Scottish Sheriff Court Decisions

B1360/08

Act: Thomson, Adv; Messrs. Lawson Coull & Duncan, Solicitors, Dundee

Alt: Murray, Solicitor, Dundee City Council

 

 

 

Dundee, 22^nd. April, 2009 The sheriff, having resumed consideration of the cause, confirms the decision of the education authority of 26^th. September, 2008 as confirmed by the appeal committee on 2^nd. December, 2008; Repels all three pleas-in-law for the pursuer and appellant; sustains the plea-in-law for the defenders and respondents; reserves all questions pertaining to the expenses of the cause and assigns 6^th. May, 2009 as a hearing thereanent.

 

 

 

NOTE

 

[1] This case comprises a statutory appeal by way of summary application in terms of section 28H(6) of the Education (Scotland) Act, 1980, as amended, and relates to a child, C, who was excluded from a state secondary school in Dundee on 26^th. September, 2008 on the basis that, in terms of Para 4(b) of the Schools General (Scotland) Regulations, 1975 (SI 1975/1135), the education authority considered that "in all the circumstances to allow the pupil to continue his attendance at the school would be likely to be seriously detrimental to order and discipline in the school or the educational well-being of the pupils there."

 

[2] C's father, A, the pursuer/appellant herein, is, as it happens, a teacher at the school concerned.

 

[3] On or about 5^th. September, 2008, C was interviewed by detective officers of Tayside Police, in the presence of A, in relation to his alleged involvement in a number of serious sexual offences against boys aged between 6 and 12. He denied any involvement in any of the alleged offences. However, late at night in the course of the weekend of 5^th-7^th. September, the home of A and C was attacked by the father of one of the complainers and windows were broken.

 

[4] Very properly, A informed Mrs. V, a depute head teacher at the school, about what had taken place and she, in turn, informed the head teacher and the depute head teacher most closely involved with the oversight of the boy's education. A meeting took place at the school on or about 8^th. September attended by Mrs. L, the head teacher, Dr. C the depute head teacher, Mrs V aforesaid and C's father, A. At that stage, the senior management of the school was thus alerted as to what had taken place. At this stage, however, no charges had been proffered and the school had not received any information from any other source, in particular, from the police either via their community liaison officer or otherwise.

 

[5] On about 10^th. September, A became concerned about the behaviour of a number of fourth year boys known to be of challenging behaviour, who appeared to be watching him at the end of the school lunch break. He reported his concern that this might be related to the allegations against C to Dr C and identified a number of members of the group. Dr. C interviewed members of the group individually and ascertained that there was a conspiracy among the members of this group to assault C and that their behaviour had been encouraged if not instigated by a parent of one of the children who had complained to the police about being the victim of sexual abuse. Having sought to discourage the members of this group from their plan and having spoken with their parents or guardians about the need to allow the police and the legal system to deal with the circumstances and not to take any action of a violent nature, Dr. C was reasonably confident that he had succeeded in persuading this group of the error of their ways. Nonetheless, with the agreement of C and A, A being particularly concerned to protect his son from harm, it was agreed that a school resource worker, DA, would be instructed to accompany C from class to class at the end of each period and that other steps would be taken to ensure he was not alone at breaks and lunchtime. This system operated for about a week whereafter it was terminated at the request of C with the support of A as it was felt to be no longer necessary and was having the counter-productive effect of singling out C as a child in the school who was subjected to a different regime from all the others. Dr. C had misgivings about the withdrawal of the resource worker but did believe that the threat of harm to C had receded and therefore acceded to the request to terminate the system.

 

[6] One of the complainer's half sister was a pupil at the school and she appeared to be aware that C was the subject of police enquiries. She communicated that to various persons at the school, including a teacher, who initially dealt with the matter but also reported the occurrence to the school management who spoke to the girl and a parent about the inadvisability of communicating such information. There was no recurrence. Both C and the girl were moved so that there would be no contact between them in the normal course of the school day.

