H (A Minor), R (on the application of) v Independent Appeal Panel For Y College

The claimant challenges the decision of the Appeal Panel dated 16^th December 2003 upholding an earlier decision by the claimant’s school to permanently exclude him from his school.

The reasons for the school’s permanent exclusion of the claimant were set out in a letter dated 24^th October 2003. The headteacher wrote as follows:-

“Reason for the Exclusion

As you know from my earlier letter, [H] was involved in letting off a firework in school. Until we met on Wednesday, he had repeatedly claimed that he knew absolutely nothing of the firework. He said in our interview, however, that he had seen the firework and that he had held the fuse. He claimed, however, that he thought it was only a fuse. I am afraid I do not believe this. He agreed that he had supplied the matches”.

In the balance of the letter, the headteacher went on to point out that the firework was dangerously close to other pupils at the school and that a stampede occurred when the firework went off. He noted the persistent denials on the part of H and his refusal to co-operate with the school in resolving the matter. He expressed the view that he could not be confident, in the absence of any acceptance of responsibility by H, that the action would not be repeated. Nor could he be satisfied that H understood the seriousness of the threat to the welfare and safety of other pupils.

At the Disciplinary Hearing on 17^th November 2003 H admitted that he had cupped his hands over the fuse when P (another pupil) lit it.

The appeal to the defendant Panel was heard on 16^th December 2003. The decision of the Panel was communicated by letter dated 18^th December 2003 and elaborated upon after receipt of a letter from the claimant’s advisers in a letter dated 9^th January 2004.

The letter dated 18^th December 2003 stated:-

“The Panel’s decision was taken after the Members had considered, very carefully, all of the documentary and oral evidence that was presented to them, by all of the parties concerned at the hearing last Tuesday, in particular that given by [H], your legal representative Mr Lawson and the College representatives.

The Panel took particular note of the detailed account given by the College’s Headteacher, who advised that he was in the near vicinity when the fuse/firework was ignited. He also advised of the investigations that he conducted, both immediately following the incident and subsequently, to establish who had been involved.

The Panel also took note of the statements, given by [H] and by others, some of which were at variance with each other in relation to [H’s] involvement in lighting the fuse/firework and precisely where he was at the time the ignition happened. [H’s] statement admitting that he supplied matches, which it is believed were used to light the fuse/firework, was noted, as indeed was his statement, made on two separate occasions, to the effect that he ‘cupped’ his hands around the match as it was lit – albeit acknowledging that [H] maintains this latter statement was made ‘under duress’.

The Panel were made fully aware of the importance attached by the College to the safety of its pupils and its staff and of the action taken following previous incidents when fireworks had been ignited on site and nearby. The attention of the Panel was drawn, in particular, to a formal Notice displayed on College premises, the contents of which had also been drawn orally by the Headteacher and members of staff to the attention of pupils. The Notice referred to a previous incident; that fireworks were not permitted on site; and the consequences for pupils who ignored the Notice. The relevant sections in the College’s Anti-Bullying/Behaviour policies were also drawn to the attention of the Panel.

The Panel were advised that [H’s] school record did not show any previous behavioural incidents and that he was considered to be a promising student who was expected to do well in his GCSEs. The Panel noted, with regret, that he was experiencing some home difficulties.

Your legal representative drew the attention of the Panel to recent Court of Appeal case (of R(S) v The Governing Body of YP School). The Panel took this into account in making their decision.

Having taken all of the relevant factors into account the Panel decided, unanimously, that they were sure [H] was responsible for the actions described by the College. By the same unanimous decision, the Panel also decided that the decision of the Disciplinary Committee of the College was the correct one and would be upheld”.

The solicitors’ letter in response asserted that the Panel had discounted evidence given by H and misunderstood the precise effect of H’s evidence. Further, that it had preferred the evidence of two anonymous witnesses contrary to good legal principle. It also went on to point out that the Panel’s reasons for deciding that the decision to exclude was correct and appropriate were not evident from the decision letter. It suggested, therefore, that the decision of the Panel was both unlawful and unreasonable.

