QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE SIMON
MR JUSTICE McCOMBE
|DAVID HERMAN HOLDER||(CLAIMANT)|
|THE LAW SOCIETY||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR MILLER appeared on behalf of the DEFENDANT
Crown Copyright ©
Tuesday, 26th July 2005
(1) that the Tribunal wrongly refused to adjourn the hearing of 13th January 2004;
(2) that the Tribunal is not a sufficiently independent and impartial one for the purposes of the Common Law or Article 6 of the European Convention of Human Rights;
(3) the admission before the Tribunal of evidence derived from the Law Society's Inspector and Mr Holder's admissions to that Inspector offended against the privilege against self-incrimination and the rules derived from the European Convention relating to the use of materials emanating from the exercise of compulsory powers (see the case of Saunders v United Kingdom 23 EHRR 313);
(4) that the Tribunal's finding of dishonesty against Mr Holder was unjustified on the evidence;
(5) if that be so, the penalty imposed was excessive.
"I understand there may be a hearing tomorrow, although I do not know whether this is a listing appointment nor do I know what time. It all appears rather vague. Having now completed my criminal trial, which has lasted over 2 and a half years, I am now in the process of instructing solicitors and counsel in connection with the disciplinary hearing.
Furthermore, I have to appear as a witness on behalf of a claimant in Barnet County Court tomorrow, which may last most of the day, and in those circumstances I would be obliged if you would excuse my non attendance for the appointment. In any event I do not even know what time I am supposed to attend."
"I would therefore be obliged if you would kindly list this matter to the first open date after 20th December 2003, by which time I should be prepared for the hearing, having by then instructed solicitors. I would also be obliged if you would avoid Friday afternoons, on religious grounds."
"The date fixed for the substantive hearing has been fixed almost three months previously and had been fixed in accordance with the Respondent's written request. The Tribunal would grant adjournments only when it was just to do so. The Tribunal has a duty both to the public and the solicitors' profession to deal with disciplinary proceedings timeously.
The Tribunal was not impressed with the Respondent's claim not to have any papers. The Tribunal did not believe that the original papers served upon the Respondent were with his solicitor's draftsman as those papers were unrelated to the criminal proceedings and the Respondent himself had confirmed that his solicitors had not been instructed in connection with the disciplinary proceedings. Even if the documents had been with the costs draftsman the Respondent could have gained access to them or could have obtained a copy or, indeed, he could have obtained a copy from the Applicant or from the Tribunal itself.
The Tribunal recognises that an impecunious solicitor might well find difficulty in obtaining representation. The Tribunal regretted that it was not in a position to assist any solicitor Respondent (or any Applicant for that matter) with his funding difficulties.
The Tribunal considered that the Respondent's application for an adjournment was without merit. He had had plenty of time to get his case in order. The Tribunal would however adjourn the matter from 11.45 am until 2.00 pm to make sure that the Respondent had a complete set of papers in his hands and had had an opportunity to prepare himself for the hearing."
(1) He referred to his limited means compared with that of the Law Society and argued that therefore this feature amounted to an impermissible "inequality of arms" in the proceedings, contrary to Article 6 of the Convention.
(2) The Tribunal had a 98% conviction rate and merely rubber-stamped the Law Society's decisions.
(3) He questioned whether the proceedings were properly to be regarded as civil or criminal. The following submission as a result is not recorded.
(1) Was the Tribunal wrong to refuse the adjournment for which Mr Holder had applied?
(2) The independence or otherwise of the Tribunal;
(3) The privilege against self-incrimination point;
(4) The Tribunal's finding of dishonesty against Mr Holder;
(5) The penalty imposed.
"23. Standing back, and bearing in mind the statutory scheme for the Disciplinary Tribunal, I see no reason to doubt its independence or impartiality. It is independent of the Law Society. There is no indication that the Law Society can influence its decisions, except in the sense of making submissions to the Tribunal as a party before the Tribunal. No evidence or suggestion has been made that the particular Tribunal demonstrated any partiality in any way. In my judgment, the submission that the Solicitors Disciplinary Tribunal does not meet the test of being an independent and impartial tribunal is not made out. I turn to the question of legal representation, which is the appellant's main point. Returning to Article 6, he accepts, and authority confirms, that what was in question here was the determination of his civil rights and obligations, not of any criminal charge against him. It follows, therefore, that Article 6(3), which requires in certain circumstances legal representation in criminal cases, does not apply."
(3) Privilege against self-incrimination
"The rule is that no one is bound to answer any questions if the answer thereto would, in the opinion of the judge, have a tendency to expose the defendant to any criminal charge, penalty or forfeiture which the judge regards as reasonably likely to be incurred."
