G, R (on the application of) v X School & Anor [2009] EWHC 504 (Admin)

[2009] EWHC 504 (Admin)Case No CO/4807/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18 March 2009
Before
MR STEPHEN MORRIS QCSitting as a Deputy Judge of the High Court
Between
THE QUEENClaimantON THE APPLICATION OF “G”ClaimantTHE GOVERNORS OF “X” SCHOOLDefendant“Y” CITY COUNCILInterested Party
Richard Drabble QC and Paul Draycott(instructed by Messrs Keith Levin & Co) for ClaimantJohn Bowers QC and Tim Kenward(instructed by Acting City Solicitor, Y City Council) for Defendant and Interested PartyHearing Hearing date: 12 December 2008
JudgmentMr 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.[2]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.[3]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.[4]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[5]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.[6]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[7]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.[8]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.[9]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.[10]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[11]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".[12]By letter dated 20 February 2008, the Defendant declined the request for legal representation, in the following terms:
"We have been instructed by the [Local] Authority that "
An employee may be represented by a colleague or a trade union representative" and that any other person will not be permitted to enter the hearing taking place on the 21st February 2008" On the next day, 21 February 2008, the Claimant's solicitors responded making a series of written points in defence of the allegations and complaining about the School's failure to "allow him a basic right of representation", in circumstances where "the hearing affects a lot more than future employment". Prior to the hearing, the Claimant also provided a "statement" disputing the allegations and addressing the incident in the church, the text messages and his subsequent conversation with the School's child protection officer. The hearing before the Disciplinary Committee[13]The hearing before the Disciplinary Committee took place on the same day, 21 February. The Committee was chaired by the School's chair of governors. The head teacher, as investigating officer, presented the management case, primarily by reference to her investigation report and attached materials. The Claimant, accompanied by his father, represented himself. Oral evidence was given by the School's child protection officer and one other witness. The Claimant declined to answer questions, stating that he believed the proceedings to be unfair for the reasons given in his solicitors' letters. The dismissal decision of the Disciplinary Committee[14]By letter dated 27 February 2008, the chair of governors informed the Claimant of the outcome of the Disciplinary Committee's hearing. The letter addressed first the issue of representation:
"The panel noted your objections that you had been informed that you could not be represented by your solicitor ... . However under the schoolsdisciplinary policy and according to the ACAS code of practise this would not have been appropriate. The school policy clearly states that you are only entitled to bring a friend who may be a trade union representative. The ACAS code of practise and the City Council's policy are clear that you can be accompanied by a fellow worker or an official of a trade union."
The letter continued:
"The purpose of the hearing was to consider an allegation that you inappropriately touched a child under the supervision of the school and instigated an inappropriate relationship with him" 15. "... 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. 16. 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 ... . 17. 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."
(emphasis added)

The appeal

[15]By letter dated 4 March 2008 from the Claimant's solicitors to the chair of governors, the Claimant gave notice of intention to appeal against the dismissal decision. In addition to setting out grounds in relation to the substantive allegations, the Claimant's solicitors complained about the failure to allow legal representation and, further, requested that the Claimant be allowed legal representation on the appeal. The second decision refusing legal representation[16]By letter dated 13 March 2008, the head teacher, referring to the letter of 4 March 2008, informed the Claimant that his appeal would be heard by the staff appeal committee ("the Appeal Committee") and stated: "You have the right to be represented at your appeal by your trade union representative or work colleague".[17]Subsequently the Appeal Committee agreed to the adjournment of the appeal hearing. On 10 April 2008, the chair of governors prepared a report for the Appeal Committee, to inform that committee of the rationale for the dismissal decision and recommending that that decision be upheld. The appeal was further adjourned until 6 May 2008. In the course of further correspondence about the appeal hearing, by letter dated 2 May 2008, the Claimant's solicitors asked, again, whether representation by solicitor would be allowed at the appeal hearing. By letter dated 6 May 2008, the Appeal Committee confirmed that the position on representation remained as previously explained. In this way, the Appeal Committee confirmed its refusal to allow legal representation. Notification to the Secretary of State[18]By letter dated 7 May 2008, the chair of governors notified the Children's Safeguarding Operations Unit (POCA) of the Claimant's dismissal for gross misconduct, enclosing the investigation report and the dismissal decision - as the evidence of the relevant misconduct - and of the Claimant's outstanding appeal. On the same date the School informed the Claimant that the matter had been referred to the Secretary of State. By letter dated 16 May 2008, the Independent Safeguarding Authority responded to the School, informing it that its role was to provide advice to the Secretary of State on whether he should take action under s.142 EA and asking for all information which the School considered to be relevant to the Claimant's case (see Regulation 4 referred to in paragraph 23 below). The application for judicial review[19]Following a pre-action protocol letter dated 8 May 2008, on 19 May 2008 the present proceedings were issued and interim relief was sought. By letter dated 21 May 2008, the Defendant's solicitors indicated that the Defendant was willing to write to the Secretary of State to notify him of the application for judicial review and that the appeal to the Appeal Committee would be stayed in the meantime. On the same day, Mr. Kenneth Parker QC sitting as a deputy High Court Judge granted a temporary stay of the appeal proceedings. On 7 July 2008 Mr. Justice Hodge granted permission to apply for judicial review and ordered that the stay of the appeal proceedings be continued until the determination of the judicial review. Accordingly, since that date, no further steps have been taken in relation to the Claimant's appeal to the Appeal Committee. Legislative Background The Education Act 2002 and regulations made thereunder[20]There is a series of statutory provisions which provides the framework enabling the Secretary of State to prohibit certain individuals from working with vulnerable groups. The Protection of Children Act 1999 ("POCA") provides the power in respect of those working for a child care organisation; the Care Standards Act 2000 ("CSA") deals with prohibition from working with vulnerable adults ("POVA"); and section 142 EA provides the Secretary of State with the power to prohibit an individual from providing education at schools or further education institutions. In addition, there is the procedure for orders for disqualification from working with children under s.28 Criminal Justice and Court Services Act 2000 ("CJCSA") in respect of persons convicted or charged with certain sexual offences. The present case is concerned with the Secretary of State’s s.142 EA powers.[21]If a direction is made under s.142, it generally results in the individual being forbidden indefinitely from carrying out any further work which directly or indirectly involves children. A person who is made subject to a s.142 direction is placed on a list of such persons, historically known as List 99. The relevant statutory provisions are contained in the Education Act 2002 itself and in regulations made thereunder the Education (Prohibition from Teaching or Working with Children) Regulations 2003 ("the 2003 Regulations"). The provisions can be considered in two stages: the making of a direction by the Secretary of State and the procedure for appeal to what was until recently known as the Care Standards Tribunal (and is now the Health, Education and Social Care Chamber of the First Tier Tribunal) ("the Tribunal"). (The Tribunal also hears appeals under the POCA and POVA procedures).[22]As regards the making of a s.142 direction, s. 142 provides as follows: ‘142– Prohibition from teaching, etc(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. ...”[23]Further provision relating to the s.142 procedure before the Secretary of State is made in the 2003 Regulations, as follows: ‘Supply of information following dismissal, resignation, etc 4. (1) Where a relevant employer – (a) has ceased to use a person’s services on a ground – (i) that the person is unsuitable to work with children; (ii) relating to the person’s misconduct; or (iii) relating to the person’s health where a relevant issue is raised, or (b) might have ceased to use a person’s services on such a ground had the person not ceased to provide those services, the relevant employer shall report the facts of the case and provide all the information listed in Part 1 of Schedule 1 that is available to the relevant employer in relation to such person to the Secretary of State... . Representations, evidence and information 6. (1))Subject to paragraph (3) and save where regulation 8 applies, where the Secretary of State is considering exercising his powers under section 142 of the 2002 Act he shall afford the person concerned the opportunity to make representations to him and, where appropriate submit medical evidence or other evidence to him within 2 months of the date on which notice of that opportunity is served on the person concerned or, where he is satisfied that the person had good reason not to make such representations or submit such evidence within that period, such further period as the Secretary of State considers reasonable ...”[24]Part 1 of Schedule 1 of the 2003 Regulations then set outs the information to be supplied by an employer under Regulation 4, including a statement of reasons for ceasing to use the person’s services; the employer’s records relating to the cessation relating and to the conduct in question, including notes and minutes of meetings, interview notes and evidence supplied to or obtained by the employer; the employer’s letters, warnings or notices issued to a person and the person’s replies or representations in relation thereto; any other statements, representations and evidence submitted by a person to the employer; and any other document or information which the employer considers is relevant to the exercise of the Secretary of State’s functions under section 142 EA.[25]In some cases, where there is new information available or evidence of a change of circumstances, a s.142 direction may be revoked or varied by the Secretary of State himself: s.142 (6) and Regs. 9(1) and (2). However in a case where the direction has been given on the grounds of unsuitability to work with children and the person asks for variation or revocation on the basis that he is no longer so unsuitable, only the Tribunal can revoke the direction : see s.142(6), 144(2) and (3) and Regs. 10 and 11.[26]As regards appeals to the Tribunal in respect of s.142 directions, s.144 EA provides: "144 – Directions under section 142: appeal (1) A person in respect of whom a direction has been given under section 142 may appeal to the First-tier Tribunal (a) against a decision to give the direction (b) against a decision not to vary or revoke the direction …”[27]The 2003 Regulations further provide, in respect of appeals:
“12. (1) Subject to paragraphs (2) and (3) an appeal to the First-tier Tribunal may be brought by a person in respect of whom a direction has been given under section 142 of the 2002 Act– (a)save where regulation 8 applies, against a direction given to him by the Secretary of State under section 142 of the 2002 Act; and (b)save where regulation 8(1)(b) or (c) applies, against a refusal by the Secretary of State to revoke or vary a direction given to him under section 142 of the 2002 Act following consideration of the information or evidence referred to in regulation 9. (2)No appeal may be brought on the ground of information or evidence referred to in regulation 9(2) unless that information or evidence has first been brought to the attention of the Secretary of State under regulation 9. (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. 13. (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 First-tier 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.”
