W v The Independent Appeal Panel of London Borough of Bexley [2008] EWHC 758 (Admin)

[2008] EWHC 758 (Admin)Case No CO/2632/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 17 April 2008
Before
MR JUSTICE BURTON
Between
WClaimantby his Mother and Litigation FriendClaimantThe Independent Appeal Panel of theDefendantLondon Borough of BexleyDefendant
Mr David Wolfe (instructed by Fisher Meredith) for ClaimantMs Judy Stone (instructed by Bexley Legal Services) for DefendantHearing Hearing dates: 10 April 2008
JudgmentMr Justice Burton :
[1]The Claimant W was a pupil at St Columba’s Catholic Boys School, Bexleyheath in Kent in November 2006 when, on 13 November, he took part in an incident in an art class. What is not in dispute is that he, in company with another pupil E, asked a fellow pupil T for money and took T’s wallet out of his jacket: and that he then used a sharp Stanley knife, which the pupils had been using in the art class, to cut or slash what is variously described as T’s bag or folder. T alleged (and E to an extent corroborated) that W then used the knife to cut T’s shirt (while he was wearing it). The following morning T’s mother complained to the School about what had occurred, producing the shirt which T had been wearing. Mr Groves, the Year 8 Learning Co-ordinator, who, it was common ground, had a good relationship with W, interviewed both W and the other boys. T made a statement which, insofar as it dealt with the central disputed issue, stated “[W] threatened me with a blade and slit my shirt”. It is common ground that, when interviewed by Mr Groves, W was crying, and Mr Groves asked him to go off alone to the library and write out his statement as to what had occurred, which he did. He then returned to Mr Groves, who further interviewed him in the presence of a lady teacher Mrs Fripps, during which interview he put to W the contents of the statements he had taken from T and the other boy. W first denied the cutting of the shirt (though admitting the other matters referred to above), then admitted it and then once again denied it. Mr Groves then took W to see the Head Teacher, Mr Cannon, and, in the presence of Mr Groves, W admitted to using the craft knife to cut T’s shirt, as well as to slashing his bag. Subsequently he once again denied cutting T’s shirt.[2]The Head Teacher decided to exclude W permanently from the School, pursuant to his powers to do so under s52 of the Education Act 2002. The relevant Regulations by reference to which the procedures were operated are the Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations 2002 (“the 2002 Regulations”). His conclusion, as summarised in the later appeal hearing before the School Governors, was:
“The victim’s story had never wavered despite the pressures on him, and there had at no point been any reason to doubt his account. [W]’s account was changed on a number of occasions, and he had admitted to the Head Teacher that he had attacked [T]: his later versions had remained unconvincing and at best only a selective view of what had happened. Where knives were concerned, the School had a very clear policy: anything but a permanent exclusion would have been both wrong and confusing for all pupils.”
[3]W and his parents exercised their right of appeal, pursuant to paragraph 5 of the 2002 Regulations, to the Governing Body of the School which, after a hearing on 4 December 2006, at which both Mr Cannon and W’s mother set out their cases and were cross-questioned, the Governing Body unanimously upheld the permanent exclusion, for the reasons set out in their letter dated 5 December 2006, which read, so far as material, as follows:
“In their considerations they carefully followed the guidance of the Secretary of State for Education and skills on exclusions. They took into account your wish and that of Mr [W] that [W] be reinstated. They considered with the greatest care the reasons the Head Teacher gave for coming to his view that W had used the craft knife to threaten another boy and to cut his shirt, and weighed this against the representations that you made that he had not done this. They concluded that [W] had taken the actions of which he was accused, and that the Head Teacher had used the proper standard of proof, taking account the seriousness of the alleged offence. They were not persuaded by your contention that the decision had been taken in haste or without due consideration. The Head Teacher had made it clear that his decision was based on the single incident. He accepted that it was untypical of [W’s] behaviour, but judged it to be serious enough on its own to merit permanent exclusion. The Committee shared the Head Teacher’s view that any offensive use of a knife in school was unacceptable behaviour: the school’s stance on knives was well known to pupils and parents, and had been consistently applied in the past. The Head Teacher’s decision was therefore a proper and proportionate response, taken fully in accord with the school’s policies and the DfES Guidance.”
[4]So far as concerns the Guidance referred to, paragraph 7 of the 2002 Regulations requires that, in relation to exclusion of pupils, the Head Teacher, Governing Body and indeed the Appeal Panel (the Defendant in this case) must have regard to such Guidance. By paragraph 9 of the Guidance:
“A decision to exclude a pupil should be taken only: (a) in response to serious breaches of the school’s behaviour policy; and (b) if allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school.”
[5]It is recorded in paragraph 11 of the Guidance that a decision to exclude a child permanently, such as was made by the Head Teacher and upheld by the Governing Body, is a serious one, but, by paragraph 12:
“There will, however, be exceptional circumstances where, in the head teacher’s judgment, it is appropriate permanently to exclude a child for a first or ‘one-off’ offence. These might include: (a) serious actual or threatened violence against another pupil …”
[6]So far as concerns the “proper standard of proof” referred to in the 5 December letter, this is a reference to the Guidance at paragraph 18, which reads:
“The standard of proof to be applied is the balance of probabilities, i.e. if it is more probable than not that the pupil did what he or she is alleged to have done, the head teacher may exclude the pupil. However, the more serious the allegation, the more convincing the evidence substantiating the allegation needs to be. This is not the same as requiring the criminal standard to be applied, but it does mean that, when investigating more serious allegations, head teachers will need to gather and take account of a wider range of evidence …”
[7]W and his parents exercised the further right of appeal, given by paragraph 6 of the 2002 Regulations, against permanent exclusion of pupils to the Defendant as the Independent Appeal Panel. The constitution and procedure of such appeal panels is set out in the Schedule to the 2002 Regulations. It is not suggested that the procedures were not properly complied with. The Guidance also deals with independent appeal panels. Paragraph 139 applies the same burden and standard of proof as recorded above in paragraph 18 of the Guidance. The following further paragraphs are material: “140. The panel should consider the basis of the head teacher’s … decision and the procedures followed having regard to the following: (a) whether the head teacher … and governing body … complied with the law and had regard to this guidance in deciding … to exclude the pupil … … (c) the fairness of the exclusion in relation to the treatment of any other pupils involved in the same incident [no point in relation to this aspect arises: E was dealt with by a fixed term exclusion and no criticism is made by way of any unfair comparison]. 141. Where panels accept that the individual committed the offence in question, they must consider whether the response is proportionate and also be satisfied that the disciplinary procedures have been carried out without any procedural irregularities of a kind that affect the fairness of the proceedings … 146. An appeal panel may uphold the decision to exclude; or direct immediate reinstatement or reinstatement at some future date … 148. In some cases it will not be practical for the panel to direct reinstatement because the parent has made clear he or she does not want it, or because the child has become too old to return to the school. 153. The panel must let all parties know its decision by the end of the second working day after the hearing. … The decision letter must give the panel’s reasons for its decision in as much detail as possible, including clear information about the offences or behaviour for which the pupil has been excluded, so that the parties can understand why the decision was made … 157. Details of an exclusion may not be deleted from the pupil’s record, even where reinstatement is directed. The governing body … must, however, comply with any parental request to place their appeal statement on the pupil’s record. It will be for the governing body … to decide what details of the exclusion are included in the pupil’s school record …” uphold the decision to exclude; or

