Legal representation in disciplinary proceedings
In the case of R (on the application of G) (Respondent) v The Governors of X School (Appellant)  UKSC 30 a disciplinary hearing at a State school found a musical assistant guilty of gross misconduct in the form of inappropriate contact with a child and dismissed him from his post. The decision was reported to the Independent Safeguarding Authority (ISA) which has power to bar a teacher from working with children. The assistant sought judicial review on the ground that he had been denied the right of legal representation at the disciplinary proceedings. [It should be pointed out that, while the school disciplinary hearing could only dismiss the assistant from that school, the ISA would have the power to prevent him from working as a teacher anywhere.]
In deciding whether article 6(1) applies, said Lord Dyson, delivering the leading judgment, ‘the ECtHR takes into account a number of factors including (i) whether the decision in proceedings A is capable of being dispositive of the determination of civil rights in proceedings B or at least causing irreversible prejudice, in effect, by partially determining the outcome of proceedings B; (ii) how close the link is between the two sets of proceedings; (iii) whether the object of the two proceedings is the same; and (iv) whether there are any policy reasons for holding that article 6(1) should not apply in proceedings A.’
The Court found the following formulation by Laws LJ in the Court of Appeal helpful in applying the ECtHR approach:
‘In my view the effect of the learning … is that where an individual is subject to two or more sets of proceedings (or two or more phases of a single proceeding), and a 'civil right [or] obligation' enjoyed or owed by him will be determined in one of them, he may (not necessarily will) by force of Article 6 enjoy appropriate procedural rights in relation to any of the others if the outcome of that other will have a substantial influence or effect on the determination of the civil right or obligation. I do not mean any influence or effect which is more than de minimis: it must play a major part in the civil right's determination. I do not intend a hard and fast rule. Principles developed by the Strasbourg court for the interpretation and application of the Convention tend not to have sharp edges; as I have said, the jurisprudence is generally pragmatic and fact-sensitive. The nature of the right in question may make a difference. So may the relative authority of courts, tribunals or other bodies playing their respective parts in a case, such as the present, where connected processes touch a Convention right.’
In the present case Lord Dyson held that there was no reason to believe that, contrary to its statutory duty and guidance, the ISA would be unable to form its own view of the facts independently of the view formed by the school authorities and governors. He also held that there was no reason to suppose that the ISA would be influenced profoundly (or at all) by the school's opinion of how the primary facts should be viewed.
In the circumstances the Court held that Article 6(1) did not apply to the school disciplinary proceedings.
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