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Legal Representation and School Disciplinary Proceedings

June 29th, 2011 by Christopher Knight

G worked as a music assistant at a school. During his time there it was alleged that he formed an inappropriate, and possibly sexual, relationship with a 15 year old boy on work experience at the school. The school was informed by the boy’s parents, and launched disciplinary proceedings against G. The police were informed, but following an investigation, no charges were brought.

The school’s policy on disciplinary hearings permitted G to bring a trade union representative or friend. G, who was not a union member, requested his lawyer attend and the school refused that request. G declined to answer questions at the hearing on the grounds that it was unfair. The school found that G had formed an inappropriate relationship with the boy and summarily dismissed him for gross misconduct.

Because of the nature of the finding, the school reported the matter to the Secretary of State (now the Independent Safeguarding Authority) for consideration of whether G should be placed on the barred list (formerly ‘List 99′) under the Safeguarding Vulnerable Groups Act 2006. The determination by the ISA remains pending.

Overturning the Court of Appeal ([2010] EWCA Civ 1; [2010] 1 WLR 2218), the Supreme Court held today in R (G) v Governors of X School [2011] UKSC 30 that G had no Article 6(1) ECHR right to legal representation at the school’s disciplinary hearing. G argued that the refusal to permit legal representation at the hearing was in breach of Article 6(1) because that hearing was determining a civil right, namely the right to practise his profession as a teacher.

The leading judgment was given by Lord Dyson, with whom Lord Walker agreed, with short concurring judgments from Lord Hope and Lord Brown. Lord Dyson held that the question whether proceedings are directly decisive of the right in question, where they are related to a second set of proceedings which are themselves directly decisive, should be assessed by reference to whether those proceedings have a substantial influence on the second proceedings. This was the test proposed by Laws LJ in the Court of Appeal.

However, in applying that test, the majority of the Supreme Court came to a different outcome to the courts below. Everyone agreed that any decision taken by the ISA to place G on the barred list - and any appeal from the ISA to the Upper Tribunal – was directly decisive of G’s right to practise his profession. However, the majority saw the decision of the school to only go to G’s employment with that school and not any wider right. There was undoubtedly a link between the school hearing and any ISA decision, but the ISA is required to take its own decision and is not bound by any previous findings of fact. The refusal of the school to permit legal representation at its disciplinary hearing was therefore not a breach of Article 6(1) ECHR. It lacked a substantial influence over the decisive proceedings.

Lord Kerr dissented, holding that it was artificial to separate out the two stages of the proceedings. It was necessary to assess the overall picture, and the findings of the school, which will have tested the evidence, would and should be given significant weight by the ISA in its own determination. The procedure as a whole was therefore not Article 6(1) compliant.