M, R (on the application of) v Independent Appeal Panel & Ors

School disciplinary proceedings are not criminal trials. The special admissibility and voluntariness requirements governing confessions under Police and Criminal Evidence Act 1984, section 76, do not apply to an independent appeal panel. The panel may assess an alleged confession on the evidence before it and need not prove voluntariness beyond reasonable doubt.

Fairness is fact-sensitive. There is no general rule requiring disclosure of every earlier statement made by a witness. The applicable standard of proof is the balance of probabilities where the governing regulations so provide. Application of a heightened standard does not necessarily justify judicial review where the evidence would plainly satisfy the applicable test.

The claimant challenged the decision of an independent appeal panel upholding his permanent exclusion from school after findings that he had smoked and possessed cannabis on school premises.

He alleged that an admission had been obtained by duress, that the staff member concerned should have attended for questioning, that earlier witness statements had not been disclosed, and that the panel had applied the wrong standard of proof. The panel had referred to the criminal-law approach to confessions under section 76 of the Police and Criminal Evidence Act 1984 and had applied a standard described as distinctly more probable than not.

1. The claim was dismissed. The claimant’s challenge to the panel’s assessment of duress was a Wednesbury challenge. The panel did not accept the claimant’s evidence that his second statement had been obtained by coercion. Once that factual conclusion was reached, the absence of the staff member who was alleged to have exerted pressure did not undermine the decision.
2. Section 76 of the Police and Criminal Evidence Act 1984 applies to criminal trials, not school disciplinary proceedings. There was no justification for importing the special evidential requirements governing criminal confessions into those proceedings.
3. The panel was entitled to rely on the evidence before it without requiring the staff member to attend. Evidence from the headteacher about the staff member’s character was not hearsay merely because the staff member was absent.
4. Fairness depended on the facts. The decision in R v The Headteacher and Independent Appeal Panel of Dunraven school ex parte B did not establish a general duty to disclose every statement made by a witness. In this case the panel knew that the witnesses had changed their accounts and was able to assess the reliability of the statements relied upon. The application to adduce fresh evidence and amend the grounds was refused as late and unsupported by credible evidence.
5. The panel had used a heightened standard of proof, described as distinctly more probable than not. Although earlier authorities referred to a heightened or criminal standard, the regulations then in force required the balance of probabilities. The difference did not justify relief because the evidence before the panel was ample to satisfy even the more demanding standard.

This was a first-instance judicial review claim. No prior appellate decision is stated in the judgment.