High Court of Justice in Northern Ireland King's Bench Division Decisions

Introduction

[1]       The applicant was formerly an elected councillor on Belfast City Council (“the Council”) from May 2015 until May 2019.  She hopes to stand for election again in the forthcoming local government elections to be held next month.  By these proceedings she seeks to challenge a decision made on behalf of the Northern Ireland Local Government Commissioner for Standards (NILGCS) (“the Commissioner”) imposing a three-year disqualification upon her becoming a councillor.  This followed an adjudication hearing which took place over 7 and 8 February 2023.  The nub of the applicant’s complaint is one of procedural unfairness.  In particular, she challenges the failure of the Assistant Commissioner (who was appointed to conduct the relevant hearing on behalf of the Commissioner) to facilitate her making an adjournment application in person, so as to seek to persuade him to adjourn the hearing; and, relatedly, she challenges the Assistant Commissioner’s decision not to adjourn the hearing. 

[2]       In light of the imminence of the local government elections, this application has been dealt with by way of rolled-up hearing.  The Commissioner contends that leave should be refused because the applicant has a viable and effective alternative remedy.  Both this issue and the substance of the case have been considered at the recent hearing held on 19 April.  A considerable degree of urgency has arisen because, if she intends to stand in the forthcoming local elections, the applicant would be obliged to complete the necessary paperwork no later than Monday 24 April, including a declaration to the effect that she has not been disqualified from acting as a councillor.  She seeks to have her disqualification quashed by these proceedings.

[3]       Mr Mackell appeared for the applicant and Ms Fee for the respondent.  I am grateful to both counsel for their detailed and well-presented written submissions, supplemented by focused yet persuasive oral argument.

Factual background

The complaint and investigation

[6]       The kernel of the complaint was that the applicant had encouraged or procured Mr Golding to provide her with money under false pretences; and that she had altered or obscured the version of her payslip which had been emailed to him in order to persuade him to provide her with money to discharge a fine to which she had not been subject.  The complaint included or amounted to contentions that the applicant had acted in breach of paras 4.2, 4.16, 4.18 and 5.3 of the Code of Conduct.  These passages include prohibitions against conducting oneself in a manner which could reasonably be regarded as bringing one’s position as a councillor into disrepute; using or attempting to use your position improperly to secure an advantage for yourself; and using the resources of your council other than in a manner which is calculated to facilitate the discharge of your functions as a councillor.

The proceedings before the Assistant Commissioner up to 6 February 2023

[8]       The substantive hearing for adjudication upon the complaint was listed for 7 February 2023 for three days.  As appears further below, these hearings are conducted in three stages, which generally follow on from each other: the fact‑finding stage, the determination stage and then the sanction stage, should a finding of breach of the Code of Conduct have been made at the second stage.  However, there had been a considerable history to this case in advance of the February 2023 hearing dates.  The matter had been investigated and a report submitted by the Deputy Commissioner in June 2019.  As I have already alluded to, the Commissioner, Ms Margaret Kelly, who also holds the post of Northern Ireland Public Services Ombudsman, had appointed her Assistant Commissioner, Mr Ian Gordon OBE QPM, to conduct the adjudication hearing on her behalf in this case; and the adjudication proceedings had been actively case managed by him for quite some time before the substantive hearing dates.

[9]       Prior to the adjudication hearing, the Assistant Commissioner had conducted nine pre-hearing reviews (PHRs) to deal with issues of case management.  With the exception of a small number of these, at each PHR the applicant was present and/or legally represented.  The respondent has provided the following summary:

(i)              There was a PHR on 16 February 2021 at which the applicant was represented by counsel, instructed on her behalf by John J Rice & Co, Solicitors.  A further PHR was held on 14 May 2021 at which the applicant was again represented and a hearing date of 13 September 2021 was proposed for the substantive hearing.  Further PHRs at which the applicant was represented by counsel and/or the same firm of solicitors occurred on 28 September 2021 and 12 May 2022.

(ii)            On 17 August 2022 the applicant’s solicitors advised that they were no longer acting for her.  However, around six weeks later, on 30 September 2022, Brentnall Legal Ltd advised that they were now acting for Ms Bunting in relation to the proceedings before the Commissioner.  Notwithstanding this, there was no appearance by or on behalf of the applicant at the next two PHRs which occurred on 17 October 2022 and 14 November 2022.  On the latter of these two dates, an email was received from Mr Brentnall on the morning of the PHR explaining the non-attendance and apologising for this, accepting that it was not a satisfactory situation given the length of time for which the proceedings had been ongoing.

(iii)          Another PHR was convened on 25 November 2022, at which the applicant was represented by Mr Brentnall.  He explained at that stage that the applicant did not have the benefit of legal aid for the proceedings before the Commissioner; but he suggested that a listing would “bring focus.”  The substantive adjudication hearing was listed for 10-12 January 2023.

(iv)           A further PHR was held on 5 January 2023.  The applicant was again represented by Mr Brentnall.  At his request the January hearing dates were vacated and the adjudication hearing was re-listed for 7-9 February 2023.  The respondent says that one reason for the adjournment from January to February was to provide the applicant’s solicitor with time to assist the applicant to secure funding for the proceedings.  The Assistant Commissioner also noted at this point that his role was inquisitorial and that, should the applicant be unrepresented at the hearing, the appointed legal assessor would provide advice and assistance in order to ensure that the hearing was conducted fairly.

(v)             Finally, a PHR was held on 27 January 2023 at which the applicant was not represented.  Further details of the steps taken by the Assistant Commissioner following this are set out below.  These are detailed in the Assistant Commissioner’s decision notice in the case which was issued later.

[10]     Once the issue of funding for the applicant’s representation had been raised again at the PHR on 5 January, and Mr Brentnall had then not appeared at the PHR on 27 January, the Assistant Commissioner was obviously concerned to ascertain the position and plan for the forthcoming hearing.  At his direction, an email was sent to Mr Brentnall on 27 January noting his non-attendance at the PHR that day, confirming that the substantive hearing would commence at 12.00 noon on 7 February, and asking him to acknowledge the email by close of business on 30 January “with a clear indication of whether or not you continue to represent Ms Bunting in this matter or, if not, [whether] you are aware of any other legal representative she may have.”  No response was received to this email by the suggested reply date.

[11]     On the same day, 30 January, a letter was sent by courier to the applicant from the Commissioner’s office (with confirmation later being received that this had been delivered).  It advised the applicant of the intended hearing date and commencement time and then said the following:

“Your solicitor Mr Brentnall has been informed of the Hearing and he is aware of my intention that the Hearing will proceed on that day whether or not you have legal or other representation.  I would urge you to contact Mr Brentnall on this matter.

If Mr Brentnall no longer represents you, a copy of the Bundle of Papers, to be used at the Hearing can be provided by the Deputy Commissioner’s Office.  It is important that you contact this office about this matter.

I urge you to attend the Hearing; it is important that you give your response to the complaints made against you.”

[12]     In addition, on 2 February the Assistant Commissioner’s staff were informed by the Deputy Commissioner’s Senior Investigating Officer (SIO) that he had called to the applicant’s home address that afternoon to hand deliver a copy of the evidential bundle in the case.  No one answered the door.  (The applicant has indicated through counsel that she does not believe anyone called to her house that day or that, if they did, she was not at the house at the time.)  The SIO then emailed the applicant to inform her that he had called at her house and of the purpose of the call.  He asked her to contact the office to arrange collection or delivery of the documents before the hearing date.  Later that day, on 2 February, a member of the Assistant Commissioner’s staff also called Mr Brentnall’s office.  He was unavailable but a message was to be left for him to contact the NILGSC office.  It does not appear that this message was responded to.  It is disappointing that, in the face of what I accept were concerted efforts on the part of the Commissioner’s office to clarify the position, there was a lack of communication from the applicant and her solicitors for a period of 10 days from 27 January until 6 February (the day before the hearing).

[13]     On 6 February, the applicant says that she was informed by her legal representatives that, in the absence of remuneration, they were not able to appear on her behalf at the scheduled hearing.  On that same date, the legal representatives wrote to NILGCS informing it of the fact that the applicant no longer had legal representation as she was not in a position to fund the case herself.  Why this was only communicated the day before the hearing is not clear and has not, in my view, been adequately explained.  Mr Mackell provided some further information, on instruction, in the course of the hearing.  It seems that there was a ‘lengthy’ telephone consultation between Mr Brentnall and the applicant on the morning of 6 February.  This was to discuss the hearing and various options.  It became clear that Mr Brentnall was not prepared to conduct what was possibly a three-day hearing without remuneration (particularly as his firm had already undertaken or was undertaking some other work for the applicant on a pro bono basis).  It should go without saying that I make absolutely no criticism of him or his firm for adopting that perfectly reasonable stance.  As already indicated above, however, it would have been much preferable if this position had been resolved some time previously.