In its letter in response, dated 9^th January 2004, the Panel, by its Clerk, Mr Richard Couchman, pointed out that the Panel had not misunderstood the evidence in the way suggested and pointed out that the Panel had taken into account both H’s evidence and the written statements of two witnesses who had maintained that H was not involved further than supplying the matches. The letter went on to point out that:-

“They weighed this evidence against the evidence presented by the College, including that contained in the written statements of the two pupils who did not wish to reveal their identities, and made their own assessment based on the totality of the evidence”.

So far as the contention that the Panel’s reasons were not sufficient, the letter stated:

“The letter makes clear that the Panel took all related factors into account and I drew specific attention to documentary and oral evidence that was considered; to the many questions that were asked and the answers that were given at the hearing; and the great importance that the Headteacher and the College give to the safety of its pupils and staff. I also mentioned that the Panel was made aware of the relevant sections of the College’s Anti-Bullying/Behaviour policies which, of course, includes specific reference to the potential consequences for pupils who are involved in a single serious incident of violent or dangerous behaviour. Having taken all these factors into account, the Panel decided that H was responsible for the actions described by the College and that the serious nature of the incident justified permanent exclusion”.

Mr Lawson, counsel for the claimant, in his able submissions to the court, identified some four areas of complaint. First he submitted that, having regard to the conflict of evidence and the variety of accounts as to the precise involvement of the claimant in the letting off of the firework, the Panel were obliged to come to a specific conclusion about the precise way in which he was involved in the letting off of the firework. He submitted that the approach of the Panel fell short of that which was required by law for they had failed to resolve contradictions, failed to approach anonymous statements with the degree of caution which was required of them and adopted a less than vigorous approach to the requirement for more evidence in a case where the evidence was not all one way. Secondly he submitted that the Panel had erred in law in adopting the wrong standard of proof in their approach to all the evidence. Thirdly he submitted that the punishment of permanent exclusion was disproportionate alternatively, if proportionality was not the correct test, was irrational. Fourthly he submitted that the reasons which had been given were inadequate.

The extent to which it will be necessary for a fact-finding body to reach specific conclusions on contradictory evidence will depend upon the nature, purpose and subject matter of the inquiry under investigation. Frequently the resolution of all the contradictions which the evidence has disclosed will not be necessary. The true nature and purpose of the inquiry which was before the Panel was, in my judgment, no more specific than an investigation into whether the claimant was involved in the letting off of a firework in a covered walkway at the school. In particular, in a confined space, where any number of pupils might be present, and where it was said the letting off of a firework would give rise to serious risk to the health and safety of other pupils, not simply from the firework itself but from the consequences of the stampede or running which would be likely to occur in response to the explosion. The context and purpose of the inquiry concerned the head teacher’s decision as set out in the letter dated 24^th October 2003. I reject the submission that it was necessary for the purposes of determining whether the claimant was involved in the letting off of the firework for the Panel to reach a conclusion as to the precise way in which he had been involved. This is so because the contradictions to which reference has been made did not in themselves contradict his involvement, but simply the precise manner of his involvement. That is not to say that where there are a number of options arising on the evidence in connection with the nature of a pupil’s involvement that if it were relevant, for example, for the purposes of deciding on the appropriate penalty it might not be necessary for a specific conclusion to be reached. But on the issue which on this occasion had to be resolved, whether H was involved in letting off a firework in school, by holding the firework or holding the matches or cupping his hands over the fuse or holding the fuse, was neither here nor there to the central issue of fact. It is manifest that the Panel must have been satisfied, having regard to each of those actions which could amount to his involvement, that he was involved in one or other of those ways. But owing to developments at the hearing, the Court’s consideration must go further.