[28]As regards sanctions, if the prohibited individual acts in breach of a s.142 direction, he commits a criminal offence punishable by up to five years imprisonment: see s.35 CJCSA, which applies, without distinction, not only to those subject to a s.142 direction and those subject to a final POCA listing, but also to those who have been made subject to a disqualification order under s.28 CJCSA. In fact the s.35 criminal sanction applies not only to teaching work in schools (to which the direction is principally directed), but also to work in a much wider range of “regulated positions” (as that term is defined in s.36 CJCSA).[29]The "listing" regime under s.142 EA bears similarities to those for the POCA and POVA lists under POCA and CSA respectively, but there are differences. In particular, the POCA and POVA regimes have a procedure for "provisional" listing by the Secretary of State, which is not present under the s.142 procedure, and the criminal sanctions provided in s.35 CJCSA do not apply to a provisional listing. Whilst the POCA and POVA regimes also provide for appeals from the Secretary of State to the Tribunal, the provisions governing appeals to the Tribunal are not the same. For example, under the POVA regime, s.86(3) Care Standards Act 2000 expressly provides that the Tribunal itself has to be satisfied that the relevant individual was guilty of misconduct. I have been referred to the decisions in the recent "POVA" cases of R (on the application of Wright v. Secretary of State for Health [2007] EWCA Civ 999 [2008] QB 422 and now [2009] UKHL 3 [2009] 2 WLR 267 and Joyce v. Secretary of State for Health [2008] EWHC 1891 (Admin). Given the differences between the POVA and s.142 regimes, these cases are not directly in point and only provide some limited assistance in the present case.[30]In summary, under the s.142 regime, where a school has dismissed a teacher on the ground that he is unsuitable to work with children or relating to the teacher's misconduct, the school is under an obligation to report the facts and to provide all relevant information to the Secretary of State. In deciding whether to make a s.142 direction, the Secretary of State will receive written representations and there is no opportunity or requirement to allow an oral hearing with legal representation. I consider further below both the nature of the Secretary of State's inquiry when exercising his power to make a s.142 direction and the scope of the Tribunal's review jurisdiction on appeal under s.144. The Convention[31]Article 6 of the European Convention on Human Rights ("ECHR") provides, inter alia: " Right to a Fair Trial ‘(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 ... … . (3) Everyone charged with a criminal offence has the following minimum rights: ... (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 Employment Relations Act 1999[32]Section 10 of the Employment Relations Act 1999 ("ERA") deals with a worker's right to be accompanied at a disciplinary or grievance hearing. By s.10 (2A) and (3) an employer must permit the worker to be accompanied by one companion who is either "employed by a trade union of which he is an official .. or an official of a trade union whom the union has reasonably certified as having experience of, or as having received training in, acting as a worker's companion at disciplinary or grievance hearings; or another of the employer's workers." The Sexual Offences Act 2003[33]The Claimant refers to two offences of "abuse of position of trust" under the Sexual Offences Act 2003 (“SOA”). First, section 16 SOA provides: "16 – Abuse of position of trust: sexual activity with a child (1)A person aged 18 or over (A) commits an offence if – (a)he intentionally touches another person (B), (b)the touching is sexual, and (c)A is in a position of trust in relation to B, … (e) either – (i)B is under 18 and A does not reasonably believe that B is 18 or over, or (ii) B is under 13 ... (2) This subsection applies where A – (a)is in a position of trust in relation to B by virtue of circumstances within section 21(2), (3), (4) or 5 ...” Secondly, section 17 SOA provides for a further offence of abuse of position of trust; in this case by “causing or inciting a child to engage in sexual activity”. The elements relating to “age” and “position of trust” mirror those in s.16(1)(c) and (e) and (2)(a).[34]The Claimant claims that the allegations made against the Claimant are allegations of conduct which falls within the offences in s.16 and s.17 SOA and refers to the dismissal decision (set out in paragraph 14 above), where the formulation is in terms of abuse of trust. The Parties' contentions and the Issues[35]The Claimant's case is as follows:(1) The disciplinary proceedings before the Disciplinary Committee (and the Appeal Committee), including the referral to the Secretary of State and thereafter leading to the making of s.142 direction by the Secretary of State constitute a single procedure. By virtue of the seriousness of the conduct alleged and the severity of the consequences of a s.142 direction, these proceedings constituted proceedings in respect of a "criminal charge" against the Claimant within the meaning of that term in Article 6(1) ECHR.(2) Accordingly, the Claimant was entitled to the procedural protection provided, specifically for criminal proceedings, in Article 6(3)(c) and (d). The Defendant infringed Article 6(3)(c) and (d) by: (a) refusing to permit the Claimant legal representation at the disciplinary hearing on 21 February 2008 and in the forthcoming hearing before the Appeal Committee; and (b) failing to allow any examination or cross-examination of M at either hearing.(3) Alternatively, if the disciplinary proceedings are not in respect of a "criminal charge", they nevertheless involve the determination of the Claimant's civil rights and obligations" under Article 6(1), and, in view of the gravity of the allegations and of the consequences of a s.142 direction, legal representation at the disciplinary hearings was and is, in any event, required as a commensurate measure of procedural protection. This is the alternative "civil" limb of the Claimant’s case made by the Additional Ground.[36]The Defendant contends as follows:(1) The disciplinary proceedings, including the procedure leading up to the making of a s.142 direction, are "civil" for the purposes of Article 6(1) and thus Article 6(3) does not apply at all.(2) In any event, the procedure is a two-stage process: the disciplinary proceedings leading up to dismissal and the subsequent procedure leading to the making of a s.142 direction are quite distinct, leading to distinct outcomes; and the first, disciplinary, stage is clearly "civil" for the purposes of Article 6(1). In the context of the issue of whether the Claimant was entitled to legal representation at the hearings of the Disciplinary Committee and the Appeal Committee, the consequences of the making of a s.142 direction do not fall to be considered; those hearings are concerned only with dismissal.(3) On the Claimant's alternative "civil" case, no protection by way of legal representation was and is required; in particular, because the procedure is a two-stage process, the severity of the consequences of a s.142 direction cannot be taken into account in considering whether legal representation is necessary at the first stage alone. The statutory rule, under s.10 ERA, of entitlement only to trade union representation or work colleague applies.(4) The application for judicial review is, in any event, premature and there are other avenues available to protect the Claimant and in which his Article 6 rights can be vindicated, in particular before the Secretary of State, the Tribunal and an employment tribunal upon a claim for unfair dismissal. (The Defendant no longer relies upon delay as a further ground for refusing relief).[37]The issues are thus as follows: Breach of Article 6(3)(1) Are the disciplinary procedure conducted by the Defendant and the procedure leading to the making of a s.142 direction by the Secretary of State to be regarded as one and the same proceedings for the purposes of Article 6(1)?(2) If the answer to (1) is yes, does the disciplinary procedure conducted by the Defendant amount to proceedings in respect of a "criminal charge", such that the provisions of Article 6(3)(c) and (d) applied to that procedure? Breach of Article 6(1)(3) If the answer to (2) is no, and the disciplinary procedure is "civil" for the purposes of Article 6(1), was, and is, the Claimant nevertheless entitled to legal representation at the hearings before the Disciplinary Committee and the Appeal Committee, as being procedural protection commensurate with the gravity of the allegations and the potential consequences of that procedure? I consider here the Defendant's contentions that the Claimant can adequately put his case to the Secretary of State or to the Tribunal. Alternative remedy(4) In any event, does an employment tribunal provide the Claimant with an alternative remedy, such that judicial review should be refused substantively or as a matter of discretion? Case law on Article 6[38]Before turning to consider these issues, I refer to the principal relevant case law on the meaning of "criminal" and "civil" proceedings for the purposes of Article 6 ECHR. Engel[39]The starting point for the meaning of the term "criminal charge" in Article 6 is the judgment of the European Court of Human Rights in Engel and others v. The Netherlands (No. 1) (1976) 1 EHRR 647, which propounded a three-fold test as follows (§82):
“82. ... It is first necessary to know whether the provision(s) defining the offence belong, according to the legal system of the respondent state, to criminal law, disciplinary law or both concurrently. This however provides no more than the starting point. The indications so afforded have only a formal and relative value and must be examined in the light of the common denominator of the respective legislation of the various Contracting States. The very nature of the offence is a factor of greater import ... However supervision by the court does not stop there. Such supervision would generally prove to be illusory if it did not also take into consideration the degree of severity of the penalty that the person concerned risks incurring”
(emphasis added) The case law of the English courts since 2000[40]Since 2000, there have been a series of decisions of the English courts in which the issue of the distinction between "civil" and "criminal" proceedings has been considered.[41]In B v. Chief Constable of the Avon and Somerset Constabulary [2001] 1 WLR 340, the Divisional Court considered the standard of proof to be applied in proceedings for the making of a sex offender order under s.2 Crime and Disorder Act 1998 ("CDA"). The Court held that, as a matter of domestic law, such proceedings were civil and observed that the position was not different under the ECHR. In order for such an order under s.2 CDA to be made against a person, two conditions had to be satisfied: first, the person had to be a sex offender (i.e. he had to have a relevant conviction), and secondly and additionally, he had to "[have] acted" in such a way as to give reasonable cause to believe that an order was necessary to protect the public from serious harm from him. To establish the second condition, it was necessary to demonstrate past conduct (other than the conviction(s)) which gave rise to the belief in the risk of future harmful conduct. In B, nine allegations of such past conduct were made and the question was as to the standard of proof to be applied in determining those allegations. The Act provided that such a sex offender order would impose prohibitions for the purpose of protecting the public from serious harm from the defendant; in B, the order in question essentially prohibited the defendant from having contact with children. Lord Bingham CJ addressed the contention that the application for a sex offender order is “criminal” as a matter of domestic law, as follows: 24. … Miss Booth relies on the severe consequences which may follow for the defendant on the making of a sex offender[42]In R v. Securities and Futures Authority Ltd ex parte Fleurose [2001] EWCA Civ 2015 [2002] IRLR 297, the Court of Appeal considered disciplinary proceedings brought by the SFA against a securities trader for misconduct, as a result of which the trader was suspended from working on the market for two years. The Court of Appeal concluded (at §13):
“13. We accept of course that to be debarred from gaining one's livelihood in an activity in which one has done so for much of one's life is a serious matter. However, applying the principles recently set out in Han & Yau quoted above we are not persuaded by any of these submissions that the proceedings instituted by the SFA against M Fleurose are properly to be regarded as involving a criminal charge or offence.”
