The Court of Appeal (Civil Division) handed down judgment in the case of R(LG) v The Independent Appeal Panel for Tom Hood School and Another [2010] EWCA Civ 142 on 26th February 2010. The case concerned an application for judicial review brought by the mother of a child VG who was permanently excluded by the respondents from the Tom Hood School following an incident in which a teacher was allegedly threatened with a knife by VG after breaking up a fight in which the child was involved.

The question for the court was whether VG was entitled to a fair hearing before the panel under article 6 of schedule 1 of the Human Rights Act 1998 c. 42 and whether his right was infringed by the decision being taken on facts established on the balance of probabilities.

Dismissing the appeal, the Court confirmed the decision of the House of Lords in A v Head Teacher and Governors of Lord Grey School [2006] UKHL 14 that there is “no Convention guarantee of education at or by a particular institution”. As VG lacked an arguable right under domestic law to continue to be educated at Tom Hood School without good reason, article 6 was not engaged as the decision did not involve the “determination of a civil right”.

The Court likewise failed to find that the decision of the panel amounted to the determination of a criminal charge against VG for the purposes of article 6. Using the seriousness of the imprisonment or other penalty faced as a “touchstone” as advocated by the European Court of Human Rights in Han and Yau v Commissioners of Customs and Excise [2001] EWCA Civ 1048, the court concluded that permanent exclusion was insufficiently severe to render the charge against VG as criminal, the present case was purely disciplinary in nature.

As to the correct standard of proof to be applied, the court held that the panel had not erred by establishing the facts on the balance of probabilities as set out in regulation 7A of the Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations 2002 (SI 2002/3178). Following the case of In re D (Secretary of State for Northern Ireland intervening) [2008] UKHL 33 an enquiry into civil or disciplinary proceedings into conduct which would amount to the commission to a criminal offence does not require the application of a criminal standard of proof.

Had article 6 been engaged the court made clear that the panel would still have been entitled to apply the standard set out in regulation 7A as the article itself is silent on the correct standard of proof to be applied.