The Supreme Court has heard the appeal in R (on the application of G) v Governors of X School [2011] UKSC 30 brought by a School against a decision by the High Court (upheld by the Court of Appeal) that G, a teacher accused of inappropriate sexual misconduct with a pupil, should be entitled to legal representation at his disciplinary hearing.

The Supreme Court has controversially held that Article 6 of the European Convention on Human Rights (ECHR) (the right to a fair and public hearing) was not, on the facts, engaged in relation to the disciplinary proceedings within the School. The Supreme Court accepted that the civil right at issue was G’s right to practise as a teacher and work with children. This right would be determined by the Independent Safeguarding Authority (ISA) which would make the decision of whether to place him on the barred list. G had argued that the outcome of internal disciplinary proceedings would directly affect the ISA’s decision and for this reason, he should be entitled to legal representation at a disciplinary hearing. However, a majority of the Supreme Court held that the disciplinary proceedings would not have a substantial effect on the ISA proceedings and therefore G was not entitled to legal representation. The majority found that there was insufficient evidence to demonstrate that the ISA would be ‘profoundly’ influenced by the decision of the disciplinary panel.

This decision demonstrates the difficulty in determining whether the proceedings at which legal representation is requested will, directly or indirectly, be determinative of an individual’s ability to carry on his or her profession. Whilst the Court of Appeal’s guidelines were endorsed and followed by the Supreme Court, it reached a different decision from the lower court on the facts and only Lord Kerr, dissenting, expressed ‘grave misgivings’, saying that the ISA would inevitably be influenced by the findings and decision of the disciplinary panel.