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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> O'Connor v Bar Standards Board [2017] UKSC 78 (6 December 2017)
URL: http://www.bailii.org/uk/cases/UKSC/2017/78.html
Cite as: [2017] WLR(D) 813, [2017] WLR 4833, [2017] UKSC 78, [2018] HRLR 2, [2017] 1 WLR 4833, [2018] 2 All ER 779
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[2017] UKSC 78
On appeal from: [2016] EWCA Civ 775
JUDGMENT
O’Connor (Appellant) v Bar Standards Board (Respondent)
before
Lady Hale, President
Lord Kerr
Lord Wilson
Lady Black
Lord Lloyd-Jones
JUDGMENT GIVEN ON
6 December 2017
Heard on 4 October 2017
|
Appellant Mark Anderson QC S Chelvan (Instructed by Pegasus Legal LDP) |
|
Respondent Alison Padfield (Instructed by BLM) |
lord lloyd-jones: (with whom Lady Hale, Lord Kerr, Lord Wilson and Lady Black agree)
3. On 23 May 2011 a Disciplinary Tribunal found Charges 1-5 proved. Charge 6 was dismissed.
4. The appellant appealed to the Visitors to the Inns of Court (“the Visitors”). (It should be noted that the procedure for an appeal to the Visitors with which we are concerned in this case is no longer in force, having been replaced by an appeal to the High Court. See section 24(1) of the Crime and Courts Act 2013 which came into force on 7 January 2014; Tariq Rehman v The Bar Standards Board [2016] EWHC 1199 (Admin), at para 22, Hickinbottom J.) On 17 August 2012 her appeal was allowed. The Visitors found that none of the conduct alleged against the appellant involved any breach of the Code of Conduct of the Bar of England and Wales. Sir Andrew Collins, delivering the judgment of the Visitors, observed that they had no doubt that none of these charges should stand. In the light of this conclusion it was not necessary for the Visitors to rule on two further submissions, namely that there had been procedural unfairness in the course of the hearing and that there was a lack of reasons in the decision of the tribunal. The Visitors observed, however, that there was in their view considerable force in those submissions.
“(1) The allegation is on its face time-barred and there is no application to extend the time limits; and
(2) So far as the allegation rests on the allegations supporting misfeasance it must fail.
(3) The allegation rests also on a general assertion that the defendant is habitually or systematically unfair to black barristers, an allegation which is demurrable.
(4) The evidence is quite to the contrary.”
7. The appellant’s appeal was heard by Warby J [2014] EWHC 4324 (QB) who on 18 December 2014 held that there was sufficiently pleaded a case that the BSB indirectly discriminated against the appellant on racial or ethnic grounds by bringing the disciplinary proceedings against her. He did not consider that it was possible for the court to determine that the appellant had no real prospect of establishing that the statistics on which she relied were significant (at paras 63, 65). However, he held (at para 79) that the claim was time-barred by section 7(5) of the 1998 Act.
“Here, the ‘act complained of’ in the one human rights claim that I have held to be both adequately pleaded and sustainable for the purposes of a summary judgment application is the BSB’s ‘prosecution’ of the appellant. The decision to bring proceedings was taken on 9 June 2010 or at the latest in late July 2010 when the charges were served on the appellant. If time runs from either of those dates then the one-year time limit expired some 17 or 18 months before the issue of these proceedings in February 2013. If the BSB’s ‘prosecution’ of the appellant is considered to be a continuing state of affairs up to the tribunal decision, time under section 7 expired in May 2012.”
Warby J also rejected (at para 81) the submission on behalf of the appellant that the deputy master had been wrong not to grant her an extension of time under section 7(5)(b) of the 1998 Act.
8. The appellant appealed to the Court of Appeal. In its judgment of 25 July 2016 the Court of Appeal (Lord Dyson MR, Elias and Sharp LJJ) [2016] 1 WLR 4085 held that the one year time limit under section 7(5)(a) of the 1998 Act had started to run when the Disciplinary Tribunal had found the charges against the claimant proved and so had expired before she had issued her claim. The Court of Appeal refused a renewed application for permission to appeal on the ground that the limitation period should have been extended pursuant to section 7(5)(b) of the 1998 Act.
10. The following issues arise on this appeal.
(1) Are the disciplinary proceedings brought by the BSB against the appellant to be considered a series of discrete acts or a single continuing act for the purposes of section 6(1)(a) of the 1998 Act?
(2) If the latter, does that act end with the verdict of the Disciplinary Tribunal or with the verdict of the Visitors?
