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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2010/1.html
Cite as: [2010] EWCA Civ 1, [2010] HRLR 13, [2010] Med LR 45, [2010] PTSR 1435, [2010] UKHRR 584, [2010] 1 WLR 2218, [2010] IRLR 222, [2010] WLR 2218, [2010] BLGR 207, [2010] ELR 235, [2010] 2 All ER 555

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Neutral Citation Number: [2010] EWCA Civ 1
Case Nos: C1/2009/0795 & C1/2009/0821

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
MR STEPHEN MORRIS QC (SITTING AS A DEPUTY HIGH COURT JUDGE)
CO/4807/2008

Royal Courts of Justice
Strand, London, WC2A 2LL
20 January 2010

B e f o r e :

LORD JUSTICE LAWS
LORD JUSTICE WILSON
and
LORD JUSTICE GOLDRING

____________________

Between:
THE GOVERNORS OF X SCHOOL
Respondent/
Cross Appellant
- and -


THE QUEEN ON THE APPLICATION OF G
Appellant/
- and -


Y CITY COUNCIL



THE SECRETARY OF STATE FOR CHILDREN AND SCHOOLS AND FAMILIES

Interveners

THE EQUALITY AND HUMAN RIGHTS COMMISSION
Interested Party

____________________

(Transcript of the Handed Down Judgment of
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____________________

Mr Richard Drabble QC and Mr Paul Draycott (instructed by Keith Levin & Co) for the Appellant/Respondent to the Cross Appeal
Mr John Bowers QC, Mr Tim Kenward and Ms Katherine Apps (instructed by Y City Council ) for the Respondent/Cross Appellant
Mr Martin Chamberlain (instructed by the Treasury Solicitor) for the Secretary of State for Children and Schools and Families
Miss Helen Mountfield (instructed by the (Equality and Human Rights Commission) for the
Hearing dates : 6 October 2009

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Laws :

    INTRODUCTION

  1. This is a defendants' appeal, with permission granted by the judge below, against the decision of Mr Stephen Morris QC sitting as a deputy High Court judge in the Administrative Court on 18 March 2009, when he granted the respondent's application for judicial review of two decisions made by the defendants. The appellants/defendants are the governors of X school, which is a voluntary aided school. It will make for convenience if I refer to the appellants as "the governors" and the respondent as "the claimant".
  2. The claimant was a teaching assistant at X school. He is now aged 24. A complaint was made that he had kissed and had sexual contact with a 15 year boy, M, who was undergoing a short period of work experience at the school. If the allegations were true they tended to disclose an offence under s.16 of the Sexual Offences Act 2003. However by 1 February 2008 it was known that the Crown Prosecution Service would not be taking criminal proceedings. Thereafter the governors conducted an internal investigation and disciplinary hearing, and dismissed the claimant for abuse of trust. The disciplinary hearing was held on 21 February 2008.
  3. By these judicial review proceedings the claimant seeks to challenge the governors' decisions not to allow him legal representation at the disciplinary hearing, or at a forthcoming appeal hearing which has not yet taken place. He says that these decisions violate rights enjoyed by him under Article 6 of the European Convention on Human Rights (ECHR), which provides in part:
  4. "(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...
    (2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
    (3) Everyone charged with a criminal offence has the following minimum rights:
    (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
    (b) to have adequate time and the facilities for the preparation of his defence;
    (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
    (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as the witnesses against him;
    …"
  5. The Secretary of State for Children Schools and Families, and the Equality and Human Rights Commission, have made submissions as interveners with the court's permission.
  6. FURTHER FACTS

  7. The first refusal complained of was contained in a letter from the school dated 20 February 2008, in which this was said:
  8. "We have been instructed by the [L] Authority to advise you that its policy is 'An employee may be represented by a colleague or trade union representative' and that any other person will not be permitted to enter the hearing taking place on the 21 February, 2008."
  9. The claimant's summary dismissal followed the hearing and was communicated to him by letter of 27 February 2008. The letter notified him of his right to appeal to an appeal committee. It also stated:
  10. "The Panel are also concerned that you have behaved in a way that indicates you may be unsuitable to work with children and as such will be reporting your dismissal to the appropriate agencies."

    That is of great importance, as will shortly become apparent. On 4 March 2008 the claimant gave notice of intention to appeal, but the hearing of the appeal has been postponed to await a final decision in these proceedings. On 6 May 2008 the Clerk to the Governors wrote to the claimant in effect confirming that the policy of no legal representation would apply to the appeal. That is the second decision complained of.

  11. Under subordinate legislation in force at the time of the claimant's dismissal – Regulation 4 of the Education (Prohibition from Teaching and Working with Children) Regulations 2003 (the 2003 Regulations), which I cite below – the governors were obliged to report the circumstances of the claimant's dismissal to the Secretary of State, so that he might determine whether to place the claimant on the statutory register of persons prohibited from teaching, or other work directly or indirectly involving children, pursuant to s.142 of the Education Act 2002 (the 2002 Act) which I will cite below. This register was known as "List 99". The Secretary of State was notified of the circumstances of the claimant's dismissal by letter dated 7 May 2008 from the chair of the governors, who stated that the panel on 21 February 2008 had been satisfied that the claimant's actions had "harmed a child or placed a child at risk of harm". That letter was replied to by the agency called the Independent Safeguarding Authority (ISA) on 16 May 2008. The ISA there indicated that its role under the Safeguarding Vulnerable Groups Act 2006 (the 2006 Act: I cite or summarise its material provisions below) was to advise the Secretary of State who would take his own decision under the Education Act (clearly referring to s.142). The ISA proceeded to request, from the school, contact details of the police officer and the social services who had been involved in the case, along with certain other matters. The reference to the 2006 Act reflected certain changes in the statutory regime relating to the prohibition of persons from working with children. There have been three distinct phases in the regime's evolution (the second being a transitional phase on the way to the third) and I will describe them directly. No decision has yet been made whether to list the claimant pursuant to s.142, or under the successor arrangements made under the third phase.
  12. These judicial review proceedings were lodged on 19 May 2008. Permission to seek judicial review was granted by Hodge J on 7 July 2008. He also continued a stay of the claimant's appeal proceedings until the judicial review claim should have been determined.
  13. THREE PHASES: THE LEGISLATION

  14. The claimant's argument that the governors' denial of legal representation at the disciplinary hearing and at the forthcoming appeal hearing was unlawful critically depends on the extent to which an adverse finding in the disciplinary proceedings exposed him to statutory procedures which would prevent him from working with children. An accurate answer to this question requires a description and comparison of the three phases in the regime, to which I have so far only referred in passing.
  15. (1) The "List 99" Procedure

