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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> G, R (on the application of) v X School & Anor  EWHC 504 (Admin) (18 March 2009)
Cite as:  BLGR 799,  PTSR 1291,  EWHC 504 (Admin),  ELR 206,  IRLR 434
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
Sitting as a Deputy Judge of the High Court
| THE QUEEN
ON THE APPLICATION OF "G"
|- and -
|THE GOVERNORS OF "X" SCHOOL
|- and -
|"Y" CITY COUNCIL
(instructed by Messrs Keith Levin & Co) for the Claimant
John Bowers QC and Tim Kenward
(instructed by Acting City Solicitor, Y City Council) for the Defendant and Interested Party
Hearing date: 12 December 2008
Crown Copyright ©
Mr Stephen Morris QC :
The allegations against the Claimant
The School's investigation
"If the Governors find that allegations against you have been proven, the school is obliged to inform the Secretary of State that they have concluded that you are unsuitable for work with children. Therefore any future job applications you make that involve children may be affected."
The Claimant responded, by letter dated 18 December 2007, that he had been advised not to become involved in the School's disciplinary proceedings until the police investigation was completed.
The first decision refusing legal representation
"In view of the contents of your letter of 12th December 2007 and the potential repercussions of an adverse finding the potential impact on our client is such that it would be a breach of his human rights not to be represented. We appreciate that in ordinary cases the employee could have the matter dealt without legal representation but this is an extraordinary case that could result in a lifetime disadvantage for our client".
"We have been instructed by the [Local] Authority that "An employee may be represented by a colleague or a trade union representative" and that any other person will not be permitted to enter the hearing taking place on the 21st February 2008"
On the next day, 21 February 2008, the Claimant's solicitors responded making a series of written points in defence of the allegations and complaining about the School's failure to "allow him a basic right of representation", in circumstances where "the hearing affects a lot more than future employment". Prior to the hearing, the Claimant also provided a "statement" disputing the allegations and addressing the incident in the church, the text messages and his subsequent conversation with the School's child protection officer.
The hearing before the Disciplinary Committee
The dismissal decision of the Disciplinary Committee
"The panel noted your objections that you had been informed that you could not be represented by your solicitor ... . However under the schools disciplinary policy and according to the ACAS code of practise this would not have been appropriate. The school policy clearly states that you are only entitled to bring a friend who may be a trade union representative. The ACAS code of practise and the City Council's policy are clear that you can be accompanied by a fellow worker or an official of a trade union."
The letter continued:
"The purpose of the hearing was to consider an allegation that you inappropriately touched a child under the supervision of the school and instigated an inappropriate relationship with him"
After reciting the evidence presented at, and noting the Claimant's limited participation in, the hearing, the letter concluded as follows:
"... the panel gave full and careful consideration to the evidence that was made available to them. The Panel are satisfied that inappropriate contact was made with the child whilst the two of you were alone in the church. Further, that you sent a text message to the child inviting him to meet with you alone, during your own time and in doing so had instigated an inappropriate relationship. ... In conclusion, the Panel believe that, on the balance of probabilities, it was your intention to cultivate a sexual relationship with the child.
The Panel are satisfied that these actions constitute an abuse of trust implicit in your position at the school and as such constitute Gross Misconduct. As a result, you are summarily dismissed in accordance with the School's disciplinary procedure ... .
The Panel are also concerned that you have behaved in a way which indicates you may be unsuitable for work with children and as such will be reporting your dismissal to the appropriate agencies." (emphasis added)
The second decision refusing legal representation
Notification to the Secretary of State
The application for judicial review
The Education Act 2002 and regulations made thereunder
'142 Prohibition from teaching, etc
(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.
'Supply of information following dismissal, resignation, etc
4. (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... .
Representations, evidence and information
6. (1))Subject to paragraph (3) and save where regulation 8 applies, where the Secretary of State is considering exercising his powers under section 142 of the 2002 Act he shall afford the person concerned the opportunity to make representations to him and, where appropriate submit medical evidence or other evidence to him within 2 months of the date on which notice of that opportunity is served on the person concerned or, where he is satisfied that the person had good reason not to make such representations or submit such evidence within that period, such further period as the Secretary of State considers reasonable ..."
"144 Directions under section 142: appeal
(1) A person in respect of whom a direction has been given under section 142 may appeal to the First-tier Tribunal
(a) against a decision to give the direction
(b) against a decision not to vary or revoke the direction
"12. (1) Subject to paragraphs (2) and (3) an appeal to the First-tier Tribunal may be brought by a person in respect of whom a direction has been given under section 142 of the 2002 Act
(a)save where regulation 8 applies, against a direction given to him by the Secretary of State under section 142 of the 2002 Act; and
(b)save where regulation 8(1)(b) or (c) applies, against a refusal by the Secretary of State to revoke or vary a direction given to him under section 142 of the 2002 Act following consideration of the information or evidence referred to in regulation 9.
(2)No appeal may be brought on the ground of information or evidence referred to in regulation 9(2) unless that information or evidence has first been brought to the attention of the Secretary of State under regulation 9.
(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.
13. (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 First-tier 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."
" Right to a Fair Trial
'(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 ...
