“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 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.”
“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) 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.”
“(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.”
“(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 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.” (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.”
“Of course, it is right that the Tribunal is reviewing the Secretary of State’s decision, and clearly if it was not a reasonable decision, then the Tribunal will interfere. But, as it seems to me, the Tribunal has its own independent judgment to exercise. It looks at the material that was before the Secretary of State and it decides, on that material, whether in its judgment the relevant prohibition or the relevant sanction was or was not one which ought to have been, in its view, imposed. It may be that one can say, if one is talking in strict judicial review terms, that the decision of the Secretary of State was reasonable in the sense that it is one which was open to him. But that would mean, if that is the narrow basis upon which the Tribunal approaches the matter, that it is disabled from exercising its own judgment. It is the exercise of its own judgment that is important. But, as the regulation makes clear, that judgment must be exercised upon and only upon the material that was before the Secretary of State.”
“3(1)This paragraph applies to a person if— (a) it appears to ISA that the person has (at any time) engaged in relevant conduct, and (b) ISA proposes to include him in the children’s barred list. (2) ISA must give the person the opportunity to make representations as to why he should not be included in the children’s barred list. (3) ISA must include the person in the children’s barred list if— (a) it is satisfied that the person has engaged in relevant conduct, and (b) it appears to ISA that it is appropriate to include the person in the list. ... 4(1)For the purposes of paragraph 3 relevant conduct is— (a) conduct which endangers a child or is likely to endanger a child; (b) conduct which, if repeated against or in relation to a child, would endanger that child or would be likely to endanger him; (c) conduct involving sexual material relating to children (including possession of such material); (d) conduct involving sexually explicit images depicting violence against human beings (including possession of such images), if it appears to ISA that the conduct is inappropriate; (e) conduct of a sexual nature involving a child, if it appears to ISA that the conduct is inappropriate. (2) A person’s conduct endangers a child if he— (a) harms a child, (b) causes a child to be harmed, (c) puts a child at risk of harm, (d) attempts to harm a child, or (e) incites another to harm a child.”
“Referral information is received from employers which have dealt with individuals through their internal disciplinary procedures, whether or not an individual has been dismissed. The conclusions reached by employers are reviewed to establish, on a balance of probability, the facts. It is the facts of the case that determine whether the case requires further consideration and not the conclusions that the employer reached.”
“5.10.2. As mentioned already, in the cases of cautions, convictions and findings of fact by competent bodies [this appears to refer to professional regulatory bodies such as the General Medical Council], you will be able to treat the facts as proved. 5.10.3. In relation to other evidence, you will first need to assess each piece of evidence and judge how reliable it is. The judgment as to how reliable a piece of evidence is will determine how much weight can be placed on it. Less reliable evidence will carry less weight in a barring decision than highly reliable evidence. Some evidence will be so unreliable, for example because it is contradicted or called into question by other reliable evidence, that no lawful reliance can be placed on it at all. Such evidence must be disregarded altogether.”
“The decision at the end of the Case Assessment relates to the level of potential future risk of harm to children and/or vulnerable adults taking into consideration, where applicable, any representations that have been made and all pertinent facts and any specialist opinions.”
“(2) An appeal under subsection (1) may be made only on the grounds that ISA has made a mistake— (a) on any point of law; (b) in any finding of fact which it has made and on which the decision mentioned in that subsection was based. (3) For the purposes of subsection (2), the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact.”
“[T]he French expression ‘contestations sur (des) droits et obligations de caractère civil’ covers all proceedings the result of which is decisive for private rights and obligations. The English text ‘determination of ... civil rights and obligations’, confirms this interpretation.”
“Disciplinary proceedings do not ordinarily lead to a contestation(dispute) over ‘civil rights and obligations’; however, theposition may be otherwise in certain circumstances. Again, disciplinary proceedings as such cannot becharacterised as ‘criminal’, although this may not hold good forcertain specific cases…”
“In addition, it must be shown that the ‘contestation’(dispute) related to ‘civil rights and obligations’, in otherwords that the ‘result of the proceedings’ was ‘decisive’ forsuch a right (see the Ringeisen judgment of16 July 1971 , Series Ano. 13, p. 39, para. 94)... [T]he Court would recall thata tenuous connection or remote consequences do not suffice forArticle 6 para. 1: a right must be the object - or one of the objects - of the ‘contestation’…”
“35. According to the Court’s well-established case-law,proceedings in a Constitutional Court are to be taken into account forcalculating the relevant period where the result of such proceedingsis capable of affecting the outcome of the dispute before the ordinarycourts...”
