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Teachers disciplined for sexual misconduct win right to a lawyer

26 January 2010

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.

David Woods, partner at Keith Levin in Huyton near Liverpool, acted for G.

“This is a major breakthrough for teachers and anyone else involved in the caring professions,” he said.

Woods said he appreciated that school governors were volunteers and in a difficult position, but in this case the local authority had “steadfastly refused” to let G have a lawyer.

“It took a judicial review and a Court of Appeal hearing for them to get the message,” he said.

“It was obvious to me that he needed proper representation, but it was not obvious to them.”

Woods said that G, a talented musician, was 19 at the time of the incident and working as a part-time unqualified music teacher. The 15-year-old was not a pupil, but visiting the primary school involved in work experience.

Woods added that the case was initially funded by G’s father and later by legal aid.

Mark Blois, partner at Browne Jacobson, said the impact of the Independent Safeguarding Authority was “absolutely enormous” for anyone working with children. “Any information they get, hard or soft, is incredibly significant.”

Blois said there was so much pressure on employers to deal with allegations “absolutely properly” that they tended to err on the side of caution and take disciplinary action where perhaps in the past they would not have done.

“Hearings are not meant to be overly formal or adversarial but we need to bear in mind what is at stake,” he said.

John Ford, principal of John Ford solicitors, said the ruling made sense.

“In these days of safeguarding, the implications on a teacher of malpractice allegations can be profound. They are as a bad as being convicted of a criminal offence in other spheres of work.

“It is entirely right that people should have the ability to be represented by a lawyer.”

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Education Vulnerable Clients Local government