C3/2004/1223 
Neutral Citation Number: [2004] EWCA Civ 1819
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MR JUSTICE OWEN)
Royal Courts of Justice 
Strand 
London, WC2 

Friday, 17 December 2004
 
B E F O R E:

LORD JUSTICE POTTER 
 
LORD JUSTICE BUXTON 
 
MR JUSTICE LLOYD 
 
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 W (A MINOR)
Claimant
-v-
 
(1) THE INDEPENDENT APPEAL PANEL OF THE LONDON BOROUGH OF WANDSWORTH
(2) THE GOVERNING BODY OF NIGHTINGALE SCHOOL 
Respondents 
- - - - - - -
 (Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
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Tel No:  020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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MS A BROWN (instructed by Ashok Patel & Co) appeared on behalf of the Claimant
MISS E LAING (instructed by DMH Solicitors)  appeared on behalf of the Respondents
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J U D G M E N T

1.	LORD JUSTICE BUXTON:  The claimant, who I will endeavour to refer to as "M", was a pupil at the Nightingale School in the London Borough of Wandsworth.  The school had, as part of its disciplinary policy, a strict policy with regard to the carrying or possession of knives.  In the Behaviour Management Policy of the school, which it is not suggested was not well-known to all those concerned, including M, the following statement is made, this is under the headings of when exclusion may be used: 
"Being in possession of a weapon (this will result in an immediate permanent exclusion)."
2.	M was indeed excluded permanently, first of all by a decision of the Headmaster, and then upheld by the school Disciplinary Panel.  He was excluded because he had been in possession of a knife on the school premises.
3.	The decision of the school Disciplinary Panel, that is to say a Panel composed of governors of the school, was upheld by the effective defendant in these proceedings, the Independent Appeal Panel of the London Borough of Wandsworth.
4.	It is necessary to say something briefly about that Panel.  It is specifically constituted to hear appeals in matters of this sort.  It consists of people who, although experienced in education or related matters, have no connection with the school in respect of which the dispute arises.
5.	We are told in this case that the Chair of the Panel was someone who was experienced in social work.  What I think is normally called a lay member of the Panel was in fact a qualified lawyer, although we do not know in what capacity.  The third member was the Head Teacher of another school.
6.	This incident arose regrettably as long ago as the 7th October 2003.  An incident report was made by the lady who is the school secretary, a Ms Siobhan Burford, saying that at about 3 o'clock on that day, M came into the reception area where Ms Burford was in attendance and asked to use the telephone.
7.	Whilst he was using the telephone, Ms Burford noted that M was, in her words, "opening up what I could see was a knife".  She, being well aware of the school's policy, asked him to give it to her, but he denied having it.  She said she would have to report the matter to the Head Teacher, Mr Murphy.  M then said he was going to throw the knife out of the reception area, and pretended to do so.  He was again asked to hand over the knife, but he said that he had disposed of it.
8.	M's tutor was a lady called Ms Vivien Wood.  She reported that she and M had come down the stairs to the main reception area at about the time of this incident with Ms Burford.  But then at about 10 past 3 M came to the staffroom wanting to see her, told her that he had picked up a knife at the bottom of the stairs and that he wanted to hand it in.  He showed her where he said he had picked it up.  She challenged him, saying that she had not seen him do so when they were coming down the stairs together.  They then went together to Ms Burford's office, where he did indeed hand the knife to her.
9.	The incident was reported to Mr Murphy, the Head Teacher, who told M to leave the premises.  Mr Murphy had a conversation with M's mother in which initially he took the view that permanent exclusion might not be required in that case.  However in evidence that he gave in these proceedings, evidence the status of which I shall have to revert to, he said that he had revised his view, partly after looking at CCTV footage.
10.	M gave an account in writing of his view of the position to the Disciplinary Panel.  His document formed part of the dossier, if I may so describe it, that was before the Independent Appeal Panel.  He said this:
"I wish to say that I did not bring a knife into school.  I found the knife in question on the school premises, under the stairs nearest to the school office.  When I saw it, I picked it up with the intention of handing it to Mr Murphy.
