PETITION OF JAMES GERAD MOORE FOR JUDICIAL REVIEW OF A DECISION OF THE SCOTTISH SOLICITORS' DISCIPLINE TRIBUNAL DATED 24 OCTOBER 2014
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 182
P533/15
OPINION OF LORD BANNATYNE
In the petition of
JAMES GERAD MOORE
Petitioner;
for
JUDICIAL REVIEW OF A DECISION OF THE SCOTTISH SOLICITORS’ DISCIPLINE TRIBUNAL DATED 24 OCTOBER 2014
Petitioner: Creally QC, Tariq; T C Young LLP
Respondent: Dunlop QC; Balfour & Manson LLP
30 December 2015
Introduction
[1] The petitioner, a solicitor, seeks judicial review of a decision of the Scottish Solicitors’ Discipline Tribunal (the “SSDT”) dated 24 October 2014. The case came before me as a first hearing and was in essence a debate on the Council of the Law Society of Scotland’s (“the first respondent”) preliminary pleas which were as follows:
“1. The petition being incompetent standing the existence of effective remedies before the SSDT, should be dismissed.
2. The petition, being barred by mora, taciturnity and acquiescence, should be dismissed.
3. The petitioner’s averments being irrelevant et separatim lacking in specification, the petition should be dismissed.”
Background
[2] The petitioner was enrolled as a solicitor on 11 October 1991. Since around 9 September 2002, he has practised as the principal of a firm of solicitors.
[3] On 7 March 2014 a formal complaint was lodged by the first respondents with the SSDT averring that the petitioner was a practitioner who may have been guilty of professional misconduct. The petitioner lodged answers to the complaint containing three preliminary pleas.
[4] Rule 42(1) of the SSDT’s Rules 2008 provides that:
“The Tribunal may direct that any question of fact or law which appears to be an issue may be decided at a preliminary hearing”
[5] A preliminary hearing was held on 9 September 2014 to consider the petitioner’s preliminary pleas. Both the petitioner and the first respondent were represented. At the commencement of the preliminary hearing the petitioner advised the SSDT that he would only be insisting upon two preliminary pleas, namely: (1) to dismiss all or part of the complaint on the basis of a breach of article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) because of unreasonable delay; and (2) on grounds which are not relevant to the issues before the court.
[6] Having heard submissions on behalf of the petitioner and the first respondent, the SSDT pronounced the following interlocutor:
“Edinburgh, 9 September 2014. The Tribunal in respect of the complaint dated 7 March 2014 at the instance of the Council of the Law Society of Scotland against James Gerard Moore, *************; Refuses the motions for the respondent to dismiss or sist the complaint and ordered that a hearing of the complaint be heard on 4 December 2014 at 10.30am.”
[7] That the above decision was given orally to parties on 9 September 2014. The SSDT’s written decision was issued on 24 October 2014 and was intimated to the petitioner on 27 October 2014.
[8] That in the said decision the SSDT held that it was bound by the decision of the Inner House in the case of Council of the Law Society of Scotland v Hall (2002) SLT 620. In the case of Hall, the Inner House held that the relevant period for the purpose of assessing delay under article 6(1) of the Convention began at the date when the first respondent made the complaint to the SSDT. That in the instant case the complaint was sent to the SSDT on 7 March 2014 however, the complaint related to events in 2007 and 2008. The SSDT held that given the decision in the case of Hall it was the “inevitable” conclusion that the petitioner’s motion had to be refused. It therefore did not determine the issue of any prejudice to the petitioner occasioned by the delay in prosecuting the complaint, insofar as any delay was said to predate when the first respondent made the complaint to the SDDT, as this had become irrelevant in light of the decision in Hall. It appointed the complaint to a full hearing.
[9] Thereafter an appeal against the foregoing decision in terms of section 54 of the Solicitors (Scotland) Act 1980 was timeously marked by the petitioner. On 2 December 2014 answers to the said appeal were lodged by the first respondent. Among the issues raised in the answers was the competency of the appeal.
[10] On 10 December 2014 the Inner House pronounced an interlocutor holding the appeal to be incompetent. In light of the said interlocutor a fresh hearing before the Tribunal was fixed for 15 June 2015.
[11] The present petition was presented on 26 May 2015 and first orders were granted on that date. In light of the first orders being granted the hearing before the SSDT was discharged.
[12] In raising the present petition the petitioner’s position was this: he submitted that the question to be determined by the court was; what is the starting point for assessing delay for the purpose of article 6(1) of the Convention? However, the petitioner recognised that the Outer House was bound by the decision in Hall. The petitioner’s primary argument was that Hall had been wrongly decided. It was accepted that the prospect of a Lord Ordinary finding in favour of the petitioner in this argument was limited. Therefore it was argued that the fair and efficient administration of justice would best be served by putting the matter before the Inner House. In these circumstances, the petitioner requested that the court report the cause to the Inner House in terms of rule 34(1), RCS. This would thereafter allow the Inner House to consider whether Hall had indeed been wrongly decided.
[13] In response to the petition and the argument set forth on behalf of the petitioner to the effect that the matter should be reported to the Inner House the first respondent raised certain preliminary legal issues, as I have set out earlier, and it was these legal issues on which I heard argument.
