R (G) v X School Governors & Y City Council
| Jurisdiction | England & Wales |
| Judgment Date | 18 March 2009 |
| Neutral Citation | [2009] EWHC 504 (Admin) |
| Date | 18 March 2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4807/2008 |
[2009] EWHC 504 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Stephen Morris QC
Sitting as a Deputy Judge of the High Court
Case No: CO/4807/2008
Richard Drabble QC and Paul Draycott (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
Mr Stephen Morris QC :
Introduction
1.This is an application for judicial review of the decisions made by the Defendant, the governors of a primary school, referred to, for purposes of anonymity, as “X School”. By those decisions dated 20 February 2008 and 6 May 2008, the Defendant refused to allow the Claimant (referred to as “G”) legal representation, first at a disciplinary hearing before a panel of three of the Defendant's governors (“the Disciplinary Committee” or “the Committee”) which took place on 21 February 2008 and, secondly, at a forthcoming hearing of his pending appeal against the Committee's decision of dismissal. The Claimant also challenges the Defendant's failure to allow him the right to cross-examine at those hearings one or more witnesses.
The Claimant, now aged 23, was employed as a music assistant at X School (“the School”). As a result of alleged acts of abuse of trust with a 15 year old boy (who I refer to as “M”), disciplinary procedures were instigated against the Claimant which culminated in the hearing before the Disciplinary Committee on 21 February 2008. Following that hearing, by letter dated 27 February 2008 (“the dismissal decision”), the Claimant was informed that the Committee had found that the Claimant's conduct constituted an abuse of trust and that, in consequence, he was summarily dismissed from his employment with the Defendant. He was further informed that the Committee would be reporting his dismissal to the “appropriate agencies” (namely the Secretary of State for Children, Schools and Families), on the basis that he might be unsuitable to work with children. The Claimant seeks declarations that the disciplinary hearing was in breach of his rights under Article 6 of the European Human Rights Convention (“ECHR”), that the decision of dismissal be quashed and a mandatory order requiring the Defendant to afford to the Claimant hearings which are compliant with his Article 6 rights.
The first question in the case is whether the disciplinary proceedings against the Claimant form part of a criminal process for the purposes of Article 6 ECHR, thereby entitling him to the protection provided for in Article 6(3) ECHR, and in particular the right to representation and the right to cross-examine M. The second question is whether, if the proceedings do not form part of the criminal process, “legal representation is nonetheless required under the civil limb of Article 6(1)”. At the outset of the hearing, the Claimant applied for permission to raise this second question as an alternative additional ground of claim, by way of Notice of Additional Ground. Having offered the Defendant the opportunity for further time in which to respond to the Additional Ground, Mr. Bowers QC was content to address this matter in argument. Accordingly, I now formally grant the Claimant permission to amend in the terms of the Additional Ground.
At the heart of the issues in the case is the Secretary of State's power, under s.142 Education Act 2002 (“ EA”) to direct that a person should be prohibited from working with children in educational establishments on the grounds that that person is unsuitable for such work. I refer to the relevant statutory scheme after setting out the factual background.
Factual Background
The allegations against the Claimant
It is alleged that on or around 20 September 2007 an incident took place in a local church between the Claimant and M, who at that time was undertaking work experience at the School. It is said that during the course of the incident, the Claimant kissed M. It is also alleged that, shortly after this date, the Claimant sent two text messages to M, in which he suggested that the two of them might meet up, either at his house or by going for a drive.
On 4 October 2007, M's parents attended the School and showed the head teacher an entry in M's diary recording the incident on 20 September and informed her about the text messages. On the same day, the head teacher called the Claimant to her office, informed him about the allegation and that he was informally suspended pending an investigation. Immediately thereafter and whilst waiting to go home, the Claimant had a conversation with the School's child protection officer. The child protection officer has given evidence to the effect that, in the course of that conversation, the Claimant admitted that he had kissed M on 20 September. The contents of that conversation are disputed by the Claimant. The Claimant admits having sent the text messages, but disputes their meaning and intent.
