LG, R (on the application of) v Tom Hood School

Regulation 7A of the Education (Pupil Exclusion and Appeals) (Maintained Schools) (England) Regulation 2002 (SI 2002/3178) (“the 2002 Regulations”) provides that where an appeal panel is considering an appeal against the permanent exclusion of a pupil, the standard of proof on all issues will be on the “balance of probabilities”. The main issue raised on this application is whether that provision infringes Article 6 of the European Convention on Human Rights (“ECHR”) on the grounds that the standard of proof applied by an appeal panel in respect of a claim against a pupil should be the criminal standard of proof; that is that they must be sure of the allegations against the pupil before upholding them.

The second issue raised is whether, as the claimant contends to be the position, the Panel in this case was required, but failed, to give effect to the Secretary of State’s Statutory Guidance on Exclusions.

In these proceedings, LG challenges the decision of the Independent Appeal Panel for Tom Hood School (“the Panel”) of 10 July 2007 which rejected her appeal against the decision of the Governing Body of Tom Hood School (“the School”) by which it decided not to reinstate her son V after the School’s Head Teacher had permanently excluded him from the School in a letter dated 7 March 2007.

V, who was born on 30 November 1992, has a visual impairment which cannot be corrected by glasses and which leads to difficulties for him with balance and also when walking.

On 26 February 2007, V and other students (including the claimant’s brother) were involved in a fight at the school. Ms Shearman, who is a teacher at the school came upon the aftermath of the fight and she alleged first that V was verbally aggressive and second that he was in possession of a knife.

Although V accepted that he swore and that he was rude to Ms Shearman, he has constantly denied having a knife. He maintains that he was wearing a silver bracelet chain whose loose end hangs into his hand and which he often grasps when nervous by flicking his wrist to reach it. This it is said must have been mistaken by Ms Shearman for a knife. V was searched by two teachers after the incident but no knife was found.

By a letter dated 1 March 2007, the School’s Head Teacher initially excluded V for a fixed term of 10 days. Subsequently on 7 March 2007 she permanently excluded V because “[V] wasseen by staff and pupils to be carrying a knife”. It is said on behalf of the claimant that the conclusion that V had a knife was of critical, if not crucial, importance to the decision permanently to exclude him.

Regulation 5 of the 2002 Regulations requires the Pupil Disciplinary Committee of the School’s Governing Body to meet to consider the exclusion and it duly met on 18 April 2007, 2 May 2007 and 15 May 2007 to consider whether or not to order that V should be reinstated.

Both V and his mother attended the meeting and on 15 May 2007 the committee decided that he should not be reinstated. An appeal against that decision pursuant to Regulation 6 of the 2002 Regulations was heard by the Panel on 5 July 2007. As there is no criticism of the procedure at the appeal hearing other than the standard of proof adopted by the Panel and its actual decision, nothing more needs to be said about the procedure adopted by the Panel.

The evidence before the Panel was that a teacher, who V was said to have threatened said that she saw a knife which “would operate with the flick of the wrist” but that no other adult reported seeing a knife which was variously described by unidentified pupils as being “silver” and having “a red handled knife”. The person with whom V actually had a fight, Luther, said “I did not see a knife on [V]”.

By a letter dated 10 July 2007 the Panel rejected the appeal and it explained that:-

“Based on the evidence, presented by both parties, including the witness statements, the Panel decided unanimously, that on the balance of probabilities, [V] committed the offence as alleged, i.e. that it was more probable than not that [V] had carried an offensive weapon and threatened a member of staff”.

The present position is that V is now a pupil at another school and he does not wish to return to the School from which he was excluded. Thus to some extent this appeal is academic but V’s mother explains the fact that V was permanently excluded from the School has had a continuing impact on him including the fact that it might potentially prejudice his future educational and employment opportunities. Neither the Panel nor the Secretary of State for the Department for Children, Schools and Families (“the Secretary of State”) contend that this claim should not be considered because it is academic.