“63. I will therefore make some brief observations on the other grounds. What I say is necessarily obiter... 66... Mr Stafford and Miss Lee both submitted that Dr Kulkarni was facing ordinary disciplinary proceedings brought by his employer and the only effect, if the charge were found proved, would be that he would lose his job. Only proceedings before the General Medical Council can deprive a doctor of the right to practise. But, as Mr Hendy pointed out, the National Health Service is, to all intents and purposes, a single employer for the whole country. Indeed, for a trainee doctor, that is literally true as a doctor cannot complete his training in the private sector. If Dr Kulkarni is found guilty on this charge he will be unemployable as a doctor and will never complete his training. If he applies for any other position he will be obliged to declare the finding against him and the fact of his dismissal. Moreover, submitted Mr Hendy, it is highly likely that the system of ‘alert letters’ would be operated in this case if Dr Kulkarni were found guilty. An alert letter is a letter warning other NHS employers not to employ the doctor named, who is regarded as presenting an unacceptable risk to patients. The alert letter procedure is currently governed by the Healthcare Professionals Alert Notice Directions 2006. 67. It seems to me that there is force in Mr Hendy’s submission and, had it been necessary for me to make a decision on this issue, I would have held that Article 6 is engaged where an NHS doctor faces charges which are of such gravity that, in the event they are found proved, he will be effectively barred from employment in the NHS.”
“The effect of listing is to deprive the care worker of her employment as a care worker and to prevent her from getting any other such employment. This might be acceptable if there had been at least an opportunity for a judicial hearing before being placed on the list. But the 2000 Act scheme only provides such an opportunity after a lengthy administrative process during most of which the care worker is provisionally on the list. The question for us is whether this aspect of the scheme is compatible with the care worker’s rights under articles 6 and 8 of the European Convention on Human Rights.”
“23. The difficult question is how the requirements of article 6(1) apply in cases such as this. It is a well-known principle that decisions which determine civil rights and obligations may be made by the administrative authorities, provided that there is then access to an independent and impartial tribunal which exercises ‘full jurisdiction’: Bryan v United Kingdom(1995) 21 EHRR 342 , applied domestically in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions[2003] 2 AC 295 http://www.bailii.org/cgi-bin/redirect.cgi?path=/uk/cases/UKHL/2001/23.html and Runa Begum v Tower Hamlets London Borough Council[2003] 2 AC 430 http://www.bailii.org/cgi-bin/redirect.cgi?path=/uk/cases/UKHL/2003/5.html. What amounts to ‘full jurisdiction’ varies according to the nature of the decision being made. It does not always require access to a court or tribunal even for the determination of disputed issues of fact. Much depends upon the subject-matter of the decision and the quality of the initial decision-making process. If there is a ‘classic exercise of administrative discretion’, even though determinative of civil rights and obligations, and there are a number of safeguards to ensure that the procedure is in fact both fair and impartial, then judicial review may be adequate to supply the necessary access to a court, even if there is no jurisdiction to examine the factual merits of the case. The planning system is a classic example (Alconbury); so too, it has been held, is the allocation of ‘suitable’ housing to the homeless (Runa Begum); but allowing councillors to decide whether there was a good excuse for a late claim to housing benefit was not (Tsfayo v United Kingdom, paragraphs 48-49 [now reported at(2009) 48 EHRR 18 ]).”
“While the High Court had the power to quash the decision if it considered, among other things, that there was no evidence to support the HBRB’s factual findings, or that its findings were plainly untenable, or that the HBRB had misunderstood or been ignorant of an established and relevant fact, it did not have jurisdiction to rehear the evidence or substitute its own views as to the applicant’s credibility. Thus, in the applicant’s case, there was never the possibility that the central issue would be determined by a tribunal that was independent of one of the parties to the dispute. It followed that there had been a violation of Article 6 § 1.”
