Webster & Ors v Ridgeway Foundation School

On 11^th January 2007 Henry Webster was 15. He was a student in year 11 at The Ridgeway School (‘TRS’). Earlier in the day he had had an altercation with a younger boy in year 10 called MM. Later in the afternoon, Henry had agreed to have a fight with MM on the school’s tennis courts after the school day finished at 3.50pm. Henry had specified that the fight should be ‘one on one’. However, unknown to him, MM had telephoned his older brother, RM, who, in turn, had contacted other friends and relations. A number of them came to Inverary Road which runs along the West side of the school including its tennis courts. A stream of students was passing through the tennis courts as they provided a convenient route on to Inverary Road. MM, together with two of his friends, SS and Saheed Rahman pointed Henry out to the adults who had come down. Three of them entered the tennis courts and attacked Henry. One of these men had a claw hammer which he used to beat Henry about the head. Henry was then kicked while he lay on the ground by SS, MM, Saheed and a fourth pupil, Shomon Ullah. As a result of the hammer blows, Henry suffered a compound depressed skull fracture with an underlying frontal lobe contusion. He has made a generally good recovery but he is left with brain damage of some severity.

Joseph Webster (the Second Claimant) is Henry’s younger brother. He was 12 at the time and also a pupil at TRS. He was waiting for a school bus to take him home when he was told about the attack. He went immediately to the tennis courts and saw his brother lying on the ground. He also telephoned home and spoke to his stepfather (Mr Durnford, the Fourth Claimant) who came down to the school with Elizabeth Webster, the mother of Henry and Joseph and the Third Claimant. Mr Durnford and Mrs Webster also saw Henry before he was taken to the hospital.

The police were called. Their investigations led to two trials at Bristol Crown Court before HHJ Hagan. On 13^th February 2008, MM, SS, Shamon and Saheed (the four students from the school) together with Wasif Khan, Nazrul Amin and Amjad Qazi were each convicted of causing grievous bodily harm with intent contrary to s.18 of the Offences Against the Person Act 1861. Wasif Khan, who had wielded the hammer, was sentenced to 8 years in a Young Offenders Institution. The others were sentenced to detention and training orders or other custodial sentences but of a substantially shorter duration since it was accepted that none of them had wielded the hammer or known that Wasif Khan had brought it with him. Nine other defendants were tried later on a charge of conspiracy to commit actual bodily harm. Six were convicted including RM.

HHJ Hagan made an order under Children and Young Persons Act 1933 s.39 prohibiting the identification of any child or young person in the proceedings, either as being the person by or against or in respect of whom the proceedings are taken, or as being a witness therein. As I shall explain, the sentences of some of the defendants were later considered by the Court of Appeal which said that the provisions of the 1933 Act in relation to the naming of underage offenders would remain in place. Some of the defendants have since become 18. As the Divisional Court said in Todd v DPP [2003] EWHC 2408 (Admin) the purpose of the legislation was not to protect the interests of young persons after they ceased to be young persons. I have therefore used their names in this judgment. Consistently with the orders of the Crown Court and the Court of Appeal, I have used letters to identify those who are still under 18 or who are related to those under 18.

In these proceedings Henry claims damages for the injuries which he suffered to his head from the hammer blows and their consequences. His brother, mother and stepfather claim compensation for the post traumatic stress disorder which they say that they suffered as a result of seeing Henry in the condition that he was shortly after the attack took place.

The Claim is made against TRS. More strictly it is or should be against the Governors of the school. TRS is a foundation school within the meaning of Part II of the School Standards and Framework Act 1998. It is a case based primarily on common law negligence but with an additional claim founded on the Human Rights Act 1998. The negligence claim falls broadly speaking in to three parts. It is said that the school failed to take proper care to keep the site secure. In particular, it is alleged that the school was negligent not to fence the site so as to keep intruders out and negligent in not having a member of staff on duty at the end of the day either on the tennis courts or at the gate between the tennis courts and Inverary Road. Secondly, it is claimed that the school was negligent in failing to do more (a) to establish better discipline in the school and (b) to deal more effectively with racial tensions which were said to prevail in the school. Henry was white. All of those who attacked him (pupils and adults) were Asians. Thirdly, it is said that the school should have done more to protect Henry on 11^th January.

Article 3 of the European Convention on Human Rights says that “no one shall be subjected to torture, or to inhuman or degrading treatment or punishment”. In certain circumstances this implies a positive obligation to take steps to protect a person from such treatment. The Human Rights Act claim alleges that the Defendant failed in its duty to take such positive measures to protect the First Claimant from treatment that was contrary to Article 3.

The Claim Form was issued on 19^th December 2007. Particulars of Claim were served in April 2008 and a defence in June 2008. On 28^th October 2008 Master Eyre ordered that “A preliminary issue shall be tried between the Claimant and the Defendant as to whether or not the Defendant is liable to the Claimant by reason of the matters alleged in the Particulars of Claim.” With the leave of Holroyde J. the Particulars of Claim were amended on 24^th August 2009 and the Defence was amended on 18^th September 2009.

It is the preliminary issue which I have been trying. It was not, however, particularly aptly phrased. It referred to “the Claimant” in the singular, but there are four Claimants. In view of this, I asked the parties to identify more precisely the issues which they thought that I should consider. Their agreed list was as follows:

In his closing submissions Mr Walker QC for the Defendant conceded that each of the 2^nd, 3^rd and 4^th Claimants had witnessed the immediate aftermath of the assault on the 1^st Claimant. It is not necessary therefore for me to adjudicate on that question. I will address the other questions, although in a different arrangement to that above.

The hearing was lengthy. It lasted a total of 25 hearing days. I heard live evidence from 52 witnesses. I was given some 26 lever arch files of documents. I visited the school.

Both sides deployed expert evidence: Professor Augustus (Gus) John in the case of the Claimants; Lady Marie Stubbs in the case of the Defendant. Professor John had been director of the Education Department in the London Borough of Hackney for 7 years. He has since provided consultancy services and training to a wide variety of public bodies particularly in the field of race relations and leadership training. For three years he was Visiting Professor of Education at the University of Strathclyde. Lady Stubbs had very many years of experience as a teacher, a Deputy Headteacher and as a Headteacher before she retired. She agreed to come out of retirement to take on the role of Headteacher at St George’s School in Maida Vale after the murder of the previous head, Philip Lawrence and when the school was in ‘special measures’. Each expert was challenged as to the range of subjects on which they could properly give evidence. The Defendant alleged that Professor John did not have expertise in security matters. The Claimant submitted that Lady Stubbs did not have expertise in matters to do with race relations. So far as these were challenges to the admissibility of their evidence, I reject both arguments. In his role as Director of Education, Professor John would have had to have some familiarity with security matters. Although the heads of Hackney’s schools would have had primary responsibility, he would have had an interest in understanding and reviewing their decisions in this regard. Lady Stubbs’ study of race relations could not match Professor John’s but as a head and deputy head of inner city schools, it would have been essential for her to develop a practical appreciation of these matters.

That said, it will be apparent from this judgment that I was not greatly assisted by either witness. Neither had experience of giving expert evidence in High Court proceedings before this case. The task is not an easy one. It is to provide assistance to the Court on matters which may be outside the Court’s general knowledge and within the area of the witness’ own expertise. It is not the role of the witness simply to become an extra advocate for the party which calls him or her. There was considerable force in the Defendant’s criticism that Professor John had not observed this distinction. A great deal of his reports offered an analysis of the factual evidence which relied not at all on his expertise, but simply argued the Claimants’ case. To a lesser extent this was also true of Lady Stubbs’ reports. Both experts tended to accept as correct the witness statements put forward by the party who had instructed them. To be fair to them both, this highlighted the difficult task which they were called on to perform. It is the Court’s task, not theirs, to resolve disputed issues of fact. Yet in many cases, they had to offer a view as the proper range of responses to particular situations, without knowing how those disputes would be determined.

It is not possible, nor would it be profitable to refer to all of the expert or factual evidence tendered in this case. I mean no disrespect to the witnesses who are not mentioned. Since the conclusion of the hearing I have reviewed all of the evidence and taken it all into account. Similarly, I have not alluded to all of the arguments advanced by the parties, but those, too, have all been considered by me in the drafting of this judgment.

TRS is located in the village of Wroughton. It is about 5 miles from the centre of Swindon. I had the advantage of a visit to the site and was able to see it for myself. I bore in mind that certain changes had been made since the attack on Henry, but it was a useful experience.

The site is very large. Mr Colledge, the present Head teacher, said that it was some 32 acres. It is roughly rectangular with the school buildings in the South West corner. The remainder of the site is made up of playing fields and other open areas. Along the East side of the site there is a line of trees and bushes which in turn run parallel to a stream. On the other side of the stream is a housing estate referred to as North Wroughton. The main buildings of the school front on to Inverary Road which, as I have said, runs North to South. There is a slight slope up to the South end of Inverary Road. There is a layby or pull-in by the main entrance to the school. This is used, in particular, by the school buses which transport about 800 of the school’s pupils to and from their homes. Dunbar Road comes into Inverary Road opposite this layby. Immediately to the north of the layby on the East side of Inverary Road is a bungalow. After this there is an entrance to a car park which is for members of the public who are allowed to use the School’s Leisure Centre whose buildings come next as one proceeds northwards along Inverary Road. The Centre includes a swimming pool which lies approximately East West and to the North of the car park. The pool forms the Southern boundary of the tennis courts. Part of the East side of the tennis courts is taken by the wall of the Sports Hall. There are six tennis courts and they abut Inverary Road. At about this point Inverary Road terminates, but a track continues in the same direction along the Western edge of the School’s site. About 80 metres beyond the start of this track there is an electricity substation which encroaches into the School’s fields. On the South side of the School’s site there is an area of housing known as St Andrews Close. A gate in St Andrews Close gives access to the School. 100 metres or so south of the junction of St Andrews Close and Inverary Road, Perrys Lane forms a T junction with Inverary Road.

There was a fence around the tennis courts, but the site was otherwise open at the material times. Members of the public were accustomed to cross the School’s field from North Wroughton to the track that continued from the end of Inverary Road. This was claimed as a right of way. Some of the pupils would also cross the fields from the school to North Wroughton at the end of the school day.

The School was built in 1967 and was the first purpose built comprehensive school in Wiltshire. Roughly speaking the buildings form an ‘L’ shape, with the upright of the L on Inverary Road and the bottom backing on to some of the housing in St Andrews Close. The Eastern end of this bottom limb comprised a block called the New block or the New Science block. Corridors ran along the ground floor of bottom limb. At about the point where this meets with the corridors running along the other limb of the L there is an enclosed space with some tables and benches that was called the ‘Atrium’ or Small Conservatory. Just inside the school and parallel to the layby were two open areas: Centre Court and Craft Court. These were assembly points for pupils who were going to take buses home. In the area bordered by the main buildings of the school were a series of some 22 individual ‘temporary’ class rooms. The term was not very appropriate since they had been on the site for some 40 years. The alternative name which was customarily applied to them – the mobile classrooms - was no more apt. They were in poor condition. They have since been demolished and replaced with a new permanent structure.

The school had about 1400 pupils and admitted about 240 each year. Its location has been described as semi-rural and, as I have indicated, it was certainly a feature that, while some pupils lived locally, many came from afar and either had to travel back and forth by buses arranged by the Local Education Authority (Swindon Borough Council) or they were collected by family or friends. It was common, therefore, for Inverary Road and the surrounding streets to experience quite a high volume of traffic at the end of the school day. Pupils who were to leave by bus would gather in Craft Court or Centre Court and then board the buses in the layby. Those who were making their own way home could (since the site was open) leave by any number of other ways but most seem to have left through the St Andrews Close gate. Some went across the fields to North Wroughton. Others would go round the Sports Hall and through the tennis courts to Inverary Road. It is impossible to say accurately how many used this latter route. From CCTV footage on 11^th January 2007 the Claimants estimate that it was about 278.The Defendants challenged whether that was accurate or a fair representation of those who would usually use that route, but it is likely to have been a substantial minority of the school’s pupils and somewhere between 100 and 250. Pupils were not supposed to use the exit to the Leisure Centre car park, but one of the pupils, Alastair Burnett, gave evidence that staff coverage of this exit was not very thorough and he was able to go out this way. I accept that this could happen from time to time.

The ethnic composition of the school was overwhelmingly white. At the time of an Ofsted (Footnote: ¹) inspection in 1998 the percentage of white pupils was given as 97%. By 2005 the percentage of ethnic minorities had grown, marginally, to about 5%. In other words there were then about 70 non-white pupils at the school. The principal minority group have been described as ‘Asian’. That rather loose term in this context seems to have meant people whose ethnic origin was Pakistani, Bangladeshi or possibly Indian.

Until July 2005 the Head Teacher of TRS was Ms Elizabeth Cooper. She left somewhat abruptly. The Governing Body (whose Chairman at all material times has been Mr Harold Peter Lay) decided to adopt the temporary measure of appointing the two Deputy Head Teachers as joint Acting Head Teachers. Thus from September 2005 – July 2006 Mr Chris Walton and Ms Sue Norman occupied these positions. In March 2006 the Governors appointed Mr Stephen Colledge as the permanent Head Teacher. He took up his post in September 2006 although since his appointment he had been making frequent visits to the school (on average a couple of times a week). He has been the Head Teacher ever since.

Ms Norman left the school in July 2006 and from September 2006 Mr Walton has been on secondment elsewhere. No one was formally appointed to be Deputy Head Teacher in their place, but the three Assistant Head Teachers, Mr Ron Piper, Mr Gwyn Newman and Mr Philip Bevan (until his departure in 2008) have provided additional help. Mrs Julie White became an Assistant Head Teacher as well in September 2007.

As is common in secondary schools, TRS is divided into year groups. Most pupils start at about age 11 in year 7 and progress through the school until year 11, the last year of compulsory schooling. TRS also had a sixth form with about 200 students. Each year would be divided into tutor groups but there would be a Head of Year for the year as a whole. The Head of Year would stay with their year group as they made their way through the school. Henry’s Head of Year was Mrs Dawn Blackler.

The school year is divided into 6 terms, corresponding to what used to be the half terms of the old system of 3 terms: autumn, spring and summer.

It is convenient at this stage to give an outline of the events prior to the day on which Henry was attacked although it may be necessary to return to consider some of them in a little more detail.

Henry’s mother and step-father moved to Wroughton in December 2002 and as a result he started at TRS part way through year 7 in the same month. Ms Cooper was the Head Teacher then. There was some evidence that standards of discipline in the school began to decline. Mr Lay who became a Governor and the chair of the Governing Body in 2003 noticed this. A Staff Attitude Survey conducted in 2004 paints a rather gloomy picture of the confidence of the teachers in the school’s ability to maintain discipline. This was also the impression of many of the pupils who gave evidence for the Claimants. Nonetheless, Mr Lay did not accept that the picture was quite as bad as some of them described.

As I have mentioned, in September 2005 the school was inspected by Ofsted. Its overall conclusion was that the school was ‘satisfactory’. This is the third of Ofsted’s four grades (the top is ‘outstanding’, second is ‘good’). I shall return to some of the Claimants’ criticisms of this as a measure of the school’s performance, but on the face of it, this was not a school in anarchy or chaos.

September 2005 also saw the arrival of a group of Asian students from a part of Swindon with a higher ethnic minority make up. From about this time both pupils and, at least some, staff began to notice a group of Asian boys congregating together at break and lunch times.

Many of the witnesses in this case referred to this group as ‘The Asian Invasion’. At first sight the term is pejorative and there is some evidence that it was applied to the Asian group by white pupils with this in mind. Thus Sam Gibbs said in an interview to the police on 13^th June 2006, “He had heard it used by White kids and it referred to Asian kids invading the country and school.” Sam Gibbs (then known as Barrington) was a pupil in year 11 in the academic year 2006-7. David Thorne, another pupil at the school in the year below Sam (and so in the same year as Henry) said the term was “was used by white lads to Asians in response to their comments such as ‘white trash’”. Jade Williams, another pupil, said that the term was used to describe the Asian pupils at the school “as they always stick together and act like they are trying to take over.” However, the Claimants’ witnesses said consistently in their evidence that the term had been adopted by the Asian group itself. No member of the group itself gave evidence before me. These two strands of evidence are not necessarily inconsistent. It would not be the first time that an expression has begun its life as a term of abuse but has then been adopted as a badge of pride by those against whom it was directed. There is another example in this case. ‘Paki’ is a well recognised racial insult, yet there was evidence that after the assault on Henry those responsible left shouting “We are the Paki bashers!” I think it more likely than not that the term ‘Asian Invasion’ had undergone a similar metamorphosis. I will continue to use it for this reason, without intending any of the slur which it may originally have been meant to convey.

