M, R (on the application of) v Independent Appeal Panel & Ors [2004] EWHC 1831 (Admin)

Case No CO/6792/2003

[2004] EWHC 1831 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Tuesday 27 th July 2004

Strand,

London, WC2A 2LL

Before

THE HONOURABLE MR JUSTICE NEWMAN

Between

R (on the application of M, proceeding by his mother and litigation friend A)Claimant

(1) INDEPENDENT APPEAL PANELDefendants

(2) GOVERNING BODY OF CH SCHOOLDefendant

(3) HEAD TEACHER OF CH SCHOOLDefendant

(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

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Official Shorthand Writers to the Court)

Dean Underwood (instructed by Ashok Patel & Co) for Claimant

Gillian Carrington (instructed by London Borough of Redbridge) for First Defendant

Judgment

Mr Justice NEWMAN :

[1]The claimant seeks judicial review of a decision by an Independent Appeal Panel to impose and uphold his permanent exclusion from CH School (the school).

The Facts

[2]The case against the claimant was on that 3rd and 4th July 2003 he went to a tree on the school field behind the technology building and, in company with other pupils, smoked drugs, believed to be cannabis. The evidence in support of these allegations included statements from other pupils. As to the 3rd July, one pupil stated that the claimant had received drugs, another that he had smoked and another that he was amongst the group who were smoking. As to the 4th July, three pupils stated that M had smoked drugs. Mr Rumble, Head of Upper School, stated he had a box in his possession containing two cigarettes, one “joint” and one box of matches. In addition, there was a statement from the claimant himself admitting that he had smoked drugs. But this was the second statement he had made. In the first he admitted being in the group, but denied smoking drugs or being in possession of drugs.

[3]The school publishes a drugs education policy as well as providing a written statement of the Governing Body’s position on discipline. It states that the headteacher reserved the right to take “whatever action he considers appropriate in dealing with a drugs incident within the school”. The circumstances which were material for the school to consider on this occasion were that on two consecutive days, at an obvious and open place on the school premises and in the sight of other pupils, drugs, believed to be cannabis, were smoked. The recorded reasons for the permanent exclusion of the claimant reflected these circumstances, noted that the possession and use of drugs is a most serious offence, noted the school’s obligation to protect the health and safety of all its students and the parents of students, noted that the use of drugs could not be tolerated because it put the staff and students in danger and expressed the conclusion that permanent exclusion was the appropriate response to the very serious offence which the school found proved on the evidence.

[4]By a letter dated 8th July 2003 the claimant’s parents were informed that, following the incidents and after consideration and consultation with the Senior Management Team, the headteacher had decided to permanently exclude the claimant. Notification was given of a meeting of the Discipline Committee of the Governing Body, which would be held on 18th July 2003, at which the Committee would either agree the permanent exclusion or reinstate the claimant to the school. Notice was given to the parents that they could make formal written or personal representations to the Committee.

[5]The hearing set for 18th July 2003 was adjourned, notice having been given that the claimant would be represented and there would be representations. A new date was set for September 2003.

[6]By the time of the Governors’ Discipline Committee hearing on 18th July and certainly by the hearing on 8th September 2003, the claimant had alleged that he had been forced to write his second statement, in which he admitted smoking drugs, because he had been forced to do so. His case was that his second statement was completely false and had been induced by words spoken by a member of the staff, Mr Zweistra. Mr Dean Underwood, counsel, appeared for the claimant, as he has appeared for him in this court, and he requested that Mr Zweistra should be present at the reconvened hearing in order to answer questions under cross examination about the claimant’s second statement and certain manuscript additions to his first statement. Nothing turns on the additions to the first statement. The headteacher was invited to ask Mr Zweistra to attend at the adjourned hearing.

[7]On 8th September 2003, Mr Lawson, counsel, represented the claimant. The claimant’s first witness statement, his second statement and the redacted statements of the other pupils were available. Mr Zweistra did not attend the meeting. The headteacher reported that Mr Zweistra had taken legal advice and would not be attending.

