I, R (on the application of) v Independent Appeal Panel for G [2005] EWHC 558 (Admin)

Case No CO/0046/2005[2005] EWHC 558 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 15th March 2005
Strand
London WC2
B E F O R E:
MR JUSTICE BEAN
Between
THE QUEEN ON THE APPLICATION OF IClaimant-v-
Between
THE INDEPENDENT APPEAL PANEL FOR GDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR. S. TAGHAVI (instructed by (Messrs Fisher Meredith) appeared for CLAIMANT.MR. O. HYAMS (instructed by Deborah Holmes, Southwark) appeared for DEFENDANT.
J U D G M E N T
[1]MR. JUSTICE BEAN: The applicant in this case was born on 16th April 1989. In September 2000 he enrolled as a student in the respondent college. I directed at the beginning of the hearing that the claimant should be known by his initials, AI, and the college by the initial G, so that the full title of the Defendant is the Independent Appeal Panel for the G College.[2]The claimant was due to sit his GCSE exams in June of this year as a student at the college. It appears that in or about April 2004 he was excluded from the college for 19 days. I have before me almost no details of that incident. It does appear that his parents did not know about that exclusion. They had failed to notify the school of their change of address and so, although letters were sent out by the school concerning this incident, they received no response. The evidence of AI's mother was that her son concealed that incident from his parents. On 20th September 2004 AI assaulted a fellow student. The incident was recorded on a mobile phone with a video camera. I have seen a CD-rom showing the incident. AI slaps a girl about the head twice and then head butts her. In substance, this incident was not disputed in the exclusion proceedings and appeal which followed, although there were issues of mitigation and possibly provocation, to which it is not necessary for me to refer in this judgment in view of the conclusions to which I have come.[3]On 23rd September 2004 the principal of the college recommended AI's permanent exclusion. On 12th October 2004 the governing body upheld the recommendation of the principal. AI and his parents appealed to an independent appeal panel which heard the case on 15th November 2004. The members of the panel, in the usual way, had the assistance of a clerk to the independent appeals panel, Miss Sharon Miller. The decision letter sent out by Miss Miller on behalf of the panel, dated 15th November, informed AI's mother that the appeal was dismissed. The two sentences giving the panel's reasons were as follows:
"The panel was of the view that the decision to permanently exclude A was in response to serious breaches of the college's behaviour policy. The behaviour was particularly serious and that allowing A to remain in the college would harm the welfare of others at the college and [be] likely to have serious health and safety implications for himself and other students. The panel concluded that A was responsible for the behaviour reported and that permanent exclusion was a reasonable response to his behaviour."
After some correspondence, to which I shall refer later, with the prospect that the defendants would maintain their position, an application was made for permission to seek judicial review on 6th January 2005. The grounds are quite lengthy and involve a number of subgrounds. Broadly, they can be classified as ground 1, various complaints about due process, in particular concerning the involvement of the clerk; ground 2, failure to provide adequate reasons for the decision; ground 3, failure to take into account a relevant consideration, namely that the claimant's GCSE exams were due at the end of this academic year and that exclusion was a disproportionate penalty in all the circumstances. By order dated 25th January 2005, Bennett J granted permission to apply for judicial review on grounds 2 and 3 but refused it on ground 1. He also gave directions, including directions for an expedited hearing.[4]Mr Taghavi, who appeared for the claimant before me as he did before the Independent Appeals Panel, then acting pro bono, sought before me leave to amend ground 1 to add a further subground, 1A, and sought by oral application to renew his application for permission on what had by then become grounds 1B and 1C. I allowed him to develop the points on these grounds rather as if permission had already been granted, since it was agreed by all sides that the worst possible outcome was for me to hold the grounds arguable but to put them off to another date. In the event, I have come to the conclusion that the proposed ground 1A is unarguable and that grounds 1B and 1C also largely lack merit, for reasons which I shall give at the end of the judgment, but that this matters little since Mr Taghavi's ground 2 is soundly based and should lead me to quash the decision.