Queen’s Bench Division
Published April 24, 2009
Regina (G) v Governors of X School
Before Mr Stephen Morris, QC
Judgment March 18, 2009

An employee of a school facing a disciplinary committee for allegations of sexual misconduct was entitled to an enhanced measure of procedural protection afforded by article 6.1 of the European Convention on Human Rights, guaranteeing the right to a fair hearing, which included the right to legal representation at the disciplinary hearing.

Mr Stephen Morris, QC, sitting as a deputy judge in the Queen’s Bench Division, so held when allowing a claim for judicial review by the claimant, G, of decisions made by his employer, X School, on February 20, 2008, and May 6, 2008, refusing to allow him legal representation: first, at his disciplinary hearing before a panel of the school’s governors and second, at a later hearing of his pending appeal against the disciplinary committee’s decision to dismiss him from his employment at the school.

The judge made an order that nothing was to be published which might identify the claimant, the school or the local authority.

G was employed as a music assistant at X School. As a result of alleged acts of abuse of trust with a boy aged 15 disciplinary procedures were instigated against him.

The claimant was summarily dismissed from his employment with the school and the disciplinary committee referred the matter to the Secretary of State for Children, Schools and Families, who had the power to make a direction under section 142 of the Education Act 2002 to prohibit a person from working with children in educational establishments.

At his disciplinary hearing and at the later hearing concerning his appeal against his dismissal, the claimant requested that his solicitor represent him.

The school refused permission on both occasions, stating that an employee could be represented by a colleague or trade union representative but that no other person would be permitted to attend the hearing.

The claimant sought judicial review of those decisions on ground that the proceedings before the disciplinary committee and the appeal committee, including the referral to the secretary of state, which could thereafter lead to the making of a section 142 direction, constituted a single procedure for the purpose of article 6.1 of the Convention.

By virtue of the seriousness of the conduct alleged and the severity of the consequences of a section 142 direction, the claimant was entitled to the procedural protection provided specifically for criminal proceedings in article 6.3(c) and (d), which included the right to defend himself through legal assistance.

Alternatively, the claimant contended that the proceedings nevertheless involved a determination of his civil rights and obligations under article 6.1, so that legal representation was required as a commensurate measure of procedural protection.

Mr Richard Drabble, QC and Mr Paul Draycott for G; Mr John Bowers, QC and Mr Tim Kenward for X School and for Y City Council, as interested party.

HIS LORDSHIP said that there could be no distinction drawn between the dismissal from employment and a referral to the secretary of state.

A referral to the secretary of state was a natural and likely outcome of such a disciplinary procedure and certainly at the outset of disciplinary proceedings involving allegations of sexual misconduct, the outcome of such a referral and the consequent section 142 procedure was inevitable in the event that the allegations were proved.

The disciplinary proceedings and referral therefore formed part of one and the same proceedings for the purposes of article 6 of the Convention.

Disciplinary proceedings leading to a section 142 direction did not amount to a criminal offence for the purposes of article 6.3 and the protection it offered.

However, the claimant was entitled, by reason of his right under article 6.1, to a fair hearing in a civil matter.

Given the seriousness of the nature of the allegations and the consequences of a section 142 direction, the claimant could not fairly be expected to represent himself at the disciplinary and appeal committee hearings.

Being accompanied by a colleague or trade union representative was insufficient. The claimant was entitled to a commensurately enhanced measure of procedural protection under article 6.1, which meant entitlement to legal representation at the disciplinary and appeal committee hearings.

Solicitors: Keith Levin & Co, Liverpool; Solicitor, Y City Council.