The School's investigation
At a Multi-Agency strategy meeting on 8 October 2007, it was decided that the matter should be referred to the police and that the School should give consideration to disciplinary action. On 1 November 2007, the head teacher wrote to the Claimant formally confirming his suspension as the allegations could constitute gross misconduct. The allegation was that he had formed an inappropriate relationship with a child. By further letter of the same date, the Claimant was informed that he was required to attend an investigatory interview on 15 November 2007 and that he had a right to be represented at that interview by a trade union representative or work colleague. The date of the interview was subsequently put back on more than one occasion. On 21 November 2007, the Claimant wrote to the head teacher informing her that he had been advised that it was not in his best interests to attend that interview; he would be willing to co–operate after the conclusion of the police investigation.
By letter dated 12 December 2007, the head teacher notified the Claimant that a disciplinary hearing would be convened in the new year and invited the Claimant to make written submissions regarding the allegations by 19 December 2007. In the same letter, the head teacher stated:
“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.
By 1 February 2008, it was known that the Crown Prosecution Service intended to take no further action. On that date, the Claimant's then solicitors wrote to the head teacher, stating that the Claimant was unable to attend a meeting on 5 February, and setting out written representations to be placed before that meeting, which, inter alia, denied the allegation and that any improper conduct had taken place.
By letter dated 6 February 2008, the head teacher informed the Claimant that the investigation was complete and an investigation report had been written. There would be a disciplinary hearing, before a panel of governors, to consider the allegations on 21 February 2008. The head teacher informed the Claimant that he was entitled to be represented at the hearing by his trade union or a work colleague. The investigation report, dated 1 February 2008, was written by the head teacher and was provided to the Claimant. The report, in turn, attached a report, of the same date, from the local authority's safeguarding officer, which stated that consideration should be given to referring the matter to the Secretary of State. The head teacher's investigation report concluded that “there is strong evidence that the allegations against [G] are proven. The panel should therefore fully consider his future employment … and whether a referral to the DFES is required”. The report relied upon the extracts from M's diary, the text messages and the School's child protection officer's evidence of her conversation with the Claimant. The Claimant points out that at no point during the School's investigation (or at the subsequent disciplinary hearing) were any questions asked of M in respect of the allegations concerning the Claimant.
The first decision refusing legal representation
By letter dated 14 February 2008, the Claimant's solicitors wrote to the School, seeking permission for a member of their firm to represent the Claimant at the forthcoming disciplinary hearing. The solicitors pointed out that, as a part-time casual employee, the Claimant did not have a colleague to represent him and that he was not a member of a trade union. The letter continued:
“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”.
By letter dated 20 February 2008, the Defendant...
To continue reading
Request your trial
-
Andrew Robinson v National Irrigation Commission Ltd
...will ensure the attainment of fairness.’ 19 The duty applies to all stages of the proceedings and the claimant relied on R (on the application of G) v X School Governors [2009] EWHC 504 (Admin) to support a submission that the gravity of the allegation and the potential impact on the claima......
-
National Commercial Bank Jamaica Ltd v Industrial Disputes Tribunal and Another
... ... Jamaica v IDT and Coleen Beecher was inconsistent with the Privy Council's decision in Village Resorts Ltd v IDT and Jamaica Flour Mills v IDT ... Court's decision in R (on the application of G) v Governor of X School to support the IDT's finding that Mr Jennings was ‘denied the right to ... position was adopted by Lord Denning in Pearlman v Keepers and Governors of Harrow School [1979] QB 56 and upheld by Lord Diplock in two of his ... ...
-
R (G) v X School Governors & Y City Council
...the reach of the rights which article 6 confers (post, para 56).Decision of Stephen Morris QC sitting as a deputy High Court judge [2009] EWHC 504 (Admin); [2009] PTSR 1291 affirmed on different grounds.The following cases are referred to in the judgment of Laws LJ:Albert and Le Compte v Be......
-
Jerome Jones v Birmingham City Council Respondent
...allegation the more astute should the courts be to ensure that the trial process is a fair one. Finally, R(G) v Governors of X School [2009] PTSR 1291 concerned disciplinary proceedings against a teacher for alleged sexual impropriety with a 15 year old pupil. Article 6 was held not to appl......
-
Right to Legal Representation during Internal Disciplinary Proceedings
...during the disciplinary process. In the case of R (On the application of "G") v The Governors of "X" School and "Y" Council [2009] EWHC 504 (Admin) the High Court debated the well known rule that an employer must allow a worker the opportunity to be accompanied at a disciplinary hearing by ......