  16. The first phase of the statutory regime relating to the prohibition of persons from working with children – the "List 99" procedure – was effectively constituted by s.142 of the 2002 Act and Regulation 4 of the 2003 Regulations, and certain ancillary provisions. These measures were in force when the case went before the learned deputy judge. S.142 provided in part:
  17. "142(1) The Secretary of State, in relation to England, or the Secretary of State and the National Assembly for Wales concurrently, in relation to Wales, may direct that a person –
    (a) may not carry out work to which this section applies;
    (b) may carry out work to which this section applies only in circumstances specified in the direction;
    (c) may carry out work to which this section applies only if conditions specified in the direction are satisfied.
    (2) This section applies to –
    (a) providing education at a school,
    (b) providing education at a further education institution,
    (c) providing education under a contract of employment or for services where the other party to the contract is a local education authority or a person exercising a function relating to the provision of education on behalf of a local education authority, and
    (d) taking part in the management of an independent school.
    (3) This section also applies to work of a kind which –
    (a) brings a person regularly into contact with children, and
    (b) is carried out at the request of or with the consent of a relevant employer (whether or not under a contract).
    (4) A direction under this section may be given in respect of a person only –
    (b) on the grounds that the person is unsuitable to work with children,
    (c) on grounds relating to the person's misconduct,
    (8) Where a person is subject to a direction under this section, a relevant employer shall not use the person to carry out work in contravention of the direction."

    Breach of a s.142 direction is a criminal offence carrying up to five years imprisonment.

  18. Regulation 4 provides:
  19. "(1) Where a relevant employer –
    (a) has ceased to use a person's services on a ground –
    (i) that the person is unsuitable to work with children;
    (ii) relating to the person's misconduct; or
    (iii) relating to the person's health where a relevant issue is raised, or
    (b) might have ceased to use a person's services on such a ground had the person not ceased to provide those services,
    the relevant employer shall report the facts of the case and provide all the information listed in Part 1 of Schedule 1 that is available to the relevant employer in relation to such person to the Secretary of State..."
  20. By Regulation 6 of the 2003 Regulations, where the Secretary of State was considering exercising his powers under s.142 he was required to afford the person concerned an opportunity to make representations and submit evidence. S.144 of the 2002 Act conferred a right of appeal against a s.142 direction. The appeal lay to the Care Standards Tribunal (which became the First-tier Tribunal). We were told that appellants were frequently represented by lawyers at such appeals. Regulation 12(3) of the 2003 Regulations provides:
  21. "(3) Where a person has been convicted of any offence involving misconduct, no finding of fact on which the conviction must be taken to have been based shall be challenged on an appeal under these Regulations."

    Regulation 13 provides:

    "(1) Where on an appeal under regulation 12 the First-tier Tribunal considers that the direction is not appropriate it may order the Secretary of State to revoke or vary the direction.
    (2) The Tribunal shall not, in exercising its powers under this regulation, consider –
    (a) any information relevant to the decision to give a direction or not to revoke or vary a direction which the Secretary of State did not have at the time the decision was made; or
    (b) any evidence of a material change of circumstances of the person concerned occurring since the decision to give a direction or not to revoke or vary a direction was given."
  22. There are some footnotes – though the term perhaps underestimates their importance – to the List 99 procedure. First, it seems there was originally an understanding that the tribunal was not to determine, or re-determine, matters of primary fact: FH v Secretary of State [2005] PT 552. That view appears to have been accepted by Dyson LJ sitting in the Administrative Court in Secretary of State v JN [2008] EWHC Admin 1199 at paragraphs 22 – 23. However, with respect, the Regulations do not obviously support this restrictive position. In Secretary of State v Philliskirk [2008] EWHC Admin 2838 Collins J said this at paragraph 19:
  23. "Of course, it is right that the Tribunal is reviewing the Secretary of State's decision, and clearly if it was not a reasonable decision, then the Tribunal will interfere. But, as it seems to me, the Tribunal has its own independent judgment to exercise. It looks at the material that was before the Secretary of State and it decides, on that material, whether in its judgment the relevant prohibition or the relevant sanction was or was not one which ought to have been, in its view, imposed. It may be that one can say, if one is talking in strict judicial review terms, that the decision of the Secretary of State was reasonable in the sense that it is one which was open to him. But that would mean, if that is the narrow basis upon which the Tribunal approaches the matter, that it is disabled from exercising its own judgment. It is the exercise of its own judgment that is important. But, as the regulation makes clear, that judgment must be exercised upon and only upon the material that was before the Secretary of State."
  24. Secondly, while nothing in s.142 required that the decision-making process under the section should involve any element independent of the State, it is the fact that since January 2006 the Secretary of State has referred all cases to Sir Roger Singleton (formerly chief executive of Barnardo's, now chair of the ISA). An expert panel was established to assist Sir Roger in forming a view, which would then be communicated to officials advising the Secretary of State. As Dyson LJ observed in JN at paragraph 13, "[t]he establishment of this panel to advise the Secretary of State is an interim step before the transfer of the Secretary of State's functions (in modified form) to the Independent Barring Board under [the 2006 Act]". The role of the Independent Barring Board (the IBB) arises pursuant to the third phase of the statutory regime relating to the prohibition of persons from working with children, which we shall shortly describe.
  25. (2) The Transitional Phase

  26. A transitional regime – the second phase – applied where a case had been referred to the Secretary of State pursuant to Regulation 4 of the 2003 Regulations, but the Secretary of State had not by 20 January 2009 invited representations for the purpose of arriving at a decision under s.142. In that event the Secretary of State was required to refer the case to the ISA. This arrangement was provided for by paragraph 2 of the Safeguarding Vulnerable Groups Act 2006 (Transitory Provisions) Order 2009, made under the powers contained in the 2006 Act. It is unnecessary to dwell on the transitional phase because, although the claimant's case fell within it and was duly referred to the ISA, the ISA is as I understand it treating the case as stayed pending the outcome of these proceedings. The effect is that it will in due course fall to be dealt with under the substantive third phase, ushered in by the 2006 Act.
  27. The 2006 Act: the "Children's Barred List"