[14]     At 2.00 pm, at the request of the Assistant Commissioner, his legal assessor (Mr Michael Wilson) emailed Mr Brentnall on an urgent basis indicating that they were still unaware if Mr Brentnall was acting for Ms Bunting and asking that the position be confirmed.  Mr Brentnall replied at 2:09pm to indicate that funding was not available for his services and that “we can confirm that we are not currently acting for Ms Bunting in this case.”  There was no indication that there would be an application for an adjournment. The legal assessor immediately sought clarification of whether the applicant herself was aware of Mr Brentnall’s position.  In a further email of 2:25pm Mr Brentnall confirmed that he had consulted with the applicant at length (at lunchtime that day, he said) and that she was fully aware of his decision.

[15]     On the evening of 6 February, the applicant herself emailed NILGSC at 6:39pm indicating that she was unable to secure legal representation for the hearing; that she was aware that an attempt had been made to deliver documents to her the previous Thursday but that she was not yet in possession of the documents; that she had not had time to seek further funding for legal representation or to seek alternative representation; and that she therefore sought an adjournment of the scheduled hearing.  In this email, the applicant further indicated her view that it would be unfair to expect her to present a case in circumstances where all other parties would have access to full legal representation.  She believed that she should be entitled to legal representation and to further time to try to secure this.  In the alternative, the applicant also requested further time to enable her to prepare for the hearing personally, in the event that the Commissioner was not prepared to adjourn the case for her to obtain another legal team.  Finally, the applicant referred to the complainant in the case as someone “who has caused me great consternation and anxiety in his actions over the last number of years” and said that she was “genuinely in fear” of him.  She said she was not ready to face the complainant, let alone engage with him.

The events on 7 February 2023

[16]     Since the email referred to above was sent after business hours, I understand that it was only accessed by the Commissioner’s staff the following morning, on 7 February.  The Assistant Commissioner considered the email and then asked his staff to contact Ms Bunting.  This was done by way of email sent at 11.08 am.  It advised that the applicant should either attend in person to make her adjournment application or that NILGCS could provide a video link (via the WebEx platform) for her to attend virtually.  I take from this that the Assistant Commissioner was aware of the applicant’s desire for an adjournment; that he had not determined this issue; but that he wished to hear from the applicant as to whether there was anything else she wished to say in support of the application.  No doubt he also wished to hear any representations on behalf of the Deputy Commissioner in response to the application.  The email also confirmed that the Commissioner had in place appropriate measures to ensure the safety of all persons attending the hearing.  It is clear to me that this was a reference to the applicant’s concerns about being in fear of the complainant.

[17]     The hearing had been scheduled to commence at 12.00 noon but there was a short delay as a result of the further efforts being made to contact the applicant.  As a result, the hearing commenced at 12:20pm.  At this point, the Assistant Commissioner noted that there had been no reply from the applicant despite three telephone calls having been made to her that morning (with no answer) and the email having been sent at 11:08am.  He therefore proceeded at the start of the hearing by considering the request she had made for an adjournment.  He asked counsel for the Deputy Commissioner (Ms Best BL), who was presenting the case against the applicant, to make any representation she wished in respect of the application.  On behalf of the Deputy Commissioner, Ms Best submitted that the hearing should proceed for a variety of reasons.  These included that it was the applicant herself who had asked for an in-person hearing; the applicant had had the benefit of advice and assistance from two sets of solicitors and counsel up until very recently; that the matter had been listed for hearing on a number of occasions; and that the applicant’s solicitors had been provided with a full set of papers in the case in mid-January and attempts had been made to provide a copy of the papers directly to the applicant herself.  Ms Best accepted that the issue was finely balanced but submitted that the interests of justice and the public interest were such that the case should proceed, particularly in light of the time which had passed since the complaint was originally made (some 4½ years) and the fact that the complainant was in attendance and had travelled some distance to give oral evidence.

[18]     The legal assessor also gave the Assistant Commissioner some advice at this point.  He made reference to the three telephone calls which had been made to the applicant that morning which had not been answered, which were in addition to the email which had been sent to the applicant and attempted contact by way of text message.  A WebEx link to the hearing had also been sent to the applicant.  Mr Wilson advised that a further check should be made if there was anyone on the WebEx waiting to be admitted.