The size of this group was a subject of debate and, no doubt, it varied from time to time. Broadly speaking, it seems to have encompassed between about 10 and 15 pupils. They were all Asian.

One of the members of the Asian Invasion was SS. He came to the school in 2003. By September 2005 he was in year 8. In October 2005 SS assaulted a pupil, MB, in year 7. SS was temporarily excluded from the school as a result. The exclusion was originally for one day but was then extended for a second and he did not return until after the following weekend. However, the day after the assault, the belief built up among a group of older white pupils that the school had either taken no action or insufficient action in response to this matter. The group went in search of the Asian pupils (or other Asian pupils) whom they thought responsible. It would be hyperbolic to describe this as a lynch mob, but the crowd built up until it was about 100 strong. Some members of the group were plainly spoiling for a fight with the Asian pupils. As Sam Gibbs (who claimed to have witnessed the attack on the year 7 boy) put it in his witness statement for these proceedings, “Everybody wanted to beat them up.” In his oral evidence he qualified this by saying that only some people wanted to beat up the Asian pupils. Mr Bevan was sufficiently alarmed that he thought that a prudent course was to take the Asian pupils and put them in a vacant class room for their own safety. He directed the largely white group which had gathered to leave them alone. It seems that some half dozen disobeyed because they were subsequently disciplined by being temporarily excluded from the school. It must have been an extremely worrying experience for the Asian pupils. I found it extraordinary that the meeting of the Pupils Committee of the Governing Body which was held on 10^th November 2005 was told that in the period since September there had been no racial incidents recorded. Because Mr Walton was not called to give evidence, this comment could not be explored further.

Shortly after this incident, Mr Walton conducted a school assembly in which he spoke of the need for racial tolerance and the evils of racism. Some of the white students felt aggrieved by his approach which they saw as critical of them and oblivious to their grievance that the Asian pupils had not been punished or adequately punished for the assault on the white boy.

There was evidence that the Asian Invasion made a practice of gathering together at break and lunch times, particularly in the Atrium. The Claimants’ witnesses said that they behaved in an intimidatory manner: they would deliberately jostle or barge those who tried to go past; they played Asian music loudly on their mobile phones; they would use insulting racial terms at white pupils and the Asian Invasion would throw food at them. Some felt that the group’ use of Urdu was exclusionary and a means of sneering at them. Debbie MacDivitt, one of the cleaners at the school, spoke of them destroying some of the school’s furniture. They were said to be frequently involved in fights.

In the early months of 2006 there seem to have been several racial incidents. One was witnessed in February 2006 by Robert Basley, a Behaviour Consultant, employed by Swindon and who made numerous visits to the school to give advice.

In March 2006 Julie White offered to come up with some suggestions to address the issue of racial tensions. She had a particular role in relation to behaviour. The school had a unit, called The Ridge, which she ran. This was an Emotional and Behavioural Difficulties Unit to which pupils could be referred or to which they could refer themselves. As its name implies, it catered not only for pupils who had behavioural or discipline problems but also for those who were experiencing particularly difficult emotional problems.

Mrs White canvassed the opinions of each of the Heads of Year as to which pupils might benefit from discussions with her about racism or race issues. She received only a few names. SS was among those who were identified. In discussion with her colleagues, Mrs White also thought there was a need to do something about the gathering of Asian boys. She had had no experience of them misbehaving. In dealing with her they had been polite and compliant. There were other groups of students who used to gather together. What made this group different, she thought, was that while most other groups would be drawn from a single year (or possibly two), this group had a wide age span. She thought that this was a product in part of those young Asian pupils who had joined the school in September 2005 not knowing anyone else apart from others who lived in the same part of Swindon as they did. She thought that a further reason might have been a wish among the Muslim pupils to seek security among their own in the aftermath of the London bombings in July 2005 and the anti-Muslim feelings which that had generated. She thought that a positive way forward and to encourage the younger members of this group to detach themselves would be to dedicate a room as a safe zone to which they could go if they felt uneasy. She also planned to have an anti-racism poster. She had regular meetings with a small group of Asian girls and intended to use them as a barometer of attitudes among the Asian pupils.

In April 2006 MM joined the school’s Year 8.

In May 2006 there were a number of incidents on which the Claimants rely.

At about this time Charlotte Benhalilou, a year 11 student was outside the school in Inverary Road walking home. An Asian man was having an argument with someone else. She intervened. He grabbed her and threatened to “slash her up.” She said that Mr Walton was very close by but did nothing to intervene. Her account was broadly corroborated by Mr and Mrs Thorne, the parents of David and Scott Thorne who were both pupils at the school. Mr Walton has provided a witness statement which I admitted as evidence in the case. He did not recall the incident but said that if he had witnessed an incident of this kind he would have reported it to the police. One of the striking features of this case is that the Defendant chose not to call Mr Walton to give oral evidence. His response has therefore not been tested in cross examination. Mr and Mrs Thorne were cross examined. I accept their evidence that it did happen. It may be that Mr Walton’s view of the incident was not as clear as they thought, but in view of Mrs Thorne’s evidence that he was only a metre away, I accept that it is more likely than not that he was able to see what had happened and, for some reason, did not do anything about it.

On 11^th May 2006 Taylor Rich, a year 10 pupil was involved in a fight on the school playing fields. He says that he was assaulted by boys in the Asian group and suffered a broken tooth, two black eyes and a bleeding nose. This was mentioned in the morning meeting which Mr Walton used to hold each day. Although for short hand described as ‘staff meetings’, the full staff only met on a Monday. On other days, it was the senior members of staff and the heads of year.

On 12^th May 2006 Alastair Burnett, another Year 10 pupil, was alarmed because he believed that one of the Asian pupils, HR, had pointed him out to two older Asian males who were standing outside the school. These two men had started to come towards him. At that point Alastair ran back into the school. He there encountered a teacher whom, he says, told him to go back outside. The Claimants allege that this illustrates two matters: that Asian men were coming down to the school to harass and harm white pupils; and that the School was indifferent to that risk.

I accept that Alastair may have been alarmed, but I do not accept either of these other matters. Alastair was asked in evidence to explain why the Asian men would have wished to harm him. They had said nothing to him, but he considered that it went back to a fight which he had had in February 2006 with another Asian pupil, Anil. Anil and Alastair had been temporarily excluded from the school as a result. Alastair said that he had shortly after this been challenged to a fight in Swindon town centre but he had declined to go. I find it unlikely that some three months later, this dispute should have been revived and led these Asian men to be brought down to the school to attack Alastair.

Nor do I accept that the teacher whom Alastair met was indifferent to his concern. In his statement for these proceedings, Alastair said that the teacher concerned was Mrs Blackler, his Head of Year. In a statement which he made on 26^th May 2006 to the police (primarily in connection with other events which took place later on 12^th May 2006) he said that it was Mrs White. I am quite clear that it was Mrs White that he met. This is because she made a statement to the police on 17^th May 2006 in which she described a pupil coming into the school and saying that he was alarmed by Asian men outside. She did not name the pupil, but it is highly likely to have been Alastair. Her statement continues that she told this pupil to wait while she went outside to investigate. I find that that is what Mrs White did. She was asked in re-examination whether in the circumstances that Alastair described, she would have told the pupil to go back outside. She responded, “I am the child protection officer in the school and would not send a pupil back to an area where he thought there was a risk.” I accept that evidence.

Mrs White’s statement to the police went on to say that she did see a car with four Asian men drive into the car park. She must be referring to what I have called the layby. This cannot have been the same car that Alastair described. In his video interview on 26^th May 2006, he said that the men who had scared him had come from a black VW Golf. Mrs White’s statement to the police says that she went across and spoke to the men who were in a metallic blue Mercedes. Mrs White says that the men to whom she spoke were all a little heated. They said to her “there’s lots of trouble and the teachers do nothing.” Mrs White chatted to them and they calmed down. The men’s remark does not appear to relate to a fight which Alastair had had many months previously nor do I accept that this incident showed that the Asian men had come down to the school with aggressive intent.

On 12^th May 2006 the year 11 students were allowed to go home at lunch time to start a period of study leave. There was some apprehension on the part of the school’s staff that there might be trouble of some sort. At the staff meeting that morning, Mr Walton asked the others to be on the look-out for ex Year 11 pupils hanging around the school, especially as they were leaving that day. In a statement to the police which he made on 18^th May 2006, Mr Walton also recalled that Mrs Rich had said to him “They’re all on MSN messenger and they are bringing in weapons.” She did not elaborate on this to him. Mr Walton’s statement continued that, as a result of her remark, he spoke with the Asian students and told them of his concern about weapons being mentioned. He reported, “They thought this hilarious and in a good humoured way showed me in their bags that they had none.”

At the end of the normal school day (i.e. about 3.50pm) some of the Year 11s did return to the school. These included Sam Gibbs and Amber MacCabe. Sam said that he had had a can of beer but was not drunk. Amber said that she had not been drinking at all. Sam met up with David Thorne whose parents were fostering him. An altercation developed between Sam and David on the one hand, possibly together with some other white students and, on the other, with some Asian adults who had come down to the school. This developed into something of a general melee in the course of which David and Sam were both injured. Sam suffered what either was, or might have been, a broken jaw.

Scott Thorne is David’s younger brother and was also a pupil at the school. The two of them were due to be collected by their father, Ashley Thorne. Mr Thorne did pick up Scott but David, as I have said, wanted to go elsewhere with Sam. Mr Thorne and Scott would have driven home but, before they left Inverary Road Mr Thorne had an uncomfortable feeling and decided to drive around the block to see that Sam and David were safe. By the time he returned, Sam was lying on the ground and David was stumbling.

Sam said that both Mr Mathews, a teacher at the school and Mr Walton had seen what had happened, but did nothing to intervene to protect the pupils. Sam said that it was his anger at this which caused him to go over to Mr Walton and to shove him.

Mrs White had been in the reception area that afternoon. I have already mentioned her encounter with Alastair Burnett and her subsequent conversation with the four Asian men in the car outside. Mrs White herself went into the road. She saw a group of pupils from the school on one side of the road and the Asian men in their car on the other. All of a sudden the groups came together in a fight. She heard racial insults from the white students (others present heard both sides using them). She considered that one of the white pupils had been drinking,

Scott said that when he and his father returned to Inverary Road he saw Asian men remove knuckledusters from their hands and toss them into their car. I reject this evidence. In re-examination he said that the men had been about 150 metres away when he saw them. In further cross examination this distance came down to 100 metres. However, even at that distance it would have been very difficult for Scott to see whether the men had taken something from their hands, let alone what they were. Although the police arrived at the scene while he and his father were still there, neither of them said anything to the officers about knuckledusters although this would have been obviously relevant. Scott Thorne’s evidence was also unsatisfactory. His witness statement for these proceedings clearly gave the impression that he himself had seen the fight. He named one of the Asian pupils as having head butted Sam. He said that Mr Mathews, a teacher at the school had witnessed the fight. Scott’s witness statement continued, “I remember being shocked by the fact that Mr Mathews stood and laughed as he was watching the fight.” Scott also said that the fight only ended when an elderly gentleman came out of the nearby flats. Yet in his oral evidence, he accepted that he had seen none of the fight. He had not seen Mr Mathews laughing and he had not seen the elderly gentleman come out of the flats. I concluded that Scott’s evidence was not reliable.

David Thorne’s witness statement for these proceedings said “I remember that some of the men were wearing knuckledusters”, but he did not remember this when he was first interviewed by the police on 18^th May 2006, 6 days after the event. In a later interview on 7^th June 2006 he said that “he thought that a knuckleduster may have been used but he did not see one”. He did not expand in that interview on why he thought one may have been used. I did not find this evidence to be reliable.

PC Miles has been the Community Officer in Wroughton since 2002. He led the investigation into this incident which was investigated as a possible affray. Seventeen possible suspects were interviewed. He said in his witness statement for these proceedings that there was little hard evidence as to who did what. The papers were passed to the CPS but they concluded that it would not be in the public interest for any charges to be made and none were.

As a result of pushing Mr Walton, Sam was effectively excluded from the school which meant that he had to take his exams elsewhere. The white girl who had been drinking was excluded for a temporary period for shouting racial comments.

Following the attack on Henry, Mr Walton gave to the Governors a lengthy description of his understanding of the 12^th May incident and some of the steps that he took following it. He said:

“May 2006 incident

It is always difficult when Year 11 depart. Mr Piper helped manage it. The Year 11s went home early, about 11:30 am. They had an assembly for awards etc to keep them separate, so it was managed well. The only problem was the pupils living in Wroughton as the rest got on the bus. That lunchtime there was an unrelated incident; a scuffle on the field with Pupil H and a Year 10 boy. It did not seem very serious, just a bit of a fight arising apparently out of the dispute in a game of football. I was on duty and knew that there were other staff patrolling elsewhere, watching for any Year 11s coming back. I took the two pupils involved in the fight back to my office -- it was a fight over a tackle. I asked both if it involved anything racist and both said no. I was convinced it was an isolated scuffle. The boys shook hands. I sent an e-mail to their heads of year regarding punishment. In my eyes that was the end of the matter.

During period 5 I had a meeting in my office with some other parents. This went on longer than anticipated. I missed being on duty at the end of the school day -- I normally "floated". When I went downstairs after the meeting, about 20 minutes after school had finished, I walked into a critical incident, involving staff, police etc.

It appeared that some Year 11s who lived in Wroughton had gone out to a party and had been drinking, and then came back to school. They had been joined by a Year 8 pupil who had truanted all afternoon to be at the party. They had returned to school, some of them drunk. None of the pupils had any right to be at school. A mother of one of the pupils confronted me saying a member of staff had stood and watched her son being hit by Asians. Elsewhere there were Asians driving away. Up the hill they were confronted by other Year 11s who were shouting racist abuse across the street. Mr Piper and Mr Bevan dealt with this. The police were called and statements were given.

One pupil claimed he had been attacked by an Asian who had jumped out of the car and hit him. After a long investigation, from the evidence, PC Miles felt that one of the white pupils had hit the Asian first, but this was conjecture.

Four or five Asian youths had got out of the car. There was a fracas at the southern end of the school's site involving a number of other pupils, some in Year 11 and the girl in Year 8 who had truanted that afternoon.

An internal enquiry indicated that Pupil H had used his mobile phone after the tackle incident and had suggested the older youths came in the car to school as a support group. I became certain that Pupil H was at the heart of the Asian youths arrival. The Asian parents who were helping me say that Pupil H was at the heart of it, but PC Miles said there was no evidence that the visiting youths had jumped out of the car and hit the white boy.

There was one other incident, a few days after the May event. There was a fight between an Asian boy and a white boy, and I am not even sure that this was a racial incident in any way. They were actually friends and regretted the fight. Both were excluded for two days, but this was the only fall out after the May incident. There was no racial tension in the School of any type from May onwards up to the point when I left. That is what I told Mr Colledge. Mrs White and Mr Piper worked on some of the multicultural issues. I would refute the idea that groups of Asian boys and white boys had a problem -- at least during turns five and six, when there were no incidents involving different racial groups whatsoever.

I accept that I could have resolved the eventual problem (January 07) if I had known more about Pupil H, as the initial investigation showed it was Pupil H who had made the phone call in May and I have heard he was involved in similar actions in January 07. Before May 06 his name was not known to me as he had never been in trouble. After the May incident, I was given a tip by the father of an Asian pupil who told me to look into Pupil H, who may have been stirring tensions and saying things outside school. He had been admitted following standard procedures and we were not aware of any reason why he should not have been admitted. During the investigation into the May 06 incident, Pupil H's head of year and I interviewed Pupil H's father. We said that we were concerned that Pupil H had been a destabilising influence due to his use of his mobile phone. His father said he could not have been involved as he was very strict. Father stated that he arrives home from school, eats, does his homework and then hours and hours at Islamic school. Pupil H's head of year and I became quite concerned and felt Pupil H was at the centre of these problems.