"That day, I had not taken my house keys into school because I had given them to my nan earlier that morning as she was staying with us.  So I called into the school office before I saw Mr Murphy, to ask if I could phone my mum at work and find out when she would be at home.
"Siobhan [that is to say, Ms Burford, to whom reference has already been made] saw the knife and got upset with me.  She said I would be excluded from school for having a knife.  There was a parent sitting in the waiting area, who was also a witness.  I told Siobhan that I would give the knife to Vivien [that is to say, Ms Wood] which I did.  Vivien then made me give the knife to Siobhan.  On reflection, I should have given the knife to Siobhan straight away, but she made me upset about being excluded from school.  I would never have hurt anyone, it was just a silly mistake."
11.	M then goes on in the statement to express in what, if I may be permitted to say so, are powerful terms the disadvantage at which he thinks himself to be on various scores, and what he conceives to be the unreasonableness of imposing the penalty of permanent exclusion for this particular incident.
12.	The governors' Disciplinary Panel was attended both by M and by his mother.  The school wrote to the mother immediately after the hearing on the 17th October 2003, saying that all the available evidence had been considered.  That included statements from Mr Murphy, Ms Wood and Ms Burford; and of course, the statement made by M.  The letter then said this:
"In view of the school's Behaviour Management Policy which clearly states that being in possession of a weapon will result in a permanent exclusion, the disciplinary committee of the governors upheld the Head Teacher's decision to permanently exclude M.  We very much hope you are able to find alternative satisfactory provision for M's education."
13.	It was noted there that an appeal could be made against that decision to the Independent Appeal Panel.  Information was given as to how to go about that; and also it was helpfully indicated that the parent could contact the Advisory Centre for Education, which could give help and support if it was required.
14.	As I have said, the Disciplinary Panel was attended both by M and by his mother.  At the appeal to the Independent Appeal Panel, though there was no oral evidence, as it were in chief, questions were asked certainly of the Headmaster who attended.  Ms Wood and Ms Burford did not attend.  M's mother attended on that occasion and not only took an active part in the proceedings, but also made submissions to the Panel; and the Chair of the Panel in subsequent evidence paid a proper tribute to the concern that M's mother had expressed about his position, and the care that she was taking with regard to the difficulties that her son found himself in.
15.	The decision of the Disciplinary Panel was conveyed to M's mother in a letter dated the 24th November 2003, which I shall refer to as "the decision letter".  That referred to representations made by M's mother and by Mr Murphy, the Head Teacher, and said that the Panel had read and carefully considered the case papers circulated to the parties before the hearing.  It referred to M's mother's submissions or evidence, and then said this:
"The Panel was made aware that although you support the practice of the school in relation to its Behaviour Management Policy, you consider that the policy does not allow for the handing in of weapons, which Mitchell has stated he was in the process of doing in this case.  You also stated that you disagreed with the Head Teacher's view that not to have taken the action he did would have sent the wrong message to other pupils."
16.	It was then recorded that the Panel had considered the Head Teacher's account of the general education provision made for M; and then the letter said this:
"Before arriving at their final decision on your appeal, the Panel firstly considered whether M was responsible for the actions that had resulted in his permanent exclusion from the school.  The Panel was satisfied that M had been responsible for the incident outlined in the case papers, namely that he had in his possession on the school premises a knife.  The Panel noted that in evidence, M did not deny that he had a knife, although he challenged that it was his knife and that he had brought it into school, and stated that he was in the process of handing the knife to a school representative."
17.	The letter then went on to say that in those circumstances the Panel had to consider whether permanent exclusion was a "reasonable response to M's actions", and specifically stated that, in addressing that question, the Panel took into account guidance given by the Department of Education and Skills.
18.	The letter then went on to refer to the Behaviour Management Policy, already quoted, and said that in its view consideration had to be given to the interests of the school, in the establishment and maintenance of discipline, and also to safeguard the welfare of pupils and members of staff.