Furthermore, by a respondent’s notice, the BSB contends that the decision of the Court of Appeal should be affirmed on grounds other than those relied on by that court, namely that Warby J erred in holding that the article 14 claim had a real prospect of success. In this regard, the BSB also seeks permission to adduce new evidence of fact, thereby replicating a respondent’s notice and related application to adduce new evidence which were before the Court of Appeal.
Relevant Provisions
11. Article 6(1) ECHR provides in relevant part:
“(1) 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. …”
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
13. Section 6 of the 1998 Act provides in relevant part:
“(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
…
(6) ‘An act’ includes a failure to act …”
14. Section 7 of the 1998 Act provides in relevant part:
“(1) 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 -
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal; or
(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.
…
(5) Proceedings under subsection (1)(a) must be brought before the end of -
(a) the period of one year beginning with the date on which the act complained of took place; or
(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances,
but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.”
The nature of the discrimination claim
“22. The defendant infringed the claimant’s right to a fair trial on grounds of her race, in breach of article 14 of the Convention.
23. The refusal to allow sufficient time to prepare is in line with the defendant’s general complaints process which impacts disproportionately on black and ethnic Barristers. Black and ethnic Barristers are more likely to have a complaint referred for disciplinary action, are more likely to be convicted, and are more likely to have those convictions upheld. The claimant avers that the fact that every element of the defendant’s disciplinary system impacts on black and ethnic Barristers more adversely indicates that there is a systemic bias against black and ethnic Barristers.
24. There is no objective or reasonable reason why, given that black and ethnic Barrister make up such a small proportion of the Bar, they are more likely to be investigated following a complaint, more likely to have a complaint referred for prosecution, more likely to be prosecuted, more likely to be convicted and more likely to have those convictions upheld. There is no objective reason why the defendant ignored its own rules and prosecuted the claimant.
…
29. The defendant discriminated against the claimant indirectly in breach of section 53(2), 53(3) of the Equality Act 2010, section 1 of the Race Relations Act 1976 and article 14 of the Convention. The defendant’s rules are applied in such a way that although the Code of Conduct of the Bar applies to all Barristers in England and Wales it particularly disadvantages ethnic Barristers who make up only a small proportion of the membership of the Bar. The claimant again repeats para 20 of these Particulars.”
The reference in para 23 to refusal to allow sufficient time to prepare is no longer relevant as that basis of claim did not survive the hearing before Warby J. Para 20 of the pleading had alleged, inter alia, that the BSB had acted knowing that it had no power to act because its actions were in breach of its own rules and knowing that its action would injure the claimant.
17. Warby J had this to say about the pleaded case:
“63. The relevant parts of the appellant’s particulars of claim could be more clearly formulated and do contain some surplus wording. In my judgment however she has, within paras 22-24 and 29, sufficiently pleaded a case that the BSB indirectly discriminated against her on racial or ethnic grounds by bringing the disciplinary ‘prosecution’ against her. At 23 and 24 she alleges that in practice the complaints process impacts disproportionately on BME barristers in particular ways. These include the allegation that BME barristers are more likely to have a complaint referred for prosecution. She also alleges, though it may not be necessary for her to do so, that there is no objective reason to justify this different treatment. At 29 she expressly alleges indirect discrimination in that the relevant rules ‘are applied in such a way’ by the BSB that ‘it particularly disadvantages black barristers’.”
18. At para 79 he concluded that the “act complained of” in the one human rights claim that he held to be both adequately pleaded and sustainable for the purposes of a summary judgment application was “the BSB’s ‘prosecution’ of the appellant”. However, he also considered (at para 62) that the decision of the Grand Chamber of the European Court of Human Rights in DH v Czech Republic (2008) 47 EHRR 3 showed that in an appropriate case statistics may be relied on to establish that an applicant is a member of a group which has been treated differently in practice from others in a comparable situation in a way which is disproportionately prejudicial to members of that group, and thereby shift the onus to the public body concerned to provide evidence of an objective and reasonable justification for the difference.
Section 7(5)(a): A series of acts or a single act?
