Virdi v The Law Society of England and Wales & Anor

This is an appeal from the decision of the Divisional Court (Scott Baker LJ and David Clarke J) dismissing the appeal of Amritpal Singh Virdi from the findings and order of the Solicitors Disciplinary Tribunal (“the Tribunal”) finding him guilty of serious professional misconduct and suspending him from practice for a period of 3 years. Following a 15-day hearing between May and October 2007, the Tribunal announced its decision, gave its findings in summary form, and made its order on the last day of the hearing, on 26 October 2007. Its written findings were not given until a year later, but that delay is not the subject of any issue in this appeal.

The appeal raises issues as to the lawfulness of the part played by the clerk to the Tribunal. The clerk is an employee of the Law Society. In the present case, she retired with the members of the Tribunal when they considered their decision. Following the announcement of the Tribunal’s decision, she assisted in drafting their written findings. I shall set out more fully the part she played later in my judgment.

In summary, on behalf of the Appellant, Mr Beaumont submits:

Since the conduct of the clerk in the present case was no different from the ordinary practice of the Tribunal, the issues are of general importance.

The Tribunal is constituted under section 46 of the Solicitors Act 1974. It consists of practising solicitors of not less than 10 years’ standing and lay members who are neither solicitors nor barristers. Subsection (9) confers power on the Tribunal to make rules “about the procedure and practice to be followed in relation to the making, hearing and determination of applications and complaints”. Subsection (11) provides that the Tribunal may administer oaths, and enables the issue of writs of subpoena ad testificandum and duces tecum; otherwise, the Act in its original form did not expressly confer any administrative or procedural powers. The Act was amended with effect from 30 June 2008 (i.e., after the decision of the Tribunal in this case) by the Legal Services Act 2007, and a new subsection (5A) inserted:

(5A) The Tribunal may do anything calculated to facilitate, or incidental or conducive to, the carrying out of any of its functions.

The procedural rules in force at the time of the Appellants’ hearing were the Solicitors (Disciplinary Proceedings) Rules 1994. They require the clerk to be a solicitor. The functions of the clerk under the Rules are principally administrative: to receive notice of applications (see rule 4(7)), to serve notice of the hearing on the parties (rule 6), to conduct a pre-hearing review to facilitate the hearing (rule 8), to receive the bundles of documents for the hearing, to be notified of applications for a hearing in private (rule 13) and to file and to keep the documents used at a hearing (rule 26). Rule 23 was as follows:

23.

Upon the conclusion of the hearing or determination of any Application the Tribunal may announce its Order while still sitting in which case the Order may be filed immediately with the Society, and the Findings shall be filed later as if judgment had been reserved, or it may reserve judgment in which case it shall announce its Findings and Order in public at a later date notice whereof shall be given to the parties by the Clerk. The Clerk shall on the day of pronouncement file the Order, or the Findings, or both, with the Society. The Clerk shall supply a copy of the Findings and Order to each party to the proceedings and to any other person present at the pronouncement who requests one.

Rule 31(a) provided:

(a)

Subject to the provisions of these Rules the Tribunal may regulate its own procedure.

The 1994 Rules were replaced by the Solicitors (Disciplinary Proceedings) Rules 2007 with effect from 14 January 2008. The 2007 Rules are more prescriptive of the functions of the clerk. Rule 3 includes the following paragraphs:

(6)

The Tribunal may also appoint other clerks, including clerks appointed to deal with a particular case or cases.

(7)

A clerk appointed by the Tribunal under this rule shall be a solicitor or barrister of not less than 10 years standing

(8)

A clerk shall vacate his office if—

(a)

in the Tribunal's opinion (with which the Master of the Rolls agrees) he is physically or mentally incapable of performing his duties; or

(b)

he retires; or

(c)

he is removed from office by a resolution of the Tribunal approved by the Master of the Rolls.

(9)

The Clerk shall be responsible to the Tribunal for the administration of the Tribunal in an efficient manner and, for so long as he shall be remunerated by the Law Society, shall be regarded as seconded to the Tribunal.

(10)

The services of a clerk may be provided to the Tribunal through a body independent of the Law Society and that body may employ him on such terms (including remuneration and pension provision) as the Tribunal shall think fit.