(3) Everyone charged with a criminal offence has the following minimum rights:
(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;
The Employment Relations Act 1999
The Sexual Offences Act 2003
"16 Abuse of position of trust: sexual activity with a child
(1)A person aged 18 or over (A) commits an offence if
(a)he intentionally touches another person (B),
(b)the touching is sexual, and
(c)A is in a position of trust in relation to B,
(i)B is under 18 and A does not reasonably believe that B is 18 or over, or
(ii) B is under 13 ...
(2) This subsection applies where A
(a)is in a position of trust in relation to B by virtue of circumstances within section 21(2), (3), (4) or 5 ..."
Secondly, section 17 SOA provides for a further offence of abuse of position of trust; in this case by "causing or inciting a child to engage in sexual activity". The elements relating to "age" and "position of trust" mirror those in s.16(1)(c) and (e) and (2)(a).
The Parties' contentions and the Issues
(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.
(1) The disciplinary proceedings, including the procedure leading up to the making of a s.142 direction, are "civil" for the purposes of Article 6(1) and thus Article 6(3) does not apply at all.
(2) In any event, the procedure is a two-stage process: the disciplinary proceedings leading up to dismissal and the subsequent procedure leading to the making of a s.142 direction are quite distinct, leading to distinct outcomes; and the first, disciplinary, stage is clearly "civil" for the purposes of Article 6(1). In the context of the issue of whether the Claimant was entitled to legal representation at the hearings of the Disciplinary Committee and the Appeal Committee, the consequences of the making of a s.142 direction do not fall to be considered; those hearings are concerned only with dismissal.
(3) On the Claimant's alternative "civil" case, no protection by way of legal representation was and is required; in particular, because the procedure is a two-stage process, the severity of the consequences of a s.142 direction cannot be taken into account in considering whether legal representation is necessary at the first stage alone. The statutory rule, under s.10 ERA, of entitlement only to trade union representation or work colleague applies.
(4) The application for judicial review is, in any event, premature and there are other avenues available to protect the Claimant and in which his Article 6 rights can be vindicated, in particular before the Secretary of State, the Tribunal and an employment tribunal upon a claim for unfair dismissal. (The Defendant no longer relies upon delay as a further ground for refusing relief).
Breach of Article 6(3)
(1) Are the disciplinary procedure conducted by the Defendant and the procedure leading to the making of a s.142 direction by the Secretary of State to be regarded as one and the same proceedings for the purposes of Article 6(1)?
(2) If the answer to (1) is yes, does the disciplinary procedure conducted by the Defendant amount to proceedings in respect of a "criminal charge", such that the provisions of Article 6(3)(c) and (d) applied to that procedure?
Breach of Article 6(1)
(3) If the answer to (2) is no, and the disciplinary procedure is "civil" for the purposes of Article 6(1), was, and is, the Claimant nevertheless entitled to legal representation at the hearings before the Disciplinary Committee and the Appeal Committee, as being procedural protection commensurate with the gravity of the allegations and the potential consequences of that procedure? I consider here the Defendant's contentions that the Claimant can adequately put his case to the Secretary of State or to the Tribunal.
(4) In any event, does an employment tribunal provide the Claimant with an alternative remedy, such that judicial review should be refused substantively or as a matter of discretion?
Case law on Article 6
"82. ... It is first necessary to know whether the provision(s) defining the offence belong, according to the legal system of the respondent state, to criminal law, disciplinary law or both concurrently. This however provides no more than the starting point. The indications so afforded have only a formal and relative value and must be examined in the light of the common denominator of the respective legislation of the various Contracting States. The very nature of the offence is a factor of greater import ... However supervision by the court does not stop there. Such supervision would generally prove to be illusory if it did not also take into consideration the degree of severity of the penalty that the person concerned risks incurring"
The case law of the English courts since 2000
24. Miss Booth relies on the severe consequences which may follow for the defendant on the making of a sex offender order: the duty to notify under the 1997 Act on pain of criminal penalty; the restriction on a defendant's freedom of movement and activity; and the possible penalty of up to five years' imprisonment on proof that the order has been broken. These are all important and legitimate considerations, but they do not persuade me that, as a matter of English domestic law, this is to be regarded as a criminal proceeding. Part I of the 1998 Act is concerned with the prevention of crime and disorder, not the trial and punishment of those convicted. Furthermore, the problem to which s.2 is directed is not the detection, apprehension, trial and punishment of those who have committed crimes, but the restraint of those who have a proven record of sex offending and whose conduct founds a reasonable belief that a measure of restraint is necessary to protect members of the public against the risk of serious harm caused by further sex offending.
25. There is no room for doubt about the mischief against which this legislation is directed, which is the risk of re-offending by sex offenders who have offended in the past and have shown a continuing propensity to offend. . The rationale of s.2 was, by means of an injunctive order, to seek to avoid the contingency of any further suffering by any further victim. It would also of course be to the advantage of a defendant if he were to be saved from further offending. As in the case of a civil injunction, a breach of the court's order may attract a sanction. But, also as in the case of a civil injunction, the order, although restraining the defendant from doing that which is prohibited, imposes no penalty or disability upon him. I am accordingly satisfied that, as a matter of English domestic law, the application is a civil proceeding, as Parliament undoubtedly intended it to be."
Lord Bingham then addressed the position under Article 6 ECHR:
"28. Miss Booth submitted, rightly, that the European Court of Human Rights does not regard itself as bound by the classification of proceedings in domestic law. In deciding whether there is a criminal charge for purposes of art 6 of the Convention the court has regard to the classification of proceedings in domestic law, but also to the nature of the offence itself and the severity of the penalty which may be imposed: see Lester and Pannick Human Rights Law and Practice (1999) para 4.6.13. Here the proceedings are in my judgment classified as civil in domestic law. No offence is charged and the making of an order does not depend on proof of any offence. No penalty may be imposed. I am aware of no case in which the European Court has held a proceeding to be criminal even though an adverse outcome for the defendant cannot result in any penalty."
At §§30 and 31, Lord Bingham CJ went on to conclude that, despite the fact that the proceedings were civil, the magistrates should apply a civil standard of proof which for all practical purposes would be indistinguishable from the criminal standard.
"13. We accept of course that to be debarred from gaining one's livelihood in an activity in which one has done so for much of one's life is a serious matter. However, applying the principles recently set out in Han & Yau quoted above we are not persuaded by any of these submissions that the proceedings instituted by the SFA against M Fleurose are properly to be regarded as involving a criminal charge or offence."
The Court however went on to make the following observations about the requirements of procedural fairness applicable in "civil proceedings"
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  18 EHRR 213
"35. Although I have said that the categorisation of the proceedings in which the order is made as "criminal" is of itself very largely unhelpful in relation to the "penalty" issue under article 7, there is jurisprudence concerning the classification of proceedings, as opposed to orders made in proceedings, in which as it seems to me the reasoning offers assistance on the article 7 question... .
[In McCann in the Court of Appeal] Lord Phillips of Worth Matravers MR said, at pp 1094-1095:
"38. Mr Fulford submitted that the prohibitions imposed by an anti-social behaviour order can have severe consequences to a defendant. In the present case the order prohibits the applicants from going into an area of Manchester where they have family and friends. Mr Fulford submitted that such a restriction of liberty operates as a penalty.
"39. Many injunctions in civil proceedings operate severely upon those against whom they are ordered. In matrimonial proceedings a husband may be ordered to leave his home and not to have contact with his children. Such an order may be made as a consequence of violence which amounted to criminal conduct. But such an order is imposed not for the purpose of punishment but for protection of the family. This demonstrates that, when considering whether an order imposes a penalty or punishment, it is necessary to look beyond its consequence and to consider its purpose.
"40. An order which is, in terms, restricted to the prohibition necessary to protect persons from anti-social behaviour is manifestly an order designed to protect in the future not to punish for past misconduct."
36. In my view this reasoning serves to emphasise the difference between a punitive order and one whose purpose is to offer future protection to the public or a section of it
37. As I have acknowledged, many court orders may serve both a punitive and a preventive or protective purpose. The use of imprisonment in criminal cases is itself a prime example; and a community sentence is no less a penalty by reason of the fact that its principal focus may be rehabilitative. In truth, a just and humane system for the punishment of criminals is bound to have all these different ends in view. It follows that a punitive or retributive purpose no more marks an order as a penalty than a protective order serves to take it out of such a category. That being so the court is, as it seems to me, likely to be assisted by considering whether, in the statutory scheme before it, the predominant purpose of the measure under scrutiny is punitive or for the protection of the public at large or a section of it.
42. In my judgment it is plain that a football banning order, whether made under section 14A or section 14B , is not a penalty within the autonomous sense of the term for the purposes of article 7.
(1) In my judgment it is no part at all of the purpose of any such order to inflict punishment. The fact that it imposes a detriment on its recipient no more demonstrates that it possesses a punitive element than in the case of a Mareva injunction. The purpose is to protect the public, here and abroad, from the evil of football violence and the threat of it.
(4) As for the orders' severity, I would accept that the restrictions they impose are more than trivial; and under the 1989 Act they are potentially more burdensome than previously. How harshly they might bear on any individual must, I would have thought, be largely subjective. However that may be, it is clear from the Strasbourg jurisprudence, not least Welch v United Kingdom 20 EHRR 247 itself, that severity alone cannot be decisive; and in my judgment the burdens or detriments involved cannot conceivably confer the status of penalty on banning orders if otherwise they do not possess it, which in my judgment plainly they do not.
87 An application under s. 14B is, categorically, not a criminal charge, and no amount of special pleading will make it so. Mr Pannick referred to Raimondo (1994) 18 EHRR 237. In that case the applicant was placed under special police supervision in the course of certain criminal proceedings against him. At paragraph 43 the Court said:
" special supervision is not comparable to a criminal sanction because it is designed to prevent the commission of offences. It follows that proceedings concerning it did not involve 'the determination of a criminal charge'."
In giving the judgment of the Court of Appeal, Lord Phillips MR (at §89) specifically approved of Laws LJ's above analysis. At §90, Lord Phillips went on to conclude that, whilst technically the civil standard of proof applied, that standard is flexible and must reflect the consequences that follow from the banning order. In that case, in practice the magistrates should apply an exacting standard which would be hard to distinguish from the criminal standard.
