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Cite as: [2005] EWHC 277 (Admin)

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Neutral Citation Number: [2005] EWHC 277 (Admin)


Royal Courts of Justice
London WC2
31st January 2005

B e f o r e :




Computer-Aided Transcript of the Stenograph Notes of
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MR O HYAMS (instructed by BAILEY WRIGHT SOLICITORS) appeared on behalf of the CLAIMANT



Crown Copyright ©

    Monday, 31st January 2005

  1. MR JUSTICE NEWMAN: This is an application for judicial review of a decision of an independent appeal panel, convened by Wolverhampton City Council acting as the Local Education Authority, to hear the appeal of Q, the father of A, against A's permanent exclusion from his school.
  2. The independent appeal panel's central conclusion of fact was that A had admitted kicking a youth who was lying on the ground within the school grounds and during school time. The youth came from another school. He had come into A's school on the day in question, shortly after a trivial incident which had occurred on the previous Saturday night. A had witnessed a confrontation between this youth and A's friend. The incident had involved the youth saying "Hello" to the girl with A's friend.
  3. The triviality of the background is not without significance having regard to the serious incident of violence which occurred at the school. There was an admission by A to the kicking of a youth on the ground in the school. The panel concluded that kicking a person on the ground was a cowardly act as well as being extremely dangerous, being done, as it concluded by inference, in anger. It seems fair to assume it must have been done in anger, because one can see no reason why A would have been kicking someone on the ground unless he had lost control of himself.
  4. The violence of the act was sufficient to cause concern in the caretaker who was nearby, who threw himself over the victim in order to protect him from the kicking. I should add that the kicking was coming from more than one youth, not simply A. That might have been seen to complicate the position in some respects, but the fact that A was joining in with others to kick one boy on the ground hardly assists in the overall view one takes of the gravity of what was taking place. It was no doubt because more than one boy was kicking that the caretaker felt it necessary to throw himself over the boy on the ground in order to protect him. The tribunal found that the kicking continued in such a way as to cause severe injuries to the caretaker.
  5. The panel did not believe that the angry A, in full kicking mode, suddenly calmed down and walked way. There was therefore an issue before the panel as to whether A, in kicking mode, kicked the caretaker. For reasons which are not entirely clear, the matter seems to have come before the panel upon the basis that it was critical to the permanent exclusion which had been ordered that it was the caretaker who was kicked as opposed to the lad on the ground. But be that as it may, although why that distinction was drawn is not clear, it was a distinction which the panel drew in favour of A, because they stated that it was their considered opinion that A probably was one of the caretaker's assailants. However the panel concluded that there was insufficient evidence to prove this beyond reasonable doubt, and giving the appellant the benefit of the doubt they upheld the appeal and overturned the permanent exclusion order.
  6. There is no challenge to any of these conclusions which I have summarised. The panel also noted in the course of the proceedings that A had a record of previous disruptive behaviour, extending throughout the time he had been at the school. It also identified the fact, which must have been obvious, although no significance was placed upon it by A's solicitor, that the names of those who had written statements, included in the evidence, had been obliterated, as the panel record, for "fear of reprisal".
  7. Summarising the position therefore at this stage, simply by reference to the undisputed facts, and there are some which are undisputed to which I will come in a minute, the appeal panel had before them, and so concluded, that a serious, violent assault had taken place which had involved kicking by more than one person, including A, upon another youth who was on the ground, and that in obtaining the evidence it had been necessary, for fear of reprisal, for statements to be made anonymous.
  8. But having set that background, which is not without importance having regard to a reasons challenge which is made, I turn now to the start of the argument in respect of which permission was granted. Guidance is provided by the form of guidance notes for independent appeal panels. In the form of notes considered by the panel the guidance was expressed as follows. Part 4 of the guide, page 5, paragraph 10.4:
  9. "There may be exceptional cases where the panel consider that the permanent exclusion should not have taken place, but that reinstatement in the excluding school is not a practical way forward in the best interests of all concerned. This could include situations where there has been irretrievable breakdown in relations between pupil and teachers; between the parents and the school; or between the pupil and other pupils involved in the exclusion or appeal process. Balancing the interests of the pupil and the whole school community may suggest that reinstatement would not be the most sensible outcome in such cases."
  10. The case advanced by the claimants relied upon guidance in somewhat different terms. Paragraph 129, at page 87 of the bundle:
  11. "There may also be exceptional cases where the panel consider that the permanent exclusion should not have taken place, but that reinstatement in the excluding school is not a practical way forward in the best interests of all concerned. This could include situations where there has been an irretrievable breakdown in relations between pupil and teachers; or between the pupil and other pupils involved in the exclusion or appeal process."

