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 Respondent
Mark Anderson QC Alison Padfield
S Chelvan
(Instructed by Pegasus
Legal LDP
)
(Instructed by BLM
)
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LORD LLOYD-JONES: (with whom Lady Hale, Lord Kerr, Lord Wilson
and Lady Black agree)
1. In these proceedings the appellant, Ms O’Connor, a practising barrister,
claims damages under the Human Rights Act 1998 against the respondent, the Bar
Standards Board (“the BSB”), alleging discrimination in her enjoyment of the right
to a fair trial, in breach of article 14 of the European Convention on Human Rights
(“ECHR”) considered in conjunction with article 6 ECHR. The appellant, who is
black, alleges that the BSB discriminated against her on grounds of her race in
bringing disciplinary proceedings which ended in her acquittal on appeal in August
2012.
2. On 9 June 2010 the BSB Complaints Committee brought 6 disciplinary
charges against the appellant. Charges 1-3 each alleged professional misconduct in
that she had conducted litigation by signing a statement of truth on behalf of a party
to litigation. Charge 4 alleged professional misconduct in that, in conducting
litigation by signing a statement of truth on behalf of a party to litigation, she failed
to have regard to Public Access Work Guidance for Barristers, issued by the General
Council of the Bar. Charge 5 alleged professional misconduct in that she engaged in
conduct discreditable to a barrister by committing an offence under section 70(8) of
the Courts and Legal Services Act 1990 as a member of an unregulated limited
liability partnership which “filed” a defence and counterclaim with the claimant’s
solicitor, thereby unlawfully conducting litigation. Charge 6 alleged professional
misconduct in that she engaged in conduct likely to diminish public confidence in
the legal profession or the administration of justice or otherwise bring the legal
profession into disrepute by committing the offence contrary to section 70(8) of the
Courts and Legal Services Act 1990 referred to in Charge 5.
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
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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.
5. The appellant issued the present proceedings against the BSB on 21 February
2013. The appellant relied on various causes of action including allegations of
violation of articles 6 and 14 ECHR, contrary to section 6 of the Human Rights Act
1998. By its defence the BSB denied the appellant’s allegations and also maintained
that the claims under the 1998 Act were time-barred. On 9 October 2013 the
appellant issued an application for directions. These included an application for
permission to amend her particulars of claim and directions for the service of a reply.
The draft amended pleading did not answer the BSB’s plea that the claim was timebarred. The appellant did not serve a reply.
6. On 3 January 2014 the BSB issued an application seeking an order that the
statement of case be struck out pursuant to CPR rule 3.4(2) on the grounds that it
disclosed no reasonable grounds for bringing the claim or that summary judgment
be given in its favour pursuant to CPR Part 24. On 28 March 2014 Deputy Master
Eyre heard the application. The BSB maintained that none of the claims had a real
prospect of success and that, in any event, the limitation defence was bound to
succeed. Deputy Master Eyre granted the application with costs. He held:
“(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
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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.
9. On 8 December 2016 the Supreme Court granted permission to appeal only
in respect of the issue under section 7(5)(a) 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?
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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. …”
12. Article 14 ECHR provides:
“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 –
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(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
15. Before addressing the application of section 7(5)(a) to the present
proceedings, it is necessary to consider the precise nature of the discrimination claim
which the appellant wishes to make. In particular it is necessary to establish whether
the complaint is directed at the conduct of the BSB in bringing and pursuing the
prosecution against this appellant or, more generally, at alleged systemic
discrimination against BME barristers.
16. The discrimination claim is pleaded in the Particulars of Claim in very
general terms which are vague and unclear. The relevant paragraphs provide:
“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.
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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:
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“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.
19. In the Court of Appeal Lord Dyson MR (at para 21) approached the issue of
limitation on the basis that the complaint was that the proceedings against the
appellant were in breach of article 14. Elias LJ (at paras 38 and 39) suggested that
some confusion had arisen over the article 14 claim. He distinguished between an
allegation of discriminatory treatment of the appellant herself and a distinct, wider
allegation that there is systemic discrimination against BME barristers. In the former
case the focus had to be on the act or acts directed against the appellant and the
limitation period fell to be determined by reference to that act or those acts. In that
regard the disproportionate treatment of BME barristers was potentially evidence of
discrimination against the appellant herself. In the latter case each BME barrister
subjected to the disciplinary process would, on the analysis of DH, be a victim with
the right to take action to challenge the wider systemic discrimination. The remedy
for such a claim would, however, be different and it was highly arguable that the
limitation period would run from a different time. In his view the operation of the
limitation period had at all points in the present proceedings been argued on the
assumption that it ran by reference to acts directed against the appellant.
Accordingly, that gave rise to the question whether the decision to bring disciplinary
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proceedings against her, as an alleged act of discrimination, was a continuous act or
not and if so, whether it ran until the appeal was determined.