"30 In Engel v The Netherlands (No 1) (1976) 1 EHRR 647, 678-679 , para 82, the European Court established three criteria for determining whether proceedings are "criminal" within the meaning of the Convention, namely (a) the domestic classification, (b) the nature of the offence, and (c) the severity of the potential penalty which the defendant risks incurring. The character and attributes of the proceedings for an anti-social behaviour order have been outlined. Domestically, they are properly classified as civil. That is, however, only a starting point. Turning to factor (b), the position is that the order under the first part of section 1 does not constitute a finding that an offence has been committed: contrast the community charge decision in Benham v United Kingdom (1996) 22 EHRR 293 It is right, however, to observe that the third factor is the most important. Here the position is that the order itself involves no penalty. The established criteria suggest that the proceedings were not in respect of a criminal charge.
33 The conclusion I have reached is reinforced by a cogently reasoned judgment on the interpretation of article 6 by the Lord President (Lord Rodger of Earlsferry) in S v Miller 2001 SC 977 . Section 52(2) of the Children (Scotland) Act 1995 provides that a child may have to be subjected to compulsory measures of supervision when he "has committed an offence". The question arose whether in such proceedings article 6 is applicable. The Lord President observed, at pp 989-990:
"23 ... at the stage when S was arrested and charged by the police on 31 October, he was indeed 'charged with a criminal offence' in terms of article 6, since he was liable to be brought before a criminal court in proceedings which could have resulted in the imposition of a penalty. He remained 'charged with a criminal offence' in terms of article 6 until the procurator fiscal decided the following dayin the language of section 43(5) of the Criminal Procedure Act 'not to proceed with the charge'. At that point the criminal proceedings came to an end and the reporter initiated the procedures under the 1995 Act by arranging a hearing in terms of section 63(1). In my view, once the procurator fiscal has decided not to proceed with the charge against a child and so there is no longer any possibility of proceedings resulting in a penalty, any subsequent proceedings under the 1995 Act are not criminal for the purposes of article 6. Although the reporter does indeed intend to show that the child concerned committed an offence, this is not for the purpose of punishing him but in order to establish a basis for taking appropriate measures for his welfare. That being so, the child who is notified of grounds for referral setting out the offence in question is not thereby 'charged with a criminal offence' in terms of article 6. "
I am in complete agreement with this reasoning as correctly reflecting the purpose of article 6. And it applies a fortiori to proceedings under section 1. After all, section 1(1) does not require proof of a criminal offence. (emphasis added)
"64. The underlying idea is that proceedings do not lie within the criminal sphere for the purposes of article 6 unless they are capable of resulting in the imposition of a penalty by way of punishment. In B v Chief Constable of Avon and Somerset Constabulary  1 WLR 340, 353, para 28 Lord Bingham of Cornhill CJ said that he was aware of no case in which the European Court has held a proceeding to be criminal even though an adverse outcome for the defendant cannot result in any penalty. I agree. Although there are other aspects of the procedure which suggest that in proceedings for the imposition of an anti-social behaviour order the person is not "charged with a criminal offence", the critical question as I see it is whether the making of such an order amounts to the imposition of a penalty. But it is first necessary to consider whether either of the first two criteria are satisfied.
The first criterion: classification in domestic law
65. A finding that the proceedings were classified as criminal in domestic law is likely to be conclusive. But a finding that they are civil is of relative weight and serves only as a starting point: Benham v United Kingdom 22 EHRR 293, 323 , para 56. In Lauko v Slovakia (1998) 33 EHRR 994, 1010-1011, para 57 the court observed that the criteria are alternative and not cumulative: see also Garyfallou AEBE v Greece (1997) 28 EHRR 344 . As it was put in Φztόrk v Germany 6 EHRR 409, 424, para 54, one criterion cannot be applied so as to divest an offence of a criminal character if that has been established under another criterion. But it was recognised in Lauko v Slovakia, at p 1011, para 57, that a cumulative approach may be adopted if the separate analysis of each of them does not lead to a clear conclusion as to the existence of a "criminal charge". For the reasons already given, I consider that the position under domestic law is that the proceedings are classified as civil proceedings and not criminal.
The second criterion: the nature of the offence.
72. Furthermore the decision whether or not to make the order does not depend solely on proof of the defendant's conduct. The application may only be made if it appears to the local council or the chief constable that an order is necessary to protect persons in the area, and consultation between them is required before the application is made. Thus the proceedings are identified from the outset as preventive in character rather than punitive or disciplinary. This is a strong indication that they are not proceedings for the determination of a criminal charge against the defendant. In Lauko v Slovakia 33 EHRR 994, 1011, para 58 the court said that the fine imposed in that case was intended as a punishment to deter re-offending and that it had "a punitive character, which is the customary distinguishing feature of criminal penalties". In Guzzardi v Italy(1980) 3 EHRR 333, 369-370 , para 108 the court said that proceedings under which the applicant, as a suspected Mafioso, had been placed under special supervision with an obligation of compulsory residence within a restricted area did not involve the determination of a criminal charge against him within the meaning of article 6 : see also Raimondo v Italy 18 EHRR 237 In M v Italy (1991) 70 DR 59, the commission held that article 6(2) did not apply to confiscation of property belonging to a person suspected of being a member of a mafia-type organisation. In neither of these cases was the imposition of the order regarded as being punitive.
