Right to legal representation in disciplinary proceedings

R (on the application of G) v The Governors of X School [2011] UKSC 30 (29 June 2011)

Summary

The UK Supreme Court has held that where one set of proceedings determines an individual’s civil rights or obligations, they may have procedural rights under article 6 of the European Convention on Human Rights (ECHR) both in those proceedings and in earlier proceedings that have a “substantial influence or effect” on those proceedings.

Facts

The claimant was a sessional music assistant at X school. It was alleged that he kissed and had inappropriate contact with a 15-year-old boy. The school investigated the matter and then held a disciplinary hearing before a panel of school governors. The claimant was not allowed legal representation at this hearing.

As a result of the disciplinary proceedings, the claimant was dismissed from X school for abuse of trust and gross misconduct. Under the relevant statutory scheme, the school was obliged to report the circumstances of this dismissal. The Independent Safeguarding Authority (ISA) then had to decide whether to include the claimant in the “children’s barred list”, which would bar him from teaching and working with children.

The claimant successfully sought review of the school’s decision not to allow him to have legal representation at the disciplinary proceedings. The English Court of Appeal upheld this decision and the school then appealed to the Supreme Court.

Decision

The Issue

The key question in this case was whether the claimant was entitled to procedural rights under article 6 of the ECHR in the disciplinary proceedings. Article 6 of the ECHR provides that in “the determination of his civil rights and obligations… everyone is entitled to a fair and public hearing”.

It was clear that the disciplinary proceedings did not determine the claimant’s civil rights (as the right to continue employment with X school is not a civil right). The claimant argued that the proceedings nonetheless engaged article 6 because their outcome would have a powerful influence on any decision made by the ISA, which would determine his civil right to teach and work with children.

Test for the Application of Article 6 of the ECHR

The Supreme Court unanimously held that it should apply the test adopted by Justice Laws in the English Court of Appeal. Under this test, proceedings which do not in themselves determine civil rights or obligations (proceedings A) may still be subject to article 6 requirements if they have a “substantial influence or effect” on another set of proceedings (proceedings B) which are determinative of civil rights.

Lord Dyson explained that it is necessary to take a pragmatic context-sensitive approach and consider a number of factors in each case including:

• whether the decision in proceedings A is capable of being dispositive of the determination of civil rights in proceedings B or at least causing irreversible prejudice, in effect, by partially determining the outcome of proceedings B;
• how close the link is between the two sets of proceedings;
• whether the object of the two proceedings is the same; and
• whether there are any policy reasons for holding that article 6(1) should not apply in proceedings A.

It is not sufficient that the link between the proceedings is more than tenuous or that the consequence of a decision in proceedings A for proceedings B is more than remote. On the other hand, if a decision in proceedings A is “dispositive” of proceedings B, article 6 rights will clearly apply to proceedings A.

Application to the Facts

While the Supreme Court applied the same test as the English Court of Appeal, the majority reached a different conclusion on the facts, finding that any decision by the ISA would not be substantially influenced or affected by the school’s internal disciplinary proceedings.

The Court found that under the relevant statutory scheme, the ISA was required to consider all available evidence and to exercise its own independent judgment in making findings of fact, and in assessing the seriousness and significance of those facts. Lord Dyson examined in full detail the procedures that the ISA is required to follow before making the decision to include an individual on the “children’s barred list” and concluded in light of these procedures that there was “no reason to suppose that the ISA will be influenced profoundly (or at all) by the school's opinion of how the primary facts should be viewed.”

One argument made on behalf of the claimant was that the ISA was likely to rely on the views of the disciplinary panel about the evidence present before it, given that the ISA would probably not hold oral hearings with cross-examination. Lord Dyson found that the lack of an oral hearing would not prevent the ISA “from making its own findings of fact.”

Lord Dyson and Lord Hope further found that the ISA was unlikely to be substantially influenced by the findings and decision of the disciplinary panel because the panel and the ISA were directing their attention to different questions. The panel was considering the claimant’s right to remain in employment at X school whereas the ISA would have to decide whether the claimant should have the general right to teach and work with children. According to Lord Hope, this justified the view that the two proceedings were “separate and distinct”.

Lord Kerr was in dissent. His Honour found that it was open to the ISA to pay close attention to the findings of the disciplinary panel and to be substantially influenced by them. Lord Kerr asserted that there would be nothing inconsistent in the ISA forming its own independent views while still being heavily influenced by the disciplinary hearing. In fact, according to Lord Kerr the ISA should “pay the closest attention” to the record of proceedings before the panel given that it was the only remotely adversarial proceeding in the entire process.

Relevance to the Victorian Charter

This case may be relevant to the right to a fair hearing under section 24(1) of the Charter, which provides that “A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.”

The decision may lead to a person having procedural rights in proceedings that fall short of the definition of “a civil proceeding” but which have a substantial influence or effect on a “civil proceeding”. However, the decision suggests that any civil proceeding in which the significance of evidence is independently examined and conclusions independently drawn, is unlikely to be substantially influenced by related proceedings.

The decision can be found at: http://www.bailii.org/uk/cases/UKSC/2011/30.html

Keren Benjamin is a Seasonal Clerk at Mallesons Stephen Jaques