(11)

The Tribunal may prescribe the duties to be performed by the clerks or for which they shall be responsible and those duties shall include arrangements for—

(a)

the submission of applications for certification of a case to answer;

(b)

making pre-listing arrangements including directions of an administrative nature;

(c)

listing of and attendance at hearings;

(d)

securing a record of hearings (by tape recording or other means);

(e)

advising the Tribunal on matters of law or procedure as may be necessary or expedient;

(f)

preparing summaries of allegations, evidence and submissions for inclusion in the Tribunal's detailed findings;

(g)

drawing orders and findings and filing them with the Law Society;

(h)

the general supervision of other clerks and the Tribunal's administration and staff; and

(i)

maintaining records and collecting statistics required by the Tribunal.

Following Sir David Clementi’s 2004 Report on his Review of the Regulatory Framework for Legal Services in England and Wales, the government made it clear that it considered that the regulatory functions of the Law Society should be separated from its representative role. In 2007, this division was reflected in the Legal Services Act. However, in anticipation of that legislation, the Law Society delegated its disciplinary functions to a Regulation Board, later to be called the Solicitors Regulation Authority Board, which administers the Solicitors Regulation Authority, universally referred to as the SRA. The Regulation Board was created by the Law Society’s General Regulations January 2006, which came into force on 1 January 2006. Regulation 20(5) prescribed the membership of the Board:

The terms of office of the chairs and members of the Board were the subject of regulation 22:

22(1) Subject to (3), the chairs of the subsidiary boards serve for a single period of three years, and shall not be eligible for re-election at the end of that period.

(2)

Subject to (3), the other members of subsidiary boards (including Council members) serve for three years, being eligible for re-election or re-appointment, as the case may be, for one further period of three years only.

(3)

As a transitional provision, the members of subsidiary boards elected or appointed to serve for initial periods of four years shall serve for the period for which they were originally elected and shall thereafter be eligible to be re-elected or re-appointed for one further period of three years only.

(4)

A member elected or appointed to fill a casual vacancy on a subsidiary board serves until the end of his or her predecessor’s term, and shall thereafter be eligible for re-election or re-appointment for one further period of three years only.

(5)

The terms of office of the chair and members of the Consumer Complaints Board shall be two years, running from the date of appointment, and they shall be eligible for re-appointment for two further terms of two years only.

(6)

The terms of office of the chair and members of the Regulation Board shall be four years, running from the date of appointment, and they shall be eligible for re-appointment for one further term of four years only.

The terms of reference of the Board were in regulation 31:

31

The terms of reference of the Regulation Board are –

(1)

To exercise all monitoring, regulatory, investigative, adjudication, disciplinary, intervention, prosecution, enforcement, civil litigation and cost recovery powers vested in the Society or the Council under –

(a)

the Act

…..

(2)

To deal with any actual or forthcoming litigation arising from the exercise of its functions under this Regulation in relation to individual casework matters and other regulatory decisions relating to individuals and particular recognised bodies.

…..

(11)

To deal with all proceedings before the Solicitors Disciplinary Tribunal, and all litigation arising from such proceedings.

The General Regulations January 2006 were updated in July 2007 and the updated Regulations came into force on 19 July 2007. The membership of the SRA Board was prescribed by regulation 21(6):

(6)

The Solicitors Regulation Authority Board shall consist of –

(a)

a Chair, who shall be a solicitor but not a Council member, appointed by the Council following an open recruitment process taking into account Guidelines issued by the Commissioner for Public Appointments;

(b)

seven non-Council members, who shall not be solicitors, appointed in the manner described in (a), and

(c)

eight non-Council members, who shall be solicitors, appointed in the manner described in (a).

The terms of office of its chair and members were set out in regulation 23(4), which was in the same terms as regulation 22(6) of the 2006 Regulations.

The hearings of the allegations against the Appellant began in May 2007, and were continued in July and completed in October 2007. Thus they began when the 2006 Regulations were in force and were completed when the 2007 Regulations had come into force. There is no significant difference for present purposes between the 2006 and the 2007 Regulations, and it has not been suggested that anything turns on the difference between them.

