England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
MR JUSTICE SILBER
LOWER COURT NO: CO/8307/2007

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/02/2010

Lord Justice Wilson:

A: INTRODUCTION

1. The appellant, who is the mother of a boy, VG, appeals against the dismissal by Mr Justice Silber, sitting in the High Court, Queen's Bench Division, Administrative Court, on 2 March 2009, of her claim for judicial review. She had sought review of the determination of the Independent Appeal Panel for Tom Hood School ("the panel"), made on 10 July 2007, to uphold a decision permanently to exclude VG from the school. The panel, as defendant to the claim, opposed it before Silber J but, as respondent to this appeal, takes no part in it. The Secretary of State for the Department for Children, Schools and Families was served with the claim and, as an interested party, not only joined with the panel in opposing it before Silber J but also opposes the appeal.
2. The primary question raised in this appeal falls into two parts, as follows:

"Where it falls to a decision-maker to decide whether a child should be permanently excluded from his school by reference to disputed allegations against him which, if true, amount to the commission on his part of a criminal offence,

(a) does he have a right to a fair hearing before the decision-maker under article 6 of the European Convention on Human Rights and Fundamental Freedoms 1950 ("the Convention") and, if so,

(b) is his right infringed by a decision that he should be permanently excluded which is made in consequence of a finding that the allegations against him are established on the balance of probabilities (as opposed to a finding that they are established beyond reasonable doubt)?"

3. Article 6 of the Convention provides:

"1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing …"

The appellant argues that, in hearing her appeal against the decision permanently to exclude VG, the panel was determining his civil rights within the autonomous meaning of the article. She argues, alternatively, that it was determining a criminal charge against him within, again, its autonomous meaning. If either of her arguments prevails, article 6 is engaged and, in that it makes no express reference to the requisite standard of proof for the determination even of a criminal charge let alone of civil rights, the further question arises whether VG's entitlement to a "fair … hearing" requires that a decision permanently to exclude him from the school – and a determination to uphold such a decision – be made in consequence only of a finding that disputed allegations are established beyond reasonable doubt. Whether the route to the engagement of article 6 shall have been that of civil rights or of a criminal charge is a matter which will be relevant to that further question. But, as I will explain, we cannot simply conclude that, if the panel was determining VG's civil rights, his right to a fair hearing required no more than that it should find disputed allegations established on the balance of probabilities; nor even that, if the panel was determining a criminal charge against him, his right to a fair hearing required that it should find disputed allegations established beyond reasonable doubt.

4. R (S) v. The Governing Body of YP School [2003] EWCA Civ 1306, [2004] ELR 37, is a decision of this court ostensibly favourable to the present appeal. Laws LJ said, at [5]:

"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 doing before so finding."

At [38] and [39] below I will survey the status of the decision, which was not cast under article 6. For these introductory purposes the relevance of the decision lies in the fact that it prompted Parliament, by regulation 4 of the Education (Pupil Exclusions) (Miscellaneous Amendments) (England) Regulations 2004 (SI 2004/402), to seek to reverse its effect by inserting the following regulation into the Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations 2002 (SI 2002/3178):

"Exclusions – standard of proof.

7A Where it falls to –

(a) the head teacher, in exercise of the power conferred by section 52(1) of the 2002 Act,

(b) the governing body, in exercise of functions under regulation 5, or

(c) an appeal panel constituted in accordance with paragraph 2 of the Schedule, in exercise of functions under regulation 6,

to establish any fact, any question as to whether that fact is established shall be decided on a balance of probabilities."

Parliament seems to have made provision analogous to regulation 7A in other disciplinary spheres: see for example regulation 22(2) of the Judicial Discipline (Prescribed Procedures) Regulations 2006 (SI 2006/676), as amended, which provides, in relation to a complaint of judicial misconduct, that the establishment of any fact to the satisfaction of an investigating judge must be on the balance of probabilities.

5. Regulation 7A was purportedly made pursuant to powers given by s.52 of the Education Act 2002. Section 52 provides that:

"(1) The head teacher of a maintained school may exclude a pupil from the school for a fixed period or permanently.

(2) …

(3) Regulations shall make provision –

(a) …

(b) requiring the responsible body … to consider whether the pupil should be reinstated,

(c) requiring the local education authority to make arrangements for enabling a prescribed person to appeal … to a panel … against any decision of the responsible body not to reinstate a pupil, and

(d) as to the procedure on appeals.

(4) Regulations under this section may also make provision –

…

(d) in relation to any other matter relating to the exercise of the powers conferred by subsections (1) and (2)."