Permission to pursue this claim was given by Judge Hickinbottom and an order has been made that the pupil and his mother should be described by their initials. The London Borough of Waltham Forest and the Governing Body of the School were Interested Parties but neither were present nor represented at the hearing. Neither of them has adduced any evidence.

The Panel and the Secretary of State both contend that the appropriate standard of proof which had to be adopted by the Panel was the balance of probabilities rather than the criminal standard. At the forefront of their submission is the contention that this is what the Panel was required to do under regulation 7A of the 2002 Regulations which states (with my underlining added) that:-

“Where it falls to

(a)

the head teacher, in exercise of the power conferred by section 52(1) of the 2002 [Education] Act [power to exclude a pupil for a fixed period or permanently], (b) the governing body, in exercise of functions under regulation 5 [functions of governing body in relation to excluded pupils], or (c) an appeal panel constituted in accordance with paragraph 2 of the Schedule, in exercise of functions under regulation 6 [appeals against permanent exclusion of pupils], to establish any fact, any question as to whether that fact is established shall be decided on a balance of probabilities.”

In response Mr David Wolfe counsel for the claimant contends that as the accusation made against V amounted to a crime, so regulation 7A must give way to the requirements of Article 6 of the ECHR with the consequence the Panel had to be sure that V had a knife in his possession. Mr. Sam Grodzinski counsel for the Secretary of State and Mr Nicholas Armstrong counsel for the Panel both submitted that article 6 was not engaged and that even if it was, it would not have required any higher standard of proof than proof on a balance of probabilities. In order for Article 6 to be engaged, it is important to bear in mind that it only applies to a person (with my emphasis added) “in the determination of his civil rights and obligations or of a criminal charge against him”. The two categories of words underlined require and will receive separate treatment as they are alternative ways in which Article 6 can be engaged.

In the alternative, it is contended by Mr Wolfe that the Panel failed to give effect to the Secretary of State’s Statutory Guidance on Exclusions which required more convincing evidence than for them to be satisfied on a balance of probabilities of the charge that V was in possession of a knife. This is disputed by Mr Armstrong.

It is appropriate to consider first whether Article 6 of the ECHR is engaged on the basis that the hearing before the panel related to the “determination of [V]’s civil rights and obligations”, then to consider whether it was engaged as there was at the time of the hearing in front of the Panel “any criminal charge against [V]” and then in the light of my conclusions on those matters to determine the correct standard of proof to be adopted before the Panel could find the case against V proved.

Before Article 6 can be engaged, it must be shown that the hearing before the Panel was concerned with (in the words of Article 6) V’s “determination of [V]’s civil rights and obligations” and that does not cover every claim. This was explained by Lord Bingham of Cornhill in Matthews v Ministry of Defence [2003] 1 AC 1163 at 1168 when he said :-

“3... it is recognised, first, that the expression “civil rights” in article 6 of the convention is autonomous. ...This means that the concept of a “civil right” cannot be interpreted solely by reference to the domestic law of the member state. It is the view taken of an alleged right for Convention purposes which matters. But, secondly, the Strasbourg case law is emphatic that Article 6(1) of the Convention applies only to civil rights which can be said on arguable grounds to be recognised under domestic law; it does not itself guarantee any particular contents for civil rights in any member state”.

That principle is not in dispute nor is the approach advocated by Lord Nicholls of Birkenhead in a case concerning the care of children in which he stated a general principle relating to the circumstances in which Article 6 is engaged. He explained (with my emphasis added) in Re S (Minor) (Care Order Implementation of Care Plan) [2002] 2 AC 291 at 319-320 that:-

“69.

