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Robson v. The Council of the Law Society of Scotland & Anor [2004] ScotCS 252 (24 November 2004)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Kirkwood

Lord MacLean

Lord Osborne

P80/03

OPINION OF THE COURT

delivered by LORD KIRKWOOD

PETITION

MICHAEL GORDON ROBSON,

Petitioner;

against

THE COUNCIL OF THE LAW SOCIETY OF SCOTLAND and THE SCOTTISH SOLICITORS' DISCIPLINE TRIBUNAL

Respondents;

_______

Act: Sir Crispin Agnew of Lochnaw, Q.C.; Low Beaton Richmond, Glasgow

Alt: Skinner; Balfour & Manson

24 November 2004

[1] This is an appeal by Michael Gordon Robson (hereinafter referred to as "the petitioner") against a decision of the Scottish Solicitors' Discipline Tribunal dated 8 October 2002 and intimated to the petitioner on 2 November 2002.

[2] The petitioner formerly practised on his own account under the firm name of Robsons, W.S., S.S.C. in Ratho, Edinburgh. In June 2002 the Council of the Law Society of Scotland, who are the first respondents, lodged a complaint with the Tribunal, who are the second respondents and are hereinafter referred to as "the Tribunal", requesting that the petitioner be required to answer the allegations contained in the statement of facts which accompanied the complaint. The complaint alleged that the petitioner was guilty of professional misconduct in respect of his failure to respond timeously, openly and accurately to the reasonable enquiries which had been made of him by the first respondents concerning the affairs of Mrs. Annie Boyce, Mr. David Boyce and the Scottish Legal Aid Board. The complaint was served on the petitioner, but no answers were lodged by him, or on his behalf. The Tribunal appointed the complaint to be heard on 8 October 2002 and the petitioner was given notice of the hearing. The hearing duly took place on that date, but the petitioner did not attend, nor was he represented. Shortly before the hearing he had written to the Tribunal by letter dated 4 October formally requesting a discharge of the hearing for a number of reasons. In his letter, which was apparently received on 7 October, the petitioner pointed out that, as he had not been able to be employed as a qualified assistant after he had ceased practice, due to the fact that his application had been deferred until all the outstanding matters before the Tribunal were concluded, he was unable to afford legal representation of his choice. Further, on the date of the hearing he had been due to attend a taxation, and had arranged a meeting with Mrs. Grandison, a representative of the first respondents, who was to collect legal files from his house. The petitioner also suffered from a medical condition. The request for an adjournment was opposed by the fiscal who appeared for the first respondents and was refused by the Tribunal. In the note which was appended to their findings, the Tribunal set out their reasons for refusing the adjournment. They had been told by the fiscal that the petitioner had originally asked for an extension of time to enable answers to be lodged but, in the event, no answers had been lodged. They observed that the petitioner had had ample notice of the hearing but it had not been until the day before the hearing that he had advised the Tribunal that he had commitments elsewhere. The subject-matter of the complaint was not unduly complex and the petitioner had direct knowledge of all the matters contained therein. There was no entitlement to legal representation in every case. Accordingly, the hearing duly took place on 8 October 2002 and the Tribunal pronounced an Interlocutor in the following terms:

"Edinburgh 8^th October 2002. The Tribunal having considered the Complaint dated 27^th June 2002 at the instance of the Council of the Law Society of Scotland against Michael Gordon Robson, Solicitor, The Old School House, 2 Baird Road, Ratho; Find the Respondent guilty of professional misconduct in respect of his failure to respond timeously, openly and accurately to the reasonable enquiries made of him by the Law Society. A previous finding of professional misconduct was then drawn to the attention of the Tribunal who noted the finding was in respect of analogous matters and that there had been a failure of the Respondent to comply with undertakings given on his behalf to the Tribunal. Order that the name of the Respondent, Michael Gordon Robson be struck off the Roll of Solicitors in Scotland; Find the Respondent liable in the expenses of the Complainers and of the Tribunal as the same may be taxed by the Auditor of the Court of Session on an agent and client indemnity basis in terms of Chapter Six of the Law Society's Table of Fees for general business; and Direct that publicity to include the name of the Respondent be given to this decision.

(Signed) PETER W ROCKWELL

Vice Chairman".

