CA-2025-002133 - [2025] EWCA Civ 1335

Conclusion

For these reasons I would allow this appeal. My conclusion at [63] above is that it was not reasonably open to the GDC to conclude that the misconduct was “extremely serious”, having regard to the lists which I refer to in that paragraph. That, of course, has implications for the relief which I would grant. That, in view of the judgments of Elisabeth Laing and Arnold LJJ is not a matter which requires further consideration. The same applies to the Respondent’s Notice.

Lady Justice Elisabeth Laing:

Introduction

As Edis LJ has explained, there are three grounds of appeal. He has set out the background fully, so I need do no more than briefly to explain my views on each ground.

In order to that, I will, first, say something about the relationship between the two policies to which he has referred. I will then summarise the grounds of challenge in the Administrative Court and the Judge’s findings on those. I will refer to the decision which is challenged on this appeal as ‘the Decision’, to the body which made it as ‘the Panel’, and to permanent exclusion as ‘PEX’.

The relationship between the two policies

The two relevant policies are both published by the school. These documents are policies, not legislation. It is inherently unlikely that they were intended to set different tests, or that they were intended to diverge from the statutory guidance. That would simply cause confusion. Because of the arguments on the appeal, it is nevertheless necessary to clarify which of the school’s policies was relevant to the Decision and to the Judge’s judgment. There appears to have been some confusion about this, which is evident in the judgment, and, to some extent, in the submissions of the parties at various stages. It seems that the Judge was not given the help which he should have been given to identify the correct policy.

The legal framework is relevant to this question. Edis LJ has summarised sections 88 and 89 of the 2006 Act. We have not had submissions about these provisions, but they make it clear that Parliament has made discipline the responsibility of the governors, and the behaviour policy that of the head teacher. The effect of these provisions is a school’s behaviour policy is for the Head Teacher to formulate, but that in formulating that policy, he must ‘act in accordance with’ any general statement of the governing body; and everyone must have regard to the Secretary of State’s guidance (see regulation 9 of the Regulations). The Exclusion and Suspension Policy’ (‘Policy 1’) is the relevant general statement by the governors. Policy 1 apparently tracks the guidance, although it does not use exactly the same words in relation to ‘limb 2’. In formulating the behaviour policy (‘Policy 2’), the head teacher was obliged to ‘act in accordance with’ the general statement by the governing body. He could not, therefore, lawfully depart from Policy 1 when he formulated the Policy 2. In particular, he could not lawfully impose, in Policy 2, a stricter test for PEX than the test in Policy 1, which in turn follows the test in the Secretary of State’s guidance; nor, in any event, could such a test bind the Panel when discharging its statutory functions.

It seems that Policy 1 is reviewed annually in March (see p 187 of the Supplementary Bundle). It seems that Policy 2 is reviewed annually in October (see p 200 of the Supplementary Bundle). As both their titles, and their detailed contents show, the policies cover different topics, although there is some overlap between them (as the passage on p 12 of Policy 2, on which Mr Persey relied heavily, and which the Judge quoted) shows. The section headed ‘Legislation and statutory guidance’ in Policy 1, which starts on page 4, makes it clear that Policy 1 ‘adheres to the policy and practice which informs the schools [sic] use of suspensions and exclusions and should be read in conjunction with the statutory guidance from the Department for Education’. There is no equivalent passage in Policy 2. Nor does Policy 2 refer to what was described in argument and in the Judge’s’ judgment as ‘limb 2’ of the test for PEX. Mr Persey had to accept that limb 2 applied in this case, and was driven to submit that its absence from Policy 2 was a ‘lacuna’ in Policy 2. It is not a lacuna in Policy 2, because Policy 2 is not the relevant policy; and limb 2 is in Policy 1.

