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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> DR, R (on the application of) v Kingsmead School & Ors [2002] EWCA Civ 1822 (13 December 2002) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2002/1822.html Cite as: [2003] ELR 104, [2002] EWCA Civ 1822, [2003] LGR 371 |
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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)
Strand, London, WC2A 2LL |
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B e f o r e :
(Vice-President of the Court of Appeal Civil Division)
LORD JUSTICE KAY
and
LORD JUSTICE KEENE
____________________
THE QUEEN (on the application of "DR") |
Appellant |
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- and |
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(1) HEAD TEACHER OF ST GEORGE'S CATHOLIC SCHOOL (2) GOVERNING BODY OF ST GEORGE'S CATHOLIC SCHOOL (3) INDEPENDENT APPEAL PANEL OF WESTMINSTER CITY COUNCIL |
Respondent |
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THE QUEEN (on the application of "AM") |
Appellant |
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- and - |
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(1) THE GOVERNING BODY OF KINGSMEAD SCHOOL (2) INDEPENDENT APPEAL PANEL OF THE LONDON BOROUGH OF ENFIELD |
Respondents |
____________________
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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
____________________
Crown Copyright ©
Lord Justice Simon Brown:
"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. ..."
"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."
"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."
"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."
"1(1) No appeal under section 67(1) against a decision not to reinstate a pupil may be made after the 15th 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."
"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 teacher has had further opportunity (not in the 'heat of the moment') to consider the incident in question.
If, when they review an exclusion, the Discipline Committee or the independent appeal panel consider that the guidance in this Section and Annex D was not followed, they should normally direct re-instatement.
6.1 Schools must maintain discipline and good conduct to secure an orderly learning environment so that teaching and learning can take place. Schools will therefore need to adopt a range of strategies, including exclusion, to ensure that they are providing a sound learning environment for all pupils. But many pupils excluded from school never get back into education and risk exclusion from mainstream society later in life.
...
Permanent Exclusion
6.6 A decision to exclude a child permanently is a serious one. It is a final step in the process for dealing with disciplinary offences when a wide range of other strategies have been tried and have failed, including the use of a Pastoral Support Programme. It is also an acknowledgement by the school that it can no longer cope with the child. The Secretary of State does not expect a head teacher normally to exclude permanently a pupil for a 'one-off' or first offence."
"The school is responsible for promoting good behaviour and discipline on the part of its pupils and for securing an orderly and safe learning environment for its pupils and staff. In deciding whether to direct re-instatement, therefore, the panel must consider the impact that it may have on other members of the school. The Secretary of State would normally regard it as inappropriate to re-instate a pupil who has been permanently excluded in circumstances involving any of the following:-
( serious actual or threatened violence against another pupil or member of staff; or
( sexual abuse; or
( presenting a significant risk to the health and safety of other pupils by selling illegal drugs; or
( persistent and malicious disruptive behaviour, including open defiance or refusal to conform with agreed school policies on, for example, discipline or dress code."
AM's Case
"Once confidence in the fairness of the system is undermined, it is difficult to restore even if there is an appeal by way of a rehearing - the damage is done."
DR's Case
"(i) the incident took place where and when it had been described. Five boys including DR were present. DR had entered the room as one of the group of five boys. There was no reason for him to be in that room;
(ii) DR admitted being present when K was attacked and forced to the floor;
(iii) he admitted acts which amounted to an indecent assault (touching K's bottom);
(iv) he then said that he left the room while the attack was in progress. However, he did nothing to alert any teacher to what was happening, or to raise the alarm in any other way."
"Those factors alone were serious matters for the following reasons:
(i) An assault of any kind on any child should be treated as serious breach of School Rules - it also affects discipline in the School;
(ii) It is a breach of health and safety for the school;
(iii) The effect on K was serious - she was very upset and the Police explained that if K had not withdrawn her complaint then they would have gone through with prosecuting the boys involved.
(iv) The incident was bad for School morale and would tarnish the School's image."
"I very strongly felt that this was an ideal case of 'inclusion' and not of 'exclusion' that may alienate one irrevocably against the system."