In the course of his argument, Mr Lawson invited the Court to consider the notes of the Clerk to the Panel, Mr Couchman. Although they are not verbatim notes, they were taken by him in his official capacity as the Clerk to the Panel. They should have been included in the bundle, if not by the claimant, by the defendant Panel. The claimant only received them four days before the hearing, despite earlier requests. They should have been disclosed earlier. Had they been verified they would be admissible and are likely to have been regarded as a reliable source of information as to what was said at the proceedings. They also contain material going to the nature and detail of the decision taken by the Panel. They are dated in February 2004 and thus would not have been available at the time of the exchange of correspondence in December and January 2003/2004. Had they been available at that time, either as typed notes or in whatever form they were originally taken, more light would have emerged in the correspondence as to what it was that the Panel did decide. Although Mr Lawson was minded to submit that they were not admissible for the purposes of the hearing before the court for any reason other than the purpose he had in referring to them, it seems to me that they ought to be regarded as a proper source of information for the court on this judicial review hearing. Among the people present at the Panel hearing and in court, instructing Mr Oldham, was Mr David Hayward, the legal adviser to the Panel. The notes contain an account of the advice he tendered to the Panel. Mr Oldham, for the defendant, pointed out that Mr Hayward was prepared to undertake to swear an affidavit in connection with the legal advice he tendered as recorded in the notes. Further, on instructions, he stated that there would be no difficulty in Mr Couchman, the Clerk to the Panel, also swearing an affidavit in order to verify the notes. Mr Lawson introduced them into the case in order to demonstrate that the evidence which had been put in, in particular by the Panel Chairman, Sarah McDermott, was inconsistent with the contents of the notes. He cannot have it both ways, namely achieve the forensic advantage he wishes to achieve, but nevertheless invite the court to disregard the notes where it does not suit his case. In my judgment, common sense and fairness requires that they be regarded as evidence in the case and I dispense with the need for them to be formally proved by affidavit.

Under a heading ‘Review and Decisions’ (being a reference to the action or discussion by the Panel taken in arriving at the decisions) the notes record as follows:-

“The Panel then reviewed in detail the evidence that had been presented to them that morning. The Panel also took into account the statement made by Lawson [counsel Mr Lawson] concerning the ‘balance of probabilities’ and ‘beyond all reasonable doubt’. The legal adviser [Mr Hayward] stated that if the incidents constituted a ‘criminal’ offence, the Panel had to take their decision on the basis of ‘beyond all reasonable doubt’. The Panel were then asked to answer the following two questions:

(i)

Was the pupil responsible for the actions that have resulted in permanent exclusion; and

(ii), if so, was permanent exclusion the correct response?

On (i) the Panel agreed unanimously it was clear that at least a fuse was involved and that, by his own admission, [H] had handed over matches. Two witness statements said he lit or was involved in it being lit. Also in his own statement (made on two occasions), he stated that he cupped the match whilst the fuse was being lit – albeit he considered that he made this statement under duress. The behaviour policy of the school stresses the need to provide and preserve a safe environment. Under the circumstances, the Panel decided that H was responsible for the actions for which he had been permanently excluded, beyond reasonable doubt.

On (ii), whether permanent exclusion was the correct response, the Panel unanimously decided it was, in view of the seriousness of the incident, including the danger to pupils and members of staff and that formal notice had been given (of the consequences)”.

In my judgment it is plain that the Panel were sure that H had handed over the matches and that, having done so, had cupped the match whilst the fuse was being lit. It does not appear that they concluded that he held the firework.

In the result, in my judgment, the burden on the Panel was to ascertain whether they could be sure that H was involved in the lighting of the firework. They had evidence of his involvement and in the decision letter it was recorded that they were sure H was responsible “for the actions described by the College”, without stating expressly the nature of his involvement. But, having regard to the notes, I am satisfied they did come to a specific finding as to the nature of his involvement. In the circumstances, I can see no basis for upholding the complaint made under Ground 1.

The argument under this head starts with the conclusion, reached by the headteacher and the school, which was expressed as follows:-

“Given the school’s belief on the grounds of probability that H was involved in the incident, his failure to co-operate …”

That this was the basis upon which the school and headteacher had come to the conclusion is confirmed in the statement or report provided to the Panel by the headteacher and in the Clerk’s notes recording his evidence, to which Mr Lawson drew attention, where the headteacher is recorded as saying: “Considered on basis of probability”. It is also plain from the statement which the headteacher has provided to this court that his account was that he could not be certain about every detail of what had happened, but that he was certain that H was jointly responsible for setting off the firework.

Next Mr Lawson drew attention to the witness statement of the Chairman of the Panel, Sarah McDermott, filed in March 2004 in which she says:

“The Panel decided that on the balance of probabilities H had been involved in lighting the firework, but I have to say that our decision in this respect was verging on the ‘beyond reasonable doubt’ test. The Panel heard submission from H’s counsel that we should apply the beyond the reasonable doubt test pursuant to the decision in a recent case. The Panel took advice from the solicitor to the Panel who indicated to us that it was sufficient for us to decide on the balance of probabilities”.