  28. After the Bichard enquiry into the Soham Murders, the 2006 Act was passed with a view to harmonising listing procedures across different areas. As we have foreshadowed s.1(1) of the 2006 Act established the IBB. It was however renamed the Independent Safeguarding Authority – the ISA – by s.81(1) of the Policing and Crime Act 2009, and we shall so refer to it. By s.2(1)(a) of the 2006 Act the ISA was obliged to establish and maintain the "children's barred list". This is the third phase; the children's barred list has taken the place of List 99. It became fully effective on 12 October 2009. As from that date a person whose name appears on the children's barred list is by s.3(2)(a) prohibited from taking part in "regulated activity", whose definition is complex but includes (Schedule 4 Part I paragraph 2(1)(a)) "any form of teaching, training or instruction of children, unless the teaching, training or instruction is merely incidental to teaching, training or instruction of persons who are not children".
  29. S.142 of the 2002 Act was repealed by s.63 and Schedule 10 to the 2006 Act. By s.2(2) of the 2006 Act "Part 1 of Schedule 3 applies for the purpose of determining whether an individual is included in the children's barred list". Part 1 of Schedule 3 contains these provisions (I have substituted "ISA" for IBB" which appeared in the text as enacted):
  30. "3(1) This paragraph applies to a person if—
    (a) it appears to ISA that the person has (at any time) engaged in relevant conduct, and
    (b) ISA proposes to include him in the children's barred list.
    (2) ISA must give the person the opportunity to make representations as to why he should not be included in the children's barred list.
    (3) ISA must include the person in the children's barred list if—
    (a) it is satisfied that the person has engaged in relevant conduct, and
    (b) it appears to ISA that it is appropriate to include the person in the list.
    ...
    4(1) For the purposes of paragraph 3 relevant conduct is—
    (a) conduct which endangers a child or is likely to endanger a child;
    (b) conduct which, if repeated against or in relation to a child, would endanger that child or would be likely to endanger him;
    (c) conduct involving sexual material relating to children (including possession of such material);
    (d) conduct involving sexually explicit images depicting violence against human beings (including possession of such images), if it appears to ISA that the conduct is inappropriate;
    (e) conduct of a sexual nature involving a child, if it appears to ISA that the conduct is inappropriate.
    (2) A person's conduct endangers a child if he—
    (a) harms a child,
    (b) causes a child to be harmed,
    (c) puts a child at risk of harm,
    (d) attempts to harm a child, or
    (e) incites another to harm a child."

    Paragraph 3(5) applies where it appears to the ISA that the person in question may do any of the things listed in paragraph 4(2) (the list is replicated at paragraph 5(4)). In such a case, again the ISA must give the person an opportunity to make representations (paragraph 5(2): compare paragraph 3(2)), and must include him in the children's barred list if it is satisfied that he falls within paragraph 5(4) and that it appears to the ISA that it is appropriate to include him in the list (paragraph 5(3): compare paragraph 3(3)).

  31. It is clear (as Mr Bowers QC for the governors submitted) that under the full procedures of the 2006 Act – the third phase – the ISA, as decision-maker of the question whether the subject is to be included in the children's barring list, acts entirely independently of the Secretary of State. Subject to any intervention by this court it is to the ISA's autonomous judgment under this regime that the claimant's case will be submitted.
  32. The way in which the ISA is to go about its task is filled out by Guidance issued by the ISA Board in February 2009 ("Guidance Notes for Barring Decision Making Process"). Paragraph 5.1.1 of the Guidance, under the heading "Evidence Evaluation – Referral Information" states:
  33. "Referral information is received from employers which have dealt with individuals through their internal disciplinary procedures, whether or not an individual has been dismissed. The conclusions reached by employers are reviewed to establish, on a balance of probability, the facts. It is the facts of the case that determine whether the case requires further consideration and not the conclusions that the employer reached."

    Then this:

    "5.10.2. As mentioned already, in the cases of cautions, convictions and findings of fact by competent bodies [this appears to refer to professional regulatory bodies such as the General Medical Council], you will be able to treat the facts as proved.
    5.10.3. In relation to other evidence, you will first need to assess each piece of evidence and judge how reliable it is. The judgment as to how reliable a piece of evidence is will determine how much weight can be placed on it. Less reliable evidence will carry less weight in a barring decision than highly reliable evidence. Some evidence will be so unreliable, for example because it is contradicted or called into question by other reliable evidence, that no lawful reliance can be placed on it at all. Such evidence must be disregarded altogether."

    The ISA proceeds to a provisional evaluation of the case, and then invites representations (paragraph 3.7.1 of the Guidance. Representations may be by a lawyer: paragraph 7.5). After considering the representations, the ISA decides whether the subject is to be included in the children's barring list. Paragraph 3.8 of the Guidance states:

    "The decision at the end of the Case Assessment relates to the level of potential future risk of harm to children and/or vulnerable adults taking into consideration, where applicable, any representations that have been made and all pertinent facts and any specialist opinions."
  34. If the subject is put on the list, he has under s.4(1) of the 2006 Act a right of appeal to the Upper Tribunal if (s.4(4)) the Tribunal gives permission. S.4(2) and (3) provide:
  35. "(2) An appeal under subsection (1) may be made only on the grounds that ISA has made a mistake—
    (a) on any point of law;
    (b) in any finding of fact which it has made and on which the decision mentioned in that subsection was based.
    (3) For the purposes of subsection (2), the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact."

    If the Upper Tribunal allows an appeal it must direct the ISA to remove the subject's name from the list or remit the case to the ISA. A further appeal on a point of law only lies with permission to the Court of Appeal.

    THE JUDGMENT BELOW

  36. The learned deputy judge summarised the claimant's case as follows (paragraph 35 of the judgment):
  37. "(1) The disciplinary proceedings before the Disciplinary Committee (and the Appeal Committee), including the referral to the Secretary of State and thereafter leading to the making of s.142 direction by the Secretary of State constitute a single procedure. By virtue of the seriousness of the conduct alleged and the severity of the consequences of a s.142 direction, these proceedings constituted proceedings in respect of a 'criminal charge' against the Claimant within the meaning of that term in Article 6(1) ECHR.
    (2) Accordingly, the Claimant was entitled to the procedural protection provided, specifically for criminal proceedings, in Article 6(3)(c) and (d). The Defendant infringed Article 6(3)(c) and (d) by:
    (a) refusing to permit the Claimant legal representation at the disciplinary hearing on 21 February 2008 and in the forthcoming hearing before the Appeal Committee; and
    (b) failing to allow any examination or cross-examination of M at either hearing.
    (3) Alternatively, if the disciplinary proceedings are not in respect of a 'criminal charge', they nevertheless involve the determination of the Claimant's 'civil rights and obligations' under Article 6(1), and, in view of the gravity of the allegations and of the consequences of a s.142 direction, legal representation at the disciplinary hearings was and is, in any event, required as a commensurate measure of procedural protection. This is the alternative 'civil' limb of the Claimant's case made by the Additional Ground."
  38. The deputy judge, after a very copious citation of authority, held as follows:
  39. i) The disciplinary proceedings and the referral to the Secretary of State with a view to a s.142 direction constituted a single procedure. Together they formed "part of one and the same proceedings for the purposes of Article 6" (paragraph 57).

    ii) However the proceedings were not, and in particular the disciplinary procedure was not, "proceedings in respect of a criminal charge and the provisions of Article 6(3)(c) and (d) ECHR did not apply to that procedure" (paragraph 66).

    iii) Nevertheless, the claimant was entitled to the procedural protection of legal representation before the disciplinary committee and the appeal committee (paragraph 80).

    iv) (Responding to an argument advanced by the appellants and recorded by the learned deputy judge at paragraph 36(4) of his judgment) the possibility of proceedings for unfair dismissal before an Employment Tribunal does not provide a sufficient remedy so as to obviate the need for the procedural protection of legal representation before the disciplinary committee or the appeal committee (paragraph 86).

  40. The appellants appeal against the judge's finding that the claimant enjoyed such a right to legal representation. The claimant cross-appeals, also with permission granted by the deputy judge, against the holding that he did not enjoy the full panoply of protection conferred by Article 6 in relation to "the determination of any criminal charge".
  41. THE ISSUES

  42. Before going further I should say that I was at first troubled by the terms of the letter of 20 February 2008 which I have already cited, to the effect that the instructions of the local education authority were that the claimant might only be represented (or assisted) by "a colleague or trade union representative" and thus not by a lawyer. I am not aware that the local education authority possess the legal power to dictate to school governors whether or not they are to allow legal representation in disciplinary proceedings before them. If they do not, the letter of 20 February looks very like an unlawful fetter on the governors' discretion. But no such argument has been advanced, and it would not be right to build any more on the point in determining this appeal. It may be alive in future cases.
  43. I propose to address the appeal by reference to two questions, and then consider the cross-appeal. I will introduce the two questions as follows.
  44. The appeal proceeds on the basis that if ECHR Article 6 applies in the case at all, it is what may be called Article 6 "civil"; Article 6 "criminal" only fall for consideration on the claimant's cross-appeal. Now, little if any light is thrown on the case by the bare assertion that Article 6 "civil" is engaged in the disciplinary process. It is necessary to be clear as to the precise nature of the claimant's civil right said to engage it. I apprehend that the governors and the Secretary of State would contend that the only civil right potentially in play was the claimant's contractual entitlement, so far as it went, to remain in his current employment at X School. If that is right, it is not I think suggested (and if it were, the suggestion would very likely be mistaken) that Article 6 required that the claimant be allowed the opportunity of legal representation in the disciplinary proceedings. We are therefore concerned with the question – the first of the two questions I shall consider – whether the disciplinary proceedings were a determinant of a different civil right, namely the claimant's civil right generally to practise his profession as a teaching assistant. That this is a civil right for the purposes of Article 6 is uncontroversial (it was established by Le Compte, Van Leuven and De Meyere v Belgium (1981) 4 EHRR 1), but it is clearly distinct from the claimant's entitlement to remain in his current employment.
  45. If the disciplinary proceedings were a determinant of the claimant's civil right to practise his profession, then the second question arises: did Article 6 in the circumstances require that the claimant be allowed the opportunity of legal representation in the disciplinary proceedings? In connection with this second question I should note that it has not been suggested by the claimant that there would be any entitlement to legal representation in the disciplinary proceedings other than by force of Article 6. I do not for my part think it necessary to investigate the possibility that the common law might itself, on the facts, confer such a right (though I do not mean to imply that in no case would the common law produce that result).
  46. THE FIRST QUESTION

    Were the disciplinary proceedings a determinant of the claimant's right to practise his profession for the purposes of ECHR Article 6?

  47. An affirmative answer to this question would involve a finding by the court that there existed, in some sense at least, a close nexus between the disciplinary process and the barred list procedures. Hence the importance of the deputy judge's conclusion, to which I have referred, that these two entities formed "part of one and the same proceedings for the purposes of Article 6". To my mind however that approach is somewhat too formalistic. Decisions of the Strasbourg court tend to be pragmatic and fact-sensitive; and the presence or absence of such a close nexus is a matter of factual evaluation. It will be more fruitful to see what the jurisprudence has to teach as to the nature of the close nexus required, and how we should view the scope of the disciplinary process for the purpose of Article 6 given the facts, including the list regimes, as I have described them.
  48. (1) Article 6: Case-Law

  49. Ringeisen v Austria (No 1) (1971) 1 EHRR 455 concerned various allegations of violation of Convention rights, including Article 6, in the context of what were undoubtedly criminal proceedings. At paragraph 94 the court stated:
  50. "[T]he French expression 'contestations sur (des) droits et obligations de caractère civil' covers all proceedings the result of which is decisive for private rights and obligations. The English text 'determination of ... civil rights and obligations', confirms this interpretation."

    The governors submit that the disciplinary proceedings cannot be said to be decisive of the question whether the claimant would be allowed in principle to practise his profession: that would depend on the outcome of the barred list procedures. Accordingly, applying Ringeisen, no Article 6 considerations touching his right to do so arise in relation to the disciplinary proceedings. Moreover there is a well established general rule that "Article 6 does not apply to proceedings relating to interim orders or other provisional measures adopted prior to the proceedings on the merits, as such measures cannot, as a general rule, be regarded as involving the determination of civil rights and obligations" (see Dogmoch v Germany (Application No 26315/03) 18 September 2006). But there are exceptions to the general rule, as Baroness Hale pointed out at paragraph 21 in Wright [2009] 1 AC 739, to which I will refer below.

  51. On this aspect of the appeal the decision of the Strasbourg court in the well-known case of Albert & Le Compte v Belgium (1983) 5 EHRR 533 is instructive. The applicants were Belgian nationals and medical practitioners. It is enough to outline the facts of Dr Le Compte's case. He was suspended by a body called the Provincial Council from practising medicine for a period of two years for an offence against professional discipline. He appealed to the Appeals Council, alleging violations of Article 6. In his absence the Appeals Council rejected his case and substituted for the two year suspension a direction to strike his name from the Ordre des Médecins. He lodged an objection which was dismissed, and thereafter appealed on a point of law to the Court of Cassation. That too was dismissed.
  52. A number of issues were raised before the Strasbourg court, which held that Article 6 was applicable and had been violated because the proceedings before the Appeals Council were not heard in public nor was the Council's judgment given in public. The court noted (paragraph 25) that:
  53. "Disciplinary proceedings do not ordinarily lead to a contestation (dispute) over 'civil rights and obligations'; however, the position may be otherwise in certain circumstances. Again, disciplinary proceedings as such cannot be characterised as 'criminal', although this may not hold good for certain specific cases…"

    However the court was clear (paragraph 27) that in this case there was a contestation. Ringeisen is referred to at paragraph 28, whose terms should be noted:

    "In addition, it must be shown that the 'contestation' (dispute) related to 'civil rights and obligations', in other words that the 'result of the proceedings' was 'decisive' for such a right (see the Ringeisen judgment of 16 July 1971, Series A no. 13, p. 39, para. 94)... [T]he Court would recall that a tenuous connection or remote consequences do not suffice for Article 6 para. 1: a right must be the object - or one of the objects - of the 'contestation'…"
  54. This suggests to my mind that the use of the term "decisive" in Ringeisen needs to be read carefully. In my view the sense is not that the proceedings – in the present case, that is of course the disciplinary process before the governors – must finally conclude all issues relating to the right in question (here, as in Albert & Le Compte, the right to practise one's profession). To summarise in short form what I shall say below as to the principle of the thing, I consider that the Ringeisen approach is likely to be met where the decision in the relevant proceedings has a substantial influence or effect on the later vindication or denial of the claimant's Convention right. It is true, of course, that the domestic litigation in Albert & Le Compte involved a progression from the Provincial Council to a first and then a second appeal, the whole of which might readily be categorised as a single set of proceedings. But as I read the case that did not drive the court's decision; they were concerned with the substance of the connection between one phase or aspect of the case and another.
  55. This approach is I think supported by the decision in Ruiz Mateos (1993) 16 EHRR 505. In that case there was an action, in Spain, for the restitution of company shares that had been expropriated by government. In the course of those proceedings an issue as to the constitutionality of a legislative act (Act 7/1983), which was relied on by the government in the expropriation proceedings, was referred to the Constitutional Court. The applicant complained (among other things) of the delays in his restitution case occasioned by the proceedings in the Constitutional Court. The Spanish government submitted that "the proceedings in the Constitutional Court should not be taken into account in ruling on the question of 'reasonable time'" (judgment, paragraph 32). The court at Strasbourg said:
  56. "35. According to the Court's well-established case-law, proceedings in a Constitutional Court are to be taken into account for calculating the relevant period where the result of such proceedings is capable of affecting the outcome of the dispute before the ordinary courts..."
  57. Lizzarraga v Spain (2007) 45 EHRR 1031 is also authority for the importance of a pragmatic connection between different aspects of a multiple process for the purpose of ascertaining whether Article 6 rights attach to any particular aspect: see paragraphs 46 – 47. In Kulkarni [2009] IRLR 829, a decision of this court, a doctor claimed that he was entitled to legal representation in disciplinary proceedings brought by his employer. The ratio of the case (see paragraph 61) was that the doctor's contract entitled him to representation. However Smith LJ (with whom Wilson LJ and the President of the Family Division agreed) addressed other points that had been raised. She said:
  58. "63. I will therefore make some brief observations on the other grounds. What I say is necessarily obiter...
    66... Mr Stafford and Miss Lee both submitted that Dr Kulkarni was facing ordinary disciplinary proceedings brought by his employer and the only effect, if the charge were found proved, would be that he would lose his job. Only proceedings before the General Medical Council can deprive a doctor of the right to practise. But, as Mr Hendy pointed out, the National Health Service is, to all intents and purposes, a single employer for the whole country. Indeed, for a trainee doctor, that is literally true as a doctor cannot complete his training in the private sector. If Dr Kulkarni is found guilty on this charge he will be unemployable as a doctor and will never complete his training. If he applies for any other position he will be obliged to declare the finding against him and the fact of his dismissal. Moreover, submitted Mr Hendy, it is highly likely that the system of 'alert letters' would be operated in this case if Dr Kulkarni were found guilty. An alert letter is a letter warning other NHS employers not to employ the doctor named, who is regarded as presenting an unacceptable risk to patients. The alert letter procedure is currently governed by the Healthcare Professionals Alert Notice Directions 2006.
    67. It seems to me that there is force in Mr Hendy's submission and, had it been necessary for me to make a decision on this issue, I would have held that Article 6 is engaged where an NHS doctor faces charges which are of such gravity that, in the event they are found proved, he will be effectively barred from employment in the NHS."
  59. In Wright [2009] 1 AC 739 the House of Lords was concerned with a different barred list system. Under Part VII of the Care Standards Act 2000 care workers employed in looking after adults who need special care might be placed on a list of people considered unsuitable to work with vulnerable adults: the "POVA list". In paragraph 4 of her opinion Baroness Hale stated:
  60. "The effect of listing is to deprive the care worker of her employment as a care worker and to prevent her from getting any other such employment. This might be acceptable if there had been at least an opportunity for a judicial hearing before being placed on the list. But the 2000 Act scheme only provides such an opportunity after a lengthy administrative process during most of which the care worker is provisionally on the list. The question for us is whether this aspect of the scheme is compatible with the care worker's rights under articles 6 and 8 of the European Convention on Human Rights."

    As this passage foreshadows, inherent in the POVA list system was a process for provisional inclusion of a care worker on the list after (I simplify) the case had been referred to the Secretary of State following the worker's dismissal for harmful misconduct, pending the determination of the reference; and there was no right to make representations before being provisionally listed. However if a worker was confirmed on the list, s/he had a right of appeal to the Care Standards Tribunal. Moreover a worker could not remain provisionally listed indefinitely without a right to a judicial hearing: there was a requirement that a worker who had been provisionally listed for nine months might apply to the Tribunal for leave to have the issue of her inclusion in the list determined by the Tribunal rather than the Secretary of State.