direct immediate reinstatement or reinstatement at some future date …

[8]At the appeal hearing on 11 January 2007, the Claimant and his parents were represented by Mr John McKendrick of Counsel and the Bexley Council by its solicitor; and the Head Teacher, Mr Groves, W and his mother all addressed the Panel and answered questions. W’s Counsel invited the Panel to disregard, or treat as inadmissible, the confessions/admissions of W. By reference to the Clerk’s notes of the hearing, to which I shall return, he made the following submissions:
“Submission is unfair. Can’t rely on statement that [W] can challenge. Unfair to make allegations that cannot rebut. Exclude the fact that there was a supposed admission. 12 year old – put into isolation. 3 teachers are all questioning him about this. Nobody contacted his parents to come in. In an awful state. Hard to rely on that.”
[9]He relied on W’s statement, prepared subsequently with the assistance of his solicitors and supplied to the Panel. The matters highlighted before me by Counsel representing W at this hearing, David Wolfe of Counsel, were the following: i) The fact that, on any basis, during the period from mid-morning through to after lunch, on the occasions when W was being questioned and preparing his original handwritten statement, he was upset, and often in tears. This was not contested, as was not the fact that he was alone when he actually compiled that statement in the library. ii) According to W’s subsequent statement, he asked Mr Groves whether, if he owned up, the Police would still have to get involved, and Mr Groves answered that he thought it was more likely that the Police would not have to get involved if he did own up. This was not accepted by Mr Groves who, in his response, made the point that the new statement was written sometime afterwards and clearly with the aid of an adult. iii) According to that same statement, when W first admitted cutting the shirt to Mr Groves, Mr Groves said:
“You’ve been denying it all day, and now you say you did it; I don’t believe you”
. This was inconsistent with Mr Groves’ account, which was that W did admit it, and then withdrew the admission, after which he took W round to the Head Teacher. It was at least consistent, as Ms Judy Stone of Counsel accepted before me, with Mr Groves not knowing whether to accept the admission or the withdrawal of the admission, and consequently taking W round to the Head Teacher where, on the evidence of both the Head Teacher and Mr Groves (and not challenged by W), W once again admitted his having cut T’s shirt with the knife.[10]There are in the bundle before me the Clerk’s notes of the hearing, to which I shall refer further; and a short witness statement for the purposes of this hearing, by one of the three members of the Appeal Panel, a Mr Stephen Matthews, has been put before me by the Defendant, to which I will also refer. The outcome was unanimous agreement by the Panel that, on the balance of probabilities, W had used the Stanley knife to cut T’s shirt, but that, in the circumstances, the decision of permanent exclusion was not proportionate. The opinion of the three Panel members is recorded in the Clerk’s notes as being:
“Should have been fixed term exclusion – reinstatement”
. The order was for reinstatement with a reasonable time for the School to prepare.[11]The decision letter dated 15 January 2007 was sent to W’s mother, the material parts of which are as follows:
“In coming to its decision on the appeal, the Panel considered whether [W] was responsible for the behaviour resulting in his permanent exclusion. In so doing, the Panel applied the balance of probabilities standard set out in current guidance (Improving Behaviour and Attendance: Guidance on Exclusion from Schools and Pupil Referral Units) issued by the Department for Education and Skills. In deciding that this was the correct standard to be applied, the Panel noted that it must by law have regard to the guidance, and that it would have expected the effect of earlier legal judgements to have been taken into account in specifying the standard to be applied. In considering whether [W] was responsible for the behaviour resulting in his permanent exclusion, the Panel took into account evidence regarding an incident on 13 November 2006 in which [W] was alleged to have cut the shirt of another pupil with a craft knife during an art lesson. In so doing, the Panel noted that, although [W] had subsequently denied having any part in this incident, during the course of the investigation he had on two separate earlier occasions admitted to having cut the pupil’s shirt. The Panel also took into particular account evidence regarding [W]’s general behaviour during the lesson, which included admitting to cutting the pupil’s folder with a craft knife. The Panel considered that given the layout of the arts class and the behaviour of pupils during the lesson in which the incident occurred, it was possible that it could have happened without there being any independent witnesses. The Panel also took into particular account the submission of the pupil whose shirt had been cut, the fact that the substance of his allegations had been maintained consistently and his readiness to participate in all investigations into the incident. The Panel noted the seriousness of this allegation in considering this matter and found that, on the balance of probabilities, [W] was responsible for the behaviour resulting in his permanent exclusion.”
[12]The letter continued by explaining why the Panel had come to the conclusion that permanent exclusion was not a proportionate response, that a fixed term exclusion would have been more appropriate and that W should be reinstated at the School.[13]In the event there was unfavourable reaction by the School to the prospect of W’s reinstatement. The Head Teacher was faced with very considerable staff hostility, and a ballot for industrial action, by way of refusal to teach or supervise W, was held. The Head Teacher attempted to ensure that he met his obligations to continue to teach W, although he too was reluctant to reinstate him. He employed a risk assessor to review the situation, whose report concluded that, in the short term, teaching W in isolation was a reasonable option, and for a short while such occurred. But it was obviously not satisfactory for either W and his parents or the School, and, by agreement between the Head Teacher and the parents, a place was found for W at another local Catholic secondary school, which he took up.[14]The School records state in respect of W that he was excluded between 16 November 2006 and 19 January 2007 (35 days):
“exclusion type” is recorded as “fixed term” and the “exclusion reason” is recorded as “physical assault against a pupil”
. Strictly speaking of course that is not correct, since, although the Defendant Panel concluded that fixed term exclusion would have been appropriate, in the event what they ordered was reinstatement, quashing the original permanent exclusion order - they had no power to substitute a fixed term of exclusion, retrospectively or otherwise, as it is not an available remedy set out in paragraph 140 of the Guidance, in paragraph 7 above. Nevertheless, pursuant to paragraph 157 of the Guidance, there set out, there must be a record of the exclusion. It is in these circumstances that, notwithstanding that the Claimant’s appeal was successful in respect of the quashing of the permanent exclusion order, the Claimant and his parents wish to challenge that part of the decision of the Defendant Panel which upheld the factual finding of the Head Teacher and the School Governors.[15]The application for permission to apply for judicial review was dealt with by me on the papers, when I adjourned it for a ‘rolled-up’ hearing, i.e. to be followed by the substantive hearing if permission were granted. The relief that is sought is for the matter to be remitted to a fresh Panel.

