K, R (on the application of) v Tamworth Manor High School

MR JUSTICE SULLIVAN: In this application for judicial review the claimant challenges the decision of the Governors' Discipline Committee, on 20th January 2004, to uphold the head teacher's exclusion of the claimant from Tamworth Manor High School for 16 days.

The exclusion followed an incident on 5th December 2003 on the school football pitch during a match with another school, when the claimant, who should have been in a maths lesson, ran across the field with his trousers down thus exposing his buttocks. When asked about the incident by a teacher the claimant replied, "I ran on the pitch & did a mooney, that's all".

In a letter dated 15th December 2003 the head teacher said that the claimant was being excluded from the school for a period of 16 days from 6th January 2004. She explained her reasons as follows:

The Governors' Student Disciplinary Review Panel met to consider the claimant's exclusion on 20th January 2004. At the hearing the claimant was represented by counsel, Mr Lawson, who appeared on his behalf before me today. The Governors' decision was challenged on a number of grounds. Bennett J gave permission to apply for judicial review on just two of those grounds: "unreasonable penalty" and "unreasonably excessive penalty". He refused permission on a number of other grounds, including a complaint that there had been a failure to give adequate reasons.

In the claim form the "unreasonable penalty" challenge was put upon the following basis. The panel was required to have regard to the Secretary of State's guidance when it was reaching decisions about exclusions (see the Education (Pupils Exclusions and Appeals)(Maintained Schools)(England) Regulations 2002). Paragraph 6 of the guidance deals with length of fixed period exclusions. Paragraph 6.1 is in these terms:

In the claim form it was contended that the acting head teacher was not aware of the suggestion in the guidance that exclusions should be for 1 to 3 days, and it was contended, for various reasons, that the panel had failed to have any proper regard to the guidance as a material consideration.

That claim became untenable as soon as the defendant put in its evidence in response to the claim. It is plain from that evidence that the head teacher was well aware of the guidance, indeed she had received specific training in respect of it. More to the point, since it is the panel's decision which is subject to judicial review, the minutes of the meeting have been produced and they demonstrate that the panel had the guidance drawn to their attention by Mr Lawson, both when he was putting questions to witnesses and during the course of his final submissions.

In these circumstances it is wholly unrealistic to suggest that the panel failed to have regard to the guidance as a material consideration, and one is therefore left with the remaining ground of challenge that, in all the circumstances, including what is said in the guidance, 16 days exclusion was "an unreasonably excessive penalty", or as it is now put in Mr Lawson's skeleton argument, that 16 days was a disproportionate penalty.

Mr Lawson conceded, during the course of these proceedings, that a period of exclusion was an appropriate penalty. The sole issue is, therefore, whether the period of exclusion upheld by the Governors, 16 days, can fairly be described as excessive or disproportionate.

Mr Lawson submitted that by reference to paragraph 6.1 of the guidance, (see above) an exclusion for a period of 1 to 3 days would have been the appropriate penalty. I am unable to accept that submission. The guidance, and it is guidance to be taken into consideration rather than a series of mandatory requirements, does no more than state that the evidence suggests "... that 1-3 days is often long enough to secure the benefits of exclusion without adverse educational consequences."

The next paragraph in the guidance, 6.2, recognises the regrettable fact that longer exclusions may prove to be necessary, since it says in part:

Whatever the authors of the guidance had in mind in paragraph 6.1, I very much doubt whether it included mooning. It is perhaps a somewhat unusual offence against school discipline. The head teacher took the view that the offence was a serious one, that the conduct was offensive, and that it brought the school into disrepute. The panel were entitled to agree with those views.

Although Mr Lawson criticised the conclusion that the claimant's conduct had brought the school into disrepute, I find it difficult to see how any head teacher, or panel of governors, could reasonably have reached any other conclusion given that the mooning took place, not merely in front of the claimant's fellow pupils at his own school, but also in front of the pupils and staff of the other school which was involved in the football match.

The claimant's school record was plainly material and the minutes show that the head teacher summarised it for the benefit of the panel. In brief, the incident log shows that the claimant had been given a number of 1 day internal exclusions, between January 2001 and January 2003.

Focusing on 2003, the year in which the incident with which we are concerned occurred, on 16th January the claimant was excluded for 2 days for an unprovoked attack on another student outside the school, thereby bringing the school into disrepute. After that penalty was imposed various other penalties followed, including being placed on report, detention, and internal exclusion for a day, until on 10th October 2003 the claimant was excluded for 5 days for throwing mud around the school which hit a car. The mooning incident occurred less than two months later on 5th December. As the head teacher explained to the panel, "It would seem that [the claimant] hasn't learnt from his previous irresponsible behaviour." Against this background an exclusion of 1 to 3 days would have been a wholly inadequate response to this incident.