[8]By a letter dated 9th September 2003 the Committee informed the claimant’s mother that the exclusion had been upheld. The letter contains the following:- “The Committee decided to uphold the Headmaster’s decision to exclude M permanently from the school for the serious incident of possession of illegal drugs and smoking them openly on the school field. In reaching that decision they had regard to the written evidence, and the oral evidence of M, the Headmaster and Mr Rumble and the comments of Mrs Corbin on behalf of the Local Education Authority. They referred to the DfES Guidance on exclusions from school. They found that the case against M regarding the incidents on the 3rd July 2003 was made out by the evidence. They found that M was present amongst a group of boys who were smoking drugs, believed to be cannabis, and M smoked drugs on that occasion. Witness evidence confirmed that drugs were taken and named M as taking drugs. M stated that he had seen [another pupil] with the drugs earlier but denied any involvement in the smoking of any drugs later. However, the Committee noted that M said that he was on his way to the school canteen at the time of the offence in the company of [the other pupil]. Elsewhere in his evidence M denied being friends with [this other pupil]. [The other pupil] has admitted to being present on the school field smoking drugs as alleged. [The other pupil] also states that M was present and received drugs. The evidence of [a second pupil] and [a third pupil] stated that M had smoked drugs”. As a result, the Committed stated:- “The Discipline Committee was satisfied that in all probability M both received and smoked drugs on that day”.

[9]In relation to the incident on 4th July, the Committee stated it was:- “…satisfied that M smoked drugs on that day and was found in possession of drugs”. In respect of that finding the Committee stated that it:

“…took into account all the evidence, including the independent witness evidence of [a pupil], who M stated was his friend. They paid particular attention to M’s oral evidence in relation to the events of the 4th July. He stated that when he approached the relevant group of boys, he could see and smell that they were smoking drugs. He also admitted that he was in possession of a cigarette box containing one Rizla roll up with a filter”

. The Committee went on to state that they heard evidence from Mr Rumble that:

“M stated there was a “spliff” in the box and that the same type of Rizla roll up with a similar filter attached was found under the tree where the boys had been smoking drugs, although that roll up had been partially smoked. This was found very soon after the incident took place and no evidence of any other loose tobacco or Rizla paper was found. Although Mr Rumble cannot be sure that the “spliff” did contain drugs, the Committee found it more likely than not that the “spliff” contained cannabis. The Committee noted that Mr Rumble, in questioning from the barrister appearing for M, was not in any way challenged that the “spliff” did not contain drugs. It was only the oral evidence of M later on during the hearing that raised this. There was no dispute that M was in possession of the box containing the “spliff”

. The Committee did not accept M’s version of the circumstances in which he came to be in possession of the box. The Discipline Committee did not accept M’s account that Mr Zweistra coerced him into making the confession made in the second statement. They noted that at no point did the other boys retract their statements and M’s evidence relating to the alleged coercion was contradictory. In his evidence he indicated that at one time Mr Zweistra had said to him words to the effect that if he didn’t admit to taking the drugs he would be excluded and at another point he stated that Mr Zweistra had said that if he did admit to it he would be excluded”. “…took into account all the evidence, including the independent witness evidence of [a pupil], who M stated was his friend. They paid particular attention to M’s oral evidence in relation to the events of the 4th July. He stated that when he approached the relevant group of boys, he could see and smell that they were smoking drugs. He also admitted that he was in possession of a cigarette box containing one Rizla roll up with a filter”.

[10]The hearing before the IAP took place on 21st October 2003. The claimant was represented again by Mr Underwood. The Panel gave its written decision by a letter dated 24th October 2003. The Panel stated its reasons for upholding the exclusion as follows:- “The Panel felt that it was distinctly more probable than not that M had taken part in the smoking of drugs on school premises between the 3rd and 4th July 2003 as detailed in the submission of the Headteacher. The Panel noted the representations on behalf of M that the second statement, in which he admitted to the offence, was taken in circumstances where he was subjected to duress by Mr Zweistra. They considered but rejected an argument that this second statement should be left out of their consideration entirely as being an inadmissible confession, applying the principle established in criminal proceedings by section 76 of the Police and Criminal Evidence Act 1984. Having considered all the evidence about the taking of the second statement they were not persuaded that the allegation of duress was substantiated. They also noted but rejected the contention that other students had named M as being involved as a means of shifting the blame. They preferred the evidence of the witness statements obtained by the school. In particular they noted that a number of witnesses had implicated themselves as well as M. The Panel were also satisfied that M was found in possession of a small amount of cannabis, contained in a cigarette box and that he knew what the box contained. The Panel rejected the argument that the box was given innocently to M by [A]. They noted that [A] had vehemently denied doing so. The Panel were satisfied that it was distinctly more probable than not that M was guilty of possession of a small amount of cannabis on school premises on the 4th of July”.

The Grounds of Challenge to the IAP Decision

[11]There are essentially four grounds of challenge:-(1) duress in connection with the confession;

(2) the failure to pay proper regard to the absence of Mr Zweistra to attend for cross examination;

(3) unfairness which has arisen owing to the non-disclosure of statements by witnesses; and

(4) the application of the wrong standard of proof.