We invited Bob Basley into the school for advice during the summer term. It was a quiet term. There were no problems. I felt it was the departure date for the Year 11s which had sparked off the May incident. The use of a mobile phone became clearer when I interviewed other helpful Asian boys. However there was no change of mobile phone policy as I felt they were a fact of life and it would be difficult to implement. There was no further trouble with Pupil H before I left and I had no further cause for concern about his presence in the school. I made a point of monitoring his progress and the level of integration.

...

One thing I may have misinterpreted was associating the Asian group from outside school with West Swindon -- I now understand they may have come from another part of Swindon. Possibly if I had realised they were associated with the Broad Green group I might have been more worried, but not necessarily as -- I repeat -- the problem appeared to have died down I didn't want to classify this as a racist incident. There was a lack of clear evidence and I did not want to exacerbate the problem or cause any further souring of community relations. My strategy was to re-establish a peaceful atmosphere in the school and avoid unhelpful public or press comment which would not have helped the school.

Both Mrs Norman and myself felt that the strategy had worked and there was harmony in the corridors and on the sports fields. Supervision around the Asian boys was raised. PC Miles came back to see me in July after a long investigation. There were no prosecutions, except for one boy for assaulting me. There was enough evidence to prosecute one girl for a public order offence, but it was felt she had been punished enough by the school. There was no firm evidence against the Asian youths or the other white youths. I told PC Miles about my concerns over Pupil H. The school had carried out a thorough internal investigation.

The outcome was a lengthy exclusion to one pupil, the Year 8 girl, but I was not able to take action against the Year 11 pupils as they had already effectively left the school. The pupil who hit me was not permanently excluded, but he was not allowed back into the premises to take his exams. Mrs White was put in charge of a strategy for promoting racial harmony and she was helped by Mr Piper.”

It seems reasonably clear from Mr Walton’s witness statement for these proceedings that ‘Pupil H’ was MM. The mobile phone policy in the school at the time of this incident and, indeed, up to and including 11^th January 2007 was that pupils could not use their phones during lessons or other contact times. There was, however, no prohibition on them having phones in school or in using them at break or lunch times. Part of the Claimants’ criticism of the school is that there was no change in this policy after the May 2006 incident.

The boy who assaulted Mr Walton was Sam. Mr Walton was mistaken in thinking that he was prosecuted for this. He was not.

Although not mentioned in this report, Mr Walton’s witness statement for these proceedings said that a further measure which he took in consequence of this incident in May 2006 was to increase the staff presence at the end of the school day. This was a temporary measure. When there was no further trouble, it was reduced back to its former level. I infer that this occurred before the end of Mr Walton’s tenure as Joint Acting Deputy Head Teacher in July 2006.

Mr Colledge took up his post as Head Teacher in September 2006.

Shomun Ullah joined the school in October 2006.

On Friday 15^th December 2006 there was an incident at lunch time when Charlie Grabe was deliberately jostled or barged by some of the Asian boys. Precisely who did this is not entirely clear but the group included SS, MM and Shomon Ullah. Henry intervened and told the Asian group to clear off. A little while later, Charlie was in a dinner queue with some of his friends, including Lucy Finch. Shomon Ullah was just behind them. At one point Shomon threw a punch at Charlie which missed him but caught Lucy who suffered a bruise on her eye. Alastair Burnett, who was Lucy’s boy friend, came over and had to be restrained from confronting the Asian boys and, in particular, SS, who, he believed, had been the one who punched Lucy. Mr Bevan intervened. At his request, Charlie, Lucy, Alastair and Shomon completed incident report forms.

Charlie discussed the matter over the weekend with his father, Neil Grabe, who is a police officer. Between them they thought that an appropriate resolution would be for the school to supervise a hand shake between Charlie and Shomon to symbolise that both should put the matter behind them. On the morning of 18^th December 2006, Mr Grabe went into the school and proposed this to Mr Bevan and Mr Piper. Mr Grabe said in evidence that he emphasised his more general concern about the level of tension in the school and the risk of violence from the group of Asian boys. He said that he would remove Charlie from the school if any further threats were made towards him by this group. Mr Piper had only a hazy recollection of the conversation. Mr Bevan agreed that Mr Grabe had referred to his concern about racial tensions. I conclude that it was likely that Mr Grabe also articulated his fears that these tensions might lead to violence of some kind. Mr Grabe was in Inverary Road immediately after the attack on Henry. He said that Mr Bevan came up to him and said “I suppose you are going to say I told you so?” Mr Bevan recalled that he had had some conversation with Mr Grabe that afternoon, but denied using these words. I prefer the evidence of Mr Grabe on this question. The remark reinforces my conclusion as to the essence of what Mr Grabe had said on 18^th December 2006.

Mr Piper agreed with the course that Mr Grabe proposed. Later that day Shomon Ullah and Charlie Grabe went to his office and did shake hands. Charlie thought that Shomon treated the matter in a rather off-hand manner, but at the time he thought that the dispute between them was resolved and, indeed, he had no trouble personally after that incident.

On the same day, 18^th December 2006, Alastair Burnett was upset to find that SS had not been suspended for his part in the events on the previous Friday. Alastair and SS agreed to have a fight on the tennis courts at lunch time. However, before the appointed time, Alastair glanced out of the school windows and says that he saw three or four Asian men walking down in the direction of the tennis courts (In oral evidence he said that it was two or three Asian men). He was alarmed. He believed that SS must have contacted his friends or relatives and got them to come down to the school to fight for him. He reported his concerns to Mrs Blackler. He says that Mr Colledge and Mr Piper were informed in turn and that they went to investigate. Mrs Blackler did not recall this incident, but Mr Colledge said that he and Mr Bevan (rather than Mr Piper) did get a report. They did go to investigate the road and the tennis courts, but they saw no one.

The staff meeting minutes for the following day recorded a report from Mr Piper that Alastair Burnett had said that people were enticing him into fighting and staff were asked to keep an eye open. They also noted that there had been three intruders on the site the previous day and the police had been called.

It transpired that the police were called twice on 18^th December 2006. The first occasion was at the beginning of the school day. That was to report a break-in to two of the mobile class rooms over night. The second occasion was at about 13.24. The message sent by the police controller to the officers who responded was “Asian pupils causing probs” and “There have been fights in the past.” At 13.49 the officers reported that they had spoken to staff and “there were no persons on the premises on police arrival”. The police officers returned at the end of the school day. They waited until 4.15pm, but all was quiet.

Adrian Hill was a taxi driver who had a contract to collect two girls from TRS at the end of each day. He gave evidence that about three weeks before the attack on Henry he saw some suspicious looking older Asian lads hanging around the grass at the side of the tennis courts. The Claimants submitted that these might have been the same Asian men that Alastair Burnett had seen. I do not agree. In Mr Hill’s witness statement he said that this event took place on the last day of the term when the children he was collecting left school early. However, 18^th December was not the last day of term. Mr Hill’s normal routine was to arrive outside the school at about 2.30pm. On 18^th December that would have been well after both Mr Colledge and the police had investigated and found no-one. Mr Hill’s evidence was also less firm than it first appeared. In his witness statement for these proceedings he said that on 11^th January 2007 he saw “the same Asian men as three weeks previously.” However, in his statement given on 30th January 2007 to the police in accordance with s.9 of the Criminal Justice Act 1967 (other statements of this kind are referred to below as a ‘s.9 statement’) he said of the men who came on 11^th January “I didn’t know or recognise them, I don’t recall having seen them at the school before.” In his oral evidence at the present trial, he said one of the Asians looked similar but he could not be sure. I do not find that Mr Hill’s evidence assists me in deciding what happened on 18^th December 2006.

I find that Alastair’s alarm was real: the teachers took it sufficiently seriously to investigate the matter themselves and to inform the police. However, there is too little evidence to say whether there was objective cause for this fear. He said that the men were strutting, but, as he also said, that was like most lads behaved who thought themselves to be big. There was no one by the tennis courts when either Mr Colledge or the police went down to look.

Term 2 ended on 22^nd December 2006. On that day a seventeen year old pupil at TRS was in Wroughton village outside the Co-op. A car with some Asian youths inside it pulled up beside him and asked him if he was a pupil at The Ridgeway School. When he said that he was, someone got out of the car and hit him and then drove off. On 4^th January 2007 PC Miles spoke with the boy and his father, but ultimately they chose not to make a formal complaint. He was pretty certain that he would have reported the matter to Mr Colledge but he could not say when he did so. In his evidence, Mr Colledge said that he first learned about this assault on 12^th January (i.e. the day after the assault on Henry) when he was told about it by other pupils at the school. I find that Mr Colledge was not told about it before the attack on Henry.

Term 3 started on 8^th January 2007 but that was probably an “inset” or day set aside for teacher training. The pupils returned on 9^th January 2007.

Henry travelled to school by bus on 11^th January 2007. Nothing of significance happened until the morning break. This lasted between 11.25 and 11.45am.

Henry was in one of the corridors when, he says, a few of the Asian boys bumped into him. The group included MM, HR, SS and Shomon Ullah. The briefing which the police subsequently gave to journalists at the criminal trials said that Henry was heard to say “you lot are all pussies, I could take you all on at once.”

There was some more name calling and swearing. After the attack, Henry was asked by the police if he could remember what was said. He said that he could not but “there was nothing racist if that’s what you’re asking.” These verbal exchanges, though, did lead to Henry punching MM on the cheek with his right fist. Henry says that it was a soft punch and, from the police briefing, it seems that MM agreed that this was all it was.

All of this took place in the corridor outside room 23. It was by now the end of break and a teaching assistant, Sherralyn Gower, stepped into the corridor to investigate the continuing noise. She saw a large number of pupils, possibly as many as 30. In the centre were three Asian pupils and Henry. She saw no physical confrontation, but some of the pupils were shouting to try and incite a fight. She dispersed the pupils to their lessons. She met Mrs White and told her what she had witnessed. Four of the pupils completed incident report forms. Although brief, these suggested that Henry had pushed and punched MM. A teaching assistant took these forms to Mr Piper.

Mr Piper also learned something about what had taken place in a telephone call from the school’s receptionist, Mrs Dee Vincent. Mrs Vincent had in turn received a call from Jane Oades, a pupil support mentor. The evidence as to what information passed through these various links was not entirely clear.

At about 12.30 pm Mr Piper went to Henry’s lesson in order to begin an investigation into this incident. He found Henry and took him back to his office just before the lunch break began at 12.45. He asked Henry to complete an incident report form. Henry wrote,

“I walked through the boys because they were in the corridor and then they started on me calling me names etc.

Then I walked off and the bell went so I had to go back through the corridor I walked past them.

And they followed me calling me names and I was saying things back.

Then I turned back and [MM] said ‘you fat s***’ to me and I said ‘say that to my face’ so I walked up to him and he repeated the phrase then the other 4 boys huddled round me and I hit [MM] then all the other 4 started pushing me then I walked off.

Has happened before with me and other people.”

Mr Piper said in his meeting with the governors on 28^th March 2007 that he asked Henry “Is something going to happen? You’ve been involved in this – do you feel threatened?” Mr Piper told the Governors that Henry was dismissive and said “No. It’s nothing”. Henry said nothing about further action. He did not feel uncomfortable or threatened. That accords with Henry’s oral evidence when he said that the break time incident was “not very serious” and “I didn’t think it was a big deal.” Mr Piper said that Henry’s tone of voice and body language as well as his actual words gave the impression that he was neither upset nor troubled. In his s.9 statement to the police which he made on 28^th February 2007, Mr Piper said that he told Henry that if he subsequently felt threatened or uncomfortable during the day then he should come straight to his office. The interview ended at about 1.0pm.

Henry says that the interview ended with Mr Piper saying “I hope that’s the end of it, if anything else happens between you and these boys I will hold you to blame.” Henry considered this to be unfair since Mr Piper at that stage had only spoken to him and not to the other boys involved. He disputes that Mr Piper ended the interview by offering him the opportunity to stay in his office for the remainder of the lunch time. Having heard evidence from both of them, I think Mr Piper’s account of how the conversation ended is more likely to be correct.

After the end of this interview, Henry joined a group of his friends. He ate his packed lunch. Some of the Asian boys came up to him and tried to taunt him. Henry told them to go away. Taylor Rich and some other white boys then tried to provoke Henry into having a confrontation with the Asian boys. Henry went with them outside to the area between the mobile classrooms and the New Science block. A group of white pupils gathered by that corner while 7 or 8 of the Asian boys gathered a little further towards the junction of the two arms of the school (see above paragraph 14). There was some minor pushing and shoving between Henry and HR. Henry then drifted towards the back of the group of white pupils.

At about 1.20pm Mr Piper had had another call from Mrs Vincent to say that a group of year 11 boys were at the back of the mobiles and could he go out to them. He went straight away. He found Henry among the group and asked him to come back to his office.

It was Henry’s view that Mr Piper must have seen the distinct group of Asian pupils who were only a few metres away. Mr Piper says that he did not see them and there was nothing menacing in the situation which he encountered by the mobiles. He saw none of the boys who had been mentioned in the earlier incident. Although the Claimants challenged this account, I accept it. The number in the Asian group was relatively small (about 7-8) and could have dispersed very quickly. I was shown stills from the CCTV coverage of the mobiles at about this time. They were not very helpful. They show a gathering of some pupils at the end of the New Science Block. It is difficult to tell with any precision how many pupils are in that group. One of the mobiles obscures the camera’s view of the other end of the New Science Block where the group of Asian pupils was said to have been. In short, the photographs do not show Mr Piper’s evidence to be wrong.

Mr Piper said that he took the Claimant back to his office for a second time because he had only just left him half an hour previously and Henry was at the scene of another matter which he was asked to investigate.

Mr Piper asked Henry what was going on. He said ‘nothing’. The bell went for the start of the first period after lunch (1.40pm). In his interview with the Governors, Mr Piper said that he had asked Henry if he was OK to go to his lessons and Henry had replied that he was. Mr Piper had said that if Henry had any further problems he should come back and see him. He had also told Henry that he should go to his bus queue at the end of the day. Henry agrees that this second interview took place and that he told Mr Piper that nothing had been going on. Neither Henry (nor Mr Piper) suggests that Henry said anything about a planned fight. Henry disputes that Mr Piper told him to go to his bus queue at the end of the day. He said that Mr Piper did not know how he travelled to school. Mr Piper agreed that he had no actual knowledge of Henry’s method of transport, but, since over half the pupils did take a bus, this was a reasonable assumption and Henry did not refute it. I accept that the conversation was broadly on the lines which Mr Piper related. The Claimants suggested in the alternative that if Mr Piper told Henry to go straight to his bus queue, it must have been because he had concerns about what might happen at the end of the day. Mr Piper said this was not so. Words of this kind were what he would customarily use as a form of default script. I accept this evidence.

Before Mr Piper arrived on the lunch time scene, Mr Colledge had been there. He had seen two groups: one of white pupils and a smaller one of Asian pupils. This had not caused him any concern.

Evidence gathered by the police showed that MM borrowed another pupil’s mobile phone. At 13.23 he phoned his older brother, RM. The call was terminated after a short time. A minute later MM made a second call to his brother. The police inferred that the first call was terminated because MM caught sight of a teacher. In one or other of the calls, MM said “it’s your little brother…there’s this big fat ginger kid who wants to fight me in the tennis courts after school.”

There is a difference in the evidence as to whether a fight after school had by then been arranged. The evidence gathered by the police was that Henry was heard to say to MM, “If you want a fight we can have one in the tennis courts after school, one on one but don’t bring any of your cousins or any of your family.” MM is said to have responded that he wouldn’t bring any of his family down and everyone walked off. It was said to be after this that MM called his brother.

Henry said in his witness statement for these proceedings that he did not remember initially agreeing to fight MM, but he did remember that by the time of the first lesson in the afternoon it seemed inevitable that he would have to fight MM. He says that after his first lesson of the afternoon he passed one of the Asians who stopped him and said that the fight would take place in the tennis courts after school. Henry said that he responded “Okay as long as it’s only one on one”.