"... their Lordships recognise and indeed assert that no clear and absolute rule can be laid down on the question whether the defects in natural justice appearing at an original hearing, whether administrative or quasi-judicial, can be 'cured' through appeal proceedings."
"If the rules and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal? ... As a general rule ( I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body."
"The court [in ex parte Dowler] held, first, that there was no principle, let alone authority, to suggest that a person was entitled to more than one fair trial. There was no reason in law or in sense for a defendant to be given an extra life. While different considerations might apply to domestic and other specialist tribunals, the court placed reliance on the observations of Lord Wilberforce in Calvin -v- Carr ... There are, in our opinion, three objections to this reasoning. The first is that Parliament has expressly conferred a right to retrial in the Crown Court on appeal following a trial before justices, and in providing for two trials Parliament must be taken to have intended that there should be two trials not vitiated by unfairness or procedural irregularity."
"It is ... relevant to note that if the defendant appeals to the Crown Court, while he will obtain a fair retrial, he will not obtain redress for the unfairness in the magistrates' court of which he complains, since the Crown Court has no supervisory jurisdiction over the conduct of magistrates' courts. ( Ex parte Dowler ( should not in our view be treated as authority that a party complaining of procedural unfairness or bias in the magistrates' court should be denied leave to move for judicial review and left to whatever rights he may have in the Crown Court. So to hold would be to emasculate the long-established supervisory jurisdiction of this court over magistrates' courts, which has over the years proved an invaluable guarantee of the integrity of proceedings in those courts. (
Two notes of caution should however be sounded. First, leave to move should not be granted unless the applicant advances an apparently plausible complaint which, if made good, might arguably be held to vitiate the proceedings in the magistrates' court. Immaterial and minor deviations from best practice would not have that effect ... This court should be generally slow to intervene, and should do so only where good (or arguably good) grounds for doing so are shown. Secondly, the discretion whether or not to grant relief by way of judicial review is always, in the end, a discretionary one. Many factors may properly influence the exercise of discretion, and it would be both foolish and impossible to seek to anticipate them all. ( We do not, however, consider that the existence of a right of appeal to the Crown Court, particularly if unexercised, should ordinarily weigh against the grant of leave to move for judicial review, or the grant of substantive relief, in a proper case."
"I do not propose, because it is unnecessary, to go into the question of whether the existence of the pending appeal is a bar to proceeding by judicial review in the sense that it is an inevitable bar, for it appears to me that in some cases it may be possible for a judicial review to proceed notwithstanding such an appeal."
"By the time the applicant sought to make the order of certiorari absolute his appeal to quarter sessions had been dismissed and his conviction affirmed. In that situation the Divisional Court was of opinion that it would be useless to make the rule absolute to quash the order of the justices since the conviction at quarter sessions would still stand."
"Upon the view which I take, that the district auditor's decision was not vitiated by procedural unfairness, the question whether such unfairness, had it existed, was capable of being cured by the appeal to the High Court does not arise directly for decision. It is, however, my opinion that the particular appeal mechanism provided for by s20(3) of the Act of 1982, considered in its context, is apt to enable the court, notwithstanding that it finds some procedural defect in the conduct of an audit which has resulted in a certificate based on wilful misconduct, to inquire into the merits of the case and arrive at its own decision thereon. Section 20(3)(b) empowers the court to 'confirm the decision or quash it and give any certificate which the auditor could have given'. ... [T]here is no limit to the further material which may be introduced so as to enable the whole merits to be fully examined. There is no question of the court being confined to a review of the evidence which was available to the auditor. In the circumstances, it would be quite unreasonable and not in accordance with the intent of the enactment to hold that the court, where an issue is raised as to the fairness of the procedure adopted by the auditor, is confined to a judicial review species of jurisdiction so as to have power only to quash or affirm the auditor's certificate without entering upon its own examination of the merits of the case. No doubt there may be cases where the procedural defect is so gross, and the prejudice suffered by the appellant so extreme, that it would be appropriate to quash the auditor's decision on that ground. But in my opinion the court has a discretion, where it considers that justice can properly be done by its own investigation of the merits, to follow that course."