[5]The two sentences in the decision letter (page 208), to which I have referred, are, as Mr Hyams inevitably conceded in his very attractive submissions, short and somewhat cryptic. In particular, it is by no means apparent from a reading of that letter whether the panel took into account the incident in early 2004 leading to A's temporary exclusion and, if they did, what weight they attached to the facts of that incident, and what weight they attached to the fact that A's parents had apparently not been informed of it. The significance of their not being informed is that they had not at that stage been brought into the process of trying to correct A's bad behaviour and to instil some discipline into his life. Submissions were made to the Appeals Panel that following A's parents' learning of the facts of the final incident, the 20th September incident, they did indeed, metaphorically at least, take him by the scruff of the neck and seek to restore him to the path of better behaviour. But they had not, it seems, had that opportunity in April. I find it difficult to make out from the decision letter whether the Panel's view that the incident of 20th September 2004 justified exclusion in its own right, irrespective of the boy's previous history, or whether it justified exclusion taken with the previous incident, and if the latter, whether the possible mitigating factor of the parents not being previously involved was taken into account.[6]By letter of 23rd November the claimant's solicitors wrote on behalf of his mother to the clerk to the Appeals Panel requesting "the panel's findings of fact as to the incident of 20th September 2004 which gave rise to A's exclusion." Miss Miller's first response was to write on 25th November saying that:
"The minutes of the meeting are not public documents and is the property of the exclusion panel. The minutes can only be made available in the event of an ombudsman inquiry."
This rather missed the point, as the claimant's solicitors wrote on 26th November:
"We would respectfully remind you that we did not request the minutes of the Independent Appeal Panel, but rather the Panel's findings of fact as to the incident of 20th September 2004 which gave rise to A's exclusion. Please note that Paragraph 113 of the Department for Education Guidelines 'Improving Behaviour and Attendance: Guidance on Exclusion from Schools and Pupil Referral Units' states that: 'The decision letter should give the panel's reasons for its decision in as much detail as possible for the parties to understand why the decision was made."
A letter before action was written on 2nd December. The next item after that in the correspondence was Miss Miller's reply to the solicitor's letter of 26th November, which I have just read. The relevant section stated as follows:
"I confirm that the panel considered the following facts: * Written and oral evidence provided by the college that on 20 September 2004 A was involved and responsible for the serious assault(s) on a fellow pupil by slapping and head butting. * That A had breached the college's behaviour policy. * That the assault was particularly serious. * They took account of the video evidence produced by the college showing the actual assault(s). The panel also considered: * The letter from his MP on behalf of A. * The evidence by S [the complainant]. The written and oral evidence submitted by Fisher Meredith."
In her notes of the hearing and the subsequent deliberations of the panel, pages 255 to 257 of the bundle, Miss Miller records the panel's decision in the following terms:
"DECISION: RESPONSIBLE FOR BEHAVIOUR. DISMISSED REASONABLE RESPONSIBLE TO EX BEHAVIOUR - V - EVIDENCE CLEAR [I take that to mean video evidence. It is agreed that is what the reference means]. SAFETY OF SCHOOL, SERIOUS ASSAULT, ETC. VERY SERIOUS ASSAULT, BREACH OF POLICY. UNFORTUNATE COMING UP TO GCSE -- SOME CONFUSION, CLD CONSIDER MITIGATION/PROVOCATION, NOT SURE S WAS TELLING THE TRUTH NOW."
This, it may be thought, takes the matter a little further, in that it suggests that the Panel considered the obvious fact that A was in his GCSE year, but in other respects it raises as many questions as it answers. For example, if they were not sure that the complainant was telling the truth, was that a point in the claimant's favour and if not, why not?[7]In her witness statement, lodged in answer to these proceedings, Miss Miller says this at paragraph 6:
"When the Panel Members made their decision to uphold the permanent exclusion, I clarified with them the information that they wanted included in the decision letter. It was agreed that the letter should include the following information: The child was responsible for the behaviour reported; Exclusion was a reasonable response to the behaviour; The video evidence was clear; The health and safety of other students; The assault was a serious assault; and He had breached the college's behaviour policy."