19.	In all those circumstances, it was decided unanimously that the decision of the Disciplinary Panel had been correct and that it be upheld.  That letter, as I say, was written by the clerk to the Appeal Panel who, as we were told, is an experienced employee of Wandsworth Council.
20.	Permission was sought to move for judicial review, the matter with which we are now engaged, largely on the basis that the decision, as set out in the letter, did not on its face appear to have been taken on a rational or supportable basis.  That point was thought to be arguable by Mr Justice Collins, who granted permission for these proceedings to go forward.  That was largely, or I think possibly exclusively, looking at the decision letter.
21.	Being conscious that the decision letter was, in the view of the learned judge, at least arguably inadequate to explain the decision, the Local Authority, acting on behalf of the Independent Panel filed a significant amount of further evidence, principally but not exclusively evidence by the Chair of the Independent Panel, a Ms Mathias, which gave a good deal of further detail about the reasoning process of the Panel and about the factual conclusions that, according to Ms Mathias, it had reached.
22.	Although a number of arguments were ventilated at an earlier stage of the proceedings, by the time that the matter came for substantive hearing before Mr Justice Owen the grounds of challenge had effectively been narrowed down to two, which the judge explained in paragraphs 23 and 24 of his judgment, which I will set out.  The redrafted ground of challenge to the decision by the IAP is that:
"The Independent Appeal Panel decided the issue solely on the basis of a breach of School Behaviour Policy, without regard to whether the breach was of such seriousness that permanent exclusion was the appropriate sanction.  In doing so, it misdirected itself in law."
23.	The judge then went on in paragraph 24 of his judgment to explain a further alternative submission in these terms:
"In the course of her submissions, Ms Brown [that is to say, counsel for M] developed the alternative submission that if that challenge is not made out, the decision was nevertheless flawed as the IAP failed to make the findings of fact upon which their decision purported to be based, and that in consequence the decision was irrational."
24.	As to that first ground of challenge, that is to say that the matter was decided solely on the basis of the School Behaviour Policy without any regard to proportionality or reason, the judge rejected that conclusion in a passage in paragraphs 25 to 29 of his judgment.  In that determination he referred to and relied on the witness statement of Ms Mathias.  Whether he should have done that, or could safely do that, is a matter that is in contention in this appeal and to which I shall have to return.
25.	But save for that point I did not understand any other complaint to be made about that part of the judge's findings.  And in any event, subject, as I say, to the question of whether he could safely refer to what Ms Mathias had said, I do not think that any ground could be adduced to undermine the judge's crucial conclusion.
26.	I turn then to what was originally the second point, that has loomed very large in the argument in this appeal; that is to say, the contention that it has not been demonstrated that the Independent Appeal Panel made the necessary findings of fact to ground its decision.  If of course it did not find the facts that based its conclusion, then no doubt that would be a ground of irrationality about which complaint could properly be made.
27.	This argument devolves very largely on the question of the status of the evidence adduced by the Panel, and more particularly that of Ms Mathias.  As I understand the way in which the case developed, it was originally contended, that that evidence should not be admitted at all, because it is an ex post facto explanation of what the Panel did, and effectively the Panel's decision should stand or fall on the basis of its formal decision letter, already read.  Further elucidation of that was simply not admissible.
28.	The judge did not accept that argument.  He said in paragraph 22 of his judgment that it was in his view unobjectionable to advance evidence directed to inform the court about what had actually happened, as opposed to seeking to rationalise or justify a decision made on one ground by adducing another ground that might have been used but in fact was not.
29.	Since the admissibility of this evidence, in the sense of whether the court can look at it, is not now in issue, it is not necessary formally to rule upon that conclusion of the judge.  But for my part I would respectfully say that he was entirely right to take that view.  The warnings about admissibility of ex post facto evidence, to be found most conspicuously in the case of Ermakov are indeed principally directed at rationalisation or attempted explanation (usually by an official, rather than by members of the Committee), when there is no evidence that the Committee in fact had that matter in mind.
