Hepburn v Chief Constable of Thames Valley Police
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lord Justice Tuckey,Lord Justice Brooke,Lord Justice Simon Brown,Lord Justice Kay,Lord Justice Keene |
| Judgment Date | 13 December 2002 |
| Neutral Citation | [2002] EWCA Civ 1841,[2002] EWCA Civ 1822 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2001/1382; B3/2001/1399,Case No: C/2001/2412/QBACF |
| Date | 13 December 2002 |
[2002] EWCA Civ 1822
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
(Mr Justice Mitchell—2002/0640)
(Mr Justice Cresswell—2001/2412)
Lord Justice Simon Brown
(Vice-President of the Court of Appeal Civil Division)
Lord Justice Kay and
Lord Justice Keene
Case No: C/2001/2412/QBACF
C/2002/0640/QBACV
A Bailin Esq (instructed by Messrs Ashok Patel & Co) for the Appellants
J Swift Esq (instructed by Legal Services Department) for the City of Westminster
B McGuire Esq (instructed by London Borough of Enfield) for Kingsmead School
Each of these two appeals is brought by a pupil permanently excluded from his maintained school under the provisions of the School Standards and Framework Act 1998 ("the 1998 Act"). AM, a boy then aged 15, was permanently excluded by his head teacher from Kingsmead School in the London Borough of Enfield on 15 February 2001 for firing two small pellets from a pellet gun at a female fellow pupil. DR, a boy then aged 13, was permanently excluded by his head teacher from St George's Catholic School in the City of Westminster on 23 January 2001 for an indecent assault on a female fellow pupil. In each case the governing body decided that the appellant should not be reinstated and in each case the appellant's subsequent appeal against the governing body's decision was dismissed by the independent appeal panel (IAP).
Both appellants are long-since established and progressing well at other schools. Both, however, are concerned lest exclusion from their previous schools (a fact obviously recorded on their school record) were to count against them at some future date.
Both brought judicial review proceedings to challenge the respective decisions excluding them. AM's application against the governing body and the IAP was dismissed by Mitchell J in the Administrative Court on 13 March 2002, permission to appeal to this court being given by Sedley LJ. DR's application for permission to move for judicial review (against the head teacher as well as against the governing body and the IAP) was refused in the Administrative Court initially on the documents and then, on renewal, by Cresswell J following an oral hearing on 29 October 2001. It too comes before this court with Sedley LJ's permission, he having directed the "case to proceed in the Court of Appeal". It has seemed to us right in these circumstances to treat Cresswell J's decision as the dismissal of a substantive judicial review application so that DR in this court is an appellant properly so called.
Both appeals have been heard together since both raise the same question of principle, a question of some general importance. There are various ways of formulating it. Postulate unfairness in the proceedings before the governing body (or, perhaps, the head teacher) but a fair hearing before the IAP. Is the earlier unfairness "cured" on appeal? Or, to put it differently, will the court on a subsequent judicial review challenge quash a fair appeal hearing as well as the previous unfair determination so as to ensure that the pupil obtains a fair decision at each stage of the process? As Sedley LJ helpfully observed when granting permission to appeal in AM's case:
"If there were no appeal panels, on Mitchell J's finding the governors' decision would presumably be quashed. There is an issue of principle in whether a pupil who appeals should forfeit that possibility. There appear to be inconsistency in the decided cases about whether an unfair initial hearing should be appealed or judicially reviewed. …"
That issue of principle is the only issue remaining in AM's case. DR's appeal raises in addition the question whether permanent exclusion was a disproportionately severe response to the misconduct in his case.
With that brief introduction let me turn next to the statutory framework provided by the 1998 Act.
Section 64 permits the head teacher of a maintained school to exclude a pupil from the school permanently on disciplinary grounds. Under s65 where the head teacher "decides that any exclusion of a pupil for a fixed period should be made permanent" he must inform the "relevant person" (a parent where the pupil is under 18) of this and of the reasons for it and of his right to make representations about the exclusion to the governing body and the means by which he may do so. The head teacher must also without delay inform the local education authority and the governing body of the decision and the reasons for it.
Section 66(2) provides that:
"The governing body shall in any such case —
(a) consider the circumstances in which the pupil was excluded;
(b) consider any representations about the exclusion made to the governing body —
(i) by the relevant person …, or
(ii) by the local education authority;
(c) allow each of the following, namely —
(i) the relevant person, and
(ii) an officer of the local education authority nominated by the authority,
to attend a meeting of the governing body and to make oral representations about the exclusion; and
(d) consider any oral representations so made."
Section 66(6) provides:
"If the governing body decide that the pupil should not be reinstated, they shall forthwith—
(a) inform the relevant person, the head teacher and the local education authority of their decision and
(b) in addition, in the case of a pupil who is permanently excluded, give the relevant person notice in writing referring to that decision and stating the following matters—
(i) the reasons for the decision,
(ii) his right to appeal against the decision,
(iii) the person to whom he should give any notice of appeal,
(iv) that any notice of appeal must contain the grounds of appeal, and
(v) the last date on which an appeal may be made."
Appeals against the decision of a governing body are provided for in s67 and Schedule 18 to the Act:
"67(1) A local education authority shall make arrangements for enabling the relevant person to appeal against any decision of the governing body under section 66 not to reinstate a pupil who has been permanently excluded from a school maintained by the authority.
(2) Schedule 18 has effect in relation to the making and hearing of appeals pursuant to arrangements made under subsection (1); and in subsections (3) and (4), 'appeal panel' means an appeal panel constituted in accordance with paragraph 2 of that Schedule.
(3) The decision of an appeal panel on an appeal pursuant to arrangements made under subsection (1) shall be binding on the relevant person, the governing body, the head teacher and the local education authority."
Schedule 18 to the 1998 Act provides:
"1(1) No appeal under section 67(1) against a decision not to reinstate a pupil may be made after the 15 th school day after the day on which the relevant person is given notice in writing under section 66(6)(b).
2(2) An appeal panel shall consist of three or five members appointed by the authority from—
(a) persons who are eligible to be lay members; and
(b) persons who have experience in education, are acquainted with educational conditions in the area of the authority or are parents of registered pupils at a school.
10(1) The appeal panel shall give the relevant person an opportunity of appearing and making oral representations, and shall allow him to be represented or to be accompanied by a friend.
(2) The panel shall also allow —
(a) the head teacher to make written representations and to appear and make oral representations,
(b) the local education authority and the governing body to make written representations,
(c) an officer of the authority nominated by the authority, and a governor nominated by the governing body, to appear and make oral representations, and
(d) the governing body to be represented.
14 The decision of an appeal panel and the grounds upon which it is made shall —
(a) be communicated by the panel in writing to the relevant person, the local education authority, the governing body and the head teacher, and
(b) be so communicated at the end of the second school day after the conclusion of the hearing of the appeal.
15(2) The local education authority shall, in setting any time limits in connection with appeals, have regard to the desirability of securing that appeals are disposed of without delay."
Section 68 of the Act requires that all those discharging functions under s64–67 and Schedule 18 ie, the head teacher, the governing body, the LEA, and the IAP, "have regard to any guidance given from time to time by the Secretary of State". That guidance is to be found in Circular 10/99 (as amended), in particular Chapter 6 of the circular and Annex D. Chapter 6 of the Circular includes the following:
"6 A decision to exclude a child should be taken only:
• in response to serious breaches of the school discipline policy and
• if allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school.
Before excluding a child, in most cases a range of alternatives strategies … should be tried. … A permanent exclusion can be given for a first offence, for example involving violence, but only when the head...
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