England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Mr Justice Turner)

		Royal Courts of Justice Strand London WC2 Wednesday, 6th February 2002

Wednesday, 6th February 2002

1. LORD JUSTICE BROOKE: I will invite Sedley LJ to give the first judgment.
2. LORD JUSTICE SEDLEY: The applicant in this case, who has been represented by Mr Patrick Ground QC, was at the material time the head teacher of a specially maintained school for boys with emotional or behaviourial problems. Hertfordshire County Council, helpfully represented before us today by Mr Brennan QC, is therefore three things: it is the applicant's employer, it is the local education authority responsible for the school and it is the social services authority which had responsibilities, particularly under the Children Act, for the welfare of the boys in the applicant's care. Those three capacities all matter.
3. On 12th May 1999 the applicant was acquitted of indecent assault on a single pupil who had made a complaint against him. On 12th August 1999 a local authority investigator decided that there was no call for any further action against the applicant and also suggested that the pupil had been lying. However, on 24th June 1999 the officers of the local authority considering the boy's statement, among other evidence, decided that the applicant did present a risk. The decision was expressed in these terms:

"1.We believe the events described by [the boy] occurred.

2.We therefore believe that [the applicant] may pose a risk to children for whom he has a responsibility and who are in his charge.

3.We recommend that this belief is passed to the Director of Education on the assumption that this view will be conveyed to the school governing body."

4. The Director of Education was duly told this in August 1999. On 23rd September of that year the Chairman of the governors wrote to the applicant setting out eleven allegations of what might amount to gross misconduct. On 22nd October the Social Services Department offered the applicant an opportunity to discuss the situation, and the following month he met two of the officers of that department.
5. A week later, on 10th November 1999, the disciplinary hearing was held which led to a recommendation of dismissal. The hearing was conducted by a panel of the governing body, and an appeal was lodged to an appeal panel, also of the governing body.
6. Shortly after this, the Beliefs Decision (as the local authority called it) was affirmed, and the applicant put in further representations to seek to displace it. It was, however, reaffirmed on 28th January 2000, in terms which do not differ dramatically from those that I have read out:

"On balance, having considered all of this information, it was agreed by the panel unanimously, that the belief that [the applicant] is a suspected abuser and therefore a risk to children namely, the vulnerable young boys at Boxmore School, should be upheld."

7. By then, however, the applicant had obtained leave to seek judicial review. In consequence, both the appeal against the recommendation of dismissal and the local authority's response (which I have just mentioned) to the officer's Beliefs decision were put on hold.
8. The Human Rights Act 1998 came into force during this period of suspension, namely on 2nd October 2000. It was on 10th November 2000 that Maurice Kay J gave judgment in the judicial review proceedings. He rejected all the applicant's challenges. They were, in essence, challenges to:

(1) the composition and impartiality of the members of both the disciplinary panel (which had sat) and the appeal panel (which was yet to sit);

(2) the presence of a legal adviser, in addition to a local authority adviser, to the disciplinary panel;

(3) the local authority's failure to produce certain documents;

(4) the rationality of the belief formed by the local authority;

(5) the legality of the local authority's procedure in the light of section 47 of the Children Act 1989; and

(6)its effect on the disciplinary process.

9. The local authority's processes were, in effect, unfrozen by Maurice Kay J's decision. On the papers, Hale LJ refused permission to appeal against the decision; but on 18th January 2001, Keene LJ gave permission to appeal on a single ground, namely that element of the penultimate head of challenge which I have set out, which put in issue the local authority's power to transmit a decision, such as its Beliefs decision, to itself as the local education authority or to the governors of one of its schools or to other local education authorities.
10. In March 2001 this appeal failed before the full court, and a petition for leave to appeal to the House of Lords has been since refused. The applicant now, however, seeks permission to appeal against a further decision of the Administrative Court; this time a decision of Turner J, given on 15th June 2001, refusing permission to apply for judicial review.
11. What had happened in the interim was this. Following Maurice Kay J's judgment, on 7th December 2000, the Local Authority Social Services Department had informed the applicant of the decision which I have mentioned of 28th January to affirm the belief that the applicant was a danger to boys in his care. On 22nd January the appeal panel - that is in the disciplinary process - sat and found much more heavily, in the event, against the applicant than the original disciplinary tribunal had done. It found nine out of the eleven complaints proved, eight of them amounting in its view to gross misconduct, and it upheld the recommendation of dismissal. Its decision was arrived at on 25th January, and in consequence four days later the Director of Education gave the applicant notice of his dismissal. The applicant has, Mr Ground tells us today, lodged Employment Tribunal proceedings challenging his dismissal, but these are on hold pending the present application.
12. The challenges which were put before Turner J were these. First, that the communication of the Beliefs decision on 7th December 2000 to the Director of Education had been improper. This has to fail on the simple question of vires in the light of the decisions I have mentioned of this court and of the House of Lords in refusing permission to appeal. But the applicant then sought before Turner J to add an argument, not available previously, under Article 6 of the European Convention on Human Rights, the decision having been deferred in the circumstances I have described from before until after the coming into effect of the Human Rights Act. I will return to this.
13. What Turner J held was, first, that no rights were in issue because the Beliefs decision did not affect or withdraw the applicant's professional qualification; and, second, that, with or without the European Convention on Human Rights, the point had been available as a natural justice point in the proceedings before Maurice Kay J and, having not been taken then, could not be taken now.
14. The second main challenge before Turner J was to the appeal panel's decision of 25th January. It was based upon three criticisms:

(1) a failure to give reasons;

(2) a finding that there had been a material breach of a protocol which the governors were said never to have adopted; and

(3) a lack of independence and impartiality in the composition of the Appeal Tribunal.

15. Turner J held that the list of charges had given full particulars, making the decision, when it came, fully intelligible and therefore adequately reasoned. He held that the protocol was not a contract. It had been accepted by the applicant and then breached by him, and that was quite enough, in the judge's view, for the appeal panel to go on. He held, third, that the challenge to the panel, although it had been raised at the disciplinary appeal hearing, had not been pursued when the Chairman asked for details and that it was not good enough for Mr Ground to say he was entitled to reserve the challenge for the court.
16. What Mr Ground has put before the court today on paper are essentially these propositions:

(1) the Beliefs decision of 7th December 2000 was vitiated by the failure to give the applicant an opportunity to contest the ground for it and by violating the presumption of innocence;

(2) the appeal panel was obliged, both at common law and by Article 6, to give reasons;

(3) the criticism of the composition of the appeal panel was legitimately reserved to this court, and it is a matter of concern to the court and a justiciable matter that the prosecutor, who was the Director of Education, had selected two members, while both advisers were employees of Hertfordshire County Council.