No useful purpose

[16]The Defendant’s first submission is that the Claimant’s claim for relief should be refused for, as he succeeded in his appeal to the Independent Appeal Panel who quashed the decision to exclude, there is no order left to quash, and no ground for intervention by the Administrative Court. Further: i) There is nothing to suggest that the Claimant intends or would like to return to the School, and indeed such is not his intention. ii) Insofar as complaint may be made as to what the School did after the order of the Panel, that is not the subject of judicial review and the Panel is not responsible for the School. iii) The Claimant does not challenge the Panel’s decision, but only a part of its reasoning. Ms Stone was, by inference, referring to the practice in the Courts, where an appellate court would be most unlikely to interfere where the decision below was, on the appellant party’s case, correct, but the reasons for it wrong: the line of authority to which she was referring would, I have no doubt, be such cases as Harrod v Ministry of Defence [1981] ICR 8 and Riniker v University College London [2001] EWCA 597. iv) By reference to paragraph 157 of the Guidance, quoted at paragraph 7 above, the “details of an exclusion may not be deleted from the pupil’s record, even where reinstatement is directed”. Whatever the results of the application and of any remitted hearing before the IAP, the Claimant’s school record would continue to refer to the Claimant having cut T’s folder with the knife and having taken T’s wallet. Ms Stone submitted that it was wholly unrealistic to suppose that it would make any difference to the Claimant’s educational prospects if the matter relating to the cutting of T’s shirt were removed whilst those matters remained on his record.[17]Mr Wolfe refers to the decision of Mr Supperstone QC in R (N) v Independent Appeal Panel of the London Borough of Barking and Dagenham [2008] EWHC 390 (Admin), in which an argument of no useful purpose was rejected, because, in that case, the only basis for the submission was that the pupil did not intend to return to the school, and the learned judge found that she had a recognised interest if the claim succeeded in being able to remove the stigma of an improper exclusion from her record. In this case, the improper exclusion has been dealt with.[18]I am persuaded however that this is not a proper basis upon which to reject this claim. Although the appeal to the Defendant was successful, it is apparent from paragraph 141 of the Guidance, set out in paragraph 7 above, that the appeal panels have to reach two decisions: first as to whether “the individual committed the offence in question”, and then, if so, whether the “response is proportionate”, and/or there have been any procedural irregularities affecting the fairness of the procedure. Paragraph 148 of the Guidance, also set out in paragraph 7 above, makes it clear that an appeal to the Panel itself may be brought in a situation in which it is not being requested that the Panel should direct reinstatement, e.g. “because the parent has made clear he or she does not want it”, so that it could be said that a request to the Panel to quash an exclusion decision in such case is no less academic than a request to this Court to overturn the central finding of fact, which led to the impugned decision to exclude. I conclude: i) that judicial review procedures are not identical to the practices of appellate courts. The test is whether the claimant has an interest in the outcome, and in this case the Claimant and his parents contend that there is purpose to quashing the findings by reference to at least in part clearing his name. ii) The exclusion decision was not based upon the other discreditable actions of W, albeit that, judging by the fact that disciplinary steps were also taken against the lesser participant E, at any rate some disciplinary action might have been. The decision to exclude, it is quite apparent from both the decision of the Governors and the Appeal Panel, rested solely upon the threat to cut and the actual cutting of T’s shirt while he was wearing it. The conduct indeed, in order to amount to sufficient for exclusion, had to be one of ‘serious actual or threatened violence against another pupil’ (paragraph 12(a) of the Guidance, set out in paragraph 7 above). iii) Although the original permanent exclusion, and the grounds for it, must remain on the Claimant’s record by virtue of paragraph 157 of the Guidance, paragraph 157 also provides that the Governing Body must “comply with any parental request to place their appeal statement on the pupil’s record”, and, although it would be for the Governing Body to decide what details were included in the pupil’s school record, I have no doubt at all that it would not be reasonable to do anything short of attaching to the record the fact, if such were the case, that, not only was the exclusion decision quashed, but the “exclusion reason” (see paragraph 14 above) of “physical assault against a pupil” was, if it is, overturned.[19]This would be of significant interest to the Claimant, to ensure that his school records, for the purposes of his future education, are as favourable as they can be, albeit that it would be apparent that there were other, less serious, acts of misconduct by him which were short of physical assault against a pupil. I therefore would not dismiss the claim on this ground, and since my ‘rolled-up’ order was primarily by virtue of my reservations in this regard, I grant permission.