[3] In 2001 a complaint had been made against the petitioner by the first respondents in which it was alleged that he had been guilty of professional misconduct in a number of respects. The complaint called before the Tribunal at a hearing on 7 November 2001 when the petitioner was represented by counsel. The complaint was amended and the petitioner then admitted the factual accuracy of the amended complaint. The matters admitted related to the petitioner's failure to reply to correspondence. The Tribunal found the petitioner guilty of professional misconduct in respect of his failure to reply to correspondence and other communications from the Law Society of Scotland, the finding of professional misconduct not having been in dispute. The petitioner was censured and fined £5,000, and the Tribunal directed, in terms of section 53(5) of the Solicitors (Scotland) Act 1980, that for a period of three years any practising certificate held or issued to the petitioner should be subject to such restriction as would limit him to acting as a qualified assistant to such employer as might be approved by the first respondents and thereafter until such time as he satisfied the Tribunal that he was fit to hold a full practising certificate. The petitioner appealed to the Court of Session against the decision of the Tribunal by way of petition under section 54 of the 1980 Act, but on 15 March 2002 the appeal was refused.

[4] The petitioner has now appealed under section 54 against the decision of the Tribunal dated 8 October 2002, and he seeks inter alia an order quashing the decision of the Tribunal.

[5] Senior counsel for the petitioner stated that he proposed to present four propositions which were as follows:

1. The Tribunal was not an independent and impartial tribunal within the meaning of Article 6(1) of the European Convention of Human Rights.

2. In any event, in the present case, two of the solicitor members of the Tribunal should have declined to act as they had been members of the previous Tribunal in November 2001.

3. The whole statutory procedure involving the first respondents, the Tribunal and this court was not compatible with Article 6(1) and, in particular, the breach of Article 6(1) resulting from the fact that the Tribunal was not an independent and impartial tribunal was not capable of being remedied by the appeal procedure provided by section 54 of the 1980 Act.

4. The Tribunal had erred when it had refused to accede to the petitioner's request to adjourn the hearing fixed for 8 October 2002, and

5. Esto the court decided that it should reconsider the determination of the Tribunal, the sentence which the Tribunal imposed was excessive, disproportionate and unfair.

[6] Section 50 of the Solicitors (Scotland) Act 1980 provides that there shall be a tribunal known as the Scottish Solicitors' Discipline Tribunal and that Part I of Schedule 4 shall have effect in relation to the constitution of the Tribunal. Section 51 provides inter alia that a complaint may be made to the Tribunal by the first respondents and, for the purpose of investigating and prosecuting complaints, the first respondents may appoint a solicitor to act as fiscal. Section 52(1) provides inter alia that Part II of Schedule 4 shall have effect in relation to the procedure and powers of the Tribunal in relation to any complaint involving a solicitor.

[7] Section 53(1) - (4) provides inter alia as follows:

"53.-(1) Subject to the other provisions of this Part, the powers exercisable by the Tribunal under subsection (2) shall be exercisable if-

(a) after holding an inquiry into a complaint against a solicitor the

Tribunal is satisfied that he has been guilty of professional misconduct, or

(b) a solicitor has (whether before or after enrolment as a solicitor), been

convicted by any court of an act involving dishonesty or has been sentenced to a term of imprisonment of not less than 2 years, ...

(2) Subject to subsection (1), the Tribunal may-

(a) order that the name of the solicitor be struck off the roll; or

(b) order that the solicitor be suspended from practice as a solicitor for

such time as it may determine; or ...

(d) censure the solicitor ... ; or

(e) impose such fine and censure him ...

(3) The Tribunal shall not impose a fine under subsection (2)(c) in any of the circumstances mentioned in subsection (1)(b) ...

(4) Any fine imposed by the Tribunal under subsection (2) shall be forfeit to Her Majesty ... ".

[8] Section 54(1) of the Act is in the following terms:

"54.-(1) Any person aggrieved by a decision of the Tribunal relating to discipline under this Act may within 21 days of the date on which the decision of the Tribunal is intimated to that person, appeal against the decision to the court, and on any such appeal the court may give such directions in the matter as it thinks fit, including directions as to the expenses of the proceedings before the court and as to any order by the Tribunal relating to expenses; and the order of the court shall be final."

[9] Section 55 of the Act provides inter alia as follows:

"55.-(1) In the case of professional misconduct by any solicitor the court may -

(a) cause the name of that solicitor to be struck off the roll; or

(b) suspend the solicitor from practice as a solicitor for such period as the

court may determine; or ...

(d) censure him; and in any of those events,

(e) find him liable in any expenses which may be involved in the

proceedings before the court.