 

[7] P.C. CT of Tayside Police Central Division was the school liaison officer. He reported that some youths, some of whom were in the original group of conspirators, were gathering at local shops where they were in communication with a father of one of the complainers. The father concerned was spoken to by Mrs. L and told that his behaviour was not helpful and to let the law take its course. PC CT also informed school management that the community were waiting to see if C was charged with any offence and opined that if he were that that would "put a different complexion on things," and that the situation would change. It appeared to be considered at least in some quarters that being charged equated to being guilty and Mrs L was concerned that that might lead to "a large rammy" in a school corridor during the school day. She was concerned that C would be in danger. She was also concerned about the effect on order and discipline generally in the school of C's continuing presence there were he to be charged. She did not consider, however, notwithstanding her awareness in general terms of the nature of the allegations against C, that he was a risk to any child in the school. She did not make herself aware of the particular inquiries being made by the police or the particular nature of any of the allegations against him though she did know that the alleged victims were said to be boys between the age of 6 and 12.

 

[8] On 25^th. September, 2008, C appeared on petition at Dundee Sheriff Court facing twelve charges of engaging in lewd, indecent and libidinous behaviour involving six different boys aged between seven and twelve, including one charge of having unnatural carnal connection with an eight year old boy. He was admitted to bail on the standard conditions of bail together with special conditions not to enter a defined area of Dundee, to adhere to a curfew from 19.00 to 07.00 and not to approach any of the complainers. This required him to leave his home address.

 

[9] On Friday 26^th. September, Mrs L received a telephone call from James Collins, an Education Manager in the employment of the respondents, to the effect that Dundee City Council's Child Protection team had informed him of the charges against C and that he had appeared in court the preceding day. He told Mrs. L that the charges related to sexual offences of a serious nature involving children under the age of 12. His information had come from the police. While acknowledging that the decision was one for the head teacher, it was Mr. Collins' advice that C should not be on the school premises that day. Mrs L met with Dr. C and discussed the situation and the course of action she should take. She then from her office window saw that C and A were arriving at the school. Both she and Dr. C were aghast that A had brought C to school that day and Mrs. L was extremely concerned about what might happen to C. It was her immediate conclusion that C should not be on the school premises at least for that day.

 

[10] Mrs. L considered that there were only two options open to her. The first was to persuade A to remove C from school voluntarily. She asked A to join her and Dr. C and sought to persuade him to do this. He asked for time to consult his solicitor which was agreed. Having done so, he told her that he was not prepared to remove the child from school voluntarily. Mrs. L told him that she had no option then but to exclude the child from the school.

 

[11] Asked why she did not consider a return to the system whereby the school resource worker monitored C at period ends she said that it was not the function of a school resource worker to act as a bodyguard. In any event, C's co-operation with the system when it had been in place had been less than full. She was not sure that, once the content of the charges became public, the presence of a resource worker would be sufficient to protect C and she was concerned both about his safety and about the general disruption to order and discipline and thus to the wellbeing of the pupils at the school generally which might arise as a consequence of his presence on the school premises. Her biggest fear was that something would happen to C, specifically that he would be the victim of an assault.

 

[12] Mrs. L had been a head teacher for nine years. She had had 31 years experience of teaching, 25 at senior management level. She was plainly an intelligent woman of very considerable experience in the field. She was particularly assisted in her deliberations by Dr. C who had been a schoolteacher for 27 years and a depute head teacher since 2000. Between the two of them, they had a very clear perception of the effect on their school of the rumours and undercurrents circulating in both the school community and the locale from which the school population was drawn and they shared a very considerable concern that the presence of C would provoke a disturbance the control of which could prove to be beyond the capability of the school's staff in which there was a risk of injury to C and possibly other children incidentally.

 

[13] The decision to exclude any child from any school in Scotland is, as a matter of statutory provision, a decision for an "education authority." Since the Local Government (Scotland) Act, 1994, came into effect each of the newly created unitary authorities became education authorities and in the case of Dundee, the then newly created Dundee City Council was the education authority. In terms of s.56 of the Local Government (Scotland) Act, 1973, a local authority may arrange for the discharge of any of their functions by a committee of the authority, a sub-committee, an officer of the authority or by any other local authority in Scotland. By minute of 4^th. May, 1995 the shadow Dundee City Council, as it then was, determined to approve and adopt a Departmental structure as outlined in a report (Appendix 1) to that minute. On 9^th. January, 1996 the shadow Education Committee met and agreed to continue the existing Tayside Regional Council procedures. Parties were agreed that these procedures, so far as relevant to the present process, were set out in a document, "Managing Disruptive Behaviour - Guidelines" published in March 2006 by the respondents and in particular at page 36 in relation to exclusions which, it was agreed, states that the power of exclusion was delegated to the Director of Education in his capacity as an officer of the authority, and that he in turn had delegated that power to head teachers, except for cases of permanent exclusion. It follows that Mrs. L was the person to whom powers had been delegated by the respondents in their capacity as education authority to take a decision relating to the exclusion of a pupil at the relevant school where the exclusion was not intended to be a permanent exclusion.

 

[14] There was a dispute between the parties as to whether, in inviting A to remove C from the school premises on 26^th. September, it had been made clear that his removal was intended to be for that day only. While I am inclined to prefer the evidence of Mrs. L in this respect, the bottom line is that a meeting was set up for 2^nd. October to review the position. A thereafter undertook the appeal process by appealing the decision to exclude C to the Education Appeal Committee and thence to the court.

 

[15] There was, in fact, very little in dispute, so far as the facts were concerned, and I regarded both Mrs. L and Dr. C as entirely credible and reliable witnesses. Similarly, I regarded A as substantially credible and reliable though his assessment of the approach which should be taken to deal with the circumstances was inevitably different.

 

[16] Mr. Murray, for the respondents, directed me to the case of Wallace v Dundee City Council 2000 SLT (Sh.Ct) 60 as a case which set out the correct legal approach to dealing with a summary application of this nature, relating to the exclusion of a child from school. The sheriff, he said, required to consider the decision of the head teacher and be satisfied that that decision was justified in all the circumstances. This case had involved a 14 year old pupil of Menzieshill High School in Dundee who had had some degree of involvement in starting a fire which had caused extensive damage to the school, though he had neither been prosecuted nor referred to the Childrens' Hearing. The head teacher had taken a decision to exclude the boy on the basis that he had had some involvement in starting the fire and that re-admission to the school would be detrimental to the smooth running and order of the school on account of resentment on the part of both staff and pupils at the harm caused by the fire. It was argued, in response, on behalf of the boy that there was no evidence that his continued presence in the school would cause serious detriment and that no account had been taken of the presumption of innocence nor of the boy's previous good behaviour record. At page 63, Sheriff A.L. Stewart Q.C, observed that parties were agreed that the correct legal approach was for the court to be satisfied that the head teacher as the representative of the education authority was entitled in the exercise of her discretion to reach the conclusion which she did. In other words, this was not a statutory appeal in which the sheriff was called upon to exercise what he described as an administrative function i.e to ascertain whether a decision of a decision maker was taken in accordance with what could be loosely described as the Wednesbury principles (Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1KB 223) but one where what he described as a "judicial decision" had to be taken. He went on to say, "On the other hand the sheriff is not entitled to substitute his own view of the matter for that of the education authority." With the greatest respect to my former colleague, I confess to some difficulty in knowing how, if I reach the conclusion that Mrs.L in the exercise of her discretion reached a conclusion that I do not consider to be justified in all the circumstances, I am not substituting my view for that of the education authority. Be that as it may, the approach of Sheriff Stewart was regarded as being "both pragmatic and in accordance with the intention of the legislation" by Lord Menzies in Glasgow City Council, Petitioners, 2004 SLT 61.

 

[17] The function of the sheriff is contained in s. 28H of the Education (Scotland) Act, 1980, as amended. That section provides that "the sheriff may, on an appeal under subsection (6) above, confirm or annul the decision of the education authority excluding the pupil and, in confirming a decision excluding a pupil until certain conditions stipulated by them are complied with, he may modify the conditions." There were no conditions annexed to this exclusion and neither side suggested I need concern myself with any modification of conditions. So my task is either to confirm or annul the decision of the education authority excluding the pupil. That suggests to me that I have had a very wide discretion conferred upon me with little in the way of guidance or restriction as to how I should approach my decision.

 

[18] S. 28H(6) contains the statutory right of appeal to the sheriff in subsection (6) which confers a right of appeal to the sheriff for the parent of the pupil or, where the pupil is a young person, the pupil. The appeal here is at the instance of the parent. It is noteworthy that the education authority has no right of appeal to the sheriff from any decision of the Education Appeals Committee. S.28H(6) provides that subsections (2), (3), (4), (8) and (9) of S.28F apply to any appeal under S.28H(6). These provisions, so far as relevant, provide that the education authority may be a party to the appeal but the education appeal committee cannot. The appeal is to be made by way of summary application and within 28 days of the date of receipt of the decision of the appeal committee and is to be heard in chambers, as took place. I may make such finding in relation to expenses as I consider appropriate and my judgment is not subject to appeal. Again, the provisions are procedural in nature and offer no guidance as to how the task of determining whether a decision of an education authority should or should not be confirmed.

 

[19] One aspect of this on which I sought specific submissions at the hearing is whether all I could competently do was reconsider the circumstances which pertained at the time the education authority made its original decision. It seemed to me to make little practical sense, since time and the course of events had moved on since that decision, that the court should be so confined. In particular, the appellant had lodged at production 6/2 a copy of the indictment which had now been served on C, and it was very proper that he should have done so, and I was informed by counsel for the appellant that it was understood that there was a trial scheduled in the High Court for June, 2009. The terms of the indictment are appalling. While of course the presumption of innocence is paramount in criminal proceedings, I am entitled to infer, given that the Crown, having precognosced the case, have drafted an indictment in the terms they have and have elected to proceed to trial in the High Court, that a responsible advocate depute considers that there is a prima facie case against C. I cannot help but observe that C appears to be detained in a secure unit in Dundee and, as I said very plainly to parties, I was at a loss to see the point of this litigation while C was on remand for trial and, more generally, pending the outcome of the trial, since I could not conceive of his being able to return to his school while these matters were unresolved, but both sides argued that the legislation plainly required me to consider the circumstances as they stood on 26^th. September, 2008, and I am driven to the conclusion, which I regard as an unfortunate conclusion and an unrealistic position to have to adopt in the circumstances, that they are correct on a strict interpretation of the provisions.

 

[20] The legal basis for the decision of the education authority was to be found in the Schools General (Scotland) Regulations, 1975 {SI 1975/1135}which, so far as relevant, provides:-

" In discharging their functions under the Education (Scotland) Act, 1980, an education authority shall not exclude a pupil from a school under their management to which he has been admitted except where -

(b) they consider that in all the circumstances to allow the pupil to continue his attendance at the school would be likely to be seriously detrimental to order and discipline in the school or the educational well-being of the pupils there."

Both sides of the bar were agreed that this meant that exclusion had to be regarded as the last resort and that one of the areas in which I would have to be satisfied was that there was no lesser alternative means of dealing with the issues giving rise to concern.

Obviously, I would also have to be satisfied that C's continued presence at school would either be seriously detrimental to order and discipline in the school or to the educational well-being of the pupils there.

 

[21] Mr. Murray, for the respondents, emphasised that in considering the appropriateness of the education authority's decision, we were accordingly in the realm of likelihood, rather than things which would definitely come to pass or had come to pass. It was, in effect, a risk assessment process. Mr. Murray posed the question, did that mean that the court in assessing the appropriateness of the decision had to confine itself to what was within the knowledge of Mrs. L or could it explore matters which ought have been within her knowledge but that she did not explore. He submitted that it was the former, but it immediately seems to me that that would not necessarily equate with "all the circumstances." It was, for example, a surprise to me that Mrs. L was of the opinion that C did not constitute any risk to any other child in the school. I understood from her evidence, however, that she had not seen a copy of the petition nor had she been told in detail of its contents. Nor do I think she fully understood the significance or lack of significance of C's appearance on petition. She made no inquiry, for example, about whether he was on bail and, if so, whether he was subject to any conditions. This is not intended as a criticism of Mrs. L who I would not expect to understand preliminary solemn procedure but she could have got more detailed information from the police or perhaps from the respondent's legal staff who would have given her a better idea. She said that she had been told by the uniformed police officer who liaised with the school that the community were waiting for C to appear in court and that once he had done so that would put "a different complexion" on things. It is not clear to me that Mrs. L understood that the appearance would be in private. She did not say that she had been influenced in any way by any information which may have appeared in the media or press. So it is not entirely clear to me what she thought would change once C had appeared in court and in relation to the observation about "complexion" it appears that she may have been misled, to some extent, by the information she received from the police officer. That gives rise to the interesting question whether I have to decide the propriety of her decision on the basis of the objective position or her reasonable though not necessarily accurate belief as to what that position was. I consider it must be the former.

