Case No: C/2001/1124 (“S”)
C/2001/2083 (“T”)
C/2001/1309 (“P”)
NEUTRAL CITATION NUMBER:  [2002]  EWCA  Civ  693
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM 
MR. JUSTICE SCOTT-BAKER
MR. JUSTICE NEWMAN
MR JUSTICE  TURNER
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Friday 17th May 2002
Before :

LORD JUSTICE SCHIEMANN
LORD JUSTICE SEDLEY
and 
MR. JUSTICE CHARLES
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Between :
	“S” 
“T” 
“P” 	Appellant	
			
	LONDON BOROUGH OF BRENT & ORS.
OXFORDSHIRE COUNTY COUNCIL
HEAD TEACHER OF ELLIOTT SCHOOL & ORS.
SECRETARY OF STATE FOR EDUCATION and SKILLS	Respondent	
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Murray HUNT (instructed by Ashok Patel & Co.) for “S” 
Murray HUNT and Oliver HYAMS (instructed by Ashok Patel & Co.) for “T”
David WOLFE (instructed by Levenes) for “P”
Peter OLDHAM (instructed by Legal Services, London Borough of Brent) for “S”
Oliver HYAMS (instructed by Legal Services London Borough of Brent) for “T”
Nigel GIFFIN (instructed by Legal Services, Oxfordshire County Council)
Clive LEWIS (instructed by Treasury Solicitor) for the Secretary of State.
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Judgment
As Approved by the Court
Crown Copyright ©

Lord Justice  Schiemann:

Introduction
1.	This is a judgment of the court to which each of us has contributed. We have heard three appeals together. All the appeals relate to the permanent exclusion of pupils from school. In each case the Governing Body of the school decided not to reinstate them at their school and the appeal to the Appeal Panel against the decision of the Governing Body failed. The present proceedings relate to the decisions of the Appeal Panels which were challenged by the parents by way of judicial review. In each case the judge dismissed that application. In each case the parents have appealed to us. The three days that these matters took in front of us is thus the fifth occasion on which they have been examined – on 3 occasions by people concerned with education, the head teacher, the Governing Body and the appeal tribunal, and on two occasions by the courts. 
2.	The Queen (S) v The LB Brent [2002] ELR 57, which we shall refer to as Re S, concerns a 16 year old boy (S) with a troubled background who lived with his grandparents. He was permanently excluded after a serious fight with another boy C. The fight took place on 2 October 2000. C was excluded for three days. S does not, and did not, dispute that a serious fight took place.  The contentions which relate to the individual facts of this case are that:
	(a)	the Appeal Panel treated its discretion as being fettered by paragraphs 17 and 18 of Guidance issued by the Secretary of State (“the Guidance”),
(b)	having regard to the overall role of the local education authority (“LEA”) the written and oral representations of the Exclusions Officer of the LEA (Easter Russell) to the Appeal Panel give rise to an appearance of bias, or are otherwise improper,
(c)	the Appeal Panel failed to give proper regard to S’s mitigating circumstances (which is both a freestanding point and part of the argument relating to (a)), and
(d)	the Appeal Panel failed to comply properly with paragraph 16 of the Guidance when considering and comparing the position of the other pupil involved in the fight. 

3.	The Queen (B) & ors v Alperton & ors [2001] ELR359.  This judgment concerned three cases. The part thereof under appeal concerns the case of The Queen (T) v the Head Teacher of Wembley High School and others. We shall refer to it as Re T. It concerns a 12 year old boy (T) who, following a warning for misbehaviour given in December 1999, was permanently excluded from school for misconduct on 24 January 2000. T disputed that the misconduct for which he was permanently excluded took place. The misconduct alleged was that T had attacked a fellow pupil and had punched and pulled the hair of a teacher who had come to the classroom to assist in the situation that had developed.  The contentions which relate to the individual facts of this case are that:
	(a)	the Appeal Panel treated its discretion as being fettered by paragraphs 17 and 18 of the Guidance,
(b)	having regard to the overall role of the LEA the written and oral representations of the Exclusions Officer of the LEA (Easter Russell) to the Appeal Panel give rise to an appearance of bias, or are otherwise improper, and
(c)	the Appeal Panel failed to allow questioning of the teachers involved in the incident. 

4.	The Queen (P) v Oxfordshire CCEAP and SSEE [2001] ELR 631, which we shall refer to as Re P, concerns a 13 year old boy (P) who has special educational needs and who had received a written warning as to his conduct by a letter dated 12 April 2000. The incident leading to his exclusion on 9 June 2000 involved a threat by P to another boy using a replica gun. P disputed the misconduct for which he was permanently excluded. The contention which relates to the individual facts of this case is that the Appeal Panel treated its discretion as being fettered by paragraphs 17 and 18 of the Guidance.

5.	It follows that:
	(a)	the contention that an Appeal Panel treated its discretion as being fettered by paragraphs 17 and 18 of the Guidance is raised in each appeal;
	(b)	the issue of whether improper representations were made by the Exclusions Officer of the LEA is raised in both Re S and Re T (no representations were made by an Exclusions Officer in Re P); and
	(c)	further specific points are taken in Re S and Re T.
The statutory Background
6.	The most relevant provisions are to be found in the School Standards and Framework Act 1998. The broad scheme of the legislation is that no pupil can be excluded unless his head teacher decides to exclude him. Where a head teacher decides on exclusion he must inform the discipline committee of the Governing Body. The discipline committee must consider whether to re-instate the pupil. Before concluding their consideration the discipline committee must consider any representations made by the parents and by the LEA. If the Governing Body decides not to re-instate the pupil his parents can appeal to an appeal panel. The appeal panel must be willing to receive representations from the parents, the head teacher, the LEA, and the Governing Body. The head teacher, the Governing Body, the LEA and the Appeal Panel must have regard to guidance given by the Secretary of State. The main statutory provisions are annexed.

The Guidance
7.	The Guidance has been modified from time to time, was at the relevant time contained in three documents and is currently once more the subject of consultation. The primary source is Circular 10/99. This was issued in July 1999, amended in January 2000 and in part replaced in August 2000. The effect of the January 2000 amendment was to widen the circumstances in which a pupil could be excluded consistently with the policy set out in the Guidance. The effect of the August 2000 replacement was to change the Guidance in relation to Appeal Panels. The more important parts of  the three documents which between them contained the Guidance are annexed.
The Law : The Appeal Panels
8.	Before coming to the factual detail of these appeals we will set out what we consider to be the material principles of law to be derived from the foregoing and other sources. If we do not set out the full and scholarly arguments presented to us by all six counsel, it is not out of disrespect but because these are addressed, so far as appropriate, in our conclusions on the law.
9.	The right to education, which is one of the Convention rights scheduled to the Human Rights Act 1998, is not a right to be educated in any particular school. So far as the latter entitlement exists, it is by virtue of either or both of legitimate expectation and of Regulation 9 of the Education (Pupil Registration) Regulations 1995. Permanent exclusion, which is an acknowledged exception to both, has a radical impact on the choice of school, the continuity of schooling and the future prospects of the pupil. The injury capable of being done by it to a child’s socialisation and self-esteem is incalculable. It is estimated that about half the male prison population has been the subject of permanent exclusion from school. Equally, schools cannot function as places of learning and social development in an ambience of violence or abuse, whether directed at teachers or at other pupils, or of misconduct or disorder. Pretty well every decision about exclusion is a negotiation between these anxious and competing considerations.
10.	Until the Education (No 2) Act 1986 there was no recourse against exclusion beyond the Governing Body. The Appeal Panels which LEAs were required to set up under that Act were subject to no ministerial guidance or other central direction. The different scheme now contained in ss. 64-68 of and Sch. 18 to the School Standards and Framework Act 1998 can, we think, be characterised in the following way.  
11.	First, it creates a tribunal which has the hallmarks of an independent adjudicative body.  The Panels have the final say on a matter of critical importance to pupil, school and society, and they are carefully constituted to ensure that they are independent of the school, the pupil and the LEA. One has only to read the scrupulous provisions about eligibility contained in paragraph 2 of Sch. 18 to see how central Parliament intended their independence and impartiality to be. They are scheduled to the Tribunals and Inquiries Act 1992 and so are subject to the supervision of the Council on Tribunals. For reasons touched on above, it is accepted by Mr Hunt that the Panels are not what one might call article 13 bodies – that is to say bodies but for the existence of which the United Kingdom would be in breach of its Convention obligation to provide an effective remedy for breaches of a Convention right. His and Mr Wolfe’s case is that, as creatures of statute, they are nevertheless invested by the common law and by the Convention with obligations of fairness which have been compromised in the present cases.
12.	Secondly, the Panels have no presidential system or central direction. In this they stand in sharp contrast to, for instance, the Special Educational Needs Tribunals, which function coherently under a national president without any departmental intervention. Instead, built into the constitution of Appeal Panels by s.68 is an obligation to have regard to any guidance issued by the Secretary of State. The s.68 obligation is common to head teachers, Governing Bodies, LEAs and Appeal Panels, but it does not follow that the whole of the Guidance will affect each of them: that will depend on its content. In relation to exclusions, for example, Annex D shows that the head is not expected to conduct any particular inquiry or investigation, though of course  heads will try to find out what happened before acting on an accusation and, as paragraph 6.3 of the Guidance points out, should let the pupil give his or her account; the Governing Body is expected to “consider the parents’ and LEA’s statements” before deciding whether to direct reinstatement; but the Appeal Panel is advised (paragraph 14) to decide for itself how to conduct the proceedings – advice to which we shall be returning. This allocation corresponds with the general scheme of the Education Acts, from 1944 onward, of regarding the school not as a hierarchy but as a single body of pupils, staff, head and governors, albeit with differentials of authority; so that the school’s natural obligation to hear both sides, whether or not initially undertaken by the head teacher, always falls upon the governors. It is from them that statute now affords an appeal to an outside body.
13.	It is contended for the pupils that if s.68 is taken literally Appeal Panels, born free under s.67, will be everywhere in chains.  Its meaning has therefore, the appellants submit, to be conditioned by the common law’s standards of fairness and (if measurably different) read down into conformity with article 6 of the Convention. For the Secretary of State it is said by Mr Lewis that s.68 is to be taken literally, but that it does not mean that the Panels are less than independent or are required  to be less than impartial: it means that without departing from either of these standards they are to have regard to – not slavishly follow – ministerial guidance. A primary statutory purpose of guidance in this context, he submits, is to promote consistency within the appellate structure.
14.	In our judgment it is inappropriate to construe ss. 67 and 68, which plainly have to be read together and with Sch. 18, otherwise than on their own express and implicit terms. These are that the Appeal Panels are required to act independently and decide impartially, but to do so in the light of the Secretary of State’s Guidance. So far there is in our judgment nothing in the scheme which blocks the application of the longstanding default principle that the common law will supplement such procedures to the extent necessary to ensure that they operate fairly (see Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180, per Byles J;  Wiseman v Borneman [1971] AC 297, per Lord Reid; Lloyd v McMahon [1987] AC 625, per Lord Bridge;  R v Home Secretary, ex parte Simms [2000] 2 AC 115, 131, per Lord Hoffmann). If Appeal Panels so constituted were incapable of functioning impartially or independently, it would be because the statute unambiguously made them so, and the common law would have to yield to the statute; but the Human Rights Act 1998, s.3, where it applied, would in that event oblige us to read the statute down so far as possible in order to comply with article 6 if (and to this we shall return) that article is engaged at all. In our judgment, however, ss. 67 and 68, with Sch. 18, are designed to create and are entirely capable of sustaining independent and impartial appeal panels.
15.	The first consequence of this is that Appeal Panels, and schools too, must keep in mind that guidance is no more than that: it is not direction, and certainly not rules. Any Appeal Panel which, albeit on legal advice, treats the Secretary of State’s Guidance as something to be strictly adhered to or simply follows it because it is there will be breaking its statutory remit in at least three ways: it will be failing to exercise its own independent judgment; it will be treating guidance as if it were rules; and it will, in lawyers’ terms, be fettering its own discretion. Equally, however, it will be breaking its remit if it neglects the guidance. The task is not an easy one.
The Law : The Guidance
16.	The second consequence is that the legal constraints on the content of the Secretary of State’s Guidance become critical. We respectfully differ from the view expressed by Scott Baker J in Re S that, short of usurpation of the Appeal Panel’s functions, there is no legal limit on the Secretary of State’s Guidance. Mr Lewis, in our judgment rightly, accepts that her guidance must not only stay within and promote the statutory purposes but that, at least since 2 October 2000, it must be Convention-compliant, since she is a public authority within s.6. This is why we accept that the promotion of consistency is a necessary purpose of guidance under s.68, but equally why we do not accept that it is a sufficient one. Parliament has not authorised the Secretary of State to promote practice which is consistent and wrong. To take two simple examples, if the guidance were to include advice that parents should not be allowed to dispute teachers’ evidence to Appeal Panels, this would represent advice to act unfairly which is unauthorised by Parliament and therefore contrary to law. Similarly, if guidance were given that LEAs, when deciding whether a Panel should sit in public, ought to disregard any question of private life and should consider only the public interest in the case, it would be likely to be struck down under section 8(1) of the HRA and Article 8 of the Convention.
17.	This is one reason why great circumspection is required on the part of ministers in formulating guidance under s.68. The other, which has a strong bearing too on the role of the LEA in exclusion appeals, is that the use of adjudicative tribunals as instruments of departmental or local authority policy is constitutionally highly objectionable, for in such cases the independence which is given by the state with one hand is taken away with the other. Although it remains open to Parliament, if it uses unambiguous language, to create bodies which can lawfully function in this way, it has not done so here. One of the unsung achievements of modern public law, strongly encouraged by the 1957 Franks Report,  has been to stop the covert issuing of departmental guidance to tribunals. Surveying the field at the beginning of the twenty-first century, the Leggatt Report (2001) remarked:
“3………Responsibility for tribunals and their administration should not lie with those whose policies or decisions it is the tribunals’ duty to consider. Otherwise for users, as has been said, ‘Every appeal is an away game’.”
“11. It has been suggested that there is virtue in keeping the policy of a department and the administration of the tribunal through which it is implemented under the control of the department. The contrary is true. The very fact that a department is responsible for the policy and the legislation under which cases are brought in the tribunal it sponsors leads users to suppose that the tribunal is part of the same enterprise as its sponsoring department…..[T]he apparent dependence of a tribunal on its sponsoring department is indefensible.”
Where, as in the case of exclusion appeals, Parliament has taken care to create an arm’s-length relationship between the department, the LEA and the panel, it is doubly unacceptable to use the power to give guidance in a way which collapses the constitutional distinction – none the less real for the absence of a bright line - between the administrative (i.e. policy-making) and the adjudicative (i.e. quasi-judicial) functions of the state. The question is whether that is what has happened here.
18.	One factor which may become relevant in answering the question is the form and context in which the Guidance has been promulgated. The well-presented and coherent Circular 10/99 sets a chosen tone by its title: “Social Inclusion: Pupil Support”, in contrast to the predecessor Circular 10/94, “Exclusions from School”, and situates exclusion within inclusion as a final resort. The amendment with which these appeals are principally concerned represents a modification of that Guidance which was announced by the minister, Ms Jacqui Smith, in a speech to one of the teaching trade unions, the Professional Association of Teachers, on 1 August 2000. Both its presentation and the press release which accompanied it (“Schools minister reinforces powers of heads to exclude pupils”)  make it evident that the changes were in part intended to satisfy or mollify a particular constituency and a particular segment of public opinion. We say “in part” because the announcement also had the purpose of altering the statutory guidance given to Appeal Panels. We will come to the question whether it went beyond the statutory power in this regard, but it is relevant to bear in mind that the legitimate purpose of statutory guidance to Appeal Panels under this Act will inevitably  be narrower than the legitimate range of government policy. The Secretary of State is empowered by statute to publish her guidance “in such manner as she thinks fit” (s.142(8) of the 1998 Act and s.571(1) of the 1996 Act); but to liberate her from the need to lay a statutory instrument before Parliament is not the same thing as making the manner of promulgation immaterial. If ministers decide to exercise statutory powers of great importance to the legal position of individuals (and not only pupils) by announcing them in a manner or in a context suggestive of a search for political gain, the courts are likely construe the announced changes cautiously. In Porter v Magill [2002] 2 WLR 37 (the Westminster surcharge case) Lord Hope endorsed the Divisional Court’s view that: 
“the auditor made an error of judgment when he decided to make his statement in public at a press conference. The main impression which this would have conveyed to the fair-minded observer was that the purpose of this exercise was to attract publicity to himself and perhaps also to his firm.”