(2) Subject to subsection (3), a decision of the court under this section shall be final.

(3) A solicitor whose name has been struck off the roll in pursuance of an order made by the court under subsection (1), may apply to the court for an order directing his name to be restored to the roll and the court may make such order ...

(4) An application under subsection (3) shall be by way of petition and intimation of any such petition shall be made to the Tribunal who shall be entitled to appear and to be heard in respect of the application."

[10] Paragraphs, 1, 2, 3 and 5 of Part I of Schedule 4 to the Act and paragraphs 10, 13 and 19 of Part II thereof are in the following terms:

"1. The Tribunal shall consist of-

(a) not less than 10 and not more than 14 members (in this Part referred to

as 'solicitor members') who are solicitors recommended by the Council as representatives of the solicitors' profession throughout Scotland, appointed by the Lord President, and

(b) 8 members (in this Part referred to as 'lay members') who are

neither solicitors nor advocates, appointed by the Lord President after consultation with the Secretary of State.

2. Each member of the Tribunal shall retire from office on the expiry of 5 years from the date of his appointment, but in the case

(a) of a lay member, may be re-appointed by the Lord President after

consultation with the Secretary of State; and

(b) of a solicitor member, may be re-appointed by the Lord President on

the recommendation of the Council.

3. The Lord President may from time to time terminate the appointment of any member of the Tribunal, and may fill any vacancy therein by the appointment of a solicitor recommended by the Council or, as the case may be, after consultation with the Secretary of State, by the appointment of a lay member.

...

5. The Tribunal shall be deemed to be properly constituted if-

(a) at least 4 members are present, and

(b) at least 1 lay member is present, and

members present, and

(d) there are present not more than three solicitor members for every lay

member.

...

10. The Tribunal shall give notice of the complaint to the solicitor ... against whom the complaint is made ('the respondent') and shall inquire into the complaint, giving him ... reasonable opportunity of making his defence.

...

13. The Tribunal shall set out in their decision-

(a) in the case of a complaint, the facts proved, and

(b) in the case of a conviction, particulars of the conviction and sentence,

and shall in the case of a complaint add to their decision a note stating the grounds on which the decision has been arrived at.

...

19. Subject to the provisions of Part IV, the Tribunal may make in relation to any complaint against a solicitor such order as it thinks fit as to the payment by the complainer or by the respondent of the expenses incurred by the other party and by the Tribunal or a reasonable contribution towards those expenses."

[11] Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides inter alia as follows:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".

Section 6(1) of the Human Rights Act 1998 provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.

[12] Section 7(1) of the Act provides inter alia as follows:

"A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may

...

(b) rely on the Convention right or rights concerned in any legal

proceedings, but only if he is (or would be) a victim of the unlawful act".

[13] It was not disputed (1) that the first respondents are a "public authority" and that the presentation of the complaint before the Tribunal constituted "legal proceedings" within the meaning of section 7(1)(b) of the Act and (2) that the proceedings before the Tribunal involved a determination of the petitioner's civil rights.

Submissions on behalf of the petitioner
[14] In relation to the first of the propositions which were advanced by counsel for the petitioner, he pointed out that the complaint against the petitioner had been initiated by the first respondents, who then appointed a fiscal to investigate and prosecute the complaint in terms of section 51(1) of the Act. The first respondents also recommended to the Lord President of the Court of Session members of the Law Society for appointment as solicitor members of the Tribunal, and the Lord President did not have power to appoint any solicitor member who had not been recommended by the first respondents. While there was no objection to the fact that the first respondents initiated a complaint and prosecuted it, the difficulty was that they effectively appointed the members of the Tribunal. Each solicitor member of the Tribunal was appointed for only five years but was eligible for re-appointment. Any such re-appointment had, however, to be on the recommendation of the first respondents who were the prosecuting authority. In terms of paragraph 3 of Schedule 4 the Lord President could terminate the appointment of any member of the Tribunal at any time and, if he terminated the appointment of a solicitor member, the vacancy could only be filled by another solicitor recommended by the first respondents. Further, the solicitor members, who always had to be in the majority, did not have security of tenure. It was also submitted that the Tribunal had an interest in the outcome of any complaint as, while any fines went to the Treasury, the Tribunal had power to award against a solicitor, against whom a complaint had been made, the expenses of the other party and of the Tribunal. The Tribunal would be more independent if it was financed by outside means. All members of the Law Society of Scotland were eligible to become members of the first respondents. If a solicitor hoped to become a member, he could take the view that his prospects of success would be improved if he had served on the Tribunal and given decisions in favour of the first respondents. Further, as re-appointment to the Tribunal depended on being recommended to the Lord President by the first respondents, a solicitor member of the Tribunal could feel that if he kept finding in favour of the first respondents, then his prospects of re-appointment would be improved. Counsel suggested that these possibilities were all factors to be taken into account, but made it clear that he was not suggesting that any member of the first respondents, or of the Tribunal, had ever acted in an improper manner. In the circumstances it was submitted that the Tribunal could not be regarded as independent and impartial.

