J, R (on the application of) v Head Teacher of the School and College & Anor

1. MR JUSTICE DAVIS: I repeat my direction that nothing in any report of this judgment I give should be used to identify any of the individuals involved or the particular school concerned.

2. The applicant in this case is a boy, now aged 16, whom I will call N. He was a pupil at a particular school in Birmingham. Unfortunately, it appears that while at the school he got into an amount of trouble. He was on a number of occasions over the years subject to various exclusions. Reading from the summary in the bundle, on 3rd November 1999, he was excluded for one day for fighting. On 27th March 2000, he was excluded for one day for bringing into school an offensive weapon. On 21st October 2000, he was excluded for one day for hitting another student. There was subsequently an exclusion for threatening a member of staff with violence, an exclusion for discipline behaviour and another exclusion for abuse towards staff. On 16th October 2001, he was excluded for three days for assaulting a member of staff. On 7th November 2001, he was excluded for ten days for dangerous behaviour during science and for, as it was alleged, assaulting a female student. And on 10th and 13th March 2002, he was excluded for three days for rough horseplay, which resulted in an assault. The documentation indicates that N's mother has been at her wits' end and has done everything she can to try and help the school address the various problems that have arisen.

3. After 3rd October 2002, N was excluded again from the school. This was on the basis of an alleged indecent assault on a female pupil, whom I will call S, and who was in the sixth form. That alleged assault occurred on 3rd October 2002, and putting it in summary form, what was said was that N, who was in the company of another boy, a friend of his called P, indecently assaulted S by making comments about the size of her bottom and touching it, and also by touching her breasts. There was evidence that S was shocked by what had happened; and, at all events, S made a complaint, as a result of which N was excluded on 8th October 2002 by the Head Teacher for 15 days. That exclusion was subsequently extended and, on 5th November 2002, the temporary exclusion was changed by the Head Teacher into a permanent exclusion.

4. On 19th November 2002, the governing body of the school's Disciplinary Committee met and considered the circumstances. A number of persons were present at that meeting, and representatives on behalf of N were there, and evidence was given in an informal way. The governing body of the Disciplinary Committee upheld the Head Teacher's decision to exclude N.

5. As was his right, N appealed against his permanent exclusion, and his appeal came before the Birmingham City Council Exclusion Appeals Committee. N, at this stage, through his mother, had legal representation. Detailed grounds as to why the appeal was being made had been intimated in a carefully drawn letter before action, if it can be styled in that way, which indeed had been the subject of a detailed response by the Birmingham City Council.

6. The hearing took place on 13th December 2002. Present were representatives on behalf of N, as well as N himself and N's mother, and also P, who gave evidence. The hearing was attended by the Head Teacher, representing the school, but no other teachers were invited by the Head Teacher to attend in order to give evidence. However, there had previously been prepared (and these had been served on the representatives of N prior to the Appeal Panel hearing) a number of witness statements.

7. One of these statements was from S, the complainant. She described how she had gone to look for a particular teacher in a building at the school, and she stated that when she was on the top floor, N came up to her and felt her "bum", as she described it, and he kept on touching her by her breast from behind. She says he was trying to get her into a corner, and she said that she kept on walking as she felt very intimidated. According to that statement of S, N followed her all the way down the stairs saying crude and offensive things. N's friend (that is, it is to be inferred, P) according to her, was saying, "She can have you done for that". She then walked really fast towards a particular post, and spoke to Kerry, one of the school assistants, and stated that she was very frightened and angry, and told Kerry straight away.

8. Another witness statement was from Kerry. This was to this effect:

"[S] came over to Post 16 very upset, physically shaking. She said, 'I am not going over there again.' I asked her what was wrong and she told me what had happened.

"I took her to Martineau [a building at the school] to see Mr Hall [a teacher] and after we told Mr Hall [S] and I came out of his office and [N] was sitting on the seated area in the entrance hall. [S] tried to leave the building really fast, but Mr Hall asked her to look into the direction of [N] to confirm it was him. [S] said yes straight away and then left ..."

9. There was also a witness statement of Mr Hall. He described, amongst other things, what had been reported to him, and he also stated that there had been seven boys also there, but that they were detached from them, just chatting among themselves. Mr Hall, it might be added, was not a direct witness of the incident at all.

10. There was a further detailed witness statement from S, and there was also a statement from P, the friend of N, who as I have said attended before the Panel as a witness. This witness statement of P reads as follows:

"Me and [N] were on the top floor messing around and I tripped him up and he fell on a girl.