He went on, as did the House, to acquit the auditor of apparent bias; but it is clear that the auditor would have done better not to have taken the risk. We note in the present case that the Council on Tribunals itself in mid-August 2000 wrote a strong letter to the Department expressing concern that the first the Council had known about the changes was the press report of the minister’s speech; asking why there had been no prior consultation with the Council; and pointing out a number of serious concerns about the revision. We have not been shown the Department’s reply.

19.	One way – perhaps the safest – in which to formulate guidance under s.68 is to list the factors to which Appeal Panels ought in general to have regard without indicating any preferred outcome. To do so comes closest to achieving consistency about the right matters without trying to influence individual decisions. It is after all perfectly obvious to the capable people who compose these panels that permanent exclusion will be the only option in many, though by no means all, cases of the kinds instanced in paragraphs 17 and 18 of the new Guidance. The adverb “normally” may, as Mr Lewis submits, do no more than state the obvious: but then, one wonders, why say it– unless it is directed to a rather wider audience than the Appeal Panel? Or it may, as Turner J held in Re P, and as the appellants now submit, have restricted the Panels’ freedom of decision by “altering the burden” of their response. We shall return to this.
20.	Great care is needed if the Secretary of State is going to use the s.68 power to give guidance about the test to be applied to the evidence. In the revised Guidance, paragraph 15 unobjectionably says: “The remit of the Appeal Panel is to consider whether the pupil should be reinstated.” The next paragraph goes on to give helpful guidance on a methodical approach to the relevant issues. But when it proposes that “the Panel should decide whether permanent exclusion is a reasonable response” to the conduct they have found proved, it enters choppy legal waters. To a lawyer – and the panels have legal advisers – a reasonable response immediately suggests any one of a possibly broad band of rational responses, which in a school exclusion case may well include both exclusion and re-integration. Such an approach might well leave standing a permanent exclusion with which the Panel disagreed. Mr Lewis for the Secretary of State has correctly disavowed any such legal test. Consistently with the independence of the Appeal Panel the question, he submits and we agree, can only be “Ought this child to be reinstated or not?” This is consistent in particular with Parliament’s unqualified characterisation of the process as an appeal (see Preiss v General Dental Council, [2001] UKPC 36, [2001] 1 WLR 1926 per Lord Cooke at §1).  We would prefer to reserve judgment until the occasion arises on Mr Hunt’s assertion that if she wanted to introduce a special standard of judgment the Secretary of State would have to use the “Henry VIII” power in paragraph 18 of Sch.18, since even such a power, especially when restricted to amending the contents of a procedural schedule, has legal limits which Henry VIII would not have liked.
21.	 Mr Giffin, in the P case, has sketched five possible classes of guidance which, he submits, shade into each other and make cut-offs impracticable: procedure; approach to evidence; relevant and irrelevant factors; cases where exclusion should normally be upheld; degrees of deference towards the head and Governing Body. If his intention is to suggest that a continuum of this sort simply has to be regarded as part of what the Americans would call guidance creep, we reject it. Some guidance (including the last of Mr Giffin’s examples, which would plainly be beyond the Secretary of State’s powers if it were anything but neutral), will eventually cross the line between the lawful and the unlawful. 
The Law : The Local Education  Authority
22.	The role of the LEA in these appeals is a complex one. It is the LEA which maintains the school on behalf of the Secretary of State and employs the staff; which has the ongoing obligation to have the pupil educated, whatever the outcome; which is given the duty of appointing, training, assembling and servicing the Appeal Panel, and of determining its procedures save as otherwise provided in the Schedule; which will commonly have been involved in earlier dealings with the pupil and the pupil’s parents or guardians; and which has a right, in many cases verging on an obligation, to make representations to the Governing Body and the Appeal Panel. There is no question but that in all these functions the LEA must maintain a completely objective stance. None of the counsel representing the LEAs before us have argued otherwise. The issue has been how far the LEA can properly go in stating its own position or commending an outcome to the Appeal Panel.
23.	Mr Hunt and Mr Wolfe have argued this issue in part by reference to the principles of law governing access to tribunals and apparent bias. This seems to us to be off-target: access has to do with inhibitions on a tribunal’s power to entertain proper appeals, and bias is a characterisation of the attitude, real or perceived, of the tribunal to the material properly before it. The true target here is the propriety of such material, whether in the form of the LEA’s submission or of the Secretary of State’s guidance; and this, in our view, is primarily a question of their lawful powers. The reason why the impartiality of the tribunal matters is not that it is taken to be compromised by such interventions but, on the contrary, that it is a fixed point by which their propriety can be gauged. The statutory scheme brings the LEA into the process in a series of important and potentially conflicting roles. The court’s present task is to see how this scheme can be operated consistently with a fair hearing. If it cannot be, then and only then does Convention-compatibility become critical. 
24.	In our view it can be. The LEA is acting quite properly in doing those things to which we refer in paragraph 22. There is nothing wrong in the LEA informing the Appeal Panel of the situation in various schools in its area and providing other factual information. Self-evidently the school exclusions officer, or other limbs of the LEA, are likely to have information relevant to the issues which the Appeal Panel has to decide. But it is important to remember when considering the role of the LEA that we are here concerned with an appeal against a decision by the head teacher and the Discipline Panel to exclude a particular pupil, a decision against which Parliament has provided a right of  appeal for the pupil to an independent body. It should be noted that Parliament has not provided a right of appeal for the LEA even if it considers that the head teacher should not have excluded the pupil. It is no part of the function of the LEA to press for a particular conclusion in relation to a particular pupil. A clear instance would be a direct submission that the pupil ought or ought not to be permanently excluded. 
The Law : The Conduct of the Appeal Panel hearing
25.	The line between input and outcome is not always an easy one to draw, as any judge who has had to deal with expert evidence will know, and Appeal Panels need to be alert to the difference between the two. As often as not it will come down, not to interrupting or excluding extraneous submissions but to disregarding them; but panels must be careful not to let a point be reached where they appear to be acquiescing in an endeavour by the LEA – or by anyone else for that matter – to determine or influence their final decision. It is here that a situation of ostensible bias is capable of developing unless the Panel halts it. Newman J took this view in T’s case, albeit obiter for reasons he explained, and we agree with his observations (see [2001] ELR 359, 390-1). An example might be a submission by the LEA that the Panel’s decision should not be such as to undermine the head teacher’s authority: such a proposition, unobjectionable on the face of it, may readily be perceived as an attempt to uphold an exclusion on inadmissible grounds.  Panels might usefully give attention to the layout and seating arrangements at their hearings, so as to avoid any impression that the LEA and the school are ranged against the pupil.
26.	It should not be supposed that errors of reasoning or due process can be explained away or marginalised by evidence if judicial review is sought. For reasons set out by this court in R v Westminster City Council, ex parte Ermakov [1996] 2 All ER 302 (and see Porter v Magill [2002] 2 WLR 37), it is not ordinarily open to a decision-maker who is required to give reasons to respond to a challenge by giving different or better reasons; nor to a decision-maker who has failed to give a fair hearing to assert that a fair hearing would have made no difference.
27.	Nothing in Schedule 18 determines the ambit of evidence which an Appeal Panel may admit. Its obligation is the ordinary one to entertain any credible material, written or oral, which is reasonably and fairly capable of affecting what they have to decide. Paragraph 27 of the revised Guidance is somewhat delphic about this important question. In particular it fails to deal with two things relevant to these appeals: the attendance of adult witnesses and the use of anonymised statements. Since any guidance on these matters will have to comply with the law, we set out our view of what the law requires. What we say relates to appeal panels only: as the evidence of the head teacher in Re T indicates, decision-making within the school may require separate consideration.
28.	While there are obvious public policy reasons for not ordinarily having children give evidence at Appeal Panel hearings, there is no such reason in the case of adults. The Panels have no power to compel witnesses, but in cases where there is a material conflict of evidence involving an adult witness, there is no legal reason why the witness cannot be invited to attend and be questioned, and a number of reasons in some cases why their attendance may help the Panel to come to an informed conclusion. If such a witness declines to come for a reason which the Panel finds acceptable, well and good; if for no reason or an unacceptable one, the Panel is entitled to draw whatever inference seems sensible in the circumstances. There is and can be no rule, and no guidance suggestive of a rule, that adults’ evidence should be taken only in written form, but panels are perfectly entitled to refuse to allow confrontational cross-examination of witnesses and to require questions to be put by or through the chair. We have not been asked to embark on the precise logistics of the process, but we would observe that the need to avoid adjournments requires forethought on the part of parents, the Appeal Panel and the LEA about asking witnesses to attend. It would be wrong for head teachers to have a rule against allowing teachers to attend and wrong for Appeal Panels to have a rule against asking teachers to attend. It will be a matter of judgment in each case.
29.	As to anonymised witness statements, this court in R v Dunraven School, ex parte B [2000] ELR 156 pointed out that elementary fairness requires the pupil and parent to know in some adequate form what is being said against the pupil; to know if the source has been inconsistent; and to have access to all relevant material to which the decision-maker has access.  The court endorsed the checklist given by Wood P in Linfood Cash and Carry v Thompson [1989] IRLR 235 (to which reference should be made in its full form). These principles do not directly answer the problem of witness statements which are disclosed but are shorn of evidence of authorship, but they offer pointers. There may be very good reasons, especially in cases involving bullying, for anonymising such statements, but the injustice of using them may be even greater than the injustice of not using them. Appeal panels (and Governing Bodies too) should be prepared to disregard anonymised statements of evidence if they are damaging to the pupil in ways which the pupil cannot be expected to deal with without knowing who has made the statement.
30.	It is necessary, finally, to return to the question of the applicability of the European Convention on Human Rights. The appellants no longer seek a declaration of incompatibility because they contend that the statute can and therefore should be read down so far as necessary in order to comply with the Convention. As to the applicability of article 6, there may be difficulties, in the light of the present jurisprudence of the Strasbourg court, in holding that a school exclusion Appeal Panel is a body which determines a pupil’s civil rights, whether to education or to reputation. There are also undoubted difficulties of non-retroactivity created in two of the present cases by the construction placed upon s.22(4) by the House of Lords in R v Lambert [2000] 3 WLR 206 and R v Kansal [2001] 3 WLR 1562; cf., however, Preiss v General Dental Council [2001] 1 WLR 1926, §21. But let us make the perfectly tenable assumption (cf the impressively reasoned decision of Stanley Burnton J in Husain v Asylum Support Adjudicator (CO/105/2001; 5 October 2001)) that domestic human rights law, and arguably the ECHR’s jurisprudence too, will today regard at least the right not to be permanently excluded from school without good reason as a civil right for article 6 purposes. Does the LEA’s permitted role vis-à-vis the appeal panels then compromise the independence which article 6 guarantees?  Once that role is understood and restricted as the ordinary process of statutory construction requires, and as we have sought to spell it out above, the answer is no. Exactly the same is true of ministerial guidance: the possibility of its trenching on the independence and impartiality of Appeal Panels is negated by law because, for reasons we have given, the power to issue it is governed by the statutory purpose of creating and maintaining independent and impartial local tribunals. 
31.	It remains to decide, therefore, whether the LEAs and the Secretary of State, insofar as their respective interventions and guidance have materially impinged on the present cases, have exceeded their lawful powers. One potentially indicative piece of evidence about the effect of the revised Guidance, the statistical results of exclusion appeals since its promulgation, is not yet available to us. We are told that the first figures will be ready in May 2002. They may turn out to have a practical bearing on an issue on which we can for the present only make an educated guess.
The validity of paragraphs 17 and 18 of the Guidance
32.	We see nothing in the contents of these paragraphs which, properly understood, goes beyond the statutory powers of the Secretary of State. The guidance they contain is not legally objectionable so long as it is kept within the decision making framework we have described. Making fair allowance for presentation, the Guidance does not trench upon extraneous policy issues. Nor does it require Panels to reach a particular answer in a particular case. The word ‘normally’ is to be understood as making it clear to Appeal Panels that, albeit in the light of the Guidance,  they always have an independent judgment to make.
33.	We turn now to the three individual appeals. 
Re S
34.	This case concerns the permanent exclusion of a 16 year old boy with a troubled background. It is common ground that, although re-instatement is not now a possibility, this appeal should proceed. He wishes to clear his name. The Secretary of State wishes the court to express its views as to the legality of the Guidance which she has issued.
35.	The background facts are set out in paragraphs 1 to 5 of the judgment of Scott Baker J. They are as follows:
“1.	This case concerns the exclusion from school of S. S is 16. He has a sad background. His parents separated early in his life, and both of them ended up serving prison sentences. S was taken into the care of the London Borough of Camden. At the age of 2, he was placed with his maternal grandparents under a residence order. He did well at primary  school and in September 1996 started at Wembley High School. Matters were satisfactory to start with, but then he became unhappy. He was involved in fights and he was bullied.

2.	In October 1999, S’s mother died at the age of 32, of a heart attack. He was devastated. His grandmother discussed the situation with Ms Easter Russell, the exclusions officer for the London Borough of Brent. They agreed that it would be a good plan if S moved schools, and he moved in January 2000 to the John Kelly Technology College for Boys. At first this resulted in a big improvement for S, but the improvement did not last. He was the subject of two temporary exclusion orders, the first from 10-16 May 2000, for verbally and physically threatening a teacher and a student; the second between 14 and 19 September 2000, for similar conduct.

3.	Then on 2 October 2000 occurred the incident that led to the permanent exclusion which is the subject matter of this case. The incident involved a boy called C. It began with paper darts being thrown and, apparently, the claimant being threatened with a lighter. The next thing that happened was that C stabbed S, the claimant, with a pencil, and this drew blood from his stomach region. There followed a fight, in the course of which S stabbed C with a screwdriver. Teachers intervened to try and get the boys to stop. S would not stop, but the other boy did. As a result of this incident, the other boy, C, was given a fixed-term exclusion of 3 days, and S was  excluded permanently.

4.	The headmaster made that decision in S’s case on 9 October last year, and the decision was upheld on 1 November by the governing body. S appealed to the independent appeal panel of the Brent Council. His appeal was dismissed on 23 November last year. It is that decision that gives rise to this application for judicial review.

5.	For some time S has been supported by a charity called Turnaround, and indeed representatives of that charity helped him with the appeal.”
36.	S admitted the incident in his statement dated 3 October 2000 which we understand to be a statement that was before the headmaster, the Governing Body and the Appeal Panel.
37.	On 3 November 2000 the Clerk to the Appeal Panel wrote to S’s grandmother. That letter contained the following:
“The exclusion appeal will be heard by an independent appeals panel made up of a LEA appointee who is somebody with knowledge of education conditions in the area and two lay members. John Kelly Boys Technology College will be represented by the head teacher and the chair of the governing body of the school. The Clerk to the Appeals Panel (myself) will be present to take a record of the meeting and also a legal adviser to ensure that the procedure is followed correctly.

The procedure that will be followed at the appeals hearing is listed below: 

•	the case for the school;
•	questioning of the school by the parent or pupil;
•	representations by the governing body;
•	questioning of the governing body by the parent or pupil;
•	representations by the LEA;
•	questioning of the LEA by the parent or pupil;
•	the case for the parent or pupil;
•	questioning of the parent or pupil by the school, governing body and LEA;
•	summing up by the school;
•	summing up by the governing body;
•	summing up by the LEA;
•	summing up by the parent or pupil.

Finally when the case has been heard, all parties, except for the legal adviser and the Clerk will leave the meeting and the panel will make a decision. I will contact you the following day to inform you of that decision, and confirm this in writing the same day. A letter will also outline any further action that you need to/and take.”
38.	The written submissions put before the Appeal Panel on behalf of S contain the following:
“Here we have a bright student that was in the top ten in his school and due to a fight between two students S could stand to lose everything that he has struggled against all the odds to achieve MEANING TO BE A SUCCESS, TO SHOW HIS FATHER WHO IS A JAILBIRD THAT HE HAS CHOSEN A BETTER LIFE FREE FROM CRIME AND OTHER DEVICES.

I am not saying that S should not have been excluded, the two boys were guilty equally the other boy held a fire to S’s face and then stabbed him in his stomach where he also sustained an injury. It was at this point that S retaliated, (S then left the school grounds because he was always told by Mr Ball if he is not around it is best to walk away and cool down) BUT THE SANCTION OF PERMANENT EXCLUSION IS TOO HARSH A PUNISHMENT IN COMPARISON TO WHAT THE OTHER PUPIL RECEIVED. He only got a fixed term exclusion and is long back in school? This is not in line with DFEE circular 10/99 laid down by the Secretary of State guidelines.

MITIGATING CIRCUMSTANCES 

S has lived with his gran since he was a toddler because his mum was a drug user. He has had a lot of back and forth episodes between different households. A few months before his mother passed away she wrote to him asking to see him, he refused this visit.  UNFORTUNATELY SHE DIED OF A HEART ATTACK LAST OCTOBER S went to pieces.

The date of this last incident was the first anniversary of his mother’s death.........

When I asked him if he wanted to return to school and sit his exams he stated “MORE THAN ANYTHING ELSE IN THE WHOLE WORLD IT MEANS EVERYTHING TO ME”.

I hope the Panel find it in their heart to give this young man a chance to be a real success and move on to repair the setbacks that he has had.”
39.	The minutes of the hearing before the Appeal Panel contain the following:
“The LEA officer, Ms Russell was invited to make her representation:

ER: Ms Russell stated that she had initially met S at Wembley High School and that his move to John Kelly Boys had not been a technically managed one because S had not been permanently excluded. It was explained that S had been involved in an incident with his Head of Year, which could not be resolved, and therefore admittance to John Kelly College was perceived as the best course of action to follow. 

The meeting was informed that S had experienced many emotional difficulties and was presently living with his  grandparents. She also confirmed that S had refused any form of Counselling sessions and therefore, the option of referral to Mentoring Plus was seen as the best possible course of action.