Failure to address its mind to the ‘admissibility’ of the evidence and/or perversity

[20]The main thrust of the Claimant’s case in the early stages of these proceedings was based upon a case that the Defendant Panel should have considered expressly whether the evidence of the admissions/confessions should be admitted, particularly in the light of a specific reference to the Court of Appeal decision in Dunraven (R v Head Teacher & Independent Appeal Committee of Dunraven School ex p B [2000] ELR 156 (CA 21.12.99)), which was drawn to the Panel’s attention by Mr McKendrick of Counsel at the appeal hearing. The first question to address is whether it is indeed correct to describe the Dunraven issue as relating to admissibility. It is quite plain that the Court of Appeal in Dunraven itself expressly did not consider it appropriate to apply the principles and procedures of the criminal law, and in particular s76 of the Police and Criminal Evidence Act 1984, to interviews by head teachers and/or teachers with pupils. Sedley LJ, in rejecting on the facts any suggestion that there had been unfairness in that case by the head teacher, put it in this way:
“It seems to me that [Counsel] would not have been able to show that the admission made by the Applicant (if admission there was) was extracted in circumstances which made it unsafe or unfair to rely on it, whether by analogy with s76 of the Police and Criminal Evidence Act 1984 and the Codes issues under the Act, or as a freestanding aspect of fairness … S76(2) of PACE, put shortly, requires the prosecution to prove beyond reasonable doubt, where the issue is raised, that a confession on which it proposes to rely has not been obtained by oppression or by any inducement likely to render it unreliable. Code C translates this into police practice. While PACE and its Codes may serve as the touchtone of fair procedure outside the criminal justice process, they can logically do no more than this … A head teacher, while not in the same position as a parent, is not in the same position as a police officer. This does not license him to use oppression, but it does help in deciding what amounts to improper pressure on a pupil. Without doubt, an admission made to a head teacher who has told a child he will be kept in until he confesses, or who has untruthfully told the child that he has been seen committing the offence, would be worthless; but I do not consider that what happened here … was such as to make his admission … unreliable or the manner of obtaining it oppressive.”
[21]In R (M) v Independent Appeal Panel (Governing Body and Head Teacher of CH School) [2004] EWHC 1831; [2005] ELR 38 Newman J was again invited to apply the concepts of PACE to interviews of a pupil by a teacher, and at paragraph 12 he expressly concluded that “s76 of the Police and Criminal Evidence Act 1984 applies in criminal trials, not 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”.[22]I am fortified by the fact that the words of Sedley LJ, quoted in paragraph 20 above, are not words of admissibility but of fairness and reliance. Quite apart from his (and Newman J’s) rejection of PACE as the proper touchstone, the use of the words “unsafe or unfair to rely on it” cannot even be said to be an implicit reflection of the statutory wording of s76, which is rather that “the court shall not allow the confession to be given in evidence against him”.[23]In the end, Mr Wolfe accepted that the challenge to the circumstances in which the admission or confession in this case was (admittedly) made and then withdrawn went to weight and not to ‘admissibility’. I am clear that such is the case. The appeal hearing before a Panel is not a hearing before a criminal court in which evidence given, even otherwise persuasive and convincing evidence, can be ruled out, and thus never heard by a jury, in the event that it is shown to have been obtained by torture or by duress or, in appropriate circumstances, by trickery. An educational appeal panel, albeit assisted by a clerk, is not a body of lawyers, and in any event is, subject always to its appellate capacity, both judge and jury, and will thus hear the challenged evidence, as it will hear all evidence, including evidence (such as was the subject of challenge in the Administrative Court in R (S) v Head Teacher of Claremont High School and Others [2001] EWHC Admin 513 at paragraph 27) whose introduction before the panel had been objected to because of its lateness.[24]I am satisfied therefore that the obligation of the Panel was to consider the challenge to the reliability and weight of the evidence adduced before it, in relation to the evidence by Mr Groves that W first denied then admitted and then denied again having cut T’s shirt, and the evidence of the Head Teacher that, subsequently, in the presence of Mr Groves, W again made the admission to him, and then subsequently withdrew it. The Defendant Panel was plainly obliged to consider such matters. There was no express sign from the decision letter set out in paragraph 11 above that they did so. Hence the primary case, as first put forward by the Claimant, that they either failed to do so or acted Wednesbury unreasonably or perversely. It is in response to that case that the Defendant produced both the Clerk’s notes and the witness statement, referred to in paragraph 10 above, of Mr Matthews. The relevant passage in the Clerk’s notes of the Panel’s discussion reads as follows:
“JR - ... Evidence procedures ok. [W] only left alone because he was upset, knew teachers.”
This makes it entirely clear that “JR” (Mr Ratcliffe, another of the independent members of the Appeal Panel), was making the point that, in his view, the “evidence procedures [were] OK” and that “[W] was only left alone because he was upset [and that he] knew [the] teachers” – a reference in particular to Mr Groves, with whom he had a good relationship. The notes continue with what is recorded as having been then said by JO (Mrs Osborne, the third member) namely:
“JO - Earlier admissions (separate occasions) Damage to folder – admitted General disruptive behaviour in classroom [T’s] evidence consistent – why make it up?”
Damage to folder – admitted General disruptive behaviour in classroom [T’s] evidence consistent – why make it up?”