    Then critically this sentence:

    "Before deciding that there are exceptional circumstances the panel should try to establish what efforts have been made to address a possible breakdown in relations."

    Then the paragraph continues:

    "Balancing the interests of the pupil and the whole school community may suggest that reinstatement would not be the most sensible outcome in such cases. In considering whether such exceptional circumstances exist the panel should consider representations from the governors, the head teacher and from the parent..."

    That sentence also appears in paragraph 10.4 as it appears in another version of the guidance which has been before the court, but it is unnecessary at this stage to refer to that version for reasons which will become apparent.

  12. Whilst referring to this guidance, it is, however, important to note that both in paragraph 130 of what I take to be the latest guidance, and in paragraph 10.5 of the guidance handed to the court today, the following appears:
  13. "In any case where the panel decide that reinstatement would have been justified but is not practical, they should indicate this in their decision letter and give details of the circumstances that made them decide not to direct reinstatement. Such a letter should be added to the pupil's school record for future reference."
  14. The decision was given in the terms of a letter dated 19th November 2004, page 59 of the bundle. In its relevant part on this issue it is stated:
  15. "After careful consideration of your representations both oral and written and those of the Headteacher and staff... and in the light of the available evidence, the Panel has decided to allow your appeal against permanent exclusion. There has been a breakdown in relationships between [A] and the teachers, the family and the school, and between [A] and other pupils involved directly or otherwise and for this reason in the best interests of all concerned it is not practical to direct [A's] reinstatement. Your child's school record will show that the permanent exclusion was overturned on appeal even though reinstatement was not directed."
  16. Grounds 1 and 2, upon which Mr Hyams has relied today, he took together, in order to advance the following propositions: that the appeal panel on this occasion failed to take into account, either properly or at all, the guidance to which I have already drawn attention, and that in failing to take account of it unfairness has occurred. He accepted, in my judgment correctly, that when one was interpreting the sentence, "Before deciding that there are exceptional circumstances the panel should try to establish what efforts have been made to address a possible breakdown in relations", it made sense to interpose between the word "possible" and "breakdown", the word, "irretrievable". As a result the effect of the guidance is that, where the panel believe there may be an irretrievable breakdown in relations, then they ought to enquire into it in order to ascertain whether or not reinstatement is, by reason of an irretrievable breakdown, not practical, or whether, notwithstanding their view of the evidence, it is practical.
  17. It is obvious, it seems to me, that the guidance makes it plain to a panel that they should not decline reinstatement, where permanent exclusion has not been upheld, unless what has occurred has given rise to an irretrievable breakdown; the irretrievable breakdown being, as the guidance points out, between the pupil and teachers, or between the pupil and other pupils, who have been involved in the exclusion or the appeal process.
  18. The next feature of the guidance, which Mr Hyams submits demonstrates the need for fairness and the way in which fairness should be secured, is that passage which informs the panel that when they are considering these exceptional circumstances, namely, non-reinstatement even though there is no permanent exclusion, the panel should consider representations from the governors, the headteacher, the parent, and from the pupil if he is 18 or over. The way in which Mr Hyams puts it is, that the guidance indicates that it is for the panel to raise the issue and when they do raise it, they must, in fairness, hear all parties on the issue.
  19. So far, one might say, so good, as one analyses how things should proceed. But one has to come to what occurred in this case. Despite some differences, the evidence on what actually occurred from the proceedings is tolerably plain. First of all, let me turn to the statement of the chairman of the panel, Mr Carter, where in paragraph 6 he says:
  20. "During the Hearing, one of the Panel Members (Mr Gallagher) had pointed out to [A] that there were a number of possible outcomes to the Appeal, one of which was to direct reinstatement and asked A how he felt about that. [A] replied that he would keep himself to himself. Mr Gallagher pressed him further and asked, having regard to his school record, what he had learned from the incident. [A] said he had learned to walk away from situations.
    "... [A's] mother, said she would work with the school to endeavour to achieve a smooth progression in the event of his reinstatement... [A] had never been in trouble with the police... [His father contributed to the debate by saying that the problem was not with [A] but 'with his school mates']."