My clear view is that the relevant policy, which the Panel were bound to apply, was Policy 1, which is intended to comply with, and tracks, the two limbs of the test for PEX in the statutory guidance. The minutes of the meeting of 3 March 2025, under the heading ‘Panel deliberations’ show clearly that the Panel applied the words of the test in Policy 1, echoing the statutory guidance, and not words of the test in Policy 2, and that the Panel was satisfied that SAG’s conduct was ‘a single serious breach’. That aspect of the Panel’s reasoning was not criticised by the IRP in any way. This is not surprising, as the submissions made to the IRP by SAG’s representatives accepted that that was the test which applied.

If the Judge was right in his conclusions about the application of Policy 2, it follows that he would have reached the same conclusion if he had applied Policy 1. I reject Mr Persey’s submissions that in, Policy 2, the school had consciously departed from, and adopted, a stricter test for PEX than the test for PEX articulated in Policy 1, and/or that because Policy 2 had a later date than Policy 1, the school had replaced Policy 1 with Policy 2. If the applicable policy is Policy 1, I note that Mr Persey expressly accepted in oral argument that the Appellant’s conduct was ‘serious’; according to Mr Greatorex, for the very first time in these proceedings.

Policy 2 is nevertheless material to an understanding of the background to the issues. In his oral submissions, Mr Greatorex showed us several passages in Policy 2. The school has many challenges which are described on p 1 of Policy 2. It is clear from the terms of Policy 2 that the school has very high expectations of its pupil’s behaviour, for many obvious reasons. The school believes that ‘effective discipline and good behaviour’ are essential to help pupils learn. All staff believe that pupils can behave well and have ‘high expectations of them at all times’. Pupils are expected to take responsibility for their actions. Good behaviour ‘supports high achievement and good progress’. The aims of Policy 2 include setting high expectations of pupils’ behaviour in the classroom and outside, promoting self-discipline and respect for authority and supporting good behaviour through procedures applied fairly and consistently. Pupils are to ensure that mobile phones are not seen or heard in school. If a member of staff sees or hears a pupil using a mobile phone ‘when not directed to a learning task’ he or she ‘should expect to have’ his or her phone confiscated. Arnold LJ suggested to Mr Persey in oral argument, the Appellant’s attempt to recover possession of her confiscated mobile phone was an act of ‘pure defiance’. His answer was that ‘she could not see why it mattered’ that she had a SIM card.

My clear view, therefore, is that Policy 2 is irrelevant to the legal issues on this appeal. But if necessary, I would uphold the Judge’s interpretation of the passage on p 12 of Policy 2, on which Mr Persey relied. Edis LJ understands that passage as imposing a higher bar for PEX than does the relevant text of Policy 1. I respectfully disagree, for three reasons. First, as I have already said, it is inconceivable that the school could have intended to have two policies, covering the same ground, which required decision-makers to apply different tests. Second, the real issue is not a semantic issue, but one of substance. Whichever form of words is used, the real question is whether the Panel were entitled to decide that SAG’s behaviour was serious enough to warrant PEX. It is inconceivable that the head teacher, and, in turn, the Panel, did not understand that very well. Third, the features of the legal scheme to which I have referred mean that (if Policy 2 is the relevant policy) this court should lean against an interpretation of Policy 2 which would indicate that the head teacher intended to impose a test on the Panel which he had no power to impose.

The grounds of challenge in the Administrative Court

The grounds of appeal in this court are not the same as the grounds of challenge in the Administrative Court. There is nothing wrong with that, if and to the extent that the grounds of appeal are criticisms of the Judge’s approach, rather than new arguments about the Decision. Edis LJ has set those out in paragraph 38, above.

In the Administrative Court, there were three grounds for judicial review.

The Panel was unreasonable and irrational to find that the Appellant’s ‘conduct was a sufficiently serious breach of the School’s behaviour policy to impose’ a PEX. In this context, the grounds quoted the text of the Policy 2 but not the text of the relevant policy, which is Policy 1.

The Panel was unreasonable and irrational to find that if the Appellant stayed in the school that would ‘seriously harm’ her education or of others such as the other pupils or the staff. I will refer to that as ‘the limb 2 challenge’. First, there was no ‘cogent evidence’ to that effect. Second, the Panel relied in part on a wrong view that the Appellant’s conduct amounted to an offence of burglary, contrary to Theft Act 1968.

