Teacher subject to disciplinary proceedings entitled to legal representation if his name is to be added to children protection register

23 January 2010 by

Governers of X School v R(on the Application of G) (Claimant) & Y City Council and Secretary of State for Children and Schools and Families (Interveners) & Equality and Human Rights Commission (Interested Party)

[2010] EWCA Civ 1;CA (Civ Div) (Laws LJ, Wilson LJ, Goldring J) January 20 2010

Where an individual had a civil right being determined in one set of proceedings for the purposes of Article 6, he would be able to claim protection under that provision in any other proceeding involving him if the outcome of that other would have a substantial effect on the determination of that civil right.

SUMMARY

The claimant had been employed as a teaching assistant at the appellant school. As a result of alleged incident of a sexual nature with a pupil, disciplinary procedures were instigated against him which culminated in the hearing before the committee. He was told that in these hearings employees could be represented by a colleague or a trade union representative but that any other form of legal representation would not be permitted.

The matter was also referred to the secretary of state who was notified of the circumstances of the claimant’s dismissal by a letter so that he might determine whether to place him on the statutory register of persons prohibited from teaching or other work directly or indirectly involving children (this register is known as List 99: Section 142 of the Education Act 2002). No decision had yet been made as to whether to list him and list 99 later gave way to the children’s barred list, maintained by the Independent Safeguarding Authority. By the time this happened it had already been decided that the claimant was entitled to legal representation.

The judge held that the disciplinary proceedings and the referral to the secretary of state with a view to a s.142 direction constituted a single procedure for the purposes of Article 6 of the Convention, and therefore that he was entitled to legal representation at the hearings by reason of his right under Article 6(1) to a fair hearing in a “civil” matter.

The issue was whether the disciplinary proceedings were determinant of the claimant’s right to practise his profession for the purposes of Article 6, and, if so, whether that Article required that he be allowed the opportunity of legal representation in the disciplinary proceedings. The school maintained that the barred list procedures provided a sufficient autonomous facility for an adjudication of the claimant’s civil right to practise his chosen profession and, therefore, that civil right should not be taken to have been at stake in the disciplinary process, which was only concerned with the different, and narrower, right to remain in his current employment at the school.

Held:

Appeal dismissed. Where an individual was subject to two or more sets of proceedings, or two or more phases of a single proceeding, which would determine one or more of his civil rights, might he by force of Article 6 enjoy appropriate procedural rights in relation to any of the others if the outcome of that other would have a substantial influence or effect on the determination of the civil right or obligation. The relevant Strasbourg authorities on this include Albert v Belgium (A/58) (1983) 5 EHRR 533 ECHR, Ruiz-Mateos v Spain (A/262) (1993) 16 EHRR 505 ECHR, Lizzarraga v Spain (2007) 45 EHRR 1031 and Ringeisen v Austria (No 1) (1971) 1 EHRR 455. The CA also considered Kulkarni v Milton Keynes Hospital NHS Trust (2009) EWCA Civ 789.

However, it was unnecessary to decide, as the judge had, whether the disciplinary process and the barred list procedures formed part of one and the same proceedings for the purposes of art.6. The true question was whether there was a sufficiently close nexus between those processes, and such a nexus was established if the test of substantial influence or effect was met. The situation in this case was to be distinguished from the one obtaining in Alconbury Developments Ltd, Re (2003) 2 AC 295 and R (on the application of Holding & Barnes Plc) v Secretary of State for the Environment, Transport and the Regions (2001) UKHL 23, (2003) 2 AC 295, and Bryan v United Kingdom (1995) 21 EHRR 342. The likely prospect was that if the outcome of the disciplinary proceedings remained unfavourable to the claimant, this would have a substantial effect on the outcome of the barred list procedures which would then be applied to him. His right to practise his profession, which would be directly at stake in the barred list procedure, might be irretrievably prejudiced by the disciplinary proceedings.

Accordingly, the disciplinary proceedings were determinant of the claimant’s right to practise his profession and Article 6 was engaged on the footing that that was the civil right in issue.

The civil aspect of Article 6 did not necessarily entail a right of representation, but may do so. The level of procedural protection which the article guaranteed depended on what was at stake, Given the effect an advocate might have in the disciplinary proceedings, and in light of the authorities, Article 6 “civil” required that the claimant should be afforded the opportunity to arrange for legal representation in those proceedings.

COMMENT (January 2010)

Disciplinary Proceedings: Civil or Criminal?

The deputy judge below had in fact decided that the disciplinary proceedings before the Disciplinary Committee (and the Appeal Committee), including the referral to the Secretary of State and thereafter leading to the making of s.142 direction by the Secretary of State constituted a single procedure. He ruled in the claimant’s favour on the matter of legal representation because he concluded that, by virtue of the seriousness of the conduct alleged and the severity of the consequences of a s.142 direction, these proceedings constituted proceedings in respect of a ‘criminal charge’ against the claimant within the meaning of that term in Article 6(1). Accordingly, in his view, the claimant was entitled to the procedural protection provided, specifically for criminal proceedings, in Article 6(3)(c) and (d).

The question of whether the disciplinary proceedings in this case or others like it should be characterised as “criminal” to attract the greater protections expressed in Article 6 appeared to the Court of Appeal to be an irrelevant consideration, since 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, and that sometime Article 6 protections are found unneccessary even though the proceedings are criminal, and sometimes they are considered essential even though the proceedings are civil.

The Attitude of the Local Education Authority

Another question lies behind the facts of this case which was not fully addressed in this judgment because no arguments were raised in respect of it. The instructions of the local education authority were apparently that the claimant might only be represented (or assisted) by “a colleague or trade union representative” by the appellant school and that no persons were permitted to enter the proceedings to act on his behalf. As Lord Justice Laws noted, he was “not aware” that the local education authority possess the legal power to dictate to school governors whether or not they are to allow legal representation in disciplinary proceedings before them. The letter containing these instructions may well have been an unlawful act on the part of the authority and this important point should be settled by future litigation.

What kind of procedure influences or effects a “civil right?

The important thing to do is not to identify one single set of proceedings which are themselves determinative of an outcome for Article 6 civil rights but to search for what Laws LJ calls a “pragmatic connection between different aspects of a multiple process” for the purpose of ascertaining whether Article 6 rights attach to any particular aspect: Lizzarraga v Spain (2007) 45 EHRR 1031. In administrative decision making cases like Alconbury, the situation is different; a determination is made by an official or agency regarding the benefit enjoyed by an individual in procedures which, though not article 6 compliant in themselves, are repaired by the appeal route to the full jurisdiction of a judicial review court. That is why the CA distinguished the position in Bryan/Alconbury from the one obtaining in the instant case.

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