The third criterion: is an anti-social behaviour order a penalty?
75 This question looks to the nature of the penalty. But here again there is a preliminary question that has to be examined. Is an anti-social behaviour order a penalty at all? The essential characteristics of an anti-social behaviour order are that the defendant is prohibited from doing something. The purpose of the prohibition is to protect people in the area to which the order relates.
76 An anti-social behaviour order may well restrict the freedom of the defendant to do what he wants and to go where he pleases. But these restrictions are imposed for preventive reasons, not as punishment. The test that has to be applied under section 1(6) is confined to what is necessary for the purpose of protecting persons from further anti-social acts by the defendant. The court is not being required, nor indeed is it permitted, to consider what an appropriate sanction would be for his past conduct. Moreover, while the court may restrict the defendant's liberty where this is shown to be necessary to protect persons in the area from further anti-social acts by him, it may not deprive him of it nor may it impose a fine on him."
Lord Hutton (at §102) also relied expressly upon the passage from S v. Miller cited by Lord Steyn at §33.
"15. It is contended on [AF's] behalf that control order proceedings fall within the criminal limb of art 6 or, alternatively, that if they fall within the civil limb only they should nonetheless, because of the seriousness of what is potentially involved, attract the protection appropriate to criminal proceedings.
16. This is not a contention which can be lightly dismissed, for two reasons. First, it may very well be (although the point was not argued) that proceedings for a derogating control order are criminal in character. This was the unequivocal view of the Joint Committee on Human Rights (Twelfth Report of Session 2005-2006, HL Paper 122, HC 915), para 49: "In our view it is clear that the criminal limb of article 6(1) ECHR applies to proceedings for a derogating control order. In such a case the full right to due process in article 6(1) applies." But, as the Council of Europe Commissioner for Human Rights pointed out in his Report of 8 June 2005, para 20, and the Joint Committee (para 52 of its report) agreed, the obligations imposed by a derogating control order differ from those in a non-derogating control order only in their degree of severity, and:
"It would be curious if at least immediately below this most extreme sanction, there were not other limitations or restrictions of sufficient severity to warrant the classification of the obligations as tantamount to a criminal penalty."
17. Secondly, the law on this subject 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) (1976) 1 EHRR 647, 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 (1983) 5 EHRR 533, 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  EWCA Civ 158,  QB 728, paras 33, 148,  3 WLR 344) 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 parte Fleurose  EWCA Civ 2015,  IRLR 297, para 14).
18. It was said in Customs and Excise Commissioners v City of London Magistrates' Court  4 All ER 763,  1 WLR 2020, 2025,  2 Cr App Rep 348 that in this country:
"criminal proceedings involve a formal accusation made on behalf of the state or by a private prosecutor that a Defendant has committed a breach of the criminal law, and [that] the state or the private prosecutor has instituted proceedings which may culminate in the conviction and condemnation of the Defendant."
Thus if or when the relevant authority decides not to prosecute and there is no possibility of conviction or penalty, there are then no criminal proceedings: S v Miller 2001 SC 977, paras 20, 23; R (R) v Durham Constabulary  UKHL 21,  2 All ER 369,  1 WLR 1184, para 14. For present purposes, however, guidance on the distinction between determination of a civil right and obligation and determination of a criminal charge is to be found in the Strasbourg jurisprudence, and in particular in the leading case of Engel, above, para 82.
19. The starting point is to ascertain how the proceedings in question are classified in domestic law. It is the substance which matters. More significant in most cases are the second and third Engel criteria, the nature of the offence and the degree of severity of the penalty that the person concerned risks incurring. Here we reach the heart of the argument.
21. On any common sense view involvement in terrorism-related activity is likely to be criminal. But the Secretary of State is entitled to respond, as he does, that the controlled person is not charged with such conduct. This is not a point which turns on procedural requirements, which will vary from state to state. It is a point which turns on the distinction between suspecting A of doing X ("I suspect but I cannot prove": Shaaban Bin Hussien v Chong Fook Kam  AC 942, 948,  3 All ER 1626,  2 WLR 441) and asserting that A has done X. There is an obvious contrast between the reasonable suspicion required of the Secretary of State under ss 2(1)(a) and 3(10) of the Act and the satisfaction required of the court under s 4(7)(a).
22. The Secretary of State further submits that it is an essential feature of a criminal process that it exposes a person to the risk of conviction and punishment. Here, he says, controlled persons are exposed to no such risk. The counter-argument is that the proceedings expose the controlled person to adverse consequences of a very serious kind, more serious than the great majority of criminal penalties. Reliance is placed by analogy on observations of the Joint Committee on Human Rights ("Legislative Scrutiny: Fifth Progress Report", HL Paper 91, HC 490, 25 April 2007, para 1.13), made with reference to serious crime prevention orders.