The Panel unreasonably and irrationally failed ‘to adequately consider’ alternatives to PEX. The school could have imposed ‘alternative more proportionate sanctions’ such as suspension, banning the Appellant from school trips, or learning support or a behaviour contract.

The Judge’s approach

The Judge’s general approach

It is not suggested that the Judge misdirected himself about the test for irrationality. In paragraph 37, he cited paragraph 45 of the decision of Fordham J in R (RWU) v Governing Body of A Academy [2024] EWHC 2828 (Admin), and in paragraph 38, paragraphs 56 and 57 of the judgment of Chamberlain J in R (KP) v Secretary of State for Foreign, Commonwealth and Development Affairs [2025] EWHC 370 (Admin). RWU was also a PEX case.

I would only add that the reasoning in Pham (see paragraphs 45, 56 and 65, above) is not relevant. In that case, the Secretary of State made an order depriving the appellant of his British citizenship. He appealed to the Special Immigration Appeals Commission (‘SIAC’). The preliminary issue in SIAC was whether or not the effect of that order was to make the appellant stateless. SIAC held that it was. The Court of Appeal and the Supreme Court disagreed. So the Secretary of State’s appeal against SIAC's preliminary ruling succeeded in both courts.

The case was remitted for SIAC to consider the merits of the appellant's appeal. The members of the Supreme Court had various things to say about how SIAC should do that. The first point is that that reasoning is all obiter. The second point is that at the relevant time the United Kingdom was a member state of the European Union. The court's statements about proportionality are tied to that situation, and to the important relationship between national citizenship and the concept of citizenship of the EU.

Ground 1 in the Administrative Court

The Judge considered ground 1 in paragraphs 43-55. The Panel was not a ‘tribunal of appeal from the Head Teacher, but part of a single decision-making process within the school in which both play a role’ (paragraph 43). The Panel’s reconsideration was part of that. The Panel was not simply reviewing the decision of the Head Teacher but taking the decision for itself (paragraph 44). The Panel’s job in reconsidering its decision was to ‘put…right what the IRP had identified as going wrong at the reinstatement decision stage’ (paragraph 45).

The Head Teacher had made evaluative judgments about both limbs of the policy test in the statutory guidance and in applying the school’s Behaviour Policy. In deciding the seriousness of the breach, and whether allowing a pupil to stay in the school would ‘seriously harm’ others ‘involves an evaluative judgment by the person in whom the discretion is vested. Given the factors to be taken into account by those making those evaluative judgments the court must afford those decisions a degree of respect (R (KM) v Cambridgeshire County Council [2012] UKSC 23; [2012] PTSR 1189 at paragraph 36)’ (paragraph 46). I note that KM is a community care case, not a PEX case.

The Panel had paid ‘specific regard’ to the ‘points to consider’ made by the IRP. It also considered the Appellant’s written submissions and explained why it disagreed with them. It considered limb 2 (paragraph 47). It was clear that the Panel’s view was that both limbs were met (paragraph 48). ‘The minutes have to be read fairly and as a whole. They have to be read in context and bearing in mind that they are written to an informed audience, and bearing in mind that they are part of a single decision-making process (paragraph 55). The Judge referred to paragraph 75 of RWU.

The first part of that process was the decision of the Head Teacher. The Head Teacher referred to ‘a serious breach of the School’s Behaviour Policy, and identified the facts on which that judgment was founded, namely that [the Appellant] was in possession of a mobile phone with a SIM card in it, and was found in a teacher’s room without permission’. The Judge referred to the school’s Behaviour Policy. The list in that policy was a list of examples and not exhaustive. In the first instance, it is for the Head Teacher to decide whether an incident is ‘extremely serious’. In this case, the Head Teacher, ‘making an evaluative judgment’ determined that having a mobile phone with a SIM card and being found in a teacher’s room without permission amounted to a serious breach of the school’s behaviour policy’ (paragraph 51).

