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Cite as: [2011] UKSC 30, [2011] ICR 1033, [2011] HRLR 34, [2011] ELR 310, [2011] Med LR 473, [2011] 4 All ER 625, [2011] 3 WLR 237, [2012] 1 AC 167, [2011] UKHRR 1012, [2011] BLGR 849, [2011] IRLR 756, [2011] PTSR 1230

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Summary

Trinity Term
[2011] UKSC 30
On appeal from: [2010] EWCA Civ 1

JUDGMENT

R (on the application of G) (Respondent) v The Governors of X School (Appellant)

before

Lord Hope, Deputy President
Lord Walker
Lord Brown
Lord Kerr
Lord Dyson

JUDGMENT GIVEN ON

29 June 2011

Heard on 11 and 12 April 2011

Appellant John Bowers QC Tim Kenward Katherine Apps (Instructed by Y City Council Legal Services)		Respondent Richard Drabble QC Paul Draycott (Instructed by Keith Levin & Co)

Intervener Helen Mountfield QC (Instructed by Equality and Human Rights Commission)		Intervener (Secretary of State for the Home Department) Nathalie Lieven QC Martin Chamberlain (Instructed by Treasury Solicitors)

LORD DYSON (with whom Lord Walker agrees)

In about December 2005, the claimant commenced employment as a sessional music assistant at X school ("the school"). On 4 October 2007, the parents of M, a 15 year old boy, who was undergoing a short period of work experience at the School, went to see the head teacher. They complained that the claimant, who was 22 years of age at the time, had kissed M. They also showed the head teacher two text messages which they said the claimant had sent to M and an entry in M's diary which appeared to indicate that some form of sexual relationship had developed between the two of them. On the same day, the head teacher summoned the claimant and informed him that he was being suspended because of an incident involving a young man.

The school's child protection co-ordinator later provided a statement to the school in which she said that, after he had been suspended, the claimant admitted to her that he had kissed M and that he had sent a text inviting him to his house, "but was concerned that this could be misinterpreted, so he added that they could go for a drive instead".

On 1 November, the head teacher wrote to the claimant formally confirming his suspension on the grounds that the allegations, if proved, could constitute gross misconduct of having formed an inappropriate relationship with a child. By a further letter of the same date, she informed the claimant that he was required to attend an investigatory interview on 15 November and that he was entitled to be represented by a trade union representative or work colleague. In fact, he was not a member of a trade union. The interview was postponed several times because the claimant's solicitor had advised him that it was not in his interests to attend an interview until the police had completed their investigations.

By letter dated 12 December 2007, the head teacher notified the claimant that a disciplinary hearing would be convened in the new year, that the school was required to continue with its investigations and that a report would be submitted to the governing body for its consideration. She added that since the claimant continued to refuse to attend any investigatory meetings, she would be willing to include in her report any written submissions that he wished to make about the allegations. On 18 December, the claimant repeated the legal advice that he had been given that he should not become involved in the disciplinary proceedings until the police investigation was completed.

By 1 February, it was known that the Crown Prosecution Service intended to take no further action. On that date, the claimant's solicitors wrote to the head teacher stating that the claimant was unable to attend a meeting on 5 February. The letter included a number of "written representations to be placed before that meeting" denying the allegations and stating that no improper conduct had taken place.

By letter dated 6 February, the head teacher informed the claimant that the investigation was complete and an investigation report had been written. A disciplinary hearing was to take place on 21 February before a panel of governors to consider the allegations and the management case would be presented by the head teacher. A copy of the investigation report would be sent within a few days and this would be the evidence presented at the hearing. The claimant was told that he was entitled to be represented at the hearing by a trade union representative or a work colleague.

The investigation report was duly provided to the claimant. Attached to it was a report 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 report concluded: "there is strong evidence that the allegations against [the claimant] are proven. The panel should therefore fully consider his future employment ... and whether a referral to the DFES is required".

By letter dated 14 February, the claimant's solicitors wrote to the school seeking permission for them to represent him at the hearing. They said that in view of "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." This request was refused by the school by letter dated 20 February. Prior to the hearing on 21 February, the claimant produced a document entitled "Statement regarding M" which disputed the allegations in some detail.

The panel consisted of three of the school's governors (including the Chair). They were assisted by an HR adviser from the Schools Education Advisory Team ("SEAT"). The head teacher presented the management case and she was assisted by a SEAT HR adviser. The claimant, who was accompanied by his father, represented himself. Oral evidence was given by the school's child protection co-ordinator and one other witness. The claimant refused to answer questions, stating that he believed the proceedings to be unfair for the reasons given in his solicitor's letters. Neither the claimant nor his father asked questions of any of the witnesses.

By letter dated 27 February, the chair of the governors informed the claimant of the outcome of the hearing. After reciting the evidence, he concluded:

"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. 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…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."

On 4 March 2008, the claimant's solicitors gave notice of his intention to appeal against the dismissal decision. The head teacher responded that the appeal would be heard by the staff appeal committee and that the claimant had the right to be represented at the appeal by his trade union representative or work colleague. The hearing of the appeal was adjourned and it has never taken place.

In the light of the decision to dismiss the claimant, the school were obliged by regulation 4 of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 (SI 2003/1184) ("the 2003 Regulations") to report the circumstances of the dismissal to the Secretary of State so that he could consider whether to make a direction under section 142 of the Education Act 2002 ("the 2002 Act") prohibiting the claimant from carrying out certain types of work with children (including teaching). A person subject to such a direction was, at the relevant time, placed on a list known as "List 99".

Accordingly, by letter dated 7 May 2008, the chair of the governors notified the Children's Safeguarding Operations Unit (POCA) of the claimant's dismissal for gross misconduct.

The statutory regime applicable to cases referred to the Secretary of State under regulation 4 of the 2003 Regulations ceased to apply to cases where the Secretary of State had not invited representations by 20 January 2009. The claimant's case was one such case. A new regime (to which the claimant's case applies) was established under the Safeguarding Vulnerable Groups Act 2006 ("the 2006 Act") as subsequently amended.

