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School exclusion not "criminal proceedings"

9 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 upheld arguments by the secretary of state for schools, who intervened as an 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”.

Karen May, a solicitor at John Ford Solicitors, who acted for the boy, said that while schools were only required to establish the facts on the balance of probabilities, they were nonetheless expected to follow government guidance which makes it clear that where there is a serious allegation and sanction more convincing evidence is needed to substantiate the allegation.

“It is important for schools to check whether the incident may have been provoked, to keep a written record of actions taken, and take witness statements which should be dated and signed where possible,” May said.

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