6. We can now see why, subject to the subsidiary question which he raises, Mr Wolfe on behalf of the appellant needs to cast his argument under article 6. If before the panel VG had a right under the article which required proof against him beyond reasonable doubt, then, in that regulation 7A would be incompatible therewith but in that s.52 would not prevent removal of the incompatibility, the panel would be obliged to disapply the regulation and to uphold his right under article 6: s.6(1) Human Rights Act 1998. Otherwise, however, subject to the subsidiary question, the panel proceeded lawfully in acting upon proof on a balance of probabilities and the appeal must fail.
7. The subsidiary question, not raised before the judge, is whether regulation 7A(c) is ultra vires s.52. The argument is that, in providing that proof should be on a balance of probabilities, the regulation went further than to make provision for the "procedure" on appeals within the meaning of s.52(3)(d). Were article 6 not so to operate as to trump the regulation in the manner described at [6] above but were the answer to the subsidiary question to be that the regulation was indeed ultra vires, we would need to consult the common law – and therefore again to survey the decision of this court in YP School cited above – in order to discern whether the panel was required to be satisfied of the allegations against VG beyond reasonable doubt.

B: THE FACTS

8. On 26 February 2007 there was a fight between boys in the playground of Tom Hood School. VG, then aged 14, joined in. A female teacher approached the boys. According to her written statement made later that day, she saw a knife in VG's hand and he swore at her and threatened her with it. Following the incident, however, two male teachers conducted a search of VG and failed to find a knife. About eight boys gave written statements, mostly anonymously. Half of them said that VG had been holding a knife; but their descriptions of it are said to have been highly inconsistent. The other half, including the boy with whom, principally, VG was fighting, denied that they had seen him holding a knife. VG admitted that he had sworn at the teacher but denied that he had been holding a knife. In due course he said that he had been wearing a loose silver bracelet around his right wrist; that sometimes, with a flick of the wrist, he would clutch part of the bracelet with his hand; and that, in his hand, it might have been mistaken for a knife.
9. On 1 March 2007, in the exercise of her power under s.52(1) of the Act of 2002, the head teacher excluded VG from the school for a fixed period of ten days. On 7 March she made the exclusion permanent on the basis that VG had been in possession of a knife and had threatened the teacher with it. On 15 May, by a committee, the governing body of the school, in the exercise of its functions under regulation 5 of the Regulations of 2002, decided that VG should not be reinstated. On 10 July, following a hearing on 5 July at which the appellant and her husband were represented by counsel, the respondent, in the exercise of its functions under regulation 6, notified them by letter that it had decided to uphold the exclusion. In the letter the respondent stated as follows:

"Based on the evidence presented by both parties, including the witness statements, the Panel decided unanimously, that on the balance of probabilities, [VG] committed the offence as alleged, i.e. that it was more probable than not that [he] had carried an offensive weapon and had threatened a member of staff.

…

The Panel concluded that the school's decision to permanently exclude was appropriate in the circumstances of the case and proportionate to the offence in question and therefore it was not appropriate to reinstate [VG]. The Panel felt it was not in the pupil's best interest nor that of the whole school community."

10. The effect of the dismissal of the appeal was to deprive VG of the opportunity (or, according to Mr Wolfe, the right) to continue his education at Tom Hood School but was not, of course, to deprive him of the right to continue to be educated at all. He moved to another school. Mr Wolfe explained to Silber J that the appellant sought an order quashing the respondent's dismissal of the appeal not in order to secure his reinstatement to Tom Hood School but in order to expunge from his CV an exclusion potentially damaging to his further educational and career prospects.

C: DETERMINATION OF VG'S CIVIL RIGHTS?

11. Mr Wolfe contends that a pupil already in attendance at a particular school has a civil right, within the meaning of article 6, not to be permanently excluded therefrom without good reason. He thus stresses that his suggested civil right does not extend to a pupil who seeks to attend a school at which he is not already in attendance and does not extend to a pupil to whom the school wishes to apply a disciplinary sanction short of permanent exclusion. There is, so he says, no need for us to be concerned that his success on appeal would raise any floodgates, even were such a concern ever to be legitimate in a court of law.
12. It may be helpful to make four preliminary points.

(a) The concept of "civil rights" in article 6 is autonomous: König v. Germany (No 1) (1978) 2 EHRR 170, at [88].

(b) But "the Strasbourg case law is emphatic that article 6(1) of the Convention applies only to civil rights which can be said on arguable grounds to be recognised under domestic law": Matthews v. Ministry of Defence [2003] UKHL 4, [2003] 1 AC 1163, per Lord Bingham, at [3]. If a right which is arguably recognised under domestic law falls within the autonomous meaning of the article, it is a civil right, not an arguable civil right. Surely it is logical that the right needs to be only arguably recognised under domestic law. The article is making provision for the way in which the state must provide for the "determination" of civil rights; so, until they are finally determined, the rights may or may not exist and it suffices that their existence under domestic law should merely be arguable.

(c) Perhaps confusingly, substantive rights under other articles of the Convention can qualify as recognised under domestic law. In In re S (Minors) (Care Order: Implementation of Care Plan) [2002] UKHL 10, [2002] 2 AC 291, the House of Lords addressed the right to respect for their private and family life enjoyed by children subject to care orders and by their parents under article 8. Lord Nicholls said, at [71]:

"Although a right guaranteed by article 8 is not in itself a civil right within the meaning of article 6(1), the Human Rights Act has now transformed the position in this country. By virtue of the … Act article 8 rights are now part of the civil rights of parents and children for the purposes of article 6(1). This is because now, under section 6 of the Act, it is unlawful for a public authority to act inconsistently with article 8."

