Index for "Updates"
The applicant was representing a client in
administrative criminal proceedings for alleged
breaches of the Frozen Food Labelling Decree. In
written submissions prepared in those proceedings
the applic...
Accountancy & Actuarial Discipline Board:
Efficient and effective changes to Disciplinary
arrangements -- The Accountancy & Actuarial
Discipline Board ("AADB") is the independent,
investigative and di...
‘A moment's thought will suffice to
demonstrate that the mere fact of an acquittal in
criminal proceedings cannot be the be all and end
all of the matter for other purposes. Supposing,
for example, ...
The appellate jurisdiction of the court is
helpfully summarised by Foskett J in the case of
Sheill v The General Medical Council
[2008] EWHC 2967 (Admin) at paras 12-15.
In the case of Raschid v General Medical
Council
[2007] 1 WLR 1460 Laws LJ stressed that there
were two particular strands in the relevant
learning which needed to be taken into account. One
different...
Hearing an appeal from a judge of first
instance Lady Justice Arden said, ‘The judge held
that the court "naturally [paid] great respect to
the view of the evidence taken by the Interim
Orders Panel...
In Marinovitch v GMC , 24 June 2002, Lord Hope
giving the judgment of the board said:
--
"28. In the appellant's case the effect of the
committee's order is that his erasure is fo...
The procedure for the appointment of an
arbitrator exists at least in part for the
protection of the parties to the arbitration. A
departure from the procedure would render the award
a nullity: Sumuka...
Even assuming there has been an acquittal by a
criminal court, the double jeopardy rule has no
application save to other courts of competent
jurisdiction and there is therefore no bar to the
bringing ...
Bar Standards Board - the future of the Bar's
complaints and disciplinary processes -- The Bar
Standards Board was established in January 2006 as
a result of the Bar Council separating its
regulatory ...
Misuse of office can obviously bring disrepute
on the office, but personal misconduct will be
unlikely to do so. Per Collins J in Livingstone v
Adjudication Panel for England
[2006] EWHC 2533 (Admin)....
It has been held that the standard to be
expected of a doctor is ‘that applicable to the
post to which he was appointed and the work he was
carrying out.’ Holton v General Medical Council
[2006] E...
It has been said that there can be ‘no
reasonable objection to the Solicitor’s
Disciplinary Tribunal reading ( the judgment of a
Chancery Judge in a related matter ), provided it
was clear and rig...
The practice of taking a formal plea of guilty
is not inconsistent with Article 6 of the ECHR: X v
UK (Application no 5076/71). March 1972; Revitt,
Borg and Barnes v Director of Public Prosecutions
[2...
The comment of Moses LJ in Baxendale Walker v
The Law Society
[2006] EWHC 643 that, ‘Absent dishonesty or
lack of good faith a costs order should not be made
against a regulator unless there is good...
In Attorney General of Gibraltar v Shimidzu
(Andrew Ivan Berllaque, Intervenor)
(2005) 20 BHRC 223 the Privy Council expressed
the view that, 'The jurisprudence on the European
Convention lends no sup...
In the case of an interim order against a
doctor, Article 6 of the ECHR is not normally
engaged. All that is required is that the tribunal
acts speedily and on the basis of credible
evidence: R (on th...
The courts are increasingly stressing the
importance of tribunals considering all sanctions
before imposing a greater sanction. For example, a
finding of the Disciplinary Committee of the Royal
Colleg...
In an appeal against a statutory intervention
order made by the Law Society remarks were made
which would seem to have a wider application than
their particular context. -- The making of an
interventi...
The concept of “civil rights and obligations”
cannot be interpreted solely by reference to the
domestic law of the respondent State: Leela
Förderkreis E.V. and Others v. Germany [2009] 49
EHRR5.
‘The conduct of arbitrations is private. That
is implicit in the agreement to arbitrate. That
does not mean that the arbitration is private for
all purposes. Prior to the modern arbitration
legislat...
