I, R (on the application of) v Independent Appeal Panel for G

A disciplinary appeal panel must give reasons that enable the affected person to understand why the decision was made. The reasons should identify the material findings, relevant mitigation and the significance of important competing considerations. A short or cryptic decision cannot be repaired by later evidence which adds new reasons or contradicts the original explanation. Later clarification and limited elaboration may be permissible, but not substantive supplementation. The presence of a clerk at an exclusion appeal hearing is not unlawful merely because the governing regulations do not expressly mention a clerk. Advice given during deliberations may raise fairness issues if it is not disclosed and addressed in the parties’ presence, but that question was not decided.

The claimant, a pupil approaching his GCSE examinations, was permanently excluded from his college after assaulting another pupil. The governing body upheld the exclusion, and an independent appeal panel dismissed his appeal. The panel’s decision letter gave two brief reasons referring to serious breaches of the behaviour policy, harm to welfare, health and safety, responsibility for the conduct and the reasonableness of permanent exclusion.

Permission for judicial review was granted on inadequate reasons and failure to take account of the claimant’s imminent examinations. Additional procedural grounds concerning the clerk and the conduct of the panel were advanced at the hearing. The central issue was whether the panel’s reasons were legally adequate and whether the decision could be supplemented by later explanations.

1. The claim succeeded in substance. The decision of the independent appeal panel dated 15 November 2004 was quashed and the matter was remitted to a freshly constituted panel. The panel members and clerk were not to have played any previous part in the case.
2. The decision letter was inadequate. It did not explain what facts had been found, whether mitigation or provocation had been accepted, whether the earlier exclusion incident had been relied upon, or what significance had been attached to the fact that the claimant’s parents had not then been involved in addressing his behaviour. It also failed adequately to explain the treatment of the claimant’s forthcoming GCSE examinations.
3. Applying the approach described in R (H) v The Independent Appeal Panel for Y College [2005] ELR 25, clarification and a measure of elaboration may normally be permissible. Miss W’s later statement went beyond that limit. It introduced, or appeared to introduce, reliance on the earlier assault and contradicted the contemporaneous material. A party should not have to extract adequate reasons from microscopic analysis of an ambiguous word such as a plural reference to breaches.
4. The importance of the claimant’s GCSE examinations did not constitute a free-standing ground, but demonstrated the gravity of the exclusion decision and the need for adequate reasons.
5. The argument that a clerk could not lawfully attend the appeal hearing was unarguable. The regulations did not establish an exclusive list of persons entitled to attend, and there was no basis for treating the established use of clerks as unlawful. It was unnecessary to decide whether legal advice given during deliberations would need to be repeated in the presence of the parties before a decision was made.
6. The fresh panel could consider evidence about the claimant’s behaviour after 15 November 2004. The defendant was ordered to pay half the claimant’s costs, subject to detailed assessment.

First-instance judicial review proceedings. Bennett J granted permission on the inadequate-reasons and relevant-consideration grounds and refused permission on the original procedural ground. This court quashed the panel’s decision and remitted the matter to a freshly constituted panel.