LG, R (on the application of) v The Independent Appeal Panel for Tom Hood School & Ors

When I read the papers I took the view, despite what Sir Paul Kennedy said, that this was a matter which the court should consider on a full appeal. I do not think it is necessary therefore for me to give a detailed judgment. This court in the case of R (S) v The Governing Body of YPSchool[2003] EWCA Civ 1306 decided, applying the earlier decision of the House of Lords in R (McCann) v Manchester Crown Court [2003] 1 AC 707, that the criminal standard of proof should be applied to decisions to exclude pupils from school, at least in cases where the conduct that led to that exclusion would constitute what might otherwise be described as criminal conduct.

The effect of that decision has, on the face of it, been nullified by regulations made under section 53(2) of the Education Act 2002. The power to make regulations under that section is, in terms, designed to provide for the procedure on appeals. That rule-making power has, however, been exercised in the present case to produce regulations, in the form of Statutory Instrument 2004/402, which have amended the existing Education (Pupil Exclusion and Appeals) (Maintained Schools) (England) Regulations 2002 so as to insert a provision (regulation 7A of the 2002 Regulations) which now provides that disputed facts should be decided on the balance of probabilities.

The purpose of the present challenge is to focus, firstly, on whether or not that regulation is intra vires the Act itself and, secondly, even if it is, whether or not it is Article 6 compliant.

The matter came before Silber J and he held that Article 6 had no application: firstly, because the case did not involve the determination of a civil right which would engage Article 6 and, secondly, because the matter did not concern the determination of a criminal charge. Mr Wolfe, on behalf of the applicant, seeks to challenge the judge’s decision on both grounds.

It is not necessary for me to set out in any detail the arguments that are likely to be deployed at the full hearing of the appeal. It is enough for me say that there is, I think, a serious argument in relation to both parts of Silber J’s judgment. In relation to the question of whether exclusion involves the determination of a civil right, this court in the case of S, T and P v Brent [2002] ELR 555 suggested (in paragraph 9 of the judgment) that although the right to education under the Convention rights does not include a right to be educated in any particular school, such an entitlement does exist by virtue either of legitimate expectation or a combination of that and Regulation 9 of the Education (Pupil Registration) Regulations 1995 (now the Education (Pupil Registration) (England) Regulations 2006) which require the proprietor of a school to maintain an admissions register. Pupils of compulsory school age can only be removed from the register on prescribed grounds.

The question therefore arises whether exclusion under that statutory regime involves the determination of a civil right on the part of the pupil. Mr Wolfe contends that there has been a change in the Strasbourg jurisprudence as a result of the decision in Emine Arac v Turkey (Application no. 9907/02 -- 23 September 2008). This was a case in which the government of Turkey placed reliance on an earlier decision in Simpson v UK (1989) 64 DR 188, where the Commission had held that Article 6 was inapplicable to proceedings concerning laws on education. Notwithstanding that and notwithstanding the submissions that were made to it that in that case the applicant’s right to continue her higher education was said not to involve a civil right, the court held that the proceedings to exclude her did concern a civil right and therefore Article 6 applied to it.

Mr Wolfe says that Silber J was wrong to treat Arac as turning on the particular provisions of the Turkish constitution and not having any wider application. Bearing in mind that there are a number of cases pending for hearing on this issue in the Administrative Court, it is right that this court should consider the position in the light of the new regulation having regard to the decision of the European Court of Human Rights in Arac. For that reason alone I think it is appropriate to give permission. I do not propose to limit the permission to that particular point, ie whether there is a civil right involved in this process. It seems to me that the appeal should be argued across the board on all the relevant grounds, including whether or not Silber J was right that this was not a case where the Tribunal was asked to determine a criminal charge. As to that, I think I need to say no more than that Silber J based himself on the decision of the respondent to exclude as being one where the exclusion was “not to punish V but to prevent him from doing the same thing at that school again” It was, therefore, he held, clearly a preventive measure.

When one looks, for example, at the Secretary of State’s guidance on school discipline (I am looking now at paragraph 3.6.5) disciplinary penalties are said to have three main purposes: namely (1) to impress upon the perpetrator that what he or she has done is unacceptable; (2) to deter the pupil from repeating that behaviour; and (3) to signal to other pupils that the behaviour is unacceptable and to deter them from doing it. It is at least arguable that some aspects can be said to fall on the other side of the line.

For those reasons, therefore, I think that the applicant has made out a sufficient case for permission to appeal.