“82. First… this Court is the appropriate forum for consideration of what was and is required, procedurally, of the hearings before the Disciplinary Committee and the Appeal Committee and no useful purpose would be served now by declining relief and requiring the Claimant now to take the same argument before an employment tribunal. Moreover the relief available before an employment tribunal is likely to be less effective than that provided by this Court on an application for judicial review. The employment tribunal would not stay the appeal before the Appeal Committee, and, more importantly, would not have the power to put a halt to the continuation of the procedure leading to a s.142 direction. 83. Secondly, it is argued… that the Claimant will have a full opportunity to overturn the Disciplinary Committee’s findings of primary fact as to the alleged incidents with M by way of bringing a claim for unfair dismissal before an employment tribunal, and that in the course of that claim, his Article 6 rights to a fair hearing can be given full expression, including in particular having a right to an oral hearing with legal representation. 84. I do not accept this argument. First… it is far from clear that, on the facts of the present case, the Claimant would have the opportunity to overturn the findings of primary fact. The jurisdiction of the employment tribunal in such a case would not comprise a full review of the merits of the underlying facts, but rather would address the issue of whether dismissal by the employer was within the range of reasonable responses (by the objective standards of the reasonable employer) to the given reason for dismissal: see s.98 (4) ERA 1996. Moreover, the ‘range of reasonable responses’ test applies as much to the reasonableness of the employer's investigation into the suspected misconduct as it does to the reasonableness of the decision to dismiss based on the substantive conduct reason: see Sainsburys v. Hitt[2003] IRLR 827 at §§30-34... 85. Secondly, as observed above, the employment tribunal would not have the power, pending any such unfair dismissal claim, to suspend the procedure leading to the making of a s.142 direction or any such direction in fact made. Further, in the event that such a s.142 direction had in fact been made, it is doubtful whether the employment tribunal would be in a position to order reinstatement, where to do so might well involve both the Claimant and the Defendant in the commission of a criminal offence under s.35 CJCSA [sc. theCriminal Justice and Court Services Act 2000 ].”
“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[1993] 18 EHRR 213 .”
“39. For its part, the Court considered it unnecessary to give aruling on the applicability of paragraph 1 of Article 6 (art. 6-1)under the criminal head, but decided to examine in the context of theinterpretation of the notion of ‘fair trial’ in paragraph 1(art. 6-1) the substance of the complaints made by the applicant underparagraphs 2 and 3 (art. 6-2, art. 6-3) (see paragraph 30 above). Inthe opinion of the Court, the principles set out in paragraph 2(art. 6-2) and in the provisions of paragraph 3 invoked byDr. Albert (that is to say, only sub-paragraphs (a), (b) and (d))(art. 6-3-a, art. 6-3-b, art. 6-3-d) are applicable, mutatis mutandis,to disciplinary proceedings subject to paragraph 1 (art. 6-1) in thesame way as in the case of a person charged with a criminal offence.”
“148. These passages, as I read them, emphasise the importance of giving Article 6 a flexible interpretation, and of not using the process of construction to place concepts of essential fairness in a verbal straitjacket. In my judgment, for the purposes of Article 6 there is no such clear-cut dividing line as Mr Barling submits, but neither can the distinction between civil and criminal proceedings so clearly made in the language of the Article be ignored for all purposes. As I see it, there must be something in the nature of a sliding scale, at the bottom of which are civil wrongs of a relatively trivial nature, and at the top of which are serious crimes meriting substantial punishment. Broadly speaking, the more serious the allegation or charge, the more astute should the courts be to ensure that the trial process is a fair one. This is consistent with the court’s approach to the standard of proof in civil proceedings: the more serious the allegation, the more cogent the evidence which will be needed to prove it to the requisite standard. In the case of disciplinary proceedings, as in Albert & Le Compte, one can readily see why the distinction between civil and criminal proceedings was not considered to be helpful.”
“68. The next question is whether, in the context of civil proceedings, Article 6 implies a right to legal representation. In my view, in circumstances of this kind, it should imply such a right because the doctor is facing what is in effect a criminal charge, although it is being dealt with by disciplinary proceedings. The issues are virtually the same and, although the consequences of a finding of guilt cannot be the deprivation of liberty, they can be very serious.”
“33. There is a wealth of Strasbourg case-law and a growing body of domestic authority concerning what, for Article 6 purposes, is criminal and what civil - or more particularly what under the autonomous Strasbourg approach must be regarded as criminal despite being categorised as civil under domestic law. Further extensive case-law then establishes that the various procedural safeguards expressly or impliedly provided by Article 6 are not ultimately dependent upon such a classification: the protections are sometimes found unnecessary even though the proceedings are criminal; sometimes essential even though the proceedings are civil. Why, therefore, attempt the classification exercise in the first place? Simpler surely to address the question as to whether the protections are indeed necessary to achieve a fair trial of whatever may be the issue... In short, the classification of proceedings between criminal and civil is secondary to the more directly relevant question of just what protections are required for a fair trial. I shall, however, address the issue, not least because it covers much of the same ground as must in any event be explored in deciding what protections are required here to achieve a fair trial.”
“17... [T]he law on this subject [sc. the distinction between the civil and criminal limbs of Article 6] 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)... 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... 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 ... paras 33, 148) 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 p Fleurose... para 14).”