23. It cannot be doubted that the consequences of a control order can be, in the words of one respected commentator, "devastating for individuals and their families" (Justice Chaskalson, "The Widening Gyre: Counter-terrorism, Human Rights and the Rule of Law," Seventh Sir David Williams Lecture, p 15). But the tendency of the domestic courts (not without criticism: see Ashworth, "Social Control and 'Anti-Social Behaviour': The Subversion of Human Rights?" (2004) 120 LQR 263) has been to distinguish between measures which are preventative in purpose and those which have a more punitive, retributive or deterrent object. Examples of the former are B v Chief Constable of Avon and Somerset Constabulary  1 All ER 562,  1 WLR 340; Gough v Chief Constable of the Derbyshire Constabulary  EWCA Civ 351,  QB 1213,  2 All ER 985; and, most notably, R (McCann) v Crown Court at Manchester  UKHL 39,  1 AC 787,  4 All ER 593; of the latter, Han v Customs and Excise Commissioners  EWCA Civ 1040,  4 All ER 687,  1 WLR 2253; International Transport Roth, above. The same distinction is drawn in the Strasbourg authorities. Treated as non-criminal are preventative measures such as those in issue in the Italian cases already mentioned, Lawless v Ireland (No 3) (1961) 1 EHRR 15; Olivieira v The Netherlands (2000) 30 EHRR CD 258, and Landvreugd v The Netherlands (App no 37331/97, 6 June 2000, unreported; treated as criminal were the measures considered in Φztόrk v Germany, above; Demicoli v Malta (1991) 14 EHRR 47; Benham v United Kingdom (1996) 22 EHRR 293; Lauko v Slovakia, above; Garyfallou AEBE v Greece (1997) 28 EHRR 344. Even this distinction, however, is not watertight, since prevention is one of the recognised aims and consequences of punishment (see R (West) v Parole Board  UKHL 1,  1 All ER 755,  1 WLR 350) and the effect of a preventative measure may be so adverse as to be penal in its effects if not in its intention.
24. I would on balance accept the Secretary of State's submission that non-derogating control order proceedings do not involve the determination of a criminal charge. Parliament has gone to some lengths to avoid a procedure which crosses the criminal boundary: there is no assertion of criminal conduct, only a foundation of suspicion; no identification of any specific criminal offence is provided for; the order made is preventative in purpose, not punitive or retributive; and the obligations imposed must be no more restrictive than are judged necessary to achieve the preventative object of the order. I would reject AF's contrary submission. This reflects the approach of the English courts up to now: A v Secretary of State for the Home Department  EWCA Civ 1502,  QB 335, para 57,  1 All ER 816. But I would accept the substance of AF's alternative submission: in any case in which a person is at risk of an order containing obligations of the stringency found in this case, or the cases of JJ and others and E, the application of the civil limb of art 6(1) does in my opinion entitle such person to such measure of procedural protection as is commensurate with the gravity of the potential consequences. This has been the approach of the domestic courts in cases such as B, Gough and McCann, above, and it seems to me to reflect the spirit of the Convention"
"48. I also agree with my noble and learned friend that a review of a control order is not the determination of a criminal charge. As a matter of English law, this is beyond doubt. MB and AF are not charged with having committed any breach of the law, let alone a terrorist act. The order is made on the basis of suspicion about what they may do in the future and not upon a determination of what they have done in the past. And the restrictions imposed by the order are for the purpose of prevention and not punishment or deterrence.
49. It is of course true that domestic law is not conclusive for the purposes of art 6. The term criminal charge has an autonomous Convention meaning which cannot be circumvented by the labels affixed in domestic law. But the Strasbourg jurisprudence recognises the distinction between determination and punishment of past guilt and prevention of future suspected wrongdoing: see the cases mentioned in paras 21 and 23 of Lord Bingham's opinion. We were not referred to any case in which a genuinely preventative measure based on suspicion of future conduct was held to be the determination of a criminal charge. On this point, domestic and Convention law agree.
"90. In particular I agree with [Lord Bingham's] conclusions at para 24 that non-derogating control order proceedings do not involve the determination of a criminal charge but that nevertheless those against whom such orders are proposed or made are entitled to such measure of procedural protection as is commensurate with the gravity of the potential consequences."
Matyjek: the European Court of Human Rights
"47. It is the Court's established jurisprudence that the second and third criteria laid down in Engel are alternative and not necessarily cumulative: for Article 6 to be held applicable, it suffices that the offence in question is by its nature to be regarded as "criminal" from the point of view of the Convention, or that the offence made the person liable to a sanction which, by its nature and degree of severity, belongs in general to the "criminal" sphere . This does not exclude that a cumulative approach may be adopted where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see Bendenoun v. France Lauko v. Slovakia )
48. As regards the first of the Engel criteria ... the facts alleged against the applicant ... did not fall within the ambit of Polish criminal law but of the Lustration Act. It appears that neither the domestic law nor the established judicial interpretation consider the Lustration Act as criminal law; however, the Warsaw Court of Appeal assumed, at least on some occasions, that it is a 'repression-related proceedings' and must be considered as an 'other law providing for criminal liability' ...
49. The Court observes that there exists a close connection between lustration proceedings and the criminal law sphere. In particular, the Lustration Act provides that matters not regulated by it are subject to relevant provisions of the Code of Criminal Procedure. Consequently, the Commissioner of Public Interest, who is empowered to initiate the lustration proceedings, has been vested with the powers identical to those of the public prosecutor, which are set out in the rules of criminal procedure .
50. The Court also notes that the organisation and the course of the lustration proceedings, as governed by the Act, are based on the model of a Polish criminal trial and that the rules of the Code are directly applicable to lustration proceedings.