Thus, when considering the application of Article 6 (1) to children in care, the European Court of Human Rights focuses on the rights under domestic law which are then enjoyed by the parents or the child. If the impugned decision significantly affects rights retained by the parents or the child after the child has been taken into care, Article 6 may well be relevant. It is otherwise if the decision has no such effect”

Thus in order to determine if there has been “the determination of [V’s] civil rights and obligations” by the Panel, it becomes necessary to ascertain first if the Panel was concerned with any right enjoyed under the domestic law by V and then whether the determination of the appeal affected these rights significantly or at all. Mr Wolfe contends that it will be enough if the claimant has an “arguable” claim to such a right (Paragraph 9 of the claimant’s written reply). For the purposes of this judgment I will assume that this is correct although it runs contrary to what Lord Nicholls said in the passage quoted in the last paragraph. To show that there has been “the determination of [V’s] civil rights and obligations” by the Panel, Mr Wolfe relies on what he contends to be V’s arguable “right to continue the studies he had begun at the school” (Paragraph 9 of the claimant’s written reply), his arguable rights under Article 2 of the First Protocol of the ECHR and his arguable Article 8 rights. Each of these alleged rights will have to be considered in turn.

V’s“right to continue the studies he had begun at the school”

Mr Wolfe contends that there is such an arguable right which was infringed in V’s case when the Panel upheld his expulsion. The basis of his claim is the decision of the Strasbourg Court in Emine Arac v Turkey (Application number 9907/02 - 23 September 2008) which arose because the applicant sought to enrol as a student in the Faculty of Theology of Marmara University and she provided a photograph of herself wearing a headscarf. The Faculty refused to enrol the applicant because she did not comply with the regulations in force which stipulated that in the required photo of the prospective student, “the head and neck must also be uncovered”.

The Strasbourg Court held that article 6 was applicable:-

“given the importance of the applicant’s right to continue her higher education, ..the Court does not doubt that the limitation in question , imposed by the regulations in issue, fell within the scope of the applicant’s personal rights and was therefore civil in character”.([24])

Mr Wolfe submits that V had a right to complete his education in the same way that the claimant in Arac had a right to be enrolled. In response, it is said on behalf of the Secretary of State and the Panel that Article 6 was found to be engaged in Arac’s case because of the existence of a domestic law right to education in Turkish law, which was provided for in Turkish law by Article 42 of the Turkish Constitution which provided that “No one may be deprived the right to instruction and education”.

In my view, the submission of counsel for the Secretary of State and for Panel is correct because the decision in Arac depended on the right given to the applicant under Article 42 of the Constitution. Mr Wolfe tried valiantly to suggest that there was not such a general right and he seeks to derive assistance from the decision of the Strasbourg court in Leyla Shahin v Turkey (Application no. 44774/98-10 November 2005) but I was unconvinced by his submissions for three main reasons

First, the decision in Arac was dependent on the applicant’s rights under Article 42 of the Turkish Constitution (see paragraph 23 above) in the light of the regulation which prevented her enrolling if she wore a head scarf. The reasoning of the Strasbourg Court was that “whether or not a right is to be regarded as civil within the meaning of that term in [Article 6 of] the Convention must be determined by reference not only to its legal classification but also to its substantive content and effects under the domestic law of the State concerned” ([18]). The significance of the domestic law is noteworthy.

In that case, the applicant had an arguable claim in view of the wording of Article 42 (see paragraph 23 above) and the fact that the regulations prevented her exercising her rights under that article. In other words the case merely showed that effect of Article 42 under Turkish law and that it gave her a civil right. There is no equivalent right under English law to Article 42 and so this case does not assist the claimant in the present proceedings especially as Article 42 does not confer any actual rights or arguable claims to rights on English students. Second, as I will explain any right to education in education in English law does not mean in the words of the Court of Appeal “a right to be educated in any particular school” (see paragraph 36 below), Further there is Lord Bingham’s words “no convention objection to the expulsion of a pupil from educational institutions on disciplinary grounds unless (in the ordinary way) there is no alternative source of state education open to the pupil”( see paragraph 38 below).