"She was walking along the corridor by the stairs.

"Me and [N] were pushing each other around. [N] fell towards the girl with his hands out. N touched her chest when he fell. He wasn't concerned, but was laughing.

"[N] spoke to the girl, but I am unsure what was said. I think he knew her. The girl looked shocked, she called him by name and told him to move. We all went downstairs and went our separate ways."

11. N was interviewed by Mr Hall, and there is a note of that. It is recorded that N denied saying offensive comments to S and it records that N said that he did not grab her by the backside, but that he had fallen up the stairs towards her, "tipped forward into her and fell forward hands first and contact was made with her breasts". The interview note also records that "[N] said he didn't follow her and said nothing to her as they went down the stairs".

12. A brief witness statement of N himself said:

"Me and [P] was walking to the top floor, he tripped me up and a girl called [S] I don't know her second name, I just know her from primary school. I accidentally felt her breast and I said sorry and that was it. You can ask [S]."

Those were the statements which had been given to N's representatives before the meeting.

13. Judging by the detailed note of what happened at the particular hearing before the Exclusion Appeals Committee, the hearing was quite lengthy. As I have said, N was legally represented at that meeting. All the witness statements were referred to, and clarification as to the identity of the makers of those statements was given. The Head Teacher herself addressed the Committee and explained her position. It is clear from the note, as indeed is reflected in letters written by N's solicitors before the hearing, that identification was being put in issue, and it was being said that there was insufficient evidence of identification. I have to say (at all events, in the context of an exclusion from school appeals matter) that seems a most surprising approach to have adopted, given that it was common ground that N had come into physical contact with S. It is important to stress that matters of this kind are not to be conducted as though they are some kind of formal criminal proceeding.

14. The position was fully set out and detailed submissions were made in a most thorough way by the representative of N. A submission was made, and clearly much pressed, that the school had not adduced sufficient evidence to make good their position that there had been an indecent assault on S. The position was that such a matter, as was common ground, had to be distinctly proved, given the serious nature of the allegation, and it had to be proof to the standard of distinct probability. All these points were fully debated, as is set out in the note of the meeting. As that note records, the Panel considered all the matters put before it, and concluded that it was distinctly more probable than not that N had been responsible for the incident: which was a serious breach of the school's discipline policy.

15. The actual decision of the Education Appeals Panel was communicated to N's mother by a letter of 17th December 2002. It records that the Panel had taken account of the representations made, which were to the effect that the incident had arisen when N and his friend had been messing around, as a result of which N had tripped and fallen against the female pupil accidentally touching her as he did so. It was also noted that the representation had been that the school had not provided sufficient evidence to show that it was distinctly more probable than not that N had been responsible for inappropriate sexual behaviour. It was acknowledged that this was a serious and important matter so far as N was concerned.

16. That seems to me to summarise in a nutshell precisely what the issue was. N's own case was, as in some respects confirmed by P, that he had indeed come into physical contact with S: but his case was that it was an accident. The position, on the other hand, of the school, based on what S said, was that this was a deliberate indecent assault. The letter went on to record the Panel's conclusion that it was distinctly more probable than not that N had been responsible for the incident, which was a serious breach of the school's discipline policy, and a permanent exclusion was justified.

17. N and his mother were aggrieved by that decision and aggrieved by the means by which it had been arrived at. They applied, accordingly, for judicial review. No point is taken that the claim form was not submitted as promptly as otherwise it might, on one view, have been thought to have been appropriate, and permission was granted by Goldring J.

18. The matter thus comes before me as a substantive application for judicial review. The essential grounds of complaint, as raised by Mr Hyams, counsel appearing on behalf N, are these, and I take this from his written argument:

"(1)Can an exclusion appeal committee such as the Defendant fairly decide an appeal when

(a) no person who witnessed either the incident for which the exclusion was imposed or its aftermath, or any person who investigated that incident, is present to give evidence and be questioned on behalf of the excluded pupil, and

(b) the person who does give evidence in support of the exclusion does not know what questions were asked and what answers were given, except as recorded by other persons?

"(2)If such an exclusion could theoretically be fair, was the exclusion of the Claimant fair in the circumstances?

"(3)Did the Defendant take into account an irrelevant factor in the form of the strength of [the Head Teacher's] belief in the cogency of the evidence?"

