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School exclusion procedures not criminal proceedings

1 March 2010

A pupil excluded from school does not have a right to a fair trial under article 6 ECHR, the Court of Appeal has ruled.

The pupil in the case, known as VG, was excluded on the basis that he had been in possession of a knife and threatened a teacher with it.

Upholding the findings of Mr Justice Silber last March, Lord Justice Wilson said in R (on the application of LG) v Tom Hood School [2010] EWCA Civ 142 that exclusion from school did not involve the breach of a civil right that would trigger the application of article 6.

Wilson LJ added that the proceedings, even where the pupil was excluded for allegedly committing an offence, could not be regarded as criminal.

“The appeal panel did not determine a criminal charge against VG. This was a disciplinary case which attracts not the exception but the ordinary rule,” said Wilson LJ.

The judge referred in particular to the 1976 ECtHR case of Engel v Netherlands, where the Strasbourg court found that the degree of severity of a penalty was determining in classifying a charge as criminal or not.

“In a society subscribing to the rule of law, there belong to the ‘criminal’ sphere deprivations of liberty liable to be imposed as a punishment, except those which by their nature, duration of manner of execution cannot be appreciably detrimental,” the ECtHR said at the time.

Wilson LJ upheld arguments by the secretary of state for schools, who intervened as interested party, that VG did not face the possibility of imprisonment or fine, or even of exclusion from all education.

On this basis, the judge concluded, “the sanction of VG’s permanent exclusion from one particular school was insufficiently severe to make the charge against him criminal”.

The case follows that of R(S) v Governing Body of YP school in 2003, where the Court of Appeal determined that “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”. The application of article 6 was not discussed.

Subsequent regulations merely required schools to set up appeal panels establishing facts on the balance of probabilities.

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