R (A) v Independent Appeal Panel of London Borough of Sutton
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 04 June 2009 |
| Neutral Citation | [2009] EWHC 1223 (Admin) |
| Docket Number | Case No: CO/11303/2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 June 2009 |
[2009] EWHC 1223 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
QUEENS BENCH DIVISION
Before: Mr Justice Hickinbottom
Case No: CO/11303/2007
Manjit Gill QC and Shivani Jegarajah (instructed by Fisher Meredith) for the Claimant
Galina Ward (instructed by the Solicitor to the London Borough of Sutton) for the Defendant
Denis Edwards (instructed by Ormerods) for the First Interested Party
The Second Interested Party did not appear
Hearing dates: 18 May 2009
Mr Justice Hickinbottom:
Introduction
The Claimant, A, through his father, challenges the decision of the Independent Appeal Panel for the London Borough of Sutton (“the Panel”) of 18 September 2007 which rejected his appeal against the decision of the Discipline Committee of the Board of Governors of B School (“the School”) of 20 June 2007 which upheld the decision of the Head Teacher of 18 May 2007 permanently to exclude A from the School.
Factual Background
A attended the School from September 2003. Between about January and April 2007, A, then 14 years old and in year 10, brought smoking material onto the School premises, which he sold to a number of other boys. Throughout, he has said that this was a herbal mixture which contained no drug controlled under the Misuse of Drugs Act 1971, purchased from a local shop: and, further, he made that clear to those to whom he supplied. However, a number of the boys indicated that they believed the material they bought was cannabis. In addition to the supply of this material, A arranged for a pupil in year 9 to meet a third party who, he suggested to the other boy, would be able to procure cannabis: and indicated to another younger pupil that he could arrange for him to meet a dealer. Neither of those meetings (which were due to take place off school premises) in the event actually took place.
Following various investigations and interviews which took place from 24 April 2007 to which I will return, the Head Teacher decided temporarily to suspend A from the School. In a letter dated 27 April 2007, but in fact given to A's parents (Mr & Mrs S) at a meeting on 3 May, he said:
“I regret to inform you that I have decided to exclude [A] from school. The exclusion is initially for a fixed period of ten days while further investigations are completed. The allegations about [A] are serious ones and he may be facing permanent exclusion for dealing in drugs….
The reason for this exclusion is that [A] has sold 'weed' to other pupils at the school. Money and the drugs have been exchanged on school premises to boys in his own year and possibly to two boys in the year below. It is also alleged that he has made arrangements to buy further supplies, taking one of the year 9 boys with him. [A] and others admit to other non-illegal purchases from a store in Cheam but two of the other boys, now serving fixed term exclusions, say that they paid for and received 'weed' from [A] which they took to be marijuana….”
Further investigations and interviews took place, including a long meeting with A and his parents on 3 May, to which I have already referred.
On 18 May 2007, the Head Teacher wrote to Mr & Mrs S again, informing them that he had decided permanently to exclude A from the School. The relevant parts of that letter were as follows:
“I regret to inform you of my decision to exclude [A] permanently from school for dealing substances believed to be illegal drugs (and not just a herbal smoking mixture from [a local shop] on the school premises to other pupils of the school. [A] also arranged a meeting for the purpose of procuring drugs and took a younger boy to this meeting.
…
[A] has not had a very good year in terms of his disciplinary record, including an episode of shop lifting, but the permanent exclusion is not seen as a cumulative thing but a response to a single serious breach of school discipline in dealing in forbidden substances on the school premises…”
This letter is of particular importance because, once the reasons for exclusion are identified, new reasons cannot be relied upon by the school (see paragraph 20 below).
