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

School exclusion decisions may raise serious questions under Article 6 where exclusion arguably determines a civil right or a criminal charge. A statutory rule requiring disputed facts to be decided on the balance of probabilities may also raise questions about the scope of the power under section 53(2) of the Education Act 2002 and about Convention compliance.

At the permission stage, the court need not decide those issues. Permission should be granted where the grounds are seriously arguable, particularly where new Strasbourg authority makes fuller consideration appropriate. A stated preventive purpose does not necessarily resolve whether exclusion has a criminal character, since disciplinary measures may also condemn, deter and signal unacceptable conduct.

The applicant challenged a decision of the Independent Appeal Panel concerning the exclusion of a pupil from Tom Hood School. On appeal from the Administrative Court, Silber J had held that Article 6 did not apply because the case involved neither the determination of a civil right nor a criminal charge.

The challenge raised whether regulation 7A of the Education (Pupil Exclusion and Appeals) (Maintained Schools) (England) Regulations 2002, inserted following amendments made by Statutory Instrument 2004/402, was intra vires section 53(2) of the Education Act 2002 and Article 6 compliant. The central issues were whether exclusion determined a civil right and whether it involved a criminal charge.

Application granted. Lord Justice Patten considered that the applicant had shown a sufficient case for permission to appeal. The appeal was to be argued on all relevant grounds and was not confined to the civil-right issue.

1. The earlier decision in R (S) v The Governing Body of YP School [2003] EWCA Civ 1306, applying R (McCann) v Manchester Crown Court [2003] 1 AC 707, had applied the criminal standard of proof to school exclusions where the underlying conduct would otherwise constitute criminal conduct. Regulation 7A now appeared to require disputed facts to be determined on the balance of probabilities. This raised an arguable question whether the regulation was within the procedural rule-making power in section 53(2) of the Education Act 2002.
2. There was a serious argument that exclusion might determine a civil right. S, T and P v Brent [2002] ELR 555 had suggested that an entitlement to remain at a school could arise from legitimate expectation or from legitimate expectation combined with regulation 9 of the Education (Pupil Registration) Regulations 1995, which required the maintenance of an admissions register and restricted removal of compulsory-school-age pupils to prescribed grounds. The decision in Emine Arac v Turkey (Application no. 9907/02) made it appropriate for the Court of Appeal to reconsider the issue in the light of the Strasbourg jurisprudence.
3. The question whether exclusion involved a criminal charge was also seriously arguable. The lower court had treated exclusion as preventive. However, disciplinary penalties may aim to impress upon the perpetrator that conduct is unacceptable, deter repetition and signal that conduct to other pupils. Those features could arguably place the measure on the criminal side of the Article 6 distinction.

The merits were left for the full appeal. Order: application granted.

• Court of Appeal (Civil Division): Lord Justice Patten granted permission to appeal on all relevant grounds, including the statutory vires issue and both Article 6 questions.
• Administrative Court: Silber J held that Article 6 did not apply because exclusion involved neither the determination of a civil right nor the determination of a criminal charge.