Ground 1

[12]The challenge to the conclusion on duress is mounted as a Wednesbury challenge. Mr Zweistra, not having attended to give evidence, the Headteacher nevertheless gave evidence as to his character and experience. That evidence was not challenged at the time nor, as the court sees it, could it have been for there is no basis for contending that Mr Zweistra was anything other than an experienced and able schoolmaster of good character. The submission is that the decision was unreasonable and reached with a want of fairness because the evidence as to character, which was adduced to rebut the allegation of duress, was clearly insufficient to discharge the burden of disproving duress to the criminal standard. In my judgment this argument comes close to turning matters upon their head. The circumstances of oppression or duress which were alleged by the claimant depended upon the Panel accepting the evidence of the claimant. They did not find him a satisfactory witness. They did not believe him in this regard and in other respects as well. Despite representations being addressed by reference to the concept of duress, as well as the Police and Criminal Evidence Act 1984 (“PACE”) and its provisions in connection with confessions in criminal cases, the Panel, after full consideration, simply did not accept the claimant’s evidence that he had made his second statement under coercion or duress. That being the case, the absence of Mr Zweistra is neither here nor there to the question. The misconception underlying the argument on this ground and ground 2 is that, in proceedings before an IAP, where an admission or confession is in evidence and an issue is raised as to the voluntariness of the statement, the school must satisfy the Panel beyond reasonable doubt that the confession or admission was made voluntarily. Section 76 of PACE applies in criminal trials, not to disciplinary proceedings in a school. Further, there is no warrant for extending the special evidential requirements which govern criminal proceedings to school disciplinary proceedings and there is much to be said against the suggestion.

Ground (2) – The Absence of Mr Zweistra

[13]As I have indicated, the absence of Mr Zweistra, where the allegation against him had not been accepted, cannot give rise to a complaint. Had the Panel believed the claimant or been inclined to believe him, his absence would not have assisted the school. It has been submitted that the Panel failed to make enquiries of Mr Zweistra and should not have relied upon what was referred to as “the hearsay evidence” that he was a reliable teacher. The evidence was not hearsay evidence; it was the evidence of the headteacher. Had there been a basis for doing so, it could have been challenged. Mr Zweistra could not be required to come and give evidence and, in my judgment, there was nothing to prevent the Panel from reaching its conclusion on the evidence which was presented to it.

Ground (3) – Inconsistent Statements

[14]The argument under this head has taken a variety of forms. It has included an application in this court to rely upon fresh evidence. The submissions as they have been advanced, at various stages, have been bedevilled by a lack of precision and a failure to identify the nature of the inconsistency being relied upon in connection with the statements made by the other witnesses involved. It was known to the Panel that those witnesses who had implicated the claimant had also admitted involvement themselves, but it was also known that in prior statements which they had given, they had denied their own involvement. This inconsistency in their evidence was known to the Panel. Indeed, the fact that the witnesses who implicated the claimant did so in statements in which they accepted their own part in the taking of drugs was regarded by the Panel, in my judgment, perfectly properly, to be a relevant factor in considering the reliability of their evidence implicating the claimant. No challenge could be made to the rationality of that approach to the witnesses’ evidence. The first submission which Mr Underwood advanced was to the effect that, without the previous statements in which they had denied their own involvement being available to the claimant, no proper assessment of their second statements could be made by the Panel. I reject that submission. Knowing, as it did, that the witnesses had initially made an untrue statement, I am wholly unpersuaded that, in order to do justice to the claimant, the Panel needed to see the false statements. The task for the Panel was to consider the reliability of the statements which were presented to them.

[15]It emerged in argument that it was also said to be relevant for the claimant and the Panel to have the previous statements of the witnesses available in order to ascertain whether they had implicated the claimant in their first statements or whether they had said anything about the presence or conduct or actions of the claimant in their first statements. It was never suggested that there was anything in the first statements made by the other witnesses to implicate the claimant. It formed no part of the school’s case against the claimant. The Panel could not have believed that there was anything in the first statements which implicated the claimant and, had they considered the issue, they would have been bound to conclude that they did not. Had anything in the statements implicated the claimant, it could hardly have helped the claimant to have it revealed. The next question, therefore, is whether there was anything in the first statements made by the witnesses which exculpated the claimant. Relying upon the case of R vThe Headteacher and Independent Appeal Panel of Dunraven schoolex parte B

[2000] ELR 156

, Mr Underwood submitted there had been unfairness arising out of the failure to disclose the statements to enable the claimant to address the Panel by reference to any exculpation which may have been present in the statements or, as I would understand the argument, any other matter in the statements which could have been prayed in aid of the claimant’s position. In my judgment, the case of Dunraven cannot assist the claimant in this respect. There was manifest unfairness in Dunraven because the Panel were aware of evidence of which the claimant and his advisers were wholly unaware, which it had heard in other cases and which implicated the claimant. The observation made in connection with inconsistent statements must be understood in the context of the facts of that case and gives rise to no general principle that there must be full disclosure of all the statements made by any witness whose evidence is considered by an independent appeal panel. Fairness, when it arises for consideration, must be considered on the facts of each case.