[15] The test to be employed was whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Tribunal was biased. Counsel referred to Porter v. Magill [2002] 2 AC 357 per Lord Hope of Craighead at paragraphs 103 and 104, Lawal v. Northern Spirit Limited [2004] 1 All ER 187, Findlay v. United Kingdom (1997) 24 EHRR 221 at paragraphs 70-75, R. (on Application of PD) v. West Midlands and North West Mental Health Review Tribunal [2004] EWCA Civ 311, (2004) 148 S.J.L.B. 384, R. v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 2) [2000] 1 AC 119 per Lord Browne-Wilkinson at page 132 and S. v. Miller 2001 S.C. 977 per Lord President Rodger at paragraphs 25-27.

[16] Counsel accepted that no single factor demonstrated that the Tribunal was not independent or impartial, but submitted that regard had to be had to the whole picture and all the relevant factors had to be taken into account. He also referred to a submission which had been made by the first respondents to the Justice 1 Committee's consultation on the Regulation of the Legal Profession in June 2002 which contained the following observations:

"Scottish Solicitors' Discipline Tribunal

There are many ways in which independence of the Scottish Solicitors' Discipline Tribunal can be underscored. For example, responsibility for nominating members of the Tribunal to the Lord President could became a function of the Judicial Appointments Board and the Tribunal could fall within the jurisdiction of the Council on Tribunals; the current name of the Tribunal could be changed; and the Tribunal could be funded from general taxation."

It was thus clear that the Law Society had had concerns about the independence of the Tribunal but, as far as counsel was aware, no steps had been taken to remedy the situation.

[17] So far as the second proposition was concerned, counsel stated that two of the three solicitor members of the Tribunal at the hearing on 8 October 2002 had been members of the Tribunal on 7 November 2001 when it had considered the earlier complaint against the petitioner and found him guilty of professional misconduct. The petitioner had not been told of the proposed composition of the Tribunal for the hearing on 8 October 2002 but, if he had been, he would have objected as it meant that that Tribunal would have been aware of his previous conviction, which had taken place less than a year earlier. While details of the previous conviction had been published at the time, the details would not necessarily have been recalled by different solicitor members of the Tribunal if they had been present at the hearing in October 2002.

[18] In relation to counsel's third proposition, he began by referring to Albert and Le Compte v. Belgium (1983) 5 EHRR 533 at paragraph 29, and submitted that, if the Tribunal had not been independent and impartial, this was not a case where it was subject to subsequent control by a judicial body that had full jurisdiction and provided the guarantees of Article 6(1). Reference was made to Sutherland-Fisher v. Law Society of Scotland 2003 S.C. 562 per Lord Kirkwood at paragraph 22, and counsel stated that he wished to present a different argument. In his submission, this court did not have the necessary judicial control because the Lord President, having appointed the solicitor members of the Tribunal, and being in administrative control of the court which had to hear the present appeal from the Tribunal, had decided which judges would sit to hear the appeal. In terms of section 2(3) of the Court of Session Act 1988 he had allocated three judges of his own choosing to the Extra Division to hear the appeal and, in the circumstances, and bearing in mind that the test was an objective one and also was not restricted to the United Kingdom, it was submitted that the fair-minded and informed observer would conclude that there was a real possibility of bias.