The events post 10 December 2014 and the raising of the present proceedings
[14] In the period between the above interlocutor of the Inner House and 22 May 2015 the following events occurred which had relevance to the issues before this court:
- An email from the petitioner’s solicitors to the SSDT. The precise date and the terms of the email were not before the court. However, the reply from the SSDT to the email was before the court. It was dated 8 March 2015 and it was sent at 12.43. The terms of it were as follows:
“Having discussed matters with the Chairman, given the contents of Mr Ferguson’s (the petitioner’s agent) latest email, the Chairman has suggested that the matter be fixed for hearing in June 2015 so that it should be clear at that time whether or not judicial review proceedings have been raised.
The Chairman has suggested 15 June 2015. Perhaps you could confirm that this date is acceptable to you.”
This email was replied to by the petitioner’s solicitors in an email sent on 23 March at 16.19. The terms of this were as follows:
“I have now had responses from both counsel and my client and both can do 15 May as can I. I am informed that the JR is still to proceed and I will report when I hear it has been raised as it will, I as indicated previously, mean this date will require re-scheduling.”
Thereafter, on 6 May 2015 the solicitor appointed as the fiscal for the hearing (Mr James A F Reid), there having been no indication from the petitioner that a judicial review was to proceed, had a telephone conversation with the petitioner’s agents. The contents of the conversation are as set out in the affidavit of Mr Reid (7/8 of process) and the terms of the relevant parts of that affidavit are as follows:
“5. On 6th May 2015 I had a telephone discussion with Ian Ferguson of Mitchells Roberton, Mr Moore’s agent for the SSDT matter. I sought confirmation as to whether or not he was still instructed given the Hearing was due to proceed on 15th June. He responded ‘yes and no’. He advised that a Judicial Review was still intended but that Junior Counsel had indicated he would not proceed with it without running it past Senior Counsel and Eugene Creally Q.C. had been instructed. I was advised that matters had reached the stage where Grounds had been sent to the Petitioner who had to give instructions before a Petition was then lodged.
6. I indicated my concern was that I was about to start detailed preparation for 15th June given the amount of work. Mr Ferguson said that he would phone his client to see whether or not the Grounds had been approved and he would call me back later that day or the following day.
7. He also indicated that he could see why the Tribunal had fixed a June 2015 date because after all no Judicial Review had actually been lodged so far.
8. I did not hear from Mr Ferguson on the 6th nor indeed the 7th and in fact I did not hear anything from him until a draft Petition was e-mailed to me on 15th June 2015.
9. In the circumstances on the 7th and 8th May I had no choice but to assess the file and documents and carry out initial work in relation to identifying productions, witnesses and preparing a provisional draft inventory. I then liaised with my client to identify witnesses available and then over the course of the 12th and 13th May I carried out further preparations, including identifying all client files to be lodged; the witnesses required; reviewing the legal position in relation to documentation and identifying further correspondence necessary for lodging. All in all during this period and prior to receipt of the draft Petition for Judicial Review, I spent ten hours in these preparations.
10. On 15th May, on receipt of the draft Petition for Judicial Review, contact was made with the SSDT Clerk and she indicated she would contact the Petitioner’s agent. In the circumstances I halted my preparations on 15th May.”
Submissions
[15] Senior counsel for the first respondents’ submissions fell into three chapters and I would intend to look at each of these in turn.
Mora
[16] Senior counsel’s position was this: when the whole circumstances were had regard to, there was unreasonable delay during which the petitioner was taciturn, such as to lead to an inference of acquiescence in the complained of decision.
[17] With respect first to mora, counsel drew to my attention the terms of section 54(1A) of the Solicitors (Scotland) Act 1980 which provides:
“A solicitor or an incorporated practice may, before the expiry of the period of 21 days beginning with the day on which any decision by the Tribunal mentioned in subsection (1B) is intimated to him, or as the case may be, it appeal to the court against the decision”.
[18] He submitted that the time period within which an appeal had to be marked in terms of the above section was a very short one, only 21 days. Moreover an Extra Division in WY v Law Society of Scotland 2009 SC 430 with respect to the said time limit held as follows:
“Neither the Rules of Court nor the common law could be applied in such a way as to allow late receipt of the petition in face of the strict statutory time limit without which the court could not give directions” (see: page 430).
[19] Senior counsel contended that in considering the issue of unreasonable delay, this question had to be considered in light of the short and strict time limit imposed in relation to the marking of an appeal in terms of section 54. When viewed against that background the delay here was obviously unreasonable.
[20] The second factor against which unreasonable delay should be measured, was this: the petition was in almost identical terms to the appeal which had been presented in terms of section 54. There accordingly was nothing to investigate and no need for any delay in the presentation of this petition.
[21] Thirdly, he pointed to how close to the date of the new hearing, which was fixed for 15 June 2015 that the petition was eventually presented. This factor should be viewed in the context of the knowledge that other parties would be acting. The petitioner was, or should have been aware, that the fiscal would be preparing for the hearing in June. He referred in particular to the passages in the affidavit of Mr Reid earlier quoted.
[22] Taken in that context the 260 days which had passed from the decision by the SSDT until the presentation of this petition was an unreasonable delay, approximately 13 times the time limit in terms of section 54. Even if the start point was taken from the issue of the written reasons, the delay in presentation had been 211 days, ten times the time limit in terms of section 54. Beyond that, if one were to count from the date of the dismissal of the incompetent appeal, it had taken 167 days to present the petition; a period eight times the statutory limit for the marking of an appeal. Lastly, even on the most benevolent view, if one looked at the period from the email of 6 March 2015 until the presentation of the petition there had been a delay of 81 days.
[23] Senior counsel’s short proposition was this: where there was a ready-made petition available in November 2014 it made no sense that the petition was not presented in fact until the end of May 2015. There had been unreasonable delay.
[24] With respect to the issue of taciturnity it was senior counsel’s position that there had been no real assertion of the claim and in any event any such assertion had come too late. The only correspondence relied upon on behalf of the petitioner was in March (as earlier set out). That was too late. This was, in any event not an assertion of the right. This can be seen from the fact that even after this correspondence more than two months passed before the presentation of the petition.
[25] Looking to all of the foregoing, senior counsel submitted that acquiescence could be inferred.
Reply for the petitioner
[26] It was senior counsel’s position that it could not be said that following the SSDT’s decision there had been silence on the part of the petitioner. In support of this he submitted:
- The petitioner timeously lodged an appeal against that decision.
- Following the dismissal of that appeal he considered whether alternative remedies were available to him.
- Having considered his position the petitioner, by email, kept the SSDT aware of his decision to challenge the decision of 24 October 2014. He in particular founded on the SSDT’s email of 6 March 2015. In that email the following was said:
“It should be clear by that time (15 June, the date fixed for the full hearing) whether or not judicial review procedure has been raised.”
He submitted it was clear from this passage that the SSDT was aware of the petitioner’s position that he intended to challenge the decision of 24 October 2014 and on the basis of that understanding of the petitioner’s position the SSDT had fixed a hearing for that particular date.
- Following this there had been telephone contact on 6 May 2015 between the petitioner’s agent and the SSDT’s fiscal as set out earlier.
[27] Senior counsel went on to submit that the first respondent had shown no prejudice arising from any delay. The fiscal, by 15 May had a copy of the draft petition. He had in any event had the discussion with the petitioner’s agents on 6 May. In terms of the Tribunal Rules, he did not have to lodge lists of witnesses and productions until the end of May. He accordingly knew the position of the petitioner and was aware that the time limits for lodging a list of witnesses and productions did not expire until the end of May. Against that background there could not be said to be any prejudice. In any event such preparation work as he had carried out was not wasted. He would not have to prepare, should the matter at a future date come before the SSDT.
Discussion of plea of mora, taciturnity and acquiescence
The legal framework of the plea
[28] In the argument advanced before me there was no dispute as to the general principles which the court should apply when considering a plea of mora, taciturnity and acquiescence, namely: delay on its own is not sufficient to uphold such a plea. Rather, in addition, there has to be taciturnity and acquiescence. The decision is not discretionary in nature. It is for the court to determine whether the party asserting the plea has established that the plea is applicable on the basis of the acts put forward. Beyond that, I did not understand it to be in dispute that the essence of the plea is acquiescence which is to be inferred from the petitioner’s silence and inaction. Prejudice or reliance are not necessary elements of the plea. However, acquiescence may be inferred from their existence. I intend to proceed on the foregoing basis.
[29] In addition to the above, it is appropriate at this stage, to observe that I have had regard to the detailed analysis of the plea of mora, taciturnity and acquiescence by Lord Glennie in United Co-Operative Limited v National Appeal Panel for Entry to the Pharmaceutical List 2007 SLT 831 at paragraphs [27] to [34] in which he reviews all of the relevant authorities with respect to this plea. I have found his analysis to be of considerable assistance when considering the arguments advanced before me.
[30] Firstly in relation to consideration of what amounts to unreasonable delay in the context of a plea of mora Lord Glennie observes at paragraph 30 in United Co-Operative Limited that in the case of private rights, the relevant periods “are likely to be counted in years”, however, in judicial review “the plea is likely to be invoked where the delay is much shorter”.
[31] Lord Glennie then details the reasons for this:
“That can be explained by the administrative law context and, more particularly by the requirements of good administration; not ‘as an abstraction’ (per Lord Nimmo Smith in Singh), but because the statutory administrative context shows that some decisions are likely to be acted upon promptly; and therefore if they are to be challenged, they should be challenged with “alacrity”. This is the expression used by Lord Eassie in Devine at p. 271, para [22], in the context of the grant of planning consent. Similar observations seem to me to apply in a context such as the present. Mora simply means to delay beyond a reasonable time. What is a reasonable time will depend on all the circumstances. The requirements of good administration rank high among those circumstances.”
