S.I. 2004/402: memorandum from
the Department for Education and Skills
Education (Pupil Exclusions) (Miscellaneous Amendments)
(England) Regulations 2004 (S.I. 2004/402)
1. The Joint Committee has requested a memorandum
on the following points -
(1) Explain the effect of regulations 7A and
8A (inserted by regulations 4 and 5 of this instrument) where
the conduct giving rise to the exclusion amounts to an offence
under the general law. The Department is referred to the case
of R v The Governing Body of Y P School ([2003] EWCA Civ 1306).
(2) If it is intended to require the criminal
standard of proof in such cases, why is this not made clear?
(3) If that is not the intention, explain
on how (in the light of the above case) the inclusion of those
provisions is authorised by the enabling powers.
2. Prior to the case of R v The Governing Body
of Y P School ([2003] EWCA Civ 1306) the generally-understood
position was that the civil standard of proof applied in all cases
of conduct by a pupil giving rise to an exclusion from school,
on the understanding that "the more improbable the event,
the stronger must be the evidence that it did occur before, on
the balance of probability, its occurrence will be established."
(Lord Nicholls in Re H (Minors) (Sexual Abuse: Standard of
Proof), 1996 AC 563, quoted with approval in the Court of
Appeal in R v Dunraven School ex parte B, 2000 ELR 174).
3. The recent case has changed this to require the
pupil's wrongdoing to be proved to the criminal standard where
the pupil's conduct amounts to a criminal offence. It may not
be clear to a head teacher (certainly without legal advice) whether
particular conduct does or might amount to such an offence. In
the Department's view it would be inappropriate for a head teacher
to be required to address that question and then to apply different
standards of proof depending on the answer. The intention and
effect of the regulations is therefore to restore the civil standard
of proof on the balance of probabilities in all cases, irrespective
of whether the pupil's conduct would amount to an offence under
the general law.
4. The enabling powers are sections 52 and 210 of
the Education Act 2002. Section 52(4)(d) authorises regulations
to make provision in relation to any other matter relating to
the exercise of the power of the head teacher to exclude a pupil.
In the Department's view this is sufficient authority to specify
that the head teacher may make his decision on the balance of
probabilities. Further, the consideration of the exclusion by
the governing body or local education authority and the independent
appeal panel are matters relating to the exercise by the head
teacher of his power to exclude. Section 210(7)(c) also in the
Department's view authorises the provisions relating to consideration
by the governing body or local education authority and the independent
appeal panel.
22nd March 2004