Ms Russell expressed her concerns of S being excluded during the period leading up to his mock exam, especially as S had been very eager to sit all of his eight GCSEs. She pointed out, that the other alternatives available for S were five GCSEs at the PRU or a vocational course at NW London College.

Ms Russell stated that she recognised the difficulties imposed upon the college in trying to balance the needs of the school community with what was right for S.”
40.	The notes of the hearing before the Appeal Panel also record that Ms Townsend on behalf of S’s grandparents said this:
“Background information regarding S’s emotional circumstances was stated about his parents and facts relating to the anniversary of S’s mother’s death coinciding with the date that S was involved in the exclusion incident were highlighted. Character reference provided by the Sergeant of the Cadet Group was also distributed to the Panel which reflected the hard working honest and determined attitude that S displays. S attends the cadet group on a voluntary basis at least once a week.”
41.	Those notes also record that Samantha Banton (of Mentor Plus) stated:
“S had been making good progress at Mentoring Plus and regularly attended the project where he had formed good relations with others.”
42.	It is common ground that in this case, and Re T  that the Clerk remained with the Appeal Panel when they discussed and reached their decision and it was the Clerk who wrote the Appeal Panel’s decision letter.  We understand that this is common practice and that often (but not always) the Clerk is an employee of the LEA and if a Clerk or an Appeal Panel wants legal advice it is generally sought from the legal department of the LEA.
43.	In paragraphs 25 and 26 of his judgment Scott Baker J refers to and cites  passages from the decision letter. The letter is dated 23 November 2000 (the hearing having been on 20 November 2000).  Naturally this letter is important and includes the following:
“The panel considered first the evidence of the alleged incident for which S was permanently excluded. The assistant head teacher of John Kelly Boys Technology College, Mr Lynnes, presented evidence that S had shown serious actual violence towards another student of the college, causing injury. The Panel also heard evidence from S stating his version of the events. The Panel found that S had behaved in the way set out in the exclusion document and its attachments. Misbehaviour was seriously disruptive and a danger to S, other students and staff of the college. The Panel felt that the college had taken measures to avoid the need of permanent exclusion, especially with regard to the short period of time that S had been a pupil at the college, but the nature and outcome of the behaviour displayed by S was serious enough to warrant permanent exclusion. In arriving at this conclusion, the Panel had particular regard to the duty of care held by the college towards other students and staff in accordance with the guidelines stated in circular 10/99 Annexe D (paragraphs 17 & 18) from the Secretary of State.
The Panel made a number of points about the evidence presented:-
 (a)	The Panel took the view that the college had tried to implement an appropriate Pastoral Support Plan, but had found it difficult to do so to the full, due it seemed to S’s lack of co-operation. More significantly, the short period of time that S was in college, hindered the college from adhering to and implementing effective Pastoral Support guidelines. However, the Panel felt that further effort by the school to pursue this strategy may have proven beneficial to all parties concerned.

(b)	The Panel also considered the other strategies implemented by the college to support S in response to his previous misconduct and decided that a range of strategies had in fact been tried, including mentoring, report monitoring to control behaviour, support sessions, case conferencing, referral to the Exclusions Officer and temporary exclusions. Counselling sessions offered by Mr Young to control temper outbursts and bereavement counselling offered by Ms Russell were declined by S. The Panel were satisfied with this response.

(c)	It was stated by your representative, Ms Townsend, that the behaviour displayed by S deteriorated upon his personal mentor taking sick leave, and no other alternative support was provided. Mr Young replied that it was at this stage that the Pastoral Support Plan was suggested and in addition both himself and Mr Lynnes, (who was also S’s form tutor) had offered an “open door walk in policy” whenever S felt the need to talk to someone or to have someone listen. The Panel agreed this was sufficient provision.

(d)	Ms Townsend also expressed concern that the college had not maintained regular contact with the Mentor Support Group, to review the progress made by S. The Head responded that as Ms Russell was responsible for the referral, progress regarding S’s case was discussed during meetings held between himself and Ms Russell which the Panel accepted.

(e)	The Panel considered whether there was any issue of unfairness arising out of the way the other pupil involved in the incident was dealt with, especially as the other pupil had used a cigarette lighter during the incident . The Panel heard evidence from Mr Young that during the incident, the other pupil had responded to the teacher’s request of stopping the dispute and had walked away from the scene. However S had continued with his disruptive behaviour. Mr Young advised that the other pupils mitigating circumstances, inappropriate for discussion, at the hearing were taken into consideration. The Panel were satisfied with the evidence presented by the college.

(f)	Concern was also expressed by S at not being allowed to sit his mock exams, especially when another pupil who had also been excluded had been allowed admittance. However this particular pupil had only been temporarily excluded and had previously made arrangements to sit the mock exams. The Panel accepted that the rules governing permanent exclusion  prevent permanently excluded pupils from having any access to the college.”

Taking into account all the above factors, the Panel concluded that permanent exclusion was the most appropriate sanction given the very serious nature of this incident. In view of the facts presented at the hearing, the Panel wished to convey their sympathies towards S’s personal circumstances and wish him every success for the future.”

Mr Young is the head teacher and Mr Lynnes is a teacher.
44.	The question then arises whether the Appeal Panel treated its discretion as fettered by paragraphs 17 and 18 of the Guidance. The Panel clearly took those paragraphs into account. It was obliged to do so. In our judgment, however, there is nothing in the decision letter which justifies the submission that the Panel treated its decision as being either dictated or constricted by the Guidance. Nor is there any separate evidence which leads us to such a conclusion. The judge referred to a statement by the chair of the Panel to the effect that they did not regard their discretion as fettered. It may well be in the light of Ermakov that this statement ought not to have been admitted, and our conclusion is unaffected by its contents.
45.	We have considered whether the representations of Easter Russell were in any way improper. As the judge points out in paragraph 20, and as was borne out by the evidence before him, the role of the Exclusions Officer is a varied one. As to this the judge referred to her statement in these proceedings and quotes part of the first paragraph thereof as follows:
“I work closely with schools and families with regard to children who are at risk of permanent exclusion, attempt to promote good practice in schools and help liaise with the external agencies where requested to do so by School. After a permanent exclusion has taken place, I endeavour to work closely with the child and his/her carers to try and secure a smooth transition into suitable alternative education. I also attend Independent Appeal Panels (i.e. IAPs) to convey any comments that the LEA may have. I am one of three Exclusions officers currently employed by the Brent Council, although at the time of the IAP in this case, I was working alone in that role.”
46.	We were referred to a number of documents. The first was the letter from the headmaster informing S’s grandparents that he was being permanently excluded. That letter refers to the meeting of the Governing Body to consider the headmaster’s decision.  It also says that the grandparents can contact the Exclusions Officer for further advice on the exclusion process and gives the relevant address and telephone number. The next document was the letter recording the result of the meeting of the pupils’ committee of the Governing Body. This letter is dated 1 November 2000 and ends with a paragraph explaining that S and his grandparents have the right to appeal against the decision to an independent Appeal Panel to which they can make oral and written statements and saying that if they wish to do so they should contact the Exclusions Officer.
47.	In our judgment nothing has been produced which suggests that what was said or done by Easter Russell , or anyone else on behalf of the LEA, was in any way improper. Her submissions were directed to giving the Panel information it needed: in fact she seems to have concentrated on emphasising the points which could be made against exclusion.
48.	The Appellant (S) asserts that the decision letter makes no express reference to S’s mitigating circumstances. 
49.	It seems to us that the reference in the last quoted paragraph of the decision letter to S’s personal circumstances is a reference to the fact that S was a 16 year old boy with a troubled and difficult background.  Further the points made in subparagraphs (a) to (d) reflect that the Appeal Panel were fully aware of, and were having regard to S’s difficulties which clearly  founded the grounds of his appeal as set out in the letter dated 15 November 2000 to the Clerk to the Appeal Panel from the Turnaround Project   These grounds were as follows:
“That S was not offered a Pastoral Support Programme with targets
That S was not placed on report
No adequate therapeutic support was offered
A lack of appropriate and consistent  support from Senior Management/Year Co-ordinator/Form Tutor.”

50.	We are not persuaded that the decision of the Appeal Panel is vitiated by any of the matters alleged on behalf of S. It is clear that they had the mitigating factors before them, and while they might have addressed them in terms, it would be wrong to infer from their not having done so, or from their conclusion, that they overlooked them. In the present case the issue is one of degree and not of kind. His appeal is therefore dismissed.
Re T
Re T : Background
51.	This case concerns the permanent exclusion of a 12 year old boy who following a warning for misbehaviour given in December 1999 was permanently excluded from school for misconduct on 24 January 2000. Paragraphs 29 to 31 of the judgment of Newman J are in the following terms:
 “The facts

[29]	T was excluded from school following a warning for misbehaviour on 5 December 1999 and for misconduct on 24 January 2000 in that it was alleged that he had attempted to attack a fellow pupil and had punched and pulled the hair of a teacher who had intervened in the situation. Two other teachers were present for all or part of the incident, as were the pupils. The pupil alleged to have been attacked by the claimant was a pupil who had special needs and no statement was taken from that pupil, but statements were taken from the teachers and from other pupils and from the claimant. It is not in dispute that very serious misconduct being in case, the standard of proof which was required was not that of the ordinary balance of probabilities. It had to be shown that it was distinctly more probable than not that the claimant was involved in the incident (see Brooke LJ in R v Head teacher and Independent Appeal Committee of Dunraven School ex parte B [2000] ELR 156).

[30]	Mr Rawlings submitted that fairness required that the claimant’s mother should have been given an opportunity to question the teacher, whom it is said the claimant attacked, or the other two teachers who gave witness evidence on the basis of which the claimant was permanently excluded from the school. The claimant’s case involved the contention that he had been provoked by the alleged victim and it was submitted that inadequate scrutiny had been given to this aspect of the case.

[31]	It is not the law that in all cases where the facts underlying an exclusion from a school are disputed it is necessary to call the witnesses of fact so as to enable the excluded pupil’s representative to question those witnesses. The fundamental principle which was upheld in the case of Dunraven was that the pupil, through his or her parent, had a right to be heard. For that to be worthwhile the parent had to be supplied with the material and statements, not that the witnesses themselves should be available to be questioned. It is to be noted that the Department for Education and Employment guidance  (Circular 10/99) does not require the calling of witnesses. All the relevant information was disclosed to the claimant’s mother before the hearing and no particular feature of the case has been drawn to my attention which compels one to the conclusion that it was necessary in the interest of fairness for the IAP to permit cross examination of the teachers involved. The IAP had before it an evidential basis for concluding as it did, and I am simply not persuaded that any unfairness appears.”

52.	As those paragraphs show a central issue in this case was, and is, whether T’s mother should have been given an opportunity to question the teachers. Two matters thus arise for consideration: 1. What attempts she made before the Appeal Panel to secure such an opportunity; and 2. The extent and nature of the factual dispute about which she might have wished to question the teachers.
53.	Although originally the mother was anxious to secure the presence of at least some of the children who complained that they had been bullied, before us the only complaint related to her inability to get the teachers, in particular a Ms Foster, to attend. The documents before us contain statements by the two teachers involved in the incident namely Mr McManus (the class teacher) and Ms Foster (the Head of Drama for whom Mr McManus sent). Both of the statements are dated 24 January 2000, which is the date of the incident. We shall return to their content later. We look first at the material indicating attempts by the mother to secure the presence of the teachers.
54.	Mrs T was shown their statements at a meeting she had with the head teacher on 27 January 2000. She asked if she could speak directly to Ms Foster and the head teacher agreed to her doing this.   In her witness statement for these proceedings Mrs T says that (i) she questioned the accounts of the teachers, and said they were insufficient, (ii) she found Ms Foster to be aggressive, (iii) raised the point that Ms Foster had provoked T by saying “he thought he was hard” and that Ms Foster did not deny that she said this, (iv) her exchanges with Ms Foster became quite heated and (v) after Ms Foster had left she asked for statements from all the pupils in the class and the teachers who came to remove T.
55.	On the following day, in a letter to T’s mother the headmaster said (amongst other things) the following:
“It is with much regret that I write to you about your son T. On Monday 24 January 2000 T was involved in an extremely serious incident involving an assault on a member of my staff.