I can dispose of this third point relatively shortly. It is quite true that before the Appeals Committee the Head Teacher had stated her belief as to cogency of the evidence. That was, in one respect, relevant because it obviously went to explain why it was that the Head Teacher herself had thought that permanent exclusion was necessary. But it seems to me simply unarguable that in some way the Appeals Panel had wrongly taken into account the Head Teacher's own belief in the cogency of the evidence as in some way guiding, or perhaps even distorting, the Appeals Committee's own assessment of the evidence. Reading both the notes and the decision letter, it is plain, as I see it, that the Appeals Committee made its own assessment of the evidentiary materials before it; and there is nothing in the point that in some way they allowed themselves to take into account the Head Teacher's own belief in the cogency of that evidence as in any way wrongly informing the Appeals Committee's own decision.

19. Accordingly, that particular ground -- and I should record that Mr Hyams did not advance it by any means at the forefront of his argument -- fails.

20. The real complaint here is as to the overall fairness of the hearing. Mr Hyams submits that persons who carried out the investigation into S's allegations on 3rd October were not present in front of the Appeals Committee. They were not there to be asked questions -- for example, Kerry or Mr Hall or any other teacher. I should record, in making these points, that S herself was not present and did not give evidence before the Appeals Committee; but Mr Hyams rightly makes no complaint of that, given the status of S and her age, although it should be pointed out that S and indeed her mother had written letters expressing real concern if N were to be admitted back to the school. What Mr Hyams, in essence, complains about is that N's team were not in a position to ask questions of the teachers who might have been able to throw some light on to what S was saying, and to what her appearance and demeanour was after this alleged incident, and on the nature of their investigations. Had those persons been present and been questioned, that might have thrown up, says Mr Hyams, discrepancies and have undermined the case against N, which was that he had deliberately indecently assaulted S.

21. In that context, Mr Hyams referred me to the decision in R v Headteacher and Independent Appeal Committee of Dunraven School, ex parte B [2000] ELR 156, a decision of the Court of Appeal. That was a case on facts very different to the present. It involved an allegation against B that he had been involved in an incident of theft. A statement was apparently given by another pupil, D, implicating B: and subsequently, a written statement was put in by D, although, as appears from the summary of fact in the headnote, B did not see and was not apprised of D's written and oral statement concerning B's alleged involvement in the theft. In the course of giving his judgment, at page 190, Sedley LJ said this:

"It is a proposition too obvious to require authority that what fairness demands in a particular situation will depend on the circumstances. In relation to permanent exclusion from a grant-maintained school Parliament has made it clear -- as the common law would otherwise have done, given what is at stake in such cases -- that the pupil, through his or her parent, has a right to be heard. Such a right is worthless unless the parent knows in some adequate form what is being said against the child. Where what is being said has taken at least two different and arguably inconsistent forms, fairness will ordinarily require enough disclosure to reveal the inconsistency."

In the course of giving his judgment, Brooke LJ said this, at page 208 in the reports:

"While I would hate to see these hearings dominated by lawyers, there are certain minimum standards of fairness that have to be applied, and for the reasons given by Sedley LJ, with which I agree I agree, I would allow the appeal.

"I am aware that there are four matters that relate to B's conduct after he was permanently excluded which make it unlikely that the school will be over-eager to readmit him. He behaved in the way he did, however, after being severely punished for an offence which he maintains he did not commit, and when he was not told the nature of the case against him."

22. Mr Hyams rightly acknowledges that that was a decision on its own particular facts, which were facts very different from the present, as I have said, but he says that that case is a useful pointer as to the principles to be adopted.

23. It seems to me, however, applying the principles as laid down in the Dunraven case, that, on analysis, that really lends no support to Mr Hyams' arguments. Sedley LJ pointed out that the right to be heard "is worthless unless the parent knows in some adequate form what is being said against the child" and where what is being said has taken different and inconsistent forms, "fairness will ordinarily require enough disclosure to reveal the inconsistency". But in the present case, it cannot, in my judgment, be said that the parent here did not know what was being said against N. Here it was all too clear what was being said against N: namely, that he had indecently assaulted S. Witness statements had been put in clearly to identify that as being the issue. The whole issue was, as was known, had N indecently assaulted her, as the school was saying, or had it been a pure accident, as N was saying? It was not in dispute that he had physically made contact with S on that particular occasion. Nor can it be said that there were in existence, by 13th December 2002, inconsistent versions. There was no inconsistency in what had been proffered on behalf of the school. Really, what Mr Hyams' submissions came to was that these teachers and others should have been present to enable cross-examination to take place of them and to take place in order, possibly, to try and throw up some inconsistencies if possible. I do not think Mr Sheldon, counsel appearing on behalf of the respondent, was unjustified in saying that that in truth was a fishing expedition. The position is quite different therefore from Dunraven . Using the words of Brooke LJ, one can ask the question: was N told the nature of the case against him? To that, in my judgment, the answer is clear: yes, he was.