Third, there is nothing in the judgment in Arac which suggests that it creates a right or an arguable claim to rights elsewhere in countries which have signed up to the ECHR other than in Turkey. Indeed, the Strasbourg Court referred to Simpson v United Kingdom ((1989) 64DR 188) (which is a case which is considered further in paragraph 32 below) in which the Commission held that “the right not be denied primary education” in the United Kingdom “fell within the domain of public law, since it had not private law analogy and no repercussions on private rights or obligations” (see paragraph 14 of Arac) and it did not seek in an way to suggest that this was no longer good law. I am unable to accept Mr Wolfe’s contention that Simpson was no longer good law especially as the Strasbourg Court appeared content to refer to it in Arac without criticising it or suggesting that it was no longer good law. Indeed the decision in Simpson is an answer to Mr Wolfe’s submission on this point. Insofar as he suggests that he can succeed as the Human Rights Act 1998 makes Convention rights, I am unable to agree because the issue is whether the claimant had any Convention rights and as I will explain, I have concluded that he does not have any arguable Convention rights.

Accordingly I do not consider that the decision in Arac assists V in showing a right or even an arguable right under the law of this country which could show that the claimant is seeking “the determination of [his] civil rights and obligations” so as to engage Article 6. In any event even if that is incorrect, as I will explain, the engagement of Article 6 does not mean that the criminal standard of proof was required. I now turn to consider other ways in which the claimant contends that V has claims which enable him to invoke Article 6.

Article 2 of The First Protocol of the ECHR

Mr Wolfe also seeks to rely on Article 2 of the First Protocol to the ECHR, which provides that:-

“No person should be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religion and philosophical convictions”.

Mr Wolfe relies on a comment made by Schiemann LJ in S. T. and P. v London Borough of Brent [2002] ELR 555 [30] that:-

“let us make the perfectly tenable assumption…that domestic human rights law, and arguably the ECHR’s jurisprudence too, will today regard at least the right not to be permanently excluded from school without good reason as a civil right for article 6 purposes.”

That statement is an assumption and it did not state that pupils had a right not to be permanently to be excluded or that an exclusion decision engaged their Article 6 rights. Indeed if it did, as I will explain, it would be contrary to decided cases both in this country and in Strasbourg.

In Simpson v United Kingdom (supra), the applicant, who was a British citizen, contended that Article 2 of the First Protocol required him as a handicapped child to be placed in a private specialised school with the fees paid by the State even though a place was available at an ordinary state school for him which had special teaching facilities for disabled children.

The Commission rejected this application as it explained at pages 193-194 (with my emphasis added) that it:-

“does not consider that this right under English domestic law or under Article 2 of Protocol No 1 is of a civil nature for the purposes of Article 6 para 1 of the Convention. Although the notion of civil rights under this provision is autonomous of any domestic law definitions, the Commission considers that for the purposes of the domestic law in question and the Convention, the right not to be denied elementary education falls, in the circumstances of the present case, squarely within the domain of public law, having no private law analogy and no repercussions on private rights or obligations.. The Commission concludes, therefore, that there is no civil right issue in the present case and accordingly Article 6 paragraph 1 of the Convention is not applicableto the administrative procedures before the domestic education authorities”.

The decision in Simpson was followed by Newman J in The Queen (on the application of B) v Head Teachers of Alperton Community School and Others [2001] ELR 359 in which he dealt with a number of cases challenging decisions refusing to admit pupils to a certain school and excluding them from others. An issue arose as to whether the parents had “civil rights” for the purposes of Article 6 (1) of the Convention. Newman J followed the Simpson case and he rejected “the submission that there exists in English law a civil right to an education suitable to one’s needs” ([48]).

It is noteworthy and of relevance to the present case that in reaching this conclusion, Newman J attached importance in paragraph 47 of his judgment to the decision of the Commission in Yanasik v Turkey (1993) 74 DR 14 in which it held that:-

“the Commission considers that in principle the right to education cannot be allowed to impinge on the State’s right to regulate education, and that this right does not exclude all disciplinary procedures. It would not be contrary to Article 2 of Protocol No. 1 for pupils to be suspended or expelled, provided that the national regulations did not prevent them from enrolling in another”.