During his music lesson T went up to another pupil in the class and grabbed her round the neck starting a fight. The class teacher called for assistance. When the head of Drama arrived to assist she told T to take his hat and coat off; when he refused, she removed his hat. At this point he appeared to lose control, pulling the teacher’s hair, punching her and making very offensive remarks. The teacher had to restrain T physically by holding him away from her until two other teachers came to take T to the TSU. 

T denies many of the events above. However, I spoke to both members of staff a few minutes after the incident. They were both quite shocked and independently recounted the events as I have recorded them. In view of the level of violence against a member of staff in my school I have no alternative but to permanently exclude T from Wembley High School from Friday 28 January 2000.”

56.	In the last paragraph of the letter the head teacher told T’s mother that she could make representations to the school governors and the Director of Education and that she could contact them if she wished. She thereupon decided to take this course.
57.	On 15 February 2000 the head teacher wrote to T’s mother informing her that the meeting of the Governors Discipline Committee would take place on 17 February 2000. That meeting was adjourned because T’s mother had not received any of the statements from the pupils and teachers she had requested at her meeting with the headmaster, or the behavioural management policy and T’s school record.  On 16 February 2000 she received copies of (i) the statements of pupils in the class, and (ii) the statements of Mr McManus and Ms Foster (which had been shown to her at her meeting with the head teacher).  This did not give her enough time to prepare for the hearing and it was therefore adjourned.  As we understand it the teachers who came to the classroom at the end of the incident did not prepare statements.
58.	The hearing before the Discipline Committee took place on 28 February 2000. T and his mother and their representative attended. In her statement prepared for the Judicial Review proceedings T’s mother says this about that meeting:
“The school stated their case first thereafter our representative stated our case. The head teacher was there on his own giving his representations and a representative from the LEA was also present, Easter Russell. Neither Mr McManus nor Ms Foster [the teachers] were present in order to give T and myself the opportunity to cross examine them. [J], the alleged victim, was not available for cross examination either. I found this to be extremely unfair as this did not give T the opportunity to put his case forward. I also found one of the members of the panel to be extremely arrogant in his line of questioning. It made me feel as though he had already made up his mind and had upheld the head teacher’s decision long before T was given the opportunity to give his version of events. He seemed to disregard all the evidence that was put before him and did not take into account that the main witnesses were not present. I also made it a point and mentioned this to the Panel that this was the first Panel hearing that I had been to where the main witnesses were not present.

I informed them that I too had sat on Panel hearings and that this was the first where something like this had happened. I also stressed the fact that I had not received any of T’s school records. When I questioned the head teacher about this he stated that he had received nothing from T’s previous school, Mitchell Brook and that as his term was so short at Wembley High School there were no records on him.”
59.	The head teacher says this in relation to the hearing before the Disciplinary Committee:
“I note that the applicant now complains that she was not given the opportunity to cross examine the teachers or any of the pupil witnesses. I would say that both myself and governors consistently apply procedures that are always being followed in meetings with parents of excluded pupils and the governors’ disciplinary committee. The procedure is to provide written statements from relevant witnesses that form the basis on which the decision to exclude is made. These statements were made available to the applicant and the governors. In fact, the appeal hearing was adjourned to enable the applicant to properly consider the witness statements. It has never been the school policy to allow cross examination of teacher or pupil witnesses in these situations. It is my view that pupils and parents will be most reluctant to be subject to cross examination in this way and in fact, many pupils insist on confidentiality when giving statements about incidents involving other pupils. Similarly, I do not have the authority to instruct members of staff to attend hearings and have their statements cross examined.”  	
60.	The chair of the Disciplinary Committee says this in a statement
“Doing the best I can to recall, [T’s mother] did during the course of the hearing, express some concern as to the absence of any witnesses at the hearing. I replied that the committee does not normally call for oral evidence, but relies solely on available witness statements. In my experience I have never had witnesses present at these hearings for the purpose of giving evidence. To my knowledge guidance from the Secretary of State does not include a requirement for witnesses to be physically present to give evidence, and I foresee difficulties if schools adopted a practice of calling witnesses. The school has never had a policy of calling witnesses for an exclusion appeal. It is felt that many pupils would feel intimidated by this and would therefore be unwilling to give statements. Staff can not be instructed to attend. Although I do remember that a question was asked about why there were no witnesses present, I do not remember whether it was [T’s mother or her representative] who brought it up. It was explained that this was not the normal procedure for such a hearing. There was an expression of surprise at this but the point was not pressed.”
61.	On 23 March 2000 the Clerk to the Appeal Panel wrote to T’s mother notifying her of the date and venue of the hearing before the Appeal Panel. Unsurprisingly, because it also comes from Brent, this letter mirrors almost exactly the equivalent letter sent in Re S .
62.	In her witness statement in support of the application for judicial review T’s mother deals with the hearing before the Appeal Panel on 30 March 2000. She points out that she had no representative at that hearing but decided to represent T herself as she felt confident enough to put his case forward to the Appeal Panel. Her statement contains the following:
“Easter Russell was present but did not assist me as she was sitting on the side with the school and did not help T’s situation.”

“I also challenged the colloquial term that Ms Foster used in asking T whether he thought he was “hard”. This was a clear provocation, it was not surprising that it resulted in an argument or physical/verbal fight. The head teacher defended Ms Foster’s use of the colloquial expression in that he stated that that actually defused the situation. I could not understand how such a provoking sentence could have defused the situation and if that was the case why did she go on to snatch T’s cap from his head.”

“My main line of questioning was how much training each member of staff had received in relation to behavioural management of pupils and if they receive it how often is it given to them. I wanted to know whether members of staff are given restraining technique training. When I posed these questions to the head teacher he avoided giving me a direct answer and disregarded the main issue that I was trying to get at.”

“I again questioned the absence of Mr McManus, Ms Foster and [J] and the head teacher informed me that the written statements were sufficient although [J] never made a statement.”

“I was surprised that the LEA representative, Easter Russell was allowed to make representations in favour of the school’s decision to permanently exclude T. I was aware that the LEA’s representative are given the right to make general representations at the hearing but did not think it was appropriate to allow her to make representations in favour of any party as this appeared to prejudice T’s opportunity to have a fair hearing.”
63.	The chair of the Appeal Panel says this in relation to the complaint that the teachers were not asked to be present:
“To the best of my recollections [T’s mother] did not complain about procedural defects to us. She simply stated her case, and in closing read out a prepared statement. ”
64.	During the hearing before us we were furnished with a copy of the handwritten notes of the hearing before Appeal Panel. It contains no reference to any request before the Appeal Panel to call the teachers before the Panel for the purpose of cross-examination.
65.	Our conclusions as to the attempts made by T’s mother to secure the attendance of the teachers. Doing the best that we can with the material before us, none of which was the subject of cross-examination in the judicial review proceedings, we have concluded that the situation was probably as follows. T’s mother wished to have the opportunity to question Ms Foster. She made that clear to the head teacher who allowed her to do it in January. She repeated that request to the Disciplinary Committee in February but they did not accede to it. She mentioned it to the head teacher probably before the Appeal Panel hearing in March. He probably made it clear to her that he was opposed to making teachers available for such a hearing, and we think it probable that she consequently did not ask the Appeal Panel either before or during the hearing that they should request the teacher to come.
66.	Before the Appeal Panel were a number of documents and statements amongst which the following are significant in the present context. We refer where appropriate to Mrs T’s annotations on those statements as indicating her line of proposed questioning.
67.	An incident report prepared by the head teacher and dated February 2000. This contains the following:
“1	 REASONS FOR THIS EXCLUSION 

(a)	In what way has the pupil breached the school’s behaviour policy or broken the law

T physically assaulted a member of staff in a violent and uncontrolled manner. A member of staff had gone to T’s class following his assault of another pupil  in the group. During the assault on the teacher he made very offensive remarks. This incident follows a previous incident when T grabbed a teacher’s arm. Following that incident T was warned that the school could not tolerate a further “incident of this nature”.

The annotations made by Mrs T on this document are as follows:

“T has clearly stated that he did not assault this pupil and he was trying to restrain her from hitting him as she was threatening to hit him and stab him following a verbal altercation. T denies assaulting Ms Foster and is adamant that Ms Foster physically assaulted him by grabbing him by his tie/collar (at the front) and shoved him out of the classroom shouting at him “so you think you are hard?” and continued to push him around and down the stairs.”
The incident report continues as follows:
“(b)	Please explain how allowing this pupil to remain in school will be seriously detrimental to the educational welfare of the pupil or of others in the school.

A school cannot function in a calm and orderly manner unless pupils understand that the authority of teachers must be respected and in particular teachers must never be assaulted. When T first crossed this boundary by “grabbing” a teacher’s arm, he was given a second chance. Now that he has been involved in a much more serious assault, his continued presence in the school represents a risk to the welfare of both teachers and pupils.”

68.	The annotations made by Mrs T to that part of the report are as follows:

“T and I were told by the head teacher that he had punched Ms Foster and that she had sustained bruises. T has never been a threat to pupils and has constantly complained to myself and teachers about the other children’s constant harassment.”
69.	The statement of Mr McManus is in the following terms:
“Red laser light shone, I stopped class and no one to leave until light was handed in. [J] told [A] was the one, T jumped up and attacked J for telling, grabbing her by the throat. I sent D to get [Ms Foster]. I split them up. Then Ms Foster came in and I explained the situation and T started being rude to Ms Foster and she told him to put his coat and bag down as he insisted on leaving against my wishes. The class remained seated during the break until the laser was handed in. Ms Foster took his hat off and he lunged and attacked Ms Foster pulling her hair and punching her face becoming wild with aggression. Ms Foster had to restrain him by holding him away from her, gripping his jacket. At NO stage did Ms Foster strike T as he was throwing himself around. 
The aggression continued for about 5 - 10 minutes until other teachers arrived.
T verbally declared that he did not care at any consequences for his actions and insulted us the whole time.
T taken to boys gym by Ms Kamala and Steve Dockray.”

The annotations on this statement are:
“Did an argument ensue? What was said.........child.  
Where did this continuous aggression occur as Mr McManus remained in the classroom.”

70.	Ms Foster’s statement is as follows:
“A pupil came to the drama studio at the beginning of break to inform me that Mr McManus needed me in the music studio ASAP. As I entered the studio T and J were shouting at each other both being restrained by their friends. As Mr McManus explained what had happened earlier (a laser had been shone around the room) J informed [Mr McManus] that it was ....T. Then attacked J (for informing). T was rude throughout saying he didn’t care about what Mr McManus had said (he had put on his hat and coat earlier). I told him to take off his hat which he didn’t. I then pulled it off his head. T then grabbed his hat back in the process punching me a few times and continually saying that he did not care. I grabbed hold of his jacket trying to keep him at arms length from me. Throughout I was verbally abused, my hair was pulled and my arm was twisted. Minette Kamala then took me up to the art block.”