[16]The difficulty in the face of the submission and the attendant application for disclosure of all statements, as a matter of principle, is that it was known to the Panel that the evidence from the witnesses on which the school relied was evidence contained in statements which differed from those which had originally been given. The Panel were satisfied that the statements which they had to consider were truthful statements because, among other factors, they included admissions against the interests of the makers themselves.

[17]No application for the previous statements of the witnesses to be disclosed was made to the Panel. In this court an application for an order for disclosure was made and for permission to rely on any evidence disclosed.

[18]In support of the contention that no grounds had existed at an earlier date for making the application on this ground, statements from the claimant and his mother were relied upon.

[19]They disclose that the claimant’s solicitor advised the claimant “to find out whether any of the boys involved … had written more than one statement”. It has to be said this had been known at the Panel hearing, if not before. The claimant, as a result, contacted boys at the school. They included one boy who had made a statement implicating him which was before the Panel, who had made a previous statement.

[20]The claimant’s statement to this court then goes on to record the gist of the conversation he had with the witness, which he says included an assertion by the witness that in his first statement he had stated that the claimant “… had nothing to do with smoking drugs”.

[21]I was not satisfied that this “evidence” could not have been obtained earlier and I entertained serious reservations about its reliability. Notwithstanding this, the defendant, at the request of the court, provided the statement of the witness, to the court and to Mr Underwood in redacted form. I looked at it solely for the purposes of considering the application for fresh evidence. Having looked at it, it is plain it does not confirm the witness’s account as recorded by the claimant.

[22]There was no evidence to support a contention that either of the first statements from the other boys contained evidence exculpating the claimant. The application to rely on fresh evidence and to amend the grounds is refused. It is made too late, the line of inquiry was available earlier and it is not supported by any credible evidence to justify further investigation.

[23]In the above circumstances, I am satisfied that no unfairness occurred in the hearing before the Panel arising from any of the arguments under this ground of challenge.

Ground 4

[24]The Panel stated:(1) that it was distinctly more probable than not that the claimant had taken part in the smoking of drugs on school premises;

(2) that they were satisfied that the claimant was found in possession of a small amount of cannabis;

(3) that they were satisfied that it was distinctly more probable than not that M was guilty of possession of a small amount of cannabis on school premises.

[25]The witness statement from Mr Anthony David Purslow, the chairman of the Panel, confirms that the Panel applied the above stated standard of proof and that “counsel at the hearing before us agreed that this was the correct ‘burden’”.

[26]The test “distinctly more probable than not” is the standard of a more heightened test than the balance of probabilities which was laid down by the Court of Appeal in Dunraven for cases where the conduct alleged was capable of amounting to a criminal offence.

[27]The judgment in Dunraven was given in December 1999. In a judgment dated 11th July 2003 the Court of Appeal, constituted by Simon Brown, Mummery and Laws LJJ, in the case of R (S) v The Governing Body of YP School

[2003] EWCA Civ 1306

stated that the criminal standard should be applied, namely that the school had to be sure that the child had done what he had been accused of. It does not appear that Dunraven was cited to the court. The Regulations now in force stipulate that the standard of proof to be applied is the balance of probability.

[28]In my judgment any inconsistency between the two cases has to be seen in the light of the close proximity between the heightened test as set out in Dunraven and the test of being sure. The fact that Dunraven was probably not cited to the Court in YP has also to be taken into consideration. The practical position is that if the issue was remitted to the Panel the Regulations would apply and the issue would be resolved on a balance of probability and not the heightened test. More than that, having regard to the evidence which was before the Panel and its rejection of the claimant’s case, including his explanation as to how his admitted possession of the cannabis came about, there was ample evidence to justify a Panel being sure he had committed the acts with which he was accused.

[29]For the above reasons, I am not persuaded that any ground for judicial review on this ground has been made out. Had I concluded otherwise, I would have exercised my discretion so as to refuse relief.