R (G) v X School Governors & Y City Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wilson,Lord Justice Laws |
| Judgment Date | 20 January 2010 |
| Neutral Citation | [2010] EWCA Civ 1 |
| Docket Number | Case Nos: C1/2009/0795 & C1/2009/0821 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 January 2010 |
and
[2010] EWCA Civ 1
Lord Justice Laws
Lord Justice Wilson
and
Lord Justice Goldring
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
Mr Richard Drabble QC and Mr Paul Draycott (instructed by the Keith Levin & co) 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
INTRODUCTION
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".
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.
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:
"(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;
…"
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.
FURTHER FACTS
The first refusal complained of was contained in a letter from the school dated 20 February 2008, in which this was said:
"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."
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:
"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.
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.
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.
THREE PHASES: THE LEGISLATION
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.
(1) The "List 99" Procedure
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:
"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)...
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