71.	The annotations on this statement are as follows:

“Into the wall - pushed down the stairs - until teacher came to Ms Foster’s aid. Had asked him if he felt if he was hard - advised this is true on 27 - 1 - 00. If he had been attacking Ms Foster - why wasn’t she “helped” by Mr McManus and both restrain him and not pin him to the wall instead of leaving her to deal with the matter on her own - was it felt that Ms Foster would handle the situation on her own.”
72.	There is also a statement dated 24 January from T. That statement contains the following (with our emphasis):
“My music teacher said there was a laser.  He told us to give it to him. [J - a girl in the class] said that [A - another boy in the class] had it.........I said he didn’t have it then [J] tried to hit me. I stopped her and tried to restrain her. She started crying...... I said if [A] had it people would have seen especially [Z – another girl in the class] as she was as close to him as I was. She said she did not see him with the laser and so did the rest of the class. Then the teacher called Ms Foster another teacher and Ms Foster started throwing me about and into the piano the door and the table when it was [J] that was angry. Then I told her to get off me and to stop strangling me because I couldn’t breathe properly. Then I said why are you doing that if you are trying to do me something, she said I will and threw me down the  stairs and pinned me on the wall and she started lying to the teachers saying that she had been punched and she never wanted to be punched again then some teachers called Mr Dockray came talked with me then said to go up to TSU to write a report and go to my next class.
PS also when I was in my lesson both teachers were mocking me imitating me in ridiculous ways to try and make the class laugh.”
73.	There were a dozen statements from other members of the class. Only one of them bears a date and that is 28 January 2000. None of them identify the author. These statements confirm that during the class one of the pupils was using a laser pen and this caused the teacher, Mr McManus, to state that if the culprit did not own up or was not identified the class would have to stay in during their break period. The statements also show that (i) T and J were at the centre of the exchanges that took place concerning the use of the laser pen, (ii) T stated that he was not going to stay in during break and (iii) Mr McManus had sent out another pupil to ask Ms Foster to come to the class to help him. 
74.	Six of the statements refer to a fight between T and J.  Two of those refer to T strangling J and two describe T as the aggressor. None of them accord with T’s account that he was attacked by J and was trying to hold her off. 
75.	The majority of the statements also all confirm that there was a confrontation between Ms Foster and T which was followed by what many of them describe as a fight during which T punched Ms Foster and pulled her hair. Some of the statements from the pupils also indicate that at one stage Ms Foster began to swing T round and that the physical contact between them took place inside the classroom and also outside the classroom.  
76.	None of the statements from the pupils support T’s account that he was physically attacked by J and Ms Foster. But they do confirm that there was violence between T and both J and Ms Foster and where they deal with who was the aggressor they support the accounts given by the teachers.
77.	There is therefore common ground between all the statements that (i) there was an incident in the classroom relating to the use of a laser pen, (ii) T was at the centre of the arguments that ensued concerning this incident and was refusing to stay in over break,  (iii)  Ms Foster was summoned to the classroom to assist, and (iv) what can fairly be described as a fight took place between Ms Foster and T.
78.	Easter Russell on 21 March 2000 made a statement which was placed before the Appeal Panel. It was as follows:
“T was referred to me by Wembley High School in December 1999 during his first term at the school as he had been given a fixed term exclusion. Before returning to school, T and his mother came to the school for a meeting with myself.

At that meeting the head teacher made it very clear to T that, in school, there was a need for all pupils to co-operate with teachers so that the safety of all could be ensured. Although his mother supported Mr Shew (the head teacher) in this, T did not seem to understand why this should be the case. 
However he was able to return to school for a fresh start.

In the new term, the school concern about T was such that a pastoral support programme was being considered, but this was overtaken by the events that led to T’s permanent exclusion.

It is the view of the LEA that this incident was serious enough to warrant permanent exclusion, following as it did on the similar incident last term. Schools need  to consider not only the best interests of each individual child but also the  effect of any incident and its consequences on the rest of the school community, both pupils and teachers.”

79.	The notes of the hearing before the Appeal Panel in relation to Easter Russell show that:
(a)	She was contacted around the time of the first incident.
(b)	When making her representations she explained her role was to avoid exclusion but if necessary to assist afterwards, and that she had been working with schools every week for the last two academic years.
(c)	During her representations she stated that she was concerned at T’s lack of comprehension of the need to co-operate with teachers and that during the new term (i.e. the January term) there was no visible improvement in fact the contrary and the incident with Ms Foster prevented further action.
(d)	She was questioned by Mrs T about a meeting on 9 December concerning  the importance of T coping with authority.
(e)	In answer to a question from Mrs T she said that she only became involved when it got serious.
(f)	In response to a question from Mrs T she said that many kids of all cultures would give rise to insults and in response Mrs T disagreed and made her points as to provocation.
80.	The notes on the summing up show that Easter Russell said that she was happy that the school was following guidance and establishing strategies, that this was a second serious incident but problems were still occurring in between.

81.	It is clear from a study of all the accounts that by the time Ms Foster arrived in the classroom there was a charged and heated atmosphere in which T was a, if not the, central player. 
82.	The stark difference between the accounts of the teachers and T is that the teachers both say that T attacked J (Ms Foster does so only by reference to what she was told and Mr McManus says that T grabbed her by the throat) and that T attacked Ms Foster who had to restrain him whereas T says that he was attacked by both J and Ms Foster.
83.	The factual issue, or potential factual issues, arising from a study and comparison of the various accounts is as to (i) who provoked the physical violence between T and J and who was the physical aggressor, and (ii) who provoked the physical violence that took place between Ms Foster and T and who was the physical aggressor. 
84.	During the hearing we were provided with a hand-written record of the hearing before the Appeal Panel.  Our understanding is that this was the record kept by the clerk.  It includes the following:
(a)	Notes of the evidence of the head teacher as to the incident on 24 January during which he refers to the statements from the teachers and the pupils 
(b)	Notes of the questioning of the head teacher by Mrs T in which the head teacher accepted that Ms Foster said words to the effect “so you think you are hard?”  Later in those notes it is recorded that the head teacher said that he had spoken to Ms Foster that day and she had said that she had used the word “bad” not “hard” and that teachers do remove pupil’s hats.
(c)	A note that the head teacher was asked by Mrs T why he had collected only 12 statements from the pupils and replied that there were various reasons and that he couldn’t force the children to write statements; the head teacher also confirmed that J had not written a statement 
(d)	 A note that during this questioning the head teacher was asked how much weight he placed on the pupils’ account and the note of the answer is as follows:
“Weigh all evidence. In this case evidence incriminates T two teachers and several pupils. T denies (as did in previous incident). T first time denied actions. Balanced these previous denials against all other evidence a pattern emerged overwhelming evidence that did. This I mean I take account. Is a case of his word against another. Never just assume each are correct.”

(e)	A note that during the presentation of Mrs T’s case she asserted that it was her case that T denied the allegation and that the situation was badly mishandled 

(f)	A note of the summing up by the headmaster in the following terms:
“Issues: What happened in incident? Maintains that would have to believe Ms Foster and Mr McManus lied and outrageously and that every student lying re both confrontations. Right to listen to evidence of pupils. Balance evidence that serious assault”
(g)	  A note of what T said to the Appeal Panel in relation to the incident. In particular he said that Mr McManus had picked him up and shaken him. He said that the reason why the other children said he had attacked the girl was because she was screaming and so people must have thought she had been attacked.
85.	The Appeal Panel hearing lasted for three and a half hours and the Panel considered the matter for a further 45 minutes before they came to a conclusion. The letter giving the reasons for their conclusion is in the following terms:
“Thank you for attending the hearing of your appeal against T’s exclusion from Wembley High School last night. The Chair of the Appeal Panel has asked me to write to you with the Panel’s decision.

The Panel has decided not to uphold your appeal and to instead endorse T’s permanently exclusion for the following reasons:

The Panel considered first the evidence of what T was alleged to have done and agreed that, on balance of probabilities, he had assaulted J and Ms Foster as alleged. The Panel considered your submission and TL’s evidence that J was the aggressor and that Ms Foster used a colloquial expression which she knew would inflame the situation. The Panel decided that the statements of the teachers and the children present did not support T’s versions of events. The Panel also accepted the head teacher’s evidence of the words used by Ms Foster to T and took the view that the words were not confrontational but were instead meant to calm him down.

The Panel also accepted the head teacher’s evidence  regarding the earlier incident involving violence to a teacher and it was agreed that the school have done what could be reasonably be expected, within the timescale, in response to T’s behaviour.

The Panel then went on to consider whether, taking into account all the relevant factors permanent exclusion was a reasonable response to T’s conduct. It was felt that the assaults on 24 January amounted to a serious incident involving violence for which a permanent exclusion could be given without the school being expected to have utilised the established range of alternative strategies, especially within such a short period of time. The Panel accepted the head teacher’s submission that the safety of other pupils and staff in the school required a clear message to be given about the unacceptability of violent behaviour.

The Panel also considered whether the exclusion was used in accordance with the Secretary of State’s Guidance. It was noted that the head teacher’s exclusion letter did not include a number of matters referred to in the guidance but the Panel felt these omissions were nor serious enough to affect their decision to endorse T’s permanent exclusion.

Taking into account all the above matters the Panel concluded that permanent exclusion is the most appropriate sanction. I am sorry that the Panel did not uphold your appeal however LEA officers will contact you to make arrangements for the continuation of T’s education.”