[19] With regard to the fourth proposition, counsel for the petitioner submitted that the Tribunal had erred when it had refused the petitioner's request for an adjournment of the hearing on 8 October 2002. While the petitioner would not have disputed the facts set out in the complaint, he had wished to be heard in mitigation of sentence. In the circumstances, the Tribunal, when considering sentence, did not have all the relevant information before them. Counsel submitted that prejudice to the petitioner was implied in the letter seeking the adjournment. While it was accepted that the petitioner should have re-arranged the two appointments fixed for the date of the hearing, and turned up at the hearing, the two appointments had not been referred to by the Tribunal. The petitioner could not receive legal advice and assistance due to his wife's earnings. It had been unfair for the Tribunal to refuse the petitioner's application for the adjournment. Counsel submitted that, if the court agreed that the Tribunal should have granted the adjournment, then the case should be remitted back to a differently constituted Tribunal to consider the question of sentence. If, however, the Tribunal had not been independent and impartial, then the court should exercise its powers under section 55 and reconsider what should be the appropriate sentence. In that event, the court should not seek to rely on the expertise of the Tribunal (McMahon v. Council of the Law Society of Scotland 2002 S.C. 475 at paragraphs 13-16).

[20] Counsel then turned to consider the fifth proposition which was to the effect that the sentence imposed by the Tribunal was excessive, disproportionate and unfair. The petitioner had previously been a partner in good standing in two different firms of solicitors, and it was only after he went into practice on his own account that his difficulties began. When practising on his own he had simply not been able to cope, and had been overwhelmed. In part, this was probably due to the medical condition from which he had been suffering, although a medical certificate was not available. Both complaints had related to the petitioner's failure to answer correspondence, and it had not been fair to present separate complaints since the petitioner's failures had really involved a continuous course of conduct, rather than two offences. It was important to note that there was no question of dishonesty involved. It was also relevant to consider the petitioner's financial position. He was married with four children, two of whom were still at school, one was at University and the other had just commenced work as a trainee in a department store. His wife was employed. In November 2001 the petitioner had been fined £5,000 and the Tribunal had directed that for a period of three years any practising certificate held or issued to him was to be subject to such restriction as would limit him to acting as a qualified assistant to such employer as may be approved by the first respondents. He had remained in practice until his appeal against the first Tribunal decision had been refused in March 2002. In May 2002 a firm of solicitors had offered to employ the petitioner as a qualified assistant. However, when the approval of the first respondents had been sought, they had decided that the application should be deferred until the outcome of the present disciplinary proceedings. As a result of that decision the petitioner, who had not been in a financial position to pay the fine, was unable to work as a qualified assistant. His only qualification was a legal one, and in the event he was sequestrated on 9 October 2002. Accordingly, as a result of the first respondents' decision not to permit him to take the post he had been offered, the petitioner's practice had been destroyed as he could not take his clients with him to a new employer, and he was made bankrupt. He also had to lay off all his administrative staff when he ceased practising in March 2002, but the Tribunal in October 2002 had founded on his failure to co-operate after November 2001. The second complaint had related to failures to reply to correspondence prior to November 2001, with the exception of certain failures to reply to correspondence from the Scottish Legal Aid Board. The petitioner was currently earning about £100 per week as a part-time tennis coach. If the petitioner's behaviour was regarded as a continuous course of conduct, as it should have been, the penalty imposed was excessive. In the circumstances the failures set out in the complaints, which did not raise any question of dishonesty, were not sufficiently serious to justify a finding that he was unfit to practice as an assistant under supervision. Counsel submitted that the order that the petitioner be struck off the roll was excessive, disproportionate and unfair, and that he should have been permitted to practice as an assistant under supervision.

Submissions on behalf of the first respondents
[21] Counsel for the first respondents began by dealing with the petitioner's first and third propositions. He submitted that, in the case of a Tribunal considering disciplinary matters within a profession, it was obvious that the members of the Tribunal required to have specialised knowledge and experience, and in the circumstances it was reasonable that the solicitor members of the Tribunal, who were appointed by the Lord President, should be recommended by the first respondents. In the present case the fair-minded and informed observer would note the degree of security of tenure of the members and the fact that a member could not be removed by the first respondents, but only by the Lord President. Further, it would be noted that there was never a situation where one of the first respondents was a member of the Tribunal at the same time. While the fiscal was appointed by the first respondents, it was his duty to investigate and, if appropriate, proceed with a complaint but, in practice, he was expected to exercise independent judgment. The fact that the Tribunal had power to award expenses against the respondents was too remote an interest to give rise to a real possibility of bias, bearing in mind that every member of the Tribunal would wish to ensure that solicitors who appeared before the Tribunal were properly and fairly treated. Looking at the situation as a whole, it was submitted that there was no proper basis for a fair-minded and informed observer to conclude that the constitution of the Tribunal, and its procedure, would give rise to a real possibility of bias. In the circumstances the Tribunal was independent and impartial. While the Law Society of Scotland in its submission to the Justice 1 Committee in May 2002 had referred to the possibility of membership of the Tribunal becoming the function of the Judicial Appointments Board, and the Tribunal being funded from general taxation, these had simply been suggestions as to how the Tribunal could be improved.