[19]     In addition, Mr Wilson’s advice was that the Commissioner was entitled to exercise his discretion but should consider whether all reasonable efforts had been made to advise the applicant in order to ensure that she was aware of the hearing.  Assuming that the Assistant Commissioner was satisfied with that, then he ought to have regard to all of the other circumstances and balance fairness to the applicant with the interests of the public.  Mr Wilson gave additional advice in respect of a number of other relevant considerations, including that the applicant had had legal representation until the previous day; that she had personally appeared in a number of the PHRs; and that, through her legal representatives, she had provided a response to the case against her by means of both a councillor response form and a personal statement.  He also noted guidance in the case of General Medical Council v Adeogba [2016] EWCA Civ 162.  Finally, he reminded the Assistant Commissioner that the Commissioner’s guidance on adjudication procedures, at para 48, addresses the failure of a party to attend an adjudication hearing and gave the Commissioner the authority to proceed in their absence.

[20]     The Assistant Commissioner then adjourned to consider the application.  The decision notice which was later issued in the case summarises the decision which was made at that point, at section 3, in the following terms:

“The Assistant Commissioner said that he had considered the papers in the Hearing bundle and had taken into account the submissions from Ms. Best BL and the advice from Mr. Wilson, his Legal Adviser.  He was very aware that it was important to exercise the utmost care and caution in deciding whether or not to proceed in the absence of former Councillor Bunting.

Former Councillor Bunting and her previous legal representatives had clearly shown that they were aware of the contents of the investigation report.  To date there had been nine pre-hearing reviews since the case was first referred for adjudication, and in those hearings, there has been involvement by her various legal representatives in all but two of these.

In the absence of former Councillor Bunting, the Assistant Commissioner had a discretion whether to proceed or not. He had to be satisfied that all reasonable efforts had been made to contact her and he was so satisfied. He also accepted the propositions put forward by Ms Best BL opposing the adjournment.

Whilst former Councillor Bunting had requested an adjournment at a very late stage the Assistant Commissioner was satisfied that she was fully aware of the arrangements for the Hearing.  He noted that if her legal representative had not withdrawn, she presumably would have been present and her absence was not based on any medical or other similar evidence.

Furthermore, in his consideration of the matter the Assistant Commissioner would have the benefit of her Councillor Response Form and also her personal statement, both of which were prepared with the assistance of her legal advisers.  This was a case in which many of the facts were not in dispute, having already been agreed through Counsel on behalf of former Councillor Bunting.

Therefore, on balance, the public interest in having this matter concluded outweighed the application to adjourn. In proceeding in the absence of former Councillor Bunting, the Assistant Commissioner also reminded Counsel for the Deputy Commissioner of her obligation to draw to his attention, not only the evidence relied on by the Deputy Commissioner, but also the issues raised by former Councillor Bunting in her Councillor Response Form and her personal statement.  The Assistant Commissioner also noted that, with the assistance of his Legal Assessor, he might also ask questions of a witness.”

[21]     In a further twist however, the applicant had in fact logged on to the WebEx link which had been provided by the Commissioner’s office.  However, she says that, as a result of technical problems, she was unable to gain virtual access to the hearing itself in order to make oral representations.  She says that she made contact with the NILGSC office and subsequently spoke with the appointed legal assessor at around 1:30pm.  She says that she was informed by the legal assessor that the matter was proceeding, which was later confirmed to her in writing.

[22]     After her attempt to engage with the proceedings during the morning session on 7 February and her telephone discussion with the legal assessor around 1:30pm that day, the applicant says that she then had no involvement in the hearing.  She was later informed that the Commissioner had imposed a three-year disqualification upon her, thus preventing her from seeking election as a councillor during that period.

[23]     What precisely happened during the course of the day on 7 February is obviously important to the court’s consideration of this case; and this has been dealt with in detail in evidence filed on behalf of the respondent, which is summarised below.  There are some details which still remain uncertain.  However, from the respondent’s affidavit evidence and the applicant’s rejoining affidavit, a picture emerges which is tolerably clear.

