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On appeal from: [2010] EWCA Civ 1

The issue in this case is whether the claimant’s rights under ECHR, art 6(1) were engaged in a disciplinary hearing that was conducted by X School. The school had refused to allow the claimant legal representation in the disciplinary hearing following an allegation of sexual misconduct.

Held: by a majority, allowing the school’s appeal: ECHR, art 6(1) does not apply to the disciplinary proceedings in issue. In deciding whether a hearing involves the determination of a civil right or obligation, the ECtHR has contrasted proceedings which are “directly decisive” of the right in question, to which art 6 applies, with those which have a “tenuous” or “remote” consequence is at issue. Relevant factors include: whether the first proceedings are in fact dispositive of the later proceedings; how close the link is between the two proceedings; whether the object of the two proceedings is the same; and whether there are policy reasons for holding that art 6(1) should not apply in the first proceedings. In the present case, the claimant’s  art 6(1) rights are engaged by the subsequent proceedings before the Independent Safeguarding Authority. However, it was not the function of the school’s disciplinary proceedings to determine the civil right in issue. Rather, they were only concerned with the claimant’s employment. Therefore, in and of themselves, the school’s disciplinary proceedings did not engage art 6(1) . As regards the establishment of a link such that art 6(1) applies to the disciplinary proceedings, they do not directly determine or exert a substantial influence over the ISA proceedings.

For judgment, please download: [2011] UKSC 30
For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII