Does the application of Article 6 depend on the outcome the proceedings or the powers of the tribunal?
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 can influence the availability of human rights.’ (Footnote 75, para 2.42.) Support for this view was expressed by Stanley Burnton J in the case of Threlfall v General Optical Council [2004] EWHC 2683 (Admin), where he said:
‘The authorities establish that the decision by a
disciplinary tribunal to suspend or to disqualify
a professional person is a determination of his
civil rights and obligations within the meaning
of Article 6.1: see Albert and le Compte v
Belgium
(1983) 5 EHRR 533. On the other hand, there
are authorities which establish that the decision
of a disciplinary tribunal to admonish a
professional person is not such a determination,
and suggest that Article 6 did not apply to the
tribunal's proceedings, even if the tribunal had
power to suspend all to disqualify him: see,
e.g., X v United Kingdom
(1983) 6 EHRR 583 (a decision of the
Commission). However, it seems to me to be
obvious that the applicability of Article 6 must
be determined on the basis of the jurisdiction
and powers of the tribunal rather than its
ultimate decision. The adjectival law applicable
to its proceedings must be determined before the
proceedings begin rather than after they have
been completed. Thus the question whether a
person subject to disciplinary proceedings is
entitled to a "fair and public hearing … by an
independent and impartial tribunal" must be
determined before the hearing and before its
result is known. In Tehrani v United Kingdom
Central Council for Nursing, Midwifery &
Health Visiting
[2001] IRLR 208, Lord Mackay of Drumadoon, in
the Court of Session, said, in proceedings in
which judicial review was sought of disciplinary
proceedings before a hearing had taken place, at
[33]:
"What remains in dispute, however, is whether the
disciplinary proceedings initiated against the
petitioner could lead to a 'determination of her
civil rights and obligations' within the meaning
of Article 6(1). I use the word 'could'
advisedly. In my opinion, for the purposes of the
present proceedings it is not necessary for the
petitioner to establish that, whatever their
outcome, the disciplinary proceedings will result
in a determination of her civil rights and
obligations. In my opinion, if the petitioner can
establish that the disciplinary proceedings could
result in a finding that would constitute a
determination of her civil rights and
obligations, the decision to initiate those
disciplinary proceedings is open to challenge as
being incompatible with the petitioner's
Convention rights."
That passage was cited with approval by the Court
of Appeal in R (Wayne Thompson) v the Law
Society
[2004] EWCA Civ 167, at [83].’
Categories: 5th Edition, Chapter 2, Updates