The proper approach to the award of costs for
proceedings before the Disciplinary Committee of
the Royal College of Veterinary Surgeons and other
professional bodies was summarised by the Judicial
Com...
There could be no general rule that the
tribunal should not impose an order for costs in
addition to an order for the suspension of a
solicitor. Whether or not an order for costs, in
addition to a sus...
‘…(W)here an apparently sensible appeal
structure has been put in place, the court is
entitled to approach the matter on the basis that
the parties should have been taken have agreed to
accept wha...
Exemptions -- In addition to the general data
exemption provisions of section 31 of the Data
Protection Act the following exemptions relevant to
this work have been added by statute: -- (4B)
Personal ...
On 24 October 2007 the
Data Protection Act 1998 was amended in many
important respects by the
Data Protection Act 2003.
It follows from the reasoning of the
Strasbourg Court in A and others
(2009) 49 EHRR 29, as interpreted by the House
of Lords in AF (No 3) [2009] 3WLR74 that [a
claimant] in civil proceedings attracti...
‘One of the elements of the broader concept of
a fair trial is the principle of equality of arms,
which requires each party to be given a reasonable
opportunity to present his or her case under
cond...
LUKE MIGGIN (A MINOR, SUING BY HIS MOTHER AND
NEXT FRIEND EMILY MIGGIN) -- v. -- HEALTH SERVICE
EXECUTIVE AND MICHAEL GANNON [2010] IEHC 169 --
HIGH COURT OF IRELAND -- 1. This case concerns an
appeal...
The decision of the Court of Appeal in
Bultitude (Bultitude v Law Society
[2004] EWCA Civ 1853) stands as binding
authority that the test to be applied in the
context of solicitors' disciplinary proce...
In the fifth edition of our book, Disciplinary
and Regulatory Proceedings we offered the comment
that, ‘It is somewhat difficult for an English
lawyer to comprehend that the outcome of
proceedings c...
The absence of any common law double jeopardy
rule in professional misconduct proceedings was
specifically noted in the case of R v Statutory
Committee of the Pharmaceutical Society of Great
Britain [...
Where the issues in a civil action overlap to
a significant degree with those in disciplinary
proceedings (in this case a finding of dishonesty)
and it would be expensive and time-consuming to
require...
In Coke-Wallis v Institute of Chartered
Accountants In England and Wales
[2009] EWCA Civ 730 it was held that the rule
in Henderson v Henderson did not prevent a
disciplinary tribunal from bringing di...
In Peric v Croatia [2008] ECHR 239 the
European Court of Human Rights said, "The Court
reiterates that while Article 6 of the Convention
guarantees the right to a fair hearing, it does not
lay down a...
The Social Security Commissioner has given the
following guidance on how the evidence of an
approved disability analyst should be assessed. --
1. In so far as the advice consists of an
explanation, it...
The fact that a witness who gives an opinion
has not examined, or even seen, the claimant does
not render the evidence inadmissible. It is,
though, relevant to the value that the tribunal may
give to ...
In the case of Swanney v Full Decision of the
General Medical Council's Fitness to Practice Panel
[2008] ScotCS CSIH_35 it was held that: -- Section
36(1)(b) of the
Medical Act 1983 (which deals with ...
"It must be highly relevant in determining if
a doctor's fitness to practice is impaired that
first his or her conduct which led to the charge is
easily remediable, second that it has been remedied
an...
Elias LJ has summarized the law concerning
fitness to practise as follows: -- (1) Misconduct
is of two principal kinds. First, it may involve
sufficiently serious misconduct in the exercise of
profess...
‘(I)t must behove a FTP Panel to consider
facts material to the practitioner's fitness to
practice looking forward and for that purpose to
take into account evidence as to his present skills
or lack...
The scope of the right to freedom of
expression under Article 10 of the European
Convention were comprehensively reviewed by the
European Court of Human Rights in the case of Kulis
v Poland - 15601/02...
Advice on the interaction of the Freedom of
Information and the Data Protection laws was given
in the House of Lords in a Scottish context. It was
said that, -- ‘There is much force in Lord
Marnoch'...
