[1] The petitioners, to whom we will refer as "the Council", seek the review under section 54 of the Solicitors (Scotland) Act 1980 ("the 1980 Act") of an interlocutor of the Scottish Solicitors' Discipline Tribunal ("the Tribunal") dated 18 October 2000. The Tribunal decided that the prosecution of a complaint against the respondent by the Council was in breach of Article 6.1 of the European Convention on Human Rights and dismissed the complaint. In reaching that decision the Tribunal gave effect to a preliminary plea for the respondent that the prosecution of the complaint was in breach of his right under Article 6.1 to a determination "within a reasonable time". Under the 1980 Act the business of the Law Society of Scotland ("the Law Society") is conducted by the Council, and the Council has certain statutory functions.

[2] The written decision of the Tribunal sets out in some detail the circumstances in which the complaint was made by the Council to the Tribunal under section 51 of the 1980 Act. We briefly summarise these circumstances as follows.

[3] In a letter dated 18 December 1995 the client of a firm of solicitors in Blairgowrie made a complaint to the Law Society about the firm's handling of a litigation in the Sheriff Court in which they had acted on his behalf. In August 1992 they had not been successful in an appeal against the pronouncing of decree by default in respect of a counterclaim in that action, and had thereafter withdrawn from acting for him.

[4] In a letter dated 13 August 1996 the firm responded to an enquiry by the Law Society in regard to the complaint, alleging that the client had not supplied them with the information which they had requested in order to allow them to lodge answers to the counterclaim. This repeated an allegation which they had made in a letter to the client dated 18 September 1992.

[5] The respondent had been responsible for supervising the litigation on behalf of the client. The letters dated 18 September 1992 and 13 August 1996 bore his reference. The first was signed by one of the respondent's partners. The second was signed by the respondent himself.

[6] On 30 May 1997 the Law Society intimated to the firm, and to the client, that the Complaints Committee had made a finding of inadequate professional services on the part of the firm, and that the firm should pay compensation to the client in the sum of £250. This decision was ratified by the Council and constituted a direction under section 42A(2)(d) of the 1980 Act.

[7] The client thereafter exercised his right to refer the matter to the Scottish Legal Services Ombudsman under section 34 of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1990 ("the 1990 Act"). On 4 June 1998 the Ombudsman issued an opinion recommending that the client's case should be reopened, and expressed concern that the firm's file did not contain correspondence indicating that the client had been advised that insufficient information had been provided.

[8] Thereafter there was correspondence between the Law Society and agents acting for the respondent in which the Law Society sought his comments, and certain explanations were provided by him.

[9] On 15 January 1999 a reporter, to whom the file and relevant correspondence had been passed with a request for an opinion, issued a report which for the first time raised the question of professional misconduct on the part of the respondent. On 15 April 1999 the Law Society wrote to the respondent's agents advising them of the issue which had been raised in the report. The suggestion was that the respondent had attempted to mislead the client about the progress of the action and the appeal.

[10] On 5 May 1999 the Law Society intimated to the respondent that the Council had raised a complaint about his conduct, on the basis of the allegation that he had attempted to mislead the client. The Law Society were obliged to investigate this as a "conduct complaint" under section 33 of the 1990 Act. The respondent was asked for his written comments. Between June and September 1999 there was correspondence between the Law Society and the respondent's agents, in the course of which the Law Society sought his comments without success.

[11] The reporter's funding on the conduct complaint was intimated to the respondent's agents by letter dated 19 November 1999. This report recommended the prosecution of a complaint against the respondent for professional misconduct. A response was sought from the respondent before this recommendation was put before a committee of the Law Society. In the absence of a response from the respondent, despite an extension of a period allowed for it to be received, the Law Society wrote to his agents on 24 January 2000 informing them that the matter would be put before a committee in February 2000.

