ABSTRACT
The guidance is clear that a head teacher must not issue a decision to exclude ‘in the heat of the moment’ but only after taking various steps (DFEE 1999a: para. 6.3) The head teacher should check whether the incident appeared to be provoked by racist or sexual harassment. He or she is further advised to consult with appropriate persons where relevant, avoiding anyone who might play a part in the review process later on, such as a member of the governors’ discipline committee. It is also important that the head teacher considers all the relevant facts and firm evidence relating to the incident or behaviour, taking into account the school’s policy on equal opportunities. If there is doubt about whether the pupil was responsible for the alleged conduct, the head teacher should not exclude. This does not, however, lay down a clear standard of proof in terms of the degree of doubt that the head teacher would need to have before he should decide not to exclude the child. The guidance advises that the pupil should be permitted to give his or her version of the events, although it is not explained how and in whose presence the questioning should take place. It was suggested by the judge in one recent case44 that the principles of criminal investigation in the Police and Criminal Evidence Act 1984 do not apply here and that there is no reason why an alleged culprit should not be interviewed on his or her own by the head teacher. However, the judge also emphasized the importance of the pupil concerned being given a proper opportunity to give his or her version of events-to have a chance to ‘exculpate himself.