[22] Counsel went on to submit that, if the court held that the Tribunal was not independent and impartial, it was subject to subsequent control by the Court of Session that had full jurisdiction and did provide the guarantees of Article 6(1). The question was whether the disciplinary procedure, looked at as a whole, was Article 6(1) compliant. It was accepted that regard should be had to the manner of appointment of the members, their term of office, the existence of guarantees of freedom from outside pressures and whether objectively there was an appearance of independence (Findlay v. United Kingdom, (supra). Counsel for the petitioner had not founded on any of those first three factors as demonstrating that this court lacked the appearance of independence. The submission which had been made was that the fair-minded and informed observer would conclude that the court was biased because the members of the Extra Division had been allocated to this hearing by the Lord President, who had appointed the members of the Tribunal against whose decision the appeal had been taken. However, the observer would be realistic and use a degree of common sense, and would conclude that in the circumstances any suggestion of bias and lack of independence was fanciful. In the circumstances the Court of Session amply satisfied the appearance of independence. It followed that the features of the Tribunal founded upon and what had gone on before it were rendered academic.

[23] With regard to the second proposition, which relied on the fact that two of the three solicitor members of the Tribunal in October 2002 had been members of the first Tribunal in November 2001, it had to be borne in mind that the petitioner did not lodge answers and did not dispute that he had been guilty of professional misconduct, and the previous decision of the Tribunal was rightly before the second Tribunal when it came to consider the question of sentence. There was no prejudice to the petitioner and no substance in this ground of appeal.

[24] So far as the issue of the adjournment which the petitioner had requested was concerned, it was to a degree irrelevant as all the relevant information was now before the court. It was also important to recognise that the Tribunal had to consider the public interest and the interests of the legal profession as well as those of the petitioner. None of the factors contained in the petitioner's letter of 4 October was persuasive. In view of his financial position, his inability to instruct legal representation of his choice would not be likely to have changed even if an adjournment had been granted. He had adequate notice of the hearing and he should have altered the appointments which he had made. He was not challenging the finding of professional misconduct and he should have appeared at the hearing in order to put forward such mitigating factors as were available and would have been within his knowledge. The Tribunal had been fully entitled to refuse to grant the adjournment for the reasons which they had given.

[25] On the question of sentence, counsel stated that he had no real input but wished to make a few observations. It was submitted that the fact that two complaints had been made against the petitioner was perfectly justified as it would not have been practicable to delay a complaint until he had finally stopped failing to answer correspondence. After the first complaint the petitioner had persisted in the same type of conduct. In particular, while the second complaint had related to failures to answer correspondence prior to November 2001, there had, after that time, been a number of letters which had not been answered, including ten from the Scottish Legal Aid Board. With regard to the suggestion that the petitioner's failures had been due to the fact that he had been overwhelmed by work when he was in practice on his own, counsel stated that at the first hearing in November 2001 it had been represented to the Tribunal that he had stopped responding to correspondence from the Law Society by choice. The serious nature of the petitioner's misconduct had been highlighted in the Opinion of the Court which dismissed the petitioner's appeal against the November 2001 decision. It will, of course, be open to the petitioner in the future to apply to have his name restored to the roll.

Decision
[26] On behalf of the petitioner it was submitted that the Tribunal, in October 2002, was not independent and impartial within the meaning of Article 6(1). In that connection it was common ground that the test which fell to be applied is that set out by Lord Hope of Craighead in Porter v. Magill [2002] 2 AC 357 at paragraph 103, namely, whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Tribunal was biased. Further, in order to establish whether a Tribunal can be considered to be independent, regard must be had inter alia to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence (Findlay v. United Kingdom (supra).