It is this piece of evidence which Mr Lawson submitted was flatly contradicted by the terms of the Clerk’s notes, which I have already set out in paragraph 13 above.

I do not accept that there is a flat contradiction, nor am I persuaded that such contradiction as does appear assists the claimant in this case. The Court of Appeal decision to which Mr Lawson drew the attention of the Panel is R(S) v The Governing Body of YP School [2003] EWCA Civ 1306 [2004] ELR 37. In a Court of Appeal constituted by Simon Brown LJ, Mummery LJ and Laws LJ, the Court held that in dealing with a disciplinary matter, where the accusation amounted to a crime under the general law, the headteacher and the governors had to be sure that the child had done what he had been accused of before so finding. It appears from the report of the case that the case of R v Head Teacher of Dunraven Schoolex parte B [2000] ELR 156 was not referred to the Court of Appeal. The case of Dunraven is a Court of Appeal decision, where the judgment given by Brooke LJ, was to the effect that in this area where a criminal offence was involved a heightened civil test was the appropriate standard of proof. Mr Lawson has drawn this court’s attention to the House of Lords decision in R (McCann) v Manchester Crown Court and Others [2003] 1 AC 787 where the House was considering anti-social behaviour orders in magistrates’ courts and the standard of proof applicable in such proceedings. Lord Steyn observed (paragraph 37) as follows:

“Lord Bingham of Cornhill has observed that the heightened civil standard and the criminal standard are virtually indistinguishable. I do not disagree with any of these views. But in my view pragmatism dictates that the task of magistrates should be made more straightforward by ruling that they must in all cases under section 1 apply the criminal standard. If the House takes this view it will be sufficient for the magistrates, when applying section 1(1)(a), to be sure that the defendant has acted in an anti-social manner, that is to say in a matter that has caused or is likely to cause harassment, alarm or distress to one or more persons not of the same household as himself”.

The Court of Appeal were obviously strongly influenced by McCann when reaching their conclusion in R(S).

It seems possible that the confusion, foreseen by Lord Steyn, into which magistrates might be led, may have been occasioned by the legal advice tendered to the Panel. Another possibility is that at the time she made her statement, the Chairman had no access to any original material and that her recollection suffered as a result. It is worth pointing out that in judicial review proceedings, witness statements have a limited role to play. Whilst it is legitimate to provide the background and factual context for a decision as Laws LJ observed, the purpose is “to elucidate or, exceptionally, correct or add to the reasons, but should, consistently with Steyn LJ’s observations in ex parteGraham, be very cautious about doing so”, (see R v Northamptonshire County Councilex parte W [1998] ELR 291). It is not permissible to provide reasons for a decision which go beyond the reasons already given. Clarification and a measure of elaboration on the reasons already given will normally be permissible. In this instance, Mr Couchman’s notes plainly provide a permissible degree of clarification and elaboration on the reasons given in the two letters which were sent to the claimant. Their production in evidence would have been sufficient and no statement would have been necessary.

I reject the suggestion that there is a flat contradiction between Sarah McDermott’s evidence and the notes because it seems to me that, in explaining the law as he did, it is inevitable that the legal adviser must have stated that the standard of proof of beyond all reasonable doubt would be required if the incidents constituted a criminal offence. It follows that it is likely that it was left to the Panel to decide whether the incidents did constitute a criminal offence, but they would have to be told that if they did not the decision should be on the basis of the heightened civil burden of proof. It would seem from the notes that they may not have been told that it was the heightened standard of proof which was required if the matter was being considered as not tantamount to a criminal offence. As I have indicated, there is, on the face of the written material, some basis for concluding that the Chairman, at least, was not certain what label should be attached to the standard of proof which the Panel were to apply. In my judgment, however, ultimately the important question is, what was their decision and what standard did the Panel apply? If one examines the material before the court to determine what they actually decided, and putting aside the label to be attached to it, and asks what standard of proof did they apply, it seems to me the material points one way. In the decision letter dated 18^th December 2003 Mr Couchman recorded:

“Having taken all the relevant factors into account, the Panel decided, unanimously, that they were sure H was responsible for the actions…” [emphasis added]

In paragraph 4 of her witness statement, Sarah McDermott states:

“The Panel decided that on the balance of probabilities H had been involved in lighting the firework, but I have to say that our decision in this respect was verging on the ‘beyond reasonable doubt’ test”.