  61. In the result their Lordships' House (Lady Hale delivered the only reasoned opinion) agreed (paragraphs 25 and 28) with Dyson LJ in the Court of Appeal that
  62. "[25...] there were two reasons why the failure to afford the care worker an opportunity to make representations before provisional listing could not be cured by the possibility of being taken off the list under section 81(3), or by judicial review, or by the later access to the tribunal. The first was that denial of the right to make representations was 'not a mere formal or technical breach. It is a denial of one of the fundamental elements of the right to a fair determination of a person's civil rights, namely, the right to be heard'... Secondly, the detrimental effect of provisional listing was often irreversible and incurable..."
  63. In my view the effect of the learning (and I have already foreshadowed this) 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 ECHR 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.
  64. I apprehend that the approach I have outlined bears comparison with the reference in Ocalan v. Turkey (2005) 41 EHRR 985 at paragraph 131 to "a situation where the rights of defence might well be irretrievably prejudiced", noted by the deputy judge below at paragraph 56 of his judgment. Thus it may be useful here to consider whether the claimant's right to practise his profession, which is directly at stake in the barred list procedure, may be irretrievably prejudiced by the disciplinary proceedings. However Mr Bowers objected (skeleton argument, paragraph 65) to any attempt to deploy this formula as guidance in the present case, chiefly on the ground that Ocalan is to be distinguished because it was concerned with the rights of a criminal defendant arising under Article 6(3)(c). But this objection goes more to form than substance. If the ECHR's guarantees are to be practical and effective (and they are worth nothing otherwise), the fact that one proceeding may irretrievably prejudice a civil right directly at stake in another proceeding must at least raise the question whether the protection of Article 6 should attend the first proceeding.
  65. But that is not the end of Mr Bowers' case on the appropriate test for the engagement of Article 6 in the disciplinary proceedings. He argues for a general rule to the effect that if, at the end of whatever is the overall process in question, there is a fully Article 6 compliant court or tribunal to give fair consideration to the case, Article 6 is not engaged at the earlier stage(s). He says this is the effect of Bryan v UK (1995) 21 EHRR 342, Alconbury Developments Ltd [2003] 2 AC 295 and Runa Begum [2003] 2 AC 430. I need not cite these authorities directly: Lady Hale's summary in Wright will with respect well suffice:
  66. "23. The difficult question is how the requirements of article 6(1) apply in cases such as this. It is a well-known principle that decisions which determine civil rights and obligations may be made by the administrative authorities, provided that there is then access to an independent and impartial tribunal which exercises 'full jurisdiction': Bryan v United Kingdom (1995) 21 EHRR 342, applied domestically in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295http://www.bailii.org/cgi-bin/redirect.cgi?path=/uk/cases/UKHL/2001/23.html and Runa Begum v Tower Hamlets London Borough Council [2003] 2 AC 430http://www.bailii.org/cgi-bin/redirect.cgi?path=/uk/cases/UKHL/2003/5.html. What amounts to 'full jurisdiction' varies according to the nature of the decision being made. It does not always require access to a court or tribunal even for the determination of disputed issues of fact. Much depends upon the subject-matter of the decision and the quality of the initial decision-making process. If there is a 'classic exercise of administrative discretion', even though determinative of civil rights and obligations, and there are a number of safeguards to ensure that the procedure is in fact both fair and impartial, then judicial review may be adequate to supply the necessary access to a court, even if there is no jurisdiction to examine the factual merits of the case. The planning system is a classic example (Alconbury); so too, it has been held, is the allocation of 'suitable' housing to the homeless (Runa Begum); but allowing councillors to decide whether there was a good excuse for a late claim to housing benefit was not (Tsfayo v United Kingdom, paragraphs 48-49 [now reported at (2009) 48 EHRR 18])."
  67. In my judgment the reasoning in the Bryan and Alconbury line of cases, with its emphasis on the need for an Article 6 compliant court of second or final resort which enjoys "full jurisdiction", addresses a situation quite different from that arising here. It is concerned with a pattern of public decision-making where there is first an administrative or executive decision, typically by officials of a local authority, upon a question whether the individual concerned is entitled to a particular benefit such as public housing. Such a decision is plainly not Article 6 compliant because it is taken (in effect) by the provider of the benefit. But it is subject to judicial review which, no less plainly, is compliant; and the issue is only whether the judicial review jurisdiction is "full" enough to ensure that the administrative decision, if not properly made according to law, is corrected.
  68. In some cases there may be a question whether the judicial review court's power is wide enough to ensure a properly independent adjudication of factual issues. Thus in Tsfayo v UK (2009) 48 EHRR 18, referred to by Lady Hale in Wright, a local authority's Housing Benefit Review Board (HBRB) rejected the applicant's claim for back-payment of benefit essentially on the basis of their assessment of her credibility. It was accepted that the HBRB was not independent of the council for the purposes of Article 6. The court at Strasbourg said:
  69. "While the High Court had the power to quash the decision if it considered, among other things, that there was no evidence to support the HBRB's factual findings, or that its findings were plainly untenable, or that the HBRB had misunderstood or been ignorant of an established and relevant fact, it did not have jurisdiction to rehear the evidence or substitute its own views as to the applicant's credibility. Thus, in the applicant's case, there was never the possibility that the central issue would be determined by a tribunal that was independent of one of the parties to the dispute. It followed that there had been a violation of Article 6 § 1."
  70. So there may be cases in which the judicial review jurisdiction cannot reach far enough into the earlier, administrative decision to purge it of its want of independence. But however that may be, in every case where the Bryan/Alconbury approach is properly applied, the subjection of the first (administrative) decision to the second (judicial) decision is taken to be sufficient to ensure compliance with Article 6. In my judgment that state of affairs is to be contrasted with the position as between the disciplinary process and the barred list procedure in the present case. The latter in no sense controls the former or corrects its errors. Indeed the claimant's very case is that the former will drive the latter. In my judgment the Bryan/Alconbury line of reasoning is no guidance for the resolution of this appeal. On this part of the case I also note the decision of Toulson J as he then was in Knowsley [2006] EWHC Admin 26 at paragraphs 68 – 71, cited by the deputy judge at paragraph 72 of his judgment, and the observations of Smith LJ in Kulkarni at paragraphs 70 – 72.
  71. I propose, then, to apply the approach I have described. That being so it is unnecessary to decide, as the judge did, whether or not the disciplinary process and the barred list procedures formed "part of one and the same proceedings for the purposes of Article 6". That is (as I have indicated) altogether too formalistic a process. The true question is whether there is a sufficiently close nexus between these processes. Such a nexus is in my judgment established if the test of substantial influence or effect, as I have described it, is met.
  72. (2) Does Article 6 apply here?