On 19 May 2008, the claimant issued judicial review proceedings seeking a declaration that, by reason of the denial of his right to legal representation, the disciplinary hearing before the school governors was in breach of his rights under article 6 of the European Convention on Human Rights ("ECHR"). He succeeded before Stephen Morris QC (sitting as a deputy High Court judge) who ordered the allegations of misconduct to be heard by a differently constituted disciplinary committee at which the claimant was to be given the right to legal representation. The school's appeal was dismissed by the Court of Appeal (Laws, Wilson, Goldring LJJ) [2010] 1 WLR 2218.

The statutory scheme

Section 1(1) of the 2006 Act established the Independent Barring Board. The board was renamed the Independent Safeguarding Authority ("ISA") by section 81(1) of the Policing and Crime Act 2009 and I shall so refer to it. The ISA is required to establish and maintain the "children's barred list" (section 2(1)(a) of the 2006 Act). As from 12 October 2009, a person is barred from a "regulated activity" relating to children if he is included in the children's barred list (section 3(2)(a)). Regulated activities relating to children are defined in Schedule 4 to the 2006 Act. They include "any form of teaching, training or instruction of children, unless the teaching, training or instruction is merely incidental to teaching, training or instruction of persons who are not children" (para 2(1)(a)) and "any form of care for or supervision of children, unless the care or supervision is merely incidental to care for or supervision of person who are not children" (para 2(1)(b)).

Part 1 of Schedule 3 applies for the purpose of determining whether an individual is included in the children's barred list. It provides:

"3(1) This paragraph applies to a person if—

(a) it appears to [ISA] that the person has (at any time) engaged in relevant conduct, and

(b) [ISA] proposes to include him in the children's barred list.

(2) [ISA] must give the person the opportunity to make representations as to why he should not be included in the children's barred list.

(3) [ISA] must include the person in the children's barred list if—

(a) it is satisfied that the person has engaged in relevant conduct, and

(b) it appears to [ISA] that it is appropriate to include the person in the list.

…

4(1) For the purposes of paragraph 3 relevant conduct is—

(a) conduct which endangers a child or is likely to endanger a child;

(b) conduct which, if repeated against or in relation to a child, would endanger that child or would be likely to endanger him;

(c) conduct involving sexual material relating to children (including possession of such material);

(d) …

(e) conduct of a sexual nature involving a child, if it appears to [ISA] that the conduct is inappropriate."

Para 16 of Schedule 3 deals with representations to ISA. A person who is, by virtue of any provision of the 2006 Act, given an opportunity to make representations must have the opportunity to make representations in relation to all of the information on which ISA intends to rely in taking a decision under the Schedule (para 16(1)). The opportunity to make representations does not include the opportunity to make representations that findings of fact made by a "competent body" were wrongly made (para 16(3)). Findings of fact made by a competent body are findings made in proceedings before one or more of the bodies specified in para 16(4) or any of its committees.

Para 19 of Schedule 3 gives ISA the power to require various specified persons to provide "relevant information" to it. It may require the chief officer of a relevant police force to provide any such relevant information (para 19(1)(c)). Para 19(3) provides that, for the purposes of sub-paragraph (c), relevant information relating to a person "is information which the chief officer thinks might be relevant in relation to the regulated activity concerned".

Section 37 provides that the ISA may require various specified persons to provide any "prescribed information" that he or it holds in relation to a person ISA is considering whether to include in, or remove from, a barred list. "Prescribed information" is defined in the Schedule to The Safeguarding Vulnerable Groups Act 2006 (Prescribed Information) Regulations 2008 (SI 2008/3265). It includes information relating to the person's employment and the reasons why permission was withdrawn for him "to engage in the regulated or controlled activity in question" (para 4(h)); and information relating to the person's conduct and "any information other than that relating to [the person's] conduct which is likely to, or may, be relevant in considering whether [the person] should be included in or removed from a barred list including information relating to any previous offences, allegations, incidents, behaviour or other acts or omissions" (para 5(f)). Regulated activity providers who hold any "prescribed information" in relation to a person engaged in regulated activity provided by him must provide the information to the ISA in the circumstances specified in section 35 of the 2006 Act.

If the person is included in the list, he has a right of appeal to the Upper Tribunal if the Tribunal gives permission (section 4(1) and (4) of the 2006 Act). An appeal may be made only on the grounds that the ISA has made a mistake (a) on any point of law or (b) in any finding of fact which it has made and on which the decision was based (section 4(2)). For the purpose of subsection (2), the decision whether or not it was "appropriate for an individual to be included in a barred list is not a question of law or fact" (section 4(3)).

The ISA referral guidance

The ISA has published referral guidance for use in connection with referrals to it. Annexed to the guidance are extensive Guidance Notes for the Barring Decision Making Process ("the barring process"). These are public documents. The guidance notes that were in force at the time of the Court of Appeal's decision were issued in February 2009. These were superseded in August 2010 by guidance notes which made minor (and immaterial) amendments. I shall refer to the current version. It is necessary to consider these in some detail, because, for reasons that will become clear, they are central to the issues that arise on this appeal.

The referral guidance has no statutory force. As is stated in the introduction to the guidance notes, they are "intended to be used by case workers in the determination of decisions with regard to whether referred individuals should be barred from working with vulnerable groups". Para 2.1 states that the purpose of the barring process is to ensure that all barring decisions follow a process which affords a "fair, rigorous, consistent, transparent and legitimate assessment of whether an individual should be prevented from working with children...based on the information available to the [ISA]".

The guidance notes identify five stages of the barring process. The first is the "Initial assessment". The ISA "can consider information from any source" (para 4.1.1). The second stage is "Evidence evaluation". This provides:

"5.1 The next stage in the process is deciding, on the balance of probabilities, whether the event (or events) happened, and whether or not relevant conduct or risk of harm occurred. It can be taken as a matter of fact that, in some circumstances such as the notification of convictions, cautions and decisions by competent bodies (Appendix C), the event happened. However, in all other circumstances, including allegations, it is the assessment of all the available evidence that will assist in the determination of whether or not, on the balance of probabilities, the event happened…

5.2 Referral information

5.2.1 Referral information is received from employers who have dealt with individuals through their internal disciplinary procedures. The conclusions reached by employers are reviewed to establish, on the balance of probabilities, the facts. It is the facts of the case that determine whether the case requires further consideration and not necessarily the conclusions the employer reached….

5.3 Sources of information

…

5.3.3 Referrals may be received relating to allegations that, if proven, would have amounted to 'auto-bar' offences or 'auto-bar with reps' offences. Here you must still fully examine the evidence for yourself on the basis of the 'balance of probabilities' despite the lack of a criminal conviction (see also 5.7). …

5.3.5 While the ISA does not have an investigatory function, relevant information held by other organisations, agencies and bodies may be sought….

5.5 Further information

5.5.1 The acquisition of as much relevant information as is necessary and reasonably sufficient to make a fair and defensible barring decision is all that is required…

5.9 General principles in relation to the assessment of evidence

5.9.1 When case workers have completed the process of receiving and gathering all the information, evidence must be assessed in terms of what reliance may be placed on it for the purposes of making a barring decision.

5.9.2 As mentioned already, in cases of cautions, convictions and findings of fact by competent bodies, case workers will be able to treat the facts as proved. [Lord Brown explains who "competent bodies" are at para 98 of his judgment].

5.9.3 In relation to other evidence, case workers will first need to assess each piece of evidence and judge how reliable it is. The judgment as to how reliable a piece of evidence is will determine how much weight can be placed on it. Less reliable evidence will carry less weight in a barring decision than highly reliable evidence. Some evidence will be so unreliable, for example because it is contradicted or called into question by other reliable evidence, that no lawful reliance can be placed on it at all. Such evidence must be disregarded altogether; a failure to do this could give rise to an appeal on the grounds that the ISA had made an error in its findings of fact. …

5.9.7 Case workers must always be mindful of the principles that the findings of fact that can or cannot be made in the light of the evidence may mean that case workers must re-assess which powers can be relied on to bar..."

Stage 3 ("Case assessment") contains detailed guidance as to the assessment of the gravity of the case and the level of risk of future harm presented by the individual. Para 6.11 states that there may be referral of particularly difficult cases to a specialist for an opinion. Such cases may include those where advice is required about issues of mental health or where the motivation of the applicant or referred person is unclear, for example, in the case of alleged "grooming".

Stage 4 is entitled "Representations". Para 7.1 states that, if the ISA has decided that the evidence supports a bar for the children's list (that is the "minded to bar" stage has been reached), the person must be given the opportunity to make representations as to why he or she should not be included in the list. Para 7.3 states that the request for representations that is sent to the person "draws attention to findings of fact that are material to the barring decision and the areas of risk identified so that any representation made by the applicant/referred individual can address specific areas to be explored in the case assessment". Para 7.4 is important. It provides:

"Representations could alter a case worker's original conclusions in two areas. Firstly, in relation to the evidence, findings of facts or the value or significance of other evidence being relied on may be genuinely called into question; secondly, the conclusions reached in the structured judgment procedure [ie stage 3] may need to be reviewed in the light of further evidence or things presented in the representations. "

Para 7.5 provides that the representations are ordinarily expected to be in writing by the individual under consideration. But they may be made by others on behalf of the individual, provided that they are authorised.

The final stage of the Process is entitled "Final decision". It includes:

"8.1 The decision after receiving representations relates to the level of potential future risk of harm to children and/or vulnerable adults taking into consideration, where applicable, any representations that have been made and all pertinent facts and any specialist opinions. The guiding principle is that the assessment of the case is based on a structured judgment regarding an individual's risk of harm to vulnerable groups whether, based on that process, it is appropriate to include any such individual in the list(s).

8.2 The 'appropriateness test' is based on the requirement to ensure children and vulnerable adults are safeguarded and that any barring decision is not tarnished by any desire to act as a sanction or punishment. A key issue is that decisions to include or not on the barred list(s) are only taken after the merits of each case have been fully considered following an assessment of all available, relevant facts and evidence, any specialist opinions and, where appropriate, any representations made. "

In addition to the published guidance notes, case workers have the benefit of Case Worker Guidance to assist them in making "balanced, factually sound and defensible decisions from stages 2 to 5 of the barring process". This guidance is not published. It is intended to supplement the guidance contained in the guidance notes. The version that was provided to the court (which is redacted) is dated April 2011.

There is a section headed "Assessing the reliability of the evidence". It includes:

"2.12 The judgment as to how reliable a piece of evidence is will determine how much weight can be placed on it. Less reliable evidence will carry less weight in a barring decision than highly reliable evidence. Some evidence will be so unreliable, for example, because it is contradicted or called into question by other reliable evidence, that no lawful reliance can be placed on it at all. Such information must be disregarded altogether and the reason for such a decision documented; as failure to disregard such information could give rise to an appeal.

2.13 Consider the credibility of the witnesses and the referred individual and in your assessment take account of any issues that relate to their motivation and their previous conduct. Is there anything in the background to the matter which affects anyone's credibility? Is there history of similar problems or issues relating to their honesty?

2.14 The underlying motivation of the person giving the information or the referred individual may be very important in your assessment and the weight you allot to it; especially where you consider that it involves prejudice, financial gain or malice.

2.15 You should be careful in the way you deal with the opinions of those giving information. While it is sometimes helpful to receive an interpretation of a set of circumstances or facts from, for example, a care worker or police officer, it is also important to remember that an opinion is essentially a person's belief; it is a subjective observation of statement which may or may not be supported by evidence."

Then at para 2.30, there is a section headed "Professional opinions and previous findings". It includes:

"Can we take at face value the findings of a referring organisation's disciplinary process?

For the most part, such findings, if supporting evidence is on the file, will be fairly straightforward to confirm as reliable.

However, there are plenty of examples where the referring organisations have either made decisions without the full facts available, or come to partial findings that have led to a dismissal…

We are in a unique position in that we are able to pull together relevant information from a range of agencies and it is therefore essential we make our own findings about the evidence available to us.

More fundamentally, in the above example, a headmaster's investigatory report to a disciplinary panel may conclude that an allegation is proven; this is not a finding of fact, so we should evaluate the evidence too. Obviously they will have a good contextual knowledge of the case (better in many cases than ourselves) but there could be any number of reasons why that finding is not defensible (they were not privy to all the information; a witness has since retracted/revisited a statement; they simply did not come to a reasoned conclusion, etc) so we should evaluate the evidence ourselves and come to our own conclusions. The only cases in which this is not relevant is when there is a finding of fact made by a competent body. "

The issue

The issue is whether the governors' decision not to allow the claimant to have legal representation at the disciplinary hearing violated his rights under article 6 of the ECHR which, so far as material, provides:

"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…."

It is common ground that the civil right with which we are concerned is the claimant's right to practise his profession as a teaching assistant and to work with children generally. There is no doubt that this right would be directly determined by a decision of the ISA to include him in the children's barred list. He does not, however, contend that the proceedings before the ISA would violate his article 6(1) rights. His case is that (i) the disciplinary proceedings would have such a powerful influence on the ISA proceedings as to engage article 6(1) in both of them and (ii) the consequences of being placed on the children's barred list by the ISA would be so grave for him that the right to a fair hearing vouchsafed by article 6(1) meant that he was entitled to legal representation in both proceedings.

If there is no connection at all between the disciplinary proceedings and the proceedings before the ISA, it is obvious that article 6 has no role to play in the disciplinary proceedings. Ex hypothesi, they have nothing to do with the civil right in question.

The principal question raised on this appeal is what kind of connection is required between proceedings A (in which an individual's civil rights or obligations are not being explicitly determined) and proceedings B (in which his civil rights or obligations are being explicitly determined) for article 6 to apply in proceedings A as well as proceedings B. Does the connection have to be so strong that the decision in proceedings A in effect determines the outcome of proceedings B (as Mr Bowers QC submits). Or is it sufficient that the decision in proceedings A has an effect on proceedings B which is more than merely tenuous or remote (as Mr Drabble QC submits)? Or does the connection lie somewhere between these two positions? Having considered the Strasbourg jurisprudence, Laws LJ (with whom Wilson and Goldring LJJ agreed) adopted a test somewhere along the spectrum between the two extremes. He said [2010] 1 WLR 2218, para 32 that the ECtHR approach was "likely to be met where the decision in the relevant proceedings has a substantial influence or effect on the later vindication or denial of the claimant's Convention right". He amplified this at para 37 in these terms:

"In my view the effect of the learning (and I have already foreshadowed this) is that where an individual is subject to two or more sets of proceedings (or two or more phases of a single proceeding), and a 'civil right [or] obligation' enjoyed or owed by him will be determined in one of them, he may (not necessarily will) by force of Article 6 enjoy appropriate procedural rights in relation to any of the others if the outcome of that other will have a substantial influence or effect on the determination of the civil right or obligation. I do not mean any influence or effect which is more than de minimis: it must play a major part in the civil right's determination. I do not intend a hard and fast rule. Principles developed by the Strasbourg court for the interpretation and application of the Convention tend not to have sharp edges; as I have said, the jurisprudence is generally pragmatic and fact-sensitive. The nature of the right in question may make a difference. So may the relative authority of courts, tribunals or other bodies playing their respective parts in a case, such as the present, where connected processes touch a Convention right."

The Strasbourg jurisprudence

Mr Bowers (supported by Miss Lieven QC) submits that there is no support in the Strasbourg jurisprudence for the test propounded by Laws LJ and that we should reject it. It is, therefore, necessary to examine some of the decisions of the ECtHR. In Ringeisen v Austria (No 1) (1971) 1 EHRR 455, the Austrian District and Regional Real Property Transactions Commission refused to approve the sale of a number of plots of land. The applicant challenged the refusal alleging bias and contending that his article 6 rights were violated for that reason. The Austrian statute provided that the refusal of approval rendered the sale null and void. The ECtHR said at para 94 that "the French expression 'contestations sur (des) droits et obligations de caractère civil' covers all proceedings the result of which is decisive for private rights and obligations. The English text 'determination of ... civil rights and obligations' confirms this interpretation". A little later in the same paragraph, the court said:

"In the present case, when Ringeisen purchased property from the Roth couple, he had a right to have the contract for sale which they had made with him approved if he fulfilled, as he claimed to do, the conditions laid down in the Act. Although it was applying rules of administrative law, the Regional Commission's decision was to be decisive for the relations in civil law ('de caractère civil') between Ringeisen and the Roth couple. This is enough to make it necessary for the court to decide whether or not the proceedings in this case complied with the requirements of article 6(1) of the Convention."

It is clear that the refusal of approval by the Commission (a matter of administrative law) was, as a matter of fact in that case, determinative of the private contractual rights of the parties. It did not merely influence the relations in civil law between the parties. It was dispositive of them. But it is not at all clear that the court was saying that this was the test for all cases. The words "covers all proceedings the result of which is decisive for private rights and obligations" (emphasis added) could mean that the circumstances in which article 6(1) is engaged include, but are not limited to, such cases.

