Controlling and Coercive Behaviour: Widening the Net
High Court gives guidance on the correct construction of the legislative regime surrounding the appointment of panel members in disciplinary proceedings in respect of members of the Bar.
Judgement date: 16 October 2013
In this case, the appellant barrister sought permission to challenge, by way of judicial review, the findings in relation to professional misconduct made by the Disciplinary Tribunal of the Council of the Inns of Court (COIC) and the subsequent findings on appeal to the Visitors to the Inns of Court.
Three further barristers had appealed the findings of the Tribunal referenced above on similar grounds and it was ordered that their cases should be heard together. The most significant matter in issue was whether certain members of the Disciplinary Tribunal and Visitors to the Inns of Court who had sat in judgment over the appellants cases were ineligible to do so, in that, lapse of time meant they could no longer be members of the COIC pool, from which, it was argued, panel members for Disciplinary Tribunals and Hearings Before the Visitors must be drawn.
With the dissolution of the Senate of the Four Inns of Court, the COIC and General Council of the Bar were constituted by agreement, signed on 11 November 1986. The COIC’s constitution was set out in Part III of the agreement and its functions included the obligation to appoint Disciplinary Tribunals in accordance with the provisions of Schedule A. It is noteworthy at this stage that composition of such a Tribunal was to consist of persons nominated by the President of the COIC, provided said persons met certain criteria which were specified elsewhere in the constitution, and that the President had the power to cancel nominations and make alternatives.
In 2000 by resolution of the COIC, Schedule A was replaced by the Disciplinary Tribunal Regulations 2000. Again it is noteworthy that it was mandated that the Disciplinary Tribunal consist of five people nominated by the President, again subject to certain criteria. In 2000 a number of criteria for selection were changed and most notably a requirement was introduced that retired judges must be appointed to a panel of retired judges to be eligible.
The Disciplinary Tribunal Regulations 2000 were amended in 2005 and 2009 and the requirement that retired judges be appointed to a panel to be eligible was removed. The President’s power to nominate, cancel and make alternative nominations remained unchanged.
Concurrently with the developments listed above, the COIC, pursuant to its responsibilities to appoint and convene independent disciplinary panels created a Tribunal Appointments Body to establish a body of lay representatives, barristers, silks and clerks in accordance with Terms of Reference drawn up by the COIC. These terms of reference included, amongst other things, a requirement that lay representatives could only be appointed to the pool for five years, renewable once and barristers for the same period unless they were existing panel members in which case the first period of appointment was to be for 3 years.
In parallel to the position with the COIC outlined above, Rule 10(1) of the Hearings Before the Visitors Rules 2005 gives the Lord Chief Justice the power to nominate the persons who are to compose the Hearing Before the Visitors panel.
Finally by way of legislative background, on 29 September 2010 the President of the COIC and the Chairman of the BSB signed a Memorandum of Understanding to codify the arrangements between the COIC and BSB with respect to arranging and administering disciplinary and other proceedings. The Memorandum stated at 11.1 that the COIC , ‘will be responsible for appointment all Panel members … such appoints will be made by the President of COIC in accordance with the relevant provisions of the Code of Conduct’, and at 14.1 that the COIC ‘will be responsible for the appointment of the barrister member and the lay member of Visitors’ Panel, appointed under Rule 10 of the Hearings before the Visitors Rules 2005’.
The first , Mr Leathley (ML) was appealing a fine for discreditable conduct, in that he claimed that he was a Queen’s Counsel acting for the BSB to a member of the Criminal Appeals Office, when in actuality he was not . He appealed, in part, the decision in Leathley v Bar Standards Board, Queens Bench Division, 20 January 2012.
The second appellant Ms Hayes (MH) was appealing a fine for failure to complete the necessary 12 hours of continuing professional development.
The third appellant Mr Mehey (MM)was appealing his disbarment for various incidents of professional misconduct.
It was plainly the case that the Terms of Reference, in accordance with which the Tribunals Appointments Body was to establish a pool of lay representatives, barristers, silks and clerks, mandated that members could only remain part of the COIC pool for a limited duration and with limited opportunity to have their membership renewed. In the immediate case, whether various members of the Disciplinary Tribunals and Visitors to the Inns of Court were eligible to be part of the COIC pool was not in issue, they plainly were not.