  73. The disciplinary process has resulted (subject to the extant appeal) in the claimant's dismissal for abuse of trust, consisting in his sexual misconduct towards a 15 year old boy. That finding having been made the governors were obliged by Regulation 4 of the 2003 Regulations to report (and they did so) the circumstances of the claimant's dismissal to the Secretary of State, so that under the then current statutory regime he might determine whether to place the claimant on the register of persons prohibited from teaching, or other work directly or indirectly involving children, pursuant to s.142 of the 2002 Act. Following the statutory route which I have described the claimant's case will, as I have said, be dealt with under the procedures of the 2006 Act which I have described. Accordingly he will be subjected to what I have called (paragraph 17 above) the ISA's autonomous judgment – autonomous, that is, from the Secretary of State – on such questions as whether he has engaged, or may engage, in conduct which endangers a child or is likely to endanger a child (2006 Act, Schedule 3 Part I paragraphs 3(1)(a), 3(3), 4(1)(a), 4(2)). He will be entitled to make representations to the ISA, through a lawyer if desired. ISA will review the disciplinary decision(s) "to establish, on a balance of probability, the facts" (paragraph 5.1.1. of the Guidance: see also paragraph 5.10.3). If he is put on the barred list, he will have a right of appeal (with permission) to the Upper Tribunal, but only in relation to a mistake of law or fact, and not on the question whether it was appropriate to include him on the list (s.4(2) and (3) of the 2006 Act). There is of course no doubt but that the Upper Tribunal is fully Article 6 compliant.
  74. Mr Bowers was naturally at pains to emphasise the independent fact-finding role of the ISA and the right of appeal to the Upper Tribunal. He also relied on the claimant's right to take proceedings in the Employment Tribunal to challenge his dismissal. On this last point I may state at once that I agree with the deputy judge, who said:
  75. "82. First… this Court is the appropriate forum for consideration of what was and is required, procedurally, of the hearings before the Disciplinary Committee and the Appeal Committee and no useful purpose would be served now by declining relief and requiring the Claimant now to take the same argument before an employment tribunal. Moreover the relief available before an employment tribunal is likely to be less effective than that provided by this Court on an application for judicial review. The employment tribunal would not stay the appeal before the Appeal Committee, and, more importantly, would not have the power to put a halt to the continuation of the procedure leading to a s.142 direction.
    83. Secondly, it is argued… that the Claimant will have a full opportunity to overturn the Disciplinary Committee's findings of primary fact as to the alleged incidents with M by way of bringing a claim for unfair dismissal before an employment tribunal, and that in the course of that claim, his Article 6 rights to a fair hearing can be given full expression, including in particular having a right to an oral hearing with legal representation.
    84. I do not accept this argument. First… it is far from clear that, on the facts of the present case, the Claimant would have the opportunity to overturn the findings of primary fact. The jurisdiction of the employment tribunal in such a case would not comprise a full review of the merits of the underlying facts, but rather would address the issue of whether dismissal by the employer was within the range of reasonable responses (by the objective standards of the reasonable employer) to the given reason for dismissal: see s.98 (4) ERA 1996. Moreover, the 'range of reasonable responses' test applies as much to the reasonableness of the employer's investigation into the suspected misconduct as it does to the reasonableness of the decision to dismiss based on the substantive conduct reason: see Sainsburys v. Hitt [2003] IRLR 827 at §§30-34...
    85. Secondly, as observed above, the employment tribunal would not have the power, pending any such unfair dismissal claim, to suspend the procedure leading to the making of a s.142 direction or any such direction in fact made. Further, in the event that such a s.142 direction had in fact been made, it is doubtful whether the employment tribunal would be in a position to order reinstatement, where to do so might well involve both the Claimant and the Defendant in the commission of a criminal offence under s.35 CJCSA [sc. the Criminal Justice and Court Services Act 2000]."
  76. But Mr Bowers' principal argument is that on the facts the barred list procedures provide a sufficient autonomous facility for an adjudication of the claimant's civil right to practise his chosen profession. Accordingly that civil right should not be taken to have been at stake in the disciplinary process, which was only concerned with the different, and narrower, right to remain in his current employment at X School.
  77. I cannot accept this submission. It seems to me that there is every likelihood that the outcome of the disciplinary process in a case like this, where there has been a finding of abuse of trust by virtue of sexual misconduct, will have a profound influence on the decision-making procedures relating to the barred list. The governors' conclusion comprised both a finding of fact and a judgment as to where the facts lay on the scale of severity that in the particular case fell to be applied. While the ISA may bring an independent mind to bear, it is not I think suggested that it operates a procedure for oral hearings with cross-examination. The force of the disciplinary decision lies not only in the governors' view of the primary facts, but especially in their judgment as to how those facts should be viewed. Without a de novo hearing and the possibility of oral evidence before the ISA, at the very least the flavour and the emphasis of those conclusions will remain important and influential.
  78. Accordingly it is clear in my judgment that the outcome of the disciplinary proceedings, if (after the extant appeal) it remains unfavourable to the claimant, will have a substantial effect on the outcome of the barred list procedures which will then be applied to him. His right to practise his profession, which will be directly at stake in the barred list procedure, may (in the language of the Ocalan case) be irretrievably prejudiced by the disciplinary proceedings. I conclude that the answer to the first question which I posed is in the affirmative: the disciplinary proceedings are a determinant of the claimant's right to practise his profession. Article 6 is accordingly engaged on the footing that that is the civil right in issue.
  79. This result cannot, I think, be dislodged by the existence of the Upper Tribunal's appellate jurisdiction. Though it may entertain appeals on law or fact from the ISA, for the purposes of its jurisdiction "the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact" (s.4(3) of the 2006 Act). The issue most likely to be critical in a case like the present, namely whether on the proved or admitted facts the quality of the individual's act should be judged severe enough to put him on the barred list, appears to lie beyond the Upper Tribunal's jurisdiction.
  80. THE SECOND QUESTION

    Did Article 6 require that the claimant be allowed the opportunity of legal representation in the disciplinary proceedings?

  81. It is not entirely clear to me what was the claimant's case in the disciplinary proceedings on the facts. My understanding is that he accepted that some incident took place, perhaps of a sexual nature, which was not however instigated or wholly instigated by him. It may be there was no very great contest as to the primary facts. However that may be, as I have indicated the construction put on the primary facts – what I have called the flavour and the emphasis of the governors' conclusions – must have been of primary importance to their view of the severity of the case. Now, within the proper confines of the evidence, a professional advocate might properly make a great deal of difference to the flavour and the emphasis; and if there were any contest as to the primary facts, to that also. And if an advocate might have effected such a difference before the governors, then the influence of their conclusions on the ISA's decision-making might also have been different.
  82. It is I think clear that Article 6 "civil" does not necessarily entail a right of representation, but may do so. It is well established here and in Strasbourg that the level of procedural protection which the Article guarantees depends on what is at stake. Thus in Ex p. Fleurose [2002] IRLR 297 Schiemann LJ giving the judgment of the Court of Appeal said:
  83. "14. It is common ground between the parties, and we are content to accept, that the Disciplinary Tribunal was involved in the determination of M Fleurose's civil rights for the purposes of Article 6. Therefore clearly the proceedings had to be fair. We accept for present purposes, as did the judge, that it was for the SFA to prove their case, that the SFA had to inform M Fleurose in good time of the nature of the charges, that he must have adequate time and facilities to prepare his defence, a proper opportunity to give and call evidence and question those witnesses called against him. What fairness requires will vary from case to case and manifestly the gravity and complexity of the charges and of the defence will impact on what fairness requires. In this context we have born in mind, as did the judge, the points made by the Human Rights Court in Paragraphs 30 and 39 of Albert & Le Compte v Belgium, and in paragraphs 32 and 33 of Dombo Beheer BV v The Netherlands [1993] 18 EHRR 213."

