Ellis v Merchant Taylors School

apparent bias by reason of the relationship between Mr Jeffery and Mr Cook (“bias”);

The panel failed to reconsider the headmaster’s decision to expel and merely decided whether the decision was within the ambit of the headmaster’s discretion (“reconsideration”);

there was a breach of natural justice because when the headmaster expelled Lloyd he had been made aware of other allegations against Lloyd which he did not give Lloyd an opportunity to answer (“natural justice”).

‘Lloyd admitted that drugs had been purchased from his car (the BMW referred to by [C]), the previous Friday evening but he said he had not sold them. He stated that he was not the only one in the car and that [B] was a passenger in the car. When asked where the cannabis came from Lloyd, whilst initially reluctant to identify [B], admitted purchasing the cannabis with [B] and [D], another Year 11 pupil, for £20 during half-term, for their own use. At this stage I concluded the interview with Lloyd Ellis until Mr Ellis was present. Lloyd Ellis then admitted that he had driven the car in January to meet [C] in Formby and but again said it wasn’t he who had sold the cannabis to [C] and that he was merely the driver. He did admit that the contact was via his phone but that he hadn’t spoken to [C] on the phone, rather he had handed it to [B] to make arrangements to sell the cannabis. When asked if anyone else was in the car Lloyd did not give a straight answer. The name of another pupil was suggested but Lloyd was adamant that that pupil had not purchased the drugs nor taken part in selling the drugs. Lloyd was keen to stress that the sale of cannabis from his car had occurred outside School grounds and therefore was not something for the School to concern itself with. He stressed that he had put on a sweatshirt to ensure that he was not in school uniform when the cannabis was sold to [C]. I told Lloyd that I did not agree, stressing that this sale occurred immediately outside the School grounds, that [C] was wearing school uniform and that by taking it on to the School bus, the incident was effectively “on” the School site. At this point I suspended Lloyd indefinitely until the conclusion of the investigation. Notes of the interviews were taken by the Deputy Headmaster… Lloyd did not show any contrition. Lloyd and his parents were concerned about where and how Lloyd would take his exams.”

Against this background I turn to the three grounds of appeal.

Bias

Actual bias is not and has never been alleged. When deciding whether or not there has been procedural impropriety because of apparent bias:

“the question is whether the fair-minded and informed observer having considered the facts would conclude that there was a real possibility that the tribunal was biased.”

In his witness statement, which was served on the claimants the day before the hearing began, Mr Jeffery had said that he had been asked whether he would act as the independent member of the review panel and he added:

“David and I…know each other socially… For the avoidance of doubt, I had not had any previous involvement in this matter and had not discussed the matter with David Cook.”

The extent to which he and Mr Cook knew each other socially was explored in cross-examination on behalf of the claimants. The upshot was that, apart from meetings at the headmaster’s conferences, the extent of their friendship was that they attended the same church about twice a month and when they met there usually they spoke with each other. Their wives knew each other, having had coffee a couple of times, and their children knew each other, but they did not regularly spend time together. On one occasion Mr Jeffery had asked Mr Cook for his advice on a professional matter.

On behalf of the appellant Mr Vaughan submitted that even though the point had not been pleaded the judge should have allowed it to be raised. In his skeleton argument on behalf of the respondent, Mr Oldham submitted that this was a case management decision which was readily understandable given the expedited procedure that had been adopted for the hearing, and that this court should not interfere with such a decision. He further submitted that the complaint of apparent bias was in any event unfounded.

In my judgment the sensible course is first to consider whether the fair-minded and informed observer would have concluded that there was a real possibility of bias because of the relationship between Mr Jeffery and Mr Cook. The starting point must be that such an observer would be well aware of the fact that the number of independent school head teachers is relatively small compared with many other professions and the fair-minded observer would not find it in the least surprising that two headmasters would know each other and would occasionally seek professional advice from each other and would meet and discuss matters of mutual professional interest at head teachers’ conferences. Indeed one of the purposes of such conferences is to foster closer relationships between members of the same profession.

Apart from the fact that they met at church, there was no evidence that Mr Jeffery and Mr Cook, as opposed to their wives and children, socialised even on the most occasional basis. The fact that members of the same church congregation would talk to each other in a friendly fashion when they met at the church would not, in my judgment, cause a fair-minded observer to think that there was a real possibility of bias. The note of the evidence of Mr Cook has him saying that he would not class Mr Jeffery as a close friend. He was “more of a colleague but possibly a friend.” These two headmasters knew each other professionally, but it is important to bear in mind that both were professionals. The fair minded observer would be satisfied that if Mr Jeffery, in his professional judgment, thought that his fellow professional had behaved unfairly or imposed an excessive punishment, then he would have felt it his professional duty to say so.

Mr Vaughan relied on the fact that, when cross-examined, Mr Jacks had said that had he known of the fact that Mr Jeffery and Mr Cook knew each other and met at church, then he would have disclosed it to the claimants. It does not follow from the fact that a lawyer (Mr Jacks was a retired solicitor) would err on the side of caution and disclose a particular matter that, if not disclosed, it would cause a fair-minded person to conclude that there was a real possibility of bias. In my judgment there is no substance in the complaint of apparent bias.