Richards J (as he then was ) expressly followed Newman J’s decision when he also rejected a challenge to an exclusion decision in The Queen on the application ofS v Head Teacher of Claremont High School [2001] EWHC Admin 513. Schieman LJ giving the judgment of the Court in S. T. and P v London Borough of Brent (supra) at paragraph 9 took a similar approach when he said that:-

“the right to education which is one of the Convention rights scheduled to the Human Rights Act 1998 is not a right to be educated in any particular school”.

More recently the matter was resolved finally in A v Head Teacher and Governors of Lord Grey School [2007] AC when Lord Bingham of Cornhill (with whom other members of the Appellate Committee agreed) said that:-

“12.. it is not contrary to Article 2 for pupils to be suspended or expelled, provided that national regulations do not prevent them from enrolling in another establishment to pursue their studies.. but even this qualification is not absolute.. The imposition of disciplinary penalties is an integral part of the process whereby a school seeks to achieve the object for which it was established, including the development and moulding of the character and mental powers of its pupils...”

He said later in his speech that:-

“24.

There is no convention objection to the expulsion of a pupil from educational institutions on disciplinary grounds unless (in the ordinary way) there is no alternative source of state education open to the pupil”.

In my view, there is overwhelming and clear authority for the conclusion that the decision of the Panel to uphold the permanent exclusion of V does not undermine (let alone in the word of Lord Nicholls in S quoted in paragraph 19 above) “significantly affect” any rights or alleged rights which the claimant might have under Article 2 of Protocol 1 of the ECHR .

V’s rights under Article 8 of the ECHR

Mr Wolfe contends that V’s rights under Article 8 of the ECHR were or were arguably substantially affected by his exclusion so that Article 6 comes into play.

As is well known Article 8 protects a person’s “right to respect for his private and family life, his home and his correspondence”. It is also clearly settled as was explained in Niemietz v Germany (1992) 16 EHRR 97 at paragraph 29 that “respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings”.

It was for that reason that the House of Lords recently found in the case of R (on the application of Wright and Others) v. Secretary of State for Health and Another [2009] 2 WLR 267 that the listing of a care worker on suspicion of such serious misconduct as to indicate that he or she posed a risk to vulnerable adults could result in stigma so great as to constitute an interference with her Article 8 right to respect for private life, which extended to the right to establish and develop relationships with others. I readily accept that there may be cases in which the permanent exclusion of a pupil from, say, the only school in an area which he or she had attended for years could engage Article 8 rights.

Thus it is said that being excluded from the School might infringe V’s arguable Article 8 rights. I am unable to accept that for four main and to some extent overlapping reasons which individually and cumulatively lead me to that conclusion. First, there is no suggestion whatsoever in the contentions put before the Panel or in the claim form that V’s personal relationships have been interfered with in such a way whatsoever by his exclusion from the School. In other words this case was totally different from those of the claimants in Wright’s case. Second V has not wanted to return to the School and that decision undermines an Article 8 claim.

A third reason is that even if Article 8 (1) might have been engaged, then Article 8 (2) would preclude the claimant showing even an arguable article 8 right as it provides insofar as is relevant that “there shall be no interference by a public authority with the exercise of [the Article 8 right] except such as is in accordance with the law and is necessary in a democratic society in the interests of … public safety …for the prevention of disorder or crime…or for the protection of the rights and freedoms of others”. In this case, the exclusion of V was for precisely those reasons as it was to prevent knives being brought to the School and being used there in a criminal manner so as endanger others at the School..

Fourth, there is no authority to support the conclusion that there is an Article 8 right to attend a school or not to be expelled from a particular school. Indeed, the Court of Appeal flatly rejected the argument that Article 8 was engaged by a child’s exclusion from school and Sedley LJ with whom Hughes and Ward LJJ agreed, explained that “I am unable to accept that the want of meaningful educational provision at home during the material period, undesirable though it was, can have amounted to a violation of A’s right to respect for his private or family life” A v Essex County Council [2008] EWCA Civ 364 [24]. By the same token, the contention that V had any arguable Article 8 claim so as to engage Article 6 must be rejected.

