The composition of disciplinary tribunals
A recent decision of the Court of Appeal is of considerable significance as to the composition of professional disciplinary tribunals.
In the case of Kaur, R (on the application of) v Institute of Legal Executives Appeal Tribunal & Anor  EWCA Civ 1168 a student member of the Institute of Legal Executives (ILEX) had been found guilty by ILEX's Appeal Tribunal ("IAT") of cheating at an examination and excluded from the Institute for a period of years. She appealed to the court on the ground that an ILEX council member and director of ILEX on the Disciplinary Tribunal and of the council's vice-president on the IAT was in breach of the doctrines that no one may be a judge in his own cause and/or of apparent bias, requiring those decisions to be quashed.
Rix LJ, giving the judgment of the Court held that ‘it may be possible to see the two doctrines which remain in play in this appeal [ie the doctrines in Pinochet No 2 and Porter v. Magill] as two strands of a single over-arching requirement: that judges should not sit or should face recusal or disqualification where there is a real possibility on the objective appearances of things, assessed by the fair-minded and informed observer (a role which ultimately, when these matters are challenged, is performed by the court), that the tribunal could be biased. On that basis the two doctrines might be analytically reconciled by regarding the "automatic disqualification" test as dealing with cases where the personal interest of the judge concerned, if judged sufficient on the basis of appearances to raise the real possibility of preventing the judge bringing an objective judgment to bear, is deemed to raise a case of apparent bias.’
Applying that test the Court held that ‘the vice-president of ILEX, was disqualified by her leading role in ILEX, and thus her inevitable interest in ILEX's policy of disciplinary regulation, from sitting on a disciplinary or appeal tribunal.’ As a result the Court found it unnecessary to decide whether the same conclusion would apply to all council members and directors of ILEX. On the other hand Rix LJ went on, ‘Members who are not elected to council and do not seek or achieve that status are simply not concerned, as council members are, with the governance of ILEX and with the achievement of its objects.’
The decision in Kaur must now be considered in light of the Privy Council ruling in Holmes v Royal College of Veterinary Surgeons  UKPC 48. The two are not necessarily incompatible. Holmes concerned a statutory body which had taken all the steps it could short of fresh litigation to avoid an appearance of bias, whereas Kaur involved the vice president of a chartered body who could be said to have had an interest in the outcome of disciplinary proceedings.
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