30.	Ms Brown however opens up quite a different front, which she also adduced in front of the judge.  She says that the evidence, although looked at by the judge, was on its face and in the circumstances unreliable, and should not have been relied on by him.
31.	That contention lies at the centre of this appeal, because in her evidence Ms Mathias gave a detailed and circumstantial account of what had happened at the Panel over which she presided, and what the reasons of the members of the Panel were for reaching the conclusion that they did.
32.	It is not necessary to set out all of that.  But in order to do justice to the argument that we have heard, it is necessary to quote some of it.  In doing that, I readily acknowledge that in Ms Mathias's statement there is a certain amount of repetition.  That is because she was principally answering very voluminous evidence that had been filed on behalf of M, which itself did not follow any clearly defined course.  One also has to remember that Ms Mathias is a lay person and does not draft an affidavit in the way that perhaps a lawyer would.  All that said, however, she was quite clear about what she wanted to tell the court.  In paragraph 5, she said this:
"We could not be sure whether M had found the knife in school or whether he had brought it in.  We were sure that he had a knife on his person, and that when he was asked by a member of staff, he did not hand it over.  Instead, he pretended to throw the knife away, when in fact he kept it.  There was no evidence that he was intending to hand the knife in at this point."
33.	And then in paragraph 7, answering a contention in M's evidence that permanent exclusion was a disproportionate sanction, Ms Mathias said this: 
"I do not agree with that.  The Panel felt that there was a good level of uncertainty about whether or not M was about to hand in the knife.  On the facts, we were not convinced he was.  We were sure that he had pretended to throw it away, but in reality had not.  We were also sure that M did not hand in the knife at his first opportunity.  We took account of the school's policy, but we also looked at all the facts of the case in reaching the decision.  We looked at the position carefully and whether we should overrule the decision of the governors, but on balance felt it was not appropriate to do so."
34.	Then a little further on, answering another part of the evidence, at paragraph 8b Ms Mathias reinforced the point that she had just made by saying this:
"We were of course aware that we could overrule permanent exclusion, regardless of the policy, if we considered it appropriate to do so.  If we had felt that Mitchell had found the knife and was on his way to hand it in, we would have overruled the permanent exclusion.  It would have been unreasonable for permanent exclusion to have been used if M was behaving responsibly.  Most of our discussions concentrated on this issue.  However, we were sure that M was not planning to hand in the knife and that he did not do so when first asked."
35.	And then again, directing herself to another part of the evidence, and therefore going back over points already made, she said at paragraph 9e:
"We found that M was in possession of the knife and that he did not hand it in when he was found out.  We did not come to a finding on whether he brought the knife into school or whether he found it.  We found that M had no reason not to hand the knife in immediately, and that he was aware of the school rules.  We felt that it was most likely that he handed it eventually as he had been found out, rather than that he was on the way to hand it in.  We were sure that when asked to hand in the knife, he did not.  I believe that we approached the case in the right way and took full account of the facts in reaching our decision."
36.	On the basis of that evidence, the judge found this in paragraph 34 of his judgment:
"I am satisfied that the IAP made the critical finding of fact upon which their decision was based, namely that M was not intending to hand in the knife.  The next question is therefore whether there was material before the IAP upon which they could properly arrive at that conclusion.  In my judgment, there plainly was.  It was open to them to infer from the fact that M did not hand in the knife when first asked to do so by Ms Burford, that he was not then intending to do so."
37.	It is clear from that that the judge indeed based himself on the evidence that he had from Ms Mathias.  In this appeal it is accepted that Ms Mathias was a honest witness, but she is said to be unreliable; in particular, because one should look critically at evidence given ex post facto.  However, the judge was well aware of that, and that is indeed what he did.
38.	I turn to paragraphs 37 and 38 of the judgment.  In paragraph 37, the judge addressed a point made by Ms Brown before him, and repeated at some length before us, that there had been what was described before the judge as a procedural impropriety, in that whereas in her first witness statement Ms Mathias had said that she had had no "input" into the decision letter written by Mr Couchman, in her second witness statement, meeting a complaint that the procedure was unusual, she said having looked at contemporary exchange of emails that she had indeed been sent the letter by Mr Couchman and had approved its contents.