The most significant matter in issue was whether it was necessary to be a member of the COIC pool in order to be appointed to sit on a Disciplinary Tribunal or as a Visitor, although there were other matters which are dealt with below.
The Court held that there was no legislative provision which required appointments to the Disciplinary Tribunals or Visitors’ Hearings be confined to those from the vetted pool of those eligible for appointment. Rather the court held that the Rules merely  ’set out an elaborate procedure for vetting those suitable to sit on a disciplinary panel but nowhere do they require the President to appoint from the COIC pool’.
Further, in respect of the Visitors’ Hearings it was held that  ‘the absence of any such provision is even more blatant’ and that  ‘the Lord Chief Justice is not acting on behalf of COIC when making an appointment nor is he bound by its rules’.
The Court further noted that it would have been easy to amend the Disciplinary Tribunal Regulations to make it a requirement that those who could be nominated by the President must be a member of the pool. The fact that no such requirement had been imposed and, indeed, that references to a different, but analogous, panel of retired judges had been removed weighed on the judgement of the Court.
The Court’s conclusion on the substantive issue of whether ineligibility to be a member of the COIC’s pool was a bar to being appointed to either a Disciplinary Tribunal or the a panel of the Visitors’ Hearings was that,  ‘the sole requirement for appointment to any particular Disciplinary Tribunal are those contained in the Disciplinary Tribunals Regulations 2009 themselves and in the Hearings before Visitors Rules 2005’. As such the COIC’s approved pool can be thought of as advisory only in respect of the powers of the President of the COIC and Lord Chief Justice to constitute disciplinary panels.
Having found that there was no breach of the domestic rules, in that the Regulations and Visitors’ Hearings Rules did not bind the President of the COIC and Lord Chief Justice to choose from the COIC pool, the Court asked itself whether the Regulations and Visitors Hearings Rules were Article 6 compliant. The Court concluded that they were, in that, the provisions do not envisage any period of office or tenure as a judge on a Disciplinary Panel or Visitors Panel after the conclusion of a hearing and, as such, there is no risk that the judges period in office be, or be perceived as being, dependent upon the nature of his decisions. Permission was given to argue this point but judicial review refused.
In the cases of MH and ML it was also argued that there was delay. In respect of this the Court granted leave to appeal but refused the application for judicial review.
Additionally, the following points were raised as indicating bias on the part of panels and were dismissed by the Court as totally without merit:
A number of further minor points were also raised and similarly dismissed as totally without merit.
Practitioners should be aware that despite having reached the above decision in respect of the constitution of the Disciplinary and Visitors Panels and finding that it was consistent with the ruling of Sir Rabinder Singh in Russell v Bar Standards Board 12 July 2012, Lord Justice Moses commented that he regretted the necessity of his decision and stated that the Bar should be at the forefront of setting standards as to how institutions should regulate themselves. On the facts before him he felt they had failed to do this and set a poor example.
Additionally, Moses LJ dealt obiter with the issue of de facto judges. The Court ruled that this issue did not apply on the immediate facts as the rules did not require that members of tribunals be drawn from the COIC’s pool and as such the members ultimately ensconced to preside over the appellants were not time-barred from their appoint and therefore did not need to rely on the doctrine of de-facto judgeship.
Nonetheless, Moses LJ analysed Article 47 of the Charter of Fundamental Rights of the European Union and the judgement of Sedly LJ in Coppard v Customs and Excise  QB 1428 in respect of the requirement under Article 47 that:
‘Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law’.
On the basis that the Explanation on Article 47, which states, without qualification, that Article 47 corresponds to Article 6.1 Moses LJ respectfully disagreed with Sedly LJ obiter prediction in Coppard that ‘previously’ meant the doctrine of de facto judges could no longer stand and opined that, rather, it merely emphasised the need to prevent ex post facto ratification by the Executive of decisions made by those without legal authority.
Moses LJ went on to state that had it been necessary, i.e. had the members of Disciplinary Hearings Panel or Visitors Hearing Panel been time-barred he would have upheld their authority to make the decisions in the instant case on the basis of this doctrine.
An interesting judgement, seemingly confined to its facts but providing a salutatory lesson for practitioners on the necessity of a close reading of the legislative regime extant in respect of regulatory proceedings.
Perhaps more widely useful for Lord Justice Moses’ support for the doctrine of de facto judges, a point well arguable should an appeal turn on those facts.
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