Discipline tribunal human rights challenge fails
25 Nov 04
Appeal court rules Solicitors' Discipline Tribunal complies with article 6 rights
The Scottish Solicitors' Discipline Tribunal satisfies the "independent and impartial tribunal" requirement of the European Convention on Human Rights.
Lords Kirkwood, MacLean and Osborne in the Inner House rejected a challenge by Michael Robson, formerly of Robsons, SSC, to the independence of a tribunal which heard a disciplinary complaint against him in October 2002, for further failures to respond to the Society's reasonable enquiries. However the court upheld an appeal over his being struck off.
In rejecting Mr Robson's challenge under article 6 of the Convention, the court ruled:
- that Tribunal members (who are unpaid) have sufficient security of tenure, as although the Law Society of Scotland recommends candidates to the Lord President for appointment, it has no power to terminate an appointment once made;
- that although the Society is also the prosecuting authority before the Tribunal, the appointment procedure does not detract from the Tribunal's independence and impartiality in the context of a profession with a self-regulating disciplinary procedure, given that the solicitor members must be knowledgeable and experienced and that the actual appointments are made by the Lord President;
- that the provisions for appeal to the Court of Session also comply with article 6: it makes no difference that the Lord President also selects the judges who will form the appeal court;
- that it did not matter that two solicitor members of the Tribunal had sat in a previous case against Mr Robson a year earlier, where the decision had been made public and he did not contest the allegation of professional misconduct in the 2002 proceedings.
The court also ruled that the Tribunal had been entitled to refuse Mr Robson's request for an adjournment where he had lodged no answers and sought to adjourn at a late stage.
On the penalty imposed, the court held that it was excessive to order that Mr Robson, who now had a very limited income and had been sequestrated, be struck off the roll, and ordered that his practising certificate be restricted for five years instead.
The full text of the opinion can be read at http://www.scotcourts.gov.uk/opinions/P80.html