39.	Now Ms Brown said that those two statements were unreconcilable.  It was simply untrue, though she did not put it quite like this, that Ms Mathias had had no input into the letter.  I do not agree, any more than the judge agreed.  The process is quite clear.  There is a significant difference between a member of a Committee whose decisions are drafted for her by an official having an "input" into the letter, and simply approving the letter when it is put before her.  What Ms Mathias made plain in her witness statement was that she could well wish that the letter in the event had been more detailed; and it was that detail that she sought to supply in the witness statements.
40.	The judge then went on, in paragraph 38, to address the general importance of this point in these terms:
"Ms Brown made the related point that the inaccuracy in Ms Mathias' first witness statement, exposed by the emails annexed to her second witness statement, calls into question her general reliability as a witness, and that her evidence should be disregarded in so far as it bears on the reasons for the decision at which the IAP arrived.  The discrepancy certainly gave cause for caution in the approach to her evidence, but as I have observed, support for her evidence is to be found in the contemporaneous notes."
41.	The judge therefore, as I say, did approach this evidence with caution.  But Ms Brown seizes on that last phrase of the judge that support for Ms Mathias's evidence is to be found in the contemporaneous notes; that is to say, the manuscript notes taken by Mr Couchman in the course of the hearing.  She says that the notes, far from supporting Ms Mathias's evidence, are inconsistent with it, and demonstrate therefore that the judge was wrong in finding support for Ms Mathias in the notes; and therefore wrong in assuming that he could safely act upon what Ms Mathias said. 
42.	The part of the contemporaneous notes to which our attention is particularly drawn is the last section, headed "decision".  There are set out a series of seven points, summarising the decision.  They read as follows, and I put numbers to them, though they are not numbered in the original:
"1.  Was pupil responsible for actions complained of?
"2.  Yes! Unanimous.
"3.  Was permanent exclusion/correct
 response/appropriate in the circumstances?
"4.  (On Siobhan's statement re. permanent
 exclusion -- agree it is an ambiguity).
"5.  Knives in schools are dangerous and should not be in them.
"6.  Two aspects. (i) re. bringing knives into school (school cannot prove he did/he cannot prove he did not) (ii) did he hand it in when he could do/was aware of permanent exclusions.
"7.  Unanimous.
43.	And then there is a further note:
"No special circumstances to justify departure from this decision."
44.	The part of his judgment in which the judge refers to the notes in context of Ms Mathias's evidence is to be found at paragraphs 30 to 33, where he is dealing with the alternative issue currently under review in this judgment as to whether the IAP had failed to make appropriate findings of fact.  The critical questions identified by the judge were first whether M had brought the knife into school or whether he had found it; and if the latter, whether he was intending to hand it in.  The judge said this at paragraph 31, as to the first question:
"It is clear from the contemporary notes and from the witness statement from Ms Mathias that the IAP were not satisfied that M had brought the knife to the school with him.  That in itself demonstrates that the IAP was quite properly taking an independent view of the incident."
45.	And the judge was quite right to find that the notes of fact supported that conclusion.  If we revert to line 6 of the notes and (i), the note, albeit brief, says:
"Re. bringing knives into school (school cannot prove he did/he cannot prove he did not)." 
46.	The judge was entirely justified in saying that that note supported what he had been told by Ms Mathias.  Of course, it does not put it in the same terms, and it puts it in a shorthand way that is not wholly surprising, granted that Mr Couchman was having to express, while it was going on, the no doubt ambulatory discussion between the members.  But to say that it is inconsistent with Ms Mathias's evidence is simply wrong.  
47.	At paragraph 32 as to the second ground, the judge said this:
"It was common ground that M had not handed the knife to Ms Burford when first asked to do so.  But thereafter, the accounts from M and Ms Burford diverged, he saying that he wanted to hand it to Ms Wood, she saying that he said that he was going to throw it away and pretended to do so.  According to the witness statement from Ms Mathias, the IAP came to the conclusion that he was not initially intending to hand it in."