"68. The Court recalls that, although not specifically mentioned in Article 6 of the Convention, the right to silence and the right not to incriminate oneself, are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6. The right not to incriminate oneself, in particular, ... that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right is closely linked to the presumption of innocence contained in Article 6(2) of the Convention.
69. The right not to incriminate oneself is primarily concerned, however, with respecting the will of an accused person to remain silent. ..."
"Waiver of privilege
We indicated to counsel that for the purposes of this appeal we were content to assume, without deciding, that the privilege from self-incrimination at least extends to investigations of a quasi-judicial character such as we are concerned with. We have also assumed that the privilege was sufficiently claimed by Mr Nawaz's letter of 6th April 1994.
Mr Sears submitted in writing that the waiver of privilege against self-incrimination is analogous with the abrogation of privilege by statutory provision. Orally, he pressed the argument with less force. Perhaps he had concluded that abrogation and waiver are not analogous for abrogation consists in the deprivation by Parliament of a privilege which a person otherwise enjoys, whereas waiver occurs where a person voluntarily foregoes a privilege that is his. Abrogation deprives him of choice, waiver represents an exercise of choice. When a person enters a profession he accepts its duties and liabilities as well as its rights and powers. Similarly, he may acquire or surrender privileges and immunities. Nevertheless, the principle that privilege is not to be regarded as having been abrogated, except by express words or necessary implication, applies also to waiver.
In my judgment, acceptance of a duty to provide information demanded of an accountant constitutes a waiver by the member concerned of any privilege from disclosure. It is plainly in the public interest, as well as the interests of the profession, that the Institute should be enabled to obtain all such information in the possession of its members as is relevant to complaints of their professional misconduct.
Mr Sears sought to reinforce his argument by contending that it is wrong to suggest that by agreeing to be bound by the rules of the Institute Mr Nawaz impliedly waived his right to assert privilege. I do not see why. It is true that this court has declined to hold that when one person becomes the fiduciary servant or agent of another they are to be treated as having impliedly contracted, they will not invoke the privilege of self-incrimination against the other. In the case of membership of a profession, the member accepts its rules and agrees to abide by them and to fulfil their requirements. Upon becoming a chartered accountant, it shall be the duty of every member, in accordance with paragraph 8(a) in Schedule 2 of the Supplemental Charter, to provide such information as investigation may consider necessary to discharge its functions. Compliance with that duty necessarily and inevitably precludes the exercise of any privilege that would have excused the provision of the information."
"He then deduced from the authorities, to which I need not refer (but which it is suggested in a footnote in Bray on Discovery (1885), p. 338, he may have misunderstood), that a man by contract or the effect of his own acts may exclude himself from the benefit of the privilege against self-incrimination. He then, at p. 432, equated, in the eyes of a court of equity, the moral obligation of a confidential agent to give discovery, to an obligation resulting from a stipulation by deed. He stressed, as a justification of the decision on moral grounds, that the plaintiff as employer had no reason to suspect, and no means of detecting the misrepresentation of the fact whether the defendants were or were not duly constituted legal brokers."
"I do not find it necessary to consider whether the law does or does not permit a party to make an express contract with another party that the former will not rely on the privilege against the other in relation to any of their dealings. The difficulty I have is over the leap made by Sir Anthony Hart V-C from that to the position that a party cannot rely on the privilege where there is no such express contract."
"The Tribunal did not find him to be an open and frank witness. He appeared only too willing to put a gloss on those matters in evidence that would best suit his purpose. He claimed not to have full details at his fingertips. He had not taken any steps to prepare for the hearing and, in particular, he had not sought to inspect or obtain copies of relevant documentations."
"The Tribunal, applying the test in Royal Brunei Airlines v Tann as approved and augmented in the case of Twinsectra v Yardley, finds that the Respondent did use clients' money for his own purposes and did so dishonestly. The Respondent's attitude to monies which he held, and his lack of proper book-keeping meant that he was not sure of the accurate position with regard to his client account. His failure to draw formal bills and his failure to obtain proper instructions left him in the position where he really could not be certain of the state of his account with individual clients. At best, to transfer client money to his own benefit whilst that state of affairs continued demonstrated that the Respondent did not ensure that he exercised a proper stewardship over clients' funds. Any transaction made in the absence of certainty as to the true state of affairs was itself demonstrative of the Respondents's failure to be sure that his dealings with client funds were entirely appropriate. Such turning of a blind eye was in itself dishonesty."