Insulation of regulatory functions

This was an application by K, who was a student member of the Institute of Legal Executives (ILEX), against a decision refusing to grant her judicial review application concerning allegations of apparent bias by ILEX and its appeal tribunal.

It had been alleged that K had cheated in two examinations and following an investigation and a decision by the ILEX investigating committee, K was charged with various disciplinary offences. A disciplinary tribunal was convened in March 2009. The disciplinary tribunal hearing the case comprised three members, two of whom were lay members and the third was a serving ILEX council member.  They dismissed the charge against K in relation to one examination but found the case proved in respect of the second examination. K was excluded from ILEX for a minimum period of five years and ordered to pay costs.

K appealed to ILEX’s Appeal Tribunal, which consisted of two lay members and the vice-president of ILEX. K’s appeal was rejected.

The main issue in this case was whether the presence of an ILEX council member and director of ILEX on the Disciplinary Tribunal and of the council’s vice-president on the Appeal Tribunal breached the doctrine of automatic disqualification (that no one may be a judge in his own cause) and/or the doctrine of apparent bias.

Their Lordships considered Regina v Bow Street Metropolitan Stipendiary Magistrate (ex parte Pinochet) [2000] 1 AC 119 (Pinochet No. 2) where the doctrine of automatic disqualification was applied, as well as Porter v Magill [2001] UKHL 67, where Lord Hope of Craighead provided a definitive statement on the doctrine of apparent bias. Lord Hope stated that, “The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”.  The case of Re P (A Barrister) [2005] 1 WLR 3019 was also considered.

Lord Justice Rix stated that it may now be possible to see the doctrine of automatic disqualification and the doctrine of apparent bias as a single over-arching requirement and therefore it was not necessary to choose between the two doctrines in this case. Applying either test the vice-president of ILEX was disqualified from sitting on either a disciplinary or appeal tribunal by her leading role in ILEX and because of her inevitable interest in ILEX’s policy of disciplinary regulation. Lord Rix highlighted that careful consideration would be needed to decide whether the same conclusion would apply to all council members and directors of ILEX, however, he was of the opinion that it would.

Ultimately, the argument submitted on behalf of ILEX, that the regulator is ‘as much interested in an acquittal, if there was no cheating, as in a conviction’, gave way to the importance of appearances.

This case demonstrates the importance of maintaining the confidence of both the parties and the public in the integrity of the judicial process by ensuring the proper separation of the disciplinary panel from those concerned with the overall governance of the organisation.