In what was described as an application for judicial review, annexed to the Particulars of Claim, it was contended that the governors’ review should have been a “re-hearing”. Paragraph 64 of the school’s Terms and Conditions says that the head’s decision to expel:

“Shall be subject to a Governors’ Review if requested by a Parent. Parents will be given a copy of the Review procedure current at the time.”

Paragraph 7 of the Governors’ Review Hearing Procedure, so far as relevant, says that:

“The panel will consider each of the questions raised by the Pupil or his/her Parents so far as relevant to:

7.1

Whether the facts of the case were sufficiently proved when the decision was taken to expel or remove the Pupil. The civil standard of proof, namely, “the balance of probability” will apply; and

7.2

Whether the sanction was warranted, that is, whether it was proportionate to the breach of discipline or the other events which are found to have occurred and to the legitimate aims of the Schools’ policy in that respect.”

In his skeleton argument Mr Vaughan submitted that it was the appellant’s case that the hearing before the governors:

“…is neither a re-hearing nor a review, the process they are obliged to undertake is best described as a re-assessment. What is required, however, is for that panel [to] make an independent decision, the governors are to reach their own conclusions as to whether the punishment handed down to Lloyd was proper, appropriate and commensurate with his offence.”

Mr Vaughan submitted that the governors had failed to reach an independent decision and what they had done was simply to review the headmaster’s decision in order to determine whether that was within the broad ambit of the headmaster’s discretion. In support of that submission, Mr Vaughan in his skeleton argument and in his oral submissions before us referred to various passages in the review panel’s decision letter. The difficulty with that submission is that the decision letter was not the whole of the evidence before HHJ Tetlow. Oral evidence was also given. In paragraph 30 of the judgment, having referred to certain passages from the decision letter which the judge said prima facie suggested independent consideration, the judge continued :

“If there is any doubt about the matter, I have now seen a part of the decision which was not promulgated, namely the panel decision recording their views expressed when the panel was deliberating on its own. That, clearly, to my mind, demonstrates independent consideration and, in particular, the discounting of immaterial matters introduced by the Headmaster.”

He returned to the discounting of immaterial matters in paragraph 36 of the judgment, in which he said:

“It is quite clear from the panel discussion which took place after the other parties had departed that the members considered that the Headmaster had confused the issue by introducing further evidence. It is apparent that the panel decided the matter on the basis of the two admitted incidents as the alternative, as appears from their decision, would have been to investigate the further matters, which would have meant Lloyd remained suspended in the meantime. The panel members independently were satisfied that the two incidents did indeed merit expulsion.”

The judge heard oral evidence from two members of the panel, Mr Jeffery and Mr Jacks, the chairman, who was one of the governors. Mr Jacks was cross-examined on the basis of the references in the decision letter, on which the claimants rely for the proposition that all that the governors had undertaken was to consider whether the headmaster’s decision was within the scope of the discretion conferred upon him.

However, this was not a case, as the cross-examination of Mr Jacks makes clear, where the governors were saying in their oral evidence that it was not for them to take their own independent view and they were only there to review the headmaster’s decision. Repeatedly in his evidence in cross examination, Mr Jacks agreed with the proposition that it was indeed for the governors to take their own independent view and he maintained that that was just what they had done. Thus we find this exchange during the course of his cross-examination:

“Q. What do you see the role of the [panel] being, having regard to paragraph 7.2 [of the procedure for governors review hearings]?

A.

I think…,once the facts were established, the review panel then has to see whether the sanction imposed by the Headmaster, namely expulsion, was warranted and whether it was proportionate.

…

Q: It has to be [an] independent decision of the panel, does it not?

A: Yes we have to, we have to, yes I think that is right.”

And then again in the course of one of his answers he said that the panel had:

“…accepted the Headmaster’s decision as reasonable and unbiased, so that is the panel saying, we have looked at this, we have looked at the balancing factors and I should have used the word proportionate. We have looked at the balancing factors. We think the Headmaster got it right….

…

Well, what we say is the Headmaster’s decision was reasonable unbiased.

Q: Yes, but it is not your decision, it’s the Headmaster’s decision.

A: No, it is our opinion on the Headmaster’s decision and in fact 7.2, it says whether the sanction imposed by the Headmaster was warranted and proportionate, and we are saying that is the decision Headmaster. We have looked at it. We think it is, now I did not use the word proportionate.”

In answer to further questions in cross-examination Mr Jacks confirmed:

“I said the panel’s function is to look at the headmaster’s decision to see whether it is warranted and proportionate.

Q: I thought we had agreed that demanded independent thought. Where is your independent thought in paragraph 22?

A: I think it is in paragraph 25.”

Thus the position on the evidence before the judge was that, whatever criticisms were made of any infelicities in the governors’ decision letter, the oral evidence from Mr Jacks was that the governors had indeed exercised their own independent judgment. Mr Vaughan submitted that the judge should have rejected that oral evidence. He did so notwithstanding his concession that there is nothing in any of the documents or the evidence to indicate that the governors themselves might have thought that expulsion was inappropriate, but felt constrained to conclude that expulsion was within the broad ambit of the discretion conferred upon the headmaster. The short answer to this ground of appeal is that the judge was fully entitled to accept Mr Jacks’ oral evidence that, whatever the precise terms of the governors’ decision letter, the governors had made their own independent decision.