[32] In the circumstances of this case I believe good administration necessitates the bringing of the judicial review within a very short period of time. In the context of a disciplinary tribunal, once parties appeal rights are extinguished, decisions are likely to be acted upon promptly and thus if they are to be reviewed, the challenge requires to be made with what Lord Eassie described as “alacrity”. Beyond the foregoing there is a general public interest in proceedings in such a context being dealt with expeditiously in order that the position of a solicitor following upon such proceedings is certain. This once more points to good administration requiring review proceedings to be raised promptly.
[33] Further where an appeal against a decision has to be taken within a short period of time and where that time limit is strictly applied, that provides a context in which the reasonableness of the period of time taken to challenge the decision by judicial review can be assessed. In my judgment these are significant factors in judging whether the present judicial review has been brought within a reasonable time. When the time taken to raise these review proceedings is measured against the short time limit for the marking of the appeal and the strict application of that time limit I am persuaded that these factors strongly support the first respondent’s position that the proceedings were not brought within a reasonable time.
[34] The next factor relied on by senior counsel for the first respondent was the ease with which the judicial review petition could have been presented. In my view this is once more a relevant factor to consider when assessing the reasonableness of the time taken to raise the judicial review proceedings.
[35] Lord Glennie in United Co-Operative Limited at paragraph [30] observes that in considering the issue of reasonableness the following factors are of relevance:
“the complexity of the matter, and the need to take advice, gather information, and draft proceedings. In some cases this will require considerable time; but in others because the issues are narrow and may already be well known at the time of the decision, there will be no reason why the petition cannot be prepared and lodged within weeks.”
[36] In the circumstances of this case there was no need to ingather information. All of the information was available within the appeal petition. There was no reason for there to be any delay in the presentation of the petition for judicial review arising from the ingathering of the information. So far as the complexity of the matter was concerned there was no complex issue which arose following the dismissal of the appeal by the Inner House. All matters of significance had already been considered in terms of the appeal under section 54. The issues in the case were by that stage all well-known. There was no reason for there to be any delay in the presentation of the judicial review petition arising from issues of complexity.
[37] Overall I am persuaded that there was no matter as at the date of the dismissal of the appeal by the Inner House which would have prevented the almost immediate presentation of the judicial review petition and in particular the judicial review petition could easily have been presented within 21 days of the dismissal of the appeal by the Inner House (the time limit within which an appeal would have had to have been presented).
[38] Lord Glennie goes on to opine at paragraph 30 in United Cooperative Limited that another important factor which requires to be considered with respect to the issue of mora is this: a party considering the judicial review may have to move with particular expedition where:
“he may be aware that other parties are in fact organising their affairs on the strength of the decision, or are intending to do so. In such circumstances, he will need to get a move on.”
[39] The SSDT here were organising their affairs on the strength of the decision: (1) they fixed a further hearing; and (2) their fiscal began to prepare for that hearing. The petitioner was aware that a hearing had been fixed and ought to have been aware that given the date of the hearing that preparation by the fiscal during May 2015 was highly likely.
[40] Viewed against the above background and having regard to the whole considerations in the case, I without difficulty conclude that the time taken to raise the judicial review proceedings is significantly in excess of what would have been reasonable. In summary, the background: of the short time limits for the marking of an appeal and the necessity for strict adherence thereto; the lack of any need for investigation or any issue of complexity following the dismissal of the appeal by the Inner House and the knowledge that others were acting on the decision clearly establishes mora; undue delay. Senior counsel for the petitioner in my judgment provided no acceptable explanation as to why the raising of the judicial review had been delayed to the above extent.
[41] Turning to taciturnity, namely: failure to speak out in assertion of the right in circumstances where a reasonable person would have spoken out; the petitioner timeously marked an appeal, thereafter following the dismissal of the appeal the petitioner spoke out in essence on only two occasions which were relied on by his senior counsel as evidencing that there had been no taciturnity. The first occasion was the email exchange at the start of March 2015. By that time about three months had passed since the dismissal of the appeal. Thus, insofar as this exchange asserted the petitioner’s rights such assertion came at too late a stage when viewed in the context of the short time limit for the appeal, the need for strict adherence thereto, and the position that all information was available as at the date of the dismissal of the appeal in order to present a petition. On a fair reading of the SSDT reply to the email from the petitioner’s solicitors, no definite information had been given to the SSDT that judicial review proceedings were to be raised. However, insofar as it could be said that this amounts to at least some assertion of the petitioner’s rights and it did not come too late, the raising of the judicial review proceedings should then have proceeded with alacrity. However, silence then ensued for approximately two months until the conversation between the petitioner’s agents and the fiscal, earlier set out. Even then no immediate action was taken. This factual matrix I am persuaded amounts to a failure to speak out in the way that a reasonable person in that situation would have done.
[42] So far as acquiescence is concerned, the test is an objective one. The question for the court is this: what inference can be taken from the petitioner’s said delay in raising proceedings and his failure to speak out. From the petitioner’s silence and inaction I am persuaded that acquiescence can be inferred. It is, not necessary for reliance or prejudice to be established, however, I believe in this case some degree of reliance and prejudice was established on the basis of the actings taken by the SSDT and their fiscal. For the foregoing reasons I am satisfied that the plea of mora, taciturnity and acquiescence has been established.
Academic challenge
[43] The second branch of the first respondent’s argument was this: the nature of the petitioner’s challenge was merely academic and on that basis should not be allowed to proceed.