In his witness statement, Henry said that by the latter phrase he meant to exclude other Asian pupils in the school. This contrasts with the remark which the police briefing attributed to him - i.e. that MM should not bring his cousins or other family members. We do not know the specific source for this part of the briefing, but the Defendant observes that Paragraph 14 of the original Particulars of Claim served in April 2008 said,

“The said Asian pupils persisted in challenging the First Claimant to a fight and he eventually agreed to fight MM at the tennis courts at the end of the school day. The First Claimant made it clear that MM was not to bring any of his ‘cousins or family’, to which MM agreed. At that point the incident was broken up by the arrival of members of the School staff. This incident was recorded by the School CCTV system.”

The italicised sentence was deleted by amendment on 24^th August 2009 and in his evidence Henry said that it never occurred to him that MM might call in outsiders. However, the deleted sentence was supported by the 3d Claimant’s statement of truth on her own behalf and on behalf of the 1^st and 2^nd Claimants. It is consistent with the evidence summarised in the police briefing and it is difficult to see how it could have been included in the Particulars of Claim unless it was at the time consistent with what Henry was then saying. Ross Garcia was another Year 11 pupil at the school. Three days after the attack on Henry he gave a s.9 statement to the police in which he spoke of the encounter between Henry and the Asian Invasion at lunchtime on 11^th January 2007. He said that another Year 11 student, Alastair Burnett, stepped in and warned Henry not to start anything because “you know what will happen. They will get their cousins/uncles or whatever and then it’ll be more serious.” Alastair Burnett was not at school that day and so it could not have been him who said these words to Henry. One possibility is therefore that Ross Garcia is mistaken and the whole incident never happened. Another possibility is that these words were spoken, but by someone else. Ross Garcia’s written statement was admitted by agreement and so the matter could not be explored with him in court. However, this second possibility chimes with a remark which Henry made to the police in his interview with them on 17^th January 2007 when he said “they just try to pick fights with everyone, and then they’ve apparently they’ve called down their uncles before so.” In cross examination, Henry said that this was information he was given while he was in hospital. Charlie Grabe, however, gave evidence that there was a prevailing view among the pupils at the school from before Henry was attacked that the Asian pupils would call on adults. Charlie and Henry were good friends. If Charlie had gained this impression, it would be surprising if Henry had not as well. The precise truth about what had happened in May 2006 is beside the point for present purposes. Even if it was only a myth that Asian pupils had called on their adult relatives to join in fights on their behalf, the existence of the myth would support the view that Henry was concerned that MM might call on outsiders and explain why Henry was keen to exclude this possibility by insisting that his fight with MM should only be one-on-one. In weighing Henry’s denial, I must take into account that his memory has been affected by the assault. I conclude, on the balance of probabilities, that his expressed wish for this to be a fight, “one-on-one” with MM was intended to exclude outsiders as well as other members of the Asian group within the school.

In his witness statement, Henry explained why he agreed to fight. He said that he thought that this was the only way that he could sort things out with the Asians. He did not think that Mr Piper was on his side. He was also under peer pressure to agree to a fight. In any case, because he was so much larger than MM, he did not expect the fight to materialise. He agreed to the tennis courts as a venue for the fight because it was out of sight of the teachers but was still on the school grounds.

At 14.43 HR sent a text to a friend or relative to say “Yeah, all da goreh in year 11 r ther nd 1 ov da big 1s want a fite” which translates as “yes, all the whites in year 11 are there and one of the big ones wants a fight.”

Taylor Rich gave evidence that he had seen the Asian pupils on their mobile phones at lunch time and guessed that they had been in touch with their friends and relatives to bring them down to the school for a fight. He said that he warned Mr Whiting, the head of the PE Department, about this. I reject this evidence. In his s.9 statement which he gave to the police on the day after the incident, Taylor made no mention of seeing Asian pupils on their mobile phones, his appreciation of what this implied or of his warning to any of the staff in the school. None of these things were mentioned in any of his three subsequent s.9 statements. None of them were mentioned in his witness statement for these proceedings. He said in his oral evidence in these proceedings that he had mentioned these matters when he gave evidence in the criminal proceedings. However, a transcript of his evidence at that trial showed that this was not true. On the contrary, he then said that he only knew there was to be a fight a few seconds before it started.

In cross examination he said that he made his report to Mr Whiting in a PE class straight after lunch. However, Mr Whiting said that the first lesson after lunch he taught swimming to some girls and in the next and final lesson of the afternoon he taught kayaking in the swimming pool. He did not teach Taylor at all that afternoon. When Taylor was recalled, he said that he may instead have reported the matter to Mr Whiting during lunch time when he played sport in the sports hall. I reject this as well. It was inconsistent with his earlier testimony which was precise as to when and where the information had been given to Mr Whiting. In any case, if the calls were made by MM at 1.23 or shortly afterwards, there would have been barely time for Taylor to take part in a sports activity before the lunch break came to an end at 1.40pm. Having seen both Taylor Rich and Mr Whiting give evidence, I unhesitatingly give greater credence to the denial of Mr Whiting that anything of this kind was reported to him. It is Mr Whiting’s evidence which I accept.

Goldie Kumar also gave evidence that he had seen the Asian boys on their phones after the altercation between Henry and the white boys on the one hand and HR and a group of about 7 Asian boys on the other. Goldie said that he assumed that the Asian boys were calling their relatives to join them at the end of the day. I am doubtful as to whether this evidence is correct. On 6^th March 2007 Goldie made a s.9 statement to the police. He gave an account of the lunch time confrontation, but he made no mention of the Asian boys using their phones or his assumption that this was to call their relatives. These matters would have obviously been relevant. But even if Goldie is correct in his evidence, he accepted that he said nothing about what he had seen to any member of staff that afternoon. He said that he only made the connection after the attack on Henry.

That afternoon, Mr Piper had a pre-arranged meeting with Mr Basley, the Behaviour Consultant who had been contracted by Swindon Borough Council to provide assistance and advice to the school.

Henry’s last lesson of the afternoon on 11^th January 2007 was Business Studies which was taught by Mr Edward Sims. Mr Sims recalls one of the pupils in the class calling out to Henry and when questioned by Mr Sims, saying “we are just talking about after school. We are meeting on the tennis court. We are going to play tennis.” This was unlikely to have been the case given that the ground seemed to have been very wet after recent rain. In any case, Mr Sims rebuked the boys for arranging their social lives in class. He noticed that Henry was eager to leave the class and had to be held back until the bell went at 15.50.

The CCTV camera on the corner of the sports hall points into the tennis courts although its coverage does not include parts of the southern most side of the courts. The Claimants count 278 pupils using this as their route out of the school on that day. Henry can be seen crossing the courts before he disappears into the blind spot. According to Inspector Wilkinson the timer on the CCTV was about 11 minutes fast. This would mean that Henry arrived on the tennis courts at about 15.56pm

There was no member of staff either on the courts or at the gates out of the tennis courts on to Inverary Road. In accordance with the school’s usual practice, most of the staff on duty at the end of the day were shepherding the pupils in to queues in Centre Court or Craft Court or arranging for them to board the buses in the layby safely. Mr Piper was usually at the St Andrews Close exit. Other staff were on duty in the Leisure Centre and Sports Hall corridors, but at the critical time on this afternoon, none could see into the tennis courts. Mr Colledge was in a meeting with Mr Bevan during the last period of the afternoon. Because of what he had heard about the break time and lunch time incidents, Mr Bevan suggested that the two of them be present at the end of the school day. Mr Colledge stood at the entrance to the layby. While this would have given him a view up and down Inverary Road (subject to parked cars), it would not have been possible for him to see into the tennis courts or the tennis court gate itself.

Mr Hill was waiting to collect his two girls. He thought that there were some Asian men hanging around in Inverary Road outside the tennis courts before the pupils started to emerge. Inspector Wilkinson said that the evidence which the police gathered showed that three cars brought Asian men to the school. They drove to the bottom of Inverary Road, turned around and parked back up in Dunbar Road. They then ran or walked fast down towards the tennis courts. Some witnesses reported the Asian men shouting “fucking Paki bashers” in loud agitated voices.

At or near the tennis courts gate, MM, Saheed Rahman and SS pointed Henry out to the Asian men. Wasif Khan, Amjad Qazi and Nazrul Amin ran on to the tennis courts and began to attack Henry. Wasif Khan produced a hammer and hit Henry six times on the head with it. By this time Henry was lying on the ground bleeding from the blows. These were forceful blows and caused, among other injuries, a depressed skull fracture. MM, SS and Shomon Ullah were seen to kick Henry once he was on the ground. Others were seen to punch him.

The whole attack took a very short time: about one minute. After it was over, the perpetrators were seen to run back to the cars. Again there was evidence that there were shouts from them of, “this is Paki bashing”. This is part of the evidence from which the Claimants invite me to conclude that this was an attack motivated by racism, although it is right to record that the conclusion of Inspector Wilkinson was that it was not. I shall need to return to this issue.

Although 4 pupils and 3 adults took part in the immediate attack on Henry and although he suffered kicks and punches as well as blows from the hammer, it was the latter which caused the injuries to his head and it is the head injuries which are the subject of the present action. The trial Judge summed up the evidence which she had heard in her sentencing remarks when she said:

“The kicks caused no injury to Henry; that damage had been done by the hammer. I fully accept that none of the defendants, younger or older, apart from the hammer man knew that a hammer was to be used. I have no doubt that the older group who attended were there to mete out punishment to Henry, but not, though, the kind of punishment that he actually received.”

There has been no evidence in the present proceedings from which I could reach different conclusions to these.

Mr Colledge noticed a group of 15 – 20 people gathered outside the tennis courts. He thought this unusual and went down the road to investigate. As he did so, it became apparent that something had happened. He could hear people shrieking and he noticed a couple of youths running up the road. He arrived at the tennis courts to find Henry lying on the floor with two members of staff attending him.

Joseph Webster, the 2^nd Claimant was queuing for his bus in Centre Court when one of his friends came over and said that Henry had been hit over the head with a hammer. He lent Joseph his mobile phone and Joseph spoke to Mr Durnford, the 4^th Claimant and told him what had happened. Joseph went over to the tennis courts. He saw his brother lying on the ground. There was a great deal of blood. Shortly afterwards Mrs Webster, the 3^rd Claimant and Mr Durnford arrived as Henry was being carried into the ambulance. I have noted the concession which the Defendant has made in relation to the 2^nd, 3^rd and 4^th Claimants. I agree that that was properly made. I would, in any case, have found that these three did witness the immediate aftermath of the attack on Henry.

Henry was taken to hospital. He was found to have suffered a compound depressed skull fracture with an underlying frontal lobe contusion. Surgery was necessary to debride and close the wound. He was discharged on 15^th January 2007 but had to be readmitted as a neurosurgical emergency on 8^th February 2007. He was subsequently discharged for a second time on 11^th February 2007. The right frontal lobe contusion resolved spontaneously but there has been an underlying area of cortical damage in the frontal lobe of the brain. He continues to suffer from short term memory problems and difficulties with concentration. When giving his evidence he was allowed to have breaks whenever he requested them. In view of the fact that this trial is concerned only with issues of liability, it is not necessary for me to go into the nature of the consequences of the assault for Henry (or the other members of his family) in any greater detail.

The police investigation began immediately. I have already referred to the two trials which followed. On 30^th July 2008 the Court of Appeal Criminal Division dismissed WK’s appeal against sentence. The Attorney-General’s reference of several other sentences as unduly lenient was also dismissed - see R v WK and others [2008] EWCA Crim 1989.

Almost immediately after the attack, MM, Shomun Ullah, SS and Saheed Rahman were suspended. They were in due course permanently excluded from the school. The departure of two other Asian pupils from the school was negotiated.

Mrs Webster and Mr Durnford made a formal complaint to the school about the failure to take sufficient care of Henry. The Governors appointed two of their number to investigate. They were Mr Buckland and Ms Alexander. They interviewed a number of the staff in the Spring of 2007. As will already have been apparent from the narrative that I have given so far, I received the reports of many of these interviews (as well as s.9 statements taken by the police) as hearsay evidence. As I understand, the Governors have not produced a report on the investigation pending the outcome of the present proceedings.

After the attack on Henry, the school undertook several changes to prevent any recurrence of a similar attack. It is part of the Claimants’ case that these were measures which could and should have been taken before the assault on Henry and, if they had been, that attack would have been prevented. In particular, the Claimants emphasise the following:

The Claimants acknowledge that Mr Colledge subsequently was instrumental in raising standards in the school, both in terms of academic performance and in terms of behaviour. When Ofsted carried out its next inspection in 2008 the school’s overall rating was ‘outstanding’.

Henry and Mrs Webster have made claims to the Criminal Injuries Compensation Authority. Henry has received an interim payment.

Mrs Webster was anxious that a Serious Case Review should be conducted by the Local Safeguarding Children Board in Swindon and that this should include a full investigation of the attack on Henry, the events leading up to it and the lessons to be learnt from it. On 10^th February 2009 the Board agreed to conduct a review but, pending the outcome of the civil claim for damages by the Claimants, to limit the investigation to lessons that could be learned. Henry challenged this decision by way of judicial review. On 22^nd October 2009 (as it happened, the third day of this trial) Mr Kenneth Parker QC (as he then was) sitting as a Deputy Judge of the High Court quashed the decision - see R (Henry Webster) v Swindon Local Safeguarding Children Board [2009] EWHC 2755 (Admin).

I have summarised in paragraph [6] above how the Claimants put their case. Primarily it is a claim in negligence. I shall deal later in this judgment with their alternative claim under the Human Rights Act 1998. It is, though, worth emphasising what this claim is not.

The Amended Particulars of Claim allege that the Defendant owed management responsibilities for the safety and security of pupils while on school premises including during their departure at the end of the day, for the establishment and maintenance of effective policies to promote and maintain proper standards of discipline and behaviour and to establish and maintain effective policies to promote racial equality and to discourage and to prevent racist conduct or racial bias on the part of pupils at the school.

Next the Claimants plead that the school was obliged to have in place policies concerning Race Equality, Behaviour and Health and Safety. It had such policies and the Claimants plead that, as a result, it accepted certain duties and responsibilities contained in those policies. Twenty three instances are then set out. Thus, for instance, by reference to paragraph 4.8 of the Security Policy it is alleged that the school assumed a duty to ensure that at the end of the school day duty staff would be located by all the exits.

Finally, it is pleaded that

“In all the circumstances, the Defendants owed the First and Second Claimants a duty to act in their best interests at all times and to act as a prudent and responsible parent to them whilst they were on school premises or otherwise under the supervision and/or care of any member of the Defendants’ staff and to exercise proper discipline in relation to pupils of the school when on school premises or otherwise under the supervision and/or care of any member of the Defendants’ staff and in relation to pupils’ treatment of each other and/or to comply with their aforesaid policies and/or to comply with their relevant statutory duties and/or to take heed of and comply with advice and guidance from the DfES, Ofsted and other bodies as set out hereinafter.”

The general nature of a school’s duty towards a pupil has been stated many times. As Auld LJ said in Gower v London Borough of Bromley (Court of Appeal 29^th July 1999),

“A head teacher and teachers have a duty to take such care of pupils in their charges as a careful parent would have in like circumstances, including a duty to take positive steps to protect their well-being”.

In this case the attack on Henry took place after the end of the school day, but that is not necessarily decisive as to the end of a school’s duty towards its pupils, particularly as, in this case, Henry was still on school premises at the time: see Kearn-Price v Kent County Council [2002] EWCA Civ 1539 at [18] and Bradford-Smart v West Sussex County Council [2002] EWCA Civ 07 at [32].

Mr Walker emphasised that Henry’s injuries had been caused by a criminal attack. The liability which the Claimants sought to impose on the school was for pure omissions - in not taking steps to prevent that attack. But, submitted Mr Walker, generally there was no such duty of care to take positive steps to protect a person against the deliberate voluntary acts of third parties: see Smith v Littlewoods Ltd [1987] 1 AC 241 per Lord Goff at p. 271. There are, of course, exceptions. One is where the defendant is responsible for controlling the wrongdoer e.g. Dorset Yacht Co. Ltd v Home Office [1970] AC 1004. In this case the hammer man, Wasif Khan, was an outsider. He was not a pupil at the school. The Claimants, though, do say, that the events which caused Henry’s attack were set in train by MM and possibly the other Asian boys who were pupils at the school. Another of Lord Goff’s exceptions to the general rule that there is no liability for a pure omission to act is where responsibility is imposed on, or assumed by, the defendant (see Smith v Littlewoods Ltd at p. 272). The Claimants argue that this was the position here.