The Court however went on to make the following observations about the requirements of procedural fairness applicable in "civil proceedings" 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 (emphasis added)[43]The next two cases in the series are Gough (dealing with football banning orders) and McCann (which dealt with anti-social behaviour orders). The decisions in the two cases overlap in time.[44]In Gough v. Chief Constable of the Derbyshire Constabulary the Divisional Court ([2001] EWHC Admin 554; [2002] QB 459) rejected a challenge to the legality of ss.14A and 14B of the Football Spectators Act 1989. This was upheld on appeal by Court of Appeal ([2002] EWCA Civ 351 [2002] QB 1213). Whilst s.14A dealt with the position where a defendant had been convicted of football-related offences, by contrast s.14B did not require any prior conviction. S. 14B provided for magistrates to make a football banning order where a person "has ... caused or contributed to any violence or disorder" and where the court is satisfied that the making of such an order would help to prevent violence or disorder at or in connection with certain football matches.[45]Before the Divisional Court, the issue of the nature of such proceedings was considered both in the context of Article 7 ECHR and under Article 6 ECHR. Laws LJ stated (at §§35 et seq): "35. Although I have said that the categorisation of the proceedings in which the order is made as "criminal" is of itself very largely unhelpful in relation to the "penalty" issue under article 7, there is jurisprudence concerning the classification of proceedings, as opposed to orders made in proceedings, in which as it seems to me the reasoning offers assistance on the article 7 question... . [In McCann in the Court of Appeal] Lord Phillips of Worth Matravers MR said, at pp 1094-1095:"38. Mr Fulford submitted that the prohibitions imposed by an anti-social behaviour order can have severe consequences to a defendant. In the present case the order prohibits the applicants from going into an area of Manchester where they have family and friends. Mr Fulford submitted that such a restriction of liberty operates as a penalty."39. Many injunctions in civil proceedings operate severely upon those against whom they are ordered. In matrimonial proceedings a husband may be ordered to leave his home and not to have contact with his children. Such an order may be made as a consequence of violence which amounted to criminal conduct. But such an order is imposed not for the purpose of punishment but for protection of the family. This demonstrates that, when considering whether an order imposes a penalty or punishment, it is necessary to look beyond its consequence and to consider its purpose."40. An order which is, in terms, restricted to the prohibition necessary to protect persons from anti-social behaviour is manifestly an order designed to protect in the future not to punish for past misconduct." 36. In my view this reasoning serves to emphasise the difference between a punitive order and one whose purpose is to offer future protection to the public or a section of it … 37. As I have acknowledged, many court orders may serve both a punitive and a preventive or protective purpose. The use of imprisonment in criminal cases is itself a prime example; and a community sentence is no less a penalty by reason of the fact that its principal focus may be rehabilitative. In truth, a just and humane system for the punishment of criminals is bound to have all these different ends in view. It follows that a punitive or retributive purpose no more marks an order as a penalty than a protective order serves to take it out of such a category. That being so the court is, as it seems to me, likely to be assisted by considering whether, in the statutory scheme before it, the predominant purpose of the measure under scrutiny is punitive or for the protection of the public at large or a section of it. … 42. In my judgment it is plain that a football banning order, whether made under section 14A or section 14B , is not a penalty within the autonomous sense of the term for the purposes of article 7. (1) In my judgment it is no part at all of the purpose of any such order to inflict punishment. The fact that it imposes a detriment on its recipient no more demonstrates that it possesses a punitive element than in the case of a Mareva injunction. The purpose is to protect the public, here and abroad, from the evil of football violence and the threat of it. … (4) As for the orders' severity, I would accept that the restrictions they impose are more than trivial; and under the 1989 Act they are potentially more burdensome than previously. How harshly they might bear on any individual must, I would have thought, be largely subjective. However that may be, it is clear from the Strasbourg jurisprudence, not least Welch v United Kingdom 20 EHRR 247 itself, that severity alone cannot be decisive; and in my judgment the burdens or detriments involved cannot conceivably confer the status of penalty on banning orders if otherwise they do not possess it, which in my judgment plainly they do not. …. 87 …An application under s. 14B is, categorically, not a criminal charge, and no amount of special pleading will make it so. Mr Pannick referred to Raimondo (1994) 18 EHRR 237. In that case the applicant was placed under special police supervision in the course of certain criminal proceedings against him. At paragraph 43 the Court said: “… special supervision is not comparable to a criminal sanction because it is designed to prevent the commission of offences. It follows that proceedings concerning it did not involve ‘the determination … of a criminal charge’.” (emphasis added) In giving the judgment of the Court of Appeal, Lord Phillips MR (at §89) specifically approved of Laws LJ's above analysis. At §90, Lord Phillips went on to conclude that, whilst technically the civil standard of proof applied, that standard is flexible and must reflect the consequences that follow from the banning order. In that case, in practice the magistrates should apply an exacting standard which would be hard to distinguish from the criminal standard.[46]In R (on the application of McCann) v. Crown Court at Manchester [2002] UKHL 39 [2003] AC 787, the House of Lords held that proceedings under s.1 (1) CDA for an anti-social behaviour order were civil, and not criminal, both as a matter of domestic law and for the purposes of Article 6 ECHR (but went on to hold that, in such proceedings, magistrates should nevertheless apply the criminal standard of proof). S.1 (1) CDA provided that, in order to make such an order, two conditions had to be satisfied: the first condition was that the person in question "has acted" in an anti-social manner, being a manner which caused or was likely to cause harassment, alarm or distress to one or more persons; the second condition was that an order was necessary to protect persons in the local area from further anti-social acts by him. In the case before the court, the relevant past conduct relied upon covered a wide range of behaviour from verbal abuse to serious criminal activities including assault, burglary, criminal damage, and theft. The orders made included prohibitions on entering a specified geographic area, as well as broad prohibitions upon engaging in using abusive and threatening language and behaviour. Lord Steyn first concluded (at §§25 to 27) that the proceedings are civil proceedings under domestic law, relying upon §39 of Lord Phillips MR’s judgment in the Court of Appeal (set out in paragraph 45 above in Laws LJ’s judgment in Gough) and upon the judgments in B and in Gough. Lord Steyn then considered the position under Article 6 ECHR, stating:
“30 In Engel v The Netherlands (No 1) (1976) 1 EHRR 647, 678-679 , para 82, the European Court established three criteria for determining whether proceedings are "criminal" within the meaning of the Convention, namely (a) the domestic classification, (b) the nature of the offence, and (c) the severity of the potential penalty which the defendant risks incurring. The character and attributes of the proceedings for an anti-social behaviour order have been outlined. Domestically, they are properly classified as civil. That is, however, only a starting point. Turning to factor (b), the position is that the order under the first part of section 1 does not constitute a finding that an offence has been committed: contrast the community charge decision in Benham v United Kingdom (1996) 22 EHRR 293 . It is right, however, to observe that the third factor is the most important. Here the position is that the order itself involves no penalty. The established criteria suggest that the proceedings were not in respect of a criminal charge. … 33 The conclusion I have reached is reinforced by a cogently reasoned judgment on the interpretation of article 6 by the Lord President (Lord Rodger of Earlsferry) in S v Miller 2001 SC 977 . Section 52(2) of the Children (Scotland) Act 1995 provides that a child may have to be subjected to compulsory measures of supervision when he "has committed an offence". The question arose whether in such proceedings article 6 is applicable. The Lord President observed, at pp 989-990: "23 ... at the stage when S was arrested and charged by the police on 31 October, he was indeed 'charged with a criminal offence' in terms of article 6, since he was liable to be brought before a criminal court in proceedings which could have resulted in the imposition of a penalty. He remained 'charged with a criminal offence' in terms of article 6 until the procurator fiscal decided the following day—in the language of section 43(5) of the Criminal Procedure Act —'not to proceed with the charge'. At that point the criminal proceedings came to an end and the reporter initiated the procedures under the 1995 Act by arranging a hearing in terms of section 63(1). In my view, once the procurator fiscal has decided not to proceed with the charge against a child and so there is no longer any possibility of proceedings resulting in a penalty, any subsequent proceedings under the 1995 Act are not criminal for the purposes of article 6. Although the reporter does indeed intend to show that the child concerned committed an offence, this is not for the purpose of punishing him but in order to establish a basis for taking appropriate measures for his welfare. That being so, the child who is notified of grounds for referral setting out the offence in question is not thereby 'charged with a criminal offence' in terms of article 6. …”
I am in complete agreement with this reasoning as correctly reflecting the purpose of article 6. And it applies a fortiori to proceedings under section 1. After all, section 1(1) does not require proof of a criminal offence. (emphasis added) … "23 ... at the stage when S was arrested and charged by the police on 31 October, he was indeed 'charged with a criminal offence' in terms of article 6, since he was liable to be brought before a criminal court in proceedings which could have resulted in the imposition of a penalty. He remained 'charged with a criminal offence' in terms of article 6 until the procurator fiscal decided the following day—in the language of section 43(5) of the Criminal Procedure Act —'not to proceed with the charge'. At that point the criminal proceedings came to an end and the reporter initiated the procedures under the 1995 Act by arranging a hearing in terms of section 63(1). In my view, once the procurator fiscal has decided not to proceed with the charge against a child and so there is no longer any possibility of proceedings resulting in a penalty, any subsequent proceedings under the 1995 Act are not criminal for the purposes of article 6. Although the reporter does indeed intend to show that the child concerned committed an offence, this is not for the purpose of punishing him but in order to establish a basis for taking appropriate measures for his welfare. That being so, the child who is notified of grounds for referral setting out the offence in question is not thereby 'charged with a criminal offence' in terms of article 6. …”[47]Lord Hope, dealing with the position under Article 6, said:
“64. The underlying idea is that proceedings do not lie within the criminal sphere for the purposes of article 6 unless they are capable of resulting in the imposition of a penalty by way of punishment. In B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340, 353, para 28 Lord Bingham of Cornhill CJ said that he was aware of no case in which the European Court has held a proceeding to be criminal even though an adverse outcome for the defendant cannot result in any penalty. I agree. Although there are other aspects of the procedure which suggest that in proceedings for the imposition of an anti-social behaviour order the person is not "charged with a criminal offence", the critical question as I see it is whether the making of such an order amounts to the imposition of a penalty. But it is first necessary to consider whether either of the first two criteria are satisfied. The first criterion: classification in domestic law 65. A finding that the proceedings were classified as criminal in domestic law is likely to be conclusive. But a finding that they are civil is of relative weight and serves only as a starting point: Benham v United Kingdom 22 EHRR 293, 323 , para 56. In Lauko v Slovakia (1998) 33 EHRR 994, 1010-1011, para 57 the court observed that the criteria are alternative and not cumulative: see also Garyfallou AEBE v Greece (1997) 28 EHRR 344 . As it was put in Öztürk v Germany 6 EHRR 409, 424, para 54, one criterion cannot be applied so as to divest an offence of a criminal character if that has been established under another criterion. But it was recognised in Lauko v Slovakia, at p 1011, para 57, that a cumulative approach may be adopted if the separate analysis of each of them does not lead to a clear conclusion as to the existence of a "criminal charge". For the reasons already given, I consider that the position under domestic law is that the proceedings are classified as civil proceedings and not criminal. ... The second criterion: the nature of the offence. … 72. Furthermore the decision whether or not to make the order does not depend solely on proof of the defendant's conduct. The application may only be made if it appears to the local council or the chief constable that an order is necessary to protect persons in the area, and consultation between them is required before the application is made. Thus the proceedings are identified from the outset as preventive in character rather than punitive or disciplinary. This is a strong indication that they are not proceedings for the determination of a criminal charge against the defendant. In Lauko v Slovakia 33 EHRR 994, 1011, para 58 the court said that the fine imposed in that case was intended as a punishment to deter re-offending and that it had "a punitive character, which is the customary distinguishing feature of criminal penalties". In Guzzardi v Italy(1980) 3 EHRR 333, 369-370 , para 108 the court said that proceedings under which the applicant, as a suspected Mafioso, had been placed under special supervision with an obligation of compulsory residence within a restricted area did not involve the determination of a criminal charge against him within the meaning of article 6 : see also Raimondo v Italy 18 EHRR 237 . In M v Italy (1991) 70 DR 59, the commission held that article 6(2) did not apply to confiscation of property belonging to a person suspected of being a member of a mafia-type organisation. In neither of these cases was the imposition of the order regarded as being punitive. … … The third criterion: is an anti-social behaviour order a penalty? 75 This question looks to the nature of the penalty. But here again there is a preliminary question that has to be examined. Is an anti-social behaviour order a penalty at all? The essential characteristics of an anti-social behaviour order are that the defendant is prohibited from doing something. The purpose of the prohibition is to protect people in the area to which the order relates. … 76 An anti-social behaviour order may well restrict the freedom of the defendant to do what he wants and to go where he pleases. But these restrictions are imposed for preventive reasons, not as punishment. The test that has to be applied under section 1(6) is confined to what is necessary for the purpose of protecting persons from further anti-social acts by the defendant. The court is not being required, nor indeed is it permitted, to consider what an appropriate sanction would be for his past conduct. Moreover, while the court may restrict the defendant's liberty where this is shown to be necessary to protect persons in the area from further anti-social acts by him, it may not deprive him of it nor may it impose a fine on him.”
(emphasis added) The first criterion: classification in domestic law The third criterion: is an anti-social behaviour order a penalty? Lord Hutton (at §102) also relied expressly upon the passage from S v. Miller cited by Lord Steyn at §33.

The third criterion: is an anti-social behaviour order a penalty?

[48]In R v Field [2002] EWCA Crim 2913 [2003] 1 WLR 882, the Court of Appeal considered the issue of whether an order under s.28 CJCSA disqualifying the defendant from working with children indefinitely constitutes a penalty under Article 7 ECHR (rather than whether proceedings was "criminal" for Article 6 purposes). After considering, in some detail, the decisions in B, Gough and McCann referred to above, the Court of Appeal concluded (at §58) that "when one considers that nature and purpose of such an order it points overwhelmingly to this being for preventative rather than punitive effect" and "the various authorities ... lead to an inevitable conclusion that a section 28 disqualification order is not a penalty within the meaning of Article 7".[49]Finally, in the most recent case, Secretary of State for the Home Department v. MB [2008] 1 AC 440, the House of Lords considered non-derogating control orders made under s.2 (1) Prevention of Terrorism Act 2005; the effect of the order in one of the appellants' case was to impose a 14 hour curfew and further substantial restrictions in non-curfew hours (see §7). The House of Lords held that proceedings for such orders are "civil", and not "criminal" for Article 6 purposes. Lord Bingham, giving the leading speech on this issue, stated:"15. … It is contended on [AF’s] behalf that control order proceedings fall within the criminal limb of art 6 or, alternatively, that if they fall within the civil limb only they should nonetheless, because of the seriousness of what is potentially involved, attract the protection appropriate to criminal proceedings.16. This is not a contention which can be lightly dismissed, for two reasons. First, it may very well be (although the point was not argued) that proceedings for a derogating control order are criminal in character. This was the unequivocal view of the Joint Committee on Human Rights (Twelfth Report of Session 2005-2006, HL Paper 122, HC 915), para 49: “In our view it is clear that the criminal limb of article 6(1) ECHR applies to proceedings for a derogating control order. In such a case the full right to due process in article 6(1) applies.” But, as the Council of Europe Commissioner for Human Rights pointed out in his Report of 8 June 2005, para 20, and the Joint Committee (para 52 of its report) agreed, the obligations imposed by a derogating control order differ from those in a non-derogating control order only in their degree of severity, and: “It would be curious if at least immediately below this most extreme sanction, there were not other limitations or restrictions of sufficient severity to warrant the classification of the obligations as tantamount to a criminal penalty.”17. Secondly, the law on this subject 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) (1976) 1 EHRR 647, 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 (1983) 5 EHRR 533, 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 [2002] EWCA Civ 158, [2003] QB 728, paras 33, 148, [2002] 3 WLR 344) 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 parte Fleurose [2001] EWCA Civ 2015, [2002] IRLR 297, para 14).18. It was said in Customs and Excise Commissioners v City of London Magistrates' Court[2000] 4 All ER 763, [2000] 1 WLR 2020, 2025, [2000] 2 Cr App Rep 348 that in this country: “criminal proceedings involve a formal accusation made on behalf of the state or by a private prosecutor that a Defendant has committed a breach of the criminal law, and [that] the state or the private prosecutor has instituted proceedings which may culminate in the conviction and condemnation of the Defendant.” Thus if or when the relevant authority decides not to prosecute and there is no possibility of conviction or penalty, there are then no criminal proceedings: S v Miller 2001 SC 977, paras 20, 23; R (R) v Durham Constabulary [2005] UKHL 21, [2005] 2 All ER 369, [2005] 1 WLR 1184, para 14. For present purposes, however, guidance on the distinction between determination of a civil right and obligation and determination of a criminal charge is to be found in the Strasbourg jurisprudence, and in particular in the leading case of Engel, above, para 82. 19. The starting point is to ascertain how the proceedings in question are classified in domestic law. … It is the substance which matters. More significant in most cases are the second and third Engel criteria, the nature of the offence and the degree of severity of the penalty that the person concerned risks incurring. Here we reach the heart of the argument. … 21. … On any common sense view involvement in terrorism-related activity is likely to be criminal. But the Secretary of State is entitled to respond, as he does, that the controlled person is not charged with such conduct. This is not a point which turns on procedural requirements, which will vary from state to state. It is a point which turns on the distinction between suspecting A of doing X (“I suspect but I cannot prove”: Shaaban Bin Hussien v Chong Fook Kam [1970] AC 942, 948, [1969] 3 All ER 1626, [1970] 2 WLR 441) and asserting that A has done X. There is an obvious contrast between the reasonable suspicion required of the Secretary of State under ss 2(1)(a) and 3(10) of the Act and the satisfaction required of the court under s 4(7)(a). … 22. The Secretary of State further submits that it is an essential feature of a criminal process that it exposes a person to the risk of conviction and punishment. Here, he says, controlled persons are exposed to no such risk. The counter-argument is that the proceedings expose the controlled person to adverse consequences of a very serious kind, more serious than the great majority of criminal penalties. Reliance is placed by analogy on observations of the Joint Committee on Human Rights (“Legislative Scrutiny: Fifth Progress Report”, HL Paper 91, HC 490, 25 April 2007, para 1.13), made with reference to serious crime prevention orders. 23. It cannot be doubted that the consequences of a control order can be, in the words of one respected commentator, “devastating for individuals and their families” (Justice Chaskalson, “The Widening Gyre: Counter-terrorism, Human Rights and the Rule of Law,” Seventh Sir David Williams Lecture, p 15). But the tendency of the domestic courts (not without criticism: see Ashworth, “Social Control and 'Anti-Social Behaviour': The Subversion of Human Rights?” (2004) 120 LQR 263) has been to distinguish between measures which are preventative in purpose and those which have a more punitive, retributive or deterrent object. Examples of the former are B v Chief Constable of Avon and Somerset Constabulary [2001] 1 All ER 562, [2001] 1 WLR 340; Gough v Chief Constable of the Derbyshire Constabulary [2002] EWCA Civ 351, [2002] QB 1213, [2002] 2 All ER 985; and, most notably, R (McCann) v Crown Court at Manchester [2002] UKHL 39, [2003] 1 AC 787, [2002] 4 All ER 593; of the latter, Han v Customs and Excise Commissioners [2001] EWCA Civ 1040, [2001] 4 All ER 687, [2001] 1 WLR 2253; International Transport Roth, above. The same distinction is drawn in the Strasbourg authorities. Treated as non-criminal are preventative measures such as those in issue in the Italian cases already mentioned, Lawless v Ireland (No 3) (1961) 1 EHRR 15; Olivieira v The Netherlands (2000) 30 EHRR CD 258, and Landvreugd v The Netherlands (App no 37331/97, 6 June 2000, unreported; treated as criminal were the measures considered in Öztürk v Germany, above; Demicoli v Malta (1991) 14 EHRR 47; Benham v United Kingdom (1996) 22 EHRR 293; Lauko v Slovakia, above; Garyfallou AEBE v Greece (1997) 28 EHRR 344. Even this distinction, however, is not watertight, since prevention is one of the recognised aims and consequences of punishment (see R (West) v Parole Board [2005] UKHL 1, [2005] 1 All ER 755, [2005] 1 WLR 350) and the effect of a preventative measure may be so adverse as to be penal in its effects if not in its intention. 24. I would on balance accept the Secretary of State's submission that non-derogating control order proceedings do not involve the determination of a criminal charge. Parliament has gone to some lengths to avoid a procedure which crosses the criminal boundary: there is no assertion of criminal conduct, only a foundation of suspicion; no identification of any specific criminal offence is provided for; the order made is preventative in purpose, not punitive or retributive; and the obligations imposed must be no more restrictive than are judged necessary to achieve the preventative object of the order. I would reject AF's contrary submission. This reflects the approach of the English courts up to now: A v Secretary of State for the Home Department [2002] EWCA Civ 1502, [2004] QB 335, para 57, [2003] 1 All ER 816. But I would accept the substance of AF's alternative submission: in any case in which a person is at risk of an order containing obligations of the stringency found in this case, or the cases of JJ and others and E, the application of the civil limb of art 6(1) does in my opinion entitle such person to such measure of procedural protection as is commensurate with the gravity of the potential consequences. This has been the approach of the domestic courts in cases such as B, Gough and McCann, above, and it seems to me to reflect the spirit of the Convention” (emphasis added)