The Judge considered that ‘reading the minutes fairly and [as a] whole, and applying an intense degree of scrutiny, the reference to the criteria for the first limb not being disputed must be understood as meaning that the facts which formed the basis for the finding on the first limb were not in dispute’ (paragraph 52). His overall conclusion was that if the process was considered as a whole, the Decision could not be ‘properly described as irrational or unreasonable’. He explained why in paragraph 53. He had reached that decision ‘applying a high intensity of review’. The result would have been the same if he had taken a more benevolent approach (paragraph 54).

Ground 2 in the Administrative Court

The Judge said, in relation to ground 2, that the Panel had followed the recommendation of the IRP by explaining, in 17 bullet points, why it considered that limb 2 was met (paragraph 58). He recorded the seventh and tenth bullet points (paragraphs 59 and 60). He said that ‘Whether limb 2 was satisfied was a matter of evaluative judgment for the school as part of the single decision making process. He said that the minutes (which, I note, are both the Decision and the Panel’s reasons) ‘have to be considered as a whole and ready fairly. Taking that approach and applying a high intensity of review’ he reached five conclusions (paragraph 61).

He accepted that the Panel was wrong to label the Appellant’s conduct as ‘burglary’. But it was not disputed that the Appellant had been found in a teacher’s room without permission. ‘That is the essence of the point being made in that bullet point’. That fact was ‘material’. The reference to ‘burglary’ did not add to the head teacher’s exclusion letter, ‘was not decisive and did not have a material impact on the reasoning’ (paragraph 61.ii)).

The reasoning in the tenth bullet point was not speculative. It was based on an evaluative judgment of the governors. It was not disputed that the Appellant had gone into a teacher’s room without permission to search for property, even if it belonged to her. The reasoning was a judgment based on ‘undisputed facts’. He pointed out that the school had made an exception from the general rule prohibiting mobile phones, subject to the condition that there was no SIM card in the phone. She had breached that condition, and had gone into a teacher’s room without permission.

The judgment that the teachers felt let down and vulnerable could not be said to be irrational (paragraph 61.ii)) Mr Persey had not identified any ‘break in the chain of logic’. The 17 bullet points ‘combined lead to a finding that allowing [the Appellant] to remain in the school would seriously harm the students, staff and the wider school community, and that the second limb was satisfied. That was a matter of judgment for the Governors’ (paragraph 61.iv)). If the minutes were read as a whole, ‘as part of the overall school decision making process, the evaluative judgment reached cannot be said to be irrational or unreasonable’. The Judge said that he had reached those conclusions applying a ‘high intensity of review’ of the process. He would have reached the same conclusion if he had taken a ‘more benevolent approach’.

He added that in case the reference to burglary in the seventh bullet point was an error of law, he had applied section 31(2A) of the Senior Courts Act 1981 (‘the 1981 Act’). He cited paragraph 73 of the judgment of Lewis LJ (with which Singh LJ agreed) in R (Greenfields (IoW) Limited v Isle of Wight Council [2025] EWCA Civ 488.

Lewis LJ said that the court is ‘considering the decision …and assessing the impact of the error on that decision in order to ascertain if it is highly likely that the outcome (the decision) would not have been substantially different even if the decision-maker had not made that error. It is not for the court to try and predict what the public authority might have done if it had not made the error. If the court cannot tell how the decision-maker would have approached matters, or what decision it would have reached, if it had not made the error in question, the requirements of section 31(2A) are unlikely to be satisfied’.

The Judge noted that the Panel had not provided a witness statement. His judgment was that no such evidence was required. ‘The question is whether it is highly likely that the decision would not have been substantially different if there had been no reference to burglary in the seventh bullet point…of the minutes…’ (paragraph 67). The point of substance was that the Appellant had gone into a teacher’s room without permission. Whether or not that ‘undisputed act’ amounted to burglary or not ‘had no material impact on the decision making process or the reasoning. As a result it appears to me to be highly likely that the outcome for [the Appellant] would have not have been substantially different if the conduct complained of had not occurred’. By the latter phrase, I think that the Judge meant ‘if the conduct had not amounted to burglary’.