20. On this appeal counsel for the appellant, Mr Mark Anderson QC and Mr S
Chelvan, neither of whom appeared below, have made clear in their written case and
in the oral submissions of Mr Anderson that the appellant’s complaint is that the
disciplinary proceedings were brought against her for reasons which infringe her
Convention rights. The BSB’s written case states that the only act complained of
which survived the hearing before Warby J is the alleged violation of article 14 by
indirect discrimination pursuant to the DH v Czech Republic line of Strasbourg case
law. However, it later states that the only surviving allegation of discrimination is
that by bringing disciplinary proceedings against the appellant, the respondent
indirectly discriminated against her contrary to article 14 pursuant to the DH v Czech
Republic line of Strasbourg case law.
21. I agree with Elias LJ as to the basis on which the claim has been presented
and I gratefully adopt his analysis. The appellant’s challenge is to the conduct of the
BSB in bringing and pursuing disciplinary proceedings against her, not to an alleged
state of affairs in which BME lawyers were more likely to be the subject of such
proceedings. The appellant’s reliance on DH is intended to demonstrate that the
disciplinary proceedings against her were discriminatory. This has an important
impact on the issue of limitation. The bringing and pursuit of disciplinary
proceedings must be the focus of the investigation into “the date on which the act
complained of took place”.
Section 7(5)(a): A series of acts or a single act?
22. The question which then arises in relation to the application of section 7(5)(a)
to the present proceedings is whether the bringing of disciplinary proceedings by the
BSB is to be considered a series of discrete acts or a single continuous act.
23. The expression “the date on which the act complained of took place” is apt
to address a single event. However, the provision should not be read narrowly. There
will be many situations in which the conduct which gives rise to the infringement of
a Convention right will not be an instantaneous act but a course of conduct. The
words of section 7(5)(a) should be given a meaning which enables them to apply to
a continuing act of alleged incompatibility. While it is correct that section 7(5)(b)
may often empower a court to grant an extension of time to bring proceedings in
respect of a course of conduct which has extended over a period of longer than a
year, leaving a claimant to have recourse to such a discretionary remedy is
inappropriate. It cannot justify limiting the scope of section 7(5)(a). The primary
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provision in 7(5)(a) must be capable of providing an effective and workable rule for
situations where the infringement arises from a course of conduct.
24. It is then necessary to consider whether the alleged infringement of
Convention rights in the present case arises from a course of conduct as opposed to
a single act.
25. On behalf of the appellant, Mr Anderson submits that where a barrister
complains that she was prosecuted for reasons which infringe her Convention rights,
she is not complaining about each of the individual steps which comprise the
prosecution but about the fact that the BSB prosecuted her, a state of affairs which
lasted until the prosecution came to an end. He also draws attention to section 6(6)
of the 1998 Act which provides that an act includes a failure to act. He submits that
the BSB had the power to decide at any moment after preferring the charges and
before the verdict of the Visitors that it would offer no evidence and, in certain
circumstances, a duty to offer no evidence. However, he accepts that the Court of
Appeal was correct to conclude that a failure to act does not arise in this case,
provided that it is accepted that the prosecution is a single continuous act.
26. On behalf of the BSB, Ms Padfield submits that the decision to refer the
appellant to a disciplinary tribunal, even if indirectly discriminatory, was a one-off
act with potentially continuing consequences rather than a continuing violation. She
submits that this is a case of alleged indirect discrimination and that any
unlawfulness does not automatically continue for as long as the prosecution
continues. She accepts that there is evidence of disproportionate impact in relation
to the decision to refer BME barristers to disciplinary tribunals but submits that there
is no evidence of disproportionate impact in relation to the continuation of
disciplinary prosecutions or the failure to bring them to an end.
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.
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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.
28. Lord Mance, by contrast, (at para 197), considered that each monthly order
and authorisation constituted for the purpose of section 7(5) a separate act in respect
of which separate one year limitation periods would run. If a period of segregation
has lasted for more than a year the claimant would be left to seek an extension of
time under section 7(5)(b). Lord Rodger of Earlsferry (at paras 145-146) preferred
to express no view on the point but considered Lord Mance’s approach at least
arguable. Lord Walker of Gestingthorpe (at para 167) did not expressly address the
point but said he agreed on all other issues with Lord Hope and Lord Rodger. Lord
Scott of Foscote (at para 81) observed that “act” includes “a failure to act”. In his
view it therefore followed that the one year beginning with the date on which the act
complained of took place should simply be calculated back from the date on which
the section 7(1)(a) proceedings were commenced.
29. I consider that the alleged infringement of Convention rights in the present
case arises from a single continuous course of conduct. Although disciplinary
proceedings brought by the BSB necessarily involve a series of steps, the essence of
the complaint made here is the initiation and pursuit of the proceedings to their
conclusion, ie the entirety of the course of conduct as opposed to any component
steps. As Lord Dyson MR observed in the Court of Appeal (at para 21) without
expressing a concluded view on this issue, prosecution is a single process in which
the prosecutor takes many steps. It cannot have been the intention of Parliament that
each step should be an “act” to which the one year limitation period should apply. I
also note in this regard that, were it otherwise, a prosecution which lasted longer
than one year could not be relied on in its entirety as a basis of complaint unless
proceedings were commenced before the conclusion of the disciplinary proceedings
or relief were granted under section 7(5)(b). A claimant would be placed in the
difficult position of having to bring a human rights claim within one year of the
commencement of what might be lengthy proceedings, without knowing the
outcome which might be very material to the claim.
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30. On the basis that we are concerned here with a single continuing act of alleged
incompatibility, I agree with Lord Hope in Somerville (at para 51) that time runs
from the date when the continuing act ceased, not when it began.
31. In view of my conclusion on this issue, it is not necessary to consider the
appellant’s alternative argument based on a failure to act. I would, however, suggest
that it may, in certain other circumstances, be necessary to guard against reliance on
a failure to reverse an out-of-time decision which would have the potential to subvert
the limitation scheme of the Act.
When did the continuing act cease?
32. On the basis that the conduct challenged in these proceedings is the single
continuing act of bringing and pursuing disciplinary proceedings against the
appellant, it is necessary to consider when that continuing act ceased.
33. In the Court of Appeal Lord Dyson MR, with whom the other members of
that court agreed, considered, at para 22, that the question for consideration here was
whether “opposing an appeal by a convicted defendant should be regarded as a
continuation of the prosecution”. His view was that it should not be so regarded. He
considered that a prosecution comes to an end with the verdict when the prosecution
has run its course. In opposing an appeal by a convicted defendant a prosecutor is
not continuing the prosecution but is seeking to uphold the decision of the court or
tribunal that has convicted the defendant. In his view, seeking to uphold a conviction
is a categorically different act from that of prosecuting.
34. It appears that throughout the current proceedings the disciplinary
proceedings brought by the BSB against the appellant have been described as a
“prosecution”. This is, perhaps, an understandable analogy but it is imprecise and
may tend to obscure the fact that the complaint is of discrimination in bringing
disciplinary proceedings not a criminal prosecution. There is a danger that this
characterisation may influence the outcome on the current issue. Whatever may be
the position in relation to an appeal against a criminal conviction, in considering
whether in the present case the BSB’s conduct in proceedings before the Visitors
should be considered as forming part of the same continuing act as its conduct in
proceedings before the Disciplinary Tribunal for the purpose of the rules on
limitation, it is necessary to have regard to the nature of the regulatory scheme and
the precise features of such conduct.
35. Several features of the regulatory scheme and the Visitors’ jurisdiction, as
applicable to the disciplinary proceedings against this appellant lead me to the
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conclusion that the BSB’s part in proceedings before the Disciplinary Tribunal and
those before the Visitors should be regarded for this purpose as part of a single
continuing act.
(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
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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.
36. These features, considered cumulatively, persuade me that the role of the
BSB in initiating and pursuing these proceedings before the Tribunal and before the
Visitors is essentially one continuing act. In these circumstances it is not necessary
to express any view as to whether the same conclusion should be drawn in relation
to an appeal against a criminal conviction.
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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.
39. I would therefore allow the appeal. I consider that the conduct of the BSB in
bringing and pursuing the disciplinary proceedings was, for the purposes of section
7(5)(a), a single continuing act which continued until the Visitors to the Inns of
Court allowed the appeal on 17 August 2012. The present proceedings against the
BSB, which were commenced on 21 February 2013, were therefore commenced
within a period of one year beginning with the date on which the act complained of
took place.
The respondent’s notice
40. By its Notice of Objection dated 12 January 2017 the BSB asks this court to
uphold the Court of Appeal’s decision on the alternative ground that Warby J was
wrong to hold that the article 14 claim had real prospects of success. In addition, it
seeks permission to adduce new evidence of fact to counter the conclusion of Warby
J on this point.
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.
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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.
42. Had this point been raised in isolation by BSB on an application for
permission to appeal to the Court of Appeal, it seems most unlikely that permission
would have been granted. It would have been a second appeal and it would not have
satisfied the second appeal criteria in that it does not raise an important point of
principle or practice and there is no other compelling reason why an appeal should
be heard (CPR 52.7 and 52.13). The point is now before this court only because BSB
took a limitation point which in my view should fail. It is adventitious that it is before
the court at all. Moreover, it cannot be said that the respondent’s notice raises a point
of law of general public importance. In these circumstances, it would certainly be
open to this court to decline to entertain the ground in the respondent’s notice.
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
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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, 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).
44. Finally, Ms Padfield seeks, by her application to adduce new evidence, to
produce a further report by the BSB’s research department dated January 2016 and
entitled “Complaints at the Bar: An Analysis of ethnicity and gender 2012-2014”,
in order to counter the 2013 report. I would refuse the application. It is not
appropriate for this court to address, for the first time in the course of these
proceedings, competing submissions of fact on a strike out application.
