E-Regulator: Russell v Bar Standards Board

12 July 2012


Visitors of Inns of Court find that panel member of the Disciplinary Tribunal was lawfully nominated and even if he had not been, the principle of ‘de facto authority’ would apply.

In this matter the Visitors to the Inns of Court were required to determine a preliminary issue arising from an appeal, by an appellant barrister (R), against a finding by a Disciplinary Tribunal (‘the Tribunal’) that she was guilty of conduct unbecoming of a barrister. The Tribunal had been appointed by the President of the Council of the Inns of Court (COIC) and was governed by the Disciplinary Tribunals Regulations 2009.

It was argued on behalf of R that there was a defect in the Tribunal’s consitition arising out of the inclusion of Mr John Smart, one of the barrister members of the Panel. 

On 10 May 2006, COIC had adopted arrangements for establishing the Tribunals Appointment Body (TAB) in order to vet the applications of those who wished to be panel members in fitness to practise cases brought by the BSB. The arrangements contained in the Terms of Reference were that lists would be maintained of those barristers volunteering for hearings. For present purposes the important reference was that those barristers previously on the list of barrister volunteers would only be able to remain on the list for three years (up until 10 May 2009). If a barrister wished to continue to volunteer they would need to reapply to be on the new list. Mr Smart had been on the ‘old list’ and had not reapplied to be on the ‘new list’, therefore he had remained on the list post 10 May 2009, contrary to the Terms of Reference. None of the above had been drawn to Mr Smart’s attention. It was argued on behalf of R that the Regulations and the TAB Terms of Reference chould be read as constituting a ‘code’ as to the composition of Disciplinary Tribunals and they should be read together.

The Visitors rejected that submission; they found it was the Regulations which govern the vires of the nomination of members to sit on a tribunal. With reference to those Regulations Mr Smart had been lawfully nominated. Whilst it is good modern practice to have available a pool of potential nominees who can apply for renewal once, clearly a mistake was made in this particular case.  Nonetheless, it was lawful with reference to what was important, namely the Regulations.

The Visitors also found that even if Mr Smart was not lawfully qualified to sit on the Panel, the doctrine of de facto authority would apply; that is that the acts of a judge may be held to be valid in law even though the appointment is invalid and he has no legal power at all. As summarised in the 8th edition of Wade and Forsyth Administrative Law (2000) pp291-292, ‘The logic of annulling all his acts has to yield to the desirability of upholding them where he has acted in the office under a general supposition of his competence to do so’. It was held that although the Tribunal is not a court of law, it is part of the system of public administration of justice performing an important public function (to ensure the quality of advocates in this country). Mr Smart had met the criteria, had received guidance on sentencing and believed himself to be validly appointed (as did, presumably, his colleagues on the Panel).

This case demonstrates that the doctrine of de facto authority can extend to Disciplinary Tribunals of the Bar Standards Board and arguably, given the reasoning applied, to regulatory proceedings as a whole.

Sarah Harris

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