Each case will, of course, very much turn upon its own facts. One could contrast the position of a pupil with an excellent disciplinary and academic record who was involved in an incident of mooning. If, when challenged about it, that pupil was contrite, recognised that he had behaved thoroughly irresponsibly, and the head teacher was satisfied that there was genuine remorse and appreciation of the seriousness of the offence, then in the case of such a pupil it might be appropriate to impose a 1 to 3 day exclusion on the basis that a short, sharp shock was needed for someone who had not, hitherto, been excluded from school.

In the present case the head teacher and the panel were faced with a different set of circumstances. Plainly it was necessary to mark not merely the seriousness of the offence but also to try to deal with the claimant's persistent failure, or refusal, to recognise that his behaviour was thoroughly irresponsible.

It is clear, therefore, that exclusion for a more substantial period than 5 days was an entirely reasonable response. I find it impossible to say that a period of 16 days exclusion, against this background, was outside the range of responses which was reasonably open to the panel.

I recognise that in formulating the test in that way I am, in effect, applying the test that the Court of Appeal Criminal Division applies when considering an Attorney General's reference, and this is a court of review rather than a court of appeal. For present purposes, however, I am content to apply the most favourable test from the claimant's point of view. Mr Lawson submitted that the proper test was not whether the panel had acted Wednesbury unreasonably, but whether it could be said that the penalty was disproportionate. I find it unnecessary to resolve that issue in this case because I am entirely satisfied that the governors' decision cannot be described as either unreasonable or disproportionate in the light of the facts that I have summarised.

In truth the claimant relies upon an unduly mechanistic application of the guidelines without regard to the particular and somewhat unusual circumstances of this incident, and without setting them in the context of this particular pupil's disciplinary record and response when challenged about the incident.

For the sake of completeness I should mention that Mr Lawson criticised the head teacher on the basis that she had had regard to the fact that if 16 days exclusion was imposed, then the matter had to be referred to the governors. I am satisfied that the head teacher's reasons for imposing the 16 day exclusion were set out in her letter of 15th September 2003. I have dealt with the issue of bringing the school into disrepute, and the head teacher's view that the offence of mooning was a serious one. It is plain from the minutes of the meeting on 20th January that by that stage truanting from the maths lesson was regarded as simply a matter of background rather than a separate reason in its own right.

It is true to say that the practical effect of imposing an exclusion for 15 days or more was that the governors had to meet to consider the exclusion within the period of 15 days. If, for example, the head teacher had imposed an exclusion of only 12 days the governors would not have had to meet to consider the matter at such an early stage. Thus, the claimant, in effect, obtained a procedural advantage in that he obtained an earlier hearing date, and it was possible for Mr Lawson to argue at the hearing before the governors that the claimant should be allowed to return immediately to the school. Thus, once the matter came before the governors, this procedural consideration fell away in any event. The governors were simply concerned with whether or not a period of 16 days exclusion was the appropriate response to this particular incident.

One is left, at the end of the day, with little more than the bare proposition that 16 days was too long a period of exclusion. For the reasons set out above I do not accept that 16 days exclusion was either excessive and/or disproportionate in any way. For these reasons this application is dismissed.

Any further applications?

MR LAWSON: There are two administrative matters, my Lord.

MR JUSTICE SULLIVAN: Yes.

MR LAWSON: One is to extend the order under section 39 of the Children and Young Person Act 1933. My learned friend and I are both content for that to be in place, and she has asked me, and I am happy, for the school to be anonymised also in the report. That seems appropriate and certainly it is not objected to.

MR JUSTICE SULLIVAN: Yes. Why should the school be anonymised? He is no longer at the school.

MISS MCCAFFERTY: My Lord, that is true. It is an unusual incident and the concern is that the young person could be identified if the school is identified. We know that there are no other mooning incidents. If the school is identified then anyone who is aware of a mooning incident at that school could then identify the young person.

MR JUSTICE SULLIVAN: I should think anyone who was aware of it in that context -- what I am thinking about -- the press are here, I should not impose restrictions to any greater extent than is appropriate given the provisions of the Convention, balancing privacy against the freedom of speech. Clearly I extend the order under the Children and Young Persons Act so that the claimant may not be identified, but I am not persuaded that it is right to prohibit the identification of the school since the claimant is no longer at the school.

Anyone who was aware of the mooning incident will know pretty well who did it, I should think a degree of notoriety was thereby achieved, which presumably was part of the object, but thinking about it in practical terms, if it is reported to others who know nothing about it in the local press, I cannot see simply identifying the school will enable you to identify someone who has left.

The press is here, they have heard that discussion. I extend the prohibition on identifying the claimant, but I do not embrace identification of the school in that. The school, as far as I can see, can be identified. There is no reason why the account of the incident with the school's name, but the claimant anonymised, should in any way identify the claimant.

MR LAWSON: My Lord, the other matter is detailed assessment, if it please the court, of the claimant's public funding.

MR JUSTICE SULLIVAN: Yes, you may have that, of course. Thank you very much. Sorry to keep you a little after the normal lunchtime.