    Paragraph 39 of Albert & Le Compte, referred to by Schiemann LJ, is instructive:

    "39. For its part, the Court considered it unnecessary to give a ruling on the applicability of paragraph 1 of Article 6 (art. 6-1) under the criminal head, but decided to examine in the context of the interpretation of the notion of 'fair trial' in paragraph 1 (art. 6-1) the substance of the complaints made by the applicant under paragraphs 2 and 3 (art. 6-2, art. 6-3) (see paragraph 30 above). In the opinion of the Court, the principles set out in paragraph 2 (art. 6-2) and in the provisions of paragraph 3 invoked by Dr. Albert (that is to say, only sub-paragraphs (a), (b) and (d)) (art. 6-3-a, art. 6-3-b, art. 6-3-d) are applicable, mutatis mutandis, to disciplinary proceedings subject to paragraph 1 (art. 6-1) in the same way as in the case of a person charged with a criminal offence."
  84. In International Transport Roth GmbH, after citing Albert & Le Compte, Jonathan Parker LJ said this at paragraph 148:
  85. "148. These passages, as I read them, emphasise the importance of giving Article 6 a flexible interpretation, and of not using the process of construction to place concepts of essential fairness in a verbal straitjacket. In my judgment, for the purposes of Article 6 there is no such clear-cut dividing line as Mr Barling submits, but neither can the distinction between civil and criminal proceedings so clearly made in the language of the Article be ignored for all purposes. As I see it, there must be something in the nature of a sliding scale, at the bottom of which are civil wrongs of a relatively trivial nature, and at the top of which are serious crimes meriting substantial punishment. Broadly speaking, the more serious the allegation or charge, the more astute should the courts be to ensure that the trial process is a fair one. This is consistent with the court's approach to the standard of proof in civil proceedings: the more serious the allegation, the more cogent the evidence which will be needed to prove it to the requisite standard. In the case of disciplinary proceedings, as in Albert & Le Compte, one can readily see why the distinction between civil and criminal proceedings was not considered to be helpful."

    In Kulkarni, immediately after the passage I have already cited, Smith LJ said this:

    "68. The next question is whether, in the context of civil proceedings, Article 6 implies a right to legal representation. In my view, in circumstances of this kind, it should imply such a right because the doctor is facing what is in effect a criminal charge, although it is being dealt with by disciplinary proceedings. The issues are virtually the same and, although the consequences of a finding of guilt cannot be the deprivation of liberty, they can be very serious."

    Although Smith LJ expressly justified the right to representation by reference to the accusation's being in the nature of a criminal charge, rather than by reason of the possible extinction of the doctor's right to practise his profession, it is clear from the context both that she was considering the scope of Article 6 "civil" (as opposed to "criminal") and that the possibility of the doctor's "effectively [being] barred from employment in the NHS" was uppermost in her mind (see paragraphs 66 and 67, cited above at paragraph 33).

  86. Given my view of the effect an advocate might have in the disciplinary proceedings, and in light of the authorities, I would hold in agreement with the deputy judge below that Article 6 "civil" required that the claimant should be afforded the opportunity to arrange for legal representation in those proceedings should he so choose.
  87. I would therefore dismiss the appeal. If my Lords agree, counsel will no doubt assist us as to the appropriate orders to be made.
  88. THE CROSS-APPEAL

  89. If my Lords agree with this conclusion the cross-appeal, which asserts that Article 6 "criminal" should apply to the case, becomes moot. The claimant does not, as I understand it, press any distinct aspect of Article 6 of which he could only claim the benefit if the case fell on the criminal side of the line. In particular the right of cross-examination, guaranteed by Article 6(3)(d) in a criminal case, is not (as I understood Mr Drabble QC for the claimant) independently insisted upon, though it figured in the proceedings below. That said I find it difficult to see how a rational disciplinary tribunal could refuse to allow a professional advocate, instructed for the accused party, to ask any questions at all of the complainant if the latter gave evidence before them.
  90. The learned deputy judge cited a great deal of authority in relation to the cross-appeal, starting with the decision of the Strasbourg court in Engel v Netherlands (No 1) (1976) 1 EHRR 647, paragraph 82, and setting out paragraph 23 of Lord Bingham's opinion in MB [2008] 1 AC 440, which concerned non-derogating control orders made under s.2(1) of the Prevention of Terrorism Act 2005. With respect I will not replicate this learning. The question whether the claimant should be or have been entitled to arrange for legal representation at the disciplinary hearings cannot in my opinion depend on the proceedings' classification as civil or criminal. The jurisprudence is increasingly to the effect that what matters is the gravity of the issue in the case, rather than the case's classification as civil or criminal. That is the primary driver of the reach of the rights which Article 6 confers.
  91. So much is clearly suggested in the passage of Jonathan Parker LJ's judgment in International Transport Roth, which I have already set out. I will just cite two further passages from the learning which support the same position. First, Simon Brown LJ as he then was said this in the Roth case:
  92. "33. There is a wealth of Strasbourg case-law and a growing body of domestic authority concerning what, for Article 6 purposes, is criminal and what civil - or more particularly what under the autonomous Strasbourg approach must be regarded as criminal despite being categorised as civil under domestic law. Further extensive case-law then establishes that the various procedural safeguards expressly or impliedly provided by Article 6 are not ultimately dependent upon such a classification: the protections are sometimes found unnecessary even though the proceedings are criminal; sometimes essential even though the proceedings are civil. Why, therefore, attempt the classification exercise in the first place? Simpler surely to address the question as to whether the protections are indeed necessary to achieve a fair trial of whatever may be the issue... In short, the classification of proceedings between criminal and civil is secondary to the more directly relevant question of just what protections are required for a fair trial. I shall, however, address the issue, not least because it covers much of the same ground as must in any event be explored in deciding what protections are required here to achieve a fair trial."
  93. Secondly, in Secretary of State v MB [2008] 1 AC 440, which was concerned with "non-derogating" control orders, Lord Bingham said this:
  94. "17... [T]he law on this subject [sc. the distinction between the civil and criminal limbs of Article 6] is not altogether straightforward, since the Strasbourg jurisprudence has recognised the difficulty in some contexts of distinguishing between disciplinary and criminal proceedings (Engel v The Netherlands (No 1)... para 82; Campbell and Fell v United Kingdom (1984) 7 EHRR 165, paras 70-71) and even between civil and criminal proceedings (Albert and Le Compte v Belgium... para 30). Control order proceedings, potentially applicable to all, lack the internal quality characteristic of disciplinary proceedings. But in this country also judges have regarded the classification of proceedings as criminal or civil as less important than the question of what protections are required for a fair trial (International Transport Roth GmbH v Secretary of State for the Home Department ... paras 33, 148) and have held that the gravity and complexity of the charges and of the defence will impact on what fairness requires (R v Securities and Futures Authority Ltd, Ex p Fleurose... para 14)."
  95. Given my conclusions on the two questions I have posed for the resolution of the governors' appeal, I think it unnecessary to make any substantive order on the cross-appeal. We will no doubt receive submissions as to the appropriate order for costs.
  96. OTHER MATTERS

  97. The governors had certain further submissions under the headings "enhancement" and "prematurity" which are either subsumed in my conclusions on the appeal or in light of those conclusions do not arise.
  98. Lord Justice Wilson:

  99. I agree.
  100. Lord Justice Goldring:

  101. I also agree.


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