As with rights under article 8, so also with rights under article 2 of the First Protocol, which provides that "no person shall be denied the right to education". The Convention right to education is a substantive right recognised under domestic law. But Mr Wolfe does not rely on it because the right does not extend far enough for his purposes. For, in A v. Head Teacher and Governors of Lord Grey School [2006] UKHL 14, [2006] 2 AC 363, Lord Bingham explained, at [24], that:

"There is no Convention guarantee of education at or by a particular institution. There is no Convention objection to the expulsion of a pupil from an educational institution on disciplinary grounds, unless (in the ordinary way) there is no alternative source of state education open to the pupil…"

(d) The autonomous meaning of the phrase "civil rights" in article 6 is changing, indeed widening, but the requirements of a "fair" hearing may be less onerous in cases brought into the article only by the widening of the meaning. In R (A) v. Croydon LBC (SSHD intervening) [2009] UKSC 8, [2009] 1 WLR 2557, the Supreme Court considered whether a child's right to the provision of accommodation by a local authority under s.20(1) of the Children Act 1989 was a "civil right". Lady Hale, with whom three other judges agreed, left the point open. She had observed, at [36], that:

"the concept of a "civil right" in article 6 was originally intended to apply only to private rights, not rights arising in public law. But that distinction has long been abandoned and the concept of the determination of a civil right extended to many questions arising in public law. With that extension has gone some modification of what article 6 requires."

At [65], Lord Hope suggested "with reasonable confidence" that the child's right under s.20(1) was not a "civil right". He had suggested, at [59], that public law rights are likely to be "civil rights" when they "are of a personal and economic nature and do not involve any large measure of official discretion".

13. In contending that domestic law arguably confers upon VG a "right" not to be excluded from his existing school without good reason Mr Wolfe builds upon remarks made by this court in S, T and P v. Brent LBC [2002] EWCA Civ 693, [2002] ELR 556. The main question was whether, in upholding the permanent exclusion of three pupils from their schools, the appeal panels had unlawfully fettered their discretion by reference to governmental guidance; the court concluded that they had not done so. But the court also considered whether the appeals of or on behalf of the pupils engaged article 6. In giving the judgment of the court Schiemann LJ said, at [9]:

"The right to education, which is one of the Convention rights scheduled to the Human Rights Act 1998, is not a right to be educated in any particular school. So far as the latter entitlement exists, it is by virtue of either or both of legitimate expectation and of regulation 9 of the Education (Pupil Registration) Regulations 1995."

And he added, at [30]:

"As to the applicability of article 6 there may be difficulties, in the light of the present jurisprudence of the Strasbourg court, in holding that a school exclusion appeal panel is a body which determines a pupil's civil rights, whether to education or to reputation … But let us make the perfectly tenable assumption (cf the impressively reasoned decision of Stanley Burnton J in Husain v. Asylum Support Adjudicator [2001] EWHC Admin 852) that domestic human rights law, and arguably the ECHR's jurisprudence too, will today regard at least the right not to be permanently excluded from school without good reason as a civil right for article 6 purposes."

On that assumption the court concluded that the nature of the hearings before the appeal panels (which was analysed without reference to the standard of proof which they had applied) had not infringed the right of the pupils under article 6.

14. Mr Wolfe seizes upon this court's oblique and unelaborated reference in S, T and P, cited above, to regulation 9 of the Regulations of 1995, which have been replaced by the Education (Pupil Registration) (England) Regulations 2006 (SI 2006/1751), made pursuant to s.434 of the Education Act 1996. By regulation 4 of the Regulations of 2006, the proprietor of every school shall cause to be kept an admission register; by regulation 5, the register shall contain an index of all pupils at the school; and, by regulation 8 (being the successor to regulation 9 of the Regulations of 1995, albeit not in identical terms), the name of a pupil shall be deleted therefrom only on specified grounds, of which the thirteenth, at (m), is that he has been permanently excluded from the school.
15. Even in the absence of authority I would not accept that the concomitant of the duty of a school to keep a register is the right of a child registered therein to continue – in principle – to be educated there: such would be to elevate the significance of a school's requisite attention to its paper-work to an astonishing level at which its due completion would create substantive rights of profound importance for a pupil. At all events the suggestion of this court in S, T and P, cited above, of the possible substantive significance of entry on the school register was, albeit impliedly, rejected by the House of Lords in A v. Head Teacher and Governors of Lord Grey School, cited above. The decision in S, T and P was cited to the House. But, echoing what had been said below, unequivocally, by Sedley LJ, [2004] EWCA Civ 382, [2004] QB 1231, at [62], Lord Bingham said, at [25]:

"The retention of the respondent's name on the roll of the school in July, and its removal in October, although much relied on in argument, were events unknown to the respondent and his family at the time and had no causal effect or legal consequence."