I accept that the relationship of school and pupil does make a difference. I look at the three fold test in Caparo Industries plc v Dickman [1990] 2 AC 605. It is reasonably foreseeable that on occasions outsiders may seek to harm pupils in a school. The mass of official advice as to the need for schools to consider measures to secure their sites (see paragraph [123] below) is premised on that reality. There is a relationship of proximity in the school / pupil relationship at least while the pupils are on the school’s premises. Mr Walker argued that it would not be fair, just and reasonable to impose a duty of care against such a risk. It is true, as he argued, that the state already provides a compensation scheme where people have been injured by the criminal acts of third parties but that cannot be a general answer or there would never be a duty of care to protect against possible criminally caused personal injury. That is not so as Swinney v Chief Constable of Northumbria (No.1) [1997] QB 464 illustrates. There has not previously been a case, the parties tell me, where a school has been found to be liable for personal injury caused by an attack on a pupil by an outsider. That is not a complete answer, but it does bring in to operation the injunction that courts should take care to extend duties of care only incrementally (see for instance Lord Bridge in Caparo (above) at p. 618). There have been cases where a duty of care has been found to exist against the risk of personal harm from other, bullying, pupils (e.g. Bradford-Smart v West Sussex County Council - above). I recognise that the present case is different in the sense that the harm for which Henry seeks compensation was caused (at least immediately) by an outsider and not by pupils under a degree of control from the school. But that, too, cannot be a complete answer. Schools may also be under a duty to protect pupils from traffic hazards. There the immediate cause of the personal injury may be blameless, although I do not think that a school would be able to say that its duty of care stopped short of protecting their pupils from drivers who were themselves careless or even reckless. I consider that it would be fair, just and reasonable to conclude that to some extent, at least, the school had a duty to take reasonable care to safeguard and protect Henry from attack by outsiders. Indeed, when pressed, Mr Walker agreed that if the school had had clear information that Wasif Khan was making his way down to the school with the intention of harming Henry, it would have had a duty of care to warn him.

However, I do not agree that the school’s adoption of the policies to which the Amended Particulars of Claim refer mean that it had assumed responsibility for seeing that they were carried out or enforced. The imposition of a statutory duty may or may not attract civil liability if the duty is not observed. Ultimately it is a question of Parliament’s intention in imposing the duty. As I have said, the Claimants do not base their claim on an action for breach of statutory duty in this case. Where there is no liability for breach of statutory duty, the courts have resisted the idea that liability may nonetheless be incurred on the basis of a duty of care arising out an assumption of responsibility: see Mitchell v Glasgow City Council [2009] 1 AC 874 and X and Y v London Borough of Hounslow [2009] EWCA Civ 286. The reason is that an assumption of responsibility leads to a duty of care only if the assumption is voluntary. Where it flows from an attempt to carry out a statutory duty it is not voluntary.

In Bradford-Smart v West Sussex County Council (above) the Claimant alleged that she had been bullied outside school and on her journeys to and from the school (further allegations that she had been bullied at school were rejected by the Judge). At [38] Judge LJ giving the judgment of the Court of Appeal said,

“There is no magic in the term bullying. Any school has to have sensible disciplinary policies and procedures if it is to function properly as a school at all. It will no doubt take reasonable steps to prevent or deal with one-off acts of aggression between pupils and also recognise that persistent targeting of one pupil by others can cause lasting damage to the victim. In seeking to combat this it is always helpful to have working definitions in the documentation we have seen. The problem is now well enough recognised for it to be reasonable to expect all schools to have policies and practices to meet it; indeed this school developed just such a policy in ‘Working Together’. We agree that such policies are of little value unless they are also put into practice. But in order to hold the school liable towards a particular pupil, the question is always whether the school was in breach of its duty of care towards that pupil and whether that breach caused the particular harm which was suffered.” (emphasis added).

The last sentence shows in my view that the non-implementation of a policy is not sufficient unless the Claimant can also show that that amounted to a breach of the duty of care owed by the defendant.

I am not sure that the duty in this case can be expressed more specifically than to say that the school had a duty to take reasonable care to see that Henry was reasonably safe during school hours and for a reasonable period after the end of the school day while he was still on the school’s premises. Whether the school was in breach of that duty and, if so, whether such a breach was causative of Henry’s injuries in fact or law are further questions. It is to them that I now turn.

The Claimants say that the School was in breach of its duty of care to Henry because the site was so insecure. They rely on government and official advice as to the advantages of a school securing its perimeter, the School’s security policy which purported to adopt a policy of securing the site, the absence of any proper risk assessment and the School’s awareness that intruders were coming on to the site and the obvious risks which this posed. Despite this, the Defendant allowed the site to remain open and insecure. After the attack on Henry the money was found to construct a perimeter fence. Had the School acted with proper diligence it could and should have secured funding for this necessary measure before the event.

Official advice included the following:

The School’s Security Policy first adopted in 2003 said that the School aimed “to secure, as safely as can reasonably be expected, its site…against trespass…and to maintain a safe environment for all…pupils…by securing the school community against any threat from intruders.” At paragraph 2.2 it said “Pupils have a right to feel secure and untroubled from any possible threat posed by intruders into the school premises at any time whilst the school is open. Paragraph 13.6 said “The Ridgeway has a security plan allocating resources for improved security as follows…to consider the phased installation of additional perimeter fencing to the north and north east of the site, additional security lighting and additional closed circuit TV.” The Security Policy was reviewed in 2006 but these aspects remained essentially unchanged.

There was, as I have mentioned, a claimed right of way across the school’s field. Members of the public quite commonly used this route. Apart from these claimed lawful uses, there was a fairly steady of stream of examples of intruders coming onto the school grounds and sometimes into the school buildings themselves. Some were not much more than an irritant e.g. ex-pupils or pupils who had been excluded and who ought not to have been at the school. Sometimes these were seen as more troublesome. On 8^th November 2006 the Premises Health and Safety Committee of the Governors was told “An ex-pupil … Has moved back to the area and is causing the police and school some problems. With the school field being so open we are left very vulnerable for trespassers and over time we will need to look into security on the school field.” On other occasions young trespassers were reported to have driven on to the field.

As the PHSC minute illustrated, the vulnerability of the school to intruders was all too obvious even in the absence of a formalised risk assessment. I accept the submission of Mr Walker that the alleged negligence of the school here (and elsewhere) in failing to carry out a risk assessment takes the Claimants nowhere unless they can show that the assessment would have identified a risk or reason for a measure which would not otherwise have been apparent to the school and that the school would have been obliged to implement that measure. But here, both Mr Colledge and Mr Lay in their evidence acknowledged that a fence would have been desirable. The Defendant says, though, that there were three particular obstacles in the way of constructing a perimeter fence: its cost; the need for planning permission and local opposition to a fence; and the claimed right of way.

The fence which was constructed after the attack on Henry cost £156,333. Some £50,000 was provided by central government. About £30,000 came from Swindon Borough Council. Approximately £20,000 came from the Parish Council and the balance was provided by the school out of its own funds. Mr Lay gave evidence that the funds from external sources had only been offered because of the horrific nature of the attack on Henry. Moreover, the grant from central government was critical to his ability to persuade Swindon and the Parish Council to make their contributions. I accept this evidence. It was put to Mr Lay and to Mr Colledge that there were capital funding programmes for schools which could have been tapped before Henry was assaulted in order to assemble the money for a fence. They rejected this suggestion. Mr Colledge emphasised that comparatively speaking TRS was a high performing school. Mrs Chivers commented that when she took up her post in September 2007 TRS was consistently in the top three of best performing schools academically in Swindon and more often than not the School came top of such tables. Its catchment area meant that generally its families were not seen as being at risk. Of Swindon’s 10 secondary schools, TRS would have come in the bottom 2 or 3 of the pecking order for this kind of funding. It was in a semi-rural location and, before the attack on Henry would have been seen as relatively low level of risk. That suddenly changed after the attack on Henry. The school did have a grant for capital expenditure but, as Mr Lay explained, outside specific projects, this amounted to between £120,000 and £140,000 per annum. This would not have been enough for a fence. In addition, the school had to make choices and there were competing demands for such capital funding as the school could raise. Notably, the mobile classrooms were old and in urgent need of replacement. While the desirability of a perimeter fence was acknowledged by the governing body the type of intrusion which it might guard against was relatively minor. At their worst, intruders had caused some damage to property but it had not been very serious. There had been nothing remotely comparable to the attack on Henry on the school site before 11^th January 2007 (The nearest was an incident in March 2003 when a girl had been stabbed through her coat with a Stanley knife by an intruder. Fortunately, she suffered only scratch marks. The incident was reported to the police. No further details are available beyond the report to the Pupils Committee of the Governing Body in April 2003. There is no mention of how the intruder gained access to the school.) The assault on Charlotte Benhalilou and on David Thorne and Sam Gibbs had all taken place off the school site in Inverary Road. As Mr Lay said in his witness statement for these proceedings:

“The school had been an open site but had on a number of occasions suffered with intruders causing criminal damage. It was not a major problem that was out of hand but it was frustrating. Although it was not essential I felt it would be desirable for there to be better physical security at the school. As a result of the incident we had the opportunity to secure funding from the LEA and also the government otherwise the school itself would not have been able to afford to erect the security fence.”

I am also satisfied that the last sentence put the Claimants on notice that the Defendant intended to rely on this funding issue.

I raised with Mr Lay whether it would have been possible for the school to have erected a less extensive fence: one that did not encompass the whole of the site. He thought that this would not have been feasible. If it was drawn too close to the buildings, there would have been the problem of fire escape and the need to have assembly points if the school had to be evacuated. A fence short of the perimeter would also have interfered with the children’s use of the field and there were, in any case, more pressing demands on the school’s funds than even a fence of this kind. Anyway, this alternative had not featured in the Amended Particulars of Claim, the Claimants’ written opening or in cross examination of Mr Colledge when he gave evidence.

The other two obstacles were of a lesser order, but they were not insignificant. The fence which was constructed is very substantial as I was able to see on my site visit. Because of the size of the site, it is now a dominant feature of that part of Wroughton. Even after the attack on Henry, there was some local opposition to its erection on planning grounds. Without the stimulus in its favour which the attack constituted, it is not difficult to expect that the resistance would have been far more vigorous. For those within the school, a three metre high perimeter fence is not without its drawbacks. It can create uncomfortable comparison with a penal institution. It may be for this reason that a group of Year 7 and 8 students who were interviewed in April 2008 by an organisation called the Tim Parry Jonathan Ball Foundation for Peace urged that the new security fence should be removed. Rights of way, even if proved, can be moved for good reason, but again the process for doing so in this case was, I have no doubt, expedited because it came in the shadow of the attack on Henry.

I accept the evidence of Mr Colledge and Mr Lay.

As the Defendant commented, there are standards prescribed by regulations for school premises (see, for instance the Education (School Premises) Regulations 1999 SI 1999 No.2). The Claimants pointed to none which required a school to fence the premises. None of the guidance on which the Claimants relied regarded fencing of the school’s perimeter to be an invariable requirement. There was no evidence that this was a universal practice. There was anecdotal evidence from, for instance, Mr Hill and Mrs Chivers that they knew of schools which did have perimeter fences. I have no doubt that this is correct. However, Mr Colledge and Lady Stubbs gave examples of schools which did not fence their perimeters. In the absence of an unwavering requirement, the matter must be one for each school to judge. Here, I find that there were formidable obstacles to the construction of a fence. The risks and dangers as they were reasonably perceived to be prior to the 11^th January were not so grave that the school was nonetheless obliged to overcome them. Thus, I find that the Defendant did not breach its duty of care to Henry by failing to construct a perimeter fence or a smaller, inner fence.

The Claimants submit that, even if the School’s duty of care did not require it to fence the perimeter, it should have had a teacher present at the gate of the tennis court which gave out on to Inverary Road. This was a route out of the school that was taken by a very large number of the school’s pupils. Its Behaviour Policy said that there would be staff at all exits at the end of the school day and the tennis courts were one such exit. Lady Marie Stubbs, the Defendant’s expert, acknowledged that the end of the school day was a ‘flashpoint’ when misbehaviour was likely to occur and there should have been a staff member to guard against that. There were also obvious dangers from intruders: Mrs Debbie MacDivitt had seen people who were not pupils come in through the tennis courts, as had Mr Hill, the taxi driver. A number of parents had witnessed the same sort of events. The Claimants also argue that the staff knew or ought to have known that the tennis courts were a favourite venue for after school fights. This was a further reason why a staff member should have been posted there.

The Defendant agreed that the after-school duty rota did not call for a member of staff to be on duty at the tennis courts at the end of the school day and none was there on 11^th January 2007. Mr Bevan, who took over responsibility for this rota in September 2006, explained that the focus of attention at the end of the day was on seeing that those pupils who were leaving by bus did so safely. Accordingly, the majority of the staff who were available was allocated to Centre Court and Craft Court (where the pupils waited for their buses) and the layby which had to cope with quite a considerable number of buses and children boarding them. A senior member of staff (usually Mr Piper) was at the St Andrews Close exit. Other members of staff patrolled the corridors and the doorway out from the Leisure Centre to its car park. Members of the public would come into that car park at the end of the school day and this was therefore a potential traffic hazard if pupils left out of that door.

The Claimants placed much emphasis on paragraph 4.8 of the Security Policy which says:

“At the start of the school day there are duty members of staff on the front drive of the school and at the St Andrews Close entrance who ensure that pupils move, on arrival, into the school. At the end of the day duty staff are located by all the exits. The majority of pupils go home by school bus or walk home in Wroughton. For those pupils who wait to be collected by parents, a safe waiting area is provided in the School Dining Room. (emphasis added)”

I do not share the views of the Claimants that the gate to the tennis courts was one of the ‘exits’ to which this paragraph was intended to refer. It seems to me that the ‘exits’ were doorways out of the school buildings. The tennis court gate was not an exit from a building, it was just one of the ways of leaving the site. Pupils coming away from the mobile classrooms and wanting to access Inverary Road could alternatively have walked around the tennis courts and left the site further to the north. The Security Policy cannot have meant that there would be a staff at every point where a pupil could leave the site. With a site of this size that would have been manifestly impractical. Furthermore, the Security Policy identified other Linked Policies with which it should obviously be read. One of these was the Behaviour Policy. At paragraph 21.2 the Behaviour Policy very specifically identified how the site was to be supervised by staff. After school, it said that there would be

“Member of Executive at St Andrews Close Gate exit. Head of Year at Leisure Centre Car Park exit. Teaching staff in daily duty teams, supported by Executive and Heads of Year, supervising bus queues in Centre and Craft Court and boarding on Front Drive.”

Mr Glancy submitted that this was dealing with the control of pupils’ behaviour out of class. It is true that paragraph 21 of the Behaviour Policy has this title. However, I do not think that a proper reading of the two policies would suggest that there was intended to be a difference between the two. It is inconceivable that the school would be intending to have one staff allocation to prevent intruders which was different from the staff allocation at the same time of day to prevent pupil misbehaviour.

However, even if I was wrong about this, I have already explained why I do not agree with the Claimants that the school would then be under a duty to comply with the Security Policy or even to owe a duty to take reasonable care to comply with that Security Policy. The school’s duty of care was no more than to take reasonable care for the reasonable safety of the First Claimant. At most, the Security Policy is a factor to be taken into account in deciding whether that duty was broken, but there are other factors as well to which I must have regard.

Mr Bevan and Mr Colledge explained that their principal priority in deploying staff at the end of the day was the very large number (about 800) children who left by bus. The ‘flashpoint’ coming at the end of the day was most acute here. As Mr Colledge put it, that was where misbehaviour tended to bubble over. Not only was there a large number of children, but they had to be organised so as to board buses safely. There was thus a significant traffic hazard to be negotiated. The number of hours which staff could be expected to work after the end of the day was limited. Mr Colledge and Mr Bevan therefore had limited resources in terms of staff who could be allocated to these duties. The others who were not involved with pupils waiting to get on to buses were few. The tennis courts were towards the north end of Inverary Road where the road terminated. Mr Colledge and Mr Bevan did not think that there was a traffic risk there. They had not heard of fights taking place on tennis courts after school. There were reports of intruders, but none (prior to 11^th January 2007) of any assaulting pupils or staff (at least not since March 2003) and certainly no such assaults by intruders had taken place on the tennis courts. Mr Colledge said that he had received no reports of Mrs MacDivitt’s concerns about intruders going on to the tennis courts during the school day.