[12] By letter dated 10 February 2000 the Law Society informed the agents that the committee, having considered the complaint, had taken the view that his conduct amounted to professional misconduct and had recommended that he be prosecuted before the Tribunal in regard to it. By letter dated 10 March 2000 the Law Society wrote to the respondent's agents advising that the Council took the view that the matter was sufficiently serious to justify referring the matter to the Tribunal for prosecution.

[13] The complaint by the Council to the Tribunal, which was made on 9 May 2000, alleged that the respondent had been guilty of professional misconduct within the meaning of section 53 of the 1980 Act. In particular, the complaint averred that:

(a) he had deliberately misled the client by stating in his letter of 18 September

(b) he had misled the Council then in pursuit of their statutory enquiries by

[14] Before the Tribunal the respondent relied on section 6(1) of the Human Rights Act 1998 ("the 1998 Act") which provides:

It was accepted by the parties that the Council was a "public authority" for the purposes of section 6. Section 7(1) of the 1998 Act provides that the person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may, inter alia rely on the Convention right or rights concerned in any legal proceedings but only if he is (or would be) a victim of the unlawful act. For this purpose "legal proceedings" include "proceedings brought by or at the instigation of a public authority". It was accepted by the parties that the prosecution of the complaint before the Tribunal constituted "legal proceedings". Thus the claim made by the respondent before the Tribunal was that for the Council to prosecute the claim before the Tribunal was incompatible with the respondent's right under Article 6.1 of the Convention.

[15] At this stage two points may be noted in regard to the proceedings before the Tribunal, as can be seen from the note which forms part of their written decision.

[16] First, the Tribunal observed that, although the type of proceedings before them were not criminal in the strict sense, there were material similarities in that a solicitor was subject to a charge, usually of professional misconduct; the prosecution depended on the charge being established beyond reasonable doubt; and the remedies available to the Tribunal were largely of a penal nature. With the agreement of both parties the Tribunal considered it appropriate to have regard to the approach taken by the courts in dealing with the right to the determination of criminal proceedings "within a reasonable time" under Article 6.1. The Tribunal were referred to a number of decisions in the High Court of Justiciary and the European Court of Human Rights relating to such proceedings, and had regard to a number of considerations which were mentioned in those cases.

[17] Secondly, approaching the matter on that basis, the Tribunal stated that by 30 May 1997 the Society

The Tribunal went on to point out that, in the absence of any new evidence, the matter would ordinarily have rested on the basis of that determination. The material which caused the reporter to question the matter further, and which formed the basis of the complaint to the Tribunal, had been available to the Law Society prior to 30 May 1997. The Law Society's action in pursuing the fresh issue identified by the reporter undoubtedly prolonged the overall enquiry and took the preliminary procedure beyond what might have been regarded as being "within a reasonable time".

[18] In this court it was common ground that, for the purposes of Article 6.1, the proceedings before the Tribunal were concerned with the determination of the respondent's "civil rights and obligations", as opposed to the determination of a criminal charge against him. The powers conferred by subsection (2) of section 53 of the 1980 Act, which relates inter alia to professional misconduct, empower the Tribunal to impose a number of penalties including ordering that a solicitor be struck off the roll or that he be suspended from practice. Such penalties plainly impinge on the solicitor's right to pursue his profession. None of the possible disposals indicate that the proceedings are of a truly criminal nature, despite the terminology referred to by the Tribunal in this case. Following a line of decisions in the European Court of Human Rights it was observed by the court in Gautrin and Others v. France (1998) 28 E.H.R.R. 196, which was concerned with an adjudication on disciplinary offences in the medical profession:

This alludes to the first sentence of the French text of Article 6.1 which is in these terms:

It may be noted that in the case of an employee, on the other hand, disciplinary proceedings relating to his conduct in his functions are not regarded as concerned with the determination of his civil rights and obligations since the decision as to dismissal rests ultimately with the employer; the position is different if the disciplinary sanction deprives a practitioner of his right to continue to exercise his profession more generally (Papadopoulous v. Greece, Application no. 52848/99, 29 November 2001).