27. The only authority to which we were referred on this issue is Somerville v Scottish Ministers [2007] UKHL 44; [2007] 1 WLR 2734. This decision is, however, not particularly illuminating on this point because of the variety of views expressed. The petitioners were serving sentences of imprisonment and were at various times segregated from other prisoners by monthly orders and authorisations that were made over a period of time. They sought judicial review of the decisions to segregate them on the ground that their Convention rights had been infringed. Several of the periods of segregation had concluded more than one year before the proceedings were brought. The House held that the time limit in section 7(5) did not apply to the proceedings and the observations on its operation were therefore obiter. Lord Hope of Craighead stated (at paras 51-52) that he would hold that the phrase “the date on which the act complained of took place” in section 7(5)(a) means, in the case of what may properly be regarded as a continuing act of alleged incompatibility, that time runs from the date when the continuing act ceased, not when it began. Otherwise it would not be open to a person who was subjected to a continuing act or failure to act which was made unlawful by section 6(1) to take proceedings to bring it to an end without relying on section 7(5)(b) while it was still continuing after the expiry of one year after its commencement. He also considered that, so long as the proceedings were brought within the time permitted by section 7(5)(a) and any longer period allowed under section 7(5)(b), damages may be awarded as just satisfaction for the whole of the period over which the continuing act extends, including any part of it that commenced before the period of one year prior to the date when the proceedings were brought. The question whether the acts complained of in that case were continuing acts or one-off acts with continuing consequences was not easy to determine on the pleadings and he preferred to reserve his opinion on that point.
When did the continuing act cease?
(1) In In re S (A Barrister) [1970] 1 QB 160 five judges sitting as Visitors of the Inns of Court stated (at p 166G-H), that “[t]he judges as visitors have always had supervisory powers and their decision, upon an appeal by a barrister or student to them, has always been the final determination of such matter”. The precise origins of the long-established visitorial jurisdiction of the judges to hear disciplinary appeals from the Inns of Court are obscure. (See J H Baker, Judicial Review of the judges as Visitors to the Inns of Court, (1992) Public Law 411.) For present purposes it is sufficient to record that in 1886 the Council of Judges resolved that “the jurisdiction as to appeals from decisions of the benchers of the several Inns of Court is now vested in the judges of the High Court”. (See R v Visitors to the Inns of Court, Ex p Calder [1994] QB 1 per Sir Donald Nicholls V-C at pp 35D-E). This arrangement continued notwithstanding the transfer by the Inns of Court of their disciplinary function (other than the power to pronounce and carry into effect any sentence) to the Senate of the Inns of Court in 1966 and to the Council of the Inns of Court in 1986. The first Hearings before the Visitors Rules were issued in 1980.
(2) One aspect of the continuing supervisory jurisdiction of the Visitors was apparent in their role in hearing applications and giving directions for the conduct of the disciplinary proceedings. Regulation 9(1) of The Disciplinary Tribunals Regulations 2009 (Annexe K to the Code of Conduct of the Bar of England and Wales) required the President of a Disciplinary Tribunal to designate a judge or judges to perform this function. The directions to be given by a designated judge might concern (inter alia) the severance or strike out of charges, the attendance of witnesses, the admission of documents, the admission of facts and such other matters as the judge deemed expedient for the efficient conduct of the hearing. In the proceedings against this appellant Field J heard the appellant’s application to strike out the proceedings and gave directions for their conduct.
(3) The function of the Visitors in hearing appeals from Disciplinary Tribunals was a further aspect of this supervisory jurisdiction. The appeal brought by this appellant was governed by the Hearings before the Visitors Rules 2010 (Annexe M to the Code of Conduct).
(4) In cases where one or more charges of professional misconduct had been proved, an appeal against conviction or sentence could be lodged by the barrister as of right (Regulation 25(1) of The Disciplinary Tribunals Regulations 2009).
(5) In certain circumstances (which did not arise in this case) the BSB could appeal against the dismissal of a charge of professional misconduct with the consent of the Chairman of the BSB or the Chairman of the Complaints Committee or the permission of the visitors (Regulation 25(1)(c), 25(5) of The Disciplinary Tribunals Regulations 2009).
(6) On an appeal the Visitors were required to look afresh at the matters in dispute and to form their own views. They were required to consider whether the charge had been made out to their satisfaction, to the requisite standard of proof. The proper approach was that of an appellate court rehearing the case on its merits. (R v Visitors to the Inns of Court, Ex p Calder [1994] QB 1 per Sir Donald Nicholls V-C at pp 42D-F, 42H; per Stuart-Smith LJ at pp 61H - 62D. See also Lincoln v Daniels [1962] 1 QB 237, per Devlin LJ at p 256.)
(7) It was open to the Visitors to correct procedural defects and to remedy procedural unfairness before the Disciplinary Tribunal. As Sir Andrew Collins observed in delivering the judgment of the Visitors in the present case, the Visitors were able to hear the matter entirely on its merits. They would give the necessary protection to an appellant and it was not necessary for the matter to be remitted for further consideration by the Tribunal.
