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

Permanent exclusion proceedings before a school appeal panel do not ordinarily involve the determination of civil rights or a criminal charge for the purposes of Article 6 of the ECHR. The fact that the conduct alleged would constitute a criminal offence does not make the disciplinary proceedings criminal in character. The governing question is whether exclusion is a regulatory and preventive measure directed to protecting the school community.

Even where Article 6 is engaged, it does not automatically require proof beyond reasonable doubt. In the absence of special reasons, and subject to the express wording of the applicable regulations, the civil standard applies. Regulation 7A of the Education (Pupil Exclusion and Appeals) (Maintained Schools) (England) Regulations 2002 therefore required facts before the panel to be determined on the balance of probabilities.

The claimant sought judicial review of an Independent Appeal Panel’s decision upholding the permanent exclusion of her son, V, from Tom Hood School. V had been alleged to have possessed a knife and threatened a member of staff after a fight at school. The panel unanimously concluded, on the balance of probabilities, that the allegations were proved.

The claimant argued that Article 6 of the ECHR required the criminal standard of proof because the allegations were criminal in nature, and that the panel had failed to apply statutory guidance requiring more convincing evidence in serious cases. The central questions were whether Article 6 was engaged and, if so, what standard of proof applied.

1. Application dismissed. The panel’s proceedings did not concern the determination of V’s civil rights and obligations. There was no domestic-law right to continue education at a particular school. The authorities established that the right to education did not confer a right to be educated in any particular institution, and that exclusion was compatible with Article 2 of Protocol No 1 where the pupil could enrol elsewhere.
2. The panel proceedings did not concern the determination of a criminal charge. Applying the three considerations identified in Engel v The Netherlands [1976] 1 EHRR 647, the proceedings were not criminal under domestic law; the rules applied to a specific group of pupils rather than generally; and exclusion was regulatory and preventive, not punitive. The criminal character of the alleged conduct was insufficient. The panel had to decide whether exclusion was necessary to prevent further misconduct at the school.
3. Regulation 7A of the Education (Pupil Exclusion and Appeals) (Maintained Schools) (England) Regulations 2002 required disputed facts to be determined on the balance of probabilities. Article 6 did not automatically introduce the criminal standard. The seriousness of the allegation and consequences did not alter that conclusion. The reasoning in McCann [2003] 1 AC 707 was based on pragmatic considerations that did not apply to this statutory scheme.
4. The panel had adequately applied the Secretary of State’s guidance. The guidance required more convincing evidence for more serious allegations, but expressly retained the balance-of-probabilities standard. The panel had considered the evidence and was entitled to conclude that the allegations were more probable than not. A challenge to the evidential merits of that conclusion was not an appropriate ground for judicial review where adequate evidence supported it.

The claimant was liable for the panel’s costs. The Secretary of State was not entitled to a separate costs order because he had not pursued a separate issue requiring separate representation.

First-instance judicial review application. The judgment itself records no prior appellate decision in the same proceedings.