Ground 3 in the Administrative Court

The Judge considered ground 3 in paragraphs 72-79. He repeated that there were four stages in the decision-making process. The Panel considered in its first decision whether the sanction of PEX was proportionate and whether alternatives would be appropriate. In the Decision the Panel said that they believed that they had acted in best interests of all the parties in consulting the Head Teacher about alternatives to PEX. The first decision had been quashed, but in the Decision the Panel referred to its reasoning about alternatives in the first decision. The Judge considered that (on either of two bases) that the Panel had considered alternative sanctions in the Decision. That part of the Judge’s reasoning was not challenged on this appeal. The factual premise of ground 3 was not made out (paragraphs 72-77). He had reached that conclusion applying a high intensity of review but would have reached the same.

The approach of this court on an appeal

The Appellant has not identified any material express misdirection of law by the Judge. I say that advisedly. I will explain why below. I consider that, on analysis, the grounds of appeal criticise the evaluative assessments of the Judge. This court will only interfere with such assessments if they are wrong.

Ground 1

Ground 1 appears to rely on an error of law, but, on analysis, it is a criticism of an evaluation by the Judge. The key issue in relation to ground 1 is whether the Judge’s approach to his fall-back position, which was to apply section 31(2A) of the 1981 Act, is wrong, or not.

The Judge faithfully applied the legal approach which was explained by Lewis LJ in the Greenfields case (see paragraph 111 above). It is clear from Lewis LJ’s formulation that whether section 31(2A) of the 1981 Act applied was, in the first instance, for the Judge to assess. I can see no error of law in his approach. He accepted that the reference to burglary was ‘erroneous’. His expert assessment was that if that error of law had not been made, it was highly likely that the outcome for the Appellant would not have been substantially different. Mr Persey submitted that ‘We cannot tell what decision the Panel would have made without this’. But that is not the question for us, as I have just explained.

The reason for that, in short, was that the Panel’s real concern was not what legal label should be given to the Appellant’s conduct, but what it amounted to in substance, and whether that conduct met the two limbs of the test for PEX in Policy 1. The initial approach of the Panel is relevant here (see paragraph 93, above).

I would summarise it in this way. The position of the authorities throughout the decision-making process was that the Appellant’s conduct was a serious breach of trust. There were two aspects of that conduct. Mobile phones were banned on this school trip (see the graphic prohibition on p 40 of the Supplementary Bundle). Because of her unique circumstances, the school made an exception from that ban for SAG alone. She was allowed to have a mobile phone, but only if it did not have a SIM in it. In breach of that condition, she was found to have a SIM card in her mobile phone. The school then properly confiscated it. She then got hold of a key to the hotel room of a teacher, used the key to enter the room, and searched the room for her phone. Further concerns were evident from the Decision are that she did not take responsibility for actions, lied initially, and did not apologise until after she had been permanently excluded. The Panel were entitled to be satisfied, for the reasons they gave in the Decision, that limb I and limb 2 of the test for PEX were both met. I do not consider that SAG’s witness statement, which was made for the purposes of the application for judicial review, and which was not before the Panel, helps this court in any way with the legal issues on this appeal.

Ground 2

I have already explained why I do not consider that the relevant policy is Policy 2. But even if it is, I consider that the Judge did not err, as a matter of construction, in concluding that it was open to the Panel to conclude that the Appellant’s conduct met the test in Policy 2. The Judge was right to say that whether the relevant test was met was, in the first instance, a question of evaluation for the Head Teacher and then for the Panel. The question of substance, as I have explained (if, contrary to my clear view, Policy 2 was relevant), was whether SAG’s conduct was serious enough to warrant PEX. As I have said, it is inconceivable that the Panel failed to understand that. I therefore respectfully disagree with the conclusion of Edis LJ in paragraph 63, above.