Re T : Conclusion
86.	As regards the allegation that the Appeal Panel treated its discretion as fettered we are not persuaded that it is made out. The position is in our view similar to that in Re S.
87.	As regards the fact that the teachers did not appear before the Appeal Panel, it is correct that the Appeal Panel did not invite them to do so. We have indicated in paragraph 28 of this judgment that there may well be occasions when it would be appropriate for the Appeal Panel to ask a teacher to attend and make himself or herself available for questioning, whether by the pupil’s representative or the Panel. However, in the context of the present case we do not consider that there was any failure of procedural or substantive justice. It was apparently not made clear to the Panel by Mrs T that she considered that justice required that she be allowed to ask questions of the teachers. If she had done so, it would have been necessary for the Panel to consider and decide upon that request; and also – if it was not made, as it needs to be, a sufficient time before the hearing – to decide upon any consequent request that the hearing be adjourned so that the teachers could be asked to attend. Nor do we consider that this was a case where justice self-evidently required the attendance of the teachers. In the circumstances we consider that it would not be proper to quash the decision of the Appeal Panel as being arrived at unfairly or therefore unlawfully. Consequently we dismiss this appeal.
Re P
88.	Turner J sets out the factual background in paragraphs 1 to 7 of his judgment. Those paragraphs are in the following terms:
“1.	This is an application for judicial review of the decision of the Oxfordshire County Council Exclusion Appeals Panel delivered by a letter dated 30 August last year.
2.	The case concerns a boy aged 13 who was excluded from school on 9 June 2000. The school is a mainstream secondary school maintained by the LEA in the county of Oxford.
3.	At the time of his exclusion, because of learning difficulties, an assessment of the boy’s special educational needs was being undertaken by the LEA under the provisions of section 323 of the Education Act 1996, with the possibility of him being subject to a statement of special educational need under s. 324 of that Act. No statement has yet been made. The process is still continuing.
4.	On 12 April 2000 the boy was given a warning as to his conduct in a letter written by the school to his mother in the following terms:
“I am writing to inform you that having investigated the incident involving [the boy] and a year 8 student, I can confirm that the boy did spray the student. A fact which [the boy] has denied. Consequently [the boy], if in school, would serve a days internal exclusion for his inappropriate actions. Under the circumstances we suggest that rather than [the boy] coming into school on Thursday (our last day) that he remain at home.
It has also come to light that [the boy] has been seen by students in school with an item which has been described to us as a knife. Again on making further enquiries we think this item is a replica or a toy. Can I urge you to ensure that [the boy] does not bring such items into school. I am sure you will appreciate that if [the boy] were to use this item in a threatening way the school would have to consider permanent exclusion.
Finally, both of these incidents will be recorded on the log which Mrs Adamson is maintaining and of which you will be receiving an updated copy.”
5.	That led to some dissent by the boy’s mother, who communicated by email to the headmaster, who wrote by return of email on 2 May:
“I am sorry that you were offended by the second paragraph of Mrs Roch’s letter [the one I have just read], but cannot myself see that it is inflammatory. Mrs Roch was reporting to you information which she had received which causes us concern and which we take seriously. We assumed that you would share our concern that [the boy] might have brought a knife (real or not) into school.
Since it is possible that the information is incorrect I will arrange for reference to it on the incident report to be deleted.
I am sure that you will share our concern that, true or not, pupils have reported this about [the boy].
I believe that the best way forward is for us to draw a line under the incident that occurred at the end of last term and attempt to make a new start. We will not therefore internally exclude [the boy] on his return.”
6.	However, on 9 June the exclusion which is the subject matter of the present application took place. The incident is described to have been one in which the boy threatened another pupil with a replica gun. The boy’s account was that he had brought the replica into the school because another pupil had offered to buy it from him but had denied threatening anybody with it.
7.	As a matter of history, the appeal was due to have been heard on 27 July 2000. The fact that the appeal was not heard on that day provides a twist to the matter which will have to receive consideration later in this judgment. It was because the head teacher was unable to attend the proceedings of the appeal panel on 27 July that the hearing was postponed until 30 August.”
The relevance of paragraph 7 of the judgment of Turner J is that he found that the relevant amendments to the Guidance given by the Secretary of State pursuant to s. 68(2) of the Schools Standards and Framework Act 1998 became effective from 1 August 2000. At and before the hearing before the Appeal Panel which took place on 30 August 2000 issues were raised on behalf of P as to whether the amendments applied. They are not pursued in front of us.
89.	Mr and Mrs P prepared typed representations for the Appeal Panel hearing. Considerable care was obviously taken over the preparation of this document which contains a number of points. Included amongst them are:
(a)	That the headteacher took his decision before he had considered all the evidence and that the incomplete evidence on which he based his decision was both flimsy and contradictory. That assertion was particularised in the submissions. Those particulars contained points that (i) the day prior to the incident P had been bullied and harassed by three older boys, (ii) P had brought the BB gun into school in order to sell it, (iii) the BB gun was broken, was taped together and had never been fired and indeed did not fire plastic balls and (iv) there were discrepancies in the accounts given by the other pupils.
(b)	That the head teacher’s decision to exclude P was not in accordance with clearly stated provisions of the school’s published discipline policy, that Mr and Mrs P did not believe that P seriously breached the school’s behaviour or anti-bullying policy and that they did not understand how the head defined a serious breach of behaviour policy given that the school’s policy is a list of behaviours  with no indication of penalties.
(c)	An assertion that permanent exclusion was too harsh a penalty, and
(d)	An assertion that the school had failed in its statutory responsibilities regarding P’s special educational needs.  The particulars given of this assertion included a point that a consultant child and adolescent psychiatrist had advised the school that P’s specific learning difficulties were contributing towards his behavioural difficulties.
This is a short summary of the able submissions made by Mr and Mrs P but it gives the flavour of them.
90.	Mrs P made some typed notes after the hearing before the Appeal Panel in which she made the following points, namely that:
(a)	at the start of the appeal she informed the Appeal Panel that the use of the new guidance may be unlawful but the Clerk replied that she had taken advice and wished to proceed under the new guidance,
(b)	Mrs P asserted that she considered the school policies to be unclear, the behaviour policy, for example, was a list of aspirations such as “be smart” and she posed the question whether this meant be smartly dressed or quick witted. She also pointed out that neither policy gave sanctions and asserted that the head teacher said that this was why a new discipline policy was being written,
(c)	there was clearly doubt over whether the Panel could proceed without a copy of the discipline policy and the head teacher had said that P had broken the anti-bullying policy which stated that “non verbal gestures which are meant to threaten and intimidate” is bullying, but that the policy made no mention of sanctions, and
(d)	later the chair of the Panel stated that a letter of 12 April to Mrs P from the Deputy Head made the school discipline policy clear and Mrs P’s  response had been that although it was a clear statement it did not constitute a discipline policy as it was not in force throughout the school, that she had objected to the letter and that the reason for writing it had been accepted by the head teacher as unfounded. Mrs P also referred to the offer from the head teacher to remove reference from P’s file to the incident that gave rise to the letter.
91.	The decision letter from the Appeal Panel is dated 31 August 2000 and contains the following paragraphs:
“The Appeal Panel noted your point that, in your view, the amendments contained in  DFEE circular 10/99 are as of 1 September 2000. However, the Appeal Panel followed the guidance as amended of 1 August 2000.

The Appeal Panel reached their decision having taken into account all the representations made to them both orally and in writing by yourself; Mr Lockyear, head teacher at G’s; and Mr Hayward, a nominated member of the Governing Bodies Discipline Committee.

The Appeal Panel was satisfied by the evidence given that on 9 June 2000 P took a gun to school and used it to threaten a pupil.

The Appeal Panel accepted that P’s behaviour did constitute serious breaches of the G school behaviour policy and established that a letter from G School to you dated 12 April 2000, made it clear that bringing an item into the school and using it in a threatening way would lead to permanent exclusion being considered.

The Appeal Panel also established that a range of strategies had been tried.

The Appeal Panel accepted that the other pupils involved in the incident were dealt with as described by Mr Lockyear, in accordance with school policy where a first offence takes place.

The Appeal Panel found that there was sufficient evidence that, by allowing P to remain at the G school he would seriously harm the education of other pupils.

The Appeal Panel noted that permanent exclusion had been used in accordance with the Secretary of State’s guidelines, DFEE circular 10/99.

The Appeal Panel, having considered all relevant factors, found that permanent exclusion was a reasonable response to P’s conduct and upheld the decision to permanently exclude P from the G  School and, therefore refused your appeal.

You are advised to contact Mr Pount, the Education Department’s Officer in this case, as soon as possible about the arrangements for P’s continued education.”
92.	As to the submission that the Appeal Panel treated the Guidance not as guidance but as something which prevented them from coming to any independent conclusion as to whether P should be re-instated, we do not accept it. That such was the approach of the Panel does not appear from a fair reading of the letter or from any other material which has been placed before the court. We do not accept that by saying that they had followed the Guidance the Panel were saying that they had let it alone determine the outcome.
93.	The account of the Appeal Panel's decision is written in the past tense. The words 'The Appeal Panel … found that permanent exclusion was a reasonable response' are capable of referring either to their own or to the school's decision. But if one relates the phraseology of the letter back to the Secretary of State's Guidance, it becomes apparent that the Panel are adopting the language of paragraph 16. That language is capable of indicating, at least to a lawyer, a perversity test which is inconsistent with the legally correct guidance spelt out in paragraph 15: the Panel's remit is to consider whether the pupil should be reinstated. But we do not think it fair to the Panel to infer that by using the language of paragraph 16 of the Guidance they were either applying a perversity test to the school's decision or limiting their own decision to a similar question. The fair reading in the particular context is that Panel had reached their own conclusion that this was a case for permanent exclusion.
94.	For the future, however, so long as this or similar guidance is in place, Appeal Panels should take care to avoid language capable of being misunderstood. They need to make it clear that their decision is their own and, if they uphold the school's decision, that it is because permanent exclusion is in their judgment the most appropriate outcome.
95.	This appeal is therefore dismissed. 
Order:
1.	The appeal be dismissed.
2.	There be an order for the costs of the appeal in favour of the Respondents and against the Appellant, with the determination of the amount (If any) that the Appellant is to pay under that order to be adjourned.
3.	The costs of the Appellant be assessed in accordance with the Community Legal Service (Costs) Regulations 2000
(Order does not form part of the approved judgment)

 APPENDICES
The School Standards and Framework Act 1998
64.	Power of head teacher to exclude pupils
(1)	The head teacher of a maintained school may exclude a pupil from the school for a fixed period or permanently.
(2)	..........
(3)	A pupil may not be excluded from a maintained school (whether by suspension, expulsion or otherwise) except by the head teacher in accordance with this section.

65.	Exclusion of pupils: duty to inform parents etc.

(1)	.......
(2)	.......
(3)	Subsection (4) applies where the head teacher –
(a)   excludes any pupils in circumstances where the pupil would, as a result of the exclusion –
(i)	be excluded from the school for a total of more than five school days in any one term; or
(ii)	lose an opportunity to take any public examination,
(b)	excludes a pupil permanently, or
(c)	decides that any exclusion of a pupil should be 
made permanent.
(4)	Where this subsection applies, the head teacher shall (without delay) inform the local education authority and the governing body of the following matters –
(a)	the period of the exclusion (or, if the pupil is being permanently excluded, that he is being so excluded), or
(b)	his decision that any exclusion of a pupil for a fixed period should be made permanent, 
and (in either case) of the reasons for it.
(5)	In this section and in sections 66 and 67 ‘the relevant person’ means –
(a)	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.
(6)	Where regulations under paragraph 4 of Schedule 11 require the governing body of a maintained school to establish a discipline committee, references  in this section and section 66 to 68 to the governing body of such a school shall be construed as references to their discipline committee.

66.	Functions of governing body in relation to excluded pupils

(1)	Subsections (2) to (6) apply where the governing body of a maintained school are informed under section 65 (4) of any exclusion or decision to which that provision applies.
(2)	The governing body shall in any such case –
(a)	consider the circumstances in which the pupil was excluded;
(b)	consider any representations about the exclusion made to the governing body –
(i)	by the relevant person in pursuance of section 65 (1) (c) or (2) (b), or
(ii)      by the local education authority;
(c)	allow each of the following, namely –
(i)	the relevant person, and
(ii)	an officer of the local education authority nominated by the authority,
 to attend a meeting of the governing body and to make oral representations about the exclusion; and
(d)	consider any oral representations so made.
(3)	.......
(4)	If the governing body decide that the pupil should be re-instated, they shall forthwith –
(a)	give the appropriate direction to the head teacher, and
(b)	inform the relevant person and the local education authority of their decision.
(5)	The head teacher shall comply with any direction of the governing body for the re-instatement of a pupil who has been excluded from the school.
(6)	If the governing body decide that the pupil should not be re-instated, they shall forthwith –
(a)	inform the relevant person, the head teacher and the local education authority of their decision and
(b)	in addition, in the case of a pupil who is permanently excluded, give the relevant person notice in writing referring to that decision and stating the following matters –
(i)	the reasons for the decision,
(ii)	his right to appeal against the  decision,
(iii)	the person to whom he should give any notice of appeal,
(iv)	that any notice of appeal must contain the grounds of appeal, and
(v)	the last date on which an appeal may be made.

67.	Appeals against exclusion of pupils

(1)	A local education authority shall make arrangements for enabling the relevant person to appeal against any decision of the governing body under section 66 not to re-instate a pupil who has been permanently excluded from a school maintained by the authority.
(2)	Schedule 18 has effect in relation to the making and hearing of appeals pursuant to arrangements made under subsection (1); and in subsections (3) and (4) ‘appeal panel’ means an appeal panel constituted in accordance with paragraph 2 of that Schedule.
(3)	The decision of an appeal panel on an appeal pursuant to arrangements made under subsection (1) shall be binding on the relevant person, the governing body, the head teacher and the local education authority.