[27] It was submitted on behalf of the petitioner that the members of the Tribunal did not have security of tenure. However, each solicitor member was appointed by the Lord President on the recommendation of the first respondents for a period of five years and was eligible for re-appointment. In terms of paragraph 1 of Schedule 4, the solicitors are recommended by the first respondents "as representatives of the solicitors' profession throughout Scotland" and they did not receive any remuneration. While, in terms of paragraph 3, the Lord President from time to time could terminate the appointment of any member of the Tribunal, it was of significance that the first respondents did not have any power to terminate an appointment once it had been made. In the circumstances, and in the context of the statutory provisions for the constitution of such tribunals in Scotland, we do not consider that the solicitor members can be said to lack the required degree of security of tenure. Further, again taking the matter in context, we have not been persuaded that the provisions of paragraph 19, relating to the power to order the payment of expenses, detracts in any way from the independence or impartiality of the Tribunal. A further submission was made to the effect that the fair-minded and impartial observer would perceive that a solicitor who had aspirations to be a member of the first respondents might be influenced by the consideration that his prospects would be enhanced if he became a member of the Tribunal and gave decisions in favour of the first respondents. In our opinion, however, such a perception is fanciful and the submission made by counsel for the petitioner is without merit.

[28] Counsel adopted the position that all the factors on which he had sought to found had to be looked at together. In our opinion, however, the only submission in relation to the alleged lack of independence and impartiality of the Tribunal which had any semblance of validity was the contention that the first respondents were, in effect, the prosecuting authority and that they had effective control over the solicitor members of the Tribunal, since the Lord President could not appoint a solicitor member unless that solicitor had been recommended to him by the first respondents. In the circumstances, and having considered the submissions made to us, we are not satisfied, having regard to the fact that the statutory provisions have been made in relation to a profession possessed of a self-regulating disciplinary procedure, that the solicitor members of a tribunal must be knowledgeable and experienced and that the actual appointments are made by the Lord President, that the appointment procedure founded on by the petitioner could properly be regarded as detracting from the independence and impartiality of the Tribunal.

[29] The next matter for consideration is whether, if the Tribunal, considered in isolation, was not independent and impartial within the meaning of Article 6(1), the appeal function of the Court of Session constitutes subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6(1) (Albert and Le Compte v. Belgium, supra). In an appeal to the Court of Session, the court is able to deal with disputed issues of fact and of law. The court has power, if necessary, to remit to any person to make further enquiry into the facts, or to take further evidence and to report to the court (cf. Sutherland-Fisher v. Law Society of Scotland, supra, at paragraph [22]). In our opinion, as a matter of general principle, in the event of an appeal from the Tribunal, the Court of Session has full jurisdiction and provides the guarantees of Article 6(1) (see also Ghosh v. General Medical Council [2001] 1 WLR 1915 and Robson v. Council of the Law Society of Scotland, (15 March 2002, unreported) per Lord Hamilton at paragraph [12]. In this case, however, counsel for the petitioner, in contending that this court did not have the necessary judicial control and did not provide the guarantees of Article 6(1), sought to criticise the constitution of this court. The submission was to the effect that the Lord President had appointed the members of the Tribunal and that he had also, in terms of section 2(3) of the Court of Session Act 1988, allocated to this Extra Division three judges of his own choosing. The suggestion appeared to be that the selection of the judges to hear the present appeal had been influenced by the fact that the Lord President had appointed the solicitor members of the Tribunal whose decision was being appealed. However, when the court is considering in any particular case what would be the perception of the fair-minded and informed observer, it is important to keep in touch with reality. In the present case we consider that the suggestion of counsel for the petitioner on this matter was fanciful in the extreme, and we are satisfied that the court has full judicial control and is able to provide the guarantees set out in Article 6(1).

[30] In relation to the other submissions which were made to us on behalf of the petitioner, we are satisfied that there is no merit in the criticism directed to the fact that two of the solicitor members of the Tribunal in October 2002 had also been members of the Tribunal at the original hearing in November 2001. The petitioner has accepted the accuracy of the findings in the second complaint and has not disputed the fact that he was guilty of professional misconduct. In November 2001 the Tribunal directed that publicity should be given to their decision, including the name of the petitioner. After he was found guilty in October 2002 the Tribunal were made aware of the previous finding of professional misconduct, and noted that the earlier finding almost mirrored the facts and circumstances on which the current finding was based. Having regard to the fact that the petitioner, who did not lodge any answers, has at no stage sought to deny professional misconduct, we do not consider that the fact that two of the solicitor members had been present at the hearing in November 2001 has occasioned him any prejudice, as the information about the previous finding was already in the public domain and, in any event, had to be disclosed to the Tribunal in October 2002.