General disruptive behaviour in classroom

[25]Then there is recorded the agreement of all three that “balance of probabilities applies in latest Guidance. Agreed that [W] had probably cut the shirt (unanimous)”.[26]It is quite clear from all this, although the record is of what was said by individual members, that such was the gist of the discussion, and the consequence of the discussion was the Panel’s unanimous agreement. If there were any doubt as to this, the witness statement of Mr Matthews makes matters clear. Although there was an issue taken by Mr Wolfe in his skeleton argument as to the admissibility of Mr Matthews’ statement (and indeed of the exhibited Clerk’s notes), he made clear, in the course of argument, that he was not in fact submitting that they were inadmissible on the issue of what occurred, but that he would only be making submissions as to their admissibility in the context of his Reasons argument, to which I refer below. In any event, that this is correct is further illustrated by the decision of Richards J (as he then was) in S where, at paragraph 19, he concluded that “the evidence of the chairman, by way of providing additional information as to the decision making process, was admissible and could properly be given weight”. Mr Matthews refers to the central passage in the Clerk’s notes cited at paragraph 24 above, and states as follows:
“I can clarify that this note was a summary of the discussion held by the Panel in its consideration of the question of whether W’s confession should be admissible. The IAP decided that that evidence should be admitted as there was insufficient evidence of duress.”
[27]It is noteworthy that he actually puts it in terms of admissibility, although I have, as set out above, concluded that it was not a matter of admissibility but reliability. Nevertheless what is clear is that the Panel did indeed consider the issue, the evidence and the submissions of Mr McKendrick of Counsel.[28]Once it is clear that the Panel did consider it, then all that is left of what was originally Mr Wolfe’s primary point is his alternative case of perversity. Mr Groves, in his response to the Claimant’s solicitor’s report made on 22 December 2006, had stated as follows:
“How were the circumstances of [W’s] questioning wholly inappropriate? He was given lunch, checked on by staff, not questioned intensely for 4 hours but for a maximum of approx 50 minutes over the day. No more than 10-15 minutes a time … In a serious incident a teacher has to challenge a pupil. I did believe that [W] was lying, based on the other evidence and his reactions.”
[29]The Panel had to weigh up the evidence, including the admitted facts that W was upset, that W only made a confession/admission to Mr Groves in the context of a continuing change of story, and that, once Mr Groves took him round to the Head Teacher, he then repeated his admission, only to withdraw it later, and that there was the disputed reference to the Police referred to in paragraph 9(ii) above. I am wholly unpersuaded that there is the beginning of a case that a conclusion that the Defendant Panel was not required to disregard the confession was Wednesbury unreasonable.