[44] It was senior counsel’s position in development of the above that the petition was aiming at the wrong target. The petitioner’s complaint was not the decision of the SSDT but rather the reasons which underlay it. As with any judicial challenge the subject of the challenge must be the operative decision as the court was not a debating chamber.
[45] In support of the above he referred to observations of the court in Kennedy v MacRae 1946 SC 118:
“… reclaiming motions are competent only for the purpose of obtaining modification of an interlocutor, and are not competent for the purpose merely of bringing under review incidental observations in the relative opinion.”
[46] What the SSDT had done here was as set out in their interlocutor, namely:
“Edinburgh, 9 September 2014. The Tribunal in respect of the complaint dated 7 March 2014 at the instance of the Council of the Law Society of Scotland against James Gerard Moore, **********; Refuses the motion for the respondent to dismiss or sist the complaint and orders that a hearing of the complaint be heard on 4 December 2014 at 10.30am.”
[47] Senior counsel emphasised that what the SSDT had not done by means of this interlocutor was to repel any plea of the petitioner. Beyond that if there was any doubt as to what the interlocutor had done, he advised that prior to the hearing before this court a formal letter had been written to the petitioner’s agents, the terms of which made it clear that no argument would be advanced by the first respondent before the SSDT to the effect that the petitioner’s preliminary pleas were not available to be argued before the SSDT at any future hearing.
[48] Thus he contended it was not enough for the petitioner to argue that the reasons why dismissal was refused were wrong but that refusal to dismiss was wrong. To put the argument another way: the tribunal which gets the right result for the wrong reasons is not susceptible to review.
[49] That the petitioner was proceeding on this erroneous basis was confirmed by the terms of the first order that the petitioner sought in paragraph 6 of the petition which was in the following terms:
“Declarator that the decision of the SSDT to reject the petitioner’s motion for the complaint to be dismissed on the basis of a breach of article 6(1) of the Convention proceeds on an error of law.”
[50] The petition, he contended, proceeded on the basis that the reasons for the decision were wrong, not the decision itself. The point he was raising, he submitted, was of some significance for this reason: the authorities when examined were very clear that dismissal was not the appropriate remedy for failure to proceed within a reasonable time, except in circumstances which were not said to obtain here. In short, the authorities said that the breach of the reasonable time limit only resulted in dismissal of proceedings if a fair trial was not possible.
[51] Senior counsel drew to my attention that nowhere in the petition was it said that the petitioner could not have a fair trial. No argument was advanced before the SSDT that no fair trial was possible. More than that, the petitioner accepted he could not argue this and in fact in the course of the submissions before the SDDT junior counsel for the petitioner (see page 11 of 6/5 of process) submitted that he did not have to show prejudice and that the right to a hearing within a reasonable time was a separate and independent right to a fair trial. Senior counsel submitted that that was simply wrong in law.
[52] Senior counsel in support of the argument he was advancing drew my attention to Attorney General’s Reference (No 2 of 2001) 2004 2 AC 72.
[53] The background to the above case was this:
In a trial before the Crown Court
“the judge stayed the indictment on the ground that there had been a breach of the defendant’s rights to have the charge determined within a reasonable time, contrary to article 6(1) of the Convention of the Protection of Human Rights and Fundamental Freedoms, as scheduled to the Human Rights Act 1998, because of the delay between when they were interviewed by the police and when they were served with the summonses.”
Following this decision the Attorney General referred two questions to the Court of Appeal, one of which is of relevance to the argument before me:
“Whether the criminal proceedings could be stayed on the ground that there has been a violation of the reasonable time requirements in article 6(1) in circumstances where the accused could not demonstrate any prejudice arising from the delay.”?
The matter was then referred by the Court of Appeal to the House of Lords which held:
“1. That if through the action or inaction of a public authority, a criminal charge was not determined within a reasonable time, there was necessarily a breach of the defendant’s rights under article 6(1) of the Convention; that for such a breach there had to be afforded such remedy as was just and appropriate pursuant to section 8(1) of the Human Rights Act 1998; that the appropriate remedy would depend on the nature of the breach in all the circumstances, including particularly the stage of the proceedings at which the breach was established; that (Lord Hope of Craighead and Lord Rodger of Earlsferry dissenting) it would be appropriate to stay or dismiss the proceedings only if either a fair hearing was no longer possible or it would be, for any compelling reason, unfair to try the defendant; that the public interest in the final determination of criminal charges required that such a charge not be stayed or dismissed if any lesser remedy would be just and proportionate in all the circumstances. That in the absence of such unfairness the prosecutor in the court would not act incompatibly with the defendant’s Convention right in prosecuting or entertaining proceedings after a breach had been established as the breach consisted in the delay which had accrued and not in the prospective hearing; … ;” [see: p72G-H].
[54] The principal speech on behalf of the majority in the House of Lords was given by Lord Bingham of Cornhill who at paragraph 18 asked the question:
“What, then, should the domestic court do if it is shown, before an impending trial, that a reasonable time has already elapsed or will have elapsed before the earliest date at which a trial can be held?”