[24]     The adjudication hearing had been due to commence at 12 noon.  In the event, it commenced late, at approximately 12:20pm, because of delay occasioned by the Commissioner’s office trying to contact the applicant by telephone and text.  The applicant says that she tried to connect onto the WebEx link at 12:07pm.  (No explanation has been provided as to how or why she was unable to answer the telephone calls which had been made to her by the Commissioner’s staff.)  She says that she was unable to access the link provided and was unsure what caused the difficulty.  However, she has averred that she was unable to secure access to the hearing.  She has further averred that she waited for 35 minutes having logged into the link, during which she was advised by the software that she could join the meeting after the host had admitted her to the meeting.  This proved unsuccessful. She therefore contacted the Commissioner’s office at 1.18 pm.  (It is not clear why she did not do so earlier if the 35 minutes she waited after dialling in at 12:07 concluded around 12:42pm.  It is also not clear if a check was made, when Mr Wilson suggested this, to see if there were any remote participants waiting to be admitted.  I assume this would have been done but the precise timing of it has not been set out.)  In any event, the applicant made contact with the Commissioner’s office by email (a copy of which has been exhibited).  Her email said:

“I tried today to enter the WebEx link sent to me by your staff.  This link said, “you can join the meeting after the host lets you in”, but after 35 minutes, the host still had yet to let me into the meeting, and it was knocked off. I was asked to come to the WebEx meeting, to discuss an adjournment, which I have already put in writing.”

[25]     At approximately 1:30pm, Mr Wilson interrupted the hearing to inform the Assistant Commissioner that he had been advised by a member of the Commissioner’s staff that Ms Bunting had been trying to join the hearing by WebEx.  Mr Wilson stated that he wished to try to verify this and that, if that was the case, the Assistant Commissioner would have to recap matters which had already been addressed since the hearing had commenced.  He therefore suggested that there should be a lunch break “so that this important matter could be addressed.”

[27]     In his affidavit evidence Mr Wilson has then addressed the telephone conversation which he had with Ms Bunting from a telephone in a private office.  He advised her that the Assistant Commissioner had received her email which had been sent the night before, after close of business, but that the Assistant Commissioner had decided to proceed with the adjudication and briefly outlined the reasons for his having done so.  He also noted that, prior to the hearing commencing, the Assistant Commissioner had offered to facilitate Ms Bunting in making her application for an adjournment either in person or by WebEx and that he (Mr Wilson) had been surprised that Ms Bunting was not present.  At this point the applicant referred to her apprehension of Mr Golding whom she said had harassed her (referring to a particular incident which was said to have occurred at a petrol station).  Mr Wilson replied by stating that any harassment would be a matter for the police but that the Assistant Commissioner would ensure that she would not have contact with Mr Golding in the hearing venue.  He also noted that no such issue had been raised when the hearing dates had previously been fixed and when she had been represented.  Ms Bunting said that she was worried that Mr Golding would ascertain her address; but Mr Wilson assured her that, so far as the hearing was concerned, there was no basis for this concern.

[28]     On Mr Wilson’s evidence, he asked the applicant if she would be joining the hearing by WebEx or attending in person, noting that the Assistant Commissioner had offered both of these options; and the applicant said “no” and that she would be speaking to her legal representative.  She also said she was not prepared for the hearing and had no papers.  Mr Wilson replied by referring to the correspondence of 27 January 2023 discussed above and the attempt made by the Deputy Commissioner’s staff to hand deliver papers to her home address.  No one had answered; nor had she contacted the Commissioner’s office in response to the Assistant Commissioner’s correspondence.  Mr Wilson’s evidence, which is not disputed, is that the applicant disclosed that her lack of response had been “done on legal advice.”  Mr Wilson did not delve further into that issue since he was (quite properly) immediately concerned that he should not prompt her to disclose information or advice which may be subject to legal professional privilege.  He therefore said he could not go into that issue with the applicant, save that he asked again if she was coming to the hearing.  She replied, “No.”  Mr Wilson again noted that the hearing had been fixed for several weeks “and that if she was not present the Assistant Commissioner had determined to proceed as it was in the public interest to do so.”  Also significantly in my view, he avers that he told the applicant “that I would pass the details of this call to the Assistant Commissioner, which I then did.”

[29]     In the applicant’s grounding affidavit she recounts this call in only very brief detail (and wrongly averred that she spoke to Mr Smyth, rather than Mr Wilson).  She said that she “was informed that the hearing had proceeded in the absence of my oral submissions.”  Mr Wilson does not dispute that he provided this information and, indeed, that was factually correct.  The more important aspect of the exchange in my view was the remainder of the conversation.  As to that, it is addressed in slightly more detail in the applicant’s rejoining affidavit (which was filed in response to the affidavit of Mr Wilson).  It contains the following averments:

“I set out to the Legal Assessor that the purpose of my seeking to attend the hearing that morning was to make the adjournment application as directed.  The Legal Assessor explained to me that the hearing was proceeding following consideration of my adjournment application.

