Hickinbottom: No breach of Human Rights Act
The High Court has upheld the year-long suspension of a barrister who was captured on CCTV stealing a purse in a Cardiff night club.
Lord Justice Hickinbottom said the Bar Standards Board (BSB) later admitted a “procedural irregularity” because the case of Juliana Dorairaj was heard by a five-person, instead of a three-person, Bar disciplinary tribunal.
Ms Dorairaj, an unregistered (non-practising) barrister, argued that since the BSB’s professional conduct committee could only refer unregistered barristers to three-person tribunals, the panel in her case had no jurisdiction to make its decision in her case, rendering it “null and void”.
Rejecting this argument, Hickinbottom LJ said: “The provisions for the constitution of the panel are in my view clearly procedural requirements that do not, if breached, mean that a panel has no jurisdiction.
“Of course, if the breach is material such that unfairness has resulted, then it might form a ground for an appeal; but that is a different issue from jurisdiction, which is the primary issue raised in this appeal.”
The judge said that the regulations prescribed five-person panels for more serious or complex cases, because a panel with five rather than three people, and chaired by a judge, was “generally regarded as likely (by dint of numbers) to give better consideration” to a matter.
“If a matter which the regulations require to be considered by a five-person panel is directed to a three-person panel it may well be open to the affected barrister to claim that he has been treated unfairly, because he has been denied a hearing before the larger panel.
“That, however, is not a question of jurisdiction, but one of procedural fairness.”
The Divisional Court heard in Dorairaj v BSB [2018] EWHC 2762 (Admin) [1] that Ms Dorairaj was called to the Bar in November 2011.
In the early hours of 14 February 2015, she was arrested at a Cardiff night club, having been filmed on CCTV “picking up another customer’s unattended purse and placing it in her pocket before attempting to leave the premises”.
The barrister was not prosecuted, but a community resolution order was imposed, and she agreed to participate in a ‘women’s pathfinder diversion scheme’.
The BSB referred her to a five-person Bar disciplinary tribunal, which rejected submissions from Ms Dorairaj that the panel had no jurisdiction to determine whether the theft had taken place, and that, if it had occurred, it was not behaviour likely to diminish confidence in the profession.
Describing the offence as a “single, ‘heat of the moment’ incident”, and the barrister as showing “genuine remorse”, the panel decided against disbarment and instead imposed a 12-month suspension and a fine of £3,000.
More than two years later, in May this year, the BSB wrote to Ms Dorairaj, explaining that under the rules at the time, it did not have the power to refer her to a five-person tribunal, and should have referred her one with three members.
The BSB described the mistake as a “procedural irregularity”, not a matter of jurisdiction, and said it did not consider the findings against the barrister were invalid.
On her appeal, Hickinbottom LJ rejected an argument that the reference to a five-person panel caused the barrister “anxiety”, because only a five-personal panel could disbar her or suspend her for more than a year.
He said that if a three-person panel had found her guilty, it was “all but inevitable” that the case would have been referred to a five-person panel for sentence.
“The appellant would have been aware of that likelihood from the outset; and her anxiety would have been extended by the inevitable delay that would have been caused by that transfer.”
Hickinbottom LJ rejected a further argument from Ms Dorairaj that section 24(4) and (5) of the Crime and Courts Act 2013 was incompatible with the European Convention on Human Rights – it provides that appeals to the High Court from Bar disciplinary tribunals that do not involve disbarment cannot be further appealed.
He said: “Parliament has determined that there should be no further appeal from this court; and therefore, the first appeal being article 6-compliant, article 6 is not further engaged.
“Of course, [the BSB’s counsel] did not concede that the differentiation of disbarment cases from those with a lesser sanction is either arbitrary or disproportionate: she submitted that it is in fact principled, understandable and proportionate.
“In my view, there is force in each element of that submission; but it is unnecessary to make any findings in that regard.”
Mrs Justice Andrews agreed.