All the contemporaneous documents and this paragraph in Miss Miller's evidence suggest that the Panel's decision was reached on the basis of the 20th September incident alone, except possibly in the decision letter itself, the reference to serious "breaches" [i.e. plural] of the college's behaviour policy. With that exception there is no hint of the previous incident being taken into account.[8]However, in her witness statement dated 9th February 2005 Miss W, who chaired the panel, said this:
"In reaching our decision we took into account the fact that A was in his GCSE year. We thought that it was very sad. As was pointed out by his barrister, A only had one term and a few weeks of schooling left before his GCSE's. We gave deep consideraton to this coupled with consideration of issues concerning his behaviour and the steps being taken in relation to this. However we concluded that we could not be sure from this evidence that he would not do it again. We also took into account that this was the second time that A had committed an assault."
[9]There is a good deal of case law on the question of whether, if decisions of a disciplinary or similar decision making body are inadequate, they can be amplified by later elaboration. In R (H) v The Independent Appeal Panel for Y College [2005] ELR 25, Newman J, in a passage which Mr Hyams submitted represents the present state of the law, said this:
"It is not permissible to provide reasons for a decision which go beyond the reasons already given. Clarification and a measure of elaboration on the reasons already given will normally be permissible. In this instance, Mr Couchman's notes [Mr Couchman was the clerk to the defendant IAP in that case] plainly provide a permissible degree of clarification and elaboration on the reasons given in the two letters which were sent to the claimant. Their production in evidence would have been sufficient and no statement would have been necessary."
In paragraph 28 of his judgment, to which Mr Hyams also drew my attention, he said:
"In my judgment it is not helpful to approach the legality or adequacy of reasons by having regard to the style or format in which the reasons are couched, as opposed to taking a broad and sensible assessment of the nature of the material (however it is referred to), which one can reasonably infer the decision-making body must have taken into account."
In his judgment at first instance in Richardson v North Yorkshire County Council [2004] 1 WLR 1920, which was approved by the Court of Appeal, Richards J said (at paragraph 33 of the report, citing paragraph 47 of the first instance judgment): The consequences of a failure to comply with a requirement to give reasons depend very much on the statutory context and the particular circumstances of the case. The authorities cited by counsel cover a range of different situations. In evaluating them it is also important to bear in mind that there has been, as it seems to me, a tendency in recent years to adopt a stricter approach to the requirement to give reasons and to be readier to quash a decision for failure to give reasons and less ready to allow a deficiency of reasons to be cured by the provision of reasons or supplemental reasons at a later stage." Richards J went on to give some contrasting examples, for example, the well known case of R v Westminster City Council, ex parte Ermakov [1996] 2 All ER 302, in which a decision was quashed for a failure to comply with a duty to give adequate reasons at the same time as the decision, contrasting that with the practice which has developed in some areas of remitting the case to a trial judge for the provision of additional reasons: see English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409.[10]It seems to me that in the present case the reasons given in the decision letter at page 208 of the bundle were sadly inadequate. It is instructive to contrast them with, for example, the far more thorough and helpful reasons given by the Appeal Panel in the case of S v London Borough of Brent [2001] ELR 556. The two sentences which I have read do not indicate what facts were found proved about the incident itself, (though that is perhaps the least contentious part of the case, given the existence of the video), whether the panel accepted that there was any mitigation or provocation; if not, why not, if so, what its significance was; whether the previous incident was taken into account and, if so, whether, as against that, the Panel considered that the unfortunate lack of communication with the parents of A meant that less weight should be attached to that incident than might otherwise be the case.