16. Lacking an arguable right under domestic law to continue to be educated at Tom Hood School without good reason, VG fails to establish a "civil right". But it would be churlish to fail to advert to Mr Wolfe's urgent submissions upon the effect of two Strasbourg decisions, in particular of the second.
17. The first is Simpson v. UK (1989) 64 DR 188. A dyslexic boy, aged 14, sought to challenge in the ECtHR the decision of a local education authority to remove him from a special school, for which it was paying, and to send him to a local comprehensive school with (so it contended) special facilities appropriate to his needs. The Commission of the ECtHR held, at [1], that the Education Acts had created a right, reflective of the right in article 2 of the First Protocol, not to be denied an education "appropriate to his needs and aptitudes"; but that the right was not a "civil" right within article 6 in that it fell "squarely within the domain of public law, having no private law analogy and no repercussions on private rights or obligations". I agree with Mr Wolfe that when, in S, T and P, cited above, it referred, at [30], to "the present jurisprudence of the Strasbourg court", this court was referring to Simpson. I also agree that a decision of the Commission upon the existence or otherwise of "civil rights" within article 6, reached over 20 years ago, must be treated with considerable caution in the light of more recent widening in the interpretation of the phrase.
18. The second is Araç v. Turkey, application No 9907/02, 23.9.08. The applicant, a student of theology at one university in Turkey applied to enrol as a student in another, namely Marmara University. As part of her application she furnished an identity photograph of herself wearing a headscarf. The university refused her application on the ground that regulations required the photograph to show her head and neck uncovered. A court of appeal in Turkey rejected her challenge to the validity of the regulations and thus to the refusal of her application. The ECtHR upheld her complaint that the Turkish court had been determining her "civil rights" and that her rights under article 6 had been infringed by the unfairness of the hearing. The ECtHR referred, at [11], to article 42 of the Turkish constitution, which provides that "No one may be deprived of the right to instruction and education. The scope of the right to education shall be defined and regulated by law". The court considered, at [14], the Commission's decision in Simpson, cited above, and did not suggest that it no longer remained good law; reiterated, at [18], that, although the meaning of the phrase "civil rights" was autonomous, the domestic law was an important factor; observed, at [19], that, in the light of article 42, the applicant could make an arguable claim that domestic law conferred on her "the right to enrol in the Faculty of Theology of Marmara University provided she satisfied the statutory conditions" unrelated to the photograph; and held, at [20] and [22], that the public law aspect of her rights did not preclude their being civil, in particular because the university had not been acting in the exercise of a discretion.
19. Quite how the ECtHR extracted from article 42 of the Turkish constitution an arguable right of the applicant to attend a particular university, namely Marmara University, rather than to be instructed in theology at some institution or another, has been the subject of debate before us. In the end, however, we are not concerned with the correctness of the ECtHR's appraisal of Turkish law. Our own law is clear that the general right to education does not extend to education in any particular institution. There are, however, grounds for concluding that the ECtHR also, or alternatively, regarded the regulation about the photograph as precluding those who declined to comply with it from attending any course of higher education in Turkey; and, if so, one can well understand that it would affect their "civil rights" (including, arguably, their civil rights derived from article 2 of Protocol 1 even though the article primarily provides a right to an elementary education: Yanasik v. Turkey (1993) 74 DR 14). In other words the regulation seems probably to have been of national application rather than specific to Marmara University. Thus in its judgment the ECtHR referred, at [9], to the regulation as having been adopted by the Higher Education Board; spoke, at [14], of the regulations as having been adopted by the university authorities; adverted, at [22], to the prejudicial effect of the regulations on the applicant's right to continue her studies in an establishment of higher education; and based its conclusion, at [24], on the importance of her right to continue her higher education. It also cited the decision of its Grand Chamber in Sahin v. Turkey (2005) 44774/98. There the court discussed, at [35], the perceived threat to Ataturk's secular Turkish state represented by dress linked to religious identity; referred, at [41], to judgments of the Turkish constitutional court to the effect that the wearing of headscarves in institutions of higher education was unconstitutional; and stated, at [55], that Turkey was – at that time – one of only three member states to have introduced regulations against wearing Islamic headscarves in universities.
20. Irrespective of its correct analysis, the decision in Araç, cited above, cannot, of course, supply the arguable right under the law of England and Wales which is a necessary, albeit not a sufficient, condition of the success of Mr Wolfe's contention, set out in full at [11] above, that the appeal panel was determining VG's civil rights. I reject his contention.

D: DETERMINATION OF A CRIMINAL CHARGE AGAINST VG?

21. Enquiry into the elusive, autonomous meaning of a "criminal charge" under article 6 begins easily enough with the decision of the ECtHR in Engel v. The Netherlands (1976) 1 EHRR 647. The five applicants, who were serving soldiers in the Dutch army, suffered penalties imposed by a military court for offences against military discipline. The three of them who had faced the possibility of serious punishment involving deprivation of liberty were held to have faced a criminal charge within the meaning of article 6. In its judgment the court contrasted disciplinary proceedings with criminal proceedings and suggested an approach to the line of division between them as follows, at 678-9:

"… it is first necessary to know whether the provision(s) defining the offence charged belong, according to the legal system of the respondent State, to criminal law, disciplinary law or both concurrently. This however provides no more than a starting point …

The very nature of the offence is a factor of greater import …

However supervision by the court does not stop there. Such supervision would generally prove to be illusory if it did not also take into consideration the degree of severity of the penalty that the person concerned risks incurring. In a society subscribing to the rule of law, there belong to the 'criminal' sphere deprivations of liberty liable to be imposed as a punishment, except those which by their nature, duration or manner of execution cannot be appreciably detrimental."

22. As to the first of the three Engel criteria, as they have come to be known, it is clearly necessary to disable member states from evading their obligations under article 6 by attaching an inappropriate non-criminal label to certain proceedings. In that under our domestic law the proceedings relating to VG's exclusion from the school are indeed labelled non-criminal, my focus must be upon the second and third of the Engel criteria and upon the circumstances in which their application has, and has not, led to a conclusion that, notwithstanding a domestic non-criminal label, the proceedings related to a criminal charge.
23. As I embark on the exercise, I will, however, find it helpful to have in mind the principal factual matters relied on by Mr Wolfe and, on behalf of the Secretary of State, by Mr Grodzinski.
24. Mr Wolfe stresses:

(a) that the facts alleged and found proved against VG amount to the commission on his part of quite a serious criminal offence; and

(b) that VG's exclusion from school was a "penalty" (see, for example, the reference in s.91 of the Education and Inspections Act 2006 to "a penalty which consists of exclusion"); was indeed the most severe penalty able to be imposed by the school; and was designed principally or at any rate partially to punish VG. There was (says Mr Wolfe) no basis for the judge's observation that "on any view the purpose of the exclusion was not to punish VG but to prevent him from doing the same thing at that school again … so it was clearly a preventive measure".

25. But Mr Grodzinski stresses:

(a) that the proceedings against VG, including his appeal, were not those to which all citizens might find themselves subject but were confined to a particular group, namely pupils at the school, and (so Mr Grodzinski contends) truly fall on the disciplinary side of the line;

(b) that the proceedings against VG were not brought by a public authority under statutory powers of enforcement; and

(c) that in the proceedings VG did not face the possibility of imprisonment or fine or even of exclusion from all education but only, at worst, of exclusion from education at the Tom Hood School and that, even if the purpose of excluding him 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.

26. The many cases cited to us, of which I will refer only to a few, defy easy categorisation but appear to fall into two main groups.
27. The first group relates to rules enforceable against all the citizens of a state in proceedings in which, though categorised domestically as non-criminal, they face imprisonment or fine.

(a) In Ravnsborg v. Sweden (1994) 18 EHRR 38 the ECtHR held that proceedings which led to the imposition upon a litigant of fines for what we would describe as civil contempts in the face of the court did not represent the determination of a criminal charge against him.

(b) In Benham v. UK (1996) 22 EHRR 293 the ECtHR held that the applicant, whom pursuant to statutory regulations magistrates had committed to prison for 30 days for culpable neglect to pay the community charge, had faced a criminal charge. The court, at [56], referred to the second Engel criterion as being the nature of the proceedings, rather than the nature of the offence; so even the language of the ECtHR can seem slippery. Under that head, however, the court referred to four features which made the charge criminal:

(i) the liability to pay the charge and the procedure in the event of non-payment were of general application to all citizens;

(ii) the proceedings were brought by a public authority under statutory powers of enforcement;

(iii) in that for example the applicant could be committed to prison only upon a finding of wilful refusal or culpable neglect to pay, the proceedings had punitive elements; and

(iv) the applicant faced a relatively severe maximum penalty of three months' imprisonment and was in fact committed for 30 days.

(c) In Lauko v. Slovakia (1998) 33 EHRR 40 a local administrative office, in the exercise of a power under the Slovakian Minor Offences Act 1990, imposed a small fine on the applicant for accusing neighbours without good cause of causing a nuisance to him. The court explained, at [57], that the second and third Engel criteria were alternative and not cumulative but that a cumulative approach was permissible if analysis of each criterion did not enable a clear conclusion to be reached. But it held, at [58], that analysis of the second criterion showed that the charge was criminal: for the law was directed to all citizens, rather than just to a particular group, and it indeed created minor "offences" for which "punishment" in the form of a fine, albeit not of imprisonment, could be – and had been – imposed.

