G v Independent Appeal Panel of London Borough of Bexley

On judicial review of a permanent exclusion, an appeal panel’s decision is unlawful only if it adopts an irrational approach, takes irrelevant matters into account, or fails to consider relevant matters. For a permanent exclusion based on a one-off incident of serious actual violence, the panel must determine whether the pupil deliberately targeted a member of staff and assess the force used and its consequences. Motive is distinct from intention and need not be investigated where the act was deliberate. The panel must then assess whether permanent exclusion is proportionate, balancing the excluded pupil’s interests against those of the school community, while considering the school’s decision and the statutory guidance.

The claimant, a pupil permanently excluded from a maintained Church of England comprehensive school, challenged by judicial review the decision of an independent appeal panel upholding the exclusion. The panel had found that he deliberately threw a ball of wadded wet tissues at a teacher with some force, causing temporary blindness and eye pain, and that the incident amounted to one-off serious actual violence against a member of staff.

The claimant argued that the panel had failed to consider accident, intention and motive, had irrationally characterised the incident as serious actual violence, and had imposed a disproportionate sanction. The central issues were whether the panel had applied the statutory guidance lawfully and whether its decision was irrational, unreasonable or disproportionate in the public-law sense.

1. The claim was dismissed. The claimant failed to show that the panel acted irrationally or unreasonably, took irrelevant matters into account, or failed to consider relevant matters.

2. Under section 52 of the Education Act 2002 and the Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations 2002, the panel was required to have regard to the Secretary of State’s guidance. The panel properly considered the school’s approach, applied its own judgment to the facts, and considered proportionality and procedural fairness.

3. The phrase “serious actual violence” in paragraph 12(a) of the 2006 guidance requires intentional targeting of the victim. Undirected force which happens to injure a member of staff would not fall within that paragraph. Intention concerns whether the act was deliberate; motive concerns the reason for the act. The guidance required consideration of intention, but did not require an investigation into motive.

4. The panel was entitled to infer deliberate targeting and an intention to hurt, or recklessness as to whether hurt was caused, from its finding that the claimant threw the projectile at the teacher with some force. The distance travelled, the force of impact and the teacher’s injuries were relevant evidence in deciding whether the violence was serious.

5. Paragraph 18 of the guidance, concerning past records and additional evidence where it is disputed that the pupil committed the act, was irrelevant once the claimant no longer challenged the finding that he had thrown the projectile.

6. In assessing sanction, the panel had to balance the claimant’s interests against those of the other pupils and staff. Its conclusion that permanent exclusion was proportionate, on the facts found, was not one that no reasonable decision-maker could reach.

The judgment does not state any prior court decision. The claimant had appealed the permanent exclusion first to the school’s governing body and then to the independent appeal panel, which upheld the exclusion. The judicial review claim against the panel’s decision was dismissed.