Lord Bingham then considered the various relevant authorities and at paragraph 24 answered the question he had posed as follows:
“If the breach is established before the hearing, the appropriate remedy may be a public acknowledgement of the breach, action to expedite the hearing to the greatest extent practicable and perhaps, if the defendant is in custody, his release on bail. It will not be appropriate to stay or dismiss the proceedings unless (a) there can no longer be a fair hearing or (b) it would otherwise be unfair to try the defendant. The public interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances. The prosecutor and the court do not act incompatibly with the defendant's Convention right in continuing to prosecute or entertain proceedings after a breach is established in a case where neither of conditions (a) or (b) is met, since the breach consists in the delay which has accrued and not in the prospective hearing.”
Lord Bingham then at paragraph 25 gives guidance as to the circumstance in which it would be unfair to try a defendant and observes that these would include:
“….cases of bad faith, unlawfulness and executive manipulation of the kind classically illustrated by R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42.”
He went on at paragraph 25 to say with respect to the circumstances in which it would be unfair to try a defendant:
“It would be unwise to attempt to describe such cases in advance. They will be recognisable when they appear. Such cases will, however be very exceptional, and a stay will never be an appropriate remedy if any lesser remedy would adequately vindicate the defendant’s Convention right.”
[55] Senior counsel accepted that the instant case involved civil proceedings and not criminal matters. However, he submitted that the present situation was a hybrid one and that what underlay the present proceedings was a prosecution for professional misconduct. The purpose of such proceedings was two-fold, protection of the public and protection of the reputation of the profession. Thus although the issue of releasing a dangerous criminal into society, if the proceedings were dismissed, did not come into play there was an issue of public protection.
[56] It was his position that applying the guidance of Lord Bingham dismissal was only appropriate as a remedy in very exceptional circumstances. It was his position that nothing in this petition offered to prove that this was a case which could be so described.
[57] Senior counsel accepted that Lord Hope of Craighead and Lord Rodger of Earlsferry had dissented in Attorney General’s Reference (No 2 of 2001) and that this had arisen from the Decision in Dyer v Watson 2004 1 AC 379. He accordingly accepted that for some time there had been a tension between the law of England as set out in Attorney General Reference (No 2 of 2001) and the law in Scotland as to the nature of an accused’s article 6(1) right. However, this had been reconciled in the case of Spiers (PF) v Ruddy 2008 1 AC 873 where Lord Bingham at paragraph 15 expressed the same view as in Attorney General Reference (No 2 of 2001) and Lord Hope at paragraph 19 and Lord Rodger at paragraphs 25 and 26 agreed with the views expressed by Lord Bingham.
[58] In summary senior counsel said this, the result of these authorities was clear, namely: Lord Bingham was correct in Attorney General’s (No 2 of 2001), termination is not the automatic consequence of unreasonable delay and will only be appropriate in exceptional cases where a fair trial is no longer possible. The proposition that there should be dismissal in the instance case would inevitably be rejected as there was no suggestion that the petitioner could bring himself within these exceptions. Thus, even if the SSDT had misled themselves, in relying on the Hall decision there was no point in the judicial review as a decision in terms of the operative part of the interlocutor was inevitable, namely: refusal to grant dismissal.
The reply on behalf of the petitioner
[59] Senior counsel commenced his submissions by saying this: it was clear, when the interlocutor and note were read together, that what the Tribunal had done was to repel the plea to dismiss the action on the basis of a breach of the petitioner’s article 6(1) Convention rights.
[60] With respect to the authorities referred to by senior counsel for the first respondent he accepted that the position in Scotland and England had been reconciled in the case of Speirs v Ruddy.
[61] Turning to Attorney General Reference (No 2 of 2001) his position was that what the court was dealing with in this case was the issue of remedy. However, there were three stages with respect to the article 6 issue:
- What is the relevant period?
- The Tribunal of fact then considers has there been an unreasonable delay.
- Once that is done it then moves to the issue of remedy.
[62] At the stage of remedy a balancing exercise involving first the public interest and second, the right of the defendant had to be carried out.
[63] The issue of delay could be argued either before or after the hearing if article 6 rights had been breached. His submission was that the court in Attorney General Reference (No 2 of 2001) was not excluding the possibility that one of the disposals available would be dismissal where the taking place of any hearing would be unfair. He submitted that Ruddy was not an authority for the proposition that dismissal in such circumstances was excluded. In particular he drew my attention to paragraphs 15, 16 and 21 in Ruddy which he submitted provided support for the position that dismissal was not being excluded.
[64] He submitted that in addressing the SSDT junior counsel for the petitioner had identified areas of prejudice which merited the dismissal of the proceedings before the SSDT and referred me to a section of the Decision of the SSDT where these submissions were set out, namely: at page 14. It was his position that given such prejudice that for the hearing to proceed would be manifestly unfair. The Tribunal had made no assessment of these points because of the decision in Hall. If Hall were wrongly decided or if the instant case could be distinguished from Hall then these matters were all highly relevant. The present petition against that background could not be said to be academic in nature.
[65] Rather it was far from academic as the petitioner was seeking to invoke his article 6 rights which could not be invoked because of Hall and he wished to have that matter reviewed in terms of the present petition.
