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Professional discipline and the right of appeal

Professional discipline and the right of appeal

By Adam Ohringer

Appeals against many professional disciplinary tribunals lie to the High Court. CPR PD 52D lists the bodies over which the court exercises a supervisory role. Through what could only have been an oversight, the list omits appeals against decisions taken by the Secretary of State for Education in respect of teachers under s.141B of the Education Act 2002. In cases such as Brown v Secretary of State for Education [2015]  EWHC 643 (Admin), however, the court has readily filled the legislative gap. Unless otherwise specified there is no need for permission to appeal, although under CPR PD 52D a 28day time limit applies.

The practice direction stipulates that certain appeals against disciplinary tribunals are by way of a re-hearing rather than review. The court in R(O) v Secretary of State for Education [2014]  EWHC 22 (Admin) has accepted that this must also apply to teachers. The degree to which the tribunal’s decision should be scrutinised, by way of either review or re-hearing, has been the subject of a fair amount of judicial consideration – not all of it entirely consistent. However, in Brown it was suggested that there was no substantial difference between the approaches; the question in each case is whether the decision was ‘wrong’ or ‘unjust because of a serious procedural or other irregularity’. This should not, however, be mistaken for a judicial review; the court can be much more interventionist.

The most often-cited formulation comes from the judgment of Smith LJ in Briggs v Law Society [2005] EWHC 1830 (Admin): ‘The court, having an appellate jurisdiction rather than a supervisory one, should be prepared to exercise its own discretion and to interfere with a penalty imposed by the disciplinary tribunal if it thinks it right to do so. That said, this court will always pay due respect to the views of the disciplinary tribunal.’

Although the court has broad powers to reconsider the decision of the disciplinary body, it must always be advisable to set out specific grounds of appeal. Below is a selection nof familiar arguments raised on appeal and their legal underpinnings.

Procedural injustice

The procedures adopted by disciplinary tribunals must comply with the rules of natural justice and obligations under the Human Rights Act 1998; in particular, the right to a fair and public hearing. Where the tribunal has issued guidance, there is an expectation that it will be followed. These broad procedural requirements apply throughout the disciplinary process, including pre-hearing stages such as disclosure, interviewing of witnesses and case management.

Material errors of fact

Findings of fact are difficult to appeal as it is assumed that the tribunal is in the best position to test and balance the evidence; but is possible where the tribunal has made findings which are irreconcilable or for which there is no evidential basis. A recent example can be found in Soni v General Medical Council [2015] EWHC 364 (Admin), where the court overturned a finding of dishonesty on the grounds that this was an impermissible conclusion to jump to when the evidence showed overwhelmingly that the financial irregularities were the result of error.

Fresh evidence

Unless the statutory provisions state otherwise, CPR 52.11(2) will apply to regulate the introduction of fresh evidence at the appeal stage. The pre-CPR test in Ladd v Marshall [1954] 1 WLR 1489 remains the guiding authority, stating that new evidence may only be introduced where the evidence:

  • could not have been obtained with reasonable diligence for use at the hearing below
  • is relevant and would probably have had an important influence on the hearing and
  • must be apparently credible.

Inadequate reasons

If the disciplinary tribunal has failed to give adequate reasons, this can in itself be a ground of appeal. The requirement to provide reasons is, however, not especially onerous. They must be sufficient to allow the parties and any appeal court to understand why the particular outcome has been reached. It need not deal with every conflict of evidence or every argument. In some circumstances, the remedy for insufficient reasons is to remit the matter to the tribunal for them to be elucidated under the familiar Burns/Barke procedure, which was considered in R(O) in the present context.

Severity of sanction

In light of the difficulty with overturning findings of fact, many appeals concentrate on the severity of the sanction imposed by the tribunal raising one or more of the following arguments:

  • the sanction is at variance with the disciplinary tribunal’s published guidance. Disciplinary bodies are expected generally to adhere to their own guidance and to explain in their reasons how the guidance has been applied;
  • similar cases should be treated similarly. There is, however, conflicting authority on whether it is appropriate to rely on comparators in an appeal;
  • a sanction should not be intended as a punitive measure, although it will be likely to have a punitive effect. The purpose of a sanction is to protect the public and uphold the standards and integrity of the profession;
  • a disciplinary tribunal must consider whether a lesser sanction would be sufficient in achieving those aims;
  • the sanction is too severe. Although the court may overturn a sanction which is simply excessive, it will not readily interfere with the disciplinary tribunal’s assessment of the severity of any misconduct.

Determination of the appeal

Unless other provisions apply, the Appeal Court’s powers are specified in CPR 52.10. The court may affirm, set aside or vary any order or judgment. It may also remit the matter or a particular issue to be re-determined by the disciplinary tribunal.

Costs

In cases involving disciplinary tribunals the stakes are very high. An appeal can be an attractive proposition as it gives some hope that any sanction will be overturned. But while disciplinary tribunals often do not award costs, in the High Court costs will normally follow the event. It’s not a free shot and the court will not readily intervene with the workings of a properly constituted professional disciplinary body. Nonetheless, if the decision is wrong then the High Court can correct it.

 This article was first published in ELA Briefing May 2015

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