[11]In short, the decision was that the appellant lost, but he and his parents were not given in my judgment anything like adequate reasons as to why he lost. Moreover, it does not seem to me, on the point about the relevance of the previous incident, that Miss W's witness statement of 9th February 2005 can properly be relied upon. Applying Newman J's terminology, they did not merely provide clarification and a measure of elaboration of the reasons. Indeed, it could be said that, when set against Miss Miller's letters setting out the facts the panel took into account, they are contradictory of the previous reasons. If the relevance of the previous decision is to be gleaned from the use of the plural word "breaches" in the decision letter, I have to say that that is the kind of microscopic analysis which an appellant and his parents should not be required to undertake. Moreover, even if that reference in the decision letter had been a little clearer, it would still not have converted the decision letter into one which gave adequate reasons for the decision. It follows therefore that this decision cannot stand.[12]I shall deal briefly with the remaining grounds. Ground 3, relating to failure to take into account the imminence of the GCSE exams, is not really a free standing ground. It simply highlights the importance of the decision, which I have already held under ground 2 was inadequately reasoned. I am not to be taken as suggesting that, if a decision concerns, say, the exclusion of a child in year 7, it is by any means unimportant, but it is obvious to me, and it appears was obvious to the Panel, that a decision taken permanently to exclude a child who is undergoing important public examinations at the end of the year in question is one of considerable gravity.[13]As to ground 1, the proposed amendment to add ground 1A was a bold, indeed, an ingenious submission. Since it would affect the conduct of the Panel at a resumed hearing, and indeed panels in all other cases of this kind, it is desirable that I should give my view on it, even though it is not necessary to the decision that I have reached. Mr Taghavi argues that the regulations governing independent appeal panels made under section 52(3)(c) of the Education Act 2002 set out an exclusive list of the persons entitled to attend independent appeal panel hearings. They do not include a clerk. Indeed, in contrast with the School Governors Procedures (England) Regulations 2003, SI 1377 which require the governing body of a school to appoint a clerk and make provision for the clerk to attend governing body meetings, the Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations 2002, SI 2002/3178, do not mention a clerk at all. Those regulations provide a statutory definition of "the relevant person"; that is to say, the person who may bring an appeal against the decision of a governing body to order or confirm the permanent exclusion of a pupil, as being "in relation to a pupil under the age of 18, a parent of his; (b) in relation to a pupil who has attained that age, the pupil himself." Turning to paragraphs 10(1), 10(2) and 11 of the schedule, they provide as follows:
"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) the local education authority and the governing body to be represented and to make oral representations 11 Appeals shall be heard in private except when the local education authority direct otherwise; but - (a) if the panel so direct, one member of the local education authority may attend, as an observer, any hearing of an appeal by an appeal panel; and (b) one member of the Council on Tribunals may attend, as an observer, any meeting of an appeal panel at which an appeal is considered."
Mr Taghavi's submission is as follows. Leaving aside an observer from the Council on tribunals, the only people who may attend, let alone take any part in the private hearing of an appeal (no one suggests in the present case that the local education authority directed a hearing in public or that this is anything but an extremely rare event) are (a) the relevant person, in this case A's mother; (b) a representative or friend of the relevant person (in this case Mr Taghavi); (c) the head teacher (in this case the principal of the college); (d) a representative of the local education authority; (e) a representative of the governing body; (f) if the panel so direct, one member (not employee) of the local education authority as an observer. Mr Taghavi argues that since none of these persons is the clerk, it is unlawful for the clerk to be present; still less to give advice. He does not shrink from the consequence which would follow, that (i) it would be unlawful for the excluded pupil to attend if he was under 18 and thus not "the relevant person", and (ii) it would be unlawful for any witness of fact to attend, whether the pupil, the complainant or anyone else.[14]It does not seem to me that this is even an arguable construction of the requirement in regulation 11 that appeals should be heard in private, nor that there is any basis in the regulations which I have cited for holding that, contrary to long established practice, which appears to have escaped criticism in a number of reported cases, it is somehow unlawful for appeal panels to have a clerk.