(8) Following a finding or sentence of the Tribunal on a charge of professional misconduct, the Treasurer of a defendant’s Inn was required to pronounce and implement the sentence. However, the Treasurer was required first to wait for 21 days to allow a notice of appeal to be lodged. Where a defendant had given notice of appeal to the Visitors against a finding or sentence of the Tribunal on a charge of professional misconduct, the pronouncement and implementation of the sentence by the Treasurer of the defendant’s Inn were automatically deferred (Regulation 27, The Disciplinary Tribunals Regulations 2009). The verdict of the Tribunal could not be put into effect until after the decision of the Visitors on the appeal.
37. Before leaving this issue, I should refer to a further submission of Mr Anderson based on Delcourt v Belgium (1970) 1 EHRR 355 where the Strasbourg court, in rejecting a submission that article 6 had no application to the Belgian Court of Cassation because it was concerned not with the merits of the case but with the validity of the judgment, observed:
“Thus, a criminal charge is not really ‘determined’ as long as the verdict of acquittal or conviction has not become final. Criminal proceedings form an entity and must, in the ordinary way, terminate in an enforceable decision. Proceedings in cassation are one special stage of the criminal proceedings and their consequences may prove decisive for the accused. It would therefore be hard to imagine that proceedings in cassation fall outside the scope of article 6(1).” (at para 25)
38. I do not find this passage of any assistance, even by way of analogy. The Strasbourg court was there concerned with the distinct question as to the scope of application of article 6. As Lord Dyson MR observed in the Court of Appeal (at para 23) in relation to a similar submission based on Eckle v Federal Republic of Germany (1982) 5 EHRR 1, this does not touch on the question whether the role of a prosecutor in appeal proceedings is to be considered as a continuation of the act of prosecuting the defendant in the first place.
The respondent’s notice
41. The Notice of Objection and the application to adduce new evidence replicate a respondent’s notice and related application that were before the Court of Appeal. Warby J had concluded that the particulars of claim both in their unamended and draft amended forms adequately stated a case, which was not fanciful, that by bringing disciplinary proceedings against the appellant, the BSB indirectly discriminated against her contrary to article 14. In the light of its conclusion as to the limitation period under section 7(5)(a) the Court of Appeal did not address these matters in any detail or express any concluded view. However, Lord Dyson did refer to the main submission made by Ms Padfield for the BSB in this regard which, as before us, was, essentially that the discrimination claim founded on Strasbourg decisions such as DH v Czech Republic could have no real prospect of success without statistics sufficient to raise a prima facie case of discrimination, general statements of disproportionate impact being unlikely to be sufficient. In this regard Ms Padfield relied on Oršuš v Croatia (2011) 52 EHRR 7. Lord Dyson MR observed (at para 35) that, in his view, there was considerable force in these points and that, at best, the appellant’s case, on the basis of the evidence she had adduced so far, was very thin.
43. Nevertheless, in the light of the history of these proceedings, I consider it appropriate to address the merits of the respondent’s notice. I can do so briefly. I consider that Warby J was correct to conclude on the basis of the evidence before him that there were reasonable grounds for bringing the claim and that it had a real prospect of success. The appellant’s case is based, in part, on a 2013 report by Inclusive Employers into the BSB’s complaints system. That report analysed data from the period 2007-11 and concluded that (i) BME barristers were disproportionately over-represented in the complaints process in relation to the outcomes of external complaints; (ii) BME barristers were more likely to have a complaint referred to disciplinary action; and (iii) BME barristers were more likely to have complaints upheld. The report went on to find that although there were steps the BSB could take to improve the complaints process from an equality and diversity perspective - in particular the provision of more prompt training for tribunal members which included training in unconscious bias - the procedure itself was not discriminatory and that other factors, as yet unidentified, were causing the disproportions shown in the data. Ms Padfield for the BSB objects that the mere fact of a statistical difference in treatment between two groups is not sufficient to establish that there is prima facie evidence that the effect of a measure or practice is discriminatory. I accept that in DH and in Sampanis v Greece (Application No 32526/05), 5 June 2008 (Case Summary [2011] ECHR 1637), the difference in treatment between different groups was so striking as to amount, of itself, to prima facie evidence that the effect was discriminatory and to require explanation. That may not be the position in the present case. Nevertheless, I consider that the appellant is entitled to rely on this evidence, so far as it goes, in conjunction with the unhappy history of the proceedings against her, as supporting her case that she has been the victim of discrimination. The BSB’s submission in the present case rests on the fallacious assumption that an inference from statistical difference in treatment is the only way in which a claimant can establish an infringement of article 14. As the Strasbourg court has made clear, indirect discrimination can be proved without statistical evidence (DH at para 188; Oršuš at para 153).