Norton v Bar Standards Board [2014] EWHC 2681 (Admin)

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The appellant barrister was charged by the respondent Bar Standards Board (BSB) with professional misconduct. A date for the hearing before the Disciplinary Tribunal of the Council of the Inns of Courts (the tribunal) was set for 7 February 2014. On 4 February 2014, an email was sent by the appellant to the BSB in which he indicated he had previously been unaware that the hearing had been listed. He requested an adjournment in order to prepare and to obtain representation.

At the outset of the hearing, the appellant was contacted and asked if there were any additional submissions he wished to make and he declined. The chairman of the tribunal asked counsel for the BSB if there was any part of rule 148 of the Disciplinary Tribunals Regulations 2014, the applicable rule that ought to be read out. Counsel responded that it did not and that: "it simply says that you have the power to proceed with the jurisdiction to do so, obviously subject to your discretion. Prejudice is really neither here nor there, it is not dealing with the point".  In refusing an adjournment, the tribunal referred to the following matters: (i) the appellant was served with the relevant documentation at his last known address and, therefore, his contention that he had only lately received notice of the proceedings was rejected; (ii) the application had been made at the last moment; (iii) in his request, the appellant had failed to express his innocence or provide any indication of his defence and, as a result, it was doubtful whether an adjournment would achieve anything; and (iv) prejudice was relevant because the BSB represented the public interest, and that it was appropriate, in the public interest, to proceed. The tribunal proceeded in the appellant's absence and found three of the charges proven.

The appellant was disbarred and fined. He appealed the decision not to adjourn the proceedings. The appellant submitted that the tribunal had applied the wrong test in its consideration of whether to grant an adjournment and that the approach applied in R v (Anthony) Jones ([2002] 2 All ER 113) (Jones) should have been followed.

The appeal would be allowed.

The tribunal had misdirected itself when it had decided not to grant an adjournment. First, although the tribunal had decided that the appellant had been served with the documents substantially in advance of the hearing, it had failed to address whether the reasons advanced by the appellant had justified his absence, regardless of when he had received the documentation. Second, the tribunal had failed to consider whether an adjournment might result in the appellant attending at the next hearing. Third, although the tribunal had concluded that delaying the trial was unlikely to achieve anything, it had been based solely on the appellant's failure to set out his defence in the adjournment application, as opposed to a more general review of the issues and evidence. Fourth, although the tribunal had correctly expressed the view that it was in the public interest for proceedings of the present kind to be concluded timeously, there had been no consideration of the lack of any victims or witnesses who would be prejudiced by a delay, or that it had not been a case in which the memories of witnesses would be adversely affected. The incorrect indication which had been given to the tribunal, which had seemingly been accepted, was that its discretion had been general or unfettered. There had been no reference to the Jones criteria. Therefore, there was a real risk that the tribunal did not properly apply the factors which were of prime importance in order to secure fairness to the defence, whilst taking into account the need to be fair to the prosecution (see [54]-[56] of the judgment).

The decision would be quashed and the case remitted for a rehearing before a fresh tribunal (see [56] of the judgment).

Reproduced with the kind permission of LexisLibrary.