[19] Next it was common ground that it was not appropriate for the Tribunal to rely on decisions relating to criminal proceedings. This is plainly correct since the present case is not concerned with the time taken for the determination of a criminal charge but with the time taken for the determination of a contestation in respect of civil rights and obligations. It was not suggested by the respondent in argument that it was not open to the Council to depart from their previous acceptance that decisions relating to criminal cases were relevant, nor could it have been suggested. On any view it is the duty of the court, in the interpretation of Convention rights, to take into account the jurisprudence relating to the appropriate branch of Article 6 to which the case relates (see section 2(1) of the 1998 Act).

[20] The submission for the Council was that, in regard to the respondent's right to a determination "within a reasonable time", the period began when it could properly be said that there was a contestation to be determined between the Council and the respondent. Before the Council instigated the proceedings before the Tribunal by presenting their complaint in regard to the respondent's conduct there was no contestation as to his civil rights. When the complaint was submitted to the Tribunal it was then under the Tribunal's control, and the Tribunal had the responsibility of investigating and reaching a determination in regard to it.

[21] Reference was made on behalf of the Council to the decision in Brown v. The United Kingdom, Application no. 38644/97, 24 November 1998, which was concerned with proceedings in England against a solicitor for professional misconduct. The court rejected the proposition that the time ran from the date of the conduct complained of, stating that it ran from the date of the relevant procedure for determining the dispute, in that case the date when proceedings were issued against the solicitor before the Solicitors Complaints Bureau for professional misconduct. In Fontanesi v. Austria, Application no. 30192/96, 8 February 2000, the start of the relevant period was related to the date when the applicant was requested by the disciplinary body to file his observations in regard to the possible imposition of an interim measure suspending him from practice. This was prior to the stage at which the body opened disciplinary proceedings against him. These cases were compared with Janssen v. Germany, Application no. 23959/94, 20 December 2001, which was concerned with an application to a health insurance association for compensation in respect of the contraction of mesothelioma. It was held that the relevant period began when the applicant for compensation appealed to an appeals board of the association against the rejection of her claim for compensation. Only at that moment was there a dispute within the meaning of Article 6.1.

[22] For the Council it was submitted that it was important to distinguish between an action which the Council could take at its own hand to deal with inadequate professional services, and the action which only the Tribunal could take in order to adjudicate on a complaint of professional misconduct. It was wrong to treat the proceedings before the Tribunal as a carrying forward of a previous dispute between the client and the solicitor. The client was not entitled to give instructions to the Law Society, and the latter could look into matters which were not known to the client. The penalties which the solicitor might incur before the Tribunal would not bring compensation to the client. If there were a complaint as to the time taken by the Council before it presented a complaint to the Tribunal, it was open to the solicitor to take a plea of mora or a plea that there was a breach of his right to a fair trial in accordance with Article 6.1.

[23] Counsel for the respondent, on the other hand, pointed out that when a complaint was made by the client to the Law Society, the Council had the power and opportunity to investigate. The Council had their own jurisdiction. They could deal with a matter themselves and make a determination affecting the solicitor's rights and obligations. Alternatively they could refer the complaint to the Tribunal. At the time when the Council made its finding that there had been inadequate professional services it would have been open to them to take the view that there was evidence of professional misconduct. It was open to the Tribunal to take that as the starting point. The dispute was, and remained, between the client and the solicitor. What gave rise to the reference to the Tribunal was the client's complaint. It did not matter that the client did not have any active part in the proceedings before the Tribunal. Thereafter there was no new material. All that happened was that the existing material was re-assessed and there was a re-characterisation of what had happened. Junior counsel went further and submitted that there was a dispute at the moment when the client complained to the Law Society.

[24] Counsel for the respondent pointed out that in Golder v. The United Kingdom (1975) 1 E.H.R.R. 524 the European Court of Human Rights had commented that contestations generally existed prior to legal proceedings and were conceptually independent of them (para. 32). Likewise in Le Compte, Van Leuven and De Meyere v. Belgium (1981) 4 E.H.R.R. 1 the court observed that in consequence Article 6.1 might be relied on by anyone who considered that there had been an unlawful interference with the exercise of his civil rights and complained that he had not had the opportunity of submitting his claim to a tribunal in accordance with that Article (para. 44). In Benthem v. The Netherlands (1985) 8 E.H.R.R. 1 it was held that a genuine and serious dispute as to the actual existence of a right to a licence arose, at the latest, after an appeal had been lodged by a public official against the decision of the municipal authorities to grant that licence (para. 33). It was observed in that case that conformity with the spirit of the European Convention required that "contestations" should not be construed technically and should be given a substantive meaning (para. 32).

[25] In considering these submission we should, at the outset, examine the provisions of the 1980 Act which govern the powers of the Council and the Tribunal. The following features may be noted:

(i) The Tribunal is independently constituted in accordance with Part I of

(ii) Proceedings before the Tribunal may originate from a complaint by the

(iii) Under para. 8 of Part II of Schedule 4 to the 1980 Act, which deals with the

(iv) Both the Council and the Tribunal have power to make a finding of inadequate

(v) For the purpose of dealing with a complaint of inadequate professional

(vi) While a complaint by a client to the Law Society may be followed by a

[26] The foregoing considerations clearly indicate that (a) the jurisdiction of the Tribunal is distinct from that of the Council; and that (b) the contestation which is the subject of proceedings before the Tribunal is distinct from any dispute which lies within the power of the Council to deal with.

[27] We recognise, of course, that a contestation is conceptually independent of legal proceedings. That independence is clearly demonstrated where a person claims that he has been denied access to a tribunal for the determination of an existing dispute or where the tribunal to which he has access lacks the qualities required by Article 6.1. In other cases, such as Benthem v. The Netherlands, the taking of a procedural step such as initiating an appeal against a decision is taken as indicative of the inception of a dispute.

[28] In the present case, as we have already narrated, the submission for the respondent was that a dispute existed when the client complained to the Law Society, or at any rate when the Council made their finding of inadequate professional services. However, it is clear, because of the distinct nature of the proceedings before the Tribunal and the dispute with which it was concerned, that the first of these propositions cannot be correct. As regards the latter proposition, the same applies. In addition we do not accept that a dispute about professional misconduct should be held to exist at a time when, it is said, the Council ought to have identified the grounds for a complaint of such misconduct. At that time the Council had formed no view that there was evidence of professional misconduct, let alone communicated such a view to the respondent or to the Tribunal. The Council did not commit itself to a complaint of professional misconduct against the respondent until after it had received advice from the reporter, had given an opportunity to the respondent to comment, and had received the recommendation of the appropriate committee. If it is asserted that the Council should have made a complaint of professional misconduct earlier than it did, and that on this account it should not be allowed to proceed with such a complaint, the respondent is not without remedy, as was pointed out by counsel for the Council.

[29] For these reasons we consider that the Tribunal was in error in selecting 30 May 1997 as the date by reference to which it fell to be decided whether a reasonable time had elapsed. The correct starting point was, in our view, the date when the Council made the complaint to the Tribunal, namely 9 May 2000, so first putting in issue a dispute as to professional misconduct, the result of which could affect the respondent's civil right to practise as a solicitor. In these circumstances it is plain that there was no breach of Article 6.1.

[30] We do not require to go on to consider a further submission which was made to us on behalf of the Council, which was to the effect that, even if the Tribunal reached a correct decision as to the reference date, it fell into error in concluding that it followed that the complaint should be dismissed. We would, however, observe that before the Tribunal it appears to have been accepted by the Council that this was an inevitable consequence. However that may be, it is not a matter which now arises.

[31] We shall accordingly allow the appeal against the decision of the Tribunal, and remit the complaint to the Tribunal to proceed as accords. However, while the question of the continuance of the proceedings is a matter for the Tribunal, they may wish to consider whether, in view of the history of events which led up to the complaint, and the time which has elapsed since the complaint was presented, the public interest would be best served by this matter being pursued.