Reasons

[30]The challenge which Mr Wolfe in the event made most thoroughly at the hearing, notwithstanding that Ms Stone was able to make some play of the fact that, in paragraph 23 of the Claimant’s Summary Response to the Defendant’s Grounds of Resistance in its Acknowledgment of Service, it was in terms stated by Mr Wolfe “this is not a Reasons challenge”, was such a Reasons challenge. His submission was double-headed. First there is no mention in the decision letter of whether the Panel has paid any regard to the submission that no weight should be placed upon the confessions/admissions and/or that they should be disregarded: and secondly it cannot be seen whether the Panel would have reached the same conclusion it did had it wholly disregarded them.[31]This is not a case in which, where there is a Reasons challenge, the Court can return to the first instance tribunal to direct them to supplement their reasons, a course suggested, in an appropriate case, by the Court of Appeal in English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409, and as put into practice now on a regular basis by the Employment Appeal Tribunal as per Burns v Consignia plc (No 2) [2004] IRLR 425, as approved by the Court of Appeal in Barke v Seetec Business Technology Centre Ltd [2005] ICR 1373 CA [2005] EWCA 578. That is only possible where there is either express or inherent jurisdiction to take such a course. In this field, however, there is none, and the requirement for the reviewing court to address the issue of adequacy or inadequacy of reasons is rendered significant in the context of the 2002 Regulations by the Guidance at paragraph 153, set out at paragraph 7 above, which requires that “the decision letter must give the Panel’s reasons for its decision in as much detail as possible, including clear information about the offences or behaviour for which the pupil has been excluded, so that the parties can understand why the decision was made”.[32]The central passage in the decision letter is the second of the two paragraphs quoted in paragraph 11 above, beginning “In considering whether …”. It is correct that there is no sign in the letter of a statement along the lines of “evidence procedures OK: [W] only left alone because he was upset, knew teachers”. Mr Wolfe submits that this means that reasons for the decision have not been given “in as much detail as possible” and that, particularly given that there was an express submission made as to admissibility/weight by reference to Dunraven, it is not the case that “the parties can understand why the decision was made”.[33]There is no doubt that the reasons could have been fuller, and that it would not have been difficult for something along the lines of that extract from the Clerk’s notes to have been incorporated. However I accept the submissions of Ms Stone that the reasons are sufficient: i) For the reasons I have given above, this was not to be regarded as a decision of law on the admissibility of the confessions/admissions, nor indeed an interlocutory decision on admissibility taken preparatory and prior to the main decision. The confessions formed part, as did the originally challenged evidence in S, as referred to in paragraph 23 above, of the body of the evidence being considered by the Panel. Weight was a matter for the Panel. ii) Their reasons for their decision that W had indeed cut T’s shirt are clear. I agree with Ms Stone that there is no obligation to include ‘sub- reasons’, or reasons for reasons. The criticism which Mr Wolfe makes is by reference to the judgment of Bean J in R (I) v Independent Appeal Panel for G [2005] EWHC 558 (Admin); [2005] ELR 490, in which he found the reasons given by the Panel “sadly inadequate”. Such criticism in that case by Bean J is as follows: “10. The two sentences which I have read do not indicate what facts were found proved about the incident itself (although 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 ...” iii) In this case it is plain that the Panel noted,and thus accepted, that he had admitted the incident prior to his subsequent denial of it (as was the case). But the Panel did not rest its conclusion on that, or leave it at that. The two matters which the Panel “took into particular account” were: a) W’s “general behaviour during a lesson, which included admitting to cutting the pupil’s folder with a craft knife”. b) The evidence of T “whose shirt had been cut, the fact that the substance of his allegations had been maintained consistently and his readiness to participate in all investigations into the incident”. iv) Those are the matters which are particularly relied upon, while the withdrawn admissions had been simply noted. It is right to say that the Panel does not set out its reasoning on the way towards assessing the weight to be applied to the confessions whose existence they had noted, but what is beyond doubt is the expressed reasoning which caused them to conclude what they in fact had to conclude, namely whether they were satisfied, on the balance of probabilities, that W had committed“serious, actual or threatened violence against another pupil”within paragraph 12(a) of the Guidance. I have no doubt that the two matters of which they took particular account formed the bedrock of their conclusions.