G, R (on the application of) v X School & Ors  EWCA Civ 1 (20 January 2010)
The English Court of Appeal has held that proceedings that are not by themselves determinative of civil rights or obligations may still be subject to the requirements of art 6(1) of the European Convention on Human Rights where the outcome of the proceedings will have a substantial influence or effect on the determination of those rights or obligations.
The claimant was a teaching assistant at X School. A complaint was made that he kissed and had sexual contact with a 15 year old boy. After an investigation, the governors of X School convened a disciplinary panel. The panel dismissed the claimant for abuse of trust and stated that it would report his dismissal to the appropriate agencies (as it was required to do). The claimant was not allowed legal representation before the panel.
The claimant appealed the disciplinary panel's decision to an appellant committee. He was informed that he would not be allowed legal representation before the committee.
The claimant challenged the governors' decisions not to allow him legal representation before the disciplinary panel or at the forthcoming appeal on the grounds that these decisions violated his rights under art 6 of the Convention. Relevantly, art 6(1) states that a person facing the determination of their civil rights and obligations or any criminal charge is entitled to a fair and public hearing by an independent and impartial tribunal established by law.
The decision rested on two questions. First, did art 6 apply to the disciplinary proceedings? Second, if it applied, did it follow that art 6 required that the claimant have the right to legal representation?
Did article 6 apply?
Laws LJ (with whom Wilson and Goldring LJJ agreed) held that art 6(1) applied to the disciplinary proceedings. Where there is a nexus between one proceeding and a proceeding that determines a civil right or obligation, the first proceeding is covered by art 6(1). The relevant nexus will exist if the outcome of the other proceeding has 'a substantial influence or effect' on the determination of the civil right or obligation.
In this case, the disciplinary proceedings were determinative of the claimant's right to continue his employment with X School, which was not a right protected by art 6(1). Once, however, the disciplinary panel reported the claimant's dismissal, the appropriate agencies would decide whether the claimant should be placed on the Children's Barred List. If placed on the list the claimant would be prohibited from practicing his profession as a teaching assistant, which was a protected right.
The Court concluded that there was a sufficient nexus between the disciplinary proceedings and the appropriate agencies' decision to place the claimant on the Children's Barred List, observing that the disciplinary panel's finding of abuse of trust was likely to have a 'profound influence' on the appropriate agencies' decision. While the appropriate agencies might independently consider the matter, and the claimant would be entitled to make representations through a lawyer, oral hearings with cross-examination would not be held. The claimant's civil right to practice his profession might, therefore, be 'irretrievably prejudiced' by the disciplinary panel and appeal committee's findings.
The defendants argued that art 6 did not apply to earlier proceedings where an art 6 compliant court or tribunal would give fair consideration to the case at the end of the overall process (see, eg, Bryan v UK (1995) 21 EHRR 342 and Alconbury Developments Ltd  2 AC 295). The Court distinguished those cases from the present case. In Bryan v UK and Alconbury Developments Ltd, 'the subjection of the first (administrative) decision to the second (judicial) decision' was 'sufficient to ensure compliance with art 6' because the final court controlled the earlier decision and corrected any errors. In this case, however, the Children's Barred List procedure did not control the disciplinary proceedings or provide an opportunity to correct errors made during those proceedings. Rather, the outcome of the disciplinary proceedings drove the Children's Barred List procedure.
Further, the claimant's right to appeal the appropriate agencies' decision to the Upper Tribunal did not change the outcome. The Upper Tribunal did not have the jurisdiction to deal with the critical issue, 'namely whether on the proved or admitted facts the quality of the' claimant's 'act should be judged severe enough to put him on the barred list'. Accordingly, art 6(1) applied to the disciplinary proceedings.
Did article 6 require that the claimant be allowed the opportunity of legal representation in the disciplinary proceedings?
The court held that the claimant was entitled to legal representation in the disciplinary proceedings. While art 6(1) does not guarantee legal representation in all cases, legal representation was guaranteed in this case because of the potential consequences of the appropriate agencies' decision. Further, the presence of a legal representative might have had an impact upon the decision makers' construction of the facts during the disciplinary proceedings and may have influenced the outcome of any contest as to the facts. The determinations of the disciplinary panel and, ultimately, the appropriate agencies may therefore have been affected by the involvement of a legal representative.
Relevance to the Victorian Charter
This case may be relevant to s 24 (fair hearing) of the Victorian Charter, particularly the requirement of 'a fair and public hearing'.
The decision is available at http://www.bailii.org/ew/cases/EWCA/Civ/2010/1.html.
Amanda Hicks-McLean is a lawyer with Allens Arthur Robinson