48.			And then he quoted a passage that bears repetition from Ms Mathias's evidence --
"It would have been unreasonable for permanent exclusion to have been used if M was behaving responsibly.  Most of our discussions concentrated on this issue.  However, we were sure that M was not planning to hand in the knife and he did not do so when first asked."
49.	The judge went on in paragraph 33:
"The contemporaneous notes are not of course a complete record of the Panel's discussions, but again they bear out Ms Mathias's evidence that this central issue was addressed by the IAP."
50.	And indeed they do bear that out, because if we go back to (ii) of sentence 6 in the decision, that reads:
"Did he hand it in when he could do/was aware of permanent exclusions?"
51.	That shows again therefore that the judge was, again, absolutely right to think that the note, unsatisfactory though it may have been when standing on its own, did not undermine Ms Mathias's evidence. 
52.	It was noticeable in this case that the judge's reasoning and his decision does not appear to have been referred to at all in the grounds of appeal or in the skeleton argument.  We were in effect invited in those documents to start from scratch in a critical review of the reliability of Ms Mathias's evidence when viewed against the contemporaneous documents.  With some reluctance, that is the exercise upon which the court has embarked, as indeed the judge was invited to embark upon it.  It has had this benefit however, that after this evidence has been analysed with the benefit of detailed submissions from Ms Brown, it is absolutely clear to me that there is nothing in this complaint at all and that the judge was entirely justified in reaching the conclusion that he did upon it.
53.	I turn to the second ground, of irrationality, which the judge dealt with in paragraph 35 of his judgment in these terms:
"Ms Brown also sought to argue that the decision was irrational on the basis that M's failure to hand in the knife when first asked to do so was not sufficiently serious to warrant his permanent exclusion.  In my judgment, the IAP was justified in coming to the view that the incident was so serious that permanent exclusion was justified.  It was fully entitled to take the view that the possession of a knife in such circumstances was an extremely serious matter."
54.	The judge then went on to say that that view was borne out by reference to the guidance by the Secretary of State; guidance to which I shall have to revert at the end of this judgment.
55.	That finding by the judge is completely unappealable.  There was ample material upon which this Panel, expert as it is, and giving detailed attention to the facts, could conclude that it was justified in upholding the exclusion.  It is quite clear from Ms Mathias's evidence that that was a matter of great anxiety, as she has explained.
56.	There was no possible way in which the judge could go behind that, once it was established that the Panel had indeed made findings of fact upon which its conclusion was based; and there is certainly no ground upon which this court can interfere.
57.	I turn to the last point which is the judge's failure, it is said, to deal with an issue that arose about the Secretary of State's guidance.  It is accepted on all sides that guidance given by the Secretary of State is something that should weigh with people who have to make the very difficult decisions that the school had to make in this case.   
58.	The first part of that guidance stresses the availability, to put it at its lowest, to educational institutions of the ability to exclude people who carry knives.  It then goes on to address certain general considerations; in particular in relation to this case, those of pupils with special educational needs.  Like all of the children at this school, M was the recipient of a Statement of Special Educational Needs and therefore fell into this category.  The guidance says in paragraph 13.2:
"Other than in the most exceptional circumstances, schools should avoid permanently excluding pupils with statements."
59.	He then goes on to address other considerations that arise in such cases, and how they should be managed, should exclusion in fact take place. 
60.	The complaint is that although it was alleged that the Independent Appeal Panel had not addressed, certainly had not adequately addressed, that part of the guidance, the judge made no finding on that point.
61.	The history of the matter is this.  This complaint was not raised in the extensive statement of grounds that supported the application for judicial review.  It did not emerge until the last paragraph, paragraph 42, of the skeleton argument prepared on behalf of the appellant for the hearing of the judicial review application.  That skeleton was dated the 12th May 2004, the hearing being the 28th May.  It is not addressed either in Ms Mathias's first witness statement, which of course was written on the basis of the grounds of appeal and therefore did not appreciate that this was an issue; nor is it addressed in the second witness statement that she made on, I think, the 18th May, in order principally to meet the complaint already discussed about her connection with Mr Couchman's writing of the decision letter.