17. If Mr Ground is right in any of his criticisms so far, and I agree with him about this, it is strongly arguable that the decision to dismiss would fall. But everything depends upon the premises rather than the conclusion.
18. When I, for my part, refused permission to appeal, having read the papers, I directed that any renewal was to be on notice. The skeleton argument which Mr Brennan was consequently able to put in on behalf of Hertfordshire County Council has certainly been of assistance to me in getting to grips with this case, as of course have the submissions of both counsel this morning.
19. Hertfordshire's case is essentially this. The 7th December 2000 Beliefs decision is, to all intents and purposes, the identical decision already unsuccessfully challenged before Maurice Kay J. In any event, says the County Council, it raises no Article 6 issue, because no right of any materiality is in play. It was to this that the disciplinary decision went and as to which challenges were raised, or could have been raised, before Maurice Kay J.
20. As far as concerns the appeal panel decision, the County Council says that it was based on a full explanation running to nine pages of the charges and also, importantly, of the sources of evidence that were to be relied on in support of the charges. The decision, it is said, was communicated in detail by letter saying which charges were proved and to what standard. It is unaffected, say the County Council, by Article 6 because it was an internal disciplinary procedure only. Finally, it is said the County Council was fully entitled to deduce a breach of trust from the applicant's departure from his written assurances as well as his terms of employment.
21. As to the appeal panel itself, the County Council submits that it was lawfully constituted by the governing body (not, that is, by the Chairman), and that any challenge which was available to its composition was waived by the refusal to pursue the challenge before the Tribunal itself. It was fully entitled, say the County Council, to have two advisers. Maurice Kay J has so held in relation to the disciplinary panel and no relevant distinction could exist between it and the appeal panel.
22. Although Mr Ground has not spelt it out as a separate ground of challenge, his skeleton argument asserts as an accepted fact that the appeal panel had known of the Beliefs decision. This he has not advanced today, and I think he must accept, as is pointed out in the County Council's skeleton argument, that it is erroneous. The local authority had in fact given Keene LJ an undertaking that the appeal panel would not be told of the Beliefs decision; and I know of no evidence that they were.
23. What emerges from these issues in terms of an arguable case for this court?
24. In my judgment it is clear, first of all, that the Beliefs decision of 7th December, even if it was not in law or in substance the same decision as had already been challenged before Maurice Kay J, is not open to any challenge at common law that was not previously available, and for that reason alone, or as a matter of discretion, ought not to be reopened. That, however, is by no means the only reason why I would refuse permission in respect of it.
25. Notwithstanding the coming into force of the Human Rights Act, I do not consider that Article 6 can come to the applicant's aid. The Beliefs decision determined no civil right of his. Its purpose was to enable the local authority to take cautious and thought-out decisions about the safety of children for whom they were responsible. No formality was required. The applicant's views had been listened to before, or at least when, the renewed Beliefs decision was taken. Nor did it violate the presumption of innocence. It did not treat the boy's accusation as proved; it undertook the quite different task of assessing a risk, and in doing so of forming, as had to be done, some view as to whether there was something or nothing in what the boy had alleged.
26. Mr Ground points out that the procedural rules require the governing body's panel to give reasons for their decision, as indeed they do. The fact, however, that the appeal panel was required to give reasons does not tell us with what specificity they were so required; and it does not help to look at cases concerning the amount of detail to be given, for example by a statutory body, such as the Immigration Appeal Tribunal or (as they were) an Industrial Tribunal in ascertaining this. The panel had before it, and the applicant had before him, full particulars of the charges. In my judgment the decision, when married up with the charges, was perfectly adequate to satisfy the requirement that reasons should be given. This it seems to me, irrespective of any application of Article 6, gives the proposed appeal no real chance of success. That the decision does not set out the applicant's defence which Mr Ground has explained to us today, nor deal with it in terms, is not in the circumstances of this case sufficient criticism of the adequacy of the reasons that were given. Mr Ground has, I think, been seeking what amount to reasons for reasons, and that is more than his client was entitled to.
27. The same problem in relation to Article 6 arises, in my view, with the composition of the panel. It was precisely a panel of the governing body, which by law includes people who sit on it in their local authority capacities. None of them was disqualified here by any rule, as they are in some instances, from adjudicating on the disciplinary charges. In a judicial forum, the independence of a tribunal no doubt signifies independence from the executive arm of the state. But where the proceeding is a domestic one within an arm of the state, namely a local authority, independence cannot mean the absence of any link with the employing body itself. On the contrary, it is one of the predicates of the procedure. It does mean that the Tribunal - the decision making body - is not subject to dictation or pressure from any external source. That much, it seems to me, can be derived from the common law without difficulty. But there is no evidence whatever in this case that any members of the Tribunal were subject to such dictation or pressure.
28. There is, however, it seems to me, a separate reason why none of the reliance placed on Article 6 by Mr Ground is sustainable in any of the forms in which he seeks to advance it. Article 6 concerns the state's obligation to have civil disputes tried independently and impartially. In the employment field, such a dispute arises if and when a dismissal has taken place. The state then provides a system of courts and tribunals for deciding whether the express or implied contractual terms or the statutory requirements surrounding them have been broken. Such tribunals and courts are, of course, governed by the requirements of Article 6. So too are state bodies or state recognised bodies which have the power to disqualify an individual from practising his or her profession. (The General Medical Council's disciplinary committee is a well-known example in this country.) One can look in Strasbourg jurisprudence at such cases as Albert and Le Compte v Belgium (1983) 5 EHRR 533, which is the duplicate principal case upon which Mr Ground relies. Such bodies are equivalent to public courts; and that is why they are made subject to Article 6. All of this, however, stands in contrast to domestic bodies such as were involved here. These are internal mechanisms by which an employer decides whether or not to trust an employee and whether or not he has been guilty of a fundamental breach of contract.
29. In different ways and on various grounds, such decisions may be attacked at law for, among other things, want of fairness, and the Tribunal which hears such a challenge must, as I say, conform to Article 6. But while undoubtedly the domestic body risks taking an abortive decision if it does not act fairly, the content of fairness on which a tribunal or court may have one day to reach a decision is not dictated by Article 6. It depends on the nature and structure of the organisation itself and the issue which the organisation has to consider. It can make no difference in this situation whether the employer is a body incorporated under statute, as are most private employers, or by statute, as are local authorities. In each case the relationship is contractual. It creates bilateral rights and obligations at common law and by statute. The fact that the local authority is also a state entity does not alter this.
30. Thus, on the applicant's proposed application to an employment tribunal, he will be entitled to an independent and impartial tribunal to decide whether his right not to be unfairly dismissed has been infringed. But neither the Beliefs decision nor the dismissal decision equates to the decision of a court in the judicial system. Each was a decision on how, as an employer with extremely difficult multiple public obligations, to respond to apparent misconduct on an employee's part, albeit this fell short of criminality.
31. The permissibility of having two advisers was determined by Maurice Kay J and raises no new aspects here. Nor does the protocol, which was a cogent item of evidence for setting the standards of conduct to be expected of the applicant whatever the governor's formal relationship to the protocol.
32. Finally, I would say this. Judicial review is a remedy of last resort. To the extent (as to which I express no view) that the applicant's case of substantial or procedural unfairness is viable, an Employment Tribunal can entertain it. Judicial review, even since the House of Lords' decision in Daly, is not a surrogate for this jurisdiction, which will afford all the Article 6 safeguards the applicant seeks and all the regard to which he is entitled for his Article 8 rights. These, however, are not unqualified rights. For the rights that the applicant enjoys under Article 8(1), other people are entitled to protection under Article 8(2), and this too will come into play if Article 8 really runs.
33. For all these reasons, for my part I would refuse permission to appeal.
34. LORD JUSTICE BROOKE: I agree and I only add a few words of my own on one matter of practice.
35. This was an application for permission to appeal against the decision of Turner J, refusing permission to apply for judicial review. The skeleton argument submitted by counsel started off with the words:

"Estimated length of hearing: six hours."

36. This court deals with these applications for permission to appeal on paper in the first instance, and it is important that the paper application sets out clearly what documents the court should read, that the court files are clearly identified and, if authority is relied on, it is helpful that the authority is provided in this clear way. But it is an application on paper, and, if it is refused on paper, reasons are given for the refusal. Of course, at that stage the person seeking permission may request the decision be reconsidered at the hearing. That is rule 52.3(4).
37. The practice is set out clearly and accurately in note 52.3(2) on page 986 of Volume 1 of the White Book 2OO1, which starts off:

"The oral hearing of applications for permission to appeal will be of limited duration."

38. On this occasion Sedley LJ, who refused permission on paper, gave a direction that any renewal was to be on notice. Unless special arrangements are requested of a supervisory Lord Justice, the practice set out in the White Book will be followed. This court has a very heavy burden of work. If, for whatever reason, slightly longer is needed, then a supervisory Lord Justice's opinion may be sought, and he may decide it may be better in all the circumstances to change the direction to an application for permission to appeal with the appeal to follow if permission is granted, as quite often happens.
39. I only mention these things because there was clearly a misunderstanding between leading counsel and the court as to the practice the court adopts. It would be most unlikely that the court will grant a substantial hearing simply for a permission application. On a renewal, what the court is most concerned with is to identify the reasons why the applicant seeks to challenge the decision of the single judge who has given his or her initial reasons for refusal.
40. So far as the substance of the matter is concerned, I agree with Sedley LJ, for the reasons he has given, that this application should be refused.
Order: Application dismissed with costs, to be the subject of detailed assessment if not otherwise agreed.