Ensuring a Fair Trial

Through both statute and common law, fundamental rights have been legally recognised to ensure a hearing is fair.

This article was first published in Practical Law Company in December 2008.  

Introduction

Through both statute and common law, fundamental rights have been legally recognised to ensure a hearing is fair. These rights have general applicability to those acting in a judicial and quasi judicial capacity. These practice notes are designed to identify and examine the principal issues which should be considered by those:

• sitting in such a capacity,
• advising a tribunal, or
• appearing before a tribunal

to identify or ensure the fairness of a hearing.

The following key points will be explored:

• The Tribunal’s decision and outcome

Natural Justice and Article 6 of the European Convention on Human Right

The foundations on which the requirement for fairness are based arise from the common law concept of natural justice and Article 6 of the European Convention on Human Rights (EHCR). A lengthy review of natural justice and Article 6 is beyond the scope of these practice notes, but in summary, the concept of natural justice and Article 6 are designed to ensure fairness in decision-making.  The principles constituting natural justice are generally regarded as requiring a tribunal to:

• act in a fair and reasonable way;
• balance the public interest against those of the individual facing the hearing;
• ensure equality of arms - this envisages all parties to a hearing being treated equally - for example, it would be contrary to natural justice if a tribunal allowed one party unlimited time to present its evidence and then placed a guillotine on the time available to another party to respond;
• be, and be seen to be, unbiased, unaffected by conflicts of interests and impartial;
• provide a right for written representations to be made - there is no principle that natural justice requires a right for oral submissions;
• give a reasoned decision;
• offer a right to an appeal or a review

Individuals facing hearings before certain tribunals in certain circumstances will also be able to assert a right to a fair hearing under Article 6 of ECHR, which has been incorporated into domestic legislation by the Human Rights Act 1998. 

Article 6(1) enshrines general rights relating to a fair hearing of both criminal charges and determinations of civil rights and obligations – it can be described as an overarching provision.  Under Article 6