In this case the Court of Appeal upheld a
decision of Silber J. dismissing the appeal on the
ground of fresh evidence of a radiographer, against
the decision of a panel of the Conduct and
Competence C...
R v Rollins [2010] UKSC 39– CASE NOTE -- This
important decision of the Supreme Court
substantially extends the prosecutorial powers of
the FSA – and possibly other regulators. -- Mr Neil
Rollins,...
Rashid v. General Medical Council, Fatani v.
GMC
(2007) 1 WLR 1460 -- 4. These two appeals from
the GMC Fitness to Practice Panel reaffirmed the
principal purpose of the Panel namely the
preservation ...
REMEDY UK LIMITED, R (ON THE APPLICATION OF)
v. GENERAL MEDICAL COUNCIL
[2010] EWHC 1245 (ADMIN) 28TH MAY 2010 -- 1.
This case restates and clarifies (i) the role of
the Registrar in his function to r...
The approach of the High Court to reviewing
sanctions imposed by the Fitness to Practice Panel
of the GMC were summarized by Laws LJ (with whom
Chadwick LJ and Sir Peter Gibson agreed), in the
case of...
Article 6 (3)(d) is an aspect of the right to
fair trial guaranteed by Article 6 (1), which, in
principle, requires that all evidence must be
produced in the presence of the accused in a public
hearin...
A power to admit hearsay evidence in
disciplinary proceedings is not necessarily
incompatible with The European Convention on Human
Rights. -- Article 6(3) of the Convention provides
that ‘everyone ...
Article 6 requires a tribunal falling within
its scope to be impartial. Impartiality normally
denotes absence of prejudice or bias and its
existence or otherwise can be tested in various
ways. The Cou...
The existence of impartiality for the purposes
of Article 6§1 of the European Convention of Human
Rights must be determined according to a subjective
test, that is on the basis of the personal
convic...
In the case of SP v Secretary of State for
Justice
[2009] EWHC 13 (Admin) Pitchford J held that an
examination of the independence of a person engaged
to conduct an investigation under Article 2 of
th...
IN THE COURT OF APPEAL -- CRIMINAL DIVISION --
23RD JUNE 2009 -- R. v. McQUOID -- 1. The Court of
Appeal have issued core sentencing guidelines for
insider dealing cases and commented upon the policy
...
In deciding to cancel a referral to the
Fitness to Practise committee of the General
Medical Council of charges against a doctor the
Council did not act unfairly in failing to notify
the Singapore Med...
Article 6 in its civil “limb” applies only to
proceedings determining civil rights or
obligations. Not all interim measures determine
such rights and obligations and the applicability
of Article 6...
General Medical Council v. Hiew
[2007] 1 WLR 2007 -- 1. This case before the
Court of Appeal considered the criteria for the
exercise of the powers to extend interim suspension
order made by the GMC�...
As the case of Michel v. The Queen (The Court
of Appeal of Jersey)
[2009] UKPC 41 demonstrates, even a legally
qualified judge can sometimes be tempted to misuse
his position by appearing to act as a ...
As to the sufficiency of judicial review to
correct a non-conformable decision at first
instance, the case of Bryan v The United Kingdom
(1995) 21 EHRR 342 was distinguished in the
case of Tsfayo v. t...
The existence of a contractual relationship is
not inconsistent with judicial review. Per Stanley
Burnton J in Mullins, R (on the application of) v
The Jockey Club
[2005] EWHC 2197 (Admin). Local auth...
The role of the Justices’ Clerk in the
magistrates’ courts is now dealt with in the
Consolidated Criminal Practice Direction as
follows: -- (V.55.3) -- It shall be the
responsibility of the legal ...
In R (Campbell) v GMC [2005] EWCA Civ. 250 the
Court of Appeal affirmed Lord Hailsham's
propositions in Libman v GMC
[1972] AC 217 as governing the approach that
any court should adopt to the role of ...