A test verging on the ‘beyond reasonable doubt’ test represents what could be regarded as the heightened civil standard of proof which, following Lord Bingham’s observation, appears to me to be indistinguishable from the criminal standard of proof. Thus, whilst there is confusion there is nevertheless, so far as the process is concerned, in my judgment, sufficient certainty that in coming to the conclusion that H was involved in setting off the firework the Panel were sure that he was so involved.

Mr Lawson’s challenge to the lawfulness of the order of permanent exclusion depends upon the terms of a Notice which was put up at the school very shortly before the incident involving H. Headed, Notice to Pupils, it stated:-

“One Year 10 has been excluded for thirteen days for lighting a firework in school yesterday. He will also have to attend a Governors’ Disciplinary Hearing.

It is forbidden to have a firework in school; pupils who bring fireworks will be excluded for 5 - 10 days. Any pupil who lights a firework in school will be excluded for a minimum of fifteen days. Also pupils excluded for these reasons will have to attend Governors’ Disciplinary Hearings.

If a pupil is hurt as a result of a firework, the person responsible will be permanently excluded”.

Mr Lawson submitted that the school, having stated its intention to deal with misconduct in connection with fireworks in a particular manner, should have followed the terms of the Notice in dealing with H. He submitted that, since H had been found to have been involved in setting off a firework in school, for that misconduct the Notice had laid down that the period of exclusion would be for a minimum of 15 days and had made no reference to permanent exclusion. Permanent exclusion had been reserved for a circumstance in which a pupil was hurt.

The circumstance provided by the terms of the Notice, he said, gave rise to two legal considerations. First he submitted that the principle of proportionality applied to these proceedings in connection with exclusion of pupils from school. He submitted this was so because a right to education might be in issue in an exclusion case and that, having regard to the Court of Appeal’s decision in the case of Ali v Head Teacher and Governors of Lord Grey School [2004] EWCA Civ 382 (transcript dated 29^th March 2004), there may be a right to damages. Whilst it is clear from the case of Ali that the consequences of an exclusion of a pupil from school can give rise to a breach of a right to education and engage the Human Rights Act 1998, it is also clear that a lawful exclusion followed by the lawful provision of alternative education will not do so. Even an unlawful exclusion and the provision of alternative education will not give rise to a breach. That which was held to give rise to an entitlement to damages in the case of Ali was the period of exclusion from school and the absence of alternative provision of education at a time when the unlawful exclusion order itself had expired.

Had it been necessary for me to decide, because it was relevant to the facts of this case, whether proportionality applied to exclusion orders, I would have heard more detailed argument than I did. Without deciding the point, it appears to me that proportionality does not play a part in the lawfulness of a penalty by way of exclusion. But even if I was wrong in that regard, it seems to me that, on the facts of this case, it makes no difference whether one considers the circumstances having regard to the principle of proportionality or whether one considers them having regard to the established principles of rationality and reasonableness. In my judgment the Panel made it sufficiently plain that it was imposing the penalty of permanent exclusion because it accepted that, on the facts of this case, participation in the letting off of a firework was dangerous, because it was lit within a confined space, and that it gave rise to a risk of harm to other pupils. The circumstances in which the firework was lit were material and were capable of being regarded by the Panel as an aggravating factor in the misconduct. The submission made by Mr Lawson was not that permanent exclusion could never be the appropriate penalty for misconduct in connection with fireworks but that, having regard to the terms of the Notice, it was not available on this occasion unless someone was hurt. I reject that submission for a number of reasons.