(d) In International Transport Roth GmbH v. SSHD [2002] EWCA Civ 158, [2003] QB 728, this court held that a statutory scheme under which the Secretary of State could impose upon a carrier a penalty of £2000 for every clandestine entrant into the UK found concealed in his vehicle rendered him liable to a criminal charge for the purpose of article 6. Simon Brown LJ suggested, at [38], that the second and third Engel criteria raised substantially overlapping considerations and said:

"Generally under the second criterion one considers whether the liability is punitive and deterrent, whilst under the third regard is had to its nature and severity. All these considerations, however, necessarily raise the question whether liability involves blameworthiness. If it does, then by its very nature it may be thought to include a punitive (in the sense of retributive) element."

28. The second group relates to rules enforceable only against members of a group and having a regulatory or disciplinary function which usually, though not always, saves them from giving rise to a criminal charge.

(a) For Engel, see [21] above.

(b) In Wilson v. UK (1998) 26 EHRR CD 195 the Commission held that proceedings against the applicant which resulted in an order that he be disqualified for nine years from acting as a company director without leave of the court did not determine a criminal charge against him. The Commission stressed, at 197, that disqualification of directors was regulatory rather than criminal and that the penalty was neither a fine nor a prison sentence.

(c) In R (Fleurose) v. The Securities and Futures Authority Ltd [2001] EWCA Civ 2015 this court held that, in suspending the appellant from acting for two years as a registered person entitled to carry on investment business within the UK, the respondent's disciplinary tribunal had not been determining a criminal charge against him. The court approved, at [8], its earlier observation in Han & Yau v. Commissioners of Customs and Excise [2001] EWCA Civ 1048, at [67], that, in the context of disciplinary proceedings against a person, the Strasbourg court had placed great emphasis on the seriousness of the imprisonment or other penalty faced by him as the touchstone for holding the proceedings to be criminal rather than disciplinary.

(d) In R (Napier) v. SSHD [2004] EWHC 936, [2004] 1 WLR 3056, Goldring J considered the adjudication of a prison governor that the claimant prisoner had been guilty of assaulting a prison officer and should suffer a penalty of 35 additional days in prison. The Secretary of State conceded that the penalty of additional imprisonment should be remitted on the basis that, in that regard, the claimant had faced determination of a criminal charge against him in a manner which infringed his rights under article 6. But the judge declined to quash the finding of guilt itself on the basis, at [57], that it was only the penalty of additional imprisonment which crossed the boundary from administrative to criminal. Whether it was apt for the judge to compartmentalise the proceedings in that way seems less relevant than his convincing conclusion that what made the disciplinary charge criminal was its potential consequence of additional imprisonment.

(e) In R (Tangney) v. Governor of HMP Elmley [2005] EWCA Civ 1009, [2005] HRLR 36, the governor found a life prisoner guilty of assaulting a prison officer and using threatening words or behaviour. As a life prisoner, he was assumed not to be vulnerable to the punishment of additional days of imprisonment and he was ordered to be confined to his cell for seven days; he complained that the governor's disposal would also count against him before the Parole Board. This court held that the governor had not been determining a criminal charge against him. In giving the only substantive judgment my Lord, Scott Baker LJ as he then was, noted, at [14], that the charges against the prisoner precisely mirrored offences in the criminal law. But he concluded, at [28], that, in that he had been treated as not vulnerable to the punishment of additional days, "there were no consequences sufficiently serious to trigger the third of the Engel criteria even in combination with the [second]".

(f) In R (Smith) v. Governor of HMP Belmarsh [2009] EWHC Admin 109 a life prisoner was accused of a very serious assault on a prison officer, for which the CPS curiously decided not to prosecute him. In that the governor concluded – wrongly, so Collins J suggested – that the prisoner was not vulnerable to the punishment of additional days, he decided that he would himself adjudicate upon the charge. He found him guilty and ordered him to be confined to his cell for 21 days. The judge held, by reference to the second Engel criterion, that the seriousness of the offence rendered the case one which, exceptionally, amounted to the determination of a criminal charge but that in the event there had been no material infringement of the prisoner's rights under article 6.

29. We can now see that, for the purposes of article 6, a domestic classification of proceedings as non-criminal is overridden

(a) in the case of proceedings (other than for contempt of court) in which all citizens are made potentially subject to imprisonment or fine, even if small (see [27] above); and

(b) in the case of regulatory or disciplinary proceedings only if, save perhaps in cases of exceptionally serious misconduct such as Smith, there is a prospective consequence either of imprisonment as in Engel itself or of further imprisonment as in Napier (see [28] above).

30. At last the conclusion becomes straightforward. 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. All Mr Grodzinski's arguments at [25] above are valid but the most potent is that at (c): the sanction of VG's permanent exclusion from one particular school was insufficiently severe to render the charge against him criminal.

