A, R (on the application of) v Independent Appeal Panel for London Borough of Sutton & Ors

In school exclusion proceedings, the applicable standard of proof is the balance of probabilities. It always means more likely than not. Serious allegations or consequences may require particularly careful scrutiny of the evidence, but they do not create a heightened or variable standard.

An independent appeal panel must reconsider the proportionality of permanent exclusion for itself. Its task is not merely to review whether the head teacher’s decision was reasonable. Where the panel fails to determine a fact relevant to sanction and accepts that the omission may have affected proportionality, the decision should ordinarily be quashed and remitted for a fresh de novo hearing.

A, a pupil at a maintained school, was permanently excluded after supplying smoking material which other pupils believed to be cannabis and arranging an off-site meeting intended to procure drugs. The head teacher’s decision was upheld by the governing body’s disciplinary committee and then by the defendant independent appeal panel.

On judicial review, the claimant challenged the investigation, the standard of proof, the construction of the reasons for exclusion, the panel’s approach to proportionality and its failure to determine the true nature of the material. The panel later accepted that it had erred by treating the material’s true nature as irrelevant. The central issues were whether that error was material and whether relief should be remitted to a fresh panel.

The claim succeeded. The panel’s decision of 18 September 2007 was quashed and the appeal was remitted to a fresh panel for an entirely de novo hearing.

1. Procedural fairness. School disciplinary proceedings are not criminal proceedings, and the special evidential requirements applicable in criminal cases do not apply. Procedural defects do not themselves justify judicial review unless they caused unfairness. The panel was entitled to acknowledge defects in the school’s interviews and record-keeping, assess the evidence for itself and conclude that it retained sufficient weight.
2. Standard of proof. Regulation 7A of the Education (Pupil Exclusion and Appeals) (Maintained Schools) (England) Regulations 2002 required facts to be established on the balance of probabilities. There are only two standards of proof. The civil standard means more likely than not. Serious allegations and serious consequences may require appropriately careful consideration, but do not require a different or specially cogent standard of evidence.
3. Reasons for exclusion. The head teacher’s letter sufficiently identified two contributory reasons: supplying substances believed by pupils to be cannabis, and arranging an off-site meeting for procuring drugs while taking a younger pupil. The panel was therefore entitled, and required, to consider both matters.
4. Proportionality and material omission. After accepting the primary factual findings, the panel had to decide afresh whether permanent exclusion was an appropriate and proportionate response. It was not confined to reviewing whether the head teacher’s decision was reasonable. Although the true nature of the material was not necessary to determine what conduct had occurred, it could materially affect the sanction. The panel’s failure to determine it was therefore an error of law.
5. The court declined to hold that permanent exclusion was the only lawful sanction or that passage of time created specific prejudice. Remittal was appropriate.

1. Head teacher: permanently excluded A on 18 May 2007.
2. School disciplinary committee: upheld the exclusion on 20 June 2007.
3. Independent Appeal Panel: dismissed A’s appeal and upheld permanent exclusion on 18 September 2007.
4. High Court (Administrative Court): quashed the panel’s decision and remitted the appeal to a fresh panel for a de novo hearing.