In this e-bulletin we report on two recent decisions which shed light on the application of the Article 6 right to a fair hearing in regulatory proceedings.

Key points

  • The requirements of a fair hearing protected by Article 6 ECHR are not absolute and depend upon all the facts and circumstances of a particular case. In determining which procedural safeguards apply in disciplinary proceedings there should be no rigid distinction between "criminal" and "civil" proceedings – however, the more serious the allegation, the greater the importance of ensuring fair and proper procedural safeguards.
  • Where an individual is subject to two sets of proceedings, one of which determines a civil right for the purposes of Article 6, the Article 6 rights may also apply to the other proceedings if those proceedings would have a substantial influence or effect on the determination of the individual's civil right.


Dr Bonhoeffer was the subject of disciplinary proceedings by the General Medical Council (GMC) concerning allegations of sexual abuse in Kenya. Most of the evidence came from an individual (X) based in Kenya. X was willing to come to the UK to give evidence in person. However the GMC decided not to call him, and sought to rely on hearsay evidence on the basis that if X took part as a witness he would be exposed to a risk of harm.

The GMC's Fitness to Practise Panel allowed the GMC to admit the hearsay evidence, despite the fact that they decided it would not be admissible in criminal proceedings and no meaningful risk assessment had been carried out as to the perceived risk of harm. The claimant sought judicial review of the Panel's decision on the grounds that it had acted irrationally in concluding that the evidence should be admitted under its rules and that his Article 6 rights had been violated.

The distinction between criminal and civil proceedings

Stadlen J emphasised that the principal issue in considering the extent of Article 6 rights should be the gravity of the issue in the case rather than the classification of the proceedings as "criminal" or "civil". However, he considered it relevant that where hearsay evidence is permitted in criminal proceedings there are safeguards (both practical and statutory) to ensure that a fair trial is still possible, for example the use of the criminal standard of proof. Such safeguards were lacking in this disciplinary process, where, for example, the lower civil standard of proof applied and the GMC would not have the power or practical means to be able to carry out any investigation into the witness's credibility and to disclose anything capable of challenging that credibility. There was no indication that the Panel had taken this lack of safeguards into account, despite the fact that it was clearly a relevant consideration.

On the issue of public interest, Stadlen J agreed that the more serious the allegations, the greater the risk to the public if there was no effective investigation by the relevant professional body. However, that factor could not diminish the weight which must be attached to the procedural safeguards to which a person accused of such allegations is entitled, both under Article 6 and the common law. In fact the contrary is true - the graver the allegations, the greater the importance of ensuring fair and proper procedural safeguards. The judge repeatedly noted that there is no public interest in a wrong result.

Stadlen J held that there is no absolute rule, under Article 6 or the common law, entitling a person facing disciplinary proceedings to cross-examine witnesses, even where the evidence of that witness is the sole or decisive basis of the evidence against him. It was instead a matter of applying general obligations of fairness, under common law principles, the claimant's Article 6 rights and the Panel's own rules, to the facts of the case. In the very unusual circumstances of this case, the application of those principles should have required the Panel to conclude that it would be unfair to admit the hearsay evidence.

The Court also held that the Panel had acted irrationally. Based on a number of factors, and particularly the witness's willingness to give evidence in person and the seriousness of the allegations, it was hard to imagine circumstances in which the ability to cross-examine the uncorroborated allegations of a single witness would assume greater importance.

The judicial review challenge therefore succeeded and the Panel's decision was quashed.


In G, the claimant, a music assistant in a school, was accused of having formed an inappropriate relationship with a child. Disciplinary proceedings were commenced and the claimant sought permission to be represented at the hearing by his solicitor. Permission was refused and the claimant was summarily dismissed. As a consequence, the matter was referred to the Independent Safeguarding Authority (ISA) for consideration of whether the claimant should be included on a list of individuals barred from working with children. The claimant argued that the refusal to allow him legal representation at the disciplinary hearing amounted to a breach of his Article 6 rights. He succeeded at first instance and in the Court of Appeal but the school governors then appealed to the Supreme Court.

The link between the disciplinary proceedings and the ISA proceedings

The main area of dispute was whether Article 6 was engaged in the disciplinary proceedings at all. This was because those proceedings, taken alone, did not determine any civil right of the claimant's for the purposes of Article 6. However, a determination by the ISA to include him on the barred list would effectively mean the end of his teaching career and as such would have directly determined his civil right to practise his profession. The Court had to consider the link between the two sets of proceedings to decide whether it was sufficient to mean that Article 6 was engaged in both sets of proceedings. In the Court of Appeal it had been held that Article 6 would be so engaged where the earlier proceedings had a "substantial influence or effect" on the subsequent determination of the civil right. This test was approved and followed in the Supreme Court by Lord Dyson.

Applying that test to the facts of the case in G, the Supreme Court held that Article 6 was not engaged by the disciplinary proceedings. In reaching this conclusion, it considered carefully the nature and extent of the ISA's investigatory powers, finding that it is required to exercise its own independent judgment both in relation to finding facts and assessing the weight to be given to them. In the light of this, Lord Dyson could not accept Laws LJ's finding in the Court of Appeal that generally and in most cases, the findings made by an employer's disciplinary panel were likely to exercise a profound influence on the ISA's decision-making process. Furthermore, the lack of an oral hearing at the ISA stage did not prevent it from making its own findings of fact.

Put simply, the two sets of proceedings were separate and distinct from one another, their decisions and procedures being directed to different issues. The fact that one set of proceedings followed automatically on from the other was not sufficient to establish the necessary link to engage Article 6 in the disciplinary proceedings.


The decision in Bonhoeffer is of interest primarily for the approach taken by the Court to the distinction between civil/criminal proceedings, which appears to be accepted now as a sliding scale rather than a bi-partite distinction, with cases requiring particular levels of safeguards depending on the gravity and circumstances. It also emphasises the flexibility of the fairness requirements of Article 6. The Supreme Court's judgment in G provides helpful clarification of the test for establishing whether there is a sufficiently close nexus between 2 sets of proceedings to engage Article 6 in those proceedings which would not otherwise engage it. Interestingly Lord Hope's judgment considered the policy implications of the decision, noting that if the Court of Appeal's judgment had stood, it would have entailed the unattractive risk that disciplinary proceedings in the public sector would be turned into a process of litigation with all the disadvantages that would involve.

R (Bonhoeffer) v General Medical Council [2011] EWHC 1585; R (G) v The Governors of X School [2011] UKSC 30