R (K) v Tamworth Manor High School Governors
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SULLIVAN |
| Judgment Date | 03 November 2004 |
| Neutral Citation | [2004] EWHC 2564 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1900/2004 |
| Date | 03 November 2004 |
[2004] EWHC 2564 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
Mr Justice Sullivan
CO/1900/2004
MR D LAWSON (instructed by ORMERODS SOLICITORS) appeared on behalf of the CLAIMANT
MISS J MCCAFFERTY (instructed by LONDON BOROUGH OF MERTON LEGAL SERVICES DEPARTMENT) appeared on behalf of the DEFENDANT
Wednesday, 3rd November 2004
In this application for judicial review the claimant challenges the decision of the Governors' Discipline Committee, on 20th January 2004, to uphold the head teacher's exclusion of the claimant from Tamworth Manor High School for 16 days.
The exclusion followed an incident on 5th December 2003 on the school football pitch during a match with another school, when the claimant, who should have been in a maths lesson, ran across the field with his trousers down thus exposing his buttocks. When asked about the incident by a teacher the claimant replied, "I ran on the pitch & did a mooney, that's all".
In a letter dated 15th December 2003 the head teacher said that the claimant was being excluded from the school for a period of 16 days from 6th January 2004. She explained her reasons as follows:
"Michael has been excluded for this fixed period for:
•Truanting Mathematics lesson which is a health and safety risk.
•Indecent exposure of his buttocks at a inter-football match.
•Bringing the school into disrepute.
As the length of the exclusion is more than 15 school days (or equivalent) the School Governors' Discipline Committee must automatically meet to consider the exclusion. At the review meeting you may make representations to the Committee if you wish to do so. The latest date the Committee can meet is no later than 15 school days from the date on this letter."
The Governors' Student Disciplinary Review Panel met to consider the claimant's exclusion on 20th January 2004. At the hearing the claimant was represented by counsel, Mr Lawson, who appeared on his behalf before me today. The Governors' decision was challenged on a number of grounds. Bennett J gave permission to apply for judicial review on just two of those grounds: "unreasonable penalty" and "unreasonably excessive penalty". He refused permission on a number of other grounds, including a complaint that there had been a failure to give adequate reasons.
In the claim form the "unreasonable penalty" challenge was put upon the following basis. The panel was required to have regard to the Secretary of State's guidance when it was reaching decisions about exclusions (see the Education (Pupils Exclusions and Appeals)(Maintained Schools)(England) Regulations 2002). Paragraph 6 of the guidance deals with length of fixed period exclusions. Paragraph 6.1 is in these terms:
"The regulations allow head teachers to exclude a pupil for one or more fixed periods not exceeding 45 school days in any one school year. However, individual exclusions should be for the shortest time necessary, bearing in mind that exclusions of more than a day or two make it more difficult for the pupil to reintegrate into the school. Ofsted inspection evidence suggests that 1–3 days is often long enough to secure the benefits of exclusion without adverse educational consequences. Exclusions may not be given for an unspecified period, for example until a meeting can be arranged. Such a practice amounts to an indefinite exclusion, for which no legal arrangements exist."
In the claim form it was contended that the acting head teacher was not aware of the suggestion in the guidance that exclusions should be for 1 to 3 days, and it was contended, for various reasons, that the panel had failed to have any proper regard to the guidance as a material consideration.
That claim became untenable as soon as the defendant put in its evidence in response to the claim. It is plain from that evidence that the head teacher was well aware of the guidance, indeed she had received specific training in respect of it. More to the point, since it is the panel's decision which is subject to judicial review, the minutes of the meeting have been produced and they demonstrate that the panel had the guidance drawn to their attention by Mr Lawson, both when he was putting questions to witnesses and during the course of his final submissions.
In these circumstances it is wholly unrealistic to suggest that the panel failed to have regard to the guidance as a material consideration, and one is therefore left with the remaining ground of challenge that, in all the circumstances, including what is said in the guidance, 16 days exclusion was "an unreasonably excessive penalty", or as it is now put in Mr Lawson's skeleton argument, that 16 days was a disproportionate penalty.
Mr Lawson conceded, during the course of these proceedings, that a period of exclusion was an appropriate penalty. The sole issue is, therefore, whether the period of exclusion upheld by the Governors, 16 days, can fairly be described as excessive or disproportionate.
Mr Lawson submitted that by reference to paragraph 6.1 of the guidance, (see above) an exclusion for a period of 1 to 3 days would have been the appropriate penalty. I am unable to accept that submission. The guidance, and it is guidance to be taken into consideration rather than a series of mandatory requirements, does no more than state that the evidence suggests "… that 1–3 days is often long enough to secure the benefits of exclusion without adverse educational consequences."
The next paragraph in the guidance, 6.2, recognises the regrettable fact that longer exclusions may prove to be necessary, since it says in part:
"A head teacher considering whether to exclude a pupil for a longer period, for example for more than 15 school days, should plan …"
Various matters are then set out and it is not suggested that they were not addressed in the present...
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