Charities and internal investigations
DATE OF DECISION: 20 DECEMBER 2011
Privy Council consider the doctrine of apparent bias in the context of the disciplinary procedures of the Royal College of Veterinary Surgeons.
Mr Holmes was a veterinary surgeon. In a hearing before the Disciplinary Committee of the Royal College of Veterinary Surgeons (‘the College’) the Committee had found 31 separate charges of professional misconduct proved against him, and had held that 28 of the upheld charges amounted to “disgraceful” conduct as per the Veterinary Surgeons Act 1966. Mr Holmes’ name was directed to be removed from the register of Veterinary Surgeons.
Mr Holmes appealed the decision of the Disciplinary Panel to the Privy Council (‘the Council’) on the basis that several features of the College’s disciplinary procedures gave rise to an appearance of bias. Specifically, he argued that the appearance of bias was given by the fact that the charges against him had been brought in the name of the College and that their outcome had then been determined by members of the College; and that the College’s system allowed for previous members of its Investigation Committee (which made the decision of whether to forward allegations to full consideration by the Disciplinary Committee) to sit as members on its Disciplinary Committee.
In considering Mr Holmes’ appeal the Council noted that the College was ‘hamstrung’ by the Veterinary Surgeons Act 1966 (‘the Act’), which obliged its Investigating Committee and Disciplinary Committee to be composed of Council Members. It further noted that, in order to avoid any accusations of appearance of apparent bias, the College had previously lobbied to have the wording of the Act amended to permit it to appoint non College members to its Committees but was obliged to continue to comply with the Act’s current requirements until Parliament acted to amend it.
After considering the facts the Council concluded that a fair minded observer would not conclude that ‘members of the council of the College in whose name the complaints are brought, might, in the light of their membership of the [Royal Veterinary College’s] Council, be thereby motivated to uphold the complaints.’ The fact that the College had taken action to update its procedures in order to prevent future accusations of an appearance of bias did not automatically mean that its current procedures did give the appearance of bias.
The Council further concluded that there could be no appearance of bias by way of the fact that previous Investigating Committee Members could become members of the Disciplinary Committee at a later date. The College had taken care to avoid the appearance of bias by preventing simultaneous appointments to both committees and by preventing Investigating Committee members from joining the Disciplinary Committee within three years of the end of their Investigating Committee appointments, avoiding a situation similar to that which arose in Tehrani.[i] In light of that arrangement the Council stated that ‘a fair-minded observer would not conclude that … a member of the [Disciplinary Committee] might, as a result of that prior service, somehow remain predisposed to uphold a complaint irrespective of its intrinsic strength’.
This case provides further guidance for legal practitioners in assessing the merits of appeals against regulators on the basis of an appearance of bias in their disciplinary procedures, providing particularly useful clarification in circumstances where regulators find themselves bound by acts of Parliament to procedures which might not be considered best possible practice. The case of Kaur v ILEX  EWCA Civ 1168 was not considered by the Council.
[i] Tehrani v United Kingdom Central Council for Nursing Midwifery and Health Visiting 2001 S.C. 581; 2001 S.L.T. 879;  I.R.L.R. 208; 2001 G.W.D. 4-165; OH
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