I was not provided with an opportunity to link onto the hearing to make further submissions on the adjournment application.  During my discussion with the Legal Assessor, I was left with the clear impression that the hearing would be proceeding and would not be adjourned as the decision had been made already.  As such, I did not feel that I was in a position to participate further without legal representation.”

[30]     Returning to Mr Wilson’s evidence, he says that he had mentioned the contact from the applicant in the course of the hearing prior to the break for lunch.  When the hearing resumed after lunch therefore, he wished to place on the public record that the Commissioner’s office had been contacted by the applicant to say that she was endeavouring to make contact through WebEx.  He noted for the record that, with the Assistant Commissioner’s permission, he had spoken with the applicant and that the outcome of that discussion was that he advised the Assistant Commissioner that he should proceed with the hearing.  He was careful not to trespass on the issue of what advice the applicant may have received from her lawyers but briefly stated that she did not intend to participate in the hearing and that this reflected legal advice that she had received.

The remainder of the proceedings before the Commissioner

[31]     In the event, the Assistant Commissioner proceeded with the hearing.  He conducted the fact-finding element of the hearing on 7 February by reference to the evidence presented and, where appropriate, the contents of the investigation report and the representations made at the hearing.  This included a statement of facts which had been agreed between the parties at a time when the applicant was represented.  There were only two disputed facts in that document.  He also heard witness evidence, including from Mr Golding, from a Democratic Support Services Assistant employed by the Council, and from the investigating officer in the Commissioner’s office.  The hearing was then adjourned to 10:00am on 8 February 2023.

[32]     On that morning, the Assistant Commissioner reopened the hearing and dealt with the findings of fact which he had made.  He concluded that the 21 undisputed facts had been made out to his satisfaction. He expressly recorded that, in circumstances where the respondent (the applicant in these proceedings) was not present or represented, he had been careful to ensure that in coming to his conclusion sufficient consideration had been given to the case she had made in her response form, her personal statement, and the record of her interview with the investigating officer.  The Assistant Commissioner was also satisfied on the basis of the evidence before him that the two disputed facts had been made out.  He gave reasons for this, which I do not need set out for present purposes.  He then moved on stage 2 of the hearing and was (perhaps unsurprisingly in light of his findings of fact) satisfied that there had been a breach of relevant provisions of the Code of Conduct.

[33]     While submissions were being made on this aspect of the case, Mr Wilson advised the Assistant Commissioner that a letter had been received from the former solicitors for Ms Bunting, which was in the form of a judicial review pre-action protocol letter relating to the proceedings which had been held the day before.  Mr Wilson advised the Assistant Commissioner that he should adjourn to consider this, and the hearing was duly adjourned.  The Assistant Commissioner later reopened the hearing and made reference to the correspondence which had been received.  This correspondence had asked for the adjudication hearing to be stayed but the Assistant Commissioner indicated that it was not his intention to do so.

[34]     Having concluded that the applicant was in breach of relevant provisions of the Code of Conduct, the Assistant Commissioner moved on to consider the appropriate sanction at stage 3 of the proceedings.  This was done by reference to the guidance on sanctions which has been published by the Commissioner’s office.  The sanction ultimately imposed has been referred to above.  The Assistant Commissioner’s written decision in the case was later issued on 6 March 2023.

Relevant statutory provisions

[35]     Part 9 of the Local Government (Northern Ireland) Act 2014 (“the 2014 Act”) sets out the legal framework within which the Commissioner may investigate and adjudicate upon alleged breaches of the Code of Conduct.  It is unnecessary for present purposes to discuss much of the detail of the provisions contained within Part 9.  Section 53 provides for the issue by the Department of the Code of Conduct.  Section 55 makes provision for the Commissioner to investigate cases in which a written allegation is made to her by any person that a councillor (or former councillor) has failed, or may have failed, to comply with the Code of Conduct.  One outcome of such an investigation, pursuant to section 55(5)(c), is a finding that the Commissioner should make an adjudication on the matters which are the subject of the investigation.  Where that is the case, the councillor (amongst others) must be sent a copy of the report on the outcome of the investigation: see section 57(2).  During the course of the investigation itself, the Commissioner must give any person who is the subject of the investigation an opportunity to comment on any allegation that that person has failed, or may have failed, to comply with the Code of Conduct: see section 56(2).