[15]As to paragraphs (1)(b) and (1)(c) these include a substantial number of complaints, both on the facts and on the law. The most substantial is paragraph 19, the first element of ground (1)(c), in which Mr Taghavi complains of the fact that the Panel's clerk remained with the panel during their deliberations. It is not necessary for me to decide this point in the present case, given my decision on ground 2. For what it is worth, I cannot myself see that it is objectionable for the clerk to give advice to the panel, if so requested, during their deliberations. It may well be arguable that, if that advice were not then repeated in open session, with an opportunity for the parties to make representations about it, this would be courting trouble. I note that the Consolidated Practice Direction in criminal cases requires clerks to the justices to do exactly that. I am aware of at least one professional body established by statute, namely a fitness to practise panel of the General Medical Council, at which advice given to the panel in camera by a legal adviser must be repeated in the presence of the parties and the parties given an opportunity to make submissions before the panel comes to a decision. If such a practice were not followed in exclusion appeal panels, it might be the subject of debate in a future case whether that impugns the decision. It does not arise here.[16]There are a variety of other points made by Mr Taghavi; for example, that the clerk should not draft the decision letter, that the clerk should not sign the decision letter, that the panel members are appointed by the local education authority and have no security of tenure, or that the clerk is appointed by the local education authority and has no security of tenure. All of these points could have been raised in, for example, S v London Borough Council of Brent [2002] ELR 556, but, if they are good points they appear to have escaped the attention of Schiemann LJ, Sedley LJ, Charles J and the six very experienced public law counsel who took part in the case. That does not mean to say that they are necessarily hopeless, but I am not attracted at the moment to any of them. I therefore refuse Mr Taghavi's application for permission to advance those grounds, but because of my decision on ground 2 this is somewhat academic.[17]Accordingly, the decision of the Independent Appeals Panel dated 15th November 2004 will be quashed and the case remitted to be heard by a freshly constituted panel, by which I mean that none of the members of the panel, nor the clerk, must have played any previous part in the present case. It is obviously highly desirable, to put it mildly, that the panel should convene and reach a decision before the beginning of the college's summer term.[18]I should record that the panel, in reaching their decision, may, in the view of both counsel in the present case and in my view, take into account any evidence placed before them by either side as to A's behaviour since the decision of 15th November 2004. What that evidence would be and what weight should be attached to it is not of course a matter for me. It may be useful to the panel to have the view recorded on all sides today that the clock need not stop on 15th November 2004 when the material before them is assembled.[19]MR. TAGHAVI: I am grateful for the decision. I feel obliged to apply for leave to appeal.[20]MR. JUSTICE BEAN: You have made submissions about that. I am sorry I forgot to add that in dealing with 1A. I will add that to the judgment. Mr Taghavi applied for permission to appeal to the Court of Appeal against my refusal of leave to amend to add ground 1A to the statement of facts relied on, namely that the presence of a clerk at the hearing invalidates the decision. For the reasons I gave in my judgment I consider that this point is quite unarguable and I should not burden the Court of Appeal with hearing it. Moreover, by the time that the Court of Appeal were able to hear an appeal in the present case, it would be far too late to enable a decision to be made in time for a panel subsequently to give A any opportunity to attend the defendant college before his GCSE exams.[21]MR. TAGHAVI: The claimant has the benefit of public funding. I ask for the usual costs.[22]MR. HYAMS: A large amount of the submissions, the argument and the evidence was directed in essence at one ground which was sought to be amended, which led to at least a doubling of the costs of the case. The justice of the case would be no order for costs. I do not know if I need to elaborate on it.[23]MR. JUSTICE BEAN: You say that the claimant has succeeded in part and failed in part.[24]MR. HYAMS: And caused the costs to be doubled.[25]MR. TAGHAVI: It has to be stressed that today words such as cryptic were used. Had the defendant addressed his mind fairly and objectively to the case, this matter could have been dealt with as a matter of consent. The fact that we amended grounds and argued new points does not detract from the fact that the reasons were inadequate.[26]MR. JUSTICE BEAN: In my judgment the defendant should pay half the claimant's cost in relation to this matter. Ground 1, which was set out and argued at some length, I have found to be without any merit. It is understandable perhaps that people's eyes were taken off the ball of ground 2 which I have held to be justified. In addition, there will be detailed assessment for community legal services funding of the claimant's costs.

Cited in 1 later judgment