[34]If I am wrong in concluding that, unlike the decision in Bean J’s case, the decision letter itself contains adequate reasons, the question arises whether I can consider, by way of supplementation of those reasons, the evidence of Mr Matthews and the Clerk’s notes. Mr Wolfe referred to the seminal decision of the Court of Appeal in R v Westminster City Council ex p Ermakov [1996] 2 AER 302, and in particular that part of the judgment of Hutchison LJ at pp325ff. What is clear is that the Administrative Court sets its face against the subsequent production of reasons which are “significantly different from the stated reasons” or the “wholesale amendment or reversal of the stated reasons”. In ReNorthamptonshire County Council ex p D [1998] ELR 291 Laws J, as he then was, in an illuminating passage, expounds on Hutchison LJ’s judgment, when accepting an affidavit from the chairman of a committee explaining the reasons for the committee’s decision, where the committee was under a statutory duty to give reasons for its decision and had given inadequate reasons, by way of no more than an uninformative generalisation. Laws J said, at 24A:
“It seems to me with respect that the passage from Hutchison LJ’s judgment which I have cited, and also Latham J’s reasoning, give a resounding and salutary warning against a particular danger that may arise where originally faulty reasons are sought to be cured by later evidence. It consists in the risk that the later material, albeit put forward in perfect good faith, in truth offers an ex post facto justification for the decision which in substance travels beyond, and may differ from, the factual reasons entertained by the decision-maker at the time. It is, I think, important to notice that the learned Lord Justice was dealing with a case [where] “the real reasons were wholly different from the stated reasons”
. I would emphasize also his deprecation (in para 3) of the “wholesale amendment or reversal of the … reasons”. I accept, however, that even where the court is confident that the later evidence represents the actual reasons given at the time, it will not automatically receive the later material. Whether it will do so will be a matter for the court’s discretion case by case. Broadly speaking, the court will have in mind the great importance to be attached to the giving of legally sufficient reasons at the time they are supposed to be given. As Hutchison LJ said (para 3) “The purpose of reasons is to inform the parties why they have won or lost and enable them to assess whether they have any grounds for challenging an adverse decision”. At the same time, in a case where the court is entirely satisfied, despite an original defect in the reasons given, that the public body in question has arrived at a perfectly proper decision amply justified (so far as any public law tests are concerned) by reasons which it was entitled to entertain and which it did entertain at the time, it may be slow to strike down the decision on the basis only that the later explanation should have been given when the decision was communicated. I recognise that Hutchison LJ (in the opening sentences in para 2) draws a distinction between elucidation on the one hand and correction or addition on the other. But I think with respect it is clear that he was concerned with the class of case where the later material exhibits a significant or indeed fundamental shift of ground from the reasons given at the time.”[35]In Nash v Chelsea College Art and Design [2001] EWHC Admin 538 at paragraph 34 Stanley Burnton J put forward three relevant considerations in particular for a court to take into account in accepting late reasons:
“(a) Whether the new reasons are consistent with the original reasons. (b) Whether it is clear that the new reasons are indeed the original reasons of the whole committee. (c) Whether there is a real risk that the later reasons have been composed subsequently in order to support the tribunal’s decision, or are a retrospective justification of the original decision.”
Other considerations he put forward are not relevant here, where there is no doubt that the Clerk’s notes, albeit only produced in evidence in these proceedings, are original and contemporaneous documents.[36]It is plain that the content of the Clerk’s notes, as elucidated by Mr Matthews, satisfy the cautions by Hutchison LJ, Laws J and Stanley Burnton J, and do not amount to a contradiction, but simply a clarification or supplementation, of the decision letter, and do amount to an explanation of reasons which the whole Panel did in fact entertain at the time in arriving at their conclusion. I would have no hesitation in considering that evidence if I remained in doubt as to the adequacy of the reasons.[37]I have no doubt that the Panel did consider whether to ignore or place no weight upon the confessions/admissions, and, for the reasons recorded in the Clerk’s notes, but also for the reasons set out in the decision letter, namely the existence of persuasive and convincing corroborative evidence, they placed some weight upon them. The fact remains however that it is clear from any sensible construction of the decision letter that the matters which particularly weighed with them were matters other than the contents of the withdrawn admissions.

