Teachers facing disciplinary action by school governors because of sexual misconduct allegations involving pupils have the right to a lawyer, the Court of Appeal has ruled.
The unanimous ruling confirms a High Court judgment that an unqualified music teacher who kissed a 15-year-old boy was entitled to a lawyer at his disciplinary hearing (see Solicitors Journal 153/13, 7 April 2009).
The teaching assistant, known as ‘G’, was 19 at the time of the incident, which took place in a local church. He was dismissed after the boy’s parents read about the kiss in their son’s diary.
The school reported G to the secretary of state for children, schools and families, who, under section 142 of the Education Act 2002 and advised by the Independent Safeguarding Authority (ISA), has the power to ban him for life from working with children. No decision has yet been made.
Delivering judgment in R (on the application of G) v the Governors of X School and Y City Council [2010] EWCA Civ 1, Lord Justice Laws said that a lawyer might make a “great deal” of difference to the “flavour and emphasis” of the governors’ conclusions, as well as to any contest over the main facts.
“And if an advocate might have effected such a difference before the governors, then the influence of their conclusions on the ISA’s decision making might also have been different.”
Laws LJ said that although article 6 of the ECHR did not necessarily involve a right to representation in civil cases, it was “well established here and in Strasbourg that the level of protection which the article guarantees depends on what is at stake”.
He said he agreed with Stephen Morris QC in the High Court that in this case article 6 required that the claimant should have the opportunity to be represented by a lawyer.
"Solicitors Journal" 26 January 2010