51. In sum, although under the domestic law the lustration proceedings are not qualified as 'criminal', the Court considers that they possess features which have a strong criminal connotation.
52. The Court reiterates that the second criterion stated above the very nature of the offence, considered also in relation to the nature of the corresponding penalty represents a factor of appreciation of greater weight. In this regard the Court finds that the misconduct committed by the applicant consisted of his having lied in a declaration which he had a statutory obligation to submit ... an obligation to submit a declaration is quite a common one, embracing for example declarations of means submitted by members of parliament and many other public officials and tax returns obligatory for all taxpayers. Secondly, a breach of the obligation to state the truth on such occasions is regarded as an offence under the domestic law and normally leads to sanctions, including those of a criminal nature. The Court considers that the offence of making an untrue statement in a lustration declaration is very similar to the above-mentioned offences. Moreover according to the ordinary meaning of the terms, it is analogous to the offence of perjury, which, outside the lustration context, would normally have led to prosecution under the criminal-law provisions.
53. The Court also notes that the legal provision infringed by the applicant is not directed at a small group of individuals possessing a special status in the manner, for example, of disciplinary law. It is directed at a vast group of citizens, born before May 1972, who not only hold many types of public functions, but also wish to exercise professions such as those of barrister, public servant, judge and prosecutor, or intend to stand for presidential or parliamentary election. In this context, the Court finds it necessary to stress that the subject of proceedings before the lustration court is the establishment of the truthfulness of the lustration declaration. Contrary to its title, the law on disclosing work for or service in the State's security services or collaboration with them between 1944 and 1990 by persons exercising public functions is not about scrutinising the past of those persons, and the historical findings relating to past collaboration with the communist-era security services remain in the background of the proceedings. The lustration court decides whether the person subject to lustration violated the law by submitting a false declaration. If such a finding is made, the statutory sanctions are imposed. Thus, the lustration procedure in Poland is not aimed at punishing acts committed during the communist regime. This approach distinguishes the nature of lustration in Poland from the solutions adopted in other countries ... In light of the above, the Court considers that the offence in question is not devoid of purely criminal characteristics.
54. As regards the nature and degree of severity of the penalty that the applicant suffered in the application of the Act, the Court first notes that the Act provides for an automatic and uniform sanction if the person subject to lustration has been considered by a final judgment to have lied in the lustration declaration. A final judgment to that effect entails the dismissal of the person subject to lustration from the public function exercised by him or her and prevents this person from applying for a large number of public posts for the period of 10 years. The Court observes that the moral qualifications, of which the person who has lied in the lustration declaration is automatically divested, are described broadly as : unblemished character, immaculate reputation, irreproachable reputation, good civic reputation, or respectful of fundamental values. The obligation to demonstrate those qualifications is necessary in order to exercise many professions, such as those of prosecutor, judge and barrister. That list is not exhaustive however as the Act refers to other statutes that may, as a prerequisite for exercising a public function, require one of the above-mentioned moral qualifications.
55. It is true that neither imprisonment nor a fine can be imposed on someone who has been found to have submitted a false declaration. Nevertheless the Court notes that the prohibition on practising certain professions (political or legal) for a long period of time may have a very serious impact on a person, depriving him or her of the possibility of continuing professional life. This may be well deserved, having regard to the historical context in Poland, but it does not alter the assessment of the seriousness of the imposed sanction. This sanction should thus be regarded as having at least partly punitive and deterrent character
56. In the instant case the applicant who is a politician, as a result of having been deemed a "lustration liar" by a final judgment, lost his seat in Parliament and cannot be a candidate for future elections for 10 years. In this connection the Court reiterates that the purpose of lustration proceedings is not to prevent former employees of the communist-era secret services from taking up employment in public institutions and other spheres of activity vital to the national security of the State, since admitting to such collaboration the so-called "affirmative declaration" - does not entail any negative effects, but to punish those who failed to comply with the obligation to disclose to the public their past collaboration with those services .
57. The Court considers that, given its nature and duration, the sanction provided by the Lustration Act must be considered as detrimental to and as having serious consequences for the Applicant.
58. Having weighed up the various aspects of the case, the Court notes the predominance of those which have criminal connotations. In such circumstances the Court concludes that the nature of the offence, taken together with the nature and severity of the penalties, was such that the charges against the applicant constituted criminal charges within the meaning of Article 6 of the Convention"
Analysis of Issues
Issue (1): Are the disciplinary proceedings and the procedure for a s.142 direction part of one and the same proceedings?
Issue (2): Disciplinary proceedings a "criminal charge"
Issue (3): Civil proceedings and legal representation
"68 It cannot, however, be in accordance with the spirit of the Convention or the common law that the court should be powerless to prevent a violation of a right to a fair procedure, merely because of the existence of a later way of remedying the consequences. A stitch in time may save nine.
69 R (Hammond) v. Secretary of State for the Home Department is instructive for two other reasons. Lord Bingham of Cornhill (with whose judgment the other members of the Appellate Committee all agreed) said at paragraph 16 that even if it were "an inevitable result" that a hearing in the Court of Appeal would remedy the lack of an oral hearing at first instance, he doubted whether this would entitle the court to regard paragraph 11(1) [of Sch. 22 to CJA 2003] as compatible with the Convention. This observation runs counter to the argument that where there is a two stage process a person can have no enforceable rights to fairness at the first stage, as long as any unfairness at that stage can be remedied later.