The requirements of a fair trial are not
necessarily infringed if the legal assessor retires
with the tribunal; but the parties must be given an
opportunity to make representations on the advice
given...
Where the effect of disciplinary proceedings
can deprive an employee of the right to practise
his or her profession, article 6 of the Human
Rights Convention is engaged. If follows that he is
entitled...
A new statutory structure for certain
statutory tribunals was created by Part I of the
Tribunals,
Courts and Enforcement Act 2007. It provides a
unified structure for tribunals and recognised
legally ...
‘Medical confidentiality is not an absolute
right, but necessarily involves a balancing of
competing public interests. The public interest in
patient safety and welfare is an extremely
important con...
'... the same underlying principles (of
suitability for membership) apply to conduct both
pre-admission and post-admission. It would be
irrational to hold that a different test applies
where matters c...
As to the meaning of misconduct and deficient
professional performance, Jackson J addressed some
aspects of these concepts in Calhaem v General
Medical Council
[2007] EWHC 2606 (Admin); [2008] LS Law ...
After reviewing the authorities, Jackson J.
summarized the law as follows: -- (1) Mere
negligence does not constitute "misconduct" within
the meaning of section 35C(2)(a) of the
Medical Act 1983. Neve...
The continuing importance of the Ladd v
Marshall [1954] 1 WLR at 1489 principles and the
overriding objective of the CPR were stressed by
Silber J in the case of Muscat v Health Professions
Council [2...
The statutory power of a registration
authority (now contained in the
Care Standards Act 2000) to seek an order of
cancellation of the registration of a nursing home
is designed to protect residents a...
Under
the Higher Education Act 2004 the Office of the
Independent Adjudicator for Higher Education (OIA)
has been designated the body responsible for
dealing with student complaints. The purpose of
th...
By virtue of the
Financial Services and Markets Act 2000,
section 225 the Financial Ombudsman Service
provides a service "under which … disputes may be
resolved quickly and with minimum formality". ...
‘… the rules require the parties at one and
the same stage in the proceedings to address the
question, and if appropriate call evidence to
enable the Committee to decide whether the level of
culpa...
R (on the application of Wright and others) v
Secretary of State for Health and another
[2007] EWCA Civ 99;
[2008] 1 All ER 886 CA -- The
Care Standards Act 2000 introduced a list for
the protection o...
A power to do all such things as it may
consider are conducive to securing the objectives
of the accountants’ Joint Disciplinary Scheme was
held to include a power in the Executive Committee
to issu...
In the case of L v The Law Society
[2008] EWCA Civ 811 it was held that: The
existence of prior convictions, either spent or
unspent, is not of itself sufficient to amount to
an exceptional circumstan...
There has been a recent decision of the
Information Commissioner which impacts on the
ability of the FSA and other regulators to resolve
regulatory issues privately without the need to
follow a public...
An important decision of the Information
Commissioner will potentially affect the practice
of many disciplinary and regulatory bodies. -- A
complainant requested the Financial Services
Authority (FSA)...
The purpose of section 7 of the Data
Protection Act is to make the processing of
personal data transparent, per Laddie J in Johnson
v The Medical Defence Union Ltd
[2004] EWHC 2509 (Ch).
Professional incompetence -- ‘The (
Architects
Act 1997) distinguishes between serious
professional incompetence and unacceptable
professional conduct. However, as must be obvious,
there is a conside...
The Code of Ethics and Professional Conduct --
of the Project Management Institute can be found
at: --
http://www.pmi.org/info/AP_PMICodeofEthics.pdf
The European doctrine of proportionality means
that, ‘an official measure must not have any
greater effect on private interests than is
necessary for the attainment of its objective’:
Konninlijke ...
Held: a prosecuting authority’s immunity from
a costs award made against it may violate Article
6(1) where it puts a party to civil proceedings at
an undue disadvantage vis-à-vis the prosecuting
au...
The House of Lords has held (reversing partly
the decision of the Court of Appeal in R (on the
application of Wright and others) v Secretary of
State for Health and another
[2007] EWCA Civ 99; [2008] ...