 

[22] I am in no doubt that Mrs. L was genuinely concerned for the safety of C and I consider that, on the basis of the information that had been circulating around the school from the time of C's interview by the police on 5^th. September, 2008, and the undercurrents which were continuously present and which were particularly coming to the attention of Dr. C as well as other members of the school staff, all of whom where communicating these events to Mrs. L, that her concern for his safety was justified. I consider that there was a risk of him being assaulted by a number of pupils and that there was an associated risk of significant disorder which might have proved to be beyond the control of the school staff. I consider that there was also enough information available to Mrs. L, though I am not sure that she availed herself of all that information and did not appear to have had a lot of assistance from PC CT or from officials at the Education Department, for her to have reached the conclusion that C did present as a risk to other children at the school and that that was a risk which she ought to have taken into account in reaching her decision about expulsion. It was her opinion that there was no such risk. Even on the basis of the more limited information available from the terms of the petition and which ought to have been made available to the school authorities via the police, I consider there was a substantial risk to other pupils and that someone ought to have recognised that, though not necessarily Mrs. L.

 

[23] On the issue of a means of dealing with the problem without expulsion, there was evidence that when information began percolating through to the school management about a threat to C's personal safety, they dealt with that by assigning a school resource worker to act as a chaperone to C, particularly at risky times e.g. at the end of periods when there was a large movement of pupils around the school. Break times were separately dealt with by C remaining in a classroom and at lunchtime, he was in the company of A. This, coupled with Dr. C's speaking directly to the boys who had been identified as potential assailants and their parents or guardians, appeared to have had the effect of preventing C coming to harm and also of generally calming the situation but I accept the evidence of both Mrs. L and Dr. C that there was always an undercurrent. In any event, the foregoing arrangement was terminated by A at the request of C as it was felt by them to be counter-productive because it was immediately apparent that C was being treated differently from all other pupils. This is a near perfect illustration of the dilemma for the school authorities. It is significant that towards the end of the period of provision of the chaperone the level of C's co-operation with the chaperone was almost nil. In dealing with the situation in which she found herself on 26^th. September, in my opinion Mrs. L was entitled to rule out a return to this system first because she could not be confident that C would co-operate with it, second because there was other work for the resource worker and this was being interrupted by his acting as a chaperone and third because if a determined attempt to assault C by a number of pupils was embarked upon, the position for the chaperone would, to say the least, be one of some difficulty.

 

[24] It was Mr. Murray's submission that in this situation Mrs. L. had, on one view, two options and, on another view, no option. The options were to exclude C, and in that I include an invitation to the parent to withdraw the child voluntarily, or to do nothing beyond remaining watchful and hope that the situation would pass without incident. It was his submission that, in the light of the background of a threat of assault, the information and undercurrents circulating around the school about the continuing police inquiries and the information particularly from PC CT that the community were waiting to see if C appeared in court, Mrs. L was entitled to conclude that if there were going to be a flashpoint it would be on the day after C had appeared in court.

 

[25] Mr. Thomson, for the appellant, took me first to the test to be applied. He observed that a number of commentators on the Education (Scotland) Act, 1980 had decried that lack of definitions of some of the expressions used in its provisions. He agreed that Regulation 4(b) was what applied here and that the right of appeal was to be found in s. 28H(6). He noted the distinction between the appeal committee and the education authority. It was recognised that this was a one sided appeal process with only the parent or pupil have a right of appeal. There was some division among commentators about whether parents or pupils should have the right of appeal. A young person was a person no longer of school age so C would not have had at the material time an independent right of appeal, independent, that is, of his parents. Mr. Thomson reminded me that the decision I had to consider was that of the education authority, as represented in the current circumstances by Mrs. L, and not that of the appeal committee. He accepted, subject to any question of judicial review, that the decision of the sheriff on appeal from the education appeal committee's decision was final.