[31] With regard to the Tribunal's refusal to grant his application for a discharge of the October 2002 hearing, the petitioner had been given adequate notice of the hearing. No answers had been lodged, although he had earlier sought an extension of time. The application for the adjournment was received only the day before the hearing, and the other commitments on which the petitioner sought to found did not justify the request for the adjournment at such a late stage. On the whole matter we are satisfied, for the reasons set out in the Note appended to the findings, that the Tribunal was fully justified in refusing an adjournment.

[32] We now turn to consider the question of sentence which counsel for the petitioner described as excessive, unfair and disproportionate. In November 2001 the Tribunal found that the petitioner had been guilty of professional misconduct in respect of his failure to reply to correspondence and other communications from the Law Society. He was fined £5,000 and it was also directed, in terms of section 53(5) of the 1980 Act,

"that for a period of three years any Practising Certificate held or issued to the [petitioner] shall be subject to such restriction as will limit him to acting as a qualified assistant to such employer as may be approved by the Council of the Law Society of Scotland and thereafter until such time as he satisfies the Tribunal that he is fit to hold a full Practising Certificate."

[33] The petitioner appealed by way of petition under section 54 of the Act. He did not dispute the amount of the fine but sought to bring under review the restriction placed on his practising certificate. The appeal was refused and Lord Hamilton, who delivered the Opinion of the Court, observed that the petitioner had deliberately flouted his professional responsibilities over an extended period. The findings in relation to the second complaint demonstrated that he had continued to disregard his professional responsibilities. In that connection we are satisfied that no criticism can be levelled at the first respondents due to the fact that they served separate complaints on the petitioner. Having regard to the extent of the findings in relation to the first complaint, it would have been quite unrealistic for the first respondents to have delayed serving a complaint until they had satisfied themselves that the petitioner's failures to answer correspondence and other communications had ceased.

[34] In November 2001 the petitioner had undertaken to co-operate promptly and fully with the Law Society in the future. However, it was agreed that the second complaint had related to a substantial extent to failures on the part of the petitioner to reply to correspondence and other communications which had taken place prior to November 2001, although we were told that after that date about twenty letters had been sent out but no replies had been received.

[35] The petitioner continued in practice until March 2002 when his appeal was refused, and he then had to wind up the affairs of his firm and dismiss the members of his staff. We were informed that after the hearing on 7 November 2001 another solicitor had contacted the first respondents and stated that his firm was considering employing the petitioner. The first respondents indicated that the firm would require to make an application to employ the petitioner, but no assurance was given that such approval was likely. In March 2002 a firm of solicitors stated that they were prepared to employ the petitioner, subject to the restriction placed on his practising certificate. The petitioner's application to be employed by that firm was considered by the first respondents' Practice Certificate Advisory Committee on 2 May 2002. The Committee recommended that the application should be deferred until the outstanding disciplinary proceedings had been concluded, and that recommendation was approved by the first respondents on or about 27 May 2002. In the event, the application was withdrawn by the firm concerned on 15 August 2002. The petitioner accordingly was not able to be employed as a qualified assistant between March and October 2002. Counsel for the petitioner stated that the petitioner had been unable to pay the fine and that he had no other professional qualifications, although he had earned some money as a tennis coach, and on 9 October 2002 he had been sequestrated.

[36] In considering sentence, we have taken into account the fact that there had been no complaint of professional misconduct when the petitioner had been a partner in two law firms, and that neither of the complaints which had been made involved any element of dishonesty. The professional misconduct of which he was found guilty was undoubtedly serious, but we also have to consider the financial position in which the petitioner found himself as a result of not being able to be employed as a solicitor under supervision after March 2002 because the first respondents would not approve the firm which had been prepared to employ him. The petitioner was sequestrated and now apparently earns about £100 per week from tennis coaching. In the whole circumstances, and particularly having regard to the financial consequences of the first respondents' decision in May 2002 to defer consideration of the application to employ the petitioner as an assistant until the disciplinary proceedings had been concluded, we have reached the conclusion, albeit with some hesitation, that the decision to strike the petitioner's name from the roll was excessive. We shall quash the decision of the Tribunal dated 8 October 2002 in so far as it relates to sentence, and substitute a direction that for a period of five years any practising certificate held by or issued to the petitioner shall be subject to such restriction as will limit him to acting as a qualified assistant to such employer as may be approved by the Council of the Law Society of Scotland and thereafter until such time as he satisfies the Tribunal that he is fit to hold a full practising certificate, and quoad ultra we refuse the appeal.