    As it happened the panel were not, according to the statement, particularly impressed by the sincerity of those remarks.

  21. According to the minutes, page 125, it records that the panel questioned A on his statement. It says:
  22. "In response to a question about how he would feel if he were to be reinstated back at the school, [A] replied that he had learnt his lesson and that he would go back and keep himself to himself, keep his head down and study. He added that in future, he would simply walk away from any confrontation. The Solicitor [that is Mr Storey] then questioned [A's mother] who stated that she had a strong desire for [A] to return to [the school]. She stated that she would work with the school, to try to get a smooth progression. She explained that [A] was always well behaved at home and had never been involved in any incidents involving the Police. The Solicitor then questioned [A's father], who appreciated the serious nature of the incident which had occurred in June, but wished [A] to return to the school, as soon as possible, believing that he had nothing to do with the attack on the Caretaker."
  23. Then the record shows that Miss Kerr for the Local Education Authority stated that she had investigated appropriate courses for A but there were none available. She confirmed that she would wish A to return to schooling as soon as possible but made no representations on what one might regard as the critical issue, namely whether A should be reinstated back at the school.
  24. The other evidence comes from Mr Storey in his statement, paragraph 3, page 130. He says:
  25. "I agree that the question of [A's] reinstatement was discussed during the appeal. [A] had indicated that he had learned to walk away from situations. I asked [A] and his parents about their views about [A] returning to the School. [A's mother] said that she would work with the school to ensure a smooth return in the event that [A] was reinstated. [A's] father was clear that he wanted [A] reinstated. There was no evidence to the contrary to suggest that there would be problems if [A] did return. [The high school in question] was the only school in the area where students could study GCSE Engineering and that made it so important that [A] returned there."
  26. Putting aside the assertion which the statement contains, which is not evidence but an assertion which is obviously somewhat in issue, namely that there was no evidence to the contrary, so far as the way in which the proceedings had gone, and the way in which in the course of the evidence the question of reinstatement had been canvassed, there will appear, from what I have endeavoured to draw attention to, to be very little disagreement.
  27. I now turn to the further details which emerge so far as the case is concerned which amount to elucidation or elaboration of the decision letter and its reasons, which has been given in the form of a summary by Mr Carter. That is at page 121. I shall need to come back to them on the issue of reasons, but I need to refer to them now as part of the record relating to the course of the proceedings. At page 120 Mr Carter says:
  28. "Applying this guideline [which I read earlier] the Panel decided that reinstatement was not a wise option for the following reasons:
    (i) The Headteacher was specifically asked, if the appeal was upheld and [A] was allowed back into school, how did he view this prospect. [The headteacher] replied that [A's] return to school could create an unmanageable situation for staff and pupils alike.
    (ii) Under questions, [A] was asked how he viewed 'grassing' and how was it looked upon among his school mates. [A] agreed that 'grassing' was just 'not done' and hated by school kids. Under further questioning he agreed that anyone who 'grassed' would be scared of reprisals.
    (iii) During questions regarding the written statements given by the pupils who identified A as an assailant, the anonymity of these pupils was discussed. [A's father] said, 'the names have been blacked out, but you can still read them', suggesting that those who had 'grassed up' [A] were known to him and his family.
    (iv) The Headteacher told the Panel that anonymity of these witnesses was vital because they were fearful for their own safety.
    (v) The assistant Headteacher... appeared very nervous and scared at times during the hearing."
  29. Continuing with the course of the proceedings, I am satisfied that the account given at page 129, paragraph 8, by the chairman, Mr Carter, is not accurate insofar as he states:
  30. "After a short adjournment and before summing up commenced, Mr Gallagher asked the head teacher... what would be the impact on the school if [A] was reinstated."
  31. I am satisfied, largely by the confirmation which is given to the account put forward by Mr Storey in the minutes at page 126 that Mr Storey is correct when he says in his statement:
  32. "I disagree with the comment made by Mr Carter in paragraph 8 of his statement. After the short adjournment, both parties summed up. It was at that stage in the course of summing up that the school indicated that it would be difficult if [A] returned to the School."
  33. It seems to me that the material to which I have alluded, contained in these various parts of the record, demonstrates that a significant body of material was put before the panel in the course of the evidence; evidence which was capable of showing that there had been an irretrievable breakdown. Further, as far as reinstatement was concerned it was obviously raised in the evidence, because A was asked about it, his mother was asked about it and his father was asked about it.