 

[26] Interestingly, he too relied on the approach adopted by Sheriff Stewart in Wallace's case. The factual matrix, he said, whatever that means, in that case had a bearing on the present. Both pupils were said to be involved in serious offending. In Wallace, the pupil was not prosecuted but it was a matter of admission that he had had some degree of involvement in the fire. Staff and pupils at the school would feel resentment towards him as a consequence. In the present case, there was the material distinction that the "complainers" did not form part of the school community and C's presence at the school would not therefore put him in physical contact with the complainers. It was accepted that a half sister of one of the complainers was a pupil in the school but she did not reside with the particular complainer so the relationship was not truly direct, though Mr. Thomson accepted that it would be disingenuous to suggest that there was no close family relationship. Sheriff Stewart had concluded that the head teacher's decision was justified. The presumption of innocence was not of such importance as to overcome the balance where it was accepted that the pupil was not entirely innocent. It was disingenuous not to recognise the Crown Office decision here to indict C meant that the court was entitled to infer that there was a sufficiency of evidence upon which to proceed. But that was not information to which Mrs. L was privy at the material time. On the contrary, her evidence was that C was not a risk to others; rather her concern was about the risk to C. The task for the court was to reach a conclusion whether, on the basis adopted by the head teacher, the decision she had made was justified. That meant that the court's consideration was confined to the material available to her at the time of making the decision and the court was not empowered by the statute to look at matters de novo. Sheriff Stewart's approach had the approval of Lord Menzies in Glasgow City Council, especially at para. 40.

 

[27] Using the facts of the present case, had Mrs. L excluded C because he was a Dundee United fan, that would fall to be determined by having regard to the Wednesbury principles. Here instead the question was whether she applied the test properly. It was not for the court to disregard her approach to her decision and decide the matter of new. The court ought to have regard to her decision rather than how she got there. I am frankly unsure whether it was Mr. Thomson's submission or my recording of it but these two statements appear to be contradictory. I think what he was trying to convey is that my function was to review the propriety of Mrs. L's decision rather than review the circumstances pertaining at the time and reach my own conclusion was to whether her decision should be confirmed or annulled. If I have understood him correctly, then I am not convinced, given the very broad statutory provisions that I am so confined.

 

[28] The onus rested with the respondents to demonstrate that the decision was justified, he submitted. If they fail to discharge that onus, then the decision must be annulled. I agree that the onus rests with the respondents but I prefer to state that as an onus to demonstrate that the decision of the education authority should be confirmed and not annulled, thus reflecting the statutory provisions.

 

[29] Mr. Thomson went on to submit that, as a matter of fact, the respondents had failed to demonstrate that the presence of the pupil on the school premises was likely to be seriously detrimental to order and discipline or to the educational well-being of the pupils. Esto it had been so established, which was denied, that C's normal attendance at school was likely to be so detrimental, then they had failed to establish that the risk to C and to that detriment could not have been met by the reintroduction of the school resource worker as a chaperone. Exclusion should be the last resort. It was not disputed by the respondents that the guidance issued by both the Scottish Government and the respondents themselves was to that effect. The Scottish Government guidance made it clear that an exclusion was only to be used where all other alternatives are exhausted. The respondents, while not bound by that guidance, ought to have had regard to it in the present case and sought an effective lesser solution, as they had done at an earlier stage.

 

[30] In any event, the risk was not as high as the respondents perceived it to be. C had not been attacked. The threats to do so had been dealt with effectively by the school staff. The school management had fallen into the error of wrongly ascribing a level of sophistication to those who may have conspired to assault C of being able to distinguish between a police investigation and an appearance on petition. Mrs. L was correct to recognise that, in the community in which the school operated, as soon as one became a suspect, then in the eyes of that community that amounted to guilt. If that is correct then as soon as he became a suspect and was questioned by the police, he was at risk. With the passage of time, and nothing actually happening, that risk diminished. Any activity adverse to C had been discouraged by the steps taken by Dr. C. His effective action was recognised and had the effect of stopping trouble before it started. All C had actually suffered was some verbal abuse which had been dealt with promptly by the school authorities. They had put the chaperone in place and that too had been effective in deflecting trouble. Given all that, they had failed to discharge the onus upon them that on balance there was a real likelihood of seriously detrimental behaviour disruptive of the normal order and discipline in the school.

 

[31] Mrs. L had claimed that her decision was based on information from one staff member about the half sister of one of the complainers shouting abuse at C; about that girl circulating information about the police enquiries around the school; the reference by C to another pupil with whom he appeared to have an association "getting done for rape;" and the views of PC CT on the attitude of the community. In the absence of the contribution from PC CT, what remained quite simply was insufficient to justify exclusion.