It will be seen, however, that the language of para 94 of Ringeisen ("proceedings the result of which is decisive for private rights and obligations") has been repeated as a mantra in other cases where the facts were materially different. The next case is Le Compte, Van Leuven and De Meyere v Belgium (1982) 4 EHRR 1. The applicants were suspended from practising medicine for three months by the Provincial Council of the Ordre des médecins. They appealed unsuccessfully to the Appeal Council and from there (again unsuccessfully) to the Court de Cassation. Dr. Le Compte complained to the ECtHR that his article 6 rights had been violated because the proceedings before the Appeals Council had not been conducted in public. An issue arose as to whether article 6 was engaged at all. The applicants argued that what was in issue before the Provincial and Appeals Councils was their right to continue to practise in their profession (a "civil" right). The Government argued that the decisions of those bodies had no more than an "indirect effect" on that right, since they did not review the lawfulness of the earlier suspension from practice, but merely had to decide whether breaches of the rules of professional conduct of a kind justifying disciplinary sanctions had actually occurred (para 46).

Following Ringeisen, the court said that it must be shown that the dispute (before the Appeals Council) related to civil rights and obligations, "in other words that the 'result of the proceedings' was 'decisive' for such right" (para 46). At para 47, the court said:

"As regards the question whether the dispute related to the above-mentioned right, the court considers that a tenuous connection or remote consequences do not suffice for article 6(1), in either of its official versions ('contestation sur', 'determination of'): civil rights and obligations must be the object—or one of the objects—of the 'contestation' (dispute); the result of the proceedings must be directly decisive for such a right.

Whilst the court agrees with the Government on this point, it does not agree that in the present case there was not this kind of direct relationship between the proceedings in question and the right to continue to exercise the medical profession."

This seems to be the first case in which the ECtHR contrasted the notion that the result of the proceedings must be "directly decisive" with the notion of "a tenuous connection or remote consequences". On the facts of Le Compte, the issue for the Appeals Council was whether the breaches of the rules of professional conduct on which the decision to suspend was based had actually occurred. But the link between the findings of breach and the decision to suspend could not have been closer. If the appeal failed, the decision to suspend would remain unimpaired. The decision of the Appeals Council was determinative of the applicants' civil right to practise their profession during the period of suspension. In my view, the court was not introducing a gloss on the Ringeisen test that any connection more than tenuous or remote would suffice. On the facts of this case (as in Ringeisen itself), the result of the proceedings in question was determinative of the civil rights in issue.

The next case is Fayed v United Kingdom (1994) 18 EHRR 393. This is heavily relied on by Mr Bowers as showing that "decisive" means determinative in the sense of "dispositive". The applicants had acquired the House of Fraser ("HOF"). The takeover had been opposed by Lonrho Plc which pursued a hostile campaign against the applicants through the media, including The Observer, a newspaper that it owned. This led to the issue of libel proceedings by the applicants. Some time later, the Government appointed two inspectors to investigate inter alia the circumstances surrounding the acquisition of HOF. The inspectors' provisional conclusions included a finding that the applicants had made material dishonest misrepresentations at the time of the takeover. The Government published the report. Following the publication of the report, the applicants abandoned their libel claims against The Observer newspaper on the grounds that, in the light of the report, it had become impossible to prosecute the claims with any prospects of success.

The applicants complained that, in violation of article 6(1), the inspectors had in their report determined their civil rights to honour and reputation (protected as part of their right to respect for private life under article 8) and had denied them effective access to a court to have those rights determined. The first question that the ECtHR had to decide was whether article 6(1) was applicable to the investigation by the inspectors. It was contended by the applicants that the result of the investigation was decisive of their article 8 rights and that the inspectors' report effectively "determined" them without respecting any of the procedural guarantees of article 6(1).

The court accepted that the published findings of the inspectors undoubtedly damaged the applicants' reputations, but that was not sufficient to lead to the conclusion that the inspectors had determined their civil rights. The court said:

"61. However, the court is satisfied that the functions performed by the inspectors were, in practice as well as in theory, essentially investigative. The inspectors did not adjudicate, either in form or in substance. They themselves said in their report that their findings would not be dispositive of anything. They did not make a legal determination as to criminal or civil liability concerning the Fayed brothers, and in particular concerning the latter's civil right to honour and reputation. The purpose of their inquiry was to ascertain and record facts which might subsequently be used as the basis for action by other competent authorities—prosecuting, regulatory, disciplinary or even legislative. …

Nevertheless, whilst there was a close connection between Lonrho's grievance against the Fayed brothers and the matters investigated by the inspectors, the object of the proceedings before the inspectors was not to resolve any dispute (contestation) between Lonrho and the applicants…

In short, it cannot be said that the inspectors' inquiry 'determined' the applicants' civil right to a good reputation, for the purposes of article 6(1), or that its result was directly decisive for that right.

62. Acceptance of the applicants' argument … [as to the] interpretation of article 6(1) would in practice unduly hamper the effective regulation in the public interest of complex financial and commercial activities. In the court's view, investigative proceedings of the kind in issue in the present case fall outside the ambit and intendment of article 6(1)."

Thus it can be seen that the court accepted that there was a close connection between the findings of the inspectors and the determination of the civil right which was to be the subject of the libel proceedings, but that was not enough. Fayed shows that in the ECtHR lexicon, "decisive" is not the antonym of "a tenuous connection or remote consequence". The court emphasised the fact that (i) the inspectors themselves said that their findings would not be "dispositive" of anything, (ii) the object of the proceedings before the inspectors was "not to resolve any dispute" and (iii) there was an important policy reason for not applying article 6 in investigative proceedings conducted at the instance of regulatory or other authorities.

In Balmer-Schafroth v Switzerland (1998) 25 EHRR 598 the applicants lodged an objection with the Federal Council requesting that it refuse to extend a licence to operate a power station. The council (which was the authority of first and last instance to deal with the matter) rejected the objection and extended the licence. The applicants invoked articles 6(1) and 13, arguing that they had not had access to a "tribunal" and that the procedure followed by the council had not been fair. They said that there had been a violation of their civil right to the protection of their physical integrity under articles 2 and 8.