Lord Hoffmann dealt with this issue as follows:

[50]“48. I also agree with my noble and learned friend that a review of a control order is not the determination of a criminal charge. As a matter of English law, this is beyond doubt. MB and AF are not charged with having committed any breach of the law, let alone a terrorist act. The order is made on the basis of suspicion about what they may do in the future and not upon a determination of what they have done in the past. And the restrictions imposed by the order are for the purpose of prevention and not punishment or deterrence. 49. It is of course true that domestic law is not conclusive for the purposes of art 6. The term criminal charge has an autonomous Convention meaning which cannot be circumvented by the labels affixed in domestic law. But the Strasbourg jurisprudence recognises the distinction between determination and punishment of past guilt and prevention of future suspected wrongdoing: see the cases mentioned in paras 21 and 23 of Lord Bingham's opinion. We were not referred to any case in which a genuinely preventative measure based on suspicion of future conduct was held to be the determination of a criminal charge. On this point, domestic and Convention law agree. (emphasis added)

Lord Brown said:

[51]“90. … In particular I agree with [Lord Bingham’s] conclusions at para 24 that non-derogating control order proceedings do not involve the determination of a criminal charge but that nevertheless those against whom such orders are proposed or made are entitled to such measure of procedural protection as is commensurate with the gravity of the potential consequences.” 55. Matyjek: the European Court of Human Rights[52]The Claimant places much reliance upon the further, unreported, decision of the ECtHR in Matyjek v Poland (2006), Application No 38184/03 30 May 2006 (and one which was not cited to the House of Lords in MB). The case concerned “lustration proceedings” in Poland, which were proceedings relating to the making of a false declaration leading to a prohibition on holding public office and other positions. The ECtHR held that such proceedings were “criminal” under Article 6 ECHR. “47. It is the Court’s established jurisprudence that the second and third criteria laid down in Engel are alternative and not necessarily cumulative: for Article 6 to be held applicable, it suffices that the offence in question is by its nature to be regarded as “criminal” from the point of view of the Convention, or that the offence made the person liable to a sanction which, by its nature and degree of severity, belongs in general to the “criminal” sphere … . This does not exclude that a cumulative approach may be adopted where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see Bendenoun v. France … Lauko v. Slovakia …) … 48. As regards the first of the Engel criteria ... the facts alleged against the applicant ... did not fall within the ambit of Polish criminal law but of the Lustration Act. It appears that neither the domestic law nor the established judicial interpretation consider the Lustration Act as criminal law; however, the Warsaw Court of Appeal assumed, at least on some occasions, that it is a ‘repression-related proceedings’ and must be considered as an ‘other law providing for criminal liability’ ... 49. The Court observes that there exists a close connection between lustration proceedings and the criminal law sphere. In particular, the Lustration Act provides that matters not regulated by it are subject to relevant provisions of the Code of Criminal Procedure. Consequently, the Commissioner of Public Interest, who is empowered to initiate the lustration proceedings, has been vested with the powers identical to those of the public prosecutor, which are set out in the rules of criminal procedure … . … 50. The Court also notes that the organisation and the course of the lustration proceedings, as governed by the Act, are based on the model of a Polish criminal trial and that the rules of the Code are directly applicable to lustration proceedings. … 51. In sum, although under the domestic law the lustration proceedings are not qualified as ‘criminal’, the Court considers that they possess features which have a strong criminal connotation.52. The Court reiterates that the second criterion stated above – the very nature of the offence, considered also in relation to the nature of the corresponding penalty – represents a factor of appreciation of greater weight. In this regard the Court finds that the misconduct committed by the applicant consisted of his having lied in a declaration which he had a statutory obligation to submit ... an obligation to submit a declaration is quite a common one, embracing for example declarations of means submitted by members of parliament and many other public officials and tax returns obligatory for all taxpayers. Secondly, a breach of the obligation to state the truth on such occasions is regarded as an offence under the domestic law and normally leads to sanctions, including those of a criminal nature. The Court considers that the offence of making an untrue statement in a lustration declaration is very similar to the above-mentioned offences. Moreover according to the ordinary meaning of the terms, it is analogous to the offence of perjury, which, outside the lustration context, would normally have led to prosecution under the criminal-law provisions.53. The Court also notes that the legal provision infringed by the applicant is not directed at a small group of individuals possessing a special status – in the manner, for example, of disciplinary law. It is directed at a vast group of citizens, born before May 1972, who not only hold many types of public functions, but also wish to exercise professions such as those of barrister, public servant, judge and prosecutor, or intend to stand for presidential or parliamentary election. In this context, the Court finds it necessary to stress that the subject of proceedings before the lustration court is the establishment of the truthfulness of the lustration declaration. Contrary to its title, the law on disclosing work for or service in the State’s security services or collaboration with them between 1944 and 1990 by persons exercising public functions is not about scrutinising the past of those persons, and the historical findings relating to past collaboration with the communist-era security services remain in the background of the proceedings. The lustration court decides whether the person subject to lustration violated the law by submitting a false declaration. If such a finding is made, the statutory sanctions are imposed. Thus, the lustration procedure in Poland is not aimed at punishing acts committed during the communist regime. This approach distinguishes the nature of lustration in Poland from the solutions adopted in other countries ... In light of the above, the Court considers that the offence in question is not devoid of purely criminal characteristics.54. As regards the nature and degree of severity of the penalty that the applicant suffered in the application of the Act, the Court first notes that the Act provides for an automatic and uniform sanction if the person subject to lustration has been considered by a final judgment to have lied in the lustration declaration. A final judgment to that effect entails the dismissal of the person subject to lustration from the public function exercised by him or her and prevents this person from applying for a large number of public posts for the period of 10 years. The Court observes that the moral qualifications, of which the person who has lied in the lustration declaration is automatically divested, are described broadly as : unblemished character, immaculate reputation, irreproachable reputation, good civic reputation, or respectful of fundamental values. The obligation to demonstrate those qualifications is necessary in order to exercise many professions, such as those of prosecutor, judge and barrister. That list is not exhaustive however as the Act refers to other statutes that may, as a prerequisite for exercising a public function, require one of the above-mentioned moral qualifications.55. It is true that neither imprisonment nor a fine can be imposed on someone who has been found to have submitted a false declaration. Nevertheless the Court notes that the prohibition on practising certain professions (political or legal) for a long period of time may have a very serious impact on a person, depriving him or her of the possibility of continuing professional life. This may be well deserved, having regard to the historical context in Poland, but it does not alter the assessment of the seriousness of the imposed sanction. This sanction should thus be regarded as having at least partly punitive and deterrent character56. In the instant case the applicant who is a politician, as a result of having been deemed a “lustration liar” by a final judgment, lost his seat in Parliament and cannot be a candidate for future elections for 10 years. In this connection the Court reiterates that the purpose of lustration proceedings is not to prevent former employees of the communist-era secret services from taking up employment in public institutions and other spheres of activity vital to the national security of the State, since admitting to such collaboration – the so-called “affirmative declaration” - does not entail any negative effects, but to punish those who failed to comply with the obligation to disclose to the public their past collaboration with those services … .57. The Court considers that, given its nature and duration, the sanction provided by the Lustration Act must be considered as detrimental to and as having serious consequences for the Applicant.58. Having weighed up the various aspects of the case, the Court notes the predominance of those which have criminal connotations. In such circumstances the Court concludes that the nature of the offence, taken together with the nature and severity of the penalties, was such that the charges against the applicant constituted criminal charges within the meaning of Article 6 of the Convention" (emphasis added) (emphasis added) Analysis of Issues Issue (1): Are the disciplinary proceedings and the procedure for a s.142 direction part of one and the same proceedings?[53]The Defendant submits that, in considering the application of Article 6, there are two distinct stages: the disciplinary procedure culminating in dismissal and to which standard rules in s.10 ERA apply; and, secondly, the procedure commencing with the referral to the Secretary of State and culminating in the making of a s.142 direction, subject to rights of appeal to the Tribunal. Whatever procedural rights the Claimant may have in the second stage, they have not yet arisen and do not apply to the distinct first stage. The Claimant's Article 6 rights can be exercised in the second stage either before the Secretary of State or on appeal to the Tribunal. Whilst this latter argument was made principally in response to the Claimant's case on Issue (2), in my judgment it also lies at the heart of the Defendant's response to the Claimant's alternative "civil" case under Issue (3). The Defendant's case is that this distinction between the two stages applies, regardless of whether a s.142 direction is "criminal" or "civil" for Article 6 purposes.