In 2003 a memorandum of understanding was drawn up between the Master of the Rolls, the Law Society and the Tribunal. It was not a published document. The first paragraph was as follows:

In addition, the memorandum records:

The facts of the disciplinary charges faced by the Appellant before the Tribunal are irrelevant to the issues on this appeal, and it is unnecessary to set them out. The Appellant makes no complaint about the independence of the Tribunal apart from his allegations concerning the clerk, or as to the conduct of the hearing of the charges against him until the completion of the evidence and closing speeches. Furthermore, he made no complaint as to the independence of the Tribunal or as to its procedures at the time, i.e., when its findings and its decision on sanction were announced. He appealed to the Administrative Court against the findings of and the sentence imposed by the Tribunal on numerous grounds, only one of which is relevant to this appeal:

It is understood that the judgment of the Tribunal was drafted in whole or in part by the Clerk to the Tribunal and not by the Tribunal members. This is understood to be the current practice of the Tribunal. The Clerk had no statutory authority or other legal power to take part in the decision-making process, still less to draft all or part of the Tribunal’s judgment. The Appellant was entitled to be tried by a “Tribunal established by law” – (ECHR Art 6(1). If the Clerk drafted any part of the judgment, that was a breach of natural justice: the Appellant thought he was being tried by the Tribunal members and by no-one else. The Appellant asked the Tribunal to confirm what part the Clerk played in the drafting of the Findings. If she played any part, the decision must be regarded as a nullity and should be quashed.

In response to this ground of appeal, the Tribunal served and filed witness statements of Susan Elson, the clerk to the Tribunal, Sheila Whitfield, a deputy clerk who acted as the clerk to the panel that heard and determined the charges against the Appellant, and Jacqueline Devonish, the solicitor member of the Tribunal who chaired the proceedings against him. Mrs Elson described the clerk’s role in a routine case, and confirmed that it included attending the hearing, and giving advice on law and procedure if called upon to do so. In addition, she said:

.. the clerk:

•

…

•

retires with the Tribunal, hears its discussion and decision, and takes a note. The clerk plays no part in the decision-making process but might, for example, seek clarification of the reasons for a particular decision for the purposes of the note. As will be explained, the clerk will have the initial responsibility for producing the written record of the Tribunal’s decisions and reasons and, as discussion may have been wide ranging and time consuming, will wish to ensure that he or she has captured and summarised the members’ decisions and reasons accurately, and that nothing has been overlooked;

•

draws to the attention of the Tribunal similar past cases and, if appropriate, the sanctions imposed. Although the Tribunal is not formally bound by precedent in relation to its own decision information of this kind might be sought in the interests of maintaining consistency;

•

draws up the Tribunal’s order on a pro forma, which is then typed and signed by the chairman and handed down to the parties on the day of the hearing. The practice is that the chairman gives brief oral reasons before the orders are handed down, and confirms to the parties that the detailed written Findings will be prepared and distributed subsequently. The chairman’s brief oral extempore ‘judgment’ is prepared and written by the chairman, with input from the other two members;

•

prepares an initial draft of the Findings.

Mrs Elson enlarged on the last matter in paragraphs 8 and 9 of her witness statement:

8.

The first draft is then circulated amongst the members who consider it and make any adjustments or amendments they see fit. This is not in any sense a process limited to the parts of the Findings recording the rulings and findings of the members. Whole sections may be rewritten entirely. The initial draft is the clerk’s minute of the proceedings, in the courtroom and in the retiring room. It is a record of events committed to paper by an experienced professional, which is then fully reviewed and amended as necessary by the members. The Findings, particularly in a complex case, may go through many draft stages before the members are all agreed on the final record. Unless the members specifically ask for further assistance (such as a reminder of words used, from the digital record) the clerk has no further contribution to make after the first draft is with the members. Successive amendments are handled by the Tribunal staff as matters for the typists.

9.

When all the members are agreed the Findings are signed by the chairman, distributed to the parties and filed with the Law Society.

Mrs Whitfield confirmed that she had retired with the members of the Tribunal when they considered their decisions. She stated:

3.

Usually the clerk will produce the first draft [of the Findings] as a complete document. In this case the chairman and other members played a part as the draft progressed. This was primarily due to the number and extent of the applications and objections raised in the course of the hearing, as recorded in section 4 of the Findings, and the length and complexity of the proceedings. Having made a note of the full reasons as provided by the members at the time, in retirement, and in the light of the oral reasons given as recorded in the transcript, I took the view that this part of the Findings could be set out in relatively short and summary form. I also provided the summaries of the evidence of witnesses and submissions, but I circulated the draft to the members at a preliminary stage to check that they were happy with the approach I had adopted.

4.

There was also a departure from the normal process in that the chairman drafted, in the sense that she dictated, some of the decisions of the Tribunal in section 4 of the Findings.

5.

