R (v) v Independent Appeal Panel for Tom Hood School
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wilson,Sir Scott Baker,Lord Justice Rix |
| Judgment Date | 26 February 2010 |
| Neutral Citation | [2010] EWCA Civ 142 |
| Docket Number | Case No: C1/2009/0709 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 February 2010 |
[2010] EWCA Civ 142
Mr Justice Silber
Before: Lord Justice Rix
Lord Justice Wilson
and
Sir Scott Baker
Case No: C1/2009/0709
LOWER COURT NO: CO/8307/2007
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
MR DAVID WOLFE (instructed by John Ford Solicitors, Finsbury Park) appeared for the Appellant.
The Respondent did not appear and was not represented.
MR SAM GRODZINSKI (instructed by The Treasury Solicitor) appeared for the Interested Party.
Hearing date: 7 December 2009
Lord Justice Wilson:
A: INTRODUCTION
1. The appellant, who is the mother of a boy, VG, appeals against the dismissal by Mr Justice Silber, sitting in the High Court, Queen's Bench Division, Administrative Court, on 2 March 2009, of her claim for judicial review. She had sought review of the determination of the Independent Appeal Panel for Tom Hood School (“the panel”), made on 10 July 2007, to uphold a decision permanently to exclude VG from the school. The panel, as defendant to the claim, opposed it before Silber J but, as respondent to this appeal, takes no part in it. The Secretary of State for the Department for Children, Schools and Families was served with the claim and, as an interested party, not only joined with the panel in opposing it before Silber J but also opposes the appeal.
2. The primary question raised in this appeal falls into two parts, as follows:
“Where it falls to a decision-maker to decide whether a child should be permanently excluded from his school by reference to disputed allegations against him which, if true, amount to the commission on his part of a criminal offence,
(a) does he have a right to a fair hearing before the decision-maker under article 6 of the European Convention on Human Rights and Fundamental Freedoms 1950 (“the Convention”) and, if so,
(b) is his right infringed by a decision that he should be permanently excluded which is made in consequence of a finding that the allegations against him are established on the balance of probabilities (as opposed to a finding that they are established beyond reasonable doubt)?”
3. Article 6 of the Convention provides:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing …”
The appellant argues that, in hearing her appeal against the decision permanently to exclude VG, the panel was determining his civil rights within the autonomous meaning of the article. She argues, alternatively, that it was determining a criminal charge against him within, again, its autonomous meaning. If either of her arguments prevails, article 6 is engaged and, in that it makes no express reference to the requisite standard of proof for the determination even of a criminal charge let alone of civil rights, the further question arises whether VG's entitlement to a “fair … hearing” requires that a decision permanently to exclude him from the school – and a determination to uphold such a decision – be made in consequence only of a finding that disputed allegations are established beyond reasonable doubt. Whether the route to the engagement of article 6 shall have been that of civil rights or of a criminal charge is a matter which will be relevant to that further question. But, as I will explain, we cannot simply conclude that, if the panel was determining VG's civil rights, his right to a fair hearing required no more than that it should find disputed allegations established on the balance of probabilities; nor even that, if the panel was determining a criminal charge against him, his right to a fair hearing required that it should find disputed allegations established beyond reasonable doubt.
4. R (S) v. The Governing Body of YP School [2003] EWCA Civ 1306, [2004] ELR 37, is a decision of this court ostensibly favourable to the present appeal. Laws LJ said, at [5]:
“The right approach is as conceded: namely, that in dealing with a disciplinary matter where the accusation amounts to a crime under the general law, the head teacher and governors must be sure that the child has done what he has been accused of doing before so finding.”
At [38] and [39] below I will survey the status of the decision, which was not cast under article 6. For these introductory purposes the relevance of the decision lies in the fact that it prompted Parliament, by regulation 4 of the Education (Pupil Exclusions) (Miscellaneous Amendments) (England) Regulations 2004 (SI 2004/402), to seek to reverse its effect by inserting the following regulation into the Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations 2002 (SI 2002/3178):
“Exclusions – standard of proof.
