Don’t ignore proportionality

It is frustrating when someone else's mistake creates a problem - as the headteacher in a recently determined exclusion appeal case must now feel.

The pupil concerned had sold a substance which he denied was cannabis, although he described it to his customers as 'weed'. He was permanently excluded for the single incident. The case went through governors and the independent appeals panel (IAP) which, despite the employment of a Queen's Council by the boy's father, agreed with the decision. The father took the case to the High Court on the grounds of:

• Procedural fairness - the interviews with the boys were not noted down at the time.

• The standard of proof used was the balance of probabilities and the charge was criminal.

• The reason given for the exclusion was wrong if the substance was not cannabis.

• The exclusion was disproportionate if the substance was not cannabis.

• The IAP had failed to make a finding of whether the substance was or was not cannabis and so had failed to discuss proportionality, even though they had discussed whether the penalty was reasonable.

The judge had little difficulty in rejecting the claim of procedural fairness. The excluded pupil had not been shifted in his story. It was unfortunate that the evidence had not been properly recorded but both the governors and IAP had looked at it carefully and decided it was reliable.

There was only one standard of proof: the bare balance of probabilities and there was no basis for declaring that the proceedings were criminal in nature and therefore that there was a breach of human rights. On the next point, the judge said the reason given was comprehensive. It did not allege cannabis. The judge also indicated that even if the substance was not cannabis, he would have ruled that the exclusion was proportionate.

However, the failure of the panel to rule on whether the substance was or was not cannabis meant that they had not considered proportionality adequately and therefore the decision was quashed. This does point up the vital importance of addressing proportionality in exclusion hearings.