[36]     Adjudication hearings are dealt with very briefly in section 56A.  It is a matter of discretion for the Commissioner (no doubt subject to the requirements of fairness) as to whether such a hearing is held before making an adjudication.  Where there is such a hearing, it will usually be held in public and, generally, the procedure for the hearing is to be such as the Commissioner considers appropriate in the circumstances of the case: see section 56A(3).  However, additional provision is made for adjudication hearings by way of section 63, which provides that certain provisions of the Public Services Ombudsman Act (Northern Ireland) 2016 apply as if the references to the Ombudsman in that Act were references to the Commissioner.

[37]     Section 59(1) provides that the Commissioner may make an adjudication on any matter by deciding whether or not any person to which that matter relates has failed to comply with the Code of Conduct.  Section 59(3) of the 2014 Act sets out a range of penalties which the Commissioner may impose where she has decided that a person has failed to comply with the Code.  One of those disposals is the disqualification of that person from being, or becoming (whether by election or otherwise), a councillor.

[38]     Importantly, section 59(13) of the Act provides a person who has been censured, suspended or disqualified with a right to appeal, with leave, to the High Court.  Section 59(14) of the Act sets out the grounds upon which such an appeal may be pursued.  It provides as follows:

Summary of the parties’ cases

[39]     The applicant relies upon breach of article 6 ECHR.  She contends (relying upon Kulkarni v Milton Keynes Hospital NHS Foundation Trust & Others [2009] EWCA Civ 789, at para [65]) that the civil limb of the article 6 fair trial guarantee is engaged on the basis that the outcome of the proceedings before the Commissioner could (and did) determine her right to stand for election and, relatedly, to hold office which in turn attracts a degree of remuneration.  She asserts that the Commissioner’s actions were unreasonable and unfair.  She further contends that any breach cannot be cured by the availability of, or the pursuit of, an appeal to the High Court (assuming leave to appeal were to be granted), largely because this would result in her having lost the opportunity to have a full and fair hearing of her case before the Commissioner herself (or, in this case, the Assistant Commissioner).

[40]     Mr Mackell’s written submissions described the key matter as being the refusal to adjourn the hearing on 7 February 2023.  In his oral submissions, he focused on an asserted failure on the part of the Assistant Commissioner to appropriately recognise that the applicant could not fully present her case in the circumstances which had arisen; that, by reason of technical difficulties, the applicant was not given an opportunity to address the Assistant Commissioner directly as she had hoped; and that issues she had raised with Mr Wilson in her telephone discussion with him were not adequately reflected in the Commissioner’s written reasoning in respect of the refusal of the adjournment application.

[41]     For the proposed respondent, Ms Fee contended that leave should be refused on the simple basis that the applicant enjoyed an effective alternative remedy, namely the statutory right of appeal under section 59(13) and (14).  She further contended that, on the substance of the challenge, leave or relief should be refused on the basis that there was no unfairness in the procedure adopted by the Assistant Commissioner. In her submission, the Commissioner’s office had gone out of its way to facilitate the applicant and the Assistant Commissioner exercised his discretion in a way which was legally open to him and resulted in no unfairness to the applicant.  She could and would have been able to present her case had she chosen to participate in the proceedings; but she chose not to.

The refusal of the adjournment

[56]     The applicant relied upon the case of CPS v Picton [2006] EWHC 1108 in relation to when an adjournment should be granted in criminal proceedings and submitted that an equivalent approach was appropriate in respect of regulatory proceedings which concerned allegations of serious misconduct.  In the Picton case, at para [9], the following guidance is offered:

[57]     Although the analogy between criminal proceedings and proceedings before the Commissioner is far from exact, Ms Fee did not strongly oppose the suggestion that the type of factors identified in the Picton case would be relevant.  The applicant emphasised the considerations at sub-paras (d) and (f) in this passage - since the essence of her case is that she was not able to fully present her case in light of the refusal of the adjournment (and, indeed, that her ability to do so was seriously undermined); and that she was not at fault in terms of the reason for the adjournment request.