The court found that article 6(1) was not engaged. At para 32, it set out the familiar test: "the outcome of the proceedings must be directly decisive for the right in question. As the court has consistently held, mere tenuous connections or remote consequences are not sufficient to bring article 6(1) into play". At para 39, it said that the question in particular was whether the link between the council's decision and the applicants' article 2 and 8 rights "was sufficiently close to bring article 6(1) into play, and was not too tenuous or remote". At para 40, it answered this question saying that the applicants were unable to establish that the operation of the power station "exposed them personally to a danger that was not only serious but also specific and, above all, imminent". Consequently "neither the dangers nor the remedies were established with a degree of probability that made the outcome of the proceedings directly decisive within the meaning of the court's case law". In the result, the connection between the council's decision and the right invoked by the applicants was "too tenuous and remote". This is an example of a case where there is only one set of proceedings in issue (ie the first and last instance authority adjudicating on the same right). In such a case, the question is whether the proceedings are decisive in the ordinary sense of being dispositive of the effective exercise of the applicant's rights. Another example of such a case is Slovenske Telekomunikacie (Application No 47097/99) (unreported) given 28 September 2010.

There is also a line of Strasbourg decisions on the question whether article 6 is engaged where an issue arising in civil proceedings is referred to a constitutional court. This question arose in particular in relation to the question whether proceedings before the constitutional court were to be taken into account in determining whether the length of the civil proceedings was reasonable within the meaning of article 6(1). Initially, the ECtHR decided that the ECHR did not apply to rights determined by a constitutional court because of their constitutional nature: see Buchholz v Germany (1981) 3 EHRR 597. This approach was, however, rejected in Deumeland v Germany (1986) 8 EHRR 448 where at para 77 the ECtHR held that, although the Constitutional Court had no jurisdiction to rule on the merits of the dispute, its decision was "capable of affecting the outcome of the claim".

Since then, the Deumeland approach has been followed repeatedly by the ECtHR in cases where questions are referred to a constitutional court. Thus in Poiss v Austria (1988) 10 EHRR 231, in relation to the applicability of article 6(1), the court said: "Any decision—whether favourable or unfavourable—by the authorities dealing with the matter subsequently affected, affects or will in future affect their property rights. The outcome of the proceedings complained of is accordingly 'decisive for private rights and obligations' (see Ringeisen), so that article 6(1) applies in the instant case".

In Bock v Germany (1990) 12 EHRR 247, the ECtHR rejected an argument that Deumeland should not be followed and at para 37 said that:

"there are circumstances in which proceedings before the constitutional court must be taken into the reckoning in determining the relevant period. It has to be considered whether the constitutional court's decision was capable of affecting the outcome of the case which has been litigated before the ordinary courts. The question whether article 6(1) is applicable to constitutional complaint proceedings must accordingly be treated on the merits of each case, in the light of all the circumstances" (emphasis added).

Another case involving constitutional proceedings is Ruiz-Mateos v Spain (1993) 16 EHRR 505. This is one of the decisions relied on by Laws LJ in support of his test of "substantial influence or effect". The applicants brought a claim for the restitution of shares which had been expropriated by legislative decree of the Spanish Government. An issue arose as to the constitutionality of the decree and this was referred to the Spanish Constitutional Court. The applicants complained of breaches of article 6(1) by reason of (i) the delays occasioned by the proceedings in the Constitutional Court and (ii) the alleged failure to accord them a fair hearing before the Constitutional Court. The Government argued inter alia that article 6(1) was not applicable in the proceedings before the Constitutional Court. The ECtHR rejected this argument.

The court said, in relation to the length of the proceedings, that the relevant period included the time taken in the proceedings before the Constitutional Court and was not limited to the duration of the civil proceedings. At para 35, the court said that, according to its well-established case law, "proceedings in a Constitutional Court are to be taken into account for calculating the relevant period where the result of such proceedings is capable of affecting the outcome of the dispute before the ordinary courts" (emphasis added). The Commission explained at para 52 of its Opinion that "although the purpose of these constitutional proceedings was not the same as that of the civil proceedings, the length of the constitutional proceedings inevitably contributed to the prolongation of the civil proceedings."

As regards the allegation that the applicants had been denied a fair hearing before the Constitutional Court, the court observed that there was a "close link" between the subject-matter of the proceedings before that court and the civil proceedings (para 59). The annulment of the decree by the Constitutional Court would have led the civil courts to allow the applicants' claim. For this reason, the ECtHR held that article 6(1) applied to the proceedings before the Constitutional Court. The Commission put the point very clearly at para 87 of its opinion:

"In effect, therefore, it is as if the applicants' case was dealt with in a single set of proceedings before the Spanish courts. Although these proceedings involved a civil stage, in the strict sense, and a constitutional stage, these stages were so closely bound up with each other that to dissociate them would be tantamount to crediting a legal fiction…. In the specific circumstances of the case, [to interpret article 6(1) as excluding the constitutional stage of the proceedings] would be excessively formalist and likely to undermine to a considerable extent the guarantees afforded to the applicants by the Convention, whereas, according to case law, the Convention must be interpreted in such a way as to ensure its efficacy and to safeguard the individual in a real and practical way, rather than a fictitious and illusory way, as regards those areas with which it deals.".

In relation to the question of reasonable period, unsurprisingly the ECtHR has consistently held that, where a constitutional issue arises in civil proceedings and this can only be determined by a Constitutional Court, the time taken before that court must be taken into account in calculating the length of the civil proceedings. The position should be no different from what it would be if the civil court had jurisdiction to decide the constitutional issue for itself. It is as if the proceedings before the Constitutional Court and the civil court were all part of the same proceedings. For the same reason, the guarantee of a fair hearing afforded by article 6(1) should apply to proceedings before the Constitutional Court as it does to proceedings before the civil court.

The next case referred to by Laws LJ was Lizarraga v Spain (2007) 45 EHRR 45. This was a case similar to Ruiz-Mateos. At para 47, the ECtHR said that, although the proceedings before the Constitutional Court bore the hallmarks of public law proceedings, they were "decisive" of the applicants' proceedings in the ordinary courts to have a dam project set aside. The court found that the proceedings "as a whole" may be considered to concern the civil rights of the applicants.

