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School exclusion hearings not protected like trials

posted 19 Mar 2009, 10:25 by Dilwoar Hussain   [ updated 19 Mar 2009, 10:31 ]
From The Times
March 18, 2009

Queen’s Bench Division
Published March 18, 2009
Regina (V: a Child) v Independent Appeal Panel for Tom Hood School and Others
Before Mr Justice Silber
Judgment March 2, 2009

The permanent exclusion of a child from a particular school did not engage the fair trial provisions protected by article 6 of the European Convention on Human Rights; the standard of proof in establishing facts was the balance of probabilities.

Mr Justice Silber so held in the Queen’s Bench Division in refusing the claim of V, applying by his mother and litigation friend LG, for judicial review of the decision of the Independent Appeal Panel for Tom Hood School of July 10, 2007, to uphold the decision of the school’s governors that he should be permanently excluded after a fight with another pupil.

The Board of Governors of Tom Hood School, Waltham Forest London Borough Council and the Secretary of State for the Department for Children, Schools and Families were joined as interested parties.

The governors’ decision had been taken on the balance of probabilities standard of proof as set out in regulation 7A(c) of the Education (Pupil Exclusion and Appeals) (Maintained Schools) (England) Regulations (SI 2002 No 3178), as inserted by regulation 4 of the Education (Pupil Exclusions) (Miscellaneous Amendments) (England) Regulations (SI 2004 No 402).

The question of the seriousness of the matter, and whether V should have been excluded, had been complicated by whether V had produced a knife at the time of the incident; there had been conflicting evidence about that.

Mr David Wolfe for V; Mr Nicholas Armstrong for the school; Mr Sam Grodzinski for the secretary of state; the governors and council did not appear and were not represented.

MR JUSTICE SILBER said that in order to determine if there had been any determination of V’s civil rights and obligations, it became necessary to ascertain first if the panel was concerned with any right enjoyed under the domestic law by V and then whether the determination of the appeal affected those rights significantly or at all.

Authority did not assist V in showing that there was a right, or even an arguable right under the law of this country which could show that he was seeking the determination of his civil rights and obligations so as to engage article 6.

The decision of the panel to confirm his permanent exclusion did not undermine, let alone significantly affect any rights or alleged rights which he might have under article 2 of Protocol No 1 of the Convention, as to the right to education.

The proceedings before the panel were not classified as criminal under domestic law. A number of factors pointed to the conclusion that the proceedings did not constitute the determination of a criminal charge. Those included the fact that the provisions which were breached were addressed to a specific group, namely children at the school, rather than being generally applicable to everyone.

Solicitors: John Ford, Finsbury Park; Mr Daniel Fenwick, Waltham Forest; Treasury Solicitor.