 

[3 2] Mr. Thomson observed, in my opinion, correctly, that it was unfortunate that we had not had the benefit of evidence from PC CT, but there would, of course, have been nothing to stop him citing him. Neither Mrs. L nor Dr. C could get beyond their assertions, he submitted, that things would change once C appeared on petition. It was accepted that police family liaison officers would have informed complainers' families of the appearance in court and its outcome and no doubt it was reasonable to assume that that information would then circulate in the neighbourhood but that would not give rise to a heightened state of alert. Once C had been "accused" the damage was done. No specific threat was identified to the school authorities by the police. In any event, had there been any increase in the risk that could have been dealt with by the reintroduction of the chaperone. It was accepted that he would have other duties but he was only being asked to act in that capacity at certain critical times; otherwise, he would have remained available for those other duties. If it be the case that C's co-operation had been less than complete previously, there could have been discussion with C and A about what would be required by way of co-operation to avoid exclusion, but that was not done. In any event, if anyone should have been excluded from the school, it was the would-be vigilantes. Had action short of exclusion been considered, it would have been obvious to Mrs. L and Dr C that, in a proper exercise of their discretion, they should have first attempted to find a lesser method, less draconian and less detrimental from the perspective of C's education, than the ultimate sanction of exclusion. The decision of 26^th. September was therefore not justified and should be annulled. I should therefore repel the first plea in law for the respondents and sustain the first plea in law for the appellant. As the appellant was an assisted person, the question of expenses should be reserved.

 

[33] This is a case which is fraught with difficulties. The impression conveyed by Mrs. L and Dr. C, at least as the evidence was presented to me, was that they did not seek and were not offered much in the way of legal or administrative assistant in what was for them, by any stretch of the imagination, a unique situation. It was bad enough that one of their pupils was being accused of a series of extremely serious sexual offences against young boys. But what made that awful situation so much the more difficult for Mrs. L and Dr. C was that he was the son of a teacher at the school. I do not know where the fault lies, but either they should have sought or should have received more in the way of external guidance. It should have been recognised that the uniformed constable who was the school's community liaison officer was not the appropriate person from whom to take advice about the level of risk posed by C, a risk which, to my astonishment, both Mrs. L and Dr. C appear to have disregarded. Hindsight is a wonderful thing, but it would have been much more appropriate for senior staff in the education department to have taken advice from the police at a much more senior level and, perhaps, from the procurator fiscal or, at least, from their own legal department, who would have given them a better understanding of the state of enquiries, the stage enquiries were at and how these enquiries were being responded to within the community and what the various procedures would be. I strongly recommend that the respondents at senior level discuss these circumstances at senior level with the police and the district procurator fiscal so that a system can be established whereby any pupil at any school who may be a risk to other pupils or staff can be identified and the extent to the risk can be properly assessed. I recognise that these are difficult areas but I am left with the strong impression that Mrs. L and Dr. C would have benefited from access to better quality information and advice.

 

[34] Given the wide terms of the statutory provision contained in S.28H(7), while I accept that I have to exercise judicial discretion, my basic task is to confirm or annul the decision of the education authority. The statute does not provide that in reaching a conclusion on that one way or the other I am confined to a reconsideration of the material that was before Mrs. L on 26^th. September, 2008. While I accept in the light of the statutory provisions that I cannot consider information which has become available since that date, if I am to determine the justification of that decision, I do not accept that I am precluded from using my own understanding of police and prosecution procedures in coming to the conclusion that a person should be proceeded against by way of petition. I am entitled, in my opinion, to infer that the offences were considered to be serious in their nature both by the police and by the Crown and that there was a prima facie case against C. I am entitled to read the contents of the petition and form a view, independent of the view formed by Mrs. L, that the charges were serious. Had I done so, I would have been concerned about the risk to other children which C appeared to present. I would have excluded him from the school on that basis. In that respect, my opinion would have been completely different from that of Mrs. L in terms of assessing the risk presented by C, albeit it would have produced the same result, of deciding to exclude him from the school.

