Norton v Bar Standards Board  EWHC 2681 (Admin)
This Administrative Court decision is a reminder of the importance for disciplinary panels, when faced with a late application to adjourn a hearing, to systematically work through the criteria approved by the House of Lords in R v Jones  UKHL 5 before deciding whether to proceed in the registrant's absence. In this case, a decision of a Disciplinary Tribunal of the Council of the Inns of Court to proceed in the respondent's absence was overturned due to its failure to consider the Jones criteria, notwithstanding that the respondent had been validly served with notice of the hearing and other relevant documents well in advance of the hearing.
The Tribunal disbarred N after having heard a number of allegations against him including that, upon being admitted to the bar, he had signed a declaration confirming that he had no criminal convictions. In fact, it was alleged, he had been convicted of three criminal offences including unlawfully possessing CS spray and wilfully obstructing a police officer. It had also been alleged that N had falsely claimed to have been awarded two degrees.
Throughout the investigation and lead-up to the hearing, the Bar Standards Board (BSB) had written to N at the address which N had previously notified to the Bar Council. This was understood to be his professional address. Additionally, the property at that address was owned by N's mother. A BSB employee had attempted to telephone N at this address and, although N himself did not answer the telephone, it was confirmed to the BSB employee that N would receive letters sent to that address.
When N failed to respond to the BSB's letters, the BSB employee reached N on his mobile number. N confirmed he was aware of the BSB's correspondence and that he would respond later that week, but failed to do so. The BSB continued to send letters to N's professional address (i.e. the address notified to the Bar Council) by recorded delivery, as well as his professional email address but, again, he failed to respond.
A hearing was listed in due course but three days before it had been due to take place N wrote to the BSB to say that he had previously been unaware of the hearing. He said that earlier emails from the BSB had been "spammed" and/or sent to an address which only worked on his old computer system. He also said that his postal address was different to the address which the BSB had been using to communicate with him and that, because he had been abroad, he was unsure about what had been happening to the post sent to that address. In in any event, he had not received it.
The day before the hearing, N formally applied for an adjournment of eight weeks, saying that he would be unable to attend the hearing because he lived in Derbyshire, which would entail a "several hour round trip" to London. However, the BSB took the view that N had been properly served with notice and that the hearing should continue in his absence.
The tribunal's findings in relation to the application to adjourn
The tribunal rejected N's contention that he had only recently become aware of the proceedings, noting that he had been validly served at his last known address. The tribunal then went on to consider whether it should exercise its discretion in favour of an adjournment. It noted that N had argued that it was his first application for an adjournment and the consequences of granting one would be minimal.
However, it found that there was a public interest in matters being concluded without undue delay and the respondent had not made the panel aware of his intended defence or any evidence he would rely on in support of it. It was therefore doubtful if the adjournment would achieve anything. The tribunal concluded that it would be inappropriate to grant an adjournment and that it was in the public interest to proceed.
The court's findings on appeal
N appealed. The court found that the tribunal had failed to consider the factors which had been identified in Jones as being relevant to any decision to proceed in the absence of a party. Jones had not been brought to the tribunal's attention by the BSB's counsel, whose submissions had, instead, incorrectly suggested that the tribunal's discretion to proceed in a respondent's absence was general or unfettered and that prejudice to the respondent was not a relevant factor to take into account.
The tribunal had not been reminded that fairness to the accused needed to be considered when resolving the application to adjourn. Additionally, the procedures of the tribunal did not require the accused to indicate at any stage whether he intended to contest the charges or to provide a description of the defence he intended to advance.
Rather, the court found that the tribunal had been obliged to focus on theJones criteria, which included the need for the tribunal to bear in mind the disadvantage to the respondent in not being able to give his account of events.
The tribunal had erred firstly in that, although it had decided that N had been validly served with the documents substantially in advance of the hearing, it made no finding as to whether he had deliberately avoided attending the trial, thereby waiving his right to appear, or if he had voluntarily chosen to be absent. Accordingly, the tribunal failed to address whether the reasons advanced by N justified his absence.
Secondly, the tribunal had failed to consider whether an adjournment might result in the accused attending the next hearing.
Thirdly, although the tribunal had expressed the view that delaying the trial was unlikely to achieve anything, this was based solely on N's failure to set out his defence in the application to adjourn, as opposed to a more general review of the issues and evidence in the case.
Fourthly, although the tribunal correctly expressed the view that it is in the public interest for proceedings of this kind to be concluded in a timely fashion, there was no consideration of the lack of any victims or witnesses who would be prejudiced by a delay, or that this was not a case in which the memories of witnesses would be adversely affected.
The court concluded by noting the words of Lord Bingham in Jones that "the discretion to commence a trial in the absence of a defendant should be exercised with the utmost care and caution". In this case, the court found that the tribunal had been given the incorrect impression that its discretion was general or unfettered when it should have considered those parts of the Jones criteria which were relevant. Accordingly, the tribunal's decision was overturned and the matter was remitted for a rehearing by a different tribunal.