms Mathias's statement there is a certain amount of repetition. That is because she was principally answering very voluminous evidence that had been filed on behalf of M, which itself did not follow any clearly defined course. One also has to remember that Ms Mathias is a lay person and does not draft an affidavit in the way that perhaps a lawyer would. All that said, however, she was quite clear about what she wanted to tell the court. In paragraph 5, she said this:

And then in paragraph 7, answering a contention in M's evidence that permanent exclusion was a disproportionate sanction, Ms Mathias said this:

Then a little further on, answering another part of the evidence, at paragraph 8b Ms Mathias reinforced the point that she had just made by saying this:

And then again, directing herself to another part of the evidence, and therefore going back over points already made, she said at paragraph 9e:

On the basis of that evidence, the judge found this in paragraph 34 of his judgment:

It is clear from that that the judge indeed based himself on the evidence that he had from Ms Mathias. In this appeal it is accepted that Ms Mathias was a honest witness, but she is said to be unreliable; in particular, because one should look critically at evidence given ex post facto. However, the judge was well aware of that, and that is indeed what he did.

I turn to paragraphs 37 and 38 of the judgment. In paragraph 37, the judge addressed a point made by Ms Brown before him, and repeated at some length before us, that there had been what was described before the judge as a procedural impropriety, in that whereas in her first witness statement Ms Mathias had said that she had had no "input" into the decision letter written by Mr Couchman, in her second witness statement, meeting a complaint that the procedure was unusual, she said having looked at contemporary exchange of emails that she had indeed been sent the letter by Mr Couchman and had approved its contents.

Now Ms Brown said that those two statements were unreconcilable. It was simply untrue, though she did not put it quite like this, that Ms Mathias had had no input into the letter. I do not agree, any more than the judge agreed. The process is quite clear. There is a significant difference between a member of a Committee whose decisions are drafted for her by an official having an "input" into the letter, and simply approving the letter when it is put before her. What Ms Mathias made plain in her witness statement was that she could well wish that the letter in the event had been more detailed; and it was that detail that she sought to supply in the witness statements.

The judge then went on, in paragraph 38, to address the general importance of this point in these terms:

The judge therefore, as I say, did approach this evidence with caution. But Ms Brown seizes on that last phrase of the judge that support for Ms Mathias's evidence is to be found in the contemporaneous notes; that is to say, the manuscript notes taken by Mr Couchman in the course of the hearing. She says that the notes, far from supporting Ms Mathias's evidence, are inconsistent with it, and demonstrate therefore that the judge was wrong in finding support for Ms Mathias in the notes; and therefore wrong in assuming that he could safely act upon what Ms Mathias said.

The part of the contemporaneous notes to which our attention is particularly drawn is the last section, headed "decision". There are set out a series of seven points, summarising the decision. They read as follows, and I put numbers to them, though they are not numbered in the original:

And then there is a further note:

The part of his judgment in which the judge refers to the notes in context of Ms Mathias's evidence is to be found at paragraphs 30 to 33, where he is dealing with the alternative issue currently under review in this judgment as to whether the IAP had failed to make appropriate findings of fact. The critical questions identified by the judge were first whether M had brought the knife into school or whether he had found it; and if the latter, whether he was intending to hand it in. The judge said this at paragraph 31, as to the first question:

And the judge was quite right to find that the notes of fact supported that conclusion. If we revert to line 6 of the notes and (i), the note, albeit brief, says:

The judge was entirely justified in saying that that note supported what he had been told by Ms Mathias. Of course, it does not put it in the same terms, and it puts it in a shorthand way that is not wholly surprising, granted that Mr Couchman was having to express, while it was going on, the no doubt ambulatory discussion between the members. But to say that it is inconsistent with Ms Mathias's evidence is simply wrong.

At paragraph 32 as to the second ground, the judge said this:

And then he quoted a passage that bears repetition from Ms Mathias's evidence --

The judge went on in paragraph 33:

And indeed they do bear that out, because if we go back to (ii) of sentence 6 in the decision, that reads:

That shows again therefore that the judge was, again, absolutely right to think that the note, unsatisfactory though it may have been when standing on its own, did not undermine Ms Mathias's evidence.

It was noticeable in this case that the judge's reasoning and his decision does not appear to have been referred to at all in the grounds of appeal or in the skeleton argument. We were in effect invited in those documents to start from scratch in a critical review of the reliability of Ms Mathias's evidence when viewed against the contemporaneous documents. With some reluctance, that is the exercise upon which the court has embarked, as indeed the judge was invited to embark upon it. It has had this benefit however, that after this evidence has been analysed with the benefit of detailed submissions from Ms Brown, it is absolutely clear to me that there is nothing in this complaint at all and that the judge was entirely justified in reaching the conclusion that he did upon it.

I turn to the second ground, of irrationality, which the judge dealt with in paragraph 35 of his judgment in these terms:

The judge then went on to say that that view was borne out by reference to the guidance by the Secretary of State; guidance to which I shall have to revert at the end of this judgment.

