The constantly evolving world of professional regulation has again seen clarification from the courts with regard to the issues of delay, proceeding in the absence of a Respondent and perceived bias. In this article we examine recent judicial decisions and their implications for regulators and Respondents alike.


Article 6 and Delay
What is the effect of delay in bringing proceedings which may infringe the Article 6 right to a determination of civil rights and obligations within a "reasonable time" ? The position in Scotland and England had been confused by differing opinions of the Privy Council (R v HMA) and the House of Lords (Attorney General's Reference (No. 2 of 2001)). The consequence of these decisions was that, in Scotland, this delay resulted in the proceedings against an accused being brought to an end as a fair trial was not possible, there having been an unreasonable delay. In England, however, proceedings could continue where the delay ceased and all reasonable steps were taken to ensure an expeditious resolution of the matter.

In Speirs v Ruddy, the Privy Council had the opportunity to reconsider its decision in R and came to the view that the position in Scotland and England should be the same. As a consequence, proceedings must only come to an end if a fair trial cannot be held as a result of the delay. If it is still possible to try a Defendant fairly, notwithstanding the delay, proceedings will be allowed to continue. Although these cases are set in a criminal context, the principle would be equally applicable in a civil context.

This is a welcome decision in that the disparity in the law of England and Scotland has been resolved, with the Privy Council adopting a pragmatic resolution to the position. As a consequence, the Respondent will face an uphill struggle in attempting to argue prejudice due to perceived delay, when ultimately, despite the delay, a fair trial is still possible.

Article 6 and an absent Respondent
In Vaidya v GMC, the High Court was satisfied that a General Medical Council panel had been entitled to refuse an application for an adjournment where the Respondent was absent from the Hearing. The Court was satisfied that there was no breach of Article 6 of the European Convention on Human Rights, or any unfairness to the Respondent, as he had had an opportunity to attend and put forward a defence but had chosen not to exercise that right.

This decision is also welcome confirmation that a Respondent cannot frustrate disciplinary proceedings by not co-operating or attending Hearings. Where they have been given an opportunity to participate and do not exercise that opportunity, the Tribunal or body can proceed without fear of falling foul of Article 6. This decision can only be of assistance to Regulators in attempting to carry out their regulatory and disciplinary functions in the public interest.

Conduct of the decision maker
Judges and tribunal members have been reminded by the courts of the importance of their conduct during Hearings and of acting in a manner which could not give rise to any impression of favouring one party. The test by which judicial bias is tested is that of the "fair minded and informed observer". In EI Farargy v El Farargy the Court of Appeal was not impressed by remarks made by the Judge which were intended as jokes, which it considered to be mocking and disparaging. It found the Judge was wrong not to recuse himself having made the remarks and while the Court or tribunal may engage in proceedings and ask questions of the witnesses, it must not engage in hostile cross-examination which could give the impression of bias or at least a predisposition against a witness or party. As the Court of Appeal remarked in Amjad v Steadman-Byrne, the Judge must not give the impression of having formed "a firm view in favour of one side's credibility".

However, as the Court of Appeal remarked in Mortgage Credit Ltd v Kalli , even if the Judge had "descended into the arena" in an inappropriate manner and appeared hostile to one party, an appeal will not succeed if it was inevitable that that decision would be reached notwithstanding the Judge's intervention.

A note of caution to those who have concerns about the conduct of a tribunal or Judge: the time to raise concerns is when you have them, not once a decision has been made. "Appellate and reviewing Courts tend not to look favourably on complaints of perceived bias made only after the complainant has taken his chance or the outcome is found unwelcome" (Amjad v Steadman-Byrne).

The organic nature of judicial decisions in this area means that the law is constantly changing. If you have any queries in relation to these cases, or disciplinary and regulatory proceedings in general, please do not hesitate to contact Paul Reid. 

11 June 2008

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