When initiating judicial and quasi-judicial proceedings it is necessary to get the procedures right. In a recent case, a decision by a head to exclude a pupil was challenged in the High Court on the grounds that both the subsequent governors' and appeal committee hearings were flawed. (R v Governors of St Gregory's RC Aided High School, 1994).
The pupil was first excluded for a fixed term for swearing. He appealed to the governors who decided not to reinstate him. Because of the pupil's refusal to admit to the swearing the head turned the fixed term into a permanent exclusion.
Although the governors' committee which met to consider representations from the pupil's parents was properly constituted and did not include anyone who might subsequently hear an appeal, the procedures they adopted were flawed.
They received a letter from the boy's father clearly stating his version of events, but were under the impression that the pupil himself had no right to be heard, even though his mother was allowed to be present and to ask questions.
The committee upheld the head's action and acknowledged that the real ground was not the swearing itself but the refusal to apologise for it.
The head wrote to the parents making this clear and, at the same time, turned the indefinite exclusion into a permanent one.
The parents appealed to the archdiocesan appeal committee. The pupil was not happy about the conduct of this meeting. Although it heard evidence directly from him, neither parent was allowed to be present.
The committee was also criticised for not hearing first-hand evidence of the incident. The appeal committee considered whether the pupil had committed the act and whether the exclusion was appropriate. It held that it was a reasonable response.
The pupil appealed to the High Court for a judicial review of the decision, arguing that the governors' decision and the appeal committee's decisions were essentially flawed.
The High Court held that the governors had, in fact, performed their functions by reviewing all the evidence available from the head and taking into account the father's letter.
The appeal committee had also acted reasonably.
The decision not to hear evidence from primary witnesses was not unreasonable as it was hardly likely that witnesses would have had any genuine recollection of the incident so long after it happened. The pupil's appeal failed.
Chris Lowe is honorary legal consultant to the Secondary Heads Association