That finding by the judge is completely unappealable. There was ample material upon which this Panel, expert as it is, and giving detailed attention to the facts, could conclude that it was justified in upholding the exclusion. It is quite clear from Ms Mathias's evidence that that was a matter of great anxiety, as she has explained.

There was no possible way in which the judge could go behind that, once it was established that the Panel had indeed made findings of fact upon which its conclusion was based; and there is certainly no ground upon which this court can interfere.

I turn to the last point which is the judge's failure, it is said, to deal with an issue that arose about the Secretary of State's guidance. It is accepted on all sides that guidance given by the Secretary of State is something that should weigh with people who have to make the very difficult decisions that the school had to make in this case.

The first part of that guidance stresses the availability, to put it at its lowest, to educational institutions of the ability to exclude people who carry knives. It then goes on to address certain general considerations; in particular in relation to this case, those of pupils with special educational needs. Like all of the children at this school, M was the recipient of a Statement of Special Educational Needs and therefore fell into this category. The guidance says in paragraph 13.2:

He then goes on to address other considerations that arise in such cases, and how they should be managed, should exclusion in fact take place.

The complaint is that although it was alleged that the Independent Appeal Panel had not addressed, certainly had not adequately addressed, that part of the guidance, the judge made no finding on that point.

The history of the matter is this. This complaint was not raised in the extensive statement of grounds that supported the application for judicial review. It did not emerge until the last paragraph, paragraph 42, of the skeleton argument prepared on behalf of the appellant for the hearing of the judicial review application. That skeleton was dated the 12th May 2004, the hearing being the 28th May. It is not addressed either in Ms Mathias's first witness statement, which of course was written on the basis of the grounds of appeal and therefore did not appreciate that this was an issue; nor is it addressed in the second witness statement that she made on, I think, the 18th May, in order principally to meet the complaint already discussed about her connection with Mr Couchman's writing of the decision letter.

It is entirely understandable, indeed inevitable, that it did not appear in her first witness statement; and in my view, it is understandable also that this point was not addressed by her immediately the skeleton argument was produced, in view of the lack of attention paid to the point in the previous preparation of the case.

What apparently happened at the hearing below was that counsel for the Panel pointed out that this matter had not been, in technical terms, pleaded; and suggested that if it was a separate ground, it ought to be set out as such. We are told by Ms Brown that the judge made no finding on that submission. She therefore understood that the point was still in issue.

I will proceed on that basis; and proceed on the basis that the judge indeed did not address the point that was before him. I am however quite clear, looking at it now and looking at it for the first time in this court, that the Panel was and must have been well aware of this point.

There are a number of matters that point inevitably in that direction. First of all, the decision letter, as we have seen, said that the Panel took into account the Department of Education and Skills' guidance in related circulars. Ms Brown sought to suggest that that was incorrect; principally because in the contemporaneous notes, no specific reference was made to that point. But the decision letter was written on the next working day after the hearing. Unless Mr Couchman had gratuitously put into the letter something that was simply not true, it must have been the case that the guidance was before the Panel.

Next, we in fact know that the Panel's attention was directly drawn to the position of M, so far as special educational needs is concerned, and to this very circular. That is made plain in the first witness statement of M's mother, in which she describes her attendance at the Panel, attendance that as we have noted the Chair of the Panel found to be helpful; and first asked Mr Murphy, the headmaster, questions about the school's Behaviour Policy. She then says this, in paragraph 54:

The Panel therefore, even if it (almost inconceivably) was not aware of this guidance already, had it forcefully put in front of it in the specific context of this young man. It was also no doubt aware of the fact that all the pupils of this school, including M, had such Statements.

When we turn back to the note of the proceedings, there being no evidence from Ms Mathias on this, it will be recalled that the final entry on the note reads:

Ms Brown says that cannot be a reference to the circular or to Statements of special education needs, because that policy speaks in terms of "most exceptional circumstances" not "special circumstances".

I am afraid I have to say that that submission reflects some of the inappropriately detailed analysis of the documents that has occurred in this case. Looking at the matter in the round, particularly against the background of the information that we do have about what happened at this Panel hearing, I have not the slightest doubt that when that observation was recorded, it recorded a finding that, with the Department of Education's circular well in mind, they could not rely on the considerations in that circular in order to depart from the decision that they had reached.

Accordingly, I am quite satisfied that if the judge had addressed this point, and I well understand why he did not, he would have reached the conclusion that I have just set out.

I appreciate that the dismissal of this appeal will be disappointing to M, and possibly more disappointing to his mother. They may both take comfort from the fact that this incident has now been reviewed by four judges of the High Court and four Lord Justices of Appeal. I hope that is some indication of the seriousness with which the judicial structure of this country treats matters affecting the exclusion of pupils from schools.

MR JUSTICE LLOYD: I agree. Simply as a footnote to my Lord's judgment when he was dealing with the last ground of appeal, he referred to the hearing as having taken place on the 28th May. I think I am right in saying that was the date of on which judgment was delivered. The hearing was on the 20th May; so there was even less time between Ms Brown's skeleton as first instance and the hearing. As I say, I would also dismiss this appeal.

LORD JUSTICE POTTER: I too agree. The appeal will therefore be dismissed.