R (G) v Governors of X School

The Supreme Court allowed the governors' appeal and held that article 6(1) of the European Convention on Human Rights did not apply to the employer disciplinary hearing in this case. The court identified and applied the principles from the Strasbourg jurisprudence on when article 6 applies to preliminary or connected proceedings, adopting the Court of Appeal's formulation that article 6 may apply to an earlier stage where the outcome of that stage has a substantial influence or effect on the later determination of civil rights. Applying those principles here, the majority concluded that the Independent Safeguarding Authority (ISA), under the Safeguarding Vulnerable Groups Act 2006 and its guidance, is required to make its own independent assessment of the facts and of the appropriateness of listing. Because ISA is expected to form its own findings, to assess reliability of evidence and to obtain further information where necessary, the disciplinary panel’s findings would not inevitably have a decisive or sufficiently profound influence on the ISA decision. No article 6 right to legal representation therefore arose at the school disciplinary hearing.

Background and facts:

• In December 2005 the claimant commenced as a sessional music assistant at X School. In October 2007 the parents of a 15 year old pupil (M) complained that the claimant had kissed M and showed alleged text messages and a diary entry. The claimant was suspended and an investigation followed.
• The school arranged a disciplinary hearing in February 2008. The claimant's request that his solicitor represent him at the hearing was refused; he attended unrepresented and declined to answer questions. A governors' panel found on the balance of probabilities that the claimant had pursued an inappropriate sexual relationship with M and summarily dismissed him for gross misconduct.
• As result of dismissal, the school reported the matter under the relevant regulations to central authorities so ISA could consider barring the claimant from working with children. The claimant commenced judicial review proceedings challenging the denial of legal representation at the disciplinary hearing as a breach of article 6(1) ECHR; he succeeded at first instance and in the Court of Appeal, which held article 6 applied to the disciplinary hearing.

Nature of the claim and relief sought: The claimant sought a declaration that denial of legal representation at the disciplinary hearing breached article 6(1) and consequential relief in the form of a re-hearing before a differently constituted disciplinary committee with the right to legal representation.

Issues framed:

1. Whether article 6(1) applied to the employer disciplinary proceedings because of their connection with later ISA proceedings concerning inclusion on the children’s barred list.
2. If article 6 applied, whether the claimant was entitled to legal representation at the disciplinary hearing.
3. Whether any procedural defect at the disciplinary stage would be cured by subsequent ISA decision-making and appeal rights.

Reasoning and outcome: The court reviewed Strasbourg authorities (including Ringeisen, Le Compte, Fayed, Ruiz‑Mateos and related cases) and distilled the applicable principles: article 6 applies where the earlier proceedings are dispositive of, or have a substantial influence on, the later determination of civil rights, and the assessment is fact‑sensitive. The Supreme Court concluded that ISA, under the 2006 Act and its guidance, must and does form its own independent findings of fact, assess evidence and determine appropriateness of inclusion on the barred list; it can obtain additional material and the person may make representations to ISA (including by lawyer). Given ISA’s statutory role and detailed guidance requiring independent assessment, the disciplinary panel’s findings would not inevitably exert the degree of decisive influence required to engage article 6. The majority therefore held article 6 did not apply to the disciplinary hearing and allowed the appeal.

Other points: the court noted policy considerations about the burdens of importing litigation‑style procedures into internal disciplinary processes and observed it was unnecessary to decide whether any defect could be cured by later ISA processes or the right of appeal to the Upper Tribunal.

Appeal allowed. The Supreme Court held that article 6(1) ECHR did not apply to the school governors' disciplinary hearing because the Independent Safeguarding Authority (ISA) is required by statute and guidance to make its own independent assessment of the facts and the appropriateness of inclusion on the children’s barred list; consequently the disciplinary panel’s findings would not inevitably have the substantial, dispositive influence on the ISA decision necessary to engage article 6 and thereby to require legal representation at the disciplinary hearing.

First instance: Judicial review succeeded (Deputy High Court Judge Stephen Morris QC) ordering a re-hearing with legal representation. Court of Appeal (Laws, Wilson, Goldring LJJ) [2010] EWCA Civ 1; reported at [2010] 1 WLR 2218, upheld the claimant. Appeal to the Supreme Court allowed: [2011] UKSC 30.