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

The finding that SAG committed burglary

The most striking example of the three points in [71] above is the assertion that SAG committed the offence of burglary, when she did not. This allegation had formed no part of the case against her at the hearing, and no further hearing was held in which she could deal with it. Paragraph 3(7) of the document refers, clearly enough so that it is intelligible, to s9(1)(a) of the Theft Act 1968 under which that offence was allegedly committed. Anyone with any awareness of the provision they chose to mention knows that the offence involves dishonesty. The judge said (without evidence) that all the GDC meant was that she had entered a room as a trespasser. But the sub-paragraph introduces the allegation with the phrase “while the Minutes of the original panel meeting did not specifically mention it”. The Minutes of the original meeting certainly did mention the fact that she had entered a teacher’s room where she had no right to be. That was the whole point of the discussion. So what then was it which had not been “specifically” mentioned? Only the fact that she thereby committed a criminal offence. The judge’s reading, that all this means is that she had entered the room when she should not have done, was not properly open to him on the language which the GDC had used.

Further, the list of points in which the burglary allegation is a list of points about the second limb, the consideration of whether allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others such as staff or pupils in the school. Before embarking on that list, the GDC had said this:-

“Governors noted that the facts of the incident had not been disputed; the student had admitted that the idea plan on how to retrieve her phone was hers, that she was found in a member of staff's room and illegally in possession of the room key, and had entered the member of staff's room without permission and with the intention of retrieving her phone which had been confiscated. The Appellant's 'suggestion' that because the PEX panel had not reviewed the "rules slides" for the school trip they could not conclude that a rule had been broken was therefore irrelevant.”

The GDC clearly intended to add something, relevant to the issue of whether “allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others such as staff or pupils in the school”, by the inclusion of paragraph 3(7). They had already said everything which the judge understood that paragraph to mean.

In my judgment, this is made even clearer by consideration of paragraph 3(10) of the reconsideration decision. This says that SAG’s return to school would give rise to concerns among other students as to their “safety” and “the vulnerability of their personal property”. If she were, in fact, a criminal and a thief then their safety and their personal property might be put at risk by her presence. Otherwise, there is simply no basis at all for this conclusion. The GDC was simply speculating. In other words, the observation about burglary was the only possible support for some of the important conclusions expressed in paragraph 3(10). This must mean that they gave effect to the words they had actually used, rather than those which the judge decided they meant to use.

It will be recalled from [23] above that the note of the at the hearing on 3 March records this exchange:-

“[One of the Panel] enquired whether while in the teacher's room, there was any evidence of tampering with, damage or loss to personal confidential information or student medication and [the Headteacher] confirmed that there had been no such damage or loss.”

Her entry into a room where such information, medication and other personal property created a theoretical risk to those things, but the panel was further told at the hearing, see paragraph 24 above, that there was no evidence that she was in the room for any other purpose than the recovery of her own phone.

Matters therefore appear to have turned for the worse for SAG between the March hearing and the April reconsideration. This is unexplained. The April reconsideration letter does not mention these points in her favour and contains instead a conclusion that she committed a crime which involves dishonesty. The assertions in paragraphs 3(7) and (10) of the reconsideration letter are unjustified for the reasons I have given, but that letter wholly fails to have regard to the points about culpability and harm which go in SAG’s favour. They were not trivial and had, after all, persuaded the GDC that permanent exclusion was disproportionate in their first discussion. They changed their mind after a discussion with the Headteacher which did not touch on proportionality but on the practical sufficiency of alternative sanctions. Having been properly criticised by the IRP for this, the GDC’s response was to ignore those matters entirely and to replace them with a false allegation of burglary.

I therefore accept Ground 1 and would allow the appeal against the judge’s decision on this ground against his findings on Challenges 1 and 2 which he had to consider. It seems to me that they were both tainted by his approach to paragraphs 3(7) and 3(10), which are to be read together as I have explained.