68.	Exclusion of pupils: guidance

(1)	This section applies to any functions of –

(a)	the head teacher or the governing body of a maintained school,
(b)	a local education authority, or
(c)	an appeal panel constituted in accordance with paragraph 2 of Schedule 18,
 conferred by or under any of sections 64 to 67 and Schedule 18.
(2)	In discharging any such function, such a person or body shall have regard to any guidance given from time to time by the Secretary of State.

Schedule 18:

2(2)	An appeal panel shall consist of three or five members appointed by the authority from –
(a)	persons who are eligible to be lay members;
(b)	persons who have experience in education, are acquainted with educational conditions in the area of the authority or are parents of   registered pupils at a school.
(3)	Of the members of an appeal panel-
(a)	at least one must be a person who is eligible to be a lay member and is appointed as such; and
(b)	at least one must be a person falling within subparagraph (2)(b).
(4)	For the purposes of this paragraph a person is eligible to be a lay member if he is a person without personal experience in the management of any school or the provision of education in any school...
(7)	The following persons are disqualified for membership of an appeal panel-
(a)	any member of the Authority or of the governing body of the school in question;
(b)	any person employed by the authority or the governing body, other than a person employed as a teacher;
(c)	any person who has, or at any time has had, any connection   with –
(i)	the authority or the school, or with any person within paragraph (b) or,
(ii)	the pupil in question or the incident leading to his exclusion of a kind which might reasonably be taken to raise doubts about his ability to act impartially in relation to the authority, the school or the pupil in question.
[There are provisions for the LEA to pay allowances for members, to fix the dates of the hearing of an appeal.]

10(1)	The appeal panel shall give the relevant person an opportunity of appearing and making oral representations, and shall allow him to be represented or to be accompanied by a friend.
(2)	The panel shall also allow –
(a)	the head teacher to make written representations and to appear and make oral representations
(b)	the Local Education Authority and the governing body to make written representations,
(c)	an officer of the authority nominated by the authority and a governor nominated by the governing body, to appear and oral representations,
(d)	the governing body to be represented.

15(1).	Subject to paragraphs 7 – 14, all matters relating to the procedure on appeals shall be determined by the Local Education Authority.
18.	The Secretary of State may by order make such amendments of this Schedule as he considers expedient.

The Guidance

Circular 10/99 contained the following.

Chapter 6: The use of exclusion

Head teachers, governors, LEAs and exclusion appeal panel members must by law have regard to this guidance when deciding:

•	whether to exclude a pupil, for a fixed period or permanently,

•	the length of the exclusion,

•	(where applicable) whether to direct the head teacher to re-instate and excluded pupil.

This section must be read alongside previous sections covering steps that schools should take before resorting to exclusion.  See also Annex D which sets out the procedures which must be followed when exclusion takes place.

A decision to exclude a child for a fixed period or permanently should be taken only:

•	in response to serious breaches of a school’s discipline policy;

•	once a range of alternative strategies … have been tried and have failed; and

•	if allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school

6.1	Schools must maintain discipline and good conduct to secure an orderly learning environment so that teaching and learning can take place.  Schools will therefore need to adopt a range of strategies, including exclusion, to ensure they are providing a sound learning environment for all pupils.  But many pupils excluded from school never get back into education and risk exclusion from mainstream society later in life.  The number of exclusions from school is unacceptably high, and national and local targets have been set to reduce the number of school exclusions by on third by 2002.

6.2 	Only the head teacher can exclude a pupil from school.  Exclusion should not be decided in the heat of the moment unless there is an immediate risk to the safety of others in the school or the pupil concerned.  A decision to exclude a child should be taken only: in response to serious breaches of the school’s discipline policy; once a range of alternative strategies have been tried and have failed; and if allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or other pupils.

6.6	 A decision to exclude a child is a serious one. … The Secretary of State does not expect a head teacher normally to exclude permanently a pupil for a ‘one-off’ or first offence.

In Annex D to that document headed ‘Procedures for excluding a pupil’ we find the following guidance in relation to meetings of the Discipline Committee of the Governing Body.

12. If the pupil is still excluded when the meeting takes place, the Discipline Committee should decide whether to direct re-instatement.  In reaching their decision the Committee should:

•	Consider the parent’s and LEA’s statements;

•	have regard to the guidance on the appropriate use of exclusion in Section 6 of this document, and consider whether the head teacher had tried sufficient approaches to improve a pupil’s behaviour before resorting to exclusion, and whether any further strategies might be an alternative to exclusion;

•	for permanent exclusion, the Discipline Committee should satisfy itself that all possible strategies to improve a pupil’s behaviour were tried and have failed.  Strategies should include those in this guidance, including a Pastoral Support Programme.  For children with statement of SEN, revising the statement might be better than resorting to exclusion.

•	if the head teacher has not used exclusion in line with this guidance, the Discipline Committee should normally direct re-instatement.

On 21.1.2000 the DfEE amended this guidance.  It caused a letter to be written to “Chairs of Governors and Head Teachers of Maintained Schools in England” which contained the following:-

Following the publication of Secretary of State’s guidance Social Inclusion : Pupil Support … in July 1999, we have frequently been asked about the circumstances in which a pupil may be excluded from school … where the school has not previously tried a range of alternative strategies as set out in the document.  Whilst paragraph 6.6. of Chapter 6 (The Use of exclusion) states that children should  not “normally” be excluded permanently for a ‘one-off’ or first offence, the conditions for all exclusions set out in the preamble (and repeated at paragraph 6.2) do not contain the word “normally” and do not refer to any exceptions.  The Secretary of State acknowledges that there may be circumstances where for a serious offence, for example involving violence, it is not appropriate to apply the ‘prior alternative strategy’ test.  The relevant text of the preamble to Chapter 6 and of paragraph 6.2 should therefore be amended to read as follows:

“A decision to exclude a child should be taken only:

•	in response to serious breaches of a school’s policy; and
•	if allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school.

Before excluding a child, in most cases a range of alternative strategies such as those included in Section 4 should be tried.  This is not meant to prevent immediate action to protect pupils and staff, including fixed period exclusion.  A permanent exclusion can be given for a first offence, for example involving violence, but only when the head teacher has had further opportunity (not in the ‘heat of the moment’) to consider the incident in question.”

The expectation (in paragraph 6.6) that a head teacher would not normally permanently exclude a pupil for a first offence would not rule out permanent exclusion for a first offence, for example involving violence.  These judgments are rightly ones for the head teacher but permanent exclusion should continue to be used only as a last resort.  To reflect this, the third bullet point in paragraph 12 of Annex D of the guidance should read “for permanent exclusion, the Discipline Committee should normally satisfy itself, etc”.  We have today amended the text of the guidance on the Department’s website.

On 4.8.200 the DfEE replaced the Guidance on exclusion Appeal Panels which had been contained in the circular with a document of which the following are the paragraphs most presently relevant.

Procedure at the hearing

14. It is for the Appeal Panel to decide how to conduct the proceedings.  The Panel should do everything possible to make them informal so that all parties can present their cases effectively.  The appeal hearing should not be held at the excluding school.  Tape recording the proceedings should be avoided unless there is a good reason for it and all parties agree.  Appeals must be heard in private except where the LEA direct otherwise.  However, a member of the Council on Tribunals may attend the meeting of an Appeal Panel as an observer.

15. The remit of the Appeal Panel is to consider whether the pupil should be re-instated.  They may decide that it is inappropriate to continue with the hearing if it became clear that the parent did not wish the pupil to be re-instated, for example where the pupil has been admitted to another school.  In such cases other remedies available to the parent may be a more appropriate way of setting the record straight (see paragraph 34 below).

16. In considering an appeal the Panel should decide whether the pupil actually did what they are accused of doing.  If there is more than one alleged incident of misconduct, the Panel should decide on each incident.  If satisfied on the balance of probabilities that the pupil did what they are alleged to have done, then the Panel should decide whether permanent exclusion is a reasonable response to that conduct.  Relevant factors that must be taken into account include:

Whether permanent exclusion was used in accordance with the Secretary of State’s Guidance – where there is doubt the Appeal Panel should direct re-instatement;

the broader interests of other pupils and staff in the school, as well as those if the excluded pupil;

the school’s published discipline policy;

the fairness of the permanent exclusion in relation to the sanctions imposed on any other pupils involved.

17. Where a head teacher has excluded a pupil in accordance with clearly stated provisions in the school’s published discipline policy, for example zero tolerance of drug dealing, then the appeal panel should not normally direct re-instatement.

18. The school is responsible for promoting good behaviour and discipline on the part of its pupils and for securing an orderly and safe learning environment for its pupils and staff.  In deciding whether to direct re-instatement, therefore, the panel must consider the impact that it may have on other members of the school.  The Secretary of State would normally regard it as inappropriate to re-instate a pupil who has been permanently excluded in circumstances involving any of the following:-

Serious actual or threatened violence against another pupil or member of staff; or

sexual abuse; or

presenting a significant risk to the health and safety of other pupils by selling illegal drugs; or

persistent and malicious disruptive behaviour, including open defiance or refusal to conform with agreed school policies on, for example, discipline or dress code.

19. To reach a decision, the panel may need to hear evidence from those directly or indirectly involved, including the pupil and any alleged victim.  The Discipline Committee may not introduce new reasons for the exclusion. However, the parent and the LEA may put forward new information that was previously unavailable.  If this happens, the Discipline Committee should be given an opportunity to respond.

Order of hearing

20. The order of hearing should be notified in advance to the parties.  The chair should order proceedings and lead the panel in establishing the relevant facts.  Following introductions, the clerk should explain the order in which the parties entitled to be heard will state their case and that there will be an opportunity for questioning by the other parties after each presentation.  The panel members may also ask questions to clarify an issue or to elicit more information.  If possible, questions from the panel should be taken at the end of each party’s statement and following questioning by the other parties.

21. If the appeal panel wish to vary the notified procedure, they should only do so after hearing the views of all the parties present and entitled to make representations.

Evidence and witnesses

26. The appeal panel cannot compel witnesses to attend.  The Discipline Committee may wish to call witnesses who saw the incident or behaviour which gave rise to the exclusion.  These may include any alleged victim or any teacher (other than the head teacher) who investigated the incident and interviewed pupils.

27. Where adult witnesses do not appear in person, the panel must rely on their written statements.  In the case of witnesses who are pupils of the school,  it will generally be appropriate for the panel to rely on their written statement.  Pupils may appear as witnesses if they do so voluntarily and with their parent’s consent.  All written witness statements must be attributed and signed, unless the school has good reason to wish to protect the anonymity of the pupils.  Appeal panels should be sensitive to the needs of child witnesses to ensure that the child’s view is properly heard.  The general principle remains that someone accused of something is entitled to know the substance and the source of the accusation.

After the hearing

32. The panel operates independently of the LEA and the school Governing Body.  The decision of the panel is binding on the parent of the excluded pupil, the Governing Body and the local authority.  The appeal panel must let all parties know its decision by the end of the second school day after the appeal hearing.  Where a hearing is held on the last day of a term or outside term-time, the panel should try to notify all parties by the end of the second working day after the hearing has finished.

34. As the remit of the appeal panel does not include ‘clearing the pupil’s name’,  details of exclusion may not lawfully be deleted from the pupil record, if exclusion is a matter of fact.  But the Governing Body must comply with any parental request to append their appeal statement to 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: copies of the principal correspondence might be included and possibly the minutes of the Discipline Committee and appeal panel hearings, if the Discipline Committee and appeal panel respectively agree to this.