71 the existence of an enforceable duty of fairness and its content are different matters. On the question of the existence of a duty, the argument advanced on behalf of the Secretary of State amounts to recognising that there is a duty of fairness at the first stage but denying that it is enforceable, so long as there is fairness at the second stage. I reject that argument. If there is a duty of fairness at the first stage, in my judgment it must be enforceable by the court as a matter of jurisdiction. The real question is whether it is appropriate for the court to make a ruling about what fairness will require at the first stage."
Toulson J then considered what fairness required in the particular case:
"Relief claimed: arguments and discussion
76 Mr Holl-Allen submitted that in essence the decision of a PCT to remove a doctor from its performers list is an employment decision, and that although removal from a PCT's performers list may have consequences for the doctor in finding other employment with another PCT, the position is no different in principle from that of any employee facing dismissal from his job. Employment law protects employees against unfair dismissal, but the duty of an employer to act fairly does not require an internal hearing with a right to legal representation and cross-examination of witnesses.
78 To regard the Regulations as mere employment procedures is to downgrade their significance and importance. They serve the important public purpose of keeping inefficient and unsuitable people from performing as doctors in the NHS. The scheme properly contains mechanisms designed to see that a doctor who is removed from the performers list of one PCT will not be placed on another PCT's performers list unless circumstances have changed.
82 The question whether a fair opportunity of doing this requires the doctor to be able to cross-examine witnesses or to be permitted legal representation or both might reasonably attract different answers in different cases, depending on their nature and complexity."
Then at §§93 and 94, Toulson J gave his reasoning why, in that case, fairness required a right to legal representation at the first stage.
"93 On the subject of legal representation, the fundamental question is whether the doctor could fairly be expected to represent himself. In many cases that may be a quite reasonable expectation. In Dr Ghosh's case none of the allegations made against him is individually complicated, but taken together the case is sufficiently complex (with the large number of allegations, their diverse nature and the volume of paperwork) that I would be very surprised if a doctor could do himself justice in trying to handle the case unrepresented. A helper sitting beside him would be of some but limited assistance. It would be wrong that witnesses who complain of bullying and intimidation by Dr Ghosh should feel themselves exposed to the same risk in cross-examination by him (even though that might give powerful support to their evidence), and that would be an additional reason for allowing him to be represented. The alternative suggested in the DOH Advice of having questions put through the chairman of the panel might be appropriate in some circumstance, where the purpose is merely to supplement or clarify matters stated by the witness, but it is not realistic to expect cross-examination to be conducted on behalf of the doctor through the chairman.
94 It was submitted on behalf of the Secretary of State that under the regime before the Regulations were introduced the procedure for stopping unsatisfactory doctors from working in the NHS was so labyrinthine and expensive as to deter health authorities from using it. It would not be in the public interest if the procedure under Regulation 10 were made so cumbersome that PCTs were deterred from attempting to remove doctors whom they believed to be substandard, and it need not be so. But expediency need not and must not lead to the exclusion of fairness. (Moreover, even in terms of expediency, it cannot be assumed that the overall result of permitting cross-examination or legal representation at a hearing under Regulation 10 will be repetitiveness and delay, while the doctor argues his case first before the panel and then on appeal. For every case where that happens there may be others where there is no appeal, either because the panel decides not to remove the doctor from the performers list or because the doctor or those advising him see no worthwhile prospect in an appeal. There are no scientific means of forecasting such outcomes and they could only properly be measured by some form of post legislative scrutiny. It is, however, readily predictable that there will be appeals if the first stage hearing is not seen as providing a fair opportunity properly to challenge the case put for the doctor's removal.)"
"22 . [Regulation 13(2)] was the subject of decision by the Tribunal in the case of FH v Secretary of State for Education and Skills  0552.PT, where the Tribunal said at paragraph 55:
"Thus the Tribunal is, in this instance, confined to conducting a review of the decision made by the Secretary of State. The Tribunal is not empowered to re-hear the case or to determine the primary facts. It is required, in effect, to decide whether the Secretary of State had sufficient evidence upon which to base a determination that the specified ground relied upon existed and, further, to decide whether the direction was an appropriate or proportionate response in all of the circumstances known to the Secretary of State."
23. I accept that explanation by the Tribunal. It follows that the particular views of officials or List 99 panel members are not relevant to the Tribunal's task. Nor indeed are the views of the Secretary of State determinative of the question. The Tribunal must form its own view as to whether or not, on the evidence before it, which is the same evidence as that which was before the Secretary of State, there existed sufficient grounds for the direction to be given under section 142. The Tribunal thereby decides whether the Secretary of State's decision was reasonable. It is not necessary for that purpose that the Tribunal should see the confidential advice that was given to the Secretary of State. It follows that the Tribunal had to decide whether the Secretary of State had sufficient evidence on which to base a determination that the specified ground existed. That involved a consideration and appraisal by the Tribunal of the evidence, untrammeled by the advice of the Department's officials and/or independent expert."
Issue (4): Employment Tribunal as an alternative remedy