62.	It is entirely understandable, indeed inevitable, that it did not appear in her first witness statement; and in my view, it is understandable also that this point was not addressed by her immediately the skeleton argument was produced, in view of the lack of attention paid to the point in the previous preparation of the case.
63.	What apparently happened at the hearing below was that counsel for the Panel pointed out that this matter had not been, in technical terms, pleaded; and suggested that if it was a separate ground, it ought to be set out as such.  We are told by Ms Brown that the judge made no finding on that submission.  She therefore understood that the point was still in issue.
64.	I will proceed on that basis; and proceed on the basis that the judge indeed did not address the point that was before him.  I am however quite clear, looking at it now and looking at it for the first time in this court, that the Panel was and must have been well aware of this point.
65.	There are a number of matters that point inevitably in that direction.  First of all, the decision letter, as we have seen, said that the Panel took into account the Department of Education and Skills' guidance in related circulars.  Ms Brown sought to suggest that that was incorrect; principally because in the contemporaneous notes, no specific reference was made to that point.  But the decision letter was written on the next working day after the hearing.  Unless Mr Couchman had gratuitously put into the letter something that was simply not true, it must have been the case that the guidance was before the Panel.
66.	Next, we in fact know that the Panel's attention was directly drawn to the position of M, so far as special educational needs is concerned, and to this very circular.  That is made plain in the first witness statement of M's mother, in which she describes her attendance at the Panel, attendance that as we have noted the Chair of the Panel found to be helpful; and first asked Mr Murphy, the headmaster, questions about the school's Behaviour Policy.  She then says this, in paragraph 54: 
"I then referred the panel to the DfEE circular of 10/99, which indicates that they should avoid permanent exclusion at all costs and permanent exclusion was a last resort.  I confirmed that M did belong to groups that were at high risk of being permanently excluded.  He had a Statement of Special Educational Needs and was from an ethnic minority."
67.	The Panel therefore, even if it (almost inconceivably) was not aware of this guidance already, had it forcefully put in front of it in the specific context of this young man.  It was also no doubt aware of the fact that all the pupils of this school, including M, had such Statements.  
68.	When we turn back to the note of the proceedings, there being no evidence from Ms Mathias on this, it will be recalled that the final entry on the note reads:
"No special circumstances to justify departure from this decision."
69.	Ms Brown says that cannot be a reference to the circular or to Statements of special education needs, because that policy speaks in terms of "most exceptional circumstances" not "special circumstances".
70.	I am afraid I have to say that that submission reflects some of the inappropriately detailed analysis of the documents that has occurred in this case.  Looking at the matter in the round, particularly against the background of the information that we do have about what happened at this Panel hearing, I have not the slightest doubt that when that observation was recorded, it recorded a finding that, with the Department of Education's circular well in mind, they could not rely on the considerations in that circular in order to depart from the decision that they had reached.   
71.	Accordingly, I am quite satisfied that if the judge had addressed this point, and I well understand why he did not, he would have reached the conclusion that I have just set out.
72.	I appreciate that the dismissal of this appeal will be disappointing to M, and possibly more disappointing to his mother.  They may both take comfort from the fact that this incident has now been reviewed by four judges of the High Court and four Lord Justices of Appeal.  I hope that is some indication of the seriousness with which the judicial structure of this country treats matters affecting the exclusion of pupils from schools.   
73.	MR JUSTICE LLOYD:  I agree.  Simply as a footnote to my Lord's judgment when he was dealing with the last ground of appeal, he referred to the hearing as having taken place on the 28th May.  I think I am right in saying that was the date of on which judgment was delivered.  The hearing was on the 20th May; so there was even less time between Ms Brown's skeleton as first instance and the hearing.  As I say, I would also dismiss this appeal.
74.	LORD JUSTICE POTTER:  I too agree.  The appeal will therefore be dismissed.
Order:  Appeal dismissed.  Legal Aid Assessment.