Permanently excluded pupil does not have ECHR right to fair trial: Court of Appeal

A pupil permanently excluded from school does not have a right to a fair trial under the European Convention on Human Rights, the Court of Appeal has ruled.

In R (on the application of LG) v The Independent Appeal Panel for Tom Hood School [2010] EWCA 142, the mother had appealed against the dismissal of her claim for judicial review.

Her 14-year-old son, VG, had been accused by a female teacher of swearing at her and threatening her with a knife, after she sought to intervene in a fight in a playground.

The head teacher excluded the child for ten days, after which the decision was made permanent. An independent appeal panel subsequently backed the decision after a hearing at which the boy’s parents were represented by counsel. The Administrative Court also upheld the decision.

The primary issue in R (on the application of LG) was where a decision over a child’s permanent exclusion was by reference to disputed allegations against him which, if true, amounted to the commission on his part of a criminal offence:

• Does the child have a right to a fair hearing under Article 6 of the ECHR, and, if so,
• Is his right infringed if the decision to permanently exclude him is made on the basis of a finding that the allegations against him are established on the balance of probabilities (rather than beyond reasonable doubt)?

Giving the lead judgement, Lord Justice Wilson said: “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.”

The judge highlighted the fact that VG did not face the possibility of imprisonment, a fine or even of exclusion from all education but rather of exclusion from Tom Hood School.

Lord Justice Wilson said “the most potent” argument put forward by counsel for the Secretary of State for Children, Schools and Families – intervening as an interested party – was that “even if the purpose of excluding VG was to punish him as well as to protect the school from him, his exclusion was a sanction insufficiently severe to render the charge against him criminal”.

The judge also said that, even if Article 6 had applied, the appellant’s case that the panel should have applied the criminal standard of proof “would have confronted grave difficulties”.