W v The Independent Appeal Panel of London Borough of Bexley

In judicial review of a school exclusion appeal, the Administrative Court may intervene where the claimant retains a sufficient interest in correcting an adverse factual finding, even though the exclusion itself has been quashed. A school appeal panel must distinguish between whether the pupil committed the conduct and whether exclusion was proportionate. Evidence challenged as a confession is generally a matter of reliability and weight, not criminal-law admissibility. The panel must give reasons sufficient to show why it reached its decision, but need not give sub-reasons for every evidential assessment. Contemporaneous records may clarify or supplement deficient reasons where they reflect the panel’s actual reasoning and do not introduce a materially different justification.

W was permanently excluded from school after an incident in which he admitted, and later denied, using a craft knife to cut another pupil’s shirt. The governing body upheld the exclusion. On appeal, the Independent Appeal Panel found on the balance of probabilities that W had committed the conduct but held that permanent exclusion was disproportionate and directed reinstatement.

W sought judicial review of the panel’s factual finding and reasoning, despite having succeeded on the proportionality issue. He argued that the admissions should have been excluded or disregarded, that the panel’s conclusion was irrational, and that its reasons were inadequate. The central issues were whether the claim retained a practical purpose, how the panel should treat the challenged evidence, and whether its reasons were legally sufficient.

1. Practical interest. The claim was not academic merely because the panel had quashed the permanent exclusion. Judicial review is not governed by the same approach as an appellate court considering an otherwise correct decision. W and his parents had a sufficient interest in correcting the finding that he had committed serious violence, particularly because the school record could affect his future education. The claim was therefore granted permission and considered on its merits.
2. Two-stage appeal decision. Under the guidance, an appeal panel had to decide first whether the pupil committed the conduct and then whether the response was proportionate. The panel was entitled to make the first finding even though it directed reinstatement.
3. Admissions and confessions. The principle in Dunraven and R (M) v Independent Appeal Panel was that criminal-law rules governing confessions, including Police and Criminal Evidence Act 1984, s 76, did not govern school disciplinary proceedings. The circumstances in which W made and withdrew his admissions went to reliability and weight. The panel was required to consider that challenge, but was not required to exclude the evidence. Its conclusion that the admissions could be given some weight was not irrational.
4. Reasons. The decision letter adequately identified the evidence that principally persuaded the panel: the consistent account of the injured pupil and W’s admitted cutting of the folder during the same lesson. There was no obligation to provide sub-reasons explaining every assessment of the withdrawn admissions. If supplementation had been necessary, the clerk’s contemporaneous notes and Mr Matthews’s evidence could properly clarify the reasons because they were consistent with the decision letter and showed the reasoning actually adopted at the time. They did not amount to an impermissible ex post facto justification.
5. Relief. Even if the reasons or treatment of the admissions had been defective, the same factual conclusion would have followed from the other evidence. The substantive judicial review claim was dismissed. The court directed attention to correcting the school record to show that reinstatement, rather than substitution of a fixed-term exclusion, had been ordered.

• School head teacher: W was permanently excluded under s 52 of the Education Act 2002.
• Governing body: The permanent exclusion was unanimously upheld.
• Independent Appeal Panel: The panel found that W had committed the conduct but held permanent exclusion disproportionate and directed reinstatement.
• High Court (Administrative Court): Permission to apply for judicial review was granted, but the substantive claim was dismissed: [2008] EWHC 758 (Admin).