E: THE STANDARD OF PROOF

31. In the light of my conclusion that article 6 did not apply to the hearing before the panel, I should try to avoid dwelling at length on the question whether, had it applied, the panel would have been required to apply the criminal standard of proof. But in this respect also Mr Wolfe's case would have confronted grave difficulties.
32. In order to defeat regulation 7A of the Regulations of 2002 Mr Wolfe would have had to show that article 6 required application of the criminal standard. But article 6 says nothing expressly about the standard of proof; and Mr Wolfe cites to us no authority of the ECtHR in relation to it. He cites domestic jurisprudence in relation to it but such would have assisted him only to the extent that it cast light on the requirements of article 6. Domestic jurisprudence unrelated to the requirements of article 6 would not have assisted him because, article 6 apart, there is no doubt about the standard of proof which our law required the panel to apply: it is set out in the regulation.
33. Even had the route to engagement of article 6 been a conclusion that the panel was determining a criminal charge against VG, it would not inexorably have followed that the article required application of the criminal standard of proof: Commissioners for HMRC v. Khawaja [2008] EWHC (Ch) 1687, per Mann J, at [28] – [29]. As Simon Brown LJ said in International Transport Roth GmbH, cited above, at [33]:

"In short, the classification of proceedings between criminal and civil is secondary to the more directly relevant question of just what protections are required for a fair trial."

Let me, however, make a reasonably confident assumption that, on that hypothesis, the article would have required application of the criminal standard and turn to the alternative hypothesis, namely that the route to engagement of article 6 had been a conclusion that the panel was determining VG's civil rights.

34. On the alternative hypothesis Mr Wolfe's invocation of the criminal standard of proof rests principally on the decision of the House of Lords in R (McCann) v. Crown Court at Manchester [2003] 1 AC 787. In upholding a decision of a magistrate to make Anti-Social Behaviour Orders against three appellants under s.1 of the Crime and Disorder Act 1998, the Crown Court had, by reference to the criminal standard of proof, determined the factual matters which were pre-requisite to the making of the orders. The House of Lords held that it had been right to apply the criminal standard. Importantly for Mr Wolfe, the House considered the appeals as if the Human Rights Act 1998 applied to them. It noted that the orders prohibited the appellants from doing specified acts and that it was only in the event of proven breach of them that penal sanctions arose. It held that, for the purpose of article 6, the Crown Court had not been determining a criminal charge against them but (as was conceded) was determining their civil rights. In relation to the standard of proof Lord Steyn said, at [37]:

"Having concluded that the relevant proceedings are civil, in principle it follows that the standard of proof ordinarily applicable in civil proceedings, namely the balance of probabilities, should apply. However, I agree that, given the seriousness of matters involved, at least some reference to the heightened civil standard would usually be necessary … For essentially practical reasons, the Recorder of Manchester decided to apply the criminal standard. The Court of Appeal said that would usually be the right course to adopt. Lord Bingham of Cornhill has observed that the heightened civil standard and the criminal standard are virtually indistinguishable. I do not disagree with any of these views. But in my view pragmatism dictates that the task of magistrates should be made more straightforward by ruling that they must in all cases under section 1 apply the criminal standard."

It is far from clear to me that, in reaching the conclusion that the criminal standard of proof applied to factual issues relative to the making of ASBOs, either Lord Steyn or (at [82 – 83]) Lord Hope, with both of whom the other three members of the House agreed, were applying a perceived requirement of article 6. It seems reasonably clear that they were relying upon domestic jurisprudence, in being at that time, to the effect that some factual issues demanded resolution by reference (in the words of Lord Steyn) to "a heightened civil standard" which, in the circumstances of an ASBO, was so high as, in effect, to equate to the criminal standard.

35. But, following the decision in McCann, the concept of the heightened civil standard of proof has been banished from the law. In In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35, [2009] 1 AC 11, Lord Hoffmann said, at [13]:

"I think that the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not."

In that the heightened civil standard had been the ladder by which, in McCann, the conclusion had been reached that the criminal standard should apply, one might expect that, when in In re B the ladder was kicked away, the decision in McCann would fall. On the contrary, however, the decision in McCann was specifically approved in In re B. Lord Hoffmann made clear, at [5], [12] and [13], that it was an example of a category of civil proceedings in which, because of their "serious consequences" and "the nature of the particular issue involved", the criminal standard of proof should be applied.