Psychiatric hospitals when exercising their
powers of compulsory detention under the
Mental Health Act 1983 are public authorities
under the Human Rights Act: R (A) v Partnerships in
Care Ltd [2002] E...
The Society of Lloyds is not a public
authority for the purposes of section 6 of the
Human Rights Act 1998: Doll-Steinberg v Society
of Lloyd’s
[2002] EWHC 419 (Admin).
Section 6 of the
Human Rights Act 1998 is intended to give
effective domestic protection to convention rights
as defined in and scheduled to the 1998 Act. It is
accordingly appropriate to give a gener...
The Institute of Chartered Accountants in
England & Wales (ICAEW) agreed that its
disciplinary hearings will be conducted in public
from 1 January 2008. -- The move to open hearings
will affect all ca...
Held: the principle of an oral and public
hearing was particularly important in the criminal
context. The obligation to hold a hearing was not,
however, absolute. There could be proceedings in
which a...
The defence of qualified privilege … is still
in the process of development: Seaga v. Harper
(Jamaica)
[2008] UKPC 9, in which it was said that the
decision in Reynolds v. Times Newspapers Ltd and
O...
‘… in straightforward cases, setting out the
facts to be proved (as is the present practice of
the GMC) and finding them proved or not proved will
generally be sufficient both to demonstrate to
th...
THE REGULATORY ENFORCEMENT AND SANCTIONS ACT
2008 – SUMMARY OF PROVISIONS -- 1. The
Regulatory Enforcement and Sanctions Act 2008
is designed to provide more consistent enforcement
of regulations ac...
Regulatory conditions are imposed under
sections 9 to 18 of the 1974 Act where they are
necessary in the interests of the public and the
reputation of the profession. They must not only be
necessary b...
An osteopath found guilty of found guilty of
unacceptable professional conduct could not
complain when the tribunal in arriving at its order
took into account his admission that he had treated
the pat...
For an instance of the retrospective
application of disciplinary proceedings to events
which came to light only after registration see the
case of Lewis, R (On The Application Of) v
Prosthetists & Ort...
Held: a statute of 1994 which laid down a
stricter punishment for those convicted of a
serious offence that had a previous conviction for
a serious offence (even one committed prior to
1994) did not o...
Guidance on the imposition of sanctions on
solicitors was recently given by the High Court. --
‘In Nahal v The Law Society
[2003] EWHC 2186 Admin, Dyson LJ considered the
effect of the Human Rights ...
The approach to appeals under Section 29 of
the
National Health Service Reform and Health Care
Professions Act 2002 was laid down by the Court
of Appeal in the case of Ruscillo v The Council for
the R...
Lord Justrice Clark in the Scottish Court of
Session gave the following helpful summary of the
meaning of the terms, ‘misconduct’ and ‘serious
professional misconduct’ in the case of Mallon v
...
SRA OUTCOMES FOCUSED REGULATION - TRANSFORMING
THE SRA’S REGULATION OF LEGAL SERVICES -- 1. In a
recent announcement (30th April 2010) the SRA
notified an intention of consulting on the
transformati...
The
Solicitors (Disciplinary Proceedings) Rules
2007 came into force on 14 January 2008.
"I think that the courts must be slow to
allow an implied obligation to be fair to be used
as a means of bringing before the court for review
honest decisions of bodies exercising jurisdiction
over...
The law has drawn a clear distinction between
probability as it applies to past facts and
probability as it applies to future predictions.
Past facts must be proved to have happened on the
balance of ...
'I cannot see any reason why, in these
circumstances, a breach of the Rules, a failure by
the Council to observe the Rules, which it has
publicly proclaimed as the basis upon which it, a
public body, ...
"Where the plaintiff belongs to a class which
either is or ought to be within the contemplation
of the defendant and the defendant by reason of his
involvement in an activity which gives him a
measure...
In the case of Napier & Anor v Pressdram
Ltd
[2009] EWCA Civ 443 the Court of Appeal
dismissed an appeal against a refusal to grant an
injunction preventing Private Eye from publishing
information con...
The following comments of Sales J in the case
of Yeong v General Medical Council
[2009] EWHC 1923 (Admin) helpfully clarify the
change in approach of the new legislation. -- ‘The
regime based on imp...
The Privy Council laid down the proper
approach to appeals from medical practitioners in
as follows: -- ‘(Veterinary) practitioners have a
statutory right of appeal to the Board under
section 40 of ...
The European Convention on Human Rights would
not appear to require any degree of independence on
the part of the prosecutor: Haase, R (on the
application of) v Independent Adjudicator & Ors
[2007] EW...
Held: one of the elements of a fair hearing in
criminal proceedings was the right to adversarial
proceedings. Each party had to have the opportunity
not only to make known any evidence needed for his
...
It is suggested that the following dictum of
Treacy J in Robinson v Abergavenny Magistrates'
Court
[2007] EWHC 2005 (Admin) should be regarded as
of equal application to disciplinary proceedings,
exce...
ROLLINS, R. v. [2009] EWCA CRIM. 1941 -- CASE
NOTE -- 1. The Court of Appeal has held that the
FSA are able to bring private prosecutions under
the
Proceeds of Crime Act 2002 (POCA). -- 2. Two
Defenda...
The European Court of Human Rights held that a
judge of the Moscow City Court had been wrongly
dismissed from office by the High Judiciary
Qualification Panel when she publicly criticized
the impartia...
The following statement was approved by Burton
J in Woods v GMC [2002] EWHC 1484: ‘In conduct
cases the PPC's task is to decide whether, in its
opinion, there is a real prospect of serious
professio...
‘I appreciate that the Guidance is just that -
guidance, not a list of mandatory requirements, but
it will almost invariably be the appropriate
starting point from which a departure may, or may
not ...
In the case of Twinsectra Ltd v Yardley
[2002] 2 AC 164 Lord Hutton said that ‘(Their)
Lordships should state that dishonesty requires
knowledge by the defendant that what he was doing
would be rega...
Sir Thomas Bingham’s approach to the use of
sanctions has been applied in relation to other
professions (see Tait v. The Royal College of
Veterinary Surgeons
[2003] UKPC 34; Archbold v. The Royal Co...
So far as the Convention right to a fair and
public hearing within a reasonable time is
concerned, the reasonableness of the length of
proceedings is to be assessed in the light of the
particular circ...
The EctHR has held that the object of the term
“established by law” in Article 6 of the Convention
is to ensure “that the judicial organisation in a
democratic society does not depend on the dis...
Tribunals should beware of giving unnecessary
advice or rulings. In the case of Office of
Communications T-Mobile (UK) Ltd v Floe Telecom Ltd
[2009] EWCA Civ 47 Mummery LJ observed: --
‘Specialist t...
There is nothing in Article 6 of the ECHR to
prevent a continuation of delayed proceedings, even
if they have not been concluded within a reasonable
time, so long as the fairness of the trial has not
...
‘In my judgment, duplicity is not a basis for
interfering with a disciplinary finding ...,
although of course it may be relevant to the
fairness of the proceedings and to the ultimate
penalty if cha...
A new regulatory body called The Complementary
and Natural Healthcare Council is due to launch in
April 2008. -- For information contact Natasha
Finlayson, Communications Director, The Prince’s
Foun...
As Stanley Burnton J. Observed in the case of
Land & Ors, R (on the application of) v
Executive Counsel of the Joint Disciplinary Scheme
[2002] EWHC 2086 (Admin): -- ‘The Divisional
Court in R v Cha...
‘(I)n each of the instances identified in the
six subsections (of section 43B(1) of the
Employment Rights Act 1996, as inserted), the
whistle-blower has to establish a reasonable belief
that the inf...
‘The exception to the rule governing without
prejudice communications has at its heart an abuse
of a privileged occasion. Moreover, it is an
exemption which will rarely be found to be
applicable. Th...
