R (v) v Independent Appeal Panel for Tom Hood School
| Jurisdiction | England & Wales |
| Judgment Date | 02 March 2009 |
| Neutral Citation | [2009] EWHC 369 (Admin) |
| Docket Number | Case No: CO/8307/2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 02 March 2009 |
[2009] EWHC 369 (Admin)
Before: The Hon. Mr. Justice Silber
Case No: CO/8307/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
David Wolfe (instructed by John Ford) for the Claimant
Nicholas Armstrong (instructed by Legal Services, London Borough of Waltham Forest) for the Defendant
Sam Grodzinski (instructed by Treasury Solicitor) for the Secretary of State for the Department for Children, Schools and Families
The other Interested Parties were neither represented not present at the hearing.
Hearing date: 11 February 2009
Further written submission received on 13 February 2009
Mr Justice Silber:
I Introduction
Regulation 7A of the Education (Pupil Exclusion and Appeals) (Maintained Schools) (England) Regulation 2002 ( SI 2002/3178) (“the 2002 Regulations”) provides that where an appeal panel is considering an appeal against the permanent exclusion of a pupil, the standard of proof on all issues will be on the “balance of probabilities”. The main issue raised on this application is whether that provision infringes Article 6 of the European Convention on Human Rights (“ECHR”) on the grounds that the standard of proof applied by an appeal panel in respect of a claim against a pupil should be the criminal standard of proof; that is that they must be sure of the allegations against the pupil before upholding them.
The second issue raised is whether, as the claimant contends to be the position, the Panel in this case was required, but failed, to give effect to the Secretary of State's Statutory Guidance on Exclusions.
II The Facts
In these proceedings, LG challenges the decision of the Independent Appeal Panel for Tom Hood School (“the Panel”) of 10 July 2007 which rejected her appeal against the decision of the Governing Body of Tom Hood School (“the School”) by which it decided not to reinstate her son V after the School's Head Teacher had permanently excluded him from the School in a letter dated 7 March 2007.
V, who was born on 30 November 1992, has a visual impairment which cannot be corrected by glasses and which leads to difficulties for him with balance and also when walking.
On 26 February 2007, V and other students (including the claimant's brother) were involved in a fight at the school. Ms Shearman, who is a teacher at the school came upon the aftermath of the fight and she alleged first that V was verbally aggressive and second that he was in possession of a knife.
Although V accepted that he swore and that he was rude to Ms Shearman, he has constantly denied having a knife. He maintains that he was wearing a silver bracelet chain whose loose end hangs into his hand and which he often grasps when nervous by flicking his wrist to reach it. This it is said must have been mistaken by Ms Shearman for a knife. V was searched by two teachers after the incident but no knife was found.
By a letter dated 1 March 2007, the School's Head Teacher initially excluded V for a fixed term of 10 days. Subsequently on 7 March 2007 she permanently excluded V because “[V] was seen by staff and pupils to be carrying a knife”. It is said on behalf of the claimant that the conclusion that V had a knife was of critical, if not crucial, importance to the decision permanently to exclude him.
Regulation 5 of the 2002 Regulations requires the Pupil Disciplinary Committee of the School's Governing Body to meet to consider the exclusion and it duly met on 18 April 2007, 2 May 2007 and 15 May 2007 to consider whether or not to order that V should be reinstated.
Both V and his mother attended the meeting and on 15 May 2007 the committee decided that he should not be reinstated. An appeal against that decision pursuant to Regulation 6 of the 2002 Regulations was heard by the Panel on 5 July 2007. As there is no criticism of the procedure at the appeal hearing other than the standard of proof adopted by the Panel and its actual decision, nothing more needs to be said about the procedure adopted by the Panel.
The evidence before the Panel was that a teacher, who V was said to have threatened said that she saw a knife which “would operate with the flick of the wrist” but that no other adult reported seeing a knife which was variously described by unidentified pupils as being “silver” and having “a red handled knife”. The person with whom V actually had a fight, Luther, said “I did not see a knife on [V]”.
By a letter dated 10 July 2007 the Panel rejected the appeal and it explained that:—
“Based on the evidence, presented by both parties, including the witness statements, the Panel decided unanimously, that on the balance of probabilities, [V] committed the offence as alleged, i.e. that it was more probable than not that [V] had carried an offensive weapon and threatened a member of staff”.
The present position is that V is now a pupil at another school and he does not wish to return to the School from which he was excluded. Thus to some extent this appeal is academic but V's mother explains the fact that V was permanently excluded from the School has had a continuing impact on him including the fact that it might potentially prejudice his future educational and employment opportunities. Neither the Panel nor the Secretary of State for the Department for Children, Schools and Families (“the Secretary of State”) contend that this claim should not be considered because it is academic.
Permission to pursue this claim was given by Judge Hickinbottom and an order has been made that the pupil and his mother should be described by their initials. The London Borough of Waltham Forest and the Governing Body of the School were Interested Parties but neither were present nor represented at the hearing. Neither of them has adduced any evidence.
III The Issues
The Panel and the Secretary of State both contend that the appropriate standard of proof which had to be adopted by the Panel was the balance of probabilities rather than the criminal standard. At the forefront of their submission is the contention that this is what the Panel was required to do under regulation 7A of the 2002 Regulations which states (with my underlining added) that:-
“Where it falls to
(a) the head teacher, in exercise of the power conferred by section 52(1) of the 2002 [Education] Act [power to exclude a pupil for a fixed period or permanently], (b) the governing body, in exercise of functions under regulation 5 [functions of governing body in relation to excluded pupils], or (c) an appeal panel constituted in accordance with paragraph 2 of the Schedule, in exercise of functions under regulation 6 [appeals against permanent exclusion of pupils], to establish any fact, any question as to whether that fact is established shall be decided on a balance of probabilities.”
In response Mr David Wolfe counsel for the claimant contends that as the accusation made against V amounted to a crime, so regulation 7A must give way to the requirements of Article 6 of the ECHR with the consequence the Panel had to be sure that V had a knife in his possession. Mr. Sam Grodzinski counsel for the Secretary of State and Mr Nicholas Armstrong counsel for the Panel both submitted that article 6 was not engaged and that even if it was, it would not have required any higher standard of proof than proof on a balance of probabilities. In order for Article 6 to be engaged, it is important to bear in mind that it only applies to a person (with my emphasis added) “in the determination of his civil rights and obligations or of a criminal charge against him”. The two categories of words underlined require and will receive separate treatment as they are alternative ways in which Article 6 can be engaged.
In the alternative, it is contended by Mr Wolfe that the Panel failed to give effect to the Secretary of State's Statutory Guidance on Exclusions which required more convincing evidence than for them to be satisfied on a balance of probabilities of the charge that V was in possession of a knife. This is disputed by Mr Armstrong.
It is appropriate to consider first whether Article 6 of the ECHR is engaged on the basis that the hearing before the panel related to the “determination of [V]'s civil rights and obligations”, then to consider whether it was engaged as there was at the time of the hearing in front of the Panel “any criminal charge against [V]” and then in the light of my conclusions on those matters to determine the correct standard of proof to be adopted before the Panel could find the case against V proved.
IV Was the hearing before the panel “the determination of [V's] civil rights and obligations” so as to engage Article 6 of the ECHR?
Before Article 6 can be engaged, it must be shown that the hearing before the Panel was concerned with (in the words of Article 6) V's “determination of [V]'s civil rights and obligations” and that does not cover every claim. This was explained by Lord Bingham of Cornhill in Matthews v Ministry of Defence [2003] 1 AC 1163 at 1168 when he said :-
“3… it is recognised, first, that the expression “civil rights” in article 6 of the convention is autonomous. …This means that the concept of a “civil right” cannot be interpreted solely by reference to the domestic...
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