A water-tight case?

When it comes to appeals against exclusion, well-trained governors are the best line of defence against irate parents and silver-tongued lawyers, says Richard Bird.

I have always felt that the greatest irony of the Titanic disaster was that if the watchman had not seen the iceberg and the ship had hit it head on, the ship would not have sunk. It was trying to avoid the iceberg that opened up the long crack along the side, flooded too many compartments and made the disaster inevitable.

Disciplinary exclusions are like that. Heads try to avoid them; but sometimes, in trying to avoid them we allow damage throughout the school that is far greater than if we just hit the matter head on.

For FE institutions the position is far easier. Any fair process is acceptable to exclude the student from the college and there is no independent appeals process. This is at least partly because education post-16 is, for the moment, voluntary. There must be a question as to whether this will change once education or training to 18 becomes compulsory.

If, as a school, you have to choose collision, it is well to make sure that your water-tight doors are in good order and shut. Let us look at what court decisions tell us about ensuring a good outcome in an exclusion case. The first door is trained governors, able to withstand the attacks of those who believe that an exclusion hearing is a court and this is their chance to play the QC.

Standard of proof

It is useful to know what is and is not required when a real barrister turns up. Barristers are trained to be confident and penetrating; governors, especially the chair and clerk, need training to survive them.

A key point is that 'fairness' does not require schools to conform to the rules of the Police and Criminal Evidence Act. The standard of proof currently is not whether something is 'beyond reasonable doubt'; rather, it is that the case has been proved 'on the balance of probabilities' - ie, that it is more probable than not.

Anonymous statements are allowed and the rule against hearsay in civil cases was abolished in 1995. Governors are also entitled simply to note any legal issues raised and seek further legal advice before they make a decision.

Evidence must be complete and organised for it to be good enough to stand at judicial review. There is no point working on the basis that you can add material later if it goes beyond governors - you can, but it must relate to the original charge; you can't bring new charges.

Good evidence includes a brief outline of the case and its investigation; the decision that was reached; diagrams, if the panel are unlikely to understand events without them; statements arranged in a coherent order; a clear account of the circumstances surrounding the case; and a clear statement of the consequences if your decision is overturned.

It is also important to make clear that you are excluding the pupil permanently because the incident, as well as being bad in itself, was 'the last straw'. If you do not do this, it is unlikely that you will be allowed to introduce the pupil's previous record - unless, of course, the parents are foolish enough to say, "Well, he's no angel but he's no worse than most boys of his age..." which then lets you in.

Address discrimination

It is important to address discrimination issues explicitly. If you don't, the other side surely will. Even if an action is discriminatory it may be justifiable. This is particularly the case with mental disability, where you may be able to show that no reasonable adjustment would have made any difference.

Remember that favourable decisions from independent appeals panels have been overturned by judges because the panel failed to give sufficient reasons for their decision. It is your job to give the panel those reasons.

A panel is allowed to decide that there is no point sending a child back because there has been an irretrievable breakdown with the school. If that is the school's fall-back position, it needs to demonstrate in detail why that is true: what the effect will be on staff authority and on pupil confidence. The aim throughout is to create a situation where no reasonable panel can decide otherwise than in your favour.

It may seem excessive to go to so much trouble. But then, in the Merseyside Maritime Museum is the naval architect's drawing of the Titanic. It has double rows of lifeboats on the decks but someone decided that there was really no need for that many. The ship would never sink...