High Court holds that tribunal misdirected itself when deciding to proceeding in the absence of the registrant, and remit the case for rehearing

Judgement date: 31 July 2014

This case relates to the appropriateness or otherwise of the decision of a Disciplinary Tribunal of the Council of the Inns of Court (the Tribunal) to proceed in the absence of a registrant who had applied for an adjournment in the days preceding the hearing.

Giles Norton was called to the bar of England and Wales on 25 November 2004 by Inner Temple.  When he had applied to join as a student of Inner Temple he certified that he had no convictions for any relevant criminal offence.  He further represented that he had attended Harvard University between 1994 and 1997, where he was awarded a first class degree in Chinese and Information Technology, and that he had studied at Staffordshire University between 2002 and 2003 where he was awarded an LLM. 

The Bar Standards Board (BSB) received some information in November 2012 which caused them to investigate whether Mr Norton had any criminal convictions and doubt the veracity of his educational claims.  The Investigations and Hearings Team of the BSB wrote to Mr Norton on 6 March 2013 informing him of the suggestion that he had failed to disclose convictions and asking him to provide copies of the qualifications in question.  The letter was addressed to Mr Norton at Troway  Hall, Troway, Marsh Lane, Sheffield, S21 5RU, which is the address provided by Mr Norton to the Bar Council, where his mother, it transpires, resides.

The BSB made various efforts to speak with Mr Norton, having received no response to their letter.  Contact was made with a female at Troway Hall (presumably Mr Norton’s mother) which resulted in their receiving Mr Norton’s mobile number.  The caseworker was told that the Troway Hall address was a business address and that Mr Norton would receive letters sent there, albeit with a 1-2 weeks delay.  Eventually, in May 2013, the caseworker managed to get hold of Mr Norton himself, who said that he was aware of the letter and that he would provide a response by the end of the week.  No such response ever materialised.   Mr Norton was then sent various pieces of correspondence including notification that the matter was going to a full hearing (which went recorded delivery), all of which were ignored.

Mr Norton was charges with 4 offences of professional misconduct which, in summary, were that he had made a false statement when failing to declare his convictions, made false declarations that he had the two degrees from Harvard and Staffordshire and that he had failed to respond promptly to requests by the BSB.  Direction was given that the hearing was to take place on Friday 7 February 2014.  Mr Norton was notified about the hearing date both in writing and by email on 4 December 2013. 

On 4 February 2014, and so 3 days before the hearing was due to start,  Mr Norton sent an email to the BSB which indicated that he had ‘just received your email’ and claiming that he had been previously unaware that the hearing had been listed.  He maintained that his address was one in Bakewell.  He suggested that all previous emails from the BSB had been ‘spammed’.

The response sent to Mr Norton outlined that the Troway Hall address was the one which he had registered with the Bar Council and that those charges had been signed for on delivery.  He was told that if he wished to make an application for an adjournment it would need to be made to the Bar Tribunal and Adjudication Service (email address provided).  No application was made and so on 6 February 2014 the BSB emailed Mr Norton asking if any adjournment application would be made.  Mr Norton said he did not know how to request an adjournment, and asked if there was a form to fill in.  He was told a second time how to make such an application and to whom. Ultimately, Mr Norton made a request at 15.51 on 6 February, the day before the hearing, asking for an adjournment.  This was on the basis that he lived in Derbyshire which was a ‘several hour round trip’, he needed to arrange suitable childcare, the train far at peak times would be ‘highly excessive’ and he had an appointment at 9.30am in Derbyshire.  He said he had only heard about these proceedings on 3 or 4 February 2014.  He said that the adverse consequences of granting the request was ‘minimal’ as there had been no previous adjournment.

The Hearing before the Tribunal

Mr Norton was contacted on the morning of the hearing asking if there were any further submissions he wanted to make or factors that he wanted the tribunal to consider.  He said that his emails were ‘very full’ and he was content to rely on their contents.  The Tribunal refused his application to adjourn and the hearing took place in his absence.   In refusing the application the Tribunal stated that the application for an adjournment was made at the very last minute and did not even express innocence or any indication of what the Defendant’s evidence would be if the adjournment was granted.  They essentially rejected the contention that he had only become aware of proceedings on 4 February.  They went on to say ‘the Defendant 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 whether an adjournment would achieve anything’. The Tribunal found all relevant charges proven and Mr Norton was disbarred. 

The Appeal

It was argued on behalf of Mr Norton that the Tribunal had failed to demonstrate that it had exercised the utmost care and caution in proceeding and had failed to consider whether it was ‘just’ to adjourn the case.  It was submitted that the Tribunal had relied excessively on the Mr Norton’s suggested failure to reveal whether or not he was contesting the charges and if so, the nature of his defence.  The tribunal were, it was argued, over influenced by the risk that an adjournment might prejudice the BSB and the need to deal with the case without delay and placed too much reliance on the fact that the application was late in the day.  It was submitted that the Tribunal failed to consider the reasons why the appellant failed to attend, that they had erred in holding that Mr Norton had received the BSB correspondence from January 2014 and had given undue weight to the lack of any evidence from Mr Norton.  The suggestion was that the Tribunal had not faithfully followed the test as outlined in R v Jones 2002 UKHL [2003].

Judgement

It was held that the Tribunal had misdirected itself when it decided not to grant an adjournment, the decision was quashed and remitted for rehearing. The Court was particularly critical of a particular exchange that took place during the hearing.  Mr Singla, representing the BSB, made submissions that the case should not be adjourned.  As part of his submissions he reminded the Tribunal that the power to proceed without the accused was set out in rule 148.  When the Chairman asked if there was any part of this provision that ought to be read out, Mr Singla replied ‘no, it simply says you have the power to proceed with the jurisdiction to do so, obviously subject to your discretion.  Prejudice is neither here nor there, it is not dealing with the point’. 

It was held that this exchange contained, ‘a number of troubling features’;

The attention of the bench was not drawn to the authority of Jones, and the submissions made to the tribunal tended to suggest that the discretion to proceed in the absence of the person charged was general or unfettered and that prejudice was not a relevant issue’.

Further, it was noted that;

‘the procedures of the tribunal do not require the accused, at any stage, to indicate whether he intends to contest the charges or to provide a description of the defence he proposes to advance.  Although I accept that the extent of the information provided by the accused is a relevant consideration when ruling on an application on his behalf to adjourn, this must be accorded proportional treatment.  The Tribunal is obliged to focus on the Jones criteria’.

The Court held that there were ‘fundamental problems’ with the Tribunal’s analysis, when compared to the list of factors in Jones, namely;

  1. Although the Tribunal had decided that Mr Norman had been 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, regardless of when he had received the documentation.  They had failed to address whether the reasons advance by Mr Norman justified his absence;
  2. They had failed to consider whether an adjournment might result in the accused attending at the next hearing;
  3.  They had wrongly based their decision that an adjournment wouldn’t achieve anything on Mr Norman’s failure to set out his defence;
  4. There was no consideration given to the fact that the lack of any victims or witnesses in this case was relevant to the prejudice of any delay.

A reminder, if one was needed, that when proceeding in absence, it is prudent for advocates and tribunals alike to systematically deal with each of the Jones factors in submission, and for the written determination to reflect full consideration of them.