Discussion
[66] I am persuaded that the matter raised in the present petition would be academic unless the petitioner is in a position to bring himself within one of the two categories identified by Lord Bingham in Attorney General Reference (No 2 of 2001) at paragraph 24, namely: (1) there can no longer be a fair hearing or (2) it would otherwise be unfair to try the defendant, in that it is only if he can bring himself within one of those two categories that dismissal of the proceedings would be an appropriate remedy to be granted by the SSDT.
[67] I am satisfied on the basis of the Attorney General Reference (No. 2 of 2001) that it is not sufficient to obtain dismissal merely for the petitioner to show that the hearing was not brought within a reasonable time.
[68] As is said at paragraph 19 of Attorney General Reference (No 2 of 2001): “The right is to trial without undue delay; it is not a right not to be tried after undue delay.”
[69] It is clear that the petitioner cannot bring himself within the category of case where it would be unfair to try him given the observations as to what would constitute such unfairness made by Lord Bingham at paragraph 25 of Attorney General Reference (No 2 of 2001). He does not fall within the scope of the specific examples identified by Lord Bingham. Nor does anything put forward on his behalf, amount to circumstances which could fall within the general scope of the types of cases envisaged by Lord Bingham in his guidance as causing it to be unfair for a case to proceed.
[70] The question therefore becomes this: on the basis of what has been put forward on his behalf could the SSTD properly hold that he could not obtain a fair hearing?
[71] As senior counsel for the first respondent pointed out, at no point within the section 54 appeal or the judicial review petition does the petitioner aver that he cannot obtain a fair hearing. I would observe that at paragraph 5.2 in the answers to the appeal the following is averred:
“Separatim, the argument regarding article 6 was, and remains, premature. The consequences of a failure to bring proceedings within a reasonable time is not dismissal of those proceedings, unless a fair trial is impossible: Speirs v Ruddy 2008 1 AC 873. The petitioner not having submitted, let alone established, that a fair trial is impossible by virtue of passage of time and the Tribunal being able at the hearing on the merits to make due allowance therefore, the motion for dismissal was, and remains, misconceived.”
[72] It is clear from the above passage of the answers that the issue of the prematurity/academic nature of what was being sought was before the petitioner from an early stage.
[73] The petitioner, before me, pointed to certain submissions made by junior counsel before the SSDT as supporting unfairness though unfairness per se is not pled.
[74] With respect to these: the first point made is the loss by the petitioner of computer records and the following was said in relation to this loss before the SSDT: “This had hampered the respondent in the preparation of his answers as the contents of the complaint involved historic issues which were not fresh in the respondent’s memory.”
[75] This in my judgment, if prejudice at all, does not amount to a situation where a fair hearing before the SSDT is not possible. All that is said is this: the loss hampered the petitioner in the preparation of his answers. It is not said he was unable to lodge answers. It is not said that to any material extent he was unable to prepare his answers or would in any way be materially disadvantaged at any hearing because of the lack of these computer records.
[76] The second area of prejudice founded upon before the SSDT related to a loss of potential witnesses, namely: financial advisers referred to within the complaint. Again no detail was given as to the particular way in which the loss of these witnesses would prevent a fair hearing before the SSDT. The mere loss of what were at its highest described as potential witnesses would not necessarily lead to an unfair hearing before the SSDT.
[77] Overall and when taken together there was nothing put forward by junior counsel for the petitioner to the SSDT which would render it impossible to have a fair hearing before the SSTD. Nothing further was put forward by way of argument or in the course of oral submissions to support the contention that the petitioner could not obtain a fair hearing before the SSDT.
[78] On what to this point has been put forward on behalf of the petitioner as amounting to prejudice the SSDT could not properly hold that the appropriate remedy was dismissal.
[79] I believe it would be inevitable in light of the law as set forth in Attorney General Reference (No.2 of 2001) that if the SSDT were able to consider the above matters, which they were not able to consider in light of the decision in Hall, they would inevitably refuse the motion to dismiss.
[80] Accordingly I am persuaded that this petition raises no more than an academic issue and for this further reason the petition should be dismissed.
Alternative effective remedy
[81] The final chapter of the first respondent’s argument was to this effect: the petitioner had an alternative effective remedy and therefore the present petition should not proceed.
[82] Senior counsel accepted that the SSDT is a public authority subject to the Human Rights Act 1998. As such, it could not act incompatibly with that Act. Nevertheless, the petitioner has an alternative remedy, namely: to make a submission based on unreasonable delay before the SSDT at the full hearing on the complaint.
[83] Senior counsel emphasised that for the reasons he had earlier advanced in terms of chapter 2 of his argument, namely that no aspect of the petitioner’s answers had been excluded from probation by the SSDT and no plea-in-law had been repelled it was open to the petitioner to raise the issue of unreasonable delay at the full hearing. Moreover, if the ground of complaint was established at a full hearing before the SSDT he then had an unfettered right of appeal in terms of section 54 and that would allow the issue of unreasonable delay to be raised. It was senior counsel’s position that by raising the present proceedings all the petitioner had done was to create further delay. Had he proceeded to a full hearing before the SSDT and if necessary an appeal, then the matter would have been dealt with by this stage. He contended that all the petitioner was saying was this: not that he did not have an effective remedy but merely that he did not have as good a remedy.