  34. It can be seen that there are a number of relevant strands of evidence. In the course of the hearing, the specific point of reinstatement was addressed by questions to the boy and his family. Further, evidence was given, but without any label being attached to that material, which was capable of providing reasonable grounds for concluding that this was a case in which irretrievable breakdown was likely to have occurred, namely the incident itself, the difficulties in obtaining the evidence, the fear of reprisal, the assistant head's fears and so forth.
  35. So one comes to Mr Hyams' first main point; he does not submit that the panel did not raise the issue. He cannot say that on the available material. The panel plainly raised it, but in the course of submissions, in particular the submissions of the headmaster. He submits that, in the normal course, it would be sensible, if the panel are seeking to elicit evidence, for it to do so, either in the course of the proceedings (I suspect not the preferred course from his submission), or once they have come to their conclusion as to whether or not there is to be permanent exclusion. At that stage the issue of reinstatement or non-reinstatement should be addressed as a discrete topic.
  36. In my judgment there is no principle of law which governs the choice. The only question to which this case gives rise is whether or not an error of procedure occurred which has given rise to unfairness. The panel did not act on either of the two suggested options but adopted a third, which was to raise the issue and elicit evidence from the headmaster on it when he was making his final submissions.
  37. It may have been an untidy way to proceed, but one has to be practical and realistic. Nobody there, in particular the solicitor for A and the family, could possibly have missed the significance of the fact that Mr Gallagher, the same member of the panel who had been responsible for raising it in the course of the hearing when A was giving evidence, was again, when the headmaster was making submissions, reverting to the question of reinstatement and asking specifically whether it would create any difficulties for the school.
  38. The response of the headmaster constituted evidence. He was giving evidence about what the school felt about reinstatement. It could not, in my judgment, have escaped the solicitor for the claimant that it was evidence which had not been given before, upon which he had a right to respond by calling evidence if he so wished. He had an opportunity to cross-examine the headmaster about the statements he was making. But all that Mr Storey says in his statement, paragraph 5, page 131, is as follows:
  39. "I did not cross examine the headteacher on this point as it was made in his summing up and not in his evidence."
  40. In my judgment his explanation sheds no light on why he did not take one or other of the courses which the court has adumbrated. The explanation has a technical ring about it. I acquit Mr Storey of holding back so that complaint could be made about it later. But it is very important, in matters of fairness arising out of conduct in the course of proceedings, when legal representation is available, for points such as this to be taken at the time. Where there has been an opportunity to deal with a matter about which complaint is made to this court, the fact that nothing was said at the time is a weighty consideration. Further failure to take the point at the time can sometimes reflect the true weight which should be given to the complaint itself.
  41. Indeed, this is even more important in this case where, as Mr Storey goes on to say:
  42. "However, in response when summing up, I submitted that it was not reasonable not to reinstate a pupil who was not responsible for an incident purely because it would undermine the discipline at the school for someone who had been previously excluded to be reinstated. There was no indication as to why it would be so difficult for the school."
  43. The last sentence I take to be an observation for this court rather than something he said at the time. The significance of this passage though is that he went on to address the panel on the very issue as to whether or not the school should reinstate him. Had he wished to say anything about the summation of matters which the headmaster had put forward he had the opportunity of doing so. He did not have to ask for cross-examination. For example he could have said something along the lines, "The first time we have heard anything from the headmaster was when he was asked that question by you". He had a proper opportunity to make such comments as he thought were appropriate about it. That was a second opportunity for some redress to have been taken at the material time and it was not.
  44. I agree that there is a certain untidiness about the way in which this issue has proceeded, but I am wholly unpersuaded that it has given rise to any unfairness, either in respect of a loss of an opportunity to the claimant or his legal representative to cross-examine or apply to cross-examine the headmaster on the evidence he gave, or to address the panel on the substance of the evidence he was given. Nor do I think it would be right, in a case such as this, for any particular procedural indulgence to be given to the claimant and his legal representative when it was perfectly apparent from the uncontested evidence that I have recited that the difficulties of reinstatement were in the mind of Mr Gallagher, if not the rest of the panel, and had been canvassed in the evidence in the course of the proceedings.