No difference

[38]If it were necessary for me to consider the issue of no difference, i.e. the principle by which the Administrative Court will refuse relief by way of, in this case, remission for a fresh hearing by the Panel, if the Court is satisfied that the same result would ensue, I would have refused relief on this ground also. Far from its being a perverse decision by the Panel, I conclude that, by reference to the evidence before me, the same result would follow. The two particular matters which plainly convinced this Panel, set out in paragraph 33(iii) above, are clear and persuasive. I have already concluded that it was not Wednesbury unreasonable to decide to place weight upon the admissions/confessions. But even if a Panel decided to place no weight upon the admissions/confessions, I am satisfied that the same result would follow.

Conclusion

[39]I accordingly dismiss the Claimant’s claim. However, as became apparent during the course of proceedings, it will be necessary for the School record to be corrected, so as to make clear that there was not in fact a substitution of a fixed term exclusion for the permanent exclusion (the Panel in any event having no such option under the Guidance), such that, however the School records the incident, the fact that reinstatement was directed should be recorded. Although the School is not a party to these proceedings, I trust that the Defendant will take all appropriate steps to secure that this is done, and if so that will be some, albeit small, comfort for this Claimant. In the result I grant permission to apply for judicial review, but refuse the substantive application.

Cited in 1 later judgment