I accept that the school had to make a judgement as to how to allocate teacher supervision at the end of the day. I consider that Mr Bevan and Mr Colledge have given rational reasons for the choice which they made not to have a staff presence by the tennis courts. It was within the reasonable range of responses which were open to them. There was no negligence in not having a teacher on or by the tennis courts at the end of the day.

However, even if I am wrong in this regard, there is a further reason why this would not help the Claimants to establish that the school was liable for the injuries which Henry suffered. According to him, the tennis courts were chosen as the location for his fight with MM because they were not likely to be seen there by staff. If the school had had a practice of posting a teacher on the courts at the end of the day, the tennis courts would have been an unattractive venue. Henry said in evidence that he would not have agreed to fight MM outside the school. I accept that evidence. His dispute with MM had happened in the school and he was likely to see any resolution of it as also taking place in the school. He said to the police in his interview after the incident the reason for choosing the tennis courts for his fight with MM was that they were still on the school grounds but out of sight of the teachers. However, there were a number of other places on site where a fight could have been arranged with a low risk of being seen by the teachers. The site was enormous. Its eastern side was flanked by trees and bushes. On the North Western side there was an electricity sub-station behind which the boys would have been out of sight. There were distant parts of the field where the chance of being seen would have been slim. A number of witnesses reported that fights sometimes took place on the field. Scott Thorne, for instance, said in his oral evidence in chief that fights did sometimes take place on the playing fields and when they did so, they were usually around the back of the fields or in corners where teachers could not see the participants. In other respects I have not accepted Scott’s evidence, but in this regard, I find that he is likely to be telling the truth. Debbie MacDivitt also said that she had heard of fights taking place by the electricity substation. Mr Walton’s witness statement also referred to this as a location for arranged fights.

In winter the field was out of bounds during the school day because of the weather, but that restriction did not seem to apply at the end of the school day and some pupils did need at least to go round the eastern edge of the site to get to North Wroughton. There was a chance that staff who were still in the mobiles might have noticed boys going to an unusual part of the site but only some of the mobiles had windows that overlooked the field and the view from some of them was obscured by the bushes which (as I was told on the site visit) had been grown deliberately to block the glare from the sun. In any case, the chance of being seen on the field by a staff member was not so different from the possibility of being seen on the tennis courts by staff in the swimming pool or in the first floor rooms which overlooked the courts. This latter risk did not prevent MM and Henry agreeing to fight on the tennis courts. If there had been a member of staff on duty there, I do not consider that the off chance of being spotted by a teacher would have prevented them choosing somewhere on the fields or their borders as an alternative place for their fight.

Henry said in evidence that he would not have agreed to fight MM elsewhere even within the school’s grounds. However, I do not accept this part of his evidence. He was being wound up (‘bigged up’ in his phrase) to fight MM. He thought that this was a chance to stand up to the cocky younger boy and bring the harassment which he thought he and his friends had been experiencing from the Asian Invasion to an end. Because MM was both younger and smaller than him, he did not think that a fight would actually take place. There had been a previous occasion in October 2006 when Henry had retaliated and punched a (white) boy at school whom he thought was picking on him. Both his mother and his step-father were pleased that on that occasion he had stood up for himself. I am sure that he would have understood their approval for what they regarded as proper defence of his position. In all these circumstances, if a member of staff had usually been posted at the entrance to the tennis courts or on the courts themselves, I find that Henry would have agreed to fight MM somewhere else on the school’s grounds. I reject the suggestion by Mr Glancy that the muddy state of the field on this wet January day would have put him off. There was also ample scope for MM to propose a place which could have been reached by Wasif Khan and the other adults. The eastern edge of the field was accessible from North Wroughton, for instance. The area behind the electricity sub-station was right next to the track which was the continuation of Inverary Road. I recall that the attack when it came was very swift. If a teacher had been at the entrance of tennis courts, it is unlikely that he or she would have noticed what was happening in time to stop the attack even if (as was the case with at least some of the teachers on duty at the end of the school day) they could have contacted other staff via a walkie-talkie or mobile phone.. As it happened, on 11^th January Mr Colledge was further up Inverary Road, outside the entrance to the layby. His presence and that of other parents did not put off the attackers and I do not believe the presence of one extra teacher at the entrance to the tennis courts would have deterred them, for instance, from going to assault Henry behind the sub-station.

Overall, therefore, if contrary to my earlier conclusion, the school was negligent in failing to have a teacher on duty at the entrance to the tennis courts, the Claimants have not shown that Henry’s injuries would have been avoided. They have not shown the necessary causal link between any such negligence and his loss.

I shall deal later in this judgment with the Claimants’ criticisms of the school on 11^th January 2007 itself. Here, I shall deal with the more general criticisms of the school’s approach to misbehaviour or those which are directed at what the school did or did not do in relation to misbehaviour before that day. It is convenient to take first one rather more specific matter.

The Claimants argue that following the incident on 12^th May 2006 the school should have broadened its prohibition on the use of mobile phones. It should have banned any use of them during the school day, not just during contact times with teachers. If that had been the case, they argue, MM would not have phoned his brother at lunch time on 11^th January 2007 and the events which led to the attack on Henry would not have happened. I have set out above (see paragraph [54]) the account which Mr Walton gave to the Governors of his investigation into the May incident and how he identified MM as the person who was likely to have called down a ‘support group’ after the ‘tackle incident’ earlier in the day.

However, even if MM had been responsible (and it will be recalled that his father denied it vigorously to Mr Walton), it is far from clear that the ‘support group’ had been called down with aggressive intent. A fight had ensued on 12^th May 2006 but it was the opinion of the police who investigated the matter thoroughly that it was not possible to identify the initial aggressor. While the Asian pupils and their adult supporters were one possibility, other candidates were the Year 11 pupils some of whom had been drinking and some of whom were heard to shout Anti-Asian racist insults. In any case, Mr Walton, in the remainder of the summer of 2006, and Mr Colledge, in the autumn, was entitled to conclude that the 12^th May 2006 incident had been a one-off event. I will return to the Claimants’ criticism of the school that this event was symptomatic of underlying racial tensions, but so far as the use of mobile phones to summon relatives was concerned, there was no repetition. I bear in mind Alastair Burnett’s fears on 18^th December 2006 that Asian adults had again been summoned to the school because he saw two or three of them outside in Inverary Road at a time when he had agreed to fight SS. But that had been investigated by both Mr Colledge and the police and no one had been found. Goldie Kumar’s witness statement said that,

“Whenever a fight started at school, [the Asian Invasion] would leave the actual fighting until the end of the day and get on their phones and call in their cousins who would come in cars.”

In his oral evidence, however, he could only give two instances of when he thought this had happened. One was in the lunchtime prior to the attack on Henry. I have doubted his evidence in this regard. The other was on 12^th May 2006, but it was apparent from his oral evidence that he had not witnessed Asian pupils calling up their relatives on that occasion. He only assumed that it had occurred. I conclude that his evidence overall meant that I could not accept the passage from his witness statement which I have just quoted.

Mr Walton had said that mobile phones were a ‘fact of life’. In a school where many children had to travel quite some distance to get to the school, they were also a particular advantage. Increasing the restrictions on the use of phones would have a corresponding negative impact. I do not consider that the school was negligent because it failed to impose such restrictions in response to a single event which appeared not to have recurred for many months.

But even if the school had widened its rule on the use of mobile phones, I do not think that it is more likely than not that this would have prevented the sequence of events which led to the attack on Henry. It is the Claimants’ case that the boys in the Asian Invasion ignored other school rules. They were said to wear tee shirts boasting of their Muslim faith. This was in breach of the uniform rules (even though the tee shirts were generally hidden by regulation wear). They are said to have played loud music on their phones, although this was in practice forbidden. The fighting and intimidatory behaviour which the Claimants’ witnesses said characterised the Asian Invasion in the Conservatory would obviously have been contrary to the school’s rules. They may not have very often engaged in such behaviour in front of staff, but the existence of the rules did not put them off. Had there been a school rule banning the use of mobile phones in the lunch breaks, I do not consider that it would have been any more effective. The likelihood is rather that MM would still have made his call away from the gaze of any member of staff.

I have considered whether the school ought to have instead adopted a new rule which was either narrower (confined only to MM) or broader (banning the possession as well as the use of mobile phones). A personal ban on MM would not have entailed the disadvantages for every other user of mobile phones in the school, but it would have had no effect. On 11^th January, MM did not use his own phone to call his brother; he borrowed the phone of another pupil. A prohibition on the possession of mobiles would have been a far more severe restriction than banning their use. Even after the attack on Henry, this was not the policy which was adopted. It would have involved instituting a system for depositing, safe keeping (and probably insuring) a very large number of phones each day. It appeared from the evidence that there are some schools which do operate such a system, but it must be a substantial undertaking. The Amended Particulars of Claim did not allege that the school was negligent for failing to adopt a policy of this kind and I reject the suggestion on these lines which was floated in the course of argument. The history of the use of mobile phones in the school prior to 11^th January does not support the proposition that the school was obliged to adopt such a course.

The Claimants’ case is that the standards of discipline in the school were poor. They had deteriorated under Ms Cooper. They had either got worse or no better during the temporary headships of Mr Walton and Ms Norman. During their tenure the number of Asian students had increased and racial tensions had exacerbated the poor behaviour. Asian boys were treated more leniently and this allowed a culture of impunity to develop. In particular, insufficient was done to deal with the problem of the clique known as the Asian Invasion to which the four pupils who took part in the attack on Henry belonged. In the autumn of 2006 there were many instances of bad behaviour, as reflected in the morning staff minutes. Parents warned the staff of the risk of violence in May 2006 and December 2006. The incidents in May 2006 and December 2006 showed how violence could break out. The school did insufficient to bring this under control. In particular, SS’s behaviour was appalling. He should have been excluded from the school.

The Defendant responds by saying that, while there were instances of bad behaviour, they were not as bad as the Claimants portray and were not out of the ordinary for a large comprehensive school. The Asian boys were not treated more leniently than their white counterparts. Measures were being taken to improve standards of behaviour, in particular the work which was being done with Mr Basley, Swindon’s Behaviour Consultant, and the Behaviour for Learning programme which came into effect in September 2006. SS’s behaviour was challenging but steps were being taken to see whether he could receive a statement of special educational needs. Expulsion had to be a last resort and the school judged that there were other measures it could and should try first. More fundamentally, Mr Walker comments that the injuries for which Henry now seeks compensation were not caused by any of the pupils or by a fight. They were inflicted by an intruder who came on to the school site armed with a weapon. Nothing of that kind was foreseeable as a consequence of any fault (which is not admitted) in the school’s approach to discipline.

There were undoubtedly some children and their parents who were perturbed by the number of fights that took place in the school, but sadly, that is not uncommon in a large comprehensive. Rachel Barker was shocked by what she saw in the school in the autumn of 2005 but she was a trainee teacher who previously had only taught as a trainee some years before and then only in two primary schools. I accept that this is not a very useful benchmark for the standards which are likely to prevail in a much larger secondary school where the average age of pupils will, of course, be much older. Ms Barker painted a picture of classes being so disrupted that they were unteachable. That is not consistent with the Ofsted inspection which took place at about the same time that she was in the school. Her estimate that Asian pupils made up 30% of the school when in truth all ethnic minorities were only 5% also gave me cause to treat her impressions with some caution. Parvez Pour was another trainee teacher who was shocked by the unruliness of the pupils. Mr Pour had two stints of teaching practice during the academic year 2005-2006. He did not witness any fights personally, although he heard that they happened on a regular basis. Because of his lack of experience as a qualified teacher in secondary schools, I consider that I need to approach his impressions with the same caution as I do Ms Barker’s.

The Claimants are entitled to point to the Survey of Staff Attitudes which was conducted in March 2004. 72 out of 105 of the teaching staff responded. That is quite a high return. 80% of the respondents said that the school’s procedures for responding to consistently poor behaviour was either partially or not at all effective. 74% thought that the school was either very or reasonably effective in tackling and reducing low level bullying in the school. However, none thought that the school had very effective systems to address inappropriate out-of-class behaviour as it occurred in the school building and the grounds. 83% thought that the school was either partially or not at all effective in this regard.

Before the Ofsted inspection in September 2005 the school had to complete a self-evaluation form. This included a section on a survey of pupils. It noted “There was substantial disagreement and disquiet over behaviour, bullying and racial abuse, although in the latter cases it needs to be recognised that the statement inviting a response was ‘there is no bullying or racial abuse’”. The inspectors graded the overall effectiveness of the school as ‘satisfactory’. They said “Under the effective leadership of the joint acting head teachers, improvements in the quality of teaching and in pupil behaviour are taking place. Further improvements are in hand…The learners in the main enjoy coming to school and are generally well cared for. They get on well together and with adults…Their spiritual, moral, social and cultural development is good overall as a result of a range of classroom and extra curricular activities.” Personal Development and Well-Being was also graded satisfactory. The Inspectors wrote, “The behaviour of most learners in and out of lessons is satisfactory. It has improved recently but this has not yet been established as the norm…Bullying is rare and dealt with effectively when it occurs.” Care Guidance and Support was also graded as satisfactory and the comments were made, “Learners enjoy a safe environment and many say they feel secure, understanding how they can access help when they need it. This is a safe and well ordered school.” I recognise that the satisfactory grade is the third of Ofsted’s four categories. It is above ‘inadequate’ and below ‘good’. Nonetheless, this judgment from independent and expert assessors supports the Defendant’s case that the standards of discipline generally in the school were not poor. They were satisfactory.

The Claimants criticised this Ofsted report. They argued that if the Inspectors had been aware of the underlying behavioural problems and paid attention to the inadequate Race Equality Policy, the school should have failed the inspection. These inspections, of course, are not infallible. The visits occupy only a few days. I was not given a comprehensive record of all the documents and other information that the Inspectors received. However, it is apparent from the quotations which I have given in the previous paragraph that they could not have been oblivious to the scope for improvement in behaviour which the school itself acknowledged. There was not evidence from which I could conclude that Ofsted’s conclusions were fundamentally flawed.

Nor do I find that there was any marked deterioration in the standards of behaviour in 16 months or so between then and the attack on Henry. There were fights from time to time, but I do not consider that there is the evidence from which I could conclude that they were significantly different from many other comprehensive schools or showed a negligent failure by the school to exercise reasonable care to maintain a proper standard of discipline. The number of exclusions fluctuated, but I did not find it easy to draw any conclusions from these statistics. An increase in the number of exclusions could be indicative of a deterioration in behaviour, but it could, conversely, demonstrate a greater determination on the part of the school to take disciplinary action against those who behaved badly. A decline in the number of exclusions could reflect an improvement in behaviour or it could be accounted for by other factors such as the use of other sanctions (for instance, in the case of TRS, the introduction of the idea of an Isolation room) in place of exclusion. The School Council is an opportunity for pupils to air their views. In October 2005, some pupils in Years 7 and 8 and in Year 11 in the School Council thought that the warning system (W1, W2 and W3) was ineffective. These comments, though, are only of limited value. There was no attempt to assess how widely they were held among the pupils and among other views recorded on the same occasions were that corporal punishment should be reintroduced, a boxing arena should be provided and an ice cream factory should be installed. I disagree with the Claimants that the School Council provided the clearest possible evidence of the poor standard of discipline.

There were, though, two incidents which merit particular comment.