  45. For all the above reasons I am satisfied that there has been no unfairness arising from what Mr Hyams has drawn to the attention of the court.
  46. Grounds 3 and 4, as they were formulated, no longer arise. For the reasons I suggested in argument I say no more about them. Before I turn to the live issue which has been argued, namely the sufficiency of reasons, I have to deal with another aspect of the reasons underlying the decision of the panel, which have also been argued as giving rise to a discrete ground of unfairness, which had I been satisfied as to a measure of unfairness in relation to grounds 1 and 2 Mr Hyams would have said cumulatively make it a greater case of unfairness.
  47. But I will turn now to the discrete ground of alleged unfairness. The discrete ground of unfairness is as follows. The chairman records that at the conclusion of the hearing, as the headteacher was leaving the room, he was heard to ask a member of staff for a security guard to accompany him out of the building. This request was made discreetly and out of the hearing of the panel but was picked up by one panel member who had left his seat. This panel member was quite shocked that the headteacher seemed fearful for his own safety.
  48. Elaboration in the course of the hearing has established that the sequence of events on this is as follows: that submissions and representations had been concluded; that Mr Storey for the family had probably left the room; and the headteacher, no doubt followed by the other part of the school team, left the room, that this event then occurred, and that the headteacher then went on out of the room. There is no detail and nor would it be particularly helpful for the court to have it as to how, in the course of the deliberations, this event, which was witnessed by one of the panel members, was introduced into their deliberations.
  49. Not surprisingly Mr Hyams submits that this is an instance of the appeal panel taking into account something upon which A and the family had no opportunity of making any representations; no opportunity if they thought it right to request to investigate it by evidence or by cross-examination; and that manifest unfairness has occurred because it is something which must have influenced the panel.
  50. The panel member being recorded as "quite shocked" by it, he submits is itself an indication of the weight which was likely to have been attached to it in the course of the deliberations by the panel when deciding whether or not to order reinstatement.
  51. I proceed upon the basis that the panel did take this into account and I proceed upon the basis that it was a matter which is likely to have carried some weight with them. I have to ask the question whether the way in which it has occurred has led to such unfairness to A and the family that the decision should be quashed.
  52. I have considered the matter anxiously in the light of the plain lack of opportunity that there has been for Mr Storey to say or do anything about this, but in my judgment, accurately analysed, the impact of this evidence was a matter for the panel on undeniable, as it seems to me, facts. Its true impact comes from the fact that the headmaster was in such a state of mind, or such a state of anxiety or fear, that he should ever have made the request. Since I proceed on the undeniable factual basis that he made the request, it seems to me the panel were bound to be in a position where they would pay regard to it, and there was nothing that Mr Storey was going to be able to do by way of cross-examination which was going to alter the fact that the headmaster obviously felt sufficiently in fear for himself that he asked for security assistance.
  53. In the various options that arise in the course of dialogue in cases such as this, Mr Hyams suggested or touched on possible lines of enquiry which could have been pursued. Having heard some of them, I am satisfied that it would not have been in the interests of A or his family for anybody like Mr Storey to take up, on his behalf, when they were seeking to establish that there had not been an irretrievable breakdown in relations, a line of enquiry involving a suggestion to the headmaster, by way of cross-examination, that he had acted deliberately so as to influence the panel and in the presence and hearing of the panel had asked for protection, in order to let the panel know that he felt fearful, when in truth he had no reason to feel fearful and was not fearful.
  54. It is clear to me that in the face of this particular incident any advocate would be likely to take the view that the least said about it the better. I can see nothing which could have been said which would have altered the position materially, even if there had been an opportunity for Mr Storey to make submissions upon it. It is one of those situations in which, if he had chosen to say that there was no basis for it, the panel would be likely to take the incident for what it was and for what had been heard and observed. Anything said about it, in my judgment, would be likely to have worsened the position.
