G, R (on the application of) v X School & Ors

Article 6 may require legal representation in disciplinary proceedings even where a later independent authority decides whether the person is barred from practising. It is sufficient that the disciplinary outcome has a substantial influence or effect on the later determination of a civil right, and may irretrievably prejudice that right. A later tribunal will not necessarily cure an earlier procedural defect where it does not control or correct the disciplinary decision and lacks jurisdiction over the decisive evaluative issue. The need for representation depends on fairness, including what is at stake and the gravity and complexity of the allegations. The civil or criminal classification of proceedings is secondary to the safeguards required for a fair hearing.

The claimant, a teaching assistant, was dismissed after allegations of sexual contact with a 15-year-old boy during work experience. The governors refused legal representation at the disciplinary hearing and indicated that it would also be refused at the appeal hearing. They were required to report the dismissal under Regulation 4 of the Education (Prohibition from Teaching and Working with Children) Regulations 2003, potentially leading to barring proceedings under the Education Act 2002 and later the Safeguarding Vulnerable Groups Act 2006.

The Administrative Court granted judicial review. It held that the disciplinary and barring procedures formed part of one process for Article 6 purposes, but that the criminal limb did not apply. It nevertheless held that Article 6 required legal representation. The governors appealed, and the claimant cross-appealed on the criminal limb. The central issues were whether the disciplinary process determined the claimant’s civil right to practise his profession and whether fairness required legal representation.

Appeal dismissed. The cross-appeal was moot and no substantive order was made on it.

1. Article 6 was engaged on the civil limb. The question was not whether the disciplinary and barring procedures formally constituted one set of proceedings, but whether they had a sufficiently close nexus. That test was met where the earlier process had a substantial influence or effect on the later determination of the civil right. The influence had to be major rather than merely more than de minimis, but the assessment was pragmatic and fact-sensitive.
2. The claimant’s right to practise his profession was distinct from his contractual right to remain employed at the school. The disciplinary finding required a referral under Regulation 4 of the Education (Prohibition from Teaching and Working with Children) Regulations 2003. Although the Independent Safeguarding Authority was autonomous and could assess the facts independently, its procedure did not ordinarily involve a de novo oral hearing with cross-examination. The governors’ findings, particularly their evaluation of the seriousness and character of the conduct, would therefore remain influential. The claimant’s professional right might be irretrievably prejudiced.
3. The later barring procedures and Upper Tribunal appeal did not prevent Article 6 applying at the disciplinary stage. The Upper Tribunal could review mistakes of law or fact, but section 4(3) of the Safeguarding Vulnerable Groups Act 2006 excluded the question whether inclusion on the barred list was appropriate.
4. Article 6 did not automatically confer a right to representation in civil proceedings. Fairness depended on what was at stake, including the gravity and complexity of the allegations. A professional advocate could have materially affected both any dispute about the primary facts and the governors’ evaluation of their significance. Article 6 therefore required that the claimant be given the opportunity to arrange legal representation.
5. The reasoning in Bryan v United Kingdom (1995) 21 EHRR 342, R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295 and Runa Begum v Tower Hamlets London Borough Council [2003] 2 AC 430 concerned administrative decisions subject to later judicial review or a tribunal with sufficiently full jurisdiction. It did not govern the different relationship between the disciplinary process and the barring process here. The classification of the proceedings as civil or criminal was secondary to the safeguards necessary for a fair hearing. As an obiter observation, refusal to allow a professional advocate to ask any questions of a complainant who gave evidence would be difficult to reconcile with fairness.

• Court of Appeal (Civil Division): In [2010] EWCA Civ 1, the governors’ appeal was dismissed. The claimant’s cross-appeal concerning the criminal limb of Article 6 was moot.
• High Court, Administrative Court: On 18 March 2009, Mr Stephen Morris QC, sitting as a deputy High Court judge, granted judicial review. He held that the disciplinary and barring procedures were part of one process for Article 6 purposes, that the criminal limb did not apply, and that legal representation was nevertheless required under the civil limb.