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Disciplinary and Regulatory Proceedings is the leading work on this important and dynamic area of law. For 20 years it has provided authoritative guidance to lawyers, tribunals, and other experts dealing with professional discipline and regulation.

Does the application of Article 6 depend on the outcome the proceedings or the power of tribunals

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].’

 

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