S, R (on the application of) v The Governing Body of YP School

Where school disciplinary proceedings determine an allegation which amounts to a criminal offence under the general law, the head teacher and governing body must apply the criminal standard of proof. They must be sure that the pupil committed the alleged act before making the finding. A purported finding is unlawful where the contemporaneous material does not show that this standard was applied.

S was excluded from school for ten days, effectively for stealing a guitar. Maurice Kay J dismissed S’s application for judicial review of the exclusion decision.

With permission granted by Hale LJ, S appealed. The governing body conceded that the criminal standard of proof governed the allegation. S also sought permission to add a challenge to section 64 of the School Standards and Framework Act 1998 under Article 6 of the European Convention on Human Rights.

The central issue was the applicable standard of proof in school discipline proceedings concerning an allegation of theft.

1. Appeal allowed unanimously. Laws LJ gave the leading judgment. Mummery LJ and Simon Brown LJ agreed. The criminal standard of proof applied to the allegation that S had stolen school property.

2. The court applied R (On the app of McCann) v Manchester Crown Court [2003] 1 AC 787. Although school discipline is not a criminal trial, that distinction did not justify a lower standard where the accusation amounted to an offence under the general law. A formulation in terms of probability would add no practical assistance. The proper direction for head teachers and governing bodies is that they must be sure that the child committed the act before finding the allegation proved.

3. The evidence before the judge below suggested that the decision-maker may have applied that standard, but the contemporaneous material did not plainly establish it. The court made no finding of bad faith. It was nevertheless not satisfied that the criminal standard had been applied. The exclusion decision was therefore quashed. The outstanding procedural-fairness grounds did not require determination.

4. Permission to amend the appeal to raise the compatibility of section 64 of the School Standards and Framework Act 1998 with Article 6 of the European Convention on Human Rights, and to seek a declaration under section 4(2) of the Human Rights Act 1998, was refused. The case had become moot and was not an appropriate vehicle for that wider issue, which would require service on the Secretary of State and a further hearing.

5. Maurice Kay J’s order was set aside. Certiorari quashed the governing body’s exclusion decision. S’s school record was to record the quashing, and neither the decision nor its quashing was to be disclosed to third parties. Costs were awarded to S on the standard basis.

• Court of Appeal (Civil Division): Allowed S’s appeal and quashed the exclusion decision: [2003] EWCA Civ 1306.

• Administrative Court: Maurice Kay J dismissed S’s application for judicial review on 13 December 2002. That order was set aside.