Chapter 18 Answer guidance

Procedural Impropriety
  1. Consider the following problem:
 

Davenport School for the Gifted is run by Hampstead Local Council in accordance with its powers under the Imaginary Gifted Schools Act 2006. The school can admit or exclude students ‘as it thinks fit’. The school has a policy of expelling students after they have had two written warnings for misconduct. Marina, aged 16, a gifted pupil, has been accused of misbehaviour after swearing at her English teacher, Miss January, during an argument about her grade for an English essay. Because she now has two written warnings, Marina is asked to appear before a disciplinary tribunal to decide whether or not she should be allowed to remain at the school. Marina is not allowed to cross-examine Miss January, because the teacher would find it too upsetting and she is prohibited from calling the only witness, another student, named Melissa. She is also not allowed to have a lawyer present. When Marina gives evidence, she admits to raising her voice, but denies swearing. She is also produces medical evidence that she is taking medication for clinical depression that has the side effect of causing mood swings and which may cause her to act out of character. She apologises to Miss January if she caused offence. Miss January remains with the disciplinary committee when it retires to consider its decision about Marina. The committee decides that it must follow the school policy and expel Marina, and refuses to give any further reasons for its decision.

 

Advise Marina, who would like to make a claim for judicial review against Davenport School.

  • If you are unclear on the rules of natural justice, revise section 18.2.
  • Remember, one justification for the rules of natural justice is that they encourage participation in decision-making and so those who have an interest in decisions have an opportunity to participate. What decision does Marina participate in and how might the rules of natural justice help her, given the way her participation was handled?
  • Does it seem like the disciplinary tribunal considered the various procedural safeguards in order to conduct the proceedings fairly? Review some of the important elements of an oral hearing listed in section 18.5.3.
  • If Marina was not allowed to cross-examine Miss January or to call the only witness, to what extent was she given the opportunity to rebut the allegations against her? Can you draw any help from the case of Shoesmith, discussed on p. 583? How does the case of ex p St Germain (No 2), discussed in section 18.5.3, help?
  • Remember to consider counter arguments. For example, how might the disciplinary committee use the case of Bushell to defend the fairness of its proceedings? With these arguments in mind, try to analyse the differences between ex p St Germain (No 2) and Bushell. Which case seems to be closer in kind to Marina’s case?
  • Will there be a breach of natural justice if the claimant is not allowed to call witnesses?
  • What did you learn from Enderby Town Football Club Ltd and ex p Tarrant about the requirements for legal representation? Compare the facts of those cases with the facts of this problem to work out what the rules of natural justice might require in Marina’s case.
  • What do you understand to be the relevance of Article 6 ECHR and have there been any cases to suggest that Article 6 requires that legal representation be allowed at a disciplinary tribunal?
  • Does it matter that the disciplinary committee ‘refuses to give any further reasons for its decision’? Is there a general duty to give reasons? When have reasons been required? See section 18.5.4. Don’t forget to think about the wider facts here. For example, would it matter if the decision was made simply because the committee decided to rigidly apply the school policy? Would reasons help to ease your concerns about that?
  • The facts tell us that ‘Miss January remains with the disciplinary committee when it retires to consider its decision about Marina’ – is this a problem? Think through the rule against bias, outlined in section 18.6, and pay particular attention to the test in Porter v Magill.
 
  1. Explain the development of the case law on legitimate expectation. Do you think that the Court of Appeal was right in Coughlan to decide that there could be a legitimate expectation of a substantive benefit? Give full reasons for your answer.
  • Remember that a legitimate expectation is something that a claimant may consider they have, and which has arisen from a policy, a statement, or past practice. In some circumstances, the courts may find that it is unlawful for the public authority not to keep its promise. This is similar to the doctrine of estoppel in contract law.
  • Ensure that you are comfortable with the distinction between a procedural and a substantive legitimate expectation. You may find it helpful to review the explanation given by Holman J in R (Luton BC and others), set out in section 18.4.4.
  • What type of expectation was at issue in Attorney General of Hong Kong v Ng Yuen Shiu? By contrast, what type of expectation was at issue in Coughlan?
  • Have there been many cases where the court has found that there is a substantive legitimate expectation?
  • Why did the court in Coughlan say that it recognised upholding substantive expectations was controversial?
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