Conclusion

It therefore follows that I reject Mr Wolfe’s contention that the hearing before the Panel was “the determination of [V’s] civil rights and obligations so as to engage Article 6 of the ECHR”. In any event as Mann J explained in Commissioners forHer Majesty’s Revenue and Customs v. Khawaja [2008] EWHC 1687 (Ch) “29.. it is plain that Article 6 does not automatically introduce the criminal standard of proof”. So I must now consider whether Article 6 can be engaged on the basis that the Panel was concerned with the determination of a criminal charge.

It is settled law that the Strasbourg Court has identified three considerations to be considered in determining whether proceedings should be regarded as criminal for the purposes of Article 6. Those considerations are: (a) the classification of the proceedings in domestic law; (b) the nature of the offence; and (c) the degree of severity of the penalty (see Engel v The Netherlands [1976] 1 EHRR 647, 678-679 [82]). It is also clear that these factors may be approached alternatively and cumulatively and that condition (a) “the categorisation of the allegation of domestic law, is no more than a starting point for the classification and is not decisive of the nature of the allegation” (Han v Commissioners of Customs and Excise [2001] 1 WLR 2253 [65] per Potter L).

Lord Bingham of Cornhill explained the position in R v. Durham Constabulary [2005] 1 WLR 1184 when he said that:-

“14.

.. [T]he determination of a criminal charge, to be properly so regarded must expose the subject of the charge to the possibility of punishment, whether in the event the punishment is imposed or not. A process which can only culminate in measures of a preventive, curative, rehabilitative or welfare promoting kind would not ordinarily be the determination of a criminal charge”.

This statement was reflecting the approach of the Strasbourg Court as was shown in cases such as Benham v United Kingdom (1996) 22 EHRR 293. In that case the Strasbourg Court recognised that it was the second factor – namely the nature of the offence - which carries more weight ([56]). It also asked whether the imposition of the penalty in question was depending upon a finding of culpability for past conduct (namely rather than merely being intended to prevent future conduct). Significantly in that case the court rejected the argument that commitment to prison for non-payment of a community charge was not criminal because it was merely preventative by seeking to compel payment of the charge rather than being a punishment for non-payment.

This approach was adopted by the House of Lords in Secretary of State for the Home Department v. MB [2008] 1 AC 440 when it distinguished between measures which are “preventative in purpose” such as control orders and anti-social behaviour orders and those which “have a more punitive, retributive or deterrent object” (per Lord Bingham [23]).

Set against that background, it becomes necessary to determine into which of these categories a finding of permanent exclusion by the Panel falls. Mr Wolfe contends that permanent exclusion from a school is clearly first a penalty as being a severe sanction for past behaviour and second a decision with a punitive, as well as a deterrent, object. He fortifies that submission by pointing out that the allegations against V and the offence for which V was excluded were clearly criminal in nature as they were for possessing a knife and for threatening a teacher. Mr. Wolfe accepts that not all appeals against permanent exclusion from school will be where the allegations are clearly criminal because some will be where there has been an exclusion for matters such as for example disruptive behaviour but he says that in the present case the cause of the permanent exclusion was a criminal matter, namely the possession of a knife.

It therefore follows according to Mr Wolfe that the procedural protection required when determining the central point of dispute was whether the Panel was sure that V had a knife as he was entitled to the same protection which is accorded to those facing criminal charges. In other words he contends that the Panel should not simply have asked itself whether the allegation that V had a knife was made out on a balance of probabilities. In this connection, he relies on the approach adopted by Laws LJ in R (S) v The Governing Body of Y P School [2004] ELR 37 when he said that :-

“5.

…in dealing with the decision in matter where the accusation amounts to a crime under the general law, the head teachers and governors must be sure that the child has done what he has been accused of before so finding”.