My notes from the 26^th October 2007 indicate that the members were in retirement discussing their final decision in relation to liability for approximately six and a half hours. Once a consensus was reached the chairman drafted, with the assistance of the other members, a rather longer set of oral reasons to be read in open court than is normally the case. My contribution was to remind them, from my note, of comments and reasons made and given during the course of the lengthy discussion. It was this set of reasons, as should be apparent from the transcript, which formed the basis of my first draft of section 7 of the Findings. After hearing submissions in mitigation and also costs the members spent a further period of just under two hours considering penalty and costs.

Miss Devonish agreed with Mrs Elson and Mrs Whitfield, and added:

5.

The one matter with which it may be appropriate for me to deal is that there may be an implication that the decision was in substance that of the clerk rather than of the members, wholly or in part, or that the clerk contributed inappropriately to the decision-making process. If there is an allegation or implication that the decisions, orders and reasons were not wholly those of the members of the Tribunal as duly constituted, I refute it. The decisions, orders and reasons recorded in the Findings are the findings of the members of the Tribunal. I signed the Findings on 13 October 2008 to record that fact.

Until shortly before the hearing of his appeal by the Administrative Court, the Appellant and his counsel were unaware that the clerk to the Tribunal was an employee of the Law Society. It seems that one of them accessed the Tribunal website, and discovered this statement:

There are other facts that are relevant and are set out in the judgment of Scott Baker J in the Divisional Court:

1.

The Tribunal uses a building not used by the Law Society.

2.

The Law Society has no control over and does not interfere with the routine management or operation of the Tribunal.

3.

None of the clerks has ever been employed by the Law Society for any purpose other than as clerk to the Tribunal. They have never served the Law Society in any other capacity.

4.

The clerks have no routine contact with the Law Society other than as a nominal employer.

5.

There is no link between results of cases in the Tribunal and career development of clerks.

The discovery that the clerk to the Tribunal was employed by the Law Society led Mr Beaumont to seek, and to obtain, from the Divisional Court permission to amend the grounds of appeal to add the following paragraphs:

The Divisional Court held that the Tribunal had power to permit the clerk to retire with them when they considered their decision and to assist them by drafting part of the formal findings by virtue of rule 31(a) of the Solicitors (Disciplinary Proceedings) Rules 1994: i.e., these matters were part of the procedure of the Tribunal. In relation to the contention that the clerk’s involvement gave an appearance of bias and led to a breach of Article 6, Scott Baker LJ came to the following conclusions, with which David Clarke J agreed:

1.

The SDT is entirely independent of the Law Society. The historical and financial connections are well documented as are the steps that have been taken to keep the two bodies separate.

2.

The independence of the Tribunal is well established on the authorities.

3.

The attack in the present case is not directly on the Tribunal but on the clerk, it being alleged that because she was employed by the Law Society that this in some way tainted the Tribunal's decision because the Law Society was the prosecutor and neither party should have any connection with the Tribunal. Examination of the clerk's position however shows that her employment by the Law Society (as with all Tribunal clerks) is not employment in the ordinary sense of the word but very much technical employment for remuneration purposes.

4.

The clerk was not the decision maker, either by virtue of her position or on the particular facts of this case. Even taking the broadest view of what the independent and informed observer might think, I can see no basis for concluding that the Tribunal's decision could be considered to be biased against the appellant.

5.

Nothing the clerk did was improper. She was not in any way a party to the decision. She followed the ordinary administrative procedures adopted in other cases. She was entitled to assist in drafting the findings document which, in the event, was not in any way inconsistent with the extempore reasons give by the Chair on 26th October 2007.

On behalf of the appellant, Mr Beaumont repeated the submission he had made below, that the Tribunal did not have power to invite its clerk to join it when they retired to consider their decisions. He submitted that this was not part of the “procedure” of the Tribunal for the purposes of rule 31(a): the rule is concerned with formal matters such as the service of documents by the parties setting out their respective cases and the disclosure of documents. Mr McLaren and Mr Hopper submitted that the conclusion of the Divisional Court had been correct. However, during the course of argument, the Court suggested that the Tribunal might have implied power to retire with their clerk. This led the Tribunal to serve a Respondent’s Notice, with the permission of the Court. Mr Beaumont was able to address this issue orally, and was given time to provide any authorities he relied upon.