The passages in Policy 2 to which I have referred are relevant to this question, and they point to a further factor. Unlike the Judge, and unlike this court, the Head Teacher and the Panel are immersed in the day-to-day running of the school and in the best possible position to evaluate the seriousness of the Appellant’s conduct in that context, and the further question of whether that conduct was serious enough to warrant PEX. The views of this court about whether or not the penalty of PEX was or seems harsh, or whether or not this court would have imposed such a penalty are irrelevant. That point is reinforced, as Mr Greatorex submitted, by the structure of the statutory scheme, which shows that even in the stages before court proceedings, the grounds for intervention by the IRP in the affairs of the school are limited to judicial review grounds, and do not permit the IRP to interfere with the merits of the school’s decision. A court which substituted its view about the appropriate penalty for that of the governors would subvert that statutory scheme.

Ground 3

I would make four main points about ground 3.

First, it articulates a surprising criticism from a textual point of view. The Judge was referred to the judgment in RWU. He said, more than once, that he had applied a ‘high intensity of review’ to the Decision. So if he was obliged to take such an approach, Mr Persey was not able to point to any express misdirection of law. On the contrary, the judgment is, on this point, peppered with correct directions in law. If a ‘high intensity of review’ is the right approach, this court must assume that that is indeed the approach which the Judge took, unless it can be shown that he did not.

The first point leads into the second. Mr Greatorex complained, with some justification, that Mr Persey had not identified any failures by the Judge to take the approach which he said he had taken, and that this ground amounted to no more than an assertion that the Judge must have failed to review the Decision with a ‘high intensity’ for the sole reason that the Judge had dismissed the application for judicial review. The closest Mr Persey came to explaining how he submitted that the Judge had gone wrong was his assertion that the reasoning of the Panel reflected ‘extremely poor decision-making’ and was ‘not precise’. That is not accurate. But even if it were, it still not be sufficient, in my judgment, to impugn the approach of this lay panel.

The third point is that the judgment in RWU is careful not to impose too stringent a standard of ‘intense review’ in this context. Fordham J summarised his conclusion about this in paragraph 58 of his judgment in that case: when its first decision has been quashed (as in this case) the court should approach such a panel’s reconsideration of a decision of a Head Teacher ‘with close scrutiny, with reduced benevolence, and with a heightened reluctance to allow any resort to Retro-Reasons, but always taking a straightforward, not a legalistic, nit-picking or technical, approach to reasons and the way they have been expressed’. I reject Mr Persey’s unrealistic submissions that if the Decision required intense review, it had to be shown that the Decision was ‘in no way flawed’: he came close to accepting in Reply that such an approach would require the Panel to instruct lawyers. I also reject his submission that the reasons must mention expressly every factor which told in favour of the Appellant; and I would also observe that I can think of no such factor which was not referred to by the Panel. Lastly, I reject his ambitious submission that in this case, there was only one decision which was lawfully open to the Panel. That submission was inconsistent with a later submission that the decision was ‘finely balanced’. Indeed, and although my view is irrelevant, I consider that there were cogent factors which supported the approach of the school.

Fourth, I do not understand, in this context, what a ‘high intensity of review’ adds to the approach which any court takes when considering a decision which has serious implications for a claimant. As Fordham J acknowledged, it is especially important in this context that the court does not demand a standard of reasons from a panel which is unrealistically demanding. I would add that the panel is not made up of lawyers. The governors are lay people who give up their free time out of sense of public duty. As I understand it, they are not paid. They have to make difficult decisions quickly. If the court demands that their reasons are free of any legal error, or other blemish of reasoning or expression, they will have to have a legal adviser present throughout the hearing, as their reasons consist of the minutes of the meeting. That will increase the cost and formality of their proceedings, to no useful purpose. This court is not bound by Fordham J’s decision. I would prefer to express no view on this point, as, even if his approach is applied, the Decision passes the standard which he described and applied (see paragraphs 67-81 of his judgment, in which he rejected all of leading counsel’s criticisms of the reasoning of the panel in that case).

I have carefully considered Edis LJ’s other criticisms of the reasoning of the Panel. Even if a ‘high intensity of review’ applies, I do not consider that they show that the decision of the Panel was irrational or otherwise unlawful, or that any material aspect of the Judge’s reasoning was wrong.

For those reasons, I would dismiss this appeal.