36. Even had Mr Wolfe been able to establish that the requirement to apply the criminal standard to factual issues precedent to the making of an ASBO was driven by article 6, how would he have sought to extend the requirement to a case such as the present? Recognising, in my view correctly, that the feature of an ASBO which demands application of the criminal standard is its potentially penal consequence under the criminal law, he could have done no better than to have argued that the conduct found proved against VG amounted to the commission of a criminal offence. But would his argument have been good enough? It seems unrealistic that, before being able to identify the standard of proof which they should apply, school authorities should be required to establish whether the conduct of which a pupil is accused would amount to a criminal offence. Indeed, although Mr Wolfe limited his submissions to an investigation which led to a pupil's permanent exclusion from school, it is hard to see why, if the criterion which attracts the criminal standard is that his alleged conduct would amount to a criminal offence, it does not extend to an investigation which, in the event, culminates in a sanction less than his permanent exclusion; indeed that it did so extend seems to have been the conclusion in R (S) v, The Governing Body of YP School, cited above, to which I will turn in [38] below.
37. In any event both In re B, cited above, and the decision of the House of Lords handed down on the same day as In re B, namely In re D (Secretary of State for Northern Ireland intervening) [2008] UKHL 33, [2008] 1 WLR 1499, clearly demonstrate that an enquiry in civil or disciplinary proceedings into the existence of conduct which would amount to the commission of a criminal offence does not require application of the criminal standard of proof. In In re B the enquiry, which took place in care proceedings, was into alleged sexual abuse of a child by her stepfather. In In re D the enquiry, which was conducted by the Life Sentence Review Commissioners of Northern Ireland, was into alleged sexual abuse of two children by their uncle during a period of his release on licence following a sentence of life imprisonment. It was held in both cases that the requisite standard of proof was the balance of probabilities.
38. Finally Mr Wolfe relies on the decision of this court which led to the reversal, or purported reversal, of its effect by means of regulation 7A, namely R (S) v. The Governing Body of YP School, cited above. The head teacher and, later, the school's board of governors found on the balance of probabilities that the appellant had stolen a guitar from the school and decided that he should be excluded from school not permanently but for ten days. He applied for judicial review of the decision on the basis that the head teacher and board had applied the incorrect standard of proof. Maurice Kay J dismissed the claim but this court, by consent, allowed his appeal and quashed the decision. In the short judgment by which he endorsed the consensual disposal Laws LJ said:

"4. The respondents however accept, in the light of the decision in McCann 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 …"

What then immediately follows in the judgment of Laws LJ is the passage which I have quoted at [4] above.

39. Laws LJ and the two other members of this court who agreed with his judgment would, I believe, be the first to recognise that their decision is scarcely robust authority for the purpose for which Mr Wolfe would have needed to invoke it, namely in relation to the requirements of article 6. In short:

(a) the appeal was allowed by consent, thus in the absence of argument;

(b) the basis upon which the appeal was conceded was the decision in McCann, cited above, yet no consideration was given to whether the context of the Crown Court's enquiry in McCann was materially different from that of the school's enquiry;

(c) Laws LJ did not suggest that application of the criminal standard of proof was a requirement of article 6; and

(d) the decision is in my view inconsistent with the decisions of the House of Lords in In Re B and, perhaps in particular, in In Re D, cited above.

40. It follows that, even had Mr Wolfe persuaded me that the panel was determining VG's civil rights within the meaning of article 6, he would not have persuaded me that the article required it to apply the criminal standard of proof.

F: IS REGULATION 7A(c) ULTRA VIRES?

41. Insofar as – at (a) – it relates to the determination of facts by the head teacher, regulation 7A, set out in [4] above, can be regarded as validly made pursuant to the power in s.52(4)(d), set out in [5] above. Insofar as – at (b) – it relates to the determination of facts by the governing body, the regulation can, at any rate arguably, be regarded as validly made pursuant to the duty in s.52(3)(b), also set out in [5] above. But insofar as – at (c) – it relates to the determination of facts by an appeal panel, the regulation can only have been made, if at all, pursuant to the duty in s.52(3)(d), also there set out. So the question arises: can a regulation which prescribes the standard of proof to be adopted by an appeal panel in its determination of facts be made pursuant to the duty to make provision by regulations "as to the procedure on appeals"?
42. Mr Wolfe's submissions on this point are nothing if not concise. In his skeleton argument he wrote only that a rule about the standard of proof on appeal was a rule of evidence rather than of procedure. In oral argument he says only that such a rule made substantive provision and that such provision is to be contrasted with procedural provision. Following – so it appeared – energetic but abortive research, neither counsel has cited any authority or text to help us to determine the point; and in effect both have asked us to do so as a matter of first impression.
43. I am clear that regulation 7A(c) is intra vires s.52(3)(d). Mr Wolfe's submission appears to be that the "procedure" which the panel should adopt on an appeal is limited to the practical steps which it should take in order to secure the passage of the appeal from initial receipt until ultimate dissemination of its determination of it. I do not object to the notion of "steps" in this context but I see no reason why they should be qualified by "practical". The procedure on appeals is synonymous with the processing of appeals; and, when the panel takes the step (or reaches the stage) at which it determines a question whether a fact is established, a necessary part of its processing of that part of the appeal is to apply a particular standard of proof in reaching an answer to the question. A regulation about the inadmissibility of evidence of a specified character would in my view clearly fall within the rubric of "procedure on appeal" and there is in my view no material difference between a requirement that the panel should exclude evidence of a specified character and a requirement that it should apply a specified standard of proof to its appraisal of such evidence as is properly before it.
44. Had I been persuaded that regulation 7A(c) was ultra vires s.52(3)(d), I would have proceeded to conclude, for reasons already given, not only that article 6 did not apply to VG's appeal to the panel but also that the common law required the panel to determine issues of fact by reference only to the balance of probabilities.

G: CONCLUSION

45. I would dismiss the appeal.

Sir Scott Baker:

46. I agree.

Lord Justice Rix:

47. I also agree.