R (G) v X School Governors & Y City Council
| Jurisdiction | England & Wales |
| Judge | Lord Walker,LORD BROWN,LORD KERR,LORD DYSON |
| Judgment Date | 29 June 2011 |
| Neutral Citation | [2011] UKSC 30 |
| Date | 29 June 2011 |
| Court | Supreme Court |
[2011] UKSC 30
Lord Hope, Deputy President
Lord Walker
Lord Brown
Lord Kerr
Lord Dyson
(on the application of G)
Appellant
John Bowers QC
Tim Kenward
Katherine Apps
(Instructed by Y City Council Legal Services)
Respondent
Richard Drabble QC
Paul Draycott
(Instructed by Keith Levin & Co)
Intervener
Helen Mountfield QC
(Instructed by Equality and Human Rights Commission)
Intervener (Secretary of State for the Home Department)
Nathalie Lieven QC
Martin Chamberlain
(Instructed by Treasury Solicitors)
LORD DYSON (with whom Lord Walker agrees)
In about December 2005, the claimant commenced employment as a sessional music assistant at X school ("the school"). On 4 October 2007, the parents of M, a 15 year old boy, who was undergoing a short period of work experience at the School, went to see the head teacher. They complained that the claimant, who was 22 years of age at the time, had kissed M. They also showed the head teacher two text messages which they said the claimant had sent to M and an entry in M's diary which appeared to indicate that some form of sexual relationship had developed between the two of them. On the same day, the head teacher summoned the claimant and informed him that he was being suspended because of an incident involving a young man.
The school's child protection co-ordinator later provided a statement to the school in which she said that, after he had been suspended, the claimant admitted to her that he had kissed M and that he had sent a text inviting him to his house, "but was concerned that this could be misinterpreted, so he added that they could go for a drive instead".
On 1 November, the head teacher wrote to the claimant formally confirming his suspension on the grounds that the allegations, if proved, could constitute gross misconduct of having formed an inappropriate relationship with a child. By a further letter of the same date, she informed the claimant that he was required to attend an investigatory interview on 15 November and that he was entitled to be represented by a trade union representative or work colleague. In fact, he was not a member of a trade union. The interview was postponed several times because the claimant's solicitor had advised him that it was not in his interests to attend an interview until the police had completed their investigations.
By letter dated 12 December 2007, the head teacher notified the claimant that a disciplinary hearing would be convened in the new year, that the school was required to continue with its investigations and that a report would be submitted to the governing body for its consideration. She added that since the claimant continued to refuse to attend any investigatory meetings, she would be willing to include in her report any written submissions that he wished to make about the allegations. On 18 December, the claimant repeated the legal advice that he had been given that he should not become involved in the disciplinary proceedings until the police investigation was completed.
By 1 February, it was known that the Crown Prosecution Service intended to take no further action. On that date, the claimant's solicitors wrote to the head teacher stating that the claimant was unable to attend a meeting on 5 February. The letter included a number of "written representations to be placed before that meeting" denying the allegations and stating that no improper conduct had taken place.
By letter dated 6 February, the head teacher informed the claimant that the investigation was complete and an investigation report had been written. A disciplinary hearing was to take place on 21 February before a panel of governors to consider the allegations and the management case would be presented by the head teacher. A copy of the investigation report would be sent within a few days and this would be the evidence presented at the hearing. The claimant was told that he was entitled to be represented at the hearing by a trade union representative or a work colleague.
The investigation report was duly provided to the claimant. Attached to it was a report 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 report concluded: "there is strong evidence that the allegations against [the claimant] are proven. The panel should therefore fully consider his future employment … and whether a referral to the DFES is required".
By letter dated 14 February, the claimant's solicitors wrote to the school seeking permission for them to represent him at the hearing. They said that in view of "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." This request was refused by the school by letter dated 20 February. Prior to the hearing on 21 February, the claimant produced a document entitled "Statement regarding M" which disputed the allegations in some detail.
The panel consisted of three of the school's governors (including the Chair). They were assisted by an HR adviser from the Schools Education Advisory Team ("SEAT"). The head teacher presented the management case and she was assisted by a SEAT HR adviser. The claimant, who was accompanied by his father, represented himself. Oral evidence was given by the school's child protection coordinator and one other witness. The claimant refused to answer questions, stating that he believed the proceedings to be unfair for the reasons given in his solicitor's letters. Neither the claimant nor his father asked questions of any of the witnesses.
By letter dated 27 February, the chair of the governors informed the claimant of the outcome of the hearing. After reciting the evidence, he concluded:
"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."
On 4 March 2008, the claimant's solicitors gave notice of his intention to appeal against the dismissal decision. The head teacher responded that the appeal would be heard by the staff appeal committee and that the claimant had the right to be represented at the appeal by his trade union representative or work colleague. The hearing of the appeal was adjourned and it has never taken place.
In the light of the decision to dismiss the claimant, the school were obliged by regulation 4 of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 (SI 2003/1184) ("the 2003 Regulations") to report the circumstances of the dismissal to the Secretary of State so that he could consider whether to make a direction under section 142 of the Education Act 2002 ("the 2002 Act") prohibiting the claimant from carrying out certain types of work with children (including teaching). A person subject to such a direction was, at the relevant time, placed on a list known as "List 99".
Accordingly, by letter dated 7 May 2008, the chair of the governors notified the Children's Safeguarding Operations Unit ( POCA) of the claimant's dismissal for gross misconduct.
The statutory regime applicable to cases referred to the Secretary of State under regulation 4 of the 2003 Regulations ceased to apply to cases where the Secretary of State had not invited representations by 20 January 2009. The claimant's case was one such case. A new regime (to which the claimant's case applies) was established under the Safeguarding Vulnerable Groups Act 2006 ("the 2006 Act") as subsequently amended.
On 19 May 2008, the claimant issued judicial review proceedings seeking a declaration that, by reason of the denial of his right to legal representation, the disciplinary hearing before the school governors was in breach of his rights under article 6 of the European Convention on Human Rights ("ECHR"). He succeeded before Stephen Morris QC (sitting as a deputy High Court judge) who ordered the allegations of misconduct to be heard by a differently constituted disciplinary committee at which the claimant was to be given the right to legal representation. The school's appeal was dismissed by the Court of Appeal (Laws, Wilson, Goldring LJJ) [2010] 1 WLR 2218.
The statutory scheme
Section 1(1) of the 2006 Act established the Independent Barring Board. The board was renamed the Independent Safeguarding Authority ("ISA") by section 81(1) of the Policing and Crime Act 2009 and I shall so refer to it. The ISA is required to establish and maintain the "children's barred list" (section 2(1)(a) of the 2006 Act). As from 12 October 2009, a person is barred from a "regulated activity" relating to children if he is included in the children's barred list (section 3(2)(a)). Regulated activities relating to children are defined in Schedule 4 to the 2006 Act. They include "any form of teaching, training or instruction of children, unless the...
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