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Law - Education - Challenging school exclusion
27th July 2004
B e f o r e :
THE HONOURABLE MR JUSTICE NEWMAN
____________________
Between:
R (on the application of M, proceeding by his
mother and litigation friend A) Claimant
- and -
(1) INDEPENDENT APPEAL PANEL
(2) GOVERNING BODY OF CH SCHOOL
(3) HEAD TEACHER OF CH SCHOOL
Defendants
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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
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Official Shorthand Writers to the Court)
____________________
Dean Underwood (instructed by Ashok Patel & Co) for the
Claimant
Gillian Carrington (instructed by London Borough of Redbridge)
for the First Defendant
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
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".
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 v The Headteacher
and Independent Appeal Panel of Dunraven school ex 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.
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