Melissa Worth considers a particular issue in professional disciplinary proceedings, highlighted by some recent case law, what to do if the professional cannot attend a hearing. How do the courts and tribunals approach this issue? How much sympathy can you expect?
For any professional, being the subject of disciplinary proceedings will be an extremely worrying and stressful experience. Faced with the possibility of losing their livelihood, most professionals will take every step to ensure that they are present at their disciplinary hearing to defend their case.
However, it is quite possible that a professional with every intention to attend the proceedings may be presented with circumstances beyond their control, which prevent them from doing so. Less commonly, there are sometimes instances of those subject to disciplinary proceedings attempting to avoid or delay attendance on somewhat dubious grounds. How are both scenarios be dealt with consistently and justly?
Norton -v- Bar Standards Board: a recent example
Mr Norton had been investigated by the Bar Standards Board (BSB), which doubted claims that he had made about his education and criminal convictions. He was charged with four offences of professional misconduct and a disciplinary hearing was listed on 7 February 2014. Mr Norton was told about the hearing by post and email on 4 December 2013. Two months later, on 4 February, he emailed the BSB saying that he had only just received the email about the hearing and that he had been unaware previously that it was due to commence.
The BSB responded to Mr Norton, telling him how to apply for an adjournment. By 6 February, he had not done so and the BSB therefore emailed Mr Norton to ask whether he intended to. After further emails, Mr Norton submitted his application on the day before the hearing. His application grounds were:
- he had an appointment in Derbyshire at 9.30am;
- he was unable to arrange suitable childcare;
- the train fare would be ‘highly excessive’ at peak times;
- he had only heard about the proceedings on 3 or 4 February; and
- there were ‘minimal’ adverse consequences of granting the adjournment because there had been no previous adjournment.
The tribunal noted that the application was based on the assertion that the defendant had only become aware of the proceedings on 4 February. However, the panel also concluded that it was apparent from Mr Norton’s subsequent correspondence that he had received papers detailing the hearing date on 4 December 2013.
The tribunal refused to adjourn. It based its decision on the public interest for matters to be dealt with without undue delay. Mr Norton had not explained the nature of his intended defence, nor the evidence he would rely on in support. It was therefore doubtful that adjournment would affect the eventual outcome or that it would be inappropriate to grant one. The hearing proceeded in Mr Norton’s absence and he was disbarred. Mr Norton appealed.
The law on adjournments in disciplinary proceedings is derived from the criminal case of R -v- Jones (2002). The consequences of disciplinary proceedings are so severe as to justify application of this criterion. Decisions involving other professions’ disciplinary bodies, including vets, pharmacists and nurses, have followed suit.
The court in Jones stated that ‘[…] the discretion to commence a trial in the absence of a defendant should be exercised with the upmost care and caution’. In deciding whether to agree to adjourn, fairness to the defence is of prime importance but fairness to the prosecution must also be taken into account.
All the circumstances must be considered, including (of relevance to disciplinary proceedings):
- nature and circumstances of the defendant’s absence – whether it was deliberate and whether it could be interpreted as a waiver of the right to appear;
- length of adjournment;
- whether the defendant is represented, wants to be represented, or has waived the right to representation;
- whether any legal representative can receive instructions from the defendant despite his absence and is able to present a defence;
- extent of disadvantage to the defendant of not being able to give their account;
- risk of an improper conclusion in the defendant’s absence;
- general public interest and that of the witnesses and victims, of a hearing within a reasonable time of events; and
- effect of delay on witness memories.
Norton – what happened next?
Mr Norton appealed the BSB’s decision arguing that it had not followed the test outlined in Jones correctly. His arguments were successful. Jones had not, in fact, been drawn to the tribunal’s attention with submissions made to the members giving them the impression that the tribunal’s discretion to proceed in Mr Norton’s absence was general or unfettered and that prejudice was not a relevant issue. Prejudice was described as ‘irrelevant’ and the tribunal was not reminded that fairness to Mr Norton, including disadvantage to him from proceeding in his absence, needed to be considered. It was also pointed out that the tribunal’s procedure had not at any stage obliged Mr Norton to indicate whether he intended to defend the charges.
The tribunal’s decision was quashed and the case remitted for a rehearing before a fresh tribunal.
When making an application for an adjournment, a professional subject to disciplinary proceedings can expect the disciplinary tribunal to consider the application with reference to each of the factors set out in Jones. If the tribunal fails to do so properly, there may be grounds for appeal. That said, a professional seeking an adjournment must still proceed with caution – attendance at a disciplinary hearing must always be considered as a matter of priority.