No hiding place for pupils who point finger
THE parents of an excluded pupil are demanding that pupils who gave evidence against their son be questioned at the appeal hearing. Surely, this is something which, in the interests of those pupils, we must refuse?
You may be right in wishing to defend the pupils who were witnesses, but your case may well fail if you do.
Every head needs to be aware of an important judgment made by the Court of Appeal in December 1999 in the case of Regina v Dunraven school, Ex Parte B (a child). This concerned the exclusion of a pupil B for the theft of a teacher's handbag, where the crucial evidence was a witness statement by another pupil.
The head excluded B permanently and, while the evidence was presented to the governors' disciplinary committee and to the subsequent appeals committee, it was not given to B's parents, presumably to protect the pupil-witness from retaliation. The governors and the appeal committee upheld the decision to do this and a deputy High Court judge agreed with them.
But the Court of Appeal took a different view. Pointing to the legal requirement that a pupil's parent had the right to appear and make oral representations, Lord Justice Sedley said that this right "was worthless unless the parent knew in some adequate form what was being said against the child".
Lord Sedley added that it was only fair that the parent should be aware of any inconsistencies in the evidence and that "it was unfair for the decision-maker to have access to damaging material to which the person at risk, here the pupil through his parent, had no access".
The school argued that it was necessary to protect the pupil witness from reprisals, but the judge said that the disciplinary committe ought to have taken this into account before deciding whether to go ahead. It could have gone on without relying on the pupil's evidence or dropped the case and reinstated the pupil.
This judgment underlined two important points.
First, school discipline - and in particular exclusion - is now governed by statute and regulation, the rules of natural justice must be applied and be seen to be applied.
Crucially, no evidence can be placed before a disciplinary committee which is not available to the defendant, who has the right to test and to challenge that evidence. This may require the appearance of witnesses at hearings.
The second is that the courts are not prepared to regard the protection of juvenile witnesses as a justification for withholding their identity from the defendant.
Schools are likely to find this difficult. Often, the evidence of wrong-doing comes from pupils, who would refuse point-blank to utter a word, if they thought that they would be exposed as informers.
Most headteachers would, in any case, baulk at the idea of pupils appearing in the formidable environment of a hearing to be challenged by an aggressive solicitor or an enraged parent.
In the past, I have suggested that the difficulty might be circumvented by allowing the defendant's representative to test the evidence in private, outside the hearing. But following this judgment, this is unlikely to be acceptable as the school will probably have to back down if there is a demand that pupils should appear at the hearing itself .
The Dunraven judgment, therefore, has important implications for teachers, heads and governors.
It may also mean that, in future, more teachers resort to industrial action if they feel that the law is not offering enough support for their efforts to maintain order and discipline.