  55. Thus, I am not satisfied that there is anything attending the inclusion of this material or evidence in the minds of the panel which gives rise to any legal basis for complaint. But, I say that also with the confidence that if one excluded from the panel's deliberations this factor, and that is about the best that one could have got by way of submission to them, or by way of result from anything one could say to them, it seems to me, with regard to the matters to which the panel did refer, and which were in evidence and were addressed, that there was ample material justifying the conclusion that reinstatement was not practical because of a breakdown in relations; an irretrievable breakdown in relations certainly between the school and other students in the school, and the fear that the school would have of the impact of reinstatement on the other children in the school.
  56. It has to be said that such violent behaviour will be frightening enough when it occurs on the street, but when translated into the close environment of a school it can have heightened and more pernicious consequences. It will be seriously disruptive to the good order and well being of the school. Across the range of ages of children in a school it is likely to create a disturbed environment and a serious sense of unease and fear. A school is entitled to regard such conduct as fundamentally incompatible with the essential terms upon which students attend a school and as demonstrating such a departure from the values and conduct which should prevail in a school as to undermine relations with other students and the staff.
  57. I am satisfied that notwithstanding that the panel's deliberation included a matter upon which there was no opportunity for the claimant to make submissions, this is a case in which the decision of the panel should not, on that score, be quashed.
  58. I come to the reasons challenge. On this it is fair to say that whilst it cannot be elevated to the level of a statutory requirement for reasons to be given, Mr Hyams was right to draw attention to the guidance which states that in any case where the panel decide that reinstatement would have been justified but is not practical, they should indicate this in their decision letter and give details of the circumstances that made them decide not to direct reinstatement.
  59. So the question arises: what does that mean? It is not elaborate guidance and I am not entirely sure that the words "details of the circumstances that made them decide not to direct reinstatement" is likely to be particularly valuable in the majority of cases where the issue will be whether or not, as the guidance suggests, an irretrievable breakdown in relations between pupil and teachers, between the parents and the school, between the pupil and other pupils involved, has occurred.
  60. It is not really, therefore, giving details of the circumstances that made them decide not to direct reinstatement that are called for. What is called for is, first of all, a decision as to whether or not they are going to order reinstatement. If they are not, why not. The likelihood is, since it is an exceptional circumstance, that the reason is going to be that there has been a breakdown in relationships and that it is irretrievable. That means that what is required is some insight into the circumstances, in the particular case, which has led the panel to the conclusion that there has been an irretrievable breakdown.
  61. When one looks at the decision letter one can see that the commotion or fight is described, the nature of it, and their conclusion in connection with A's involvement in the fight is explained, but there is nothing there which details the circumstances leading to the panel's conclusion that irretrievable breakdown had occurred.
  62. Despite the submission of Mr Findlay, who suggested that the decision letter was not really that inadequate, it seems to me that the decision letter was inadequate because it failed to give what could be discerned as reasons as to why the conclusion had been reached. If one was looking at the decision letter one would not know why, apart from the gravity of the assault itself.
  63. But now there is an abundance of material, to which I have already referred, which appears in the short summary which Mr Carter has exhibited at page 120 and 121 of the bundle, and in the other material, which I have endeavoured to summarise, as to the facts and circumstances of this case, which discloses why the panel came to the conclusion that reinstatement was not practical.
  64. So in truth the question, as I see it, becomes: is this a case upon which, looking as one can at the proceedings, and the way in which the proceedings were conducted, can one see any basis for the panel's conclusion that things had irretrievably broken down? In my judgment the short answer is "yes". One can see ample material capable of supporting that conclusion. I can therefore see no purpose being served in this case, nor anything impermissible, by way of principle, to the court looking at that material, since it is not material which changes the basis upon which the decision was reached, it is merely material elucidating the reasons why they reached the conclusion.
  65. For all those reasons I would also reject the reasons challenge. Despite the proper, clear and helpful submissions of Mr Hyams on behalf of the claimants, in my judgment this application for judicial review must be dismissed.
  66. Have I neglected anything?
  67. MR FINDLAY: No, no, my Lord. There is an application for costs, but I do not know whether my learned friend is in receipt of funding.
  68. MR JUSTICE NEWMAN: You probably are.
  69. MR HYAMS: Legally aided, my Lord, yes.
  70. MR JUSTICE NEWMAN: Legal Aid Taxation then.
  71. MR HYAMS: Absolutely. I am grateful, my Lord.
  72. MR FINDLAY: Thank you, my Lord.
  73. MR JUSTICE NEWMAN: Thank you both very much.

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