J, R (on the application of) v Head Teacher of the School and College & Anor

Fairness in a school exclusion appeal is fact-sensitive. The pupil must know the nature of the case against him and have a meaningful opportunity to present his own case. Procedural fairness does not ordinarily require every person who investigated the allegation, or every second-hand witness, to attend for questioning. Where the evidence and the opposing case are clear, the absence of such witnesses may not make the hearing unfair. An appeal committee may determine the matter on written statements and the evidence called before it, provided it makes its own assessment and reaches a conclusion supported by the evidence.

The claimant, a pupil, was permanently excluded after the head teacher concluded that he had indecently assaulted another pupil. The governing body upheld the exclusion. The Birmingham City Council Exclusion Appeals Committee then dismissed his appeal after considering witness statements, the claimant’s account and evidence from a supporting witness.

On judicial review, the claimant alleged that the hearing was procedurally unfair because the complainant and teachers involved in investigating or receiving the complaint were not present for questioning. He also alleged that the Committee had taken into account the head teacher’s belief in the strength of the evidence. The central issues were whether the procedure was fair and whether the Committee was entitled to conclude that the allegation was established on the evidence before it.

1. The application was dismissed. The Appeals Committee had been entitled to determine the appeal on the material before it.
2. The Committee had to make its own assessment of the evidence. The head teacher’s belief in the cogency of the evidence explained her decision to impose permanent exclusion, but there was no indication that the Committee had treated that belief as guiding or distorting its own assessment.
3. The principle in R v Headteacher and Independent Appeal Committee of Dunraven School, ex parte B [2000] ELR 156 was fact-sensitive. Fairness ordinarily requires sufficient disclosure to enable the parent and pupil to understand the case against the pupil, particularly where inconsistent versions have been given. In this case, the allegation and the opposing accidental-contact account were clear, and no inconsistent versions had been presented.
4. Fairness did not require the attendance of teachers who had only received the complaint after the event and had not witnessed the incident. Their evidence was second-hand. The claimant knew the case against him, was represented, addressed the Committee, and called evidence from his friend. The absence of the other witnesses did not prevent him from presenting his case.
5. The Committee was entitled to apply the distinct-probability standard which had been accepted by the parties and to conclude that the allegation was established. No procedural unfairness was shown. Although readmission was practically impossible because the claimant had reached the end of the school year, he was entitled to pursue the claim to address any stigma arising from the exclusion. There was no order as to costs, apart from assessment for public funding purposes.

First-instance judicial review application. The judgment records that permission had been granted by Goldring J; no lower-court merits decision is stated.