On the question whether the proceedings of the Tribunal were marred by apparent bias, Mr Beaumont accepted that someone who knew all the facts concerning the role of the clerk in the proceedings against the appellant would appreciate that there had been neither bias nor an appearance of bias. However, he contended that the hypothetical fair-minded and informed observer would not have access to all the information now before the Court, but would be restricted to information that was publicly available. He submitted that the retirement of the clerk with the Tribunal gave the impression that one party, namely the prosecutor, had access to the Tribunal that was unavailable to the appellant, and there was therefore an inequality of arms, or at least an appearance of such inequality. Furthermore, the participation of the clerk in the drafting of the findings of the Tribunal meant that the case against the Appellant had not been determined by the Tribunal appointed by the law. Although the prosecution of the Appellant had been conducted by the SRA, it was an agent of the Law Society, and the participation of an employee of the Law Society in the decision of the Tribunal gave the appearance of bias. The Appellant’s rights under Article 6 of the Convention had been breached and the decision of the Tribunal had to be quashed.

Mr McLaren and Mr Hopper submitted that the restriction contended for by Mr Beaumont on the information available to the informed observer is inconsistent with authority and reason. On the information before the Court and that which would have been available to the Appellant had he challenged the part played by the clerk in the Tribunal while it was sitting, there was no bias or appearance of it. The clerk was employed by the Law Society, but the prosecuting authority was the SRA, which, although not a separate legal entity from the Law Society, enjoyed sufficient constitutional independence. The clerk’s employment and any decisions as to its continuance or her pay were not within the power of the Law Society or the SRA. As to the drafting by the clerk of parts of the written findings of the Tribunal, that had occurred after the decision had been announced and filed with the Law Society. On the authority of the decision of the Divisional Court in Baxendale-Walker v. the Law Society [2006] EWHC 643 (Admin) the Tribunal was functus officio once its decisions had been announced.

Was the retirement of the clerk with the members of the Tribunal ultra vires?

A statutory body, such as the Tribunal, has only such powers as Parliament has conferred on it. However, it may not be confined to the powers expressly conferred. It is lawful for it to do what the law expressly or impliedly authorises: see, for example, Sir Thomas Bingham MR in R (Fewings) v Somerset CC [1995] 1 WLR 1037, 1042H. Generally, a body created by statute must have powers given to it if its acts are to have legal effects. It must therefore have powers conferred if it is to enter into contracts, and the power to enter into contracts may be circumscribed by reference to its authorised functions. In the case of a disciplinary tribunal, it must have powers conferred on it if it is to make legally binding decisions, including rulings as to its procedure which, if not complied with, may have legal consequences. But it does not need to have powers conferred for acts that have no direct legal effect. Indeed, the word “power” is strictly inaccurate. When a tribunal invites its clerk to advise it, or to remind it of evidence, whether in plenary session or in private, it is not exercising a power, but rather a liberty. Its act may have an indirect legal effect, if, for example, it renders the proceedings unfair, but not otherwise. So I doubt whether there is really an issue of vires in this case at all. We are, rather, concerned as to whether there was, impliedly (since there was no express restriction), a prohibition on the Tribunal acting as it did.

It is, I think, significant that the role of the legal adviser to justices in magistrates’ courts, including the circumstances in which he or she may retire with the bench, is the subject of a Practice Direction (the Practice Direction (Criminal Consolidated) [2002] 1 WLR 2870 [2002] 3 All ER 904 at paragraph 55). A practice direction could not confer power on a magistrates’ court to do that which was otherwise ultra vires. It has never been suggested that the retirement of a clerk or legal adviser with a bench of justices is ultra vires or prohibited, other than when it gives an appearance of bias or unfairness, as in R (McCarthy) v Sussex Justices [1924] 1 KB 256, where the clerk who retired with the justices was a member of the firm of solicitors acting for the person seeking damages from the defendant in relation to the traffic accident that was the subject of the trial. It is to be noted that the conviction was quashed in that case not because the clerk had retired with the justices, but because, as Lord Hewart CJ said:

It is clear that the deputy clerk was a member of the firm of solicitors engaged in the conduct of proceedings for damages against the applicant in respect of the same collision as that which gave rise to the charge that the justices were considering.

This decision, relied upon by Mr Beaumont, is inconsistent with any implied general prohibition on a clerk retiring with the justices. Furthermore, there is no suggestion in the judgment that the retirement of a clerk with the justices was the subject of, or required, any express provision of the then Magistrates’ Court Rules.