I also reject the claim that the teachers at TRS treated Asian pupils who misbehaved more leniently than white pupils and that, as a result, the Asian pupils were emboldened to misbehave further. It was suggested that the teachers were apprehensive about being labelled as racist by the Asian students and that this accounted for the difference in treatment. Mr Piper, Mrs White, Ms Blacker, Mr Bevan all rejected this and I accept their evidence. It is very difficult to examine the allegation in relation to individual instances because the evidence as to what information was available to the school is incomplete. Thus, for instance, in October 2005 SS was punished for his part in the assault on MB. I do not know whether the school had information as to the involvement of any other Asian boys. In February 2006 both Alastair Burnett and one of the Asian boys were excluded temporarily for fighting. Alastair was aggrieved that his period of suspension was longer. There is no evidence about why there was discrepancy, but the fact of a difference cannot lead to the assumption that it was unjustified. Alastair himself had a poor disciplinary record and had transferred to TRS under a ‘managed move’ from another school. The very lengthy pastoral record of SS shows that the teachers were not slow to take disciplinary action against him (I shall return below to the question of whether they should have taken firmer action and permanently excluded him from the school). Alastair Burnett was shocked that some action had not been taken against the boy who had punched Lucy Finch on 15^th December. But Mr Piper had been entitled to decide that the best way to deal with this incident was to follow the suggestion of Charlie Grabe (who had been the intended victim of the punch) and his father and for Charlie and Shomon Ullah to shake hands.

I do not accept that the teachers refused to discuss with parents their concerns about differential treatment. Mrs Burnett alleged that this was the reaction of Mrs Blackler when she made a complaint about her son Alastair being excluded for a longer period than Anil, the person with whom he had fought. I accept Mrs Blackler’s evidence that she only refused to continue the conversation while Mrs Burnett used racist language (‘Paki’).

From the evidence of parents called on the Claimants’ behalf it seems that there were, or may have been, occasions when complaints were made and either were not investigated or the result of the investigations were not communicated back to the parents who had made the complaints. In particular because the Defendant chose not to call Mr Walton, it was difficult to examine these arguments thoroughly. So far as parents were not told the outcome of the investigations, this would have been contrary to paragraph 7 of the School’s Complaints Policy which provides that (even in the case of a complaint raised informally), “The Headteacher or designated member of staff will respond to the parent with the outcome of the investigation, normally within 10 school working days of receipt of the substance of the complaint. The response may be in writing or at a meeting with written confirmation of the outcome.” However, even if there was default on the School’s part in this regard, I reject the argument that this in some way constituted a breach of the duty of care owed to Henry.

There was a marked difference between the impression gained by the teachers and by those pupils who gave evidence as to the way that the Asian Invasion behaved in the Conservatory. The pupils said that they were intimidating: they blocked the way through and would jostle white pupils who tried to pass; they made scornful remarks; they played loud music on their phones; they threw food at the white pupils; they spoke in their own language which the white students found hostile; they showed off tee shirts with Muslim slogans. By contrast, the teachers said that this group was generally compliant and polite. I do not interpret this as the teachers turning a blind eye to the behaviour of the Asian boys. As the pastoral records show, they did not do so when the Asian boys were in class and I do not infer they showed a preferential attitude towards them out of class. It is more likely that the Asian pupils acted in this way when the teachers were not in sight. Mr McMeeking, one of the teachers at the school, said in his statement to the police on 28^th March 2007 about the last few months of 2006, “a certain tension around the school became noticeable, the staff knew things were going on behind the scenes of a racial nature.” That impression was not shared by most of the staff members who gave oral evidence. For present purposes, though, it is notable that even Mr McMeeking added, “but there was never any hard evidence to take action on this.” It must have been upsetting for at least some of the white pupils against whom this behaviour was directed, but the type of behaviour described by the white pupils was fairly low level aggravation and disruption.

I find that the school was also taking active measures to improve behaviour. The Ridge was a centre for children with behavioural or emotional difficulties. It took children who were either referred by teachers or who referred themselves. It was a self-contained unit of several rooms and offices that was run by Mrs White from 2004 who also took on the role of Coordinator for Student Support. Mr Piper ran an Assertive Discipline Training course. According to a note in the agreement between Swindon and the School for 2005/2006, 95% of the staff indicated that discipline had improved as a result.

The agreement between the school and the LEA led to the Behaviour Consultant attending the school fairly regularly through 2005 - 2007. The Consultant was Mr Basley and his association with the School went back to 2003 at least. After this agreement, the frequency of his visits varied, but they were not less than once a month, often weekly and sometimes even more frequently. He met with both teachers and pupils. The minutes of his meetings show him giving advice at both strategic and tactical levels.

On 28^th February 2006, Mr Basley noted that a briefing from pastoral leaders

“raised concerns about tensions between a group of Muslim boys, which gathers together before school and at break times, and some Year 11 pupils. After the meeting the Consultant helped a member of staff to break-up a fight, which had been caused by these tensions. The Consultant took one of the protagonists away to assess the state of the injuries to his face and to establish the events that led up to the fight.”

Although this incident supports the Claimants’ case as to the nature of the relationship between the Asian boys and the white pupils, I observe that the opponents of the Asian boys were Year 11 boys. It was Mr Walton’s view that such racial tensions as existed in the year 2005-6 were largely attributable to a group of white boys in that year. Their effective departure in May 2006 (on the day that Sam Gibbs and David Thorne were injured) had, he thought, materially contributed to an easing of tensions. That impression was controversial. The pupils who gave evidence for the Claimants did not agree with it. However, Mr Colledge reported that on his arrival there did not appear to be major discipline problems and the position had improved further by December 2006.

A second point which I note from Mr Basley’s record of his visit on 28^th February 2006 is that, despite personally witnessing a fight, his general impression was positive. He said, “Initial impressions of out of class behaviour were that pupils were mostly behaving in a safe manner and responded positively to any requests / instructions from the Consultant or other members of staff.”

Mr Basley also helped the staff (and particularly Mr Piper) revise and develop the school’s Behaviour Policy. Part of this included the introduction of an Isolation Room where disruptive pupils could be sent to do their work on their own and to have their breaks and lunch times at slightly different times from the rest of the school so that they remained on their own even at these times. From all of this, I take the clear impression that the school was very active in taking positive steps to improve the behaviour of its pupils.

In March 2006 Mrs White was asked to investigate what steps might be taken to help ease racial tensions that had been evident in several incidents earlier that year. (I have noted, for instance, that Mr Basley’s visit on 28^th February coincided with a fight between Asian and white boys). She canvassed the views of the heads of year and received the names of a few pupils who might benefit from some form of restorative justice sessions. Because she had received so few she thought that this line would not be fruitful. She was aware of the group of Asian boys that gathered in the Atrium. She personally had not found this group to be problematic – they were always polite and compliant. There were other groups of pupils that would gather at different places around the school. However, there were two features of this group which were different: its size and the fact that its membership spanned several years. She considered that the best way to deal with this was to try to persuade the younger members to break off from the group. She thought that they had joined it because their homes were in the same area of Swindon and these were the only people in the school that they knew. To deal with this she proposed a ‘safe room’ where the younger Asian students could go if they felt insecure. She said that these measures did have an effect of reducing the numbers of the Asian boys who gathered in the Atrium. The effect may only have been temporary. The Claimants’ witnesses did not think that the numbers in the Asian Invasion were much reduced. It may be that the new intake in September 2006 had led to the number drifting back upwards. But I find that this again was a positive measure which was taken by the school to address an identified issue related to behaviour.

Following the incident on 12^th May 2006 Mr Basley and Mrs White discussed further measures for promoting diversity and multiculturalism in the school. These included a poster campaign with the theme “say ‘no’ to racism”. There was also an anti-bullying campaign which was organised in the November of each year. Racism was identified as one of the potential reasons for bullying. The minute of the meeting on 21^st July 2006 also said “The Co-ordinator for Student Support (Mrs White) shared her plans for next year which included the following…incorporating a racism topic in the Personal Social Health Curriculum in 2007/8”. Mrs White said that this must have been a typographical error and the minute should have said “2006-7” and Mrs Siebenaller who was responsible for the course also thought that this was an error. Race as one of the bases for discrimination was included in a 4 week module in the Year 10 course. She said that racism had been included before, but the outcome of this meeting was that it was to be flagged up more. Although there is no documentation to support this, I think that it is more likely than not that the change was introduced in that academic year. I accept that a change of this kind would not have had to wait for the following academic year.

One initiative which was not pursued concerned Mr Falas Khan from the Swindon Race Equality Council. He had been approached by Mr Piper before the 12^th May 2006 events, but it was Mrs White who met with him on 17^th May 2006. He recommended that a letter should be sent to the families of the boy who had contacted their home or friends from the school on 12^th May. Mr Khan thought that this was unacceptable behaviour and should be dealt with severely. He offered to work with Asian children in the school to help restore racial harmony. Mrs White recommended that this offer be taken up. However, Mr Walton reported at a meeting with Mr Basley on 13^th June 2006 that he had decided not to pursue this proposal because he believed that it might increase tensions and he felt that there was already a good rapport between senior staff and the group of Muslim boys. Since Mr Walton was not called to give evidence, this could not be explored further with him. He could not, for instance, be asked whether Mrs White’s supposition that what she regarded as Mr Khan’s poor English played any part in his decision. Other head teachers might have taken a different view as to the usefulness of Mr Khan’s offer, but this was a judgement call. I do not consider that it was outside the permissible range.

SS, it was accepted, had an unenviable pastoral record. He joined the school in 2003. He had had a large number of lunchtime detentions in the academic years 2004-2005 and 2005-2006. He was excluded for 1 day in 2004 for interfering with fire equipment and, as already noted for 2 days in October 2005 for an unprovoked attack on a white boy. In February 2006 he was excluded again for 1 day for extreme rudeness to a member of staff. On 17^th May 2006 he was excluded for two days for disrupting a lesson and criminal damage. For swearing at a member of staff he was excluded for 1 day in June 2006. Between September and December 2006 there are some 67 references to disciplinary problems. He was not excluded during this term, but he had 3 days in the isolation room and two after school detentions. On 12 occasions he was given a “W3” warning, the highest of three levels of warnings. On 29^th September he said to a teacher, “Someone is going to get you sir”. On 19^th October he said to another teacher, “I’ll smack your teeth in”. On 21^st November he said “I am going to kill so and so”.

As one might expect, permanent exclusion is the school’s most extreme sanction. It is used only as a last resort (absent some particularly egregious offence) when all other possible measures had failed. In SS’s case, the school had started to take steps to see whether he should be given a statement of special educational needs. A preliminary assessment was made of his reading and spelling ability in December 2006. This showed him to be towards the middle of the average range which appeared to indicate that he had adequate literacy skills to access the curriculum lower sets at Key Stage 4. However teacher comments indicated that behavioural issues prevented him from achieving well in most classes. At the request of the Educational Officer, his mother had come into the school. This was not easy since she was a single parent who also had a hearing impairment. Consequently it was necessary for the school to arrange for a signer to attend at the same time. According to Mr Piper, there had been a move to involve an educational psychologist and SS’s Head of Year, Mr Crooks, had adopted a mentoring role. It was not true to say that SS had never been guilty of actual violence. In October 2005 he had assaulted MB, but, prior to the attack on Henry, there was nothing further in his disciplinary record to show that his violence went beyond words and minor (though, no doubt, very annoying) disruption. As for his verbal aggression, Mr Piper said that it was important to contextualise what pupils say. They said all manner of things and SS had a tendency to speak before he thought. He was an irritating little boy.

I conclude that, poor as SS’s record was, there was no negligence in the school coming to the view that they had not yet reached the end of the road with him. He appeared to have the capacity to access the curriculum, There were still avenues to be explored to deal with his behaviour. Before 11^th January 2007, the school was entitled to conclude that it was premature to consider permanent exclusion or some other means of permanently removing SS from their roll.

None of the other three pupils involved in the attack on Henry had a pastoral record remotely comparable to SS’s. Saheed Rahman came to the School in 2002. He was in Mr McMeeking’s tutor group. He described Saheed as pleasant, helpful and normal lad in his first three years. In his final year he began to boast of his association with gangs in the Broad Green area of Swindon. However, when questioned he was vague on detail and Mr McMeeking gained the impression that he was simply making up these stories. Prior to 11^th January 2007 there was very little of note on his disciplinary record. MM, as I have said, joined TRS in April 2006. Apart from his alleged involvement in the events of May 2006 there were some further incidents in the period September - December 2006, but these were all of a minor nature. Shomon Ullah came to TRS in October 2006. The only incident of any note was that involving Alastair Burnett in 15^th December 2006 to which I have already referred. Although the Claimants argued that firmer action should have been taken against these three, it was not seriously argued that their infractions prior to 11^th January would have justified permanent exclusion.

Overall I conclude that the Defendant was not in breach of its duty of care to Henry by reason of its disciplinary approach or what it did or did not do in relation to misbehaviour prior to 11^th January.

But even if there had been negligence in this regard, I do not consider that the Claimants could show this caused reasonably foreseeable harm to Henry. It has to be remembered that the injuries for which Henry is bringing this action are not those caused by a fight with another pupil, but were the result of blows from a hammer wielded by an outsider. The school’s disciplinary policy did not impinge on Wasif Khan. It is true that he was called to the school indirectly as a result of the phone call from MM who was a pupil. However, MM did not foresee that Wasif Khan would bring a hammer with him. Mr Glancy argued that what has to be foreseen is injury of the same type as was suffered even though the actual injury was more severe (see Hughes v Lord Advocate [1963] AC 837). Here, he submits it was reasonably foreseeable that Asian pupils would summon adult help in assaulting Henry. I am doubtful whether all assaults (say a gentle punch of the kind which Henry gave to MM during their morning break) are to be treated as examples of the same type of injury as near fatal multiple blows to the head with a hammer. But, assuming in the Claimants’ favour that they are, I find that the argument is still flawed for two independent reasons.

Another way in which the Claimants put their case was to argue that the school’s approach to discipline in general or to the Asian Invasion in particular caused Henry to believe that he would not be properly protected by the staff and he thought that he had no alternative but to agree to fight MM if he was to bring the Asian Invasion’s harassment of him and his friends to an end. However, this approach fails for the same reasons. I have found that the school was not partial in its enforcement of discipline. It was not negligent in its approach to discipline generally. The objections based on lack of causal connection and lack of reasonably foreseeable loss also remain the same. In addition, it would be curious if Henry was able to invoke his own willingness to break the school’s rule against fighting as part of his cause of action. There may be circumstances where a Claimant is placed in such an acute dilemma that he had no effective choice but to break a reasonable rule of conduct of the defendant, but I consider that this is not such a case.

Plainly one cause of misbehaviour can be racism or racial intolerance. The previous section of this judgment has considered and rejected the Claimants’ arguments that the school’s approach to discipline or misbehaviour amounted to a breach of its duty of care to Henry and that includes such matters where race is a contributing factor.

Here I am concerned with the Claimants’ wider attack. These are obviously not hermetically sealed compartments, but I am here seeking to respond to what I understood to be a distinctive limb of the Claimants’ case. They argue that the school’s Race Equality Policy was deficient. They note the changes which Mrs Chivers thought were necessary to make it compliant with the guidance given by the Commission for Racial Equality (now absorbed into the Equality and Human Rights Commission). They rely on the expert evidence of Professor John to contend that the school woefully failed to perform its general duty under s.71 of the Race Relations Act 1976 (see paragraph [111(ii)] above). While they accept that this gives them no cause of action for breach of statutory duty - see s.53 of the 1976 Act, they argue that these obligations should be used to inform the nature of the duty of care which the Defendant owed to the 1^st Claimant at common law and/or aid the Court’s decision as to whether the Defendant had fulfilled that duty.

The Defendant argues that even if all of this was correct (which they dispute) it would be nothing to the point. The Defendant submits that the attack on Henry was not racially motivated. It relies on the evidence of Inspector Wilkinson who led the investigation into the attack on Henry and was familiar with the evidence which it had gathered. That investigation had been very extensive. Over a thousand individuals had been interviewed and 600 statements taken. In his oral evidence Inspector Wilkinson explained that he thought the evidence showed that this had been a schoolboy fight which had arisen out of the earlier conflict between Henry and MM and which had then escalated and got out of hand. I recall that in his interview with the police shortly after the attack, Henry was asked about the insults which were traded in the break time incident. He had said “there was nothing racist, if that’s what you’re asking.” Henry reiterated this in his oral evidence. Inspector Wilkinson agreed that the later attack on Henry in the tennis courts had been recorded as a ‘racist incident’ but that was because the police followed the recommendation of Sir William Macpherson’s report into the murder of Stephen Lawrence. Recommendation 12 of that report which had said,

“A racist incident is any incident which is perceived to be racist by the victim or any other person.”