[58]     I have difficulty with the submission that the applicant was not “at fault” (insofar as it is appropriate to talk about fault in this context) in terms of the reason for the adjournment request or the late stage at which that request was made.  She relies upon the fact that she had raised this issue in an earlier hearing and “it would therefore not have come as a complete surprise to the respondent where an application to adjourn was submitted as a result of the applicant no longer having legal representation.”  That may be so but, as Ms Fee submitted, this was also an issue which had been on the applicant’s radar for quite some time.  The Assistant Commissioner had previously granted more time and adjourned a scheduled hearing in order to allow concerns about funding of the applicant’s representation to be addressed.  It is disappointing that - on the applicant’s own case - she was only told by her legal team the day before the scheduled hearing that they were unable to appear on her behalf.  How that came about, I do not know.  It may have been because it was only at that point that it became clear that the applicant was not in a position to pay them.  Plainly, however, this was an issue which had been a matter of concern for some time and which the applicant’s team had been granted time to resolve one way or the other well in advance of the hearing.

[59]     Mr Mackell fairly conceded that it was likely to be an uphill struggle for the applicant to secure further legal representation in light of her inability to pay for this and the unavailability of legal aid. Although the possibility of crowd-funding was mentioned, this was an avenue which could and should have been explored much earlier.  Circumstances often arise where litigants have to represent themselves and that, of course, does not of itself give rise to any unfairness.  Rather, it gives rise to a heightened obligation on the part of the tribunal - of which I am satisfied the Assistant Commissioner was aware - to ensure that the party concerned is facilitated in presenting their case. 

[60]     I was told by Ms Fee from the Bar that, in the majority of adjudication hearings before the Commissioner, councillors or former councillors are not legally represented.  As I have mentioned above, that does not of itself mean that a hearing will be unfair.  The applicant also relied upon the principle of equality of arms and the asserted unfairness which, she submits, arose from the fact that other parties to the proceedings were legally represented by counsel or (in the Assistant Commissioner’s case) were assisted by a legal assessor.  Again, that does not of itself mean that a hearing will be unfair.  In the case of the Commissioner, part of the legal assessor’s role is to ensure that the hearing is conducted in a fair way, which may involve his or her giving advice which is to the assistance of an unrepresented party, including by prompting questions which probe the case against unrepresented councillor.

[61]     The two issues which are more cogent objections in this case are, firstly, the applicant’s asserted lack of preparedness; and, secondly, her asserted apprehension in relation to Mr Golding.

[62]     The applicant contends that her lack of preparedness was given scant attention by the Assistant Commissioner and is not recorded in the decision notice.  She relies upon the fact that, in the legal assessor’s affidavit which deals with the discussion he had with the applicant on 7 February, he confirms that she had indicated to him that “she was not prepared for the hearing, and had no papers.”  The fact that mention of this is not made in the decision notice is not determinative.  The Commissioner was plainly aware of the case made by the applicant in her email of 6 February that she was “still… not in possession of the documents” (that is, the hearing bundle).  He was also aware of the unsuccessful attempts to deliver this bundle to the applicant.  This factor was not left out of account in the Commissioner’s consideration.  He was entitled to take into account that the applicant had access to the papers which had been in her solicitor’s possession; and that she was aware of the offer of a set of papers from the Deputy Commissioner.

[69]     The applicant also strongly relies upon the contention that, in the absence of legal representation, she would have been required to cross-examine a witness (the complainant) of whom she had stated that she was afraid.  Again, she is extremely critical of this fact are not having been mentioned in the Assistant Commissioner’s decision notice.  Once again, however, this is an issue which was squarely raised by the applicant’s email of 6 February and of which the Assistant Commissioner was aware.  The mere fact that it is not recorded in the decision notice does not establish that this factor was not properly considered by the Assistant Commissioner.

[72]     The threshold for intervention in a decision of this type is relatively high. Albeit the matter is one of procedural fairness and therefore a hard-edged question of law for resolution by this court, the authorities show that appropriate respect should be given to the case management discretion of lower courts and tribunals in making finely balanced decisions about whether adjournments should be granted.  In R v Hereford Magistrate’s Court, ex parte Rowlands [1998] QB 110, Lord Bingham said that a higher court will “only interfere with the exercise of the justices’ discretion whether to grant an adjournment in cases where it is plain that the refusal will cause substantial unfairness of the parties” [underlined emphasis added].  He went on to observe that such unfairness may arise where the defendant is denied a full opportunity to present their case.  Similar reticence on the part of a superior court to interfere with a lower tribunal’s discretion in this context is displayed in the first principle adumbrated in the portion of the Picton case cited above: 

“A decision whether to adjourn is a decision within the discretion of the trial court.  An appellate court will interfere only if very clear grounds for doing so are shown.”