I deal with the relevant statutory provisions below (paragraphs 13 and following). However, briefly, by virtue of regulation 5 of the Education (Pupil Exclusion and Appeals) (Maintained Schools) (England) Regulations 2002 ( SI 2002 No 3178) (“the 2002 Regulations”), the decision of the Head Teacher effectively had to be reviewed by the Governing Body of the School, through its Disciplinary Committee (“the Disciplinary Committee”), which held a hearing on 14 June 2007. At that hearing, A was represented by Ms Jegarajah of Counsel. Mr & Mrs S, and the Head Teacher, also attended. The Disciplinary Committee reserved their decision, which they communicated to Mr & Mrs S by letter dated 20 June 2007, saying:
“The Committee, having taken into account the thorough and lengthy committee proceedings, the additional papers served on the Committee at the meeting's start, the School's published policies and DfES guidance, has decided to uphold [A]'s exclusion.
The reasons for the Committee's decision are as follows:
a) [A] admitted selling an unauthorised drug in the form of smoking materials, which he maintained was a herbal mixture, on School premises for profit.
b) In spite of some conflicting statements there was sufficient evidence to show that the boys who purchased the material from [A] believed they were purchasing 'weed' or cannabis.
c) [A] admitted that he had arranged a meeting with a younger boy present for the purpose of meeting a boy who he believed could supply illegal drugs.
d) In supplying a smoking material of unknown content [A] had risked endangering the health of several boys.
e) [A] had broken the School Rules by bringing smoking materials onto School premises and had breached the Governing Body's substance abuse policy by trading an unauthorised drug on the premises
Before coming to a decision, the Committee satisfied itself that:
* although the investigation lacked the rigour of a full criminal investigation there was only a duty on the Headmaster to establish on the balance of probability that the offence had been committed.
* there was not a requirement on the Headmaster to report the matter to the police.
* the Headmaster was not obliged by DfES Guidance to consider, and record his consideration of, a full range of lesser options than permanent exclusion when a case related to supplying drugs.
The Committee considered that to allow [A] to remain in School would seriously harm the education and welfare of others in the School and that exclusion was an appropriate response to very serious breaches of the School's behaviour policy….”
In that letter, Mr & Mrs S were notified of their right to appeal to the Panel, and they duly lodged an appeal. There was a hearing before the Panel on 17 September 2007, at which A was represented by Mr Manjit Gill QC. A and Mr S, and the Head Teacher, were also present.
The Panel rejected the appeal and upheld the decision of the Disciplinary Committee permanently to exclude A. In a letter sent to Mr & Mrs S on 18 September, the Panel gave their decisions, findings of fact and reasons as follows:
“ Decisions
i) That [A] was responsible for the behaviour complained of, which was in breach of the School's Substance Abuse Policy, and leading to the permanent exclusion that took place on 18 May 2007.
ii) That permanent exclusion was a reasonable response to [A]'s behaviour.
iii) Given (ii) above the appeal is dismissed and [A] should not be reinstated to [the School].
Findings and Reasons
1) That the criteria of [A] was he was acknowledged that he had a reputation within the School as 'hard'. He demonstrated a willingness to set up meetings purportedly for the purchase of illegal drugs, which was consistent with such a reputation, [A] appeared content to have such a reputation within the School.
2) On the balance of probabilities, the Panel found that [A] had dealt substances believed by the Headteacher and the purchasers of the substances to be illegal drugs, on the School's premises.
3) On the balance of probabilities, it had been shown [A] attempted to arrange a meeting for the purposes of procuring drugs, and took a younger pupil to the proposed meeting.”
In considering whether the sanction of permanent exclusion was proportionate, the Panel continued:
“The Panel considered, whether or not in all the circumstances it was proportionate to permanently exclude [A]. The Panel considered in the context of the School and its recent history and the particularly serious circumstances of this case involving younger pupils, it was proportionate in all the circumstances. The Panel considered that the Headteacher's decision to permanently exclude [A] was a measured decision, that the Headteacher had taken into account the seriousness of the incident, particularly involving younger boys, and had considered whether alternative options were suitable, but on balance, considered it was proportionate. Whilst the Panel was reassured that the final decision was taken by the Headteacher and was reliant on the Headteacher's own interviews with the pupils and parents, the Panel noted serious concerns in respect of how the interviews were undertaken. The Panel...
To continue reading
Request your trial