 

[35] I am also aware of how certain people in communities respond to the suggestion that a given individual has committed sexual assaults on children. There have over the years been many illustrations of action taken by what I suppose can properly be described as vigilantes, often with only the most sketchy of suspicions about the behaviour of a given individual and that is generated by a revulsion of those who commit acts of sexual abuse towards children and sympathy and a feeling of the need for retribution, often referred to as "justice" for the victims. One only needs to think of the frequency with which allegations of sexual abuse of children materialise in disputed actions involving orders for contact to children to have some understanding of what the public think about the significance of being branded as a sexual abuser of children. In the present case, A's house was attacked and windows were broken. That means that that house had been identified by persons as the home of someone against whom it was in their eyes justified to inflict their form of summary retribution. That there should be threats and undercurrents of violence in the school and the surrounding community, especially when the child concerned was known to be the child of a teacher, is unsurprising though regrettable and I accept that the head teacher, faced with a situation in which she considered, with justification, that there was a real risk of those threats and undercurrents coming to the surface and an act of violence which would have been seriously detrimental to the school's order and discipline could have resulted, was obliged to take action to exclude C. That is the test for justifying a decision to exclude. And on that basis the decision to exclude was justified.

 

[36] With regard to the suggestion that some lesser action and, in particular, a return to the use of a school resource worker as a chaperone, I accept that Mrs. L was entitled to reach the conclusion that that may not have sufficed as a means of preventing a serious breach of order or discipline. The question to be asked, it seems to me, is that if a number of pupils, fuelled by the notion that they were performing a justified act of retribution, decided to attack C, what was a school resource worker supposed to do ? It was certainly not his or her function to act as a bodyguard and I do not imagine that such an employee would be trained so to act. Discipline generally in schools is the subject of continuing concern on the part of many parents but in a situation such as this it would be very unwise not to take full account of the opinion of an experienced head teacher such as Mrs. L, assisted as she was in her deliberations by another experienced senior teacher, Dr. C. If they thought there was a risk of a loss of control over the behaviour of pupils, then they were obliged to take such action as they considered appropriate to minimise that risk. I accept, and this was behind part of Mr. Thomson's submission, that it would have been more morally apt to exclude the would-be vigilantes but that begs the questions how many of them there were and what would have been the reaction of the community. At the end of the day, Mrs. L had to act swiftly and pragmatically to achieve a situation in which the orderly running of the school would not be at serious risk of serious disruption. She considered that the only way to do that was at least for the short term to exclude C. I consider her decision was justified. A minor element in that decision was C's poor co-operation with being chaperoned previously, though the reality is that Mrs. L did not believe on 26^th. September, 2008 that providing a chaperone would deflect the problem. I shall accordingly confirm the decision of the education authority and will sustain their plea-in-law and will repel all three pleas-in-law for the appellant, insofar as that has not already been done.

 

[37] It would be wrong of me to leave this matter without expressing considerable sympathy on a human level for the plight of A. I accept that he was asked to remove C from school on a voluntary basis on 26^th. September and that he took legal advice before expressing a view, a very sensible thing for him to have done.. I believe him when he says that the principle behind the advice was to do nothing by which any level of guilt might be implied. That advice, at one level, may have had some merit but having regard to the risk to C from being in the school and the risk to other children that he posed, it was downright bad advice, completely lacking in pragmatism. I can however understand why A followed it. It is singularly unfortunate that these allegations have materialised at a critical time in C's education but I congratulate the respondents for taking the action they have on the basis on which they have been trying to provide him with a measure of education and hope that he will be encouraged in the meantime to take the benefit of that.

 

[38] As requested by Mr. Thomson, I shall assign a hearing on expenses at which all questions of ex penses can be considered.

SHERIFF COURT

 

JUDGMENT RECORD AND CATEGORISATION SHEET

 

CASE NAME: A v DUNDEE CITY COUNCIL

 

AUTHOR: Sheriff Richard A Davidson

 

DATE SIGNED BY

AUTHOR 22^nd. April, 2009-06-08

 

DATE RECEIVED BY

MRS. CRANSTON

 

DATE PUBLISHED ON

 

SHERIFF'S EDITING COMMENTS:

 

Was editing necessary ? Yes

 

Judgment has been edited as required ? Yes

 

CATEGORISATION OF JUDGMENT:

 

This judgment should be recorded under the following categories

 

Education