However, if there is an issue of vires, it must be remembered that a statutory body does not require express conferment of specific powers in order to perform its functions. Parliament is taken to have impliedly conferred powers ancillary to the discharge of their functions. In Attorney-General v. Great Eastern Railway Co.  (1880) 5 App. Cas. 473, Lord Selborne L.C. said, at p. 478, that the doctrine of ultra vires: "ought to be reasonably, and not unreasonably, understood and applied, and that whatever may fairly be regarded as incidental to, or consequential upon, those things which the legislature has authorised, ought not (unless expressly prohibited) to be held, by judicial construction, to be ultra vires." In the case of local authorities, that principle was enacted in section 111 of the Local Government Act 1972: see Woolf LJ in Hazell v Hammersmith and Fulham LBC [1990] 2 QB 697 at 722, and the speech of Lord Templeman in that case in the House of Lords at [1992] 2 AC 1, 29. Of course, that implied conferment of powers is subject to any express or implied statutory restriction.

Thus, if Parliament creates a tribunal and says nothing about its procedure and administration, it will have implied powers incidental to the exercise of its jurisdiction: power to regulate its procedure and to make such administrative arrangements as are appropriate for it to discharge its functions. Provided it has a budget, it may hire staff, including a clerk, give them instructions, arrange accommodation for its hearings, purchase stationery, and so on. In my judgment, therefore, the new section 46(5A) of the Solicitors Act 1974 only confers expressly what had previously been conferred impliedly.

These considerations lead me to think that Mr Beaumont is in a “Catch 22” situation. Either when the Tribunal instructed or invited their clerk to retire with them and to assist them they were regulating their own “procedure” within the meaning of rule 31(a), or what was done was no more than an administrative arrangement within the implied incidental powers of the Tribunal. Indeed, Mr Beaumont’s case is that the Tribunal’s action in permitting the clerk to retire with them was an administrative arrangement, not part of the procedure. Of course, if what was done rendered the proceedings unfair, different considerations would arise: the proceedings would be unlawful not because of a lack of vires but because the effect of the exercise of the power was unfair. But any unfairness in the procedure is the subject of the bias challenge. If the Tribunal lacked the power to invite their clerk to join them when they retired, and to seek her assistance on procedural and other matters, as they did, the fact that the consequence was innocuous would be irrelevant.

In my judgment, the procedure of the Tribunal included their withdrawing to consider their decision in private with their clerk and her role in this case. Mr Beaumont submitted that the procedure of the Tribunal within the meaning of rule 31(a) is confined to the trial process. There is no basis for so limiting the rule. The procedure of the Tribunal did not come to an end when they retired to consider their decision. As was held in Baxendale-Walker [2006] EWHC 643, once they had announced their decisions, both on whether the Appellant had been guilty of serious professional misconduct and on sanction, they were functus officio in that they could not reconsider or change those decisions; but they retained the power and the duty to provide adequate written findings. The provision of formal written findings is as much part of the procedure of the Tribunal as the trial process and the announcement of their decisions. But if I am wrong about this, I have no doubt that the Tribunal had implied power, if power was required, to permit or to invite their clerk to retire with them and to assist them in the manner she did in this case.

The assistance of the clerk in drafting the formal written Findings of the Tribunal occurred and occurs after the decision of the Tribunal has been given orally and its formal order filed with the Law Society. At that point the decision is effective, and the Tribunal has no power to reconsider it: Baxendale-Walker at paragraphs 23 to 28. It follows that what occurs subsequently cannot in general give rise to a ground of appeal against the decision.

After the hearing of this appeal, we were provided with copies of the judgments of the Hong Kong Court of Appeal in Au Wing Lun v the Solicitors Disciplinary Tribunal CACV 4154/2001 and A (Solicitor) and B (Solicitor) v the Law Society of Hong Kong CACV 269/2004. The appeals in those cases concerned the costs orders made by a Solicitors Disciplinary Tribunal. The court made observations on the role of the clerk to the tribunal, whose fees had been included in the costs which the appellants had been ordered to pay. In Au Wing Lun, the clerk had retired with the tribunal and drafted its findings before it had given its decision and made its order. The Court considered that there was a grave suspicion that justice had not been done, in that it was unclear whether the reasons for the decision of the Tribunal were in fact its reasons rather than the clerk’s. In the second case, the clerk had drafted the findings and the order of the tribunal, including its order for costs, which included his fees. Again, it was not clear that the order and findings were those of the tribunal itself, or were the result of suggestions made by the clerk in the absence of the parties. The facts of those cases differed from the present, in which it is conceded that on the basis of the facts as now known, nothing untoward occurred. The Findings of the Tribunal are clearly their findings. In these circumstances, it is inappropriate to consider issues that could conceivably arise in other cases, particularly since the rules of the Tribunal now make express and specific provision on the role of the clerk.