"I return to the question of more general importance whether, if there had been any unfairness in the procedure followed by the auditor, this would necessarily have led, as the Divisional Court thought, to the quashing of the certificate or whether, as the Court of Appeal concluded, the full hearing of the appeal to the court on the merits was in law able to make good any deficiency in the auditor's procedure. ... The question how far in domestic and administrative two-tier adjudicatory systems a procedural failure at the level of the first tier can be remedied at the level of the second tier was considered by the Privy Council in Calvin -v- Carr ( in which all the relevant previous authorities on the subject are reviewed. I do not find it necessary in this case to examine the general principles there discussed, nor would I think it appropriate in this case to seek to lay down any principles of general application. This is because the question arising in the instant case must be answered by considering the particular statutory provisions here applicable which establish an adjudicatory system in many respect quite unlike any that has come under consideration in any of the decided cases to which we were referred. We are concerned with a point of statutory construction and nothing else."
"In every case it must be for the court, as a matter of discretion, to decide how in all the circumstances its jurisdiction under s20(3) can best be exercised to meet the justice of the case. But I am clearly of opinion that when the court has, as here, in fact conducted a full hearing on the merits and reached a conclusion that the issue of a certificate was justified, it would be an erroneous exercise of discretion nevertheless to quash the certificate on the ground that, before the matter reached the court, there had been some defect in the procedure followed."
"It is to be observed that those remarks are confined ... to domestic or administrative proceedings. In my judgment domestic or administrative proceedings are a long way from judicial proceedings. I believe that a defendant is entitled to have a proper trial and a proper appeal."
That judgment was cited with approval by Lord Bingham in Rowlands.
"The general rule, when Parliament has entrusted a decision-making process to a specialist body, is that the courts will be reluctant to interfere with the decisions made by that body. It is operating in a field with which it (and not the courts) is familiar, and this is particularly the case where sensitive relationships are concerned."
"that there is here a strong prima facie case that there has been a breach of the rules of fairness in the way that this child has been treated and a prima facie case that the penalty is disproportionate to the offence, although that must, essentially be a matter for the school authorities."
"In my judgment this was an important line of inquiry because when the matter was considered in the round the evidence might have indicated that in reality a choice had to be made between maintaining H in the school and reversing the head's decision in relation to [the two 13-year olds]. That would be the situation if the evidence showed that if [the two boys] returned H for good reason and not simply because of parental pressure, would not be able to stay. If that did turn out to be the position then, as it seems to me, the governors and the LEA might well have concluded that in justice to H, and in order to 'maintain discipline and good conduct to secure an orderly learning environment in the school' they should not interfere with the decisions made by the head. Otherwise, put in the vernacular, what would parents be saying about the school which after such an incident banished the disadvantaged victim and welcomed back the perpetrators?"
Lord Justice Kay:
Lord Justice Keene:
ORDER :
DR's case:
In AM's case there is a the identical order as to the first three paragraphs. Paragraph 4 is then to be added leave to appeal to the House of Lords is refused.
ORDER:
In DR's case:
(1) that the appeal be dismissed;
(2) that there be a detailed legal aid assessment of the appellant's costs in accordance with the Community Legal Services (Costs) Regulations 2000;
(3) that the appellant pay the respondent's costs of the appeal, to be assessed, the amount of any such costs to be adjourned and determined pursuant to section 11(1) of the Access to Justice Act 1999 and regulation 10 of the Community Legal Services (Costs) Regulations 2000 and not to be enforced without the leave of the court.
In AM's case:
(1) that the appeal be dismissed;
(2) that there be a detailed legal aid assessment of the appellant's costs in accordance with the Community Legal Services (Costs) Regulations 2000;
(3) that the appellant pay the respondent's costs of the appeal, to be assessed, the amount of any such costs to be adjourned and determined pursuant to section 11(1) of the Access to Justice Act 1999 and regulation 10 of the Community Legal Services (Costs) Regulations 2000 and not to be enforced without the leave of the court.
(4) Permission to appeal to the House of Lords refused.
(Order not part of approved judgment)