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

Article 6 is not engaged by a school-exclusion appeal unless the pupil has an arguable domestic-law right which falls within its autonomous concept of a civil right, or the proceedings determine a criminal charge. A general right to education does not confer a right to remain at a particular school, and admission-register requirements do not create one.

Permanent exclusion from one school is ordinarily a disciplinary measure, not a criminal charge. Applying the balance of probabilities under Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations 2002, regulation 7A, was lawful. A rule prescribing the standard of proof is part of the procedure on an appeal and regulation 7A(c) was intra vires.

VG was permanently excluded from Tom Hood School after the school found, on the balance of probabilities, that he had carried a knife and threatened a teacher. The governing body declined to reinstate him. An independent appeal panel unanimously upheld the exclusion and found it proportionate.

VG’s mother sought judicial review. Silber J dismissed the claim on 2 March 2009. She appealed, contending that the panel was determining either VG’s civil rights or a criminal charge for the purposes of article 6 of the Convention, so that allegations amounting to a criminal offence required proof beyond reasonable doubt. She also argued that regulation 7A(c) was ultra vires.

The central issues were whether article 6 applied to the exclusion appeal, what standard of proof it would require, and whether the regulation validly prescribed the balance of probabilities.

1. Appeal dismissed unanimously. Lord Justice Wilson gave the judgment, with which Sir Scott Baker and Lord Justice Rix agreed.

2. The panel was not determining a civil right. Article 6 requires an arguable right recognised by domestic law before its autonomous civil-rights limb can arise. The right to education, including the right under article 2 of the First Protocol, is not a right to education at a particular institution. Nor did the obligation to maintain an admission register confer a substantive right to remain at the school. VG therefore had no arguable domestic right to continued education at Tom Hood School without good reason.

3. The panel was not determining a criminal charge. Applying the Engel criteria, the proceedings were disciplinary and applied only to pupils at the school. The decisive consideration was the limited severity of the sanction: VG faced exclusion from one school, not imprisonment, a fine, or exclusion from state education altogether. Permanent exclusion in those circumstances was insufficiently severe to make the charge criminal.

4. Accordingly, article 6 did not invalidate regulation 7A of the Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations 2002. The court added that article 6 does not itself specify a standard of proof. Even if it had applied, an allegation of conduct amounting to a criminal offence would not, without more, require the criminal standard in civil or disciplinary proceedings. [2003] EWCA Civ 1306 was a consensual and unreasoned authority which was not robust support for the contrary proposition.

5. Regulation 7A(c) was intra vires section 52(3)(d) of the Education Act 2002. “Procedure on appeals” means the processing of an appeal and includes the standard by which the panel determines disputed facts. There was no material distinction between a procedural rule excluding specified evidence and one prescribing the standard for evaluating admissible evidence.

• Court of Appeal (Civil Division) — dismissed the mother’s appeal and upheld the panel’s decision.
• High Court, Queen’s Bench Division, Administrative Court (Silber J) — on 2 March 2009 dismissed the claim for judicial review of the appeal panel’s decision to uphold VG’s permanent exclusion.