The third ECtHR case relied on by Laws LJ was the Grand Chamber decision in Ocalan v Turkey (2005) 41 EHRR 45(2005). This is a criminal case. The applicant was detained and held in police custody where he was questioned by the security forces. He received no legal assistance during this period. Thereafter, he was remanded in custody pending trial and during this period he was allowed restricted access to his lawyers. He made several self-incriminating statements which were a "major contributing factor" to his conviction at trial. It was held by the ECtHR that there had been a violation of article 6(1) in conjunction with article 6(3)(b) and (c). At para 131 the Grand Chamber endorsed the following statement: "... in these circumstances, the court is of the view that to deny access to a lawyer for such a long period and in a situation where the rights of the defence might well be irretrievably prejudiced is detrimental to the rights of the defence to which the accused is entitled by virtue of article 6".

I agree that in such a case, the requirements of article 6(1) (criminal) and 6(3) are necessarily engaged sooner than in civil cases because of the specific article 6 right to the presumption of innocence and legal representation after charge with which it is inextricably linked. That is why I do not consider that this decision sheds light on the issue that arises in the present appeal.

The concept of irretrievable prejudice has, however, been used by the ECtHR in the civil context of claims for interim measures. In Markass Car Hire Ltd v Cyprus (Application No 51591/99) (unreported) given 23 October 2001, the domestic court had made an interim order without notice to the applicant for the delivery up of a fleet of vehicles. An issue arose as to whether article 6 applied to the interim order proceedings. The ECtHR (Third Section) noted that, unless the interim decision was reversed by the appeal court within a short time, it would affect the legal rights of the parties. The court could not overlook the "drastic effect" of the interim decision. The combined effect of the measure and its duration caused "irreversible prejudice" to the applicant's interests and "drained to a substantial extent the final outcome of the proceedings of its significance". In these circumstances, the court considered that the interim decision "in effect partially determined the rights of the parties in relation to the final claim against the applicant in [the] civil action".

This approach to interim measures was endorsed by the Grand Chamber in Micallef v Malta (2010) 50 EHRR 37. At para 74, the court said that the result of the interim proceedings must be "directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring article 6(1) into play." At para 79, they noted that a judge's decision on an injunction "will often be tantamount to a decision on the merits of the claim for a substantial period of time, even permanently in exceptional cases." At para 85, they said that the nature of the interim measure, its object and purpose as well as its effects on the rights in question should be scrutinised. Whenever an interim measure can be considered effectively to determine the civil right or obligation at stake, notwithstanding the length of time it is in force, article 6 will apply.

Before I attempt to distil the principles that can be derived from these cases which are relevant to this appeal, I need to refer to some recent English cases.

The English cases

Laws LJ derived support for his test from Kulkarni v Milton Keynes Hospital NHS Trust [2009] EWCA Civ 789, [2010] ICR 101. A doctor claimed that he was entitled to legal representation in disciplinary proceedings brought by his employer. Smith LJ (with whom Wilson LJ and Sir Mark Potter P agreed) said obiter at para 67 that she would have held that "article 6 is engaged where an NHS doctor faces charges which are of such gravity that, in the event they are found proved, he will be effectively barred from employment in the NHS". She explained at para 66 why article 6 was engaged on the facts of that case. The NHS is, to all intents and purposes, a single employer of doctors for the whole country. If Dr Kulkarni was found guilty of the charge, he would be unemployable as a doctor and would never complete his training. Thus, the internal disciplinary procedure was, as a matter of fact, dispositive of his right to work in his chosen field.

R (Wright) v Secretary of State for Health [2009] 1 AC 739 was concerned with the procedure for provisionally listing a worker on the Protection of Vulnerable Adults (POVA) list under the 2006 Act. The House of Lords held that some interim measures "have such a clear and decisive impact upon the exercise of a civil right that article 6(1) does apply" (per Baroness Hale of Richmond, at para 21). Provisional listing in the POVA list was a determination of the civil right to work because it had "detrimental" and "often irreversible and incurable" effects (para 25). Thus, the procedure was, as a matter of fact, dispositive of the claimant's right to work in his chosen field.

Neither Kulkarni nor Wright sheds light on the meaning and boundaries of the Ringeisen test. They contain no analysis or discussion of the meaning of what I have called "the mantra". They are merely examples of cases where, as a matter of fact, the proceedings determined the civil right in question. We were also shown other domestic decisions where the test has been applied such as Runa Begum v Tower Hamlets London Borough Council (First Secretary of State intervening) [2003] 2 AC 430 (paras 30 and 78); R (A) v Croydon London Borough Council (Secretary of State for the Home Department intervening) [2009] 1 WLR 2557 (paras 37, 59 and 63) and Ali v Birmingham City Council (Secretary of State for Communities and Local Government intervening) [2010] 2 AC 39 (paras 36 and 43). In each of these passages, the mantra of "directly decisive" is stated, but there is no analysis of precisely what it means.

Conclusions on the test for the application of article 6

I have found it necessary to examine the facts of the ECtHR decisions to which I have referred in some detail because, in my view, the jurisprudence contains no clear explanation of what "directly decisive" means. It is, therefore, necessary to see how the court has applied the Ringeisen test in order to see what light the cases shed on its meaning.

I think that the following principles can be derived from the cases. First, it is clear that it is a sufficient condition for the application of article 6(1) in proceedings A that a decision in those proceedings will be truly dispositive of a civil right which is the subject of determination in proceedings B. In Ringeisen 1 EHRR 455 and Le Compte 4 EHRR 1, proceedings A were, on the facts of those cases, dispositive of the outcome of proceedings B. The constitutional cases such as Ruiz-Mateos 16 EHRR 505 and Lizarraga 45 EHRR 1031 are further examples of the application of this principle. So too in the interim measures cases of Markass 23 October 2001, BAILII: [2001] ECHR 897 and Micallef 50 EHRR 37, the decision to grant interim measures was, on the facts, directly decisive in the sense that they caused irreversible prejudice to the applicants and, in effect, were wholly or at least partly determinative of the civil right in question. Article 6(1) therefore applied in all of these cases. But none of them states in terms that it is a necessary condition for the application of article 6(1) in proceedings A that they are dispositive of proceedings B.