24. Moreover, it is to be noted that at no stage did N's representative at the hearing ask for an adjournment. If it was thought that in some way there was unfairness in these teachers not being present, one might query why that was not sought. Further, it was known in advance of the hearing who was going to be present, and no request was made, as I understand it, that these other teachers be present, nor did N himself seek to call anyone, such as Kerry for example, to support his case. In making those observations, I do not say that at all in any critical way. On the contrary, I express the view that it was right for N's representative not to seek an adjournment, given the position as it stood. The issue was clear. N was in a position to advance his case, as he did so by addressing the Panel, and by adducing the evidence of P. What happened, inevitably, was that N's representative, quite properly, sought to make much of the point that the case had not been proved to the appropriate standard just because these other teachers had not given evidence. In other words, quite properly, this particular absence of the teachers was being sought to be deployed to N's own advantage.

25. I can see nothing unfair, given those circumstances, in the procedures adopted by the Committee. It was a matter for the Committee to decide whether the evidence put before them was such as to make good the serious charge raised against N. I accept Mr Hyams' submission that even though no adjournment had been sought, it was open to the Committee to insist on an adjournment if it felt that more was needed. But the sort of witnesses that Mr Hyams identified as being appropriately present were, at best, witnesses of second hand. They were the teachers who had been told after the event about what had happened. They never saw anything of the incident itself. The persons who were present were S herself, who had given a statement, N, who gave a statement and gave evidence before the Committee, and P, who gave a statement and gave evidence before the Committee. It is, I think, of very considerable note that P's own evidence was that S had appeared "shocked". That accords precisely with the witness statements of Kerry and Mr Hall, in describing S's allegations after the event and what her appearance was.

26. In such circumstances, it seems to me that the Appeals Committee were entitled to adopt the procedure that they did and to proceed to determine the matter in the way that they did. The conclusion that they reached was that evidence as adduced before them did, to the appropriate distinct probability standard, satisfy them that the charge had been made good. That, in my judgment, was a conclusion which, on the evidence before them, they were entitled to reach. There was no procedural unfairness of any kind involved in that decision being so reached. N knew exactly the case that was being made against him, and had every opportunity to put his own version of events, as indeed he did. In those circumstances, as it seems to me, Mr Hyams' assertion that "we were left in the dark", with the greatest respect, is not a tenable submission. On the contrary, the real issue was there brightly illuminated before the Committee.

27. In those circumstances, and notwithstanding everything that Mr Hyams has urged on behalf of N, it seems to me that this application must fail.

28. I add only this. It was common ground that N was due to leave that particular school by the end of that academic year, which year has now come to an end. Accordingly, there could have been no practical possibility of N being readmitted, even had this application (and any subsequent re-decision by the Committee) succeeded. Nevertheless, it is, in my view, the case that N was entitled to pursue this application, permission having been granted, if only to seek to remove such stigma as may be thought to have resulted from the exclusion that has occurred. I would like, however, to record that I was told that N has taken two GCSEs in the meantime, and although he is in a position to give up further education, being now 16 years of age, he is proposing to continue his education at a college. I am glad to hear that and, obviously, I wish him the very best of luck in the future. I hope that these matters can now be put behind him.

29. But, in the result, this application itself fails.

30. MR HYAMS: I am grateful, my Lord. I obviously ask for a detailed assessment for public funding purposes.

31. MR JUSTICE DAVIS: You have your certificate do you, Mr Hyams?

32. MR HYAMS: I understand there is one on file.

33. MR JUSTICE DAVIS: I think you are fully entitled to that, Mr Hyams.

34. MR HYAMS: I am grateful.

35. MR SHELDON: My Lord, at the permission hearing, the issue of costs was left open. My instructions are not to pursue costs given the public funding, but that is on the understanding that no costs will be sought against us in respect of the permission application.

36. MR HYAMS: Of course not, my Lord.

37. MR JUSTICE DAVIS: That is very fair, Mr Sheldon. No order as to costs, in that case, apart from your assessment.

38. May I thank both counsel for their excellent submissions.