Lord Justice Arnold:

This is a troubling case for three reasons. First, there is an individual at the centre of it whose education and well-being are at stake. She has been subjected to what some may consider a harsh penalty for her admitted misconduct. Secondly, in its second decision the Governor’s Disciplinary Committee (“the GDC”) made what the School accepts was a clear error in stating that SAG had contravened “section 91A of the Theft Act 1968”. This invites the question why the GDC considered it appropriate to refer to the criminal law at all at that stage of the proceedings. That together with the GDC’s treatment of SAG’s disciplinary record suggests a degree of confirmation bias on the part of the GDC. Confirmation bias is hard to avoid, however, when a decision-maker or decision-making body (including a court or tribunal) is required to retake a decision which has been quashed or set aside for procedural reasons. Thirdly, this Court has the misfortune to find itself divided as to the correct disposition of the appeal.

Edis LJ and Elisabeth Laing LJ have eloquently set out the arguments respectively for allowing and dismissing the appeal. Having considered their judgments with care, I agree with Elisabeth Laing LJ and respectfully disagree with Edis LJ. My reasons can be summarised as follows.

First, the legislative scheme confers responsibility for deciding whether a pupil should be permanently excluded on the headteacher and governing body of a maintained school. Once a decision permanently to exclude a pupil has been reviewed by an independent review panel and maintained, the decision can only be challenged on public law grounds. It is trite law that such a challenge does not entitle the courts to substitute their own views of the merits of a decision for those of the responsible decision maker. Even if a heightened intensity of review is appropriate in this context, as the judge held, it remains the case that courts lack the experience, background and detailed knowledge of the school to second-guess the judgement of headteachers and governing bodies: cf. R (SB) v Governors of Denbigh High School [2002] UKHL 15, [2007] 1 AC 100 at [34] (Lord Bingham of Cornhill).

Secondly, given the nature of the judge’s decision, this Court can only interfere with it if he erred in law or principle. SAG does not contend that the judge misdirected himself in law. Although appeal ground 1 alleges that the judge erred in law in finding (when considering SAG’s second ground for judicial review) that the GDC’s conclusion that SAG had committed a criminal offence was immaterial to its decision that the second limb of the test for permanent exclusion was satisfied, I cannot see any error of law in the judge’s application of section 31(2A) of the Senior Courts Act 1981. In reality this is a challenge to the judge’s evaluation. In my judgment he was entitled to reach the conclusion that he did.

Similarly, although appeal ground 2 alleges that the judge erred in law in finding that the GDC lawfully applied the School’s Behaviour Policy, I again cannot see any error of law in the judge’s approach. It is important in my view to note that SAG did not, in her grounds for judicial review, contend that the GDC had unlawfully applied the School’s Exclusion and Suspension Policy (“Policy 1” in Elisabeth Laing LJ’s judgment) rather than its Behaviour Policy (“Policy 2”). Any such challenge would have faced the difficulties identified by Elisabeth Laing LJ in her judgment. Rather, SAG’s first ground was that the GDC’s decision that SAG’s conduct amounted to a sufficiently serious breach of the Behaviour Policy to justify permanent exclusion was unreasonable. Given that it is plain that the GDC applied the statutory guidance and the Exclusion and Suspension Policy, it is inherent in that formulation of the challenge that SAG accepted that there was no relevant difference between the two policies. It appears that it was only on this appeal that counsel for SAG argued that the Behaviour Policy imposed a more elevated threshold for permanent exclusion than the statutory guidance and the Exclusion and Suspension Policy and that the GDC was required to apply that more elevated threshold. Thus, as counsel for the School submitted, this ground of appeal is either a new argument or at best a challenge to the judge’s evaluation. Again, in my judgment he was entitled to reach the conclusion that he did.

As for appeal ground 3, this alleges that the judge did not apply a heightened intensity of review, but the judge did just that. The argument that the judge did not do so is in reality an argument that he could not have done because, if he had, the only conclusion open to him was that SAG’s challenge to the GDC’s decision was made out. In my view that is not the case.