[54]I do not accept the Defendant's arguments here. In a case such as the present, no distinction can properly be drawn between the dismissal from employment and referral to the Secretary of State. Under Regulation 4 of the 2003 Regulations, an employer is under an obligation to refer the matter to the Secretary of State, once there is a finding, in respect of an employee, of unsuitability for work with children or of misconduct. Thus a referral to the Secretary of State is a natural and likely outcome of the disciplinary procedure. Certainly, at the commencement of disciplinary proceedings involving allegations of sexual misconduct, the outcome of referral to the Secretary of State is inevitable, in the event that the allegations are found to be established. In the present case, the prospect of such a s.142 referral was foreseen from an early stage in the procedure: see letter of 12 December 2007 (paragraph 8 above). In my judgment, in such a case it is not possible to regard dismissal from employment and referral to the Secretary of State as distinct outcomes of the procedure for Article 6 purposes.[55]As to the Defendant's contention that, in any event, the employee can sufficiently exercise his Article 6 rights in the course of the procedure before the Secretary of State, I address this under Issue (3) below. Moreover, as regards the Defendant's contention that either or both of the Tribunal and an employment tribunal provide sufficient protection for the Claimant, I address these issues under Issue (3) and (4) respectively below. In so far as these contentions are relevant to Issue (1), then, for the reasons given below, they do not provide an answer to the Claimant's case.[56]Further support for my conclusion on this issue is provided by ECtHR case law on the question when, in the context of "criminal" proceedings, Article 6(2) and (3) protection commences: see Eckle v. Federal Republic of Germany (1982) 5 EHRR 1 §73, Imbriosca v. Switzerland (1993) 17 EHRR 441 §36, Murray v UK (1996) 22 EHRR 29 and, most recently, Ocalan v. Turkey (2005) 41 EHRR 985 §131. In Ocalan the Court confirmed a test of whether there is "a situation where the rights of defence might well be irretrievably prejudiced". In the present case, where the employer's conclusions on the facts form the basis of a s.142 referral, in my judgment, the fact-finding process before the employer's disciplinary hearing, at the very least, "might well irretrievably prejudice" the employee's position.[57]In my judgment, the disciplinary proceedings before the Disciplinary Committee and the Appeal Committee and the referral to the Secretary of State and consequent procedure leading to a s.142 direction form part of one and the same proceedings for the purposes of Article 6. Issue (2): Disciplinary proceedings a "criminal charge"[58]The Claimant then contends that, applying the second and third Engel criteria cumulatively, the disciplinary proceedings leading up to a s.142 direction are "criminal" for the purposes of Article 6. As to the "nature of the offence", the allegation made by the Defendant against the Claimant is of conduct which, does, in fact, amount to criminal offences under ss.16 and 17 SOA. As to the "severity of the penalty", a prohibition upon ever working with children is a very substantial restriction, depriving the Claimant of the possibility of pursuing a career in teaching. As regards the authorities, the Claimant contends that the facts of the present case can be distinguished from those in each of B, Gough, McCann and MB. In particular, Mr. Drabble QC submits that the reasoning of Lord Bingham in MB in fact supports the conclusion that the proceedings in the present case are "criminal". He says that the decision in MB was very finely balanced, and the decisive factor leading to the conclusion in that case was that there was no need for a charge of actual criminal conduct, but only a requirement for "reasonable suspicion" (see Lord Bingham at §21). By contrast, in the present case, there is, and is required to be, a finding of actual misconduct. Further, he submits, Matyjek provides strong support for his argument; it establishes that being banned from a wide range of employment is capable of being "penal". Whilst accepting that I am bound to follow MB and McCann, he contends that a finding that the s.142 procedure is "criminal" is consistent both with MB and with Matyjek.[59]On this issue generally, the essential principles to be drawn from the decided cases are as follows. First, whilst how the proceedings in question are classified in domestic law is the starting point and important, in most cases it is the second and third Engel criteria (nature of the offence and degree of severity of the penalty) which are more significant: Lord Bingham in MB §19. Secondly, where the application of each of these criteria does not, of itself give a clear answer, it is appropriate to apply these two criteria "cumulatively": see Matyjek §47 and also McCann §65. Thirdly, there is support for the view that, of the Engel criteria, it is the third which is the most important: McCann per Lord Steyn §30 and per Lord Hope §64. Fourthly, where a measure may have both a punitive and a preventative purpose, the measure is to be assessed by reference to its predominant purpose: see Laws LJ in Gough at §37 as approved by Lord Phillips in the Court of Appeal at §89.[60]More specifically, in my judgment, MB and the earlier cases support the Defendant's case here for the following reasons.[61]First, I do not agree that the decisive factor in the House of Lords' decision in MB was that, in that case, there was only a requirement for "reasonable suspicion" under the second Engel criterion. §21 of Lord Bingham's speech forms part of his recitation of the parties' argument. It is rather §24 which contains his Lordship's conclusions, and there "foundation of suspicion" is only one of the four factors he relies upon to reach his conclusion. Moreover, the orders in the earlier cases of B, Gough and McCann were not based merely on "reasonable suspicion", but required proven actual past conduct (and not, or not just, a criminal conviction): see paragraphs 41, 44 and 46 above. (Lord Hoffmann's distinction in MB (§§48, 49) between punishment for past guilt and prevention of future wrongdoing does not directly cover a case such as the present where prevention of the risk of future wrongdoing also requires a finding of some past conduct.).[62]Secondly, as regards the third Engel criterion and "the severity of the penalty", it is the purpose of the measure, rather than its consequences (or effects), which is of primary significance. This is established by the authorities before MB: see §39 of the Lord Phillips MR's judgment of the Court of Appeal in Gough and approved by Lord Steyn in McCann at §25; and also Lord Hope in McCann at §76. This distinction is maintained by Lord Bingham in his speech in MB. In the course of his discussion of this issue at §23, Lord Bingham pointed out that the consequences of a control order can be "devastating" and, moreover, that "the effect of a preventative measure may be so adverse as to be penal in its effects if not in its intention". Nevertheless he pointed out, in the same paragraph, that both the domestic courts and the Strasbourg authorities have distinguished "between measures which are preventative in purpose and those which have a more punitive, retributive or deterrent object". Then, in his conclusion at §24, he stated that "the order made was preventative in purpose, not punitive or retributive" and did not refer to consequences (until turning his attention to the "civil" alternative). Mr. Drabble QC relies also on the passage from the Council of Europe Commissioner's report cited at §16 of Lord Bingham's speech to support the proposition that a preventative/protective measure can amount to a criminal penalty, where the restrictions are particularly severe. In my judgment, at §16, Lord Bingham was, at that point, reciting the arguments which meant that the case could not be "lightly dismissed"; he did not directly adopt the Commissioner's view as part of his reasoning.[63]Thus, the application of the English law authorities on the Engel criteria leads to the clear conclusion that the proceedings in the present case - disciplinary proceedings for abuse of trust leading to a s.142 direction - do not amount to a "criminal charge" within the meaning of Article 6 ECHR. Rather, they are "civil" proceedings under Article 6. As regards the "nature of the offence", the need to establish past misconduct does not make the matter "criminal". The fact that the conduct alleged against the Claimant said to constitute the gross misconduct would, or might, also constitute a criminal offence under the Sexual Offences Act is not of itself sufficient to satisfy the second Engel criterion (see, in this regard, the distinction made in the Scottish case of S v. Miller cited by Lords Steyn and Hutton in McCann at §33 and §102 respectively (paragraphs 46 and 47 above)). But in any event, this is not sufficient when considered, cumulatively, with the third, and "most important", criterion relating to the "severity of the penalty". As to that criterion, the purpose of a s.142 direction is preventative and protective and not punitive, even though its effects upon the Claimant, and indeed, any person are likely to be very serious. Such effects do not detract from its preventative purpose. Whilst it may be said that the consequences of a s.142 direction are more serious than those in Gough and McCann, I do not accept that they are more serious than those of a non-derogating control order of the type made against AF in MB.[64]Finally, in my judgment, Matyjek falls to be distinguished from the present case (and from MB and the other domestic cases) on its facts. First, the "lustration proceedings" in question were concerned wholly with the offence of having made a false "lustration" declaration. They were not concerned with preventing those with past involvement or collaboration with the communist-era regime from holding public office in the future (nor indeed with punishing such people for their past involvement). Secondly, on the first Engel criterion, as a matter of Polish domestic law, the offence and proceedings in question were very close to being criminal: see §§48 to 51. Thirdly, not only did the Court find at §§55 that the sanction had "at least partly punitive and deterrent character", but, most significantly at §56 held that the "the purpose of the lustration proceedings was ... to punish those who failed to comply with the obligation to disclose to the public their past collaboration", rather than to prevent former employees of the secret service from taking up employment in public office. Unlike MB, this was not merely a case where, although the purpose of the measure was preventative, it also had punitive effects. Fourthly, and in conclusion, taking account of all aspects, the Court relied upon "the predominance of those which have criminal connotation" (§58).[65]In any event, even if I had concluded that Matyjek is not distinguishable on the facts from MB and the earlier domestic cases, but rather that it is inconsistent in principle with those cases, I would be bound to apply the House of Lords decisions in MB and McCann in preference to Matyjek: see R (on the application RJM) v. Secretary of State for Work and Pensions [2008] 3 WLR 1023 at §64.[66]For these reasons, the disciplinary procedure conducted by the Defendant does not amount to proceedings in respect of a criminal charge and the provisions of Article 6(3)(c) and (d) ECHR did not apply to that procedure. Issue (3): Civil proceedings and legal representation[67]However, even though the present proceedings are "civil" for Article 6 purposes, in principle I accept the Claimant's alternative submission that, by reason both of the serious nature of the allegations of misconduct and the severity of the consequences of a s.142 direction, the Claimant is entitled to a commensurately enhanced measure of procedural protection. Whilst the Claimant's case here was founded principally on the final two sentences of §24 of Lord Bingham's speech in MB, this principle of entitlement to commensurate procedural protection in civil proceedings had already been identified by the Court of Appeal, in particular in the Fleurose case at §14, where the Court of Appeal identified “the gravity and complexity of the charges" as a relevant factor in determining what fairness requires. Similarly, the principle that the consequences of a civil sanction may justify a higher degree of procedural protection underlies the decisions in B, Gough and McCann on the standard of proof.