It follows that I would reject this ground of appeal.

The essential issue raised by Mr Beaumont is whether the hypothetical informed observer posited by the authorities, in the House of Lords in Porter v Magill [2001] UKHL 67 [2002] 2 WLR 37, is in possession of all the facts when he decides whether there appears to be a real risk of bias, or whether he is restricted to publicly available information. In the present case, the information that led to this ground of challenge being put forward was that discovered by the Appellant or on his behalf on the Internet.

Quite apart from authority, there are four reasons why I would reject Mr Beaumont’s contention. The first is that the informed observer is not a real person. He is not referred to in Article 6. He is only a construct, a tool, a hypothetical conception posited in order to assist the Court in deciding whether the proceedings in question were and were seen to be fair, as required by Article 6 and common law. I am reminded of what Lord Radcliffe said of the reasonable man, in a different context, in Fareham UDC v Davis Contractors Ltd [1956] AC 696, [1956] UKHL 3.

… the spokesman of the fair and reasonable man, who represents after all no more than the anthropomorphic conception of justice, is and must be
the Court itself.

Similarly, in Locabail v Bayfield Properties Ltd [2000] QB 451, 477 the Court of Appeal referred to the court “personifying the reasonable man”. The ultimate question is whether the proceedings in question were and were seen to be fair. If on examination of all the relevant facts, there was no unfairness or any appearance of unfairness, there is no good reason for the imaginary observer to be used to reach a different conclusion.

My second reason is that the imaginary observer is fair-minded. A fair-minded person would not reach a conclusion that a tribunal was biased or appeared to be so, without seeking to obtain the full facts and any explanation put forward by the tribunal.

My third reason is that if the challenge to the impartiality of the tribunal had been made at the time, i.e. to the Tribunal, it would have been able to and would in fact have put the full facts before the Appellant. There is no good reason why the Appellant should be in a different, and better, position to challenge the Tribunal before an appellate court after the Tribunal has given its decision.

My fourth reason is that Mr Beaumont has suggested no sensible criterion to distinguish between the facts that may, on his submission, be considered in determining whether the Tribunal was apparently biased and the full facts. He suggested that the restriction is to facts that are publicly available, and in the present case included only the facts on the Tribunal’s website stating that the clerk to the Tribunal is an employee of the Law Society seconded to the Tribunal. But the relevant facts cannot be restricted to what the Law Society, which on the Appellant’s case is a party to the disciplinary proceedings, or indeed anyone else, chooses to put on its website. Facts that point to bias (for example, that the clerk was a former employee of a victim of alleged professional misconduct) may not be publicly available; once such facts are disclosed, so must other facts relevant to the relationship between the clerk and the victim. Moreover, what is publicly available? Are facts that would be obtained on inquiry of the Law Society “publicly available”? In my judgment, for present purposes they are, and I have no doubt that all the facts now before the Court would have been disclosed by the Tribunal if asked. An obvious example is the memorandum of understanding with the Master of the Rolls to which I have referred. It is not a secret or confidential document, but it has not hitherto been available on the Internet. The document is held by the Tribunal, and if it had been challenged, I have no doubt it would have been produced,

Lastly, Mr Beaumont’s submission is inconsistent with authority, including authorities binding on this Court, and which bear out the above considerations. In Porter v Magill the House of Lords approved the test formulated by Lord Phillips of Worth Matravers MR in In re Medicaments and Related Classes of Goods (No 2)  [2001] 1 WLR 700 at 726-7:

The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.

The first sentence is inconsistent with any limitation on the circumstances that should be taken into account. See too R v Gough [1993] AC 646 at 670. Similarly, in Medicaments the Court of Appeal said, at paragraph 83:

The material facts are not limited to those which were apparent to the applicant. They are those which are ascertained upon investigation by the court.

Parenthetically, in the present case the Appellant did not perceive any apparent bias during the Tribunal’s proceedings. More recently, in Helow v Home Secretary [2008] UKHL 62 [2008] 1 WLR 2416, Lord Hope, with whom Lords Rodger, Walker and Cullen expressly agreed, said:

1.

The fair-minded and informed observer is a relative newcomer among the select group of personalities who inhabit our legal village and are available to be called upon when a problem arises that needs to be solved objectively. Like the reasonable man whose attributes have been explored so often in the context of the law of negligence, the fair-minded observer is a creature of fiction. Gender-neutral (as this is a case where the complainer and the person complained about are both women, I shall avoid using the word "he"), she has attributes which many of us might struggle to attain to.

2.

The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious, as Kirby J observed in Johnson v Johnson (2000) 201 CLR 488, 509, para 53. Her approach must not be confused with that of the person who has brought the complaint. The "real possibility" test ensures that there is this measure of detachment. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses. She will not shrink from the conclusion, if it can be justified objectively, that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially.

3.

Then there is the attribute that the observer is "informed". It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.

I do not detect any difference of substance between the speech of Lord Hope and that of Lord Mance. Paragraph 3 of Lord Hope’s speech is of obvious relevance, and is inconsistent with the Appellant’s case.

It is true that in Locabail the Court of Appeal said, at 477:

Provided that the court, personifying the reasonable man, takes an approach which is based on broad common sense, without inappropriate reliance on special knowledge, the minutiae of court procedure or other matters outside the ken of the ordinary, reasonably well informed member of the public, there should be no risk that the courts will not ensure both that justice is done and that it is perceived by the public to be done.

However, in Gough, the Court considered evidence from the juror whose impartiality was in issue. In Locabail itself, the Court considered facts that were not publicly available (see, for example, paragraph 105), and gave guidance as to how evidence from an impugned judge, lay justice or juror should be considered. In Re Medicaments, the relevant facts were not publicly available. In Whitefield v the General Medical Council [2002] UKPC 62, the Privy Council considered a witness statement made subsequent to the hearing in question and on its basis rejected the allegation of bias. We have not been referred to any authority explaining what the Court in Locabail meant by special knowledge, but I have no doubt that the present case does not turn on any such knowledge, or the minutiae of tribunal procedure or other matters outside the ken of the ordinary, reasonably well-informed observer.

For these reasons, I do not consider that the statement of Colman J and his fellow Visitors to the Inns of Court in Re P., a barrister [2005] 1 WLR 3019, a copy of which was put before us, that “the perception of impartiality is to be based on that which is open to view and not on facts which would be hidden from an outside fair observer”, can be taken at its face value. Just as facts that are not open to view may, once discovered, give rise to a perception of partiality, so an explanation of them may show that perception to be unfounded. Significantly, we have not been referred to any other case in which information relevant to the issue of bias or an appearance of bias has been excluded from consideration.

Looking at the matter on the basis of the information before us, I have no doubt that the Tribunal was impartial and independent and appeared to be so. In Pine v the Law Society (unreported, 13 November 2000, CO/1385/2000) the appellant contended that the Tribunal was not an independent and impartial tribunal, so that its determination against him violated his rights under Article 6. Crane J said, in a judgment with which Lord Woolf LCJ and Rafferty J agreed:

23.

Standing back, and bearing in mind the statutory scheme for the Disciplinary Tribunal, I see no reason to doubt its independence or impartiality. It is independent of the Law Society. There is no indication that the Law Society can influence its decisions, except in the sense of making submissions to the Tribunal as a party before the Tribunal. No evidence or suggestion has been made that the particular Tribunal demonstrated any partiality in any way. In my judgment, the submission that the Solicitors Disciplinary Tribunal does not meet the test of being an independent and impartial tribunal is not made out. ….

The same conclusion was reached in Holder v the Law Society [2005] EWHC 2023 (Admin), at paragraphs 20 to 27.

The Tribunal is even more independent now. The prosecuting authority is the SRA, not the Law Society. Although the SRA is not a separate legal body, it has effective independence. The members of the board determining its activities are not and cannot be members of the Council of the Law Society, and they include lay members who have no professional affiliation to the Law Society. It is not in any relevant sense an agent of the Law Society: the Law Society cannot direct its activities and its decisions do not bind the Law Society. Thus the fact that the clerk to the Tribunal was in this case, and generally is, an employee of the Law Society, takes the Appellant nowhere. Nor does the fact that the SRA exercised disciplinary and prosecution functions vested by statute in the Society: those functions have been effectively delegated to the SRA. It cannot sensibly be said that the prosecutor has access to the members of the Tribunal that is unavailable to the Appellant, or that an employee of the prosecutor was the clerk to the Tribunal. Lastly, the fact that an order for costs was made in favour of the Law Society is irrelevant. It was the Law Society that funded the SRA and the Tribunal, so that any order for costs had to be made payable to it.

For these reasons, which are in substance the same as those of the Divisional Court, I would reject the contention that there was any appearance of bias or partiality on the part of the Tribunal. It follows that I would dismiss the appeal.

I agree.

I also agree.