Here there were those who had perceived the attack on Henry to be racist (not least, Henry’s mother, Mrs Webster). However, establishing whether there had actually been a racial motive was another matter. In the first trial the defendants were charged under s.18 of the Offences Against the Person Act 1861. This could not be charged as a racially aggravated offence – see Crime and Disorder Act 1998 s.29. However, it was still relevant for the police to investigate whether there was a racial motivation for the attack. If this was established, then on sentence the court would be obliged to treat this as an aggravating factor – see Criminal Justice 2003 s.145 and the definition of racial aggravation in the Crime and Disorder Act 1998 s.28.

Inspector Wilkinson’s views were endorsed by the CPS and counsel for the Crown. However, they had to consider whether they could establish racial motivation as against an individual defendant to the criminal standard. I have to apply the lower civil standard. In addition, because I am dealing with the school’s alleged breach of duty, I am only concerned with the motivation of the four defendants in that first trial who had been pupils at the time of the attack on Henry. Racial motivation would not need to be the sole reason for their actions, but Mr Glancy accepted that the proper test of causation was the ‘but-for’ principle. In other words, the Claimants would have to show that, but for the race element, the attack on Henry would not have happened.

This is not an easy question to decide. It asks for an inquiry into the motives of people, none of whom gave evidence to this court. With only a few exceptions, there was nothing by way of even hearsay statements from these four pupils but there is evidence from which I conclude that it is more likely than not that race did play an important part in their motivation. There was the obvious fact that Henry was white and all of those involved in the attack on him – pupils and adults alike were all Asian. That is far from being conclusive, but it is a factor. Secondly, the four Asian pupils gathered together with others in the Asian Invasion, and this was an exclusively Asian group. The Claimants’ witnesses described the behaviour of this Asian group. I was not persuaded that it was as serious as some of them portrayed, but I do accept that such low level harassment or unpleasantness as there was tended to be directed at white students. I accept, too, that there were times when members of the Asian group wore tee shirts under their uniforms and these boasted of their Muslim or (in some cases) Pakistani heritage. The police gained partial access to the Bebo websites of SS, Shomon Ullah and HR. I did not find these particularly helpful. All that the police had been able to obtain were some messages which had been sent to the sites by others. Some of these senders used inflammatory racial language, but since these were not the words of the pupils with whom I am concerned, it was difficult to know what conclusion to draw from them. At 14.43 on 11^th January 2007 HR sent the text message which I have quoted at paragraph [89]. Although Inspector Wilkinson said that the term ‘goreh’ was not insulting, it did show HR identifying their protagonist by his race. All of this would remain somewhat ambiguous. What I find to be important is the evidence which was gathered by the police of the cries that were made both before and after the attack on Henry. Yasmin and Darryl Hallard were standing in Inverary Road. They both heard one or more of the suspects shout ‘Paki bashing’ or ‘This is Paki bashing’. The witnesses could not be more specific as to who had called this out. The pupils ran up the road after the attack as well as the adults. It might have been one or more of the adults rather than the pupils who spoke these words, but they were all together. Taken as a whole I have reached the conclusion that it is more likely than not that race did play an important part in the attackers’ motivation.

While the Claimants succeed on this issue, it does not in my judgment take them very far. This is for several reasons. The Claimants cannot show a relevant duty to the First Claimant. They could not show a breach of duty (on the rather artificial assumption that there was one). They cannot show that any breach was causative of the injury to Henry.

So far as duty is concerned, I have made clear that I have dealt separately and in the previous section of this judgment with racism as an element of the school’s approach to behaviour and discipline. Beyond that, there is no reason why a duty of care to adopt and apply a proper race equality policy should be owed to Henry or other pupils in the school rather than to the world at large. Yet the common law of negligence is resistant to the idea of duties of care being owed to such an amorphous number. There cannot be a duty of care owed to an indeterminate class.

So far as breach is concerned, I have described this as a rather artificial exercise because, in the absence of a duty of care, it is hard to define the bench mark against which the school’s performance should be measured. I have, though, included this as part of my reasons because this was not a school which was indifferent to its obligations under the Race Relations Act. One problem which has beset some other schools is a difference in attainment between white students and ethnic minorities. This is reflected in Article 3 of the Race Relations Act 1976 (Statutory Duties) Order 2001 SI 2001 No. 3458 which requires maintained schools to assess in particular the impact of their policies on the attainment levels of pupils of different racial groups. There was no significant difference in the attainment levels of such groups at TRS. Mrs Chivers may have been right when she said that the small number of ethnic minority pupils at TRS meant that this was somewhat easier to achieve, but she acknowledged that the school could still be rightly proud of its record in this respect.

The school did also promote equality between racial groups. It did so partly through the curriculum for PSHE and Citizenship. In 2005 Ofsted praised these programmes as outstanding. Mrs Siebenaller had responsibility for delivering these parts of the curriculum. She is a specialist PSHE teacher and had undertaken additional training to qualify as a specialist Citizenship teacher. Race equality and diversity were parts of both trainings. Professor John argued that the school confused multiculturalism with anti-racism. I reject this argument. The School was conscious of the role that racism could play in bullying. The materials which were produced from the curriculum and the programme of events for the anti-bullying week made this clear. The School also taught about anti-discrimination and the possible bases of discrimination of which race was one. I have referred above (see paragraph [167]) to the added emphasis which was given to this after the meeting between Mrs White and Mr Basley in June 2006.

There were racist incidents from time to time (including about half a dozen reported to the daily staff meetings in the period September - December 2006) but I have described already some of the measures which Mrs White took in response. She also said that she used a group of Asian girls as a form of barometer for the mood amongst the Asian pupils.

The School did have a Race Equality Policy. It was adopted in 2002. Although it was supposed to be reviewed annually, the only record of such a review was on 2^4th February 2005, as the minutes of the Pupils Committee of the Governors make clear. It is fair to say that it adopts a fairly minimalist approach. The Race Equality Policy which was revised after Mrs Chivers’ advice provides a more structured approach. Notably, it includes an action plan and assessment measures. However, best practice does not set the standard of negligence. The Commission For Racial Equality’s Code of Practice on the Duty to Promote Race Equality said at paragraph 6.10, “[The race equality policy] could be linked to an action plan for putting the policy into practice (my emphasis).” The Code did not therefore oblige the Defendant to have an action plan. I have taken the Code into account, although its relevance is somewhat obscure. Under s.47(10) of the Race Relations Act 1976 (now repealed), failure to observe a Code did not of itself give rise to civil or criminal liability, but the Code was admissible in evidence before an Employment Tribunal or a county court. I was sitting in neither. But this difficulty aside, I anyway reject the argument that the REP as it stood before this latest revision was legally deficient.

The Claimants drew attention to a remark in the report of Mr Basley’s meeting with Mrs White on 21^st July 2006 which said that the posters were the first step in the school’s efforts to challenge racism in the school and to promote multiculturalism. The Claimants argued that in view of the prior history or racist incidents, for the school to be taking a “first step” only in July 2006 showed its lackadaisical attitude. This reads far too much into this minute. I accept the evidence of Mrs White that there were measures which she and the school had taken before July 2006. Despite the views of Professor John to the contrary, I was not persuaded that this school had behaved in a way which was below what was reasonable to expect.

The Claimants also observed that none of Mr Colledge, Mrs White, Mr Piper, Mr Bevan or Mrs Blackler had had training on race matters. Nor had Mr Lay received such training. Here, also, there was room for improvement. As with my other comments on what the School did in regard to race relations, I am not saying that more could not have been done. Much more was done after the attack on Henry but I do not accept that the omission to take the same steps earlier is to be equated with negligence.

But even if I had been wrong about a duty of care and breach, in my judgment the Claimants have not shown that the injury to Henry would have been avoided if the Defendant had exercised proper care in this regard. Of course, education and proper race equality policies can sometimes make a difference. But it is almost banal to add that they will not always succeed in altering attitudes and behaviour. Professor John was Director of Education at the London Borough of Hackney from 1989-1993 and the Director of the combined department of Education and Leisure Services from 1993-1996. He was zealous in seeing that appropriate race equality policies were adopted during his tenure. Yet he realistically accepted that these had not eliminated racist behaviour in the borough’s schools. It is a very large step from the obvious truth that the Defendant was required to have in place an appropriate race equality policy to the conclusion that it is more likely than not that some different policy would have changed the behaviour of the four pupils so that they did not instigate the attack against Henry. Mr Glancy accepted that I must apply the ‘but for’ test of causation. The evidence does not allow me to conclude that, but for the alleged deficiencies in the Defendant’s race equality policy, the attack on Henry would not have happened.

Consequently I conclude that the Claimants cannot succeed on the basis of any alleged failure of the Defendant to comply with the general duty on public authorities under the Race Relations Act 1976.

Setting aside now the more generalised complaints about the way in which the school functioned, the Claimants make certain specific allegations of negligence in relation to what it did or did not do on 11^th January. I address these now.

These criticisms are directed primarily at Mr Piper. It is said that:

I accept none of these arguments.

I have considered and rejected the submissions that Mr Piper was negligent in his treatment of Henry. However, Mr Walker had an alternative argument which was anterior to this, namely that no relevant duty of care was engaged. At the highest, Mr Walker argues, the only risk which could be said to be reasonably foreseeable was of a fight between Henry and MM (and possibly other Asian boys). But what took place was not a fight between pupils. It was an assault by an outsider which was a risk of a quite different order. A Claimant cannot succeed because the breach of a duty to take care against one risk has allowed events to unfold that have led to him suffering an injury of a different type - see for instance Darby v National Trust [2001] EWCA Civ 189. Of course a punch is an assault whether it is wielded by a pupil or an outsider, but I accept that they should be regarded for present purposes as injuries of a different type. What steps it is reasonable to expect a school to take to prevent the one may not necessarily be appropriate or reasonable to expect in relation to the other. I do not accept that it should have been reasonably foreseeable to Mr Piper that at the end of the day Henry would have fought another pupil and been injured as a result. But the case that Mr Piper should have reasonably foreseen that Henry would be attacked by an outsider is weaker still. Mr Piper did not know and had no reason to believe that an outsider had been, or would be, summoned to the school in order to attack Henry.

Overall I conclude that the Claimants cannot succeed by reference to any alleged breach of the Defendant’s duty of care to Henry because of anything which was or was not done specifically on 11^th January 2007.

Since I have rejected all of the ways in which the Claimants allege that the Defendant was negligent, the issue of contributory negligence does not arise. In some cases it is possible for a first instance judge to make a contingent finding in relation to contributory negligence in case a different view is taken on appeal as to whether the defendant was in breach of its duty. In the present circumstances, I do not feel able to do that. A finding of contributory negligence requires consideration of the relative causative potency and blameworthiness of the claimant and defendant. The Court has also to consider what allocation of responsibility to the Claimant would be just and equitable. On the findings which I have made and the conclusions which I have reached the Defendant is not legally blameworthy and (at least in relation to some of the ways that the Claimants put their case), if they had been negligent, this would not have been causative of the Claimant’s head injuries. There are too many variables in the ways in which the claim is formulated for me to try and construct an alternative and hypothetical premise on which a contingent finding of contributory negligence could be based. I note that Hoffman J. reached a similar conclusion when he declined to make a contingent and hypothetical finding about contributory negligence in Norman v Theodore Goddard (a firm) and others (Quirk Third Party) [1991] BCLC 1028 at 1044.

By s.6(1) of the Human Rights Act it is unlawful for a public authority to act incompatibly with a person’s Convention rights. The rights, which are taken from the European Convention on Human Rights are listed in Schedule 1 of the Act. The First Claimant relies on Article 3. This says,

“No one shall be subjected to torture, inhuman or degrading treatment or punishment.”

The European Court of Human Rights has described the type of treatment which may come within Article 3 on a number of occasions. One example is Pretty v UK (2002) 35 EHRR 1 where it said at [52],

“As regards the types of ‘treatment’ which fall within the scope of Article 3 of the Convention, the Court’s case law refers to ‘ill-treatment’ that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering. Where treatment humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral or physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3.”

The First Claimant does not suggest the school itself subjected him to treatment of this kind, but he relies on the positive obligation which the European Court of Human Rights has found to be inherent in both Article 2 (the right to life) and Article 3. In Osman v UK (1998) 29 EHRR 245 at [116] the Court said this,

“In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of the above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. The Court does not accept the Government’s view that the failure to perceive the risk to life in the circumstances known at the time or to take preventative measures to avoid that risk must be tantamount to gross negligence or wilful disregard of the duty to protect life. Such a rigid standard must be considered to be incompatible with the requirements of Article 1 of the Convention and the obligations of Contracting States under that Article to secure the practical and effective protection of rights and freedoms laid down therein, including Article 2. For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental to the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case.”

The same principles apply in relation to Article 3 – see for instance E v Chief Constable of the Royal Ulster Constabulary [2009] 1 AC 536 per Lord Carswell at [44] – [49].

I accept that Wasif Khan’s hammer attack on Henry did attain the minimum degree of severity to constitute the type of treatment within the scope of Article 3. Mr Walker conceded that the school was a ‘public authority’ for the purposes of s.6(3) of the Human Rights Act 1998 but submitted that it was not performing public functions at the relevant time and so was not subject to the duty in s.6(1) of the Act – see s.6(5). I assume, without deciding, that the Claimants can show that the school was performing public functions at the relevant times. However, with great respect to Professor Gearty, who advanced this part of the argument on the part of the First Claimant, it is hopeless to submit that there was a breach of the positive obligation in this case.

As Osman shows, liability is dependent on proof that the authority knew, or ought to have known, of a real and immediate risk of Article 3 ill treatment. It is not alleged that the Defendant had actual knowledge of Wasif Khan’s attack. In considering whether the Defendant ought to have known, “one must beware of the dangers of hindsight” as Lord Hope said in Mitchell v Glasgow City Council (above) at [33]. In my judgment it is simply unarguable that Mr Piper or any other responsible member of staff ought to have realised that there was a real and immediate risk of Wasif Khan’s attack or something of similar severity. Even the Asian boys who summoned outside assistance did not know that Wasif Khan was going to bring and use a hammer. I reject the suggestion that Mr Piper ought to have appreciated that there was going to be a fight at the end of the school day. Even if he had, the type of punches or kicks that might be expected as part of such a fight would not be of sufficient severity to cross the threshold into the territory of inhuman or degrading treatment. It is the extreme brutality of Wasif Khan’s attack which leads me to accept that it did come within Article 3. But that was wholly unexpected even to the other adult participants. I recognise, as Professor Gearty submitted, that racism can be a relevant factor in deciding whether treatment is within the scope of Article 3 (see for instance East African Asians v UK (1973) 3 EHRR 76 at 86 [207]) but this is not a case where the Defendant or some other public authority is alleged to have behaved in a racist manner and, if this had been an ordinary fight, it would not have crossed the Article 3 threshold because some of the participants might have had a racial motive.

On 11^th January 2007 Henry was the victim of a brutal and criminal attack. It was very nearly fatal. He was left with serious injuries. Those immediately responsible have been prosecuted and punished. If they had any money, they could also be sued in the civil courts. No one, let alone an innocent 15 year old boy, should have had to put up with the pain and suffering that he has had to endure. The shock of seeing him lying in a pool of blood must have been traumatic for his brother, mother and step-father. Yet the sympathy which everyone must feel for the Claimants cannot determine whether The Ridgeway School is liable to pay them compensation. The School did owe Henry a duty of care to take reasonable care to keep him reasonably safe while he was on the school’s premises. I have concluded that the School did not breach that duty. I have also found in relation to many of the allegations of negligence that the Claimants have not been able to prove the necessary causal link between the things that the School did not do and the head injuries which Henry received from Wasif Khan. I have also found that those injuries were not a foreseeable consequence of some of the alleged omissions. The Claimants’ arguments under the Human Rights Act do not assist them.

In conclusion, I find that none of the bases on which the Defendant is alleged to have been liable to the Claimants is made out. The First Claimant’s action is dismissed. The claims of the other Claimants cannot succeed if his fails. Accordingly, their claims are dismissed as well.