R H (a minor; by his mother and litigation friend, N) and The INDEPENDENT APPEAL PANEL for Y COLLEGE
| Jurisdiction | England & Wales |
| Judge | Mr Justice NEWMAN,MR JUSTICE NEWMAN |
| Judgment Date | 25 May 2004 |
| Neutral Citation | [2004] EWHC 1193 (Admin) |
| Date | 25 May 2004 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/635/2004 |
[2004] EWHC 1193 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Newman
Case No: CO/635/2004
David Lawson (instructed by Fisher Meredith) for the Claimant
Peter Oldham (instructed by DMH) for the Defendant
The claimant challenges the decision of the Appeal Panel dated 16 th December 2003 upholding an earlier decision by the claimant's school to permanently exclude him from his school.
The School's Decision
The reasons for the school's permanent exclusion of the claimant were set out in a letter dated 24 th October 2003. The headteacher wrote as follows:-
"Reason for the Exclusion
As you know from my earlier letter, [H] was involved in letting off a firework in school. Until we met on Wednesday, he had repeatedly claimed that he knew absolutely nothing of the firework. He said in our interview, however, that he had seen the firework and that he had held the fuse. He claimed, however, that he thought it was only a fuse. I am afraid I do not believe this. He agreed that he had supplied the matches".
In the balance of the letter, the headteacher went on to point out that the firework was dangerously close to other pupils at the school and that a stampede occurred when the firework went off. He noted the persistent denials on the part of H and his refusal to co-operate with the school in resolving the matter. He expressed the view that he could not be confident, in the absence of any acceptance of responsibility by H, that the action would not be repeated. Nor could he be satisfied that H understood the seriousness of the threat to the welfare and safety of other pupils.
At the Disciplinary Hearing on 17 th November 2003 H admitted that he had cupped his hands over the fuse when P (another pupil) lit it.
The Panel Hearing
The appeal to the defendant Panel was heard on 16 th December 2003. The decision of the Panel was communicated by letter dated 18 th December 2003 and elaborated upon after receipt of a letter from the claimant's advisers in a letter dated 9 th January 2004.
The letter dated 18 th December 2003 stated:-
"The Panel's decision was taken after the Members had considered, very carefully, all of the documentary and oral evidence that was presented to them, by all of the parties concerned at the hearing last Tuesday, in particular that given by [H], your legal representative Mr Lawson and the College representatives.
The Panel took particular note of the detailed account given by the College's Headteacher, who advised that he was in the near vicinity when the fuse/firework was ignited. He also advised of the investigations that he conducted, both immediately following the incident and subsequently, to establish who had been involved.
The Panel also took note of the statements, given by [H] and by others, some of which were at variance with each other in relation to [H's] involvement in lighting the fuse/firework and precisely where he was at the time the ignition happened. [H's] statement admitting that he supplied matches, which it is believed were used to light the fuse/firework, was noted, as indeed was his statement, made on two separate occasions, to the effect that he 'cupped' his hands around the match as it was lit – albeit acknowledging that [H] maintains this latter statement was made 'under duress'.
The Panel were made fully aware of the importance attached by the College to the safety of its pupils and its staff and of the action taken following previous incidents when fireworks had been ignited on site and nearby. The attention of the Panel was drawn, in particular, to a formal Notice displayed on College premises, the contents of which had also been drawn orally by the Headteacher and members of staff to the attention of pupils. The Notice referred to a previous incident; that fireworks were not permitted on site; and the consequences for pupils who ignored the Notice. The relevant sections in the College's Anti-Bullying/Behaviour policies were also drawn to the attention of the Panel.
The Panel were advised that [H's] school record did not show any previous behavioural incidents and that he was considered to be a promising student who was expected to do well in his GCSEs. The Panel noted, with regret, that he was experiencing some home difficulties.
Your legal representative drew the attention of the Panel to recent Court of Appeal case (of R(S) v The Governing Body of YP School). The Panel took this into account in making their decision.
Having taken all of the relevant factors into account the Panel decided, unanimously, that they were sure [H] was responsible for the actions described by the College. By the same unanimous decision, the Panel also decided that the decision of the Disciplinary Committee of the College was the correct one and would be upheld".
The solicitors' letter in response asserted that the Panel had discounted evidence given by H and misunderstood the precise effect of H's evidence. Further, that it had preferred the evidence of two anonymous witnesses contrary to good legal principle. It also went on to point out that the Panel's reasons for deciding that the decision to exclude was correct and appropriate were not evident from the decision letter. It suggested, therefore, that the decision of the Panel was both unlawful and unreasonable.
In its letter in response, dated 9 th January 2004, the Panel, by its Clerk, Mr Richard Couchman, pointed out that the Panel had not misunderstood the evidence in the way suggested and pointed out that the Panel had taken into account both H's evidence and the written statements of two witnesses who had maintained that H was not involved further than supplying the matches. The letter went on to point out that:-
"They weighed this evidence against the evidence presented by the College, including that contained in the written statements of the two pupils who did not wish to reveal their identities, and made their own assessment based on the totality of the evidence".
So far as the contention that the Panel's reasons were not sufficient, the letter stated:
"The letter makes clear that the Panel took all related factors into account and I drew specific attention to documentary and oral evidence that was considered; to the many questions that were asked and the answers that were given at the hearing; and the great importance that the Headteacher and the College give to the safety of its pupils and staff. I also mentioned that the Panel was made aware of the relevant sections of the College's Anti-Bullying/Behaviour policies which, of course, includes specific reference to the potential consequences for pupils who are involved in a single serious incident of violent or dangerous behaviour. Having taken all these factors into account, the Panel decided that H was responsible for the actions described by the College and that the serious nature of the incident justified permanent exclusion".
Grounds of Challenge
Mr Lawson, counsel for the claimant, in his able submissions to the court, identified some four areas of complaint. First he submitted that, having regard to the conflict of evidence and the variety of accounts as to the precise involvement of the claimant in the letting off of the firework, the Panel were obliged to come to a specific conclusion about the precise way in which he was involved in the letting off of the firework. He submitted that the approach of the Panel fell short of that which was required by law for they had failed to resolve contradictions, failed to approach anonymous statements with the degree of caution which was required of them and adopted a less than vigorous approach to the requirement for more evidence in a case where the evidence was not all one way. Secondly he submitted that the Panel had erred in law in adopting the wrong standard of proof in their approach to all the evidence. Thirdly he submitted that the punishment of permanent exclusion was disproportionate alternatively, if proportionality was not the correct test, was irrational. Fourthly he submitted that the reasons which had been given were inadequate.
Ground 1
The extent to which it will be necessary for a fact-finding body to reach specific conclusions on contradictory evidence will depend upon the nature, purpose and subject matter of the inquiry under investigation. Frequently the resolution of all the contradictions which the evidence has disclosed will not be necessary. The true nature and purpose of the inquiry which was before the Panel was, in my judgment, no more specific than an investigation into whether the claimant was involved in the letting off of a firework in a covered walkway at the school. In particular, in a confined space, where any number of pupils might be present, and where it was said the letting off of a firework would give rise to serious risk to the health and safety of other pupils, not simply from the firework itself but from the consequences of the stampede or running which would be likely to occur in response to the explosion. The context and purpose of the inquiry concerned the head teacher's decision as set out in the letter dated 24 th October 2003. I reject the submission that it was necessary for the purposes of determining whether the claimant was involved in the letting off of the firework for the Panel to reach a conclusion as to the precise way in which he had been involved. This is so because...
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