Secondly, although the word "decisive" is contrasted with "tenuous connection or remote consequences", no decision was shown to us which states that article 6(1) applies in any case where the connection between the two proceedings is merely more than tenuous or where the consequences of a decision in proceedings A for proceedings B is merely more than remote. There is a spectrum of effect ranging from (i) merely more than tenuous and remote to (ii) dispositive. The fact that the ECtHR contrasted the two ends of the spectrum, for example, in Le Compte does not indicate that the court was saying that article 6(1) applies in any case where the link is merely more than tenuous or the consequences are merely more than remote.

Thirdly, in a number of cases the court made it clear that a link that was merely more than tenuous or consequences that were merely more than remote is not sufficient. How close does the link have to be for article 6(1) to apply? In Balmer-Schafroth 25 EHRR 598, the court said that there had to be a "sufficiently close" link. That begs the question: does the link have to be sufficient to be dispositive of the decision or is it enough that it is likely to have some influence on it? In Ruiz-Mateos 16 EHRR 505, the court said that the test was whether the decision of the constitutional court was capable of affecting the outcome of the proceedings in which the civil rights were to be determined. In most cases where a constitutional question which arises in the course of a civil dispute is referred to a constitutional court, the decision of that court is likely to be capable of being determinative of the dispute. Ruiz-Mateos was one such case. Fayed 18 EHRR 393 shows that, in some cases at least, the link must be very close. That was a strong case on the facts as the findings set out in the inspectors' report had a potent impact on the applicant's attempt to vindicate his article 8 right to honour and reputation. Nevertheless, the court held that the proceedings before the inspectors were not "decisive" of his civil rights.

Fourthly, the cases show that, despite the apparent simplicity of the mantra, the ECtHR adopts a pragmatic context-sensitive approach to the problem. It is not possible to classify all the cases into neat hermetically-sealed categories. This may be considered to be unfortunate, since it is desirable to know in advance whether article 6(1) applies to a procedure or not. Anything less gives rise to uncertainty and potential litigation. But the ECtHR has propounded an approach which is not sharp-edged and I do not think it is for us to introduce a rigidity which Strasbourg has eschewed. It is pertinent to note that in Ruiz-Mateos, the Commission referred at para 87 of its Opinion to "the specific circumstances of the case" (see para 52 above) and in Bock 12 EHRR 247, para 37, the court said that the question whether article 6(1) was applicable must "be treated on the merits of each case, in the light of all the circumstances" (see para 49 above).

Thus, in deciding whether article 6(1) applies, the ECtHR takes into account a number of factors including (i) whether the decision in proceedings A is capable of being dispositive of the determination of civil rights in proceedings B or at least causing irreversible prejudice, in effect, by partially determining the outcome of proceedings B; (ii) how close the link is between the two sets of proceedings; (iii) whether the object of the two proceedings is the same; and (iv) whether there are any policy reasons for holding that article 6(1) should not apply in proceedings A. This last factor was taken into account by the ECtHR in Fayed 18 EHRR 393 (see para 43 above).

So where does this leave the test of "substantial influence or effect" proposed by Laws LJ? He was careful to say that an applicant "may (not necessarily will) by force of article 6 enjoy appropriate procedural rights in relation to any of the others [set of proceedings] if the outcome of that other will have a substantial influence or effect on the determination of the civil right or obligation": [2010] 1 WLR 2218, para 37 (emphasis added). In my view, this is a useful formulation. It captures the idea of the outcome of proceedings A being capable of playing a "major part in the civil right's determination" in proceedings B. That is what fairness requires. Anything less would be "excessively formalist" (see para 87 of the Commission's Opinion in Ruiz-Mateos 16 EHRR 505) and would give too much weight to the fact that the two sets of proceedings are, as a matter of form, separate. The focus should be on the substance of the matter. The court should always keep in mind the importance of ensuring that the guarantees afforded by article 6(1) are not illusory. It is clearly established that, where a decision in proceedings A is dispositive of proceedings B, article 6(1) applies in proceedings A as well as in proceedings B. That is what the right to a fair hearing in proceedings B requires. Why does fairness not require the same where the decision in proceedings A, although it is not strictly determinative, is likely to have a major influence on the outcome in proceedings B? As a matter of substance, there is not much difference between (i) an outcome of proceedings A which has a major influence on the result in proceedings B and (ii) an outcome of proceedings A which is dispositive of the result in proceedings B. In each case, the civil right of the person concerned is greatly affected by what occurs in proceedings A. If there is to be a difference in the application of article 6(1) between the two cases, it needs to be justified. There may be policy reasons (such as those referred to in Fayed 18 EHRR 393) based on the nature of the body charged with proceedings A which justify a different approach. But absent such policy reasons, it is difficult to see why article 6(1) should not apply in both cases. No such policy reasons have been identified in the present case. I propose, therefore, to consider whether article 6(1) applies in the present case on the basis of the test propounded by Laws LJ.

Did article 6(1) apply in the disciplinary proceedings in the present case?

At para 47 of his judgment, Laws LJ said:

"It seems to me that there is every likelihood that the outcome of the disciplinary process in a case like this, where there has been a finding of abuse of trust by virtue of sexual misconduct, will have a profound influence on the decision-making procedures relating to the barred list. The governors' conclusion comprised both a finding of fact and a judgment as to where the facts lay on the scale of severity that in the particular case fell to be applied. While the ISA may bring an independent mind to bear, it is not I think suggested that it operates a procedure for oral hearings with cross-examination. The force of the disciplinary decision lies not only in the governors' view of the primary facts, but especially in their judgment as to how those facts should be viewed. Without a de novo hearing and the possibility of oral evidence before the ISA, at the very least the flavour and the emphasis of those conclusions will remain important and influential."