7A Where it falls to –
(a) the head teacher, in exercise of the power conferred by section 52(1) of the 2002 Act,
(b) the governing body, in exercise of functions under regulation 5, or
(c) an appeal panel constituted in accordance with paragraph 2 of the Schedule, in exercise of functions under regulation 6,
to establish any fact, any question as to whether that fact is established shall be decided on a balance of probabilities.”
Parliament seems to have made provision analogous to regulation 7A in other disciplinary spheres: see for example regulation 22(2) of the Judicial Discipline (Prescribed Procedures) Regulations 2006 (SI 2006/676), as amended, which provides, in relation to a complaint of judicial misconduct, that the establishment of any fact to the satisfaction of an investigating judge must be on the balance of probabilities.
5. Regulation 7A was purportedly made pursuant to powers given by s.52 of the Education Act 2002. Section 52 provides that:
“(1) The head teacher of a maintained school may exclude a pupil from the school for a fixed period or permanently.
(2) …
(3) Regulations shall make provision –
(a) …
(b) requiring the responsible body … to consider whether the pupil should be reinstated,
(c) requiring the local education authority to make arrangements for enabling a prescribed person to appeal … to a panel … against any decision of the responsible body not to reinstate a pupil, and
(d) as to the procedure on appeals.
(4) Regulations under this section may also make provision –
…
(d) in relation to any other matter relating to the exercise of the powers conferred by subsections (1) and (2).”
6. We can now see why, subject to the subsidiary question which he raises, Mr Wolfe on behalf of the appellant needs to cast his argument under article 6. If before the panel VG had a right under the article which required proof against him beyond reasonable doubt, then, in that regulation 7A would be incompatible therewith but in that s.52 would not prevent removal of the incompatibility, the panel would be obliged to disapply the regulation and to uphold his right under article 6: s.6(1) Human Rights Act 1998. Otherwise, however, subject to the subsidiary question, the panel proceeded lawfully in acting upon proof on a balance of probabilities and the appeal must fail.
7. The subsidiary question, not raised before the judge, is whether regulation 7A(c) is ultra vires s.52. The argument is that, in providing that proof should be on a balance of probabilities, the regulation went further than to make provision for the “procedure” on appeals within the meaning of s.52(3)(d). Were article 6 not so to operate as to trump the regulation in the manner described at [6] above but were the answer to the subsidiary question to be that the regulation was indeed ultra vires, we would need to consult the common law – and therefore again to survey the decision of this court in YP School cited above – in order to discern whether the panel was required to be satisfied of the allegations against VG beyond reasonable doubt.
B: THE FACTS
8. On 26 February 2007 there was a fight between boys in the playground of Tom Hood School. VG, then aged 14, joined in. A female teacher approached the boys. According to her written statement made later that day, she saw a knife in VG's hand and he swore at her and threatened her with it. Following the incident, however, two male teachers conducted a search of VG and failed to find a knife. About eight boys gave written statements, mostly anonymously. Half of them said that VG had been holding a knife; but their descriptions of it are said to have been highly inconsistent. The other half, including the boy with whom, principally, VG was fighting, denied that they had seen him holding a knife. VG admitted that he had sworn at the teacher but denied that he had been holding a knife. In due course he said that he had been wearing a loose silver bracelet around his right wrist; that sometimes, with a flick of the wrist, he would clutch part of the bracelet with his hand; and that, in his hand, it might have been mistaken for a knife.
9. On 1 March 2007, in the exercise of her power under s.52(1) of the Act of 2002, the head teacher excluded VG from the school for a fixed period of ten days. On 7 March she made the exclusion permanent on the basis that VG had been in possession of a knife and had threatened the teacher with it. On 15 May, by a committee, the governing body of the school, in the exercise of its functions under regulation 5 of the Regulations of 2002, decided that VG should not be reinstated. On 10 July, following a hearing on 5 July at which the appellant and her...
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