[68]On this alternative basis, placed before the Court by way of the Additional Ground, the Claimant claims entitlement only to the right to legal representation before the Disciplinary Committee and the Appeal Committee (and does not claim that that there should be a right to cross-examination of M). In the course of oral argument, Mr. Drabble QC referred me to §§35 and 36 of Lord Steyn’s speech in McCann and accepted that, on this alternative limb, hearsay evidence is not to be excluded from the disciplinary proceedings, but rather is a matter for comment as to weight. On this basis, I am not in a position to rule that hearsay is inadmissible at the disciplinary proceedings nor, as also accepted, that the Claimant has an absolute right to cross-examine M or any other of the Defendant’s witnesses. (The Claimant, in its additional submissions of 15 February 2009 on the recent House of Lords’ decision in Wright appeared to seek to extend his procedural rights under the civil limb so as to include, for the first time, a right to cross-examine all of the Defendant’s witnesses. However this additional procedural right forms no part of the formal grounds or relief placed before the Court and no further argument has been advanced to support such an extension beyond the right to legal representation, the subject of the Additional Ground or to contradict the position outlined in oral argument).[69]In my judgment, the gravity of the particular allegations made against the Claimant (sexual impropriety with a person under 18 and abuse of position of trust), taken together with the very serious impact upon the Claimant's future working life of a potential s.142 direction, are such that he was, and is, entitled to legal representation at hearings before the Disciplinary Committee and the Appeal Committee. On such matters, the Claimant could not fairly be expected to represent himself, and being accompanied by a trade union official or a work colleague (even if available) was not sufficient.[70]As regards the Defendant's arguments on this issue, first, I bear well in mind Mr. Bowers QC’s submission that s.10 ERA makes express statutory provision for representation at such disciplinary hearings. However my decision on this aspect is confined to the circumstances of the particular allegations of misconduct made in the present case and the prospect, which was clear from very early on, of referral to the Secretary of State under s.142. As stated by Schiemann LJ in Fleurose, "what fairness requires will vary from case to case" and my decision is not intended to deal with other categories of case which may arise (e.g. other types of conduct or where there is no question or risk of a referral for a s.142 direction or other similar sanction).[71]Secondly, the Defendant's other principal answer to this issue is, in substance, that adequate procedural protection is provided to the Claimant by other avenues, namely through the procedure before the Secretary of State, an appeal to the Tribunal and/or by a claim for unfair dismissal to an employment tribunal. This response overlaps with the Defendant's "two stage" argument on Issue (1). Mr. Bowers QC submits that the Claimant has or will have a right to legal representation before the Secretary of State and/or before the Tribunal and/or before an employment tribunal and that is sufficient to vindicate his rights to a fair hearing under Article 6. I consider the position before an employment tribunal under Issue (4) below. Here I deal with the position before the Secretary of State and on appeal to the Tribunal.[72]The argument that, where there is a "two stage" process, the fairness of the proceedings under Article 6 has to be judged by looking at the proceedings as a whole was considered in R (on the application of SS) v. Knowsley NHS Primary Care Trust [2006] EWHC 26 (Admin), where it was argued that there could never be an Article 6 breach if there was a fair appeal (i.e. second stage) process. The case concerned the procedure to be adopted by a primary care trust when considering the removal of a general practitioner from its "performers list". Toulson J (as he then was), after setting out the argument at §54, rejected it as follows:
“68 It cannot, however, be in accordance with the spirit of the Convention or the common law that the court should be powerless to prevent a violation of a right to a fair procedure, merely because of the existence of a later way of remedying the consequences. A stitch in time may save nine. 69 R (Hammond) v. Secretary of State for the Home Department is instructive for two other reasons. Lord Bingham of Cornhill (with whose judgment the other members of the Appellate Committee all agreed) said at paragraph 16 that even if it were “an inevitable result” that a hearing in the Court of Appeal would remedy the lack of an oral hearing at first instance, he doubted whether this would entitle the court to regard paragraph 11(1) [of Sch. 22 to CJA 2003] as compatible with the Convention. This observation runs counter to the argument that where there is a two stage process a person can have no enforceable rights to fairness at the first stage, as long as any unfairness at that stage can be remedied later. … 71 … the existence of an enforceable duty of fairness and its content are different matters. On the question of the existence of a duty, the argument advanced on behalf of the Secretary of State amounts to recognising that there is a duty of fairness at the first stage but denying that it is enforceable, so long as there is fairness at the second stage. I reject that argument. If there is a duty of fairness at the first stage, in my judgment it must be enforceable by the court as a matter of jurisdiction. The real question is whether it is appropriate for the court to make a ruling about what fairness will require at the first stage.”
Toulson J then considered what fairness required in the particular case:
“Relief claimed: arguments and discussion … 76 Mr Holl-Allen submitted that in essence the decision of a PCT to remove a doctor from its performers list is an employment decision, and that although removal from a PCT's performers list may have consequences for the doctor in finding other employment with another PCT, the position is no different in principle from that of any employee facing dismissal from his job. Employment law protects employees against unfair dismissal, but the duty of an employer to act fairly does not require an internal hearing with a right to legal representation and cross-examination of witnesses. …. 78 To regard the Regulations as mere employment procedures is to downgrade their significance and importance. They serve the important public purpose of keeping inefficient and unsuitable people from performing as doctors in the NHS. The scheme properly contains mechanisms designed to see that a doctor who is removed from the performers list of one PCT will not be placed on another PCT's performers list unless circumstances have changed. …. 82 The question whether a fair opportunity of doing this requires the doctor to be able to cross-examine witnesses or to be permitted legal representation or both might reasonably attract different answers in different cases, depending on their nature and complexity.”
Then at §§93 and 94, Toulson J gave his reasoning why, in that case, fairness required a right to legal representation at the first stage. “93 On the subject of legal representation, the fundamental question is whether the doctor could fairly be expected to represent himself. In many cases that may be a quite reasonable expectation. In Dr Ghosh's case none of the allegations made against him is individually complicated, but taken together the case is sufficiently complex (with the large number of allegations, their diverse nature and the volume of paperwork) that I would be very surprised if a doctor could do himself justice in trying to handle the case unrepresented. A helper sitting beside him would be of some but limited assistance. It would be wrong that witnesses who complain of bullying and intimidation by Dr Ghosh should feel themselves exposed to the same risk in cross-examination by him (even though that might give powerful support to their evidence), and that would be an additional reason for allowing him to be represented. The alternative suggested in the DOH Advice of having questions put through the chairman of the panel might be appropriate in some circumstance, where the purpose is merely to supplement or clarify matters stated by the witness, but it is not realistic to expect cross-examination to be conducted on behalf of the doctor through the chairman. 94 It was submitted on behalf of the Secretary of State that under the regime before the Regulations were introduced the procedure for stopping unsatisfactory doctors from working in the NHS was so labyrinthine and expensive as to deter health authorities from using it. It would not be in the public interest if the procedure under Regulation 10 were made so cumbersome that PCTs were deterred from attempting to remove doctors whom they believed to be substandard, and it need not be so. But expediency need not and must not lead to the exclusion of fairness. (Moreover, even in terms of expediency, it cannot be assumed that the overall result of permitting cross-examination or legal representation at a hearing under Regulation 10 will be repetitiveness and delay, while the doctor argues his case first before the panel and then on appeal. For every case where that happens there may be others where there is no appeal, either because the panel decides not to remove the doctor from the performers list or because the doctor or those advising him see no worthwhile prospect in an appeal. There are no scientific means of forecasting such outcomes and they could only properly be measured by some form of post legislative scrutiny. It is, however, readily predictable that there will be appeals if the first stage hearing is not seen as providing a fair opportunity properly to challenge the case put for the doctor's removal.)”[73]As regards the specific position of the Secretary of State, first, it is far from clear that the Secretary of State will or is required to, conduct an investigation into the underlying primary findings of fact (going to misconduct) made by the employer. The crucial fact-finding, which may very well involve witnesses giving different accounts, takes place at the employer's disciplinary hearing and not before the Secretary of State. When considering whether to issue a s.142 direction, the Secretary of State will act on the basis of information provided by the referring employer, and in particular on the findings of fact made in the employer's disciplinary procedure. The procedure is broadly outlined by Dyson LJ in Secretary of State for Children Schools and Families v JN [2008] EWHC 1199 (Admin) at §§11-12. It is clear that in the POVA procedure, the Secretary of State's role in relation to the misconduct (both at the provisional and confirming stages) is one of review and not of primary fact-finding: see s.82(7) CSA 2000 and Wright (HL)§8. There is no reason to suggest that the role of the Secretary of State under s.142 is markedly different. Certainly in a case of a finding by an employer of misconduct, comprising sexual touching and sexual grooming of a child, the findings of fact of the employer's disciplinary hearing are, at the least, likely to be determinative of the Secretary of State's decision under s.142.[74]Secondly, on the basis of the procedure as it currently stands, an employee would not be entitled to a hearing with legal representation before the Secretary of State. Reg. 6 of the 2003 Regulations provides a right to make representations to the Secretary of State. Since this does not in terms extend to a right to an oral hearing with legal representation, it appears that the Secretary of State's obligation is limited to accepting written representations. Despite this, the Defendant submits that, if the Secretary of State were to refuse an oral hearing with legal representation prior to making a direction, the employee could, at that point, seek judicial review of that refusal and of the s.142 direction. Given the terms of Regulation 6 and the entire procedure, in practice judicial review would be the only route. However, in my judgment, such recourse to this Court (a second stage) will not remedy the unfairness before the Secretary of State (a first stage for these purposes): see Knowsley, supra, §§68-71 and further Dyson LJ at §§106-107 in Wright (CA) (approved in the House of Lords by Lady Hale at §§25 and 28).[75]In any event, even if the Secretary of State did have a full fact-finding function and were required to allow an oral hearing with legal representation, since I have concluded, under Issue (1) that the disciplinary hearings and the procedure before the Secretary of State form part of one and the same proceedings, given the nature of the allegations and the consequences, fairness requires that there should be a right to legal representation throughout that process and thus at the disciplinary hearings: see Knowsley, above.[76]As to the specific position of the Tribunal, I am not satisfied that an appeal to the Tribunal from a s.142 direction would provide a sufficient remedy or forum in which the Claimant's rights to a fair hearing could be fully vindicated.[77]First, it is far from clear that the Tribunal has full jurisdiction to re-hear the underlying allegations of misconduct found by the Disciplinary Committee to have been proven. It is certainly the case that the appeal to the Tribunal under s.144 is based on the circumstances pertaining, and evidence presented to the Secretary of State, at the time of the making of the direction and it appears that other evidence (regardless of whether it relates to the original or to subsequent events) will not be considered: see Reg. 13(2) of the 2003 Regulations. This was pointed out by Dyson LJ in the JN case, in the following passage:
"22… . [Regulation 13(2)] was the subject of decision by the Tribunal in the case of FH v Secretary of State for Education and Skills [2005] 0552.PT, where the Tribunal said at paragraph 55: "
Thus the Tribunal is, in this instance, confined to conducting a review of the decision made by the Secretary of State. The Tribunal is not empowered to re-hear the case or to determine the primary facts. It is required, in effect, to decide whether the Secretary of State had sufficient evidence upon which to base a determination that the specified ground relied upon existed and, further, to decide whether the direction was an appropriate or proportionate response in all of the circumstances known to the Secretary of State." 23. I accept that explanation by the Tribunal. It follows that the particular views of officials or List 99 panel members are not relevant to the Tribunal's task. Nor indeed are the views of the Secretary of State determinative of the question. The Tribunal must form its own view as to whether or not, on the evidence before it, which is the same evidence as that which was before the Secretary of State, there existed sufficient grounds for the direction to be given under section 142. The Tribunal thereby decides whether the Secretary of State's decision was reasonable. It is not necessary for that purpose that the Tribunal should see the confidential advice that was given to the Secretary of State. It follows that the Tribunal had to decide whether the Secretary of State had sufficient evidence on which to base a determination that the specified ground existed. That involved a consideration and appraisal by the Tribunal of the evidence, untrammeled by the advice of the Department's officials and/or independent expert.”[78]Relying upon this passage, the Claimant submits that, although the Tribunal does have oral hearings (at which legal representation is permitted) it does not appear that it has jurisdiction to reverse primary findings of fact made by a disciplinary committee. The point is not free from doubt. Mr. Bowers QC points to Reg 12(3) from which, he submits, it is to be implied that it is only where there has been a conviction that a finding of fact cannot be challenged before the Tribunal. Nevertheless, given the restriction on new or different evidence under Reg. 13(2) and even if the Tribunal is permitted to substitute its own view for that of the Secretary of State, there is no scope for a full re-trial of primary issues of fact underlying the original reference to the Secretary of State where it is sought to call as witnesses those who have not given oral evidence at the disciplinary hearing.[79]Secondly, even if it were possible for the Claimant ultimately to have the findings of the Disciplinary Committee effectively set aside on an appeal to the Tribunal under s.142, by that time a s.142 direction will already have been made, thereby rendering the Claimant liable to the criminal sanction in s.35 CJCSA (which is not the case where there is a provisional listing only under the POCA and POVA procedures). Indeed, in Wright, where, under the POVA regime (s.86(3) CSA), the Tribunal does have express jurisdiction to determine the underlying facts, the House of Lords nevertheless held that such a full merits hearing before the Tribunal was not sufficient procedural protection. Lady Hale (at §§25, 28 and 29) endorsed the views of Dyson LJ in the Court of Appeal (at §107) that inclusion on such a list in the first place causes "serious and irreversible prejudice to the worker" and that "it is (the often irreversible) detrimental effect of the inclusion that makes the breach of Article 6 at the first stage of the process incurable".[80]For these reasons, the fact that the Claimant will have a right to make some representations to the Secretary of State and the right of appeal to the Tribunal against a s.142 direction does not provide him with sufficient procedural protection to meet the requirements of fairness in the present case. In my judgment, neither of these avenues provide a reason not to afford the Claimant the procedural protection of legal representation before the Disciplinary Committee and the Appeal Committee. Issue (4): Employment Tribunal as an alternative remedy[81]The Defendant contends that a claim for unfair dismissal before an employment tribunal provides an alternative remedy for the Claimant, such that either the refusal to allow legal representation before the Defendant's committees does not infringe Article 6 at all or the Claimant should be denied relief on this application for judicial review. There are two possible aspects to this argument.[82]First, in so far as it is suggested that any breach of the Claimant's rights to a fair hearing can be relied upon before the employment tribunal to establish that the dismissal was unfair, then this is a true "alternative remedy" point. However, in my judgment, 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, along similar lines to the argument relating to the Tribunal, 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, as in the case of an appeal to the Tribunal, 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[2002] EWCA Civ 1588 [2003] IRLR 827 at §§30-34. Mummery LJ there held that the relevant question was whether the investigation was reasonable and that the purpose of the investigation was not to determine, as in a court of law, whether the employee was guilty or not guilty of the relevant misconduct, but rather was to establish whether there were reasonable grounds for the belief that the employer had formed, from the evidence before it, that there had been misconduct on his part, to which a reasonable response was a decision to dismiss him.[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.[86]In my judgment, therefore, proceedings for unfair dismissal before an employment tribunal do not provide a sufficient remedy for the Claimant and are not a reason not to afford the Claimant the procedural protection of legal representation before the Disciplinary Committee and the Appeal Committee. Conclusions[87]For these reasons, I conclude, first, that the disciplinary procedure conducted by the Defendant did not amount to proceedings in respect of a "criminal charge" and that accordingly Article 6(3)(c) and (d) ECHR did not apply to that procedure; but, secondly, that the Claimant was entitled, by reason of his right under Article 6(1) ECHR to a fair hearing in a "civil" matter, to legal representation at the hearing before the Disciplinary Committee. and that he is entitled to the same at any appeal hearing before the Appeal Committee.[88]As to the appropriate remedy, whilst the Defendant suggests that the Claimant's entitlement to a fair hearing could be adequately satisfied by allowing the present appeal to the Appeal Committee to proceed with the Claimant having the benefit of legal representation, I am not satisfied that this will necessarily ensure fairness for the Claimant. This is because, as I understand the procedure, the case presented by, and recommendations of, the chair of governors to the Appeal Committee will be based on the existing findings of the Disciplinary Committee; and those findings of the Disciplinary Committee themselves are based, to a considerable extent on what happened at the hearing before that Committee on 21 February 2008, a hearing at which the Claimant was not accorded his right to legal representation. Thus, unless the Claimant is willing to agree to the matter proceeding straight to the Appeal Committee, I propose to make an order quashing the dismissal decision of the Disciplinary Committee. Consequential matters[89]I propose dealing with the form of the final order and other consequential matters, including costs, immediately following the handing down of this judgment, unless any party requests that they be dealt with subsequently. In that event, I will give further directions as to the procedure to be followed, including for the service of written submissions.[90]I am grateful to Mr. Drabble QC and Mr. Draycott, and Mr. Bowers QC and Mr Kenward for all their assistance to the Court in the presentation of oral and written argument in this matter.

order

the duty to notify under the 1997 Act on pain of criminal penalty; the restriction on a defendant's freedom of movement and activity; and the possible penalty of up to five years' imprisonment on proof that the order has been broken. These are all important and legitimate considerations, but they do not persuade me that, as a matter of English domestic law, this is to be regarded as a criminal proceeding. … Part I of the 1998 Act is concerned with the prevention of crime and disorder, not the trial and punishment of those convicted. … Furthermore, the problem to which s.2 is directed is not the detection, apprehension, trial and punishment of those who have committed crimes, but the restraint of those who have a proven record of sex offending and whose conduct founds a reasonable belief that a measure of restraint is necessary to protect members of the public against the risk of serious harm caused by further sex offending. 25. There is no room for doubt about the mischief against which this legislation is directed, which is the risk of re-offending by sex offenders who have offended in the past and have shown a continuing propensity to offend. … . The rationale of s.2 was, by means of an injunctive order, to seek to avoid the contingency of any further suffering by any further victim. It would also of course be to the advantage of a defendant if he were to be saved from further offending. As in the case of a civil injunction, a breach of the court's order may attract a sanction. But, also as in the case of a civil injunction, the order, although restraining the defendant from doing that which is prohibited, imposes no penalty or disability upon him. I am accordingly satisfied that, as a matter of English domestic law, the application is a civil proceeding, as Parliament undoubtedly intended it to be.” Lord Bingham then addressed the position under Article 6 ECHR: “28. … Miss Booth submitted, rightly, that the European Court of Human Rights does not regard itself as bound by the classification of proceedings in domestic law. In deciding whether there is a criminal charge for purposes of art 6 of the Convention the court has regard to the classification of proceedings in domestic law, but also to the nature of the offence itself and the severity of the penalty which may be imposed: see Lester and Pannick Human Rights Law and Practice(1999) para 4.6.13. Here the proceedings are in my judgment classified as civil in domestic law. No offence is charged and the making of an order does not depend on proof of any offence. No penalty may be imposed. I am aware of no case in which the European Court has held a proceeding to be criminal even though an adverse outcome for the defendant cannot result in any penalty.” At §§30 and 31, Lord Bingham CJ went on to conclude that, despite the fact that the proceedings were civil, the magistrates should apply a civil standard of proof which for all practical purposes would be indistinguishable from the criminal standard.