The school should not be taken as having attempted to provide an exhaustive list of the circumstances in which misconduct in connection with fireworks could take place. The Notice was intended to inform pupils that, according to the circumstances attending their possession or use of fireworks in the school, a graded and stepped response by way of exclusion would be imposed. By stating “Any pupil who lights a firework in school will be excluded for a minimum of fifteen days”, the school was not stating that in all circumstances in which a firework was lit there would be a penalty of 15 days’ exclusion. It was a “minimum”. Nor was it stating that permanent exclusion could not arise if a limited exclusion was not appropriate. In giving, as an example of the use of permanent exclusion, a circumstance in which a pupil was hurt, the school was not excluding from the ambit of the appropriate use of permanent exclusion a situation where no pupil was hurt but a number were put at risk of being hurt. In my judgment, the reliance upon the terms of the Notice as a tool to undermine the proportionality or reasonableness of the penalty by way of permanent exclusion fails. Mr Lawson also argued that the penalty imposed upon H was an exemplary one and that this was unreasonable, having regard to his record in school which was good. In my judgment, it is plain from the material I have seen that the Panel took account of H’s good record. It is plain that, notwithstanding his good record, they regarded his participation in this event, a single one off incident, as sufficient to merit permanent exclusion and, notwithstanding his good character, adopting the approach of the headteacher, failure to accept responsibility was something which was material to the future conduct which could be expected of him in the school. I am not persuaded that these matters were not properly weighed.

Mr Lawson submitted that the sufficiency of the reasons was to be tested by asking whether the reasons which were given were sufficient to tell the claimant why he was being permanently excluded. He relied upon the decision of Laws J. in R v Northamptonshire County Councilex parte W [1998] ELR 291. In that case, the reasons for permanent exclusion were expressed as follows:

“Permanent exclusion was, in the circumstances, a reasonable course of action for the school. ”

He submitted that on a proper examination of the decision letter dated 18^th December 2003 the Panel had taken an indistinguishable approach. The letter stated:-

“By the same unanimous decision, the Panel also decided that the decision of the Disciplinary Committee of the College was the correct one and would be upheld”.

He drew attention to the terms of the second letter, which was in these terms:

“Having taken all these factors into account, the Panel decided that H was responsible for the actions described by the College and that the serious nature of the incident justified permanent exclusion”.

The argument presented upon the basis of these passages in the letter requires, for its success, that the court ignore the detailed reference which was made by the Panel to the formal Notice which was displayed on the College premises, the fact that the pupils, including H, were to be taken to be aware of the terms of the Notice and also that the Panel had taken into account the College’s anti-bullying behaviour policies which contain warnings as to the penalties which could arise for serious misconduct. When challenged by the letter from solicitors for the claimant about an alleged lack of explanation and absence of reasons showing why the Panel had upheld the permanent exclusion, the Clerk to the Panel responded in the letter dated 9^th January 2004 as follows:-

“My letter dated 18^th December 2003 does give the Panel’s reasons for deciding that the decision to exclude was the correct one. The letter makes clear that the Panel took all the related factors into account and I drew specific attention to documentary and oral evidence that was considered; to the many questions that were asked and the answers that were given at the hearing; and the great importance that the Headteacher and the College give to the safety of its pupils and staff. I also mentioned that the Panel was made aware of the relevant sections of the College’s Anti-Bullying/Behaviour policies which, of course, include specific reference to the potential consequences for pupils who are involved in a single serious incident of violent or dangerous behaviour. Having taken all these factors into account, the Panel decided that H was responsible for the actions described by the College and that the serious nature of the incident justified permanent exclusion”.

In response to this material, Mr Lawson submitted that the letter from the Clerk to the Panel, in particular the first letter, was inadequate in that it was not sufficient simply to say “the Panel noted this and the Panel noted that”. It was necessary for the decision letter to be more explicit. In my judgment it is not helpful to approach the legality or adequacy of reasons by having regard to the style or format in which the reasons are couched, as opposed to taking a broad and sensible assessment of the nature of the material (however it is referred to) which one can reasonably infer the decision-making body must have taken into account. I see no difficulty in the claimant, nor anyone advising the claimant, being able to see that the basis upon which the Panel decided that permanent exclusion was appropriate was that the school was right to regard it as a serious incident, that the school was entitled to rely upon the Notice given to pupils and parents, and that the Panel for those reasons agreed with the result. There has been no challenge, and nor could there have been a sensible challenge, to the seriousness of the incident and the risk to other pupils which it created. Nor was there any suggestion that parents and pupils would not have been aware that to be involved in letting off fireworks was, in the view of the school, to be treated as serious misconduct.

For all these reasons, this application for judicial review is dismissed.