[84] In support of his submission senior counsel referred me to Sutherland-Fisher v The Law Society of Scotland 2003 SC 562. The background to this case was this:
“Complaints were made against a solicitor to the Scottish Solicitors Discipline Tribunal. The complaints related to the solicitor’s own actions and were about facts within his knowledge. The solicitor had been acquitted on similar criminal charges and had had the services of an accountant in relation the trial, who had produced a report. Although he was not entitled to legal aid, he was able to seek legal advice and assistance. The subject matter of the complaint was not particularly complex. Before the Tribunal the solicitor argued that for there to be a fair hearing it was necessary that he should have legal representation. The Tribunal rejected the argument. The solicitor appealed to the Court of Session seeking recall of the Tribunal’s interlocutor and interdict against the Law Society from convening a hearing in the absence of legal representation to the petitioner. He argued that he would not be able to obtain a fair hearing in the absence of legal representation, and that legal representation at the stage of an appeal to the Court of Session would not be sufficient to meet the requirements of article 6(1). The respondents argued that in the circumstances the provision of legal representation was not indispensable and in any event there was a full and unrestricted right of appeal to the Court of Session for which legal representation would be available.”
[85] At paragraph [22] the court made the following observations:
“… It is contended on behalf of the respondents that, even if the Tribunal proceedings considered in isolation do not comply with the requirements of article 6(1), they are subject to subsequent control by judicial body, namely the Court of Session, that has full jurisdiction and does provide the guarantees of art. 6(1), Albert & Le Compte v Belgium at para 29; Twalib v Greece at p. 604). It is clear that in the event of an appeal to the Court of Session the petitioner would be eligible for legal aid and the services of counsel. The court can deal with disputed issues of fact and of law, and a transcript of the proceedings before the Tribunal would be available. Further the court, has power to remit to any person to make further enquiry into the facts, or to take further evidence and to report to the court. In this connection the proceedings before the Tribunal cannot be viewed in isolation, and in the circumstances were are certainly not in a position to say that the proceedings taken as a whole and including the full right of appeal, would not be art. 6 complied.”
[86] For the foregoing reasons senior counsel submitted that there was an effective alternative remedy.
Reply on behalf of the petitioner
[87] It was submitted by senior counsel for the petitioner in summary that in terms of section 54 of the 1980 Act, it appeared that even where a complaint ought to be struck out in its entirety at a preliminary hearing due to, for example, a breach of the Convention or a fundamental incompetency, an aggrieved party would have no option but to conduct a full hearing into the merits of the allegations before being given an opportunity to appeal on a preliminary point that would strike out the entirety of the complaint. This, he submitted, did not amount to an effective alternative remedy for the petitioner, particularly where the nature of his complaint was unreasonable delay in the determination of his civil rights and obligations in terms of article 6(1) of the Convention.
[88] As I understood senior counsel, he was saying this: the rules of the Tribunal allowed a preliminary challenge, however, there was no appeal to the Inner House arising from the decision by the SSDT on such a preliminary issue. Accordingly the petitioner would be forced into a full hearing and although there was an appeal against the decision at a full hearing to the Inner House in terms of section 54, that was not an effective alternative remedy. It was not an effective alternative remedy because he had to go through the full hearing.
Discussion
[89] On this issue I am persuaded by the argument put forward by senior counsel for the first respondent which in my view has substantial merit.
[90] If unreasonable delay has been caused and the petitioner is not able to obtain a fair hearing before the SSDT and the complaint is established before the SSDT he will be able to raise that issue as a ground of appeal to the Inner House in terms of section 54. He will be able to raise the exact same issue before the Inner House by way of appeal in terms of section 54 as he would be able to raise before them were I to report this matter to the Inner House as is sought in the petition before me.
[91] Looked at in the above way, he has the exact same remedy open to him by means of appeal which he seeks to obtain by means of the present judicial review proceedings. The mere fact that in order to obtain an appeal he must go through a full hearing does not render that appeal as something other than an effective remedy.
[92] In my view in looking at this issue, the court has to have regard not merely to the procedure before the SSDT in isolation but at the whole procedure including the rights of appeal open to the petitioner.
[93] Moreover, it would appear that the Tribunal would be in a much better position to consider the fairness of any proceedings once evidence has been led as it is only at that point that it appears to me that the tribunal would be in a position to be fully informed on the issue of fairness.
[94] The route of appeal by way of section 54 requires a full hearing and that may be less convenient to the petitioner, that, however, does not render the section 54 appeal a less than effective remedy.
[95] Overall I believe the existence of section 54, which gives the petitioner an unfettered right of appeal, renders it incompetent to seek relief by means of recourse to the supervisory jurisdiction of this court.
Decision
[96] For the foregoing reasons I sustain the first respondent’s first, second and third pleas-in-law, repel the petitioner’s pleas-in-law and dismiss the petition. I was not addressed on the issue of expenses and I reserve my position regarding this matter.