No right to a lawyer in school internal disciplinary hearing

29/06/11

The Supreme Court today allowed an appeal by the governors of a school against the decisions of the High Court and Court of Appeal that a teacher accused of sexual misconduct with a child was entitled by virtue of Article 6 ECHR to be represented by a lawyer at an internal disciplinary hearing.

The High Court and Court of Appeal had held that Article 6 was engaged because an adverse finding would lead to a referral to the Independent Safeguarding Authority, which would be obliged to consider inclusion of the teacher in the children's barred list under the Safeguarding of Vulnerable Groups Act 2006.

The Supreme Court noted that the Strasbourg Court has repeatedly contrasted proceedings that are "directly decisive" of a civil right with those where the connection is more "tenuous or remote". In practice, an analysis of the authorities showed that the Strasbourg Court adopted a pragmatic, context-sensitive approach to the engagement of Article 6. The Court held that Article was engaged when proceedings had a "substantial influence" on the civil right in question, even if they were not directly determinative of it.

However, in this case, the ISA was required to exercise its own independent judgment both as to findings of fact and in relation to the assessment of their significance. The decision by the ISA whether to place an individual on the children's barred list was taken after an assessment of the full merits of each case. The absence of an oral hearing did not, in general, deprive the ISA of the ability to form its own view. So the proceedings before the school's disciplinary panel could not be regarded as having a "substantial influence" on the teacher's right to practise his profession. That right was determined only by the ISA. There was no reason to suppose that the procedure before the ISA would not be Article 6-compliant.

The judgment is here.