England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE COURT LIST
(MR JUSTICE MAURICE KAY)

		Royal Courts of Justice Strand London, WC2A 2LL
		11 July 2003

1. LORD JUSTICE SIMON BROWN: I will ask Lord Justice Laws to give the first judgment.
2. LORD JUSTICE LAWS: This is an appeal brought with permission granted by Hale LJ against a decision of Maurice Kay J given in the Administrative Court sitting at Cardiff on 13 December 2002. By that decision Maurice Kay J dismissed an application for judicial review brought in relation to a decision to exclude a schoolboy, S, from his school for a period of ten days, effectively for stealing a guitar from the school. The defendants were the head teacher and the board of governors of the school. The defendants, the respondents to the appeal, concede that the appeal should succeed. I consider that concession to be entirely proper and will accordingly merely give my reasons for allowing the appeal in outline form.
3. The point which is conceded concerns the standard of proof applicable to an accusation of theft arising in the context of school discipline. The learned judge below said at paragraph 19 of his judgment:

"The appropriate standard, in the sense of the standard required by the law, is less than the criminal standard and is properly described as being the 'balance of probabilities', albeit that a gloss is placed upon that language by the authorities in relation to an allegation of seriousness as this one was."

4. The respondents however accept, in light of the decision of their Lordship's House in R (On the app of McCann) v Manchester Crown Court [2003] 1 AC 787 which was concerned with anti-social behaviour orders made under the Crime and Disorder Act 1998, that the appropriate standard is the criminal one. Since the course of the disciplinary process which led to this child's exclusion was not the process of a criminal court as such, it might be possible, without offence to their Lordships' approach in McCann, to formulate the standard of proof in terms of probability while making it plain that, given that what is in effect a criminal offence is involved, the degree of probability required equates with the criminal standard of proof.
5. Such a refinement of legal reasoning is not, I think, tailored to be of great practical assistance to hard-pressed head teachers and boards of governors. The right approach is as conceded: namely, that in dealing with a disciplinary matter 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 before so finding.
6. Despite evidence put before the judge below suggesting that the decision maker here had been satisfied to the criminal standard, the contemporary material does not plainly bear that out. I am not for a moment suggesting bad faith or anything approaching it on the part of anyone, I am simply not satisfied on the facts that the criminal standard was applied.
7. There are other grounds of appeal relating to issues of procedural fairness as to which in the circumstances it is unnecessary to say anything.
8. In a skeleton argument dated 1 July 2003 Mr Kerr QC for the appellant signified his intention to seek permission to amend his grounds of appeal so as to allege that section 64 of the School Standards and Framework Act 1998, empowering a head teacher to exclude a pupil for fixed periods totalling up to 45 school days in any school year, is incompatible with the pupil's civil right of reputation under Article 6 of the European Convention on Human Rights on the ground that there is no right of access to an independent and impartial tribunal for the determination of the right. It is said that the board of governors is not such a tribunal and that judicial review is no cure. A declaration of incompatibility would be sought pursuant to section 4(2) of the Human Rights Act 1998.
9. The court has considered this, and determined to refuse permission to amend. This case is now moot. It is not appropriate to use it as a platform to debate the consistency of main legislation with the European Convention, which would require service on the Secretary of State and a further adjourned hearing. The head teacher and governors are not today represented in court, nor would they wish to be on any further hearing for good reasons of economy. Mr Kerr's point on section 64 will have to wait for another day.
10. I would, in the circumstances and for all those reasons, make an order in the form submitted and signed by counsel for the parties.
11. LORD JUSTICE MUMMERY: I agree.
12. LORD JUSTICE SIMON BROWN: I also agree. The order is in the agreed terms as follows:

1. Maurice Kay J's order is set aside.

2. Certiorari goes to quash the decision of the governing body on 2 May 2002 excluding S from school for a fixed period.

3. It is declared that S's school record should be amended to reflect the fact that the governing body's decision was quashed and the decision and the fact that it was quashed shall not be disclosed to any third parties.

4. The respondents to pay the appellant's reasonable costs of the appeal and of the court below on the standard basis, those costs to be subject to detailed assessment in accordance with Community Legal Services Costs Regulation 2000 if not agreed.