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You are here: BAILII >> Databases >> English and Welsh Courts - Miscellaneous >> P (A Barrister) V General Council of the Bar [2005] EW Misc B1 (InnsC) (24 Janurary 2005) URL: http://www.bailii.org/ew/cases/Misc/2005/B1.html Cite as: [2005] WLR 3019, [2005] 1 WLR 3019, [2005] EW Misc B1 (InnsC), [2005] EW Misc B1 |
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ON APPEAL FROM THE ORDER OF THE DISCIPLINARY
TRIBUNAL OF THE COUNCIL OF THE INNS OF COURT
Strand, London, WC2A 2LL |
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B e f o r e :
Ms Julia Clark
Ms Sara Nathan
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| P, A Barrister | Appellant | |
| - and - | ||
| The General Council of the Bar | Respondent |
Decision of the Visitors of the Inns of Court
____________________
Mr M McLaren QC and Mr O Del Fabbro for the Respondent
Date of hearing: 19 November 2004 and 16 December 2004
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Crown Copyright ©
Mr Justice Colman, Ms J Clark and Ms S Nathan:
Introduction
"10(1) When a petition is served upon him (whether or not served in time), the Lord Chief Justice shall nominate the persons who are to hear the appeal.
(2) An appeal against an order for disbarment or a decision of a tribunal presided over by a Judge of the High Court shall be heard by a panel comprised of:
(a) three judges of the High Court or the Court of Appeal (one of whom may be a retired judge of the High Court or Court of Appeal, provided that he has not attained the age of 75 on the date set for the hearing of the appeal);
(b) a Queen's Counsel; and
(c) a lay representative;
(3) Subject to paragraph (4), an appeal that is not of a type mentioned in paragraph (2) and is an appeal against a decision of a Disciplinary Tribunal shall be heard by a panel comprised of:
(a) a Judge of the High Court or the Court of Appeal
(b) a barrister; and
(c) a lay representative.
(4) An appeal that is not of a type mentioned in paragraph (2) and that is an appeal against a decision of a Disciplinary Tribunal may be heard by a Judge of the High Court or of the Court of Appeal sitting alone, if the Lord Chief Justice or the Directions Judge directs that the appeal relates solely to a point of law and is appropriate to be heard by a judge sitting alone.
(5) Any other appeal shall be heard by a Judge of the High Court or the Court of Appeal.
(6) No judge or barrister member of the panel shall be a Bencher of the appellant's or defendant's (as the case may be) Inn."
4. " ..one of the lay persons appointed by the Bar Council to serve on Disciplinary Tribunals;"
The Bar Council's Disciplinary Structure
"The powers of the Committee shall be as follows:
(a) to determine whether any complaint discloses a prima facie case of professional misconduct, and if so to deal with it in accordance with these Rules.
(b) if it determines that no such prima facie case is disclosed, to determine whether the complaint discloses a prima facie case of inadequate professional service by the barrister concerned and if so to deal with it in accordance with these Rules.
(c) to prefer charges of professional misconduct before the Disciplinary Tribunals (as provided by the Disciplinary Tribunals Regulations at Annex K to the Code of Conduct), to refer to such tribunals any legal aid complaint relating to the conduct of a barrister and to be responsible for prosecuting any such charges or legal aid complaints before such Tribunals. to prefer and deal summarily with charges of professional misconduct in accordance with the Summary Procedure Rules forming Annex L to the Code of Conduct.
(d) to take such other actions in relation to complaints as are permitted by these Rules.
(e) to make recommendations on matters of professional conduct to the Professional Standards Committee, as the Committee may think appropriate.
(f) to make rulings on matters of professional conduct when the Committee considers it appropriate to do so."
thereof referred to it by the Commissioner pursuant to paragraph 7 above, together with the Commissioner's comments thereon, in such manner as it shall see fit.
28. Upon considering any complaint and subject to the provisions of paragraph 28A below, the Committee may:
(a) dismiss the complaint provided that each of the Lay Members present at the meeting consents to such dismissal, whereupon the Secretary shall notify the complainant and the barrister complained against of the dismissal and reasons for it.
(b) determine that no further action shall be taken on the complaint.
(c) at any time postpone consideration of the complaint, whether to permit further investigation of the complaint to be made, or during the currency of related legal proceedings or for any other reason it sees fit,
(d) if the complaint does not disclose a prima facie case of professional misconduct (whether with or without inadequate professional service) but the barrister's conduct is nevertheless such as to give cause for concern, draw it to his attention in writing. The Committee may in those circumstances advise him as to his future conduct either in writing or by directing him to attend on the Chairman of the Committee or some other person nominated by the Committee to receive such advice, and may thereafter exercise the powers given to it by paragraph (e) below, or dismiss the complaint. If the Committee considers that the circumstances of the complaint are relevant to the barrister's position as a pupilmaster, it may notify the barrister's Inn of its concern in such manner as it sees fit.
If the complaint is dismissed the Secretary shall notify the complainant of the dismissal and the reasons for it.
(g) if a prima facie case of professional misconduct (whether with or without inadequate professional service) is disclosed but in the opinion of the Committee there are no disputes of fact which cannot fairly be resolved by a summary procedure, provided it is satisfied that the powers of a summary procedure are adequate to deal with the gravity of the issues, deal with the matter summarily in accordance with the Summary Procedure Rules (Annex L to the Code of Conduct).
if a prima facie case of professional misconduct (whether with or without inadequate professional service) is disclosed in circumstances where in the opinion of the Committee paragraph (g) above does not apply, direct that the complaint should form the subject-matter of a charge before a Disciplinary Tribunal."
"Lay member representation at meetings of the Professional Standards Committee and the Professional Conduct and Complaints Committee shall be at least two lay members for each Committee. These lay representatives shall be selected from among the lay members from time to time attached to the Professional Standards and Legal Services Department, who shall, subject to the approval of the Chairman of the Professional Conduct and Complaints Committee and the Chairman of the Bar Council, be appointed by the Complaints Commissioner. The selection of lay members who are invited to attend a meeting of the Professional Standards Committee or the Professional Conduct and Complaints Committee shall be made by the Chairman (or in his absence the Vice-Chairman) of the committee."
Appointment is for an initial term of three years, renewable for a further three years.
"They are encouraged to visit Chambers, and 'attach' themselves to a barrister for a day. I make it abundantly clear to them that, while they must invariably keep the complainant in the forefront of their mind, they are also there to be fair to the accused barrister. I stress to them that they must be utterly even handed, reject any inclination to bias and see themselves as tennis umpires, essentially bringing a commonsense, down to earth, lay perspective on the, sometimes, arcane reaches of the law and lawyers' practice."
It includes a very wide range of disciplines, including the diplomatic service, the energy industry, academia, journalism, the NHS and financial services.
"Although the Standing Orders indicate that attendance of lay representatives should be decided by the Committee Chairman, in practice, this decision has been delegated by the Chairman to the Complaints Commissioner. Arrangements for attendance at individual meetings of the PCC are co-ordinated annually by the latter's Personal Assistant. She sends out a list of meeting dates to lay representatives and invites them to indicate their availability. She then assigns them to particular dates with the aim of ensuring that all members attend an equal number of meetings."
"no barrister or Lay Representative shall be nominated to serve on a Tribunal which is to consider a charge arising in respect of any matter considered at any meeting of the PCC which he attended."
"We, the Judges of Her Majesty's High Court of Justice, in the exercise of our powers as Visitors to the Inns of Court, hereby make the following rules for the purpose of appeals to the Visitors from Disciplinary Tribunals of the Council of the Inns of Court and certain other appeals to the Visitors."
The Parties' Submissions as to Bias
"6.1 In the determination of his civil rights and obligations or of any criminal charge against him everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
"The court recalls that in order to establish whether a tribunal can be considered as 'independent', regard must be had inter alia to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence.
As to the question of 'impartiality', there are two aspects of this requirement. First, the tribunal must be subjectively free from personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect.
The concepts of independence and objective impartiality are closely linked ."
and then observed:
"In both cases the concept requires not only that the tribunal must be truly independent and free from actual bias, proof of which is likely to be very difficult, but also that it must not appear in the objective sense to lack these essential qualities."
"In my opinion however it is now possible to set this debate to rest. The Court of Appeal took the opportunity in In re Medicaments and Related Classes of Goods (No.2) [2001] 1 WLR 700 to reconsider the whole question. Lord Phillips of Worth Matravers MR, giving the judgment of the court, observed, at p711A-B, that the precise test to be applied when determining whether a decision should be set aside on account of bias had given rise to difficulty, reflected in judicial decisions that had appeared in conflict, and that the attempt to resolve that conflict in R v. Gough had not commanded universal approval. At p711B-C he said that, as the alternative test had been thought to be more closely in line with Strasbourg jurisprudence which since 2 October 2000 the English courts were required to take into account, the occasion should now be taken to review R v. Gough to see whether the test it lays down is, indeed, in conflict with Strasbourg jurisprudence. Having conducted that review he summarized the court's conclusions, at pp726- 727:
'85. When the Strasbourg jurisprudence is taken into account, we believe that a modest adjustment of the test in R v. Gough is called for, which makes it plain that it is, in effect, no different from the test applied in most of the Commonwealth and in Scotland. The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased."
"In the result there is now no difference between the common law test of bias and the requirements under art 6 of the convention of an independent and impartial tribunal, the latter being the operative requirement in the present context. The small but important shift approved in Porter's case has at its core the need for 'confidence which must be inspired by the courts in a democratic society': Belilos v. Switzerland (1988) 10 EHRR 466 at 489 (para 67), Wettstein v. Switzerland [2000] ECHR 33958/96, Re Medicaments and Related Classes of Goods (No.2), [2001], ICR 564 at 591, [2001] 1 WLR 700 at 726 (para 83). Public perception of the possibility of unconscious bias is the key. It is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. What can confidently be said is that one is entitled to conclude that such an observer will adopt a balanced approach. This idea was succinctly expressed in Johnson v.
Johnson (2000) 201 CLR 488 at 509 (para 53), by Kirby J. when he stated that 'a reasonable member of the public is neither complacent nor unduly sensitive or suspicious."
"The principle to be applied is that stated in Porter's case, namely whether a fair- minded and informed observer, having considered the given facts, would conclude that there was a real possibility that the tribunal was biased. Concretely, would such an observer consider that it was reasonably possible that the wing member may be subconsciously biased? The observer is likely to approach the matter on the basis that the lay members look to the judge for guidance on the law, and can be expected develop a fairly close relationship of trust and confidence with the judge. The observer my also be credited with knowledge that a recorder, who is a criminal case has sat with jurors, may not subsequently appear as counsel in a case in which one or more of those jurors serve. Despite the differences between the two cases, the observer is likely to attach some relevance to the analogy because in both cases the judge gives guidance on the law to laymen. But the observer is likely to regard the practice forbidding part time judges in the employment tribunal from appearing as counsel before an employment tribunal which includes lay members with whom they had previously sat as very much in point. The editor of the Industrial Relations Law Reports has argued 'that a rule to the same effect is even more necessary in the EAT' (see [2002] IRLR 225). In favour of this view there is the fact that the EAT hears only appeals on questions of law while in the employment tribunal the preponderance of disputes involve matters of fact. The observer would not necessarily take this view. But he is likely to take the view that the same principle ought also to apply to the EAT."
"The informed observer of today can perhaps 'be expected to be aware of the legal traditions and culture of this jurisdiction' as was said in Taylor v. Lawrence [2002] EWCA Civ 90 at [61]-[64], [2002] 2 All ER 353 at [61]-[64], [2003] QB 528 per Lord Woolf CJ. But he may not be wholly uncritical of this culture. It is more likely that in the words of Kirby J. in Johnson v. Johnson (2000) 201 CLR 488 at
509 (para 53)) he would be 'neither complacent nor unduly sensitive or suspicious': compare also [2002] IRLR 225 (second column)."
17. In that passage the court was concerned with the application of the "real danger" test for apparent bias identified by the House of Lords in Reg v. Gough [1993] AC 646. The Court of Appeal having referred to the reasonable suspicion or reasonable apprehension test, rejected by Lord Goff in that case, observed:
"Nor need we consider whether application of the two tests would necessarily lead to the same outcome in all cases. For whatever the merit of the reasonable suspicion or apprehension test, the test of real danger or possibility has been laid down by the House of Lords and is binding on every subordinate court in England and Wales. This test appears to be reflected in section 24 of the Arbitration Act 1996: see Lake Airways Inc. v FLS Aerospace Ltd [1999] 2 Lloyd's Rep 45. In the overwhelming majority of cases we judge that application of the two tests would anyway lead to the same outcome. Provided that the court, personifying the reasonable man, takes an approach which is based on broad commonsense, without inappropriate reliance on special knowledge, the minutiae of court procedure or other matters outside the ken of the ordinary, reasonably well informed member of the public, there should be no risk that the courts will not ensure both that justice is done and that it is perceived by the public to be done."
"Judges are accustomed to defining standards of behaviour by reference to what would be done by a reasonable person. Most judges would claim to be reasonable people, and to be able to make such judgments on behalf of the community of which they are representatives. However, when one is required to assess the perceptions of a fair-minded lay observer, the judge is cast in a much more difficult role. Admittedly, the observer is observing a professional judge. But the judge deciding an apprehended bias claim is not and never can be a lay observer. In order to determine the likely attitude of fair-minded lay observer, the judge must be clothed with the mantle of someone the judge is not. One must avoid the natural temptation to view the judicial conduct, state of knowledge, association or interest in question through the eyes of a professional judge. An apprehension of bias by pre-judgment is based on a perception of human weakness. Given the double use of 'might' in the current formulation of the test for apprehended bias, one must be particularly careful not to attribute to the lay observer judicial qualities of discernment, detachment and objectivity which judges take for granted in each other."
"All of these observations are with respect useful and important. They demonstrate that in determining a claim of apparent bias on the part of a judge, it is not enough to show that those in the know would not apprehend any bias. Indeed, that would demonstrate little more than that in cases of the kind under consideration there is no actual bias; but that, in any event, is not suggested."
"35. But the ordinary case is far from those instances. It is of the kind that has happened here: the judge in question has not himself had to resolve the case's factual merits, and has not expressed himself incontinently. All he has done is conclude on the material before him that the result arrived at in the court below was correct. And he has done so in the knowledge that, at the option of the applicant, his view may be reconsidered at an oral hearing. In such a case is there a reasonable basis for supposing that he may not bring an open mind to bear on the substantive appeal if, after permission granted by another judge, he is a member of the court constituted to deal with it?
I consider, in line with a submission made by Mr Pollock, that an affirmative answer to this question would travel beyond whatever is the perception of our courts and judges that may be entertained by the fair-minded and informed observer, whoever he may be. It is not only lawyers and judges who in various states of affairs may be invited - they may invite themselves - to change their mind. Absent special circumstances, a readiness to change one's mind upon some issue, whether upon new information or simply on further reflection, and to change it from a previously declared position, is a capacity possessed by anyone prepared and able to engage with the issue on a reasonable and intelligent basis. It is surely a commonplace of all of the professions, indeed of the experience of all thinking men and women.
(6) Who is the fair-minded observer?
36. Our fair-minded and informed observer must surely have these matters in mind. That does not turn him into a notional lawyer. It merely reflects his fair-mindedness. However much we may in the name of the public confidence be prepared to clothe our observer with a veil of ignorance, surely we should not attribute to him so pessimistic view of his fellow-man's fair-mindedness as to make him suppose that the latter cannot or may not change his mind when f aced with a rational basis for doing so. That is, I think, what this case involves: not merely the ascription to the notional bystander of a putative opinion about the thought- processes of a judge, but the ascription of a view about how any thinking, reasonable person might conduct himself or herself when in a professional setting, he or she is asked to depart from an earlier expressed opinion. The view which Miss O'Rourke submits should be ascribed to the bystander does much less than justice, I think, to the ordinary capacities of such a person. In my judgment, therefore, it is not a view which the fair-minded and informed observer would entertain."
"The Bar Council may delegate any of its functions and powers to any committee, and at any time revoke any such delegation."
"Professional Conduct and Complaints Committee
21. The Terms of Reference of the Committee are:
(a) Considering, investigating, dealing with and advising upon representations and complaints relative to barristers, and
(b) Preferring when appropriate, a charge of professional misconduct or breach of proper professional standards against a barrister, and presenting such a charge before a Disciplinary Tribunal.
Note: The Lay Commissioner shall be entitled to attend meetings of, but shall not be a member of, the Professional Conduct and Complaints Committee."
"Committee members who are not members of the Bar Council (additional members) shall have the same powers and duties as other members, save that they may not serve as chairman of any of the Main Committees excepting the Professional Conduct and Complaints and Law Reform Committees, to which a Vice-Chairman who is a member of the Bar Council shall be appointed if the appointed Chairman is not a member of the Bar Council."
"Lay member representation at meetings of the Professional Standards Committee and the Professional Conduct and Complaints Committee shall be at least two lay members for each Committee. These lay representatives shall be selected from among the lay members from time to time attached to the Professional Standards and Legal Services Department, who shall, subject to the approval of the Chairman of the Professional Conduct and Complaints Committee and the Chairman of the Bar Council, be appointed by the Complaints Commissioner. The selection of lay members who are invited to attend a meeting of the Professional Standards Committee or the Professional Conduct and Complaints Committee shall be made by the Chairman (or in his absence the Vice-Chairman) of the committee."
Despite his persuasive arguments, for my part, I am not persuaded that we should exercise our discretion to grant leave.""The case of R v. Gough [1993] AC 646, [1993] 2 All ER 724 was referred to French J. as it was referred to us by Mr Everest this morning. We have read it and considered its implications. It is plain that any decision of a Tribunal may be flawed if, objectively, it gives the appearance that it might have been a decision influenced by bias on the part of one of the members taking the decision. We, however, must revert to the facts and it must be the case, in our judgment, that what happened was that Mr Everest's testimony to the Tribunal was disbelieved. Judicial review is a discretionary remedy; we have considered with great anxiety all the points that have been made by Mr Everest by way of an attack upon, not so much the decision of the Tribunal, as upon its constitution.
"Mr Janner submitted that the perception will be that the Committee, because it is closely connected with the Council, will be seen as supporting the actions taken in the Council's name against individual professionals. I very much doubt whether this is correct. It seems to me that in the context of professional disciplinary bodies, it is highly desirable to have a profession regulate itself, subject to appropriate safeguards. My provisional view is that there were sufficient safeguards in place here to ensure that the perception would be one of independence and integrity."
"Having considered the submissions I heard, I have reached the view that there is some basis for objective concern as to the independence and impartiality of the PCC. Had it been necessary for me to decide whether the PCC, viewed on its own, would constitute an independent and impartial tribunal, meeting all the requirements of art 6(1), I would have found for the petitioner on that issue. In my opinion, the fact that the same individuals sit on the PPC and the PCC is the factor of greatest significance. I accept, of course, that not individual member of the respondents takes part in the consideration of any particular case by both the PPC and the PCC. I accept that will no occur in the petitioner's case. Nevertheless I consider that any objective observer would consider it unusual that those involved, from time to time, in the taking of decisions to initiate disciplinary proceedings against members of the profession, are also involved, at other times, in adjudication upon such proceedings. The fact that the same individuals can move backwards and forwards between these two roles, throughout their terms of office, is of particular significance. There is also the point that it lies within the discretion of the respondents to determine whether all individual members of the respondents and of the two panels are actually invited to sit on the PCC. Whilst an official arranges who actually sits on the PCC when the committee is hearing disciplinary cases, there is no guarantee that all of the individual members of the respondents and the panels will actually be invited to sit from time to time."
"Where the same members of the respondents and the same panel members are serving on both the PPC and the PCC (albeit not in connection with the same cases), there is in my opinion an objective basis for concern that members serving on the PCC will take into account, even if only subconsciously, their knowledge and experience of the current practices and policies of the PPC, as to when to commence prosecutions, influenced as those practices and policies may be, at least to some extent, by the policies of the respondents as a council. A further basis for concern is that prosecutions before the PCC take place in the name of the respondents. Moreover, a hearing before the PCC of a charge of misconduct may involve considering the extent to which the practitioner concerned has complied with a code made by the respondents. In my opinion, such factors detract from the PCC having an appearance of independence. Likewise, I consider that they give rise to concerns as to the PCC's impartiality. If the position of the PCC fell to [be] considered in isolation, I do not consider that the concerns would be met by the guarantees upon which the respondents found, such as the fact that the prosecution case is presented to the PCC by the solicitor, the detailed nature of the adversarial procedure, as set out in the 1993 Rules, the giving of reasons by the PCC and the role of the legal assessor."
Discussion: Automatic Disqualification at Common Law
(iii) The interest need not be a financial interest: the essence of common interest is an interest in the outcome, to the effect that a particular party will succeed in obtaining a particular decision. (iv) In such cases there will be automatic disqualification without investigation as to whether there was actual bias or suspicion of bias. We refer in particular to the following passages from the opinion of Lord Browne-Wilkinson:
"The fundamental principle is that a man may not be a judge in his own cause. This principle, as developed by the courts, has two very similar but not identical implications. First it may be applied literally: if a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a judge in his own cause. In that case, the mere fact that he is a party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification. The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party. This second type of case is not strictly speaking an application of the principle that a man must not be judge in his own cause, since the judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial.
In my judgment, this case falls within the first category of case, viz. where the judge is disqualified because he is a judge in his own cause. In such a case, once it is shown that the judge is himself a party to the cause, or has a relevant interest in its subject matter, he is disqualified without any investigation into whether there was a likelihood or suspicion of bias. The mere fact of his interest is sufficient to disqualify him unless he has made sufficient disclosure: see Shetreet, Judges on Trial (1976), p. 303; De Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5th ed. (1995), p. 525. I will call this "automatic disqualification."
At page 135
"That being the case, the question is whether in the very unusual circumstances of this case a non-pecuniary interest to achieve a particular result is sufficient to give rise to automatic disqualification and, if so, whether the fact that A.I.C.L. had such an interest necessarily leads to the conclusion that Lord Hoffmann, as a director of A.I.C.L., was automatically disqualified from sitting on the appeal? My Lords, in my judgment, although the cases have all dealt with automatic disqualification on the grounds of pecuniary interest, there is no good reason in principle for so limiting automatic disqualification. The rationale of the whole rule is that a man cannot be a judge in his own cause. In civil litigation the matters in issue will normally have an economic impact; therefore a judge is automatically disqualified if he stands to make a financial gain as a consequence of his own decision of the case. But if, as in the present case, the matter at issue does not relate to money or economic advantage but is concerned with the promotion of the cause, the rationale disqualifying a judge applies just as much if the judge's decision will lead to the promotion of a cause in which the judge is involved together with one of the parties. Thus in my opinion if Lord Hoffmann had been a member of A.I. he would have been automatically disqualified because of his non-pecuniary interest in establishing that Senator Pinochet was not entitled to immunity. Indeed, so much I understood to have been conceded by Mr Duffy. Can it make any difference that, instead of being a direct member of A.I., Lord Hoffmann is a director of A.I.C.L., that is of a company which is wholly controlled by A.I. and is carrying on much of its work? Surely not. The substance of the matter is that A.I.,
A.I.L. and A.I.C.L. are all various parts of an entity or movement working in different fields towards the same goals. If the absolute impartiality of the judiciary is to be maintained, there must be a rule which automatically disqualifies a judge who is involved, whether personally or as a director of a company, in promoting the same causes in the same organisation as is a party to the suit. There is no room for fine distinctions if Lord Hewart C.J.'s famous dictum is to be observed: it is "of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done:" see Rex v. Sussex Justices, Ex parte McCarthy [1924] 1 KB 256, 259.
Lord Goff at pages 138 said this:
"It is in these circumstances that we have to consider the position of Lord Hoffmann, not as a person who is himself a party to the proceedings or who has a financial interest in such a party or in the outcome of the proceedings, but as a person who is, as a director and chairperson of A.I.C.L., closely connected with A.I. which is, or must be treated as, a party to the proceedings. The question which arises is whether his connection with that party will (subject to waiver) itself disqualify him from sitting as a judge in the proceedings, in the same way as a significant shareholding in a party will do, and so require that the order made upon the outcome of the proceedings must be set aside. Such a question could in theory arise, for example, in relation to a senior executive of a body which is a party to the proceedings, who holds no shares in that body; but it is, I believe, only conceivable that it will do so where the body in question is a charitable organisation. He will by reason of his position be committed to the well-being of the charity, and to the fulfilment by the charity of its charitable objects. He may for that reason properly be said to have an interest in the outcome of the litigation, though he has no financial interest, and so to be disqualified from sitting as a judge in the proceedings.
and at page 139
"The effect for present purposes is that Lord Hoffmann, as chairperson of one member of that organisation, A.I.C.L., is so closely associated with another member of that organisation, A.I., that he can properly be said to have an interest in the outcome of proceedings to which A.I. has become party. This conclusion is reinforced, so far as the present case is concerned, by the evidence of A.I.C.L. commissioning a report by A.I. relating to breaches of human rights in Chile, and calling for those responsible to be brought to justice. It follows that Lord Hoffmann had an interest in the outcome of the present proceedings and so was disqualified from sitting as a judge in those proceedings.
It is important to observe that this conclusion is, in my opinion, in no way dependent on Lord Hoffmann personally holding any view, or having any objective, regarding the question whether Senator Pinochet should be extradited, nor is it dependent on any bias or apparent bias on his part. Any suggestion of bias on his part was, of course, disclaimed by those representing Senator Pinochet. It arises simply from Lord Hoffmann's involvement in A.I.C.L.; the close relationship between A.I., A.I.L. and A.I.C.L., which here means that for present purposes they can be regarded as being, in practical terms, one organisation; and the participation of A.I. in the present proceedings in which as a result it either is, or must be treated as, a party."
"I would only add that in any case where the impartiality of a judge is in question the appearance of the matter is just as important as the reality."
a. The PCCC is an unincorporated body which has the purpose of carrying out certain functions, including disciplinary functions on behalf of the Bar Council. Amongst those functions is the taking of decisions whether the facts of complaints presented to it by the Complaints Commissioner justify the prosecution of charges against members of the Bar: see those passages from Rules 26 to 28 of the Complaints Rules set out at paragraph 14 above.
b. If the PCCC concludes that there is a prima facie case of professional misconduct, its duty is to nominate the PCC Representative from its members "to be responsible for the conduct of the proceedings on its behalf" (Rule 32). That Rule further provides:
"Where no further investigation is required, the PCC representative shall settle the charge having regard to the provisions of paragraph 34 below."
Rule 33 provides
"Save in cases where the charges have been settled by the PCC Representative, the Secretary or investigations officer shall arrange for the appointment of counsel to settle the charge and to present the case before the Tribunal, and may arrange for the appointment of a solicitor or such other person as may be necessary to assist counsel and prepare the case."
The Secretary referred to is the Secretary to the PCCC (Rule 3)
c. The PCCC then has the duty to supervise the carrying out of the functions of the Bar Council's investigations officer under Rule 35 including
"any necessary administrative arrangements for the summoning of witnesses, the production of documents, and generally for the proper presentation of the case on behalf of the PCC Representative before the Tribunal."
d. The PCCC is therefore the Bar Council's agent for the taking of decisions as to whether to prosecute and for the conduct of the prosecutor.
e. Lay Representatives are appointed to membership of the PCCC for a period of three years renewable for a further three years. Thus at any one time there is a body of appointed members of the PCCC who are clearly identifiable. The Lay Representatives in practice each attend an average of two meetings of the PCCC per year. For that purpose, they receive in advance the papers referable to the matters on the agenda for each such meeting and they take part in the decision taking and, if necessary, vote on decisions at that meeting, but they are not asked to prepare preliminary reports on complaints or recommendations as to charges against members of the Bar as are the barrister members of the PCCC. Nor do they play any part in the selection of barrister members who are to make such reports.
f. The Lay Representatives who are members of the PCCC are continuously members albeit they are remunerated on the basis of their individual attendances. That is to say they are not co-opted from a panel of names so as to become ad hoc members of the PCCC only for the duration or purpose of the meetings which they attend or for the duration or purpose of their sitting on Disciplinary Tribunals or Visitors' panels.
g. Barrister members of the PCCC are disqualified from sitting as members of Disciplinary Tribunals or Visitors Panels regardless of their non-attendance at meetings of the PCCC referable to a particular hearing.
Lack of Independence under Article 6(1)
"The Court recalls that in order to establish whether a tribunal can be considered as "independent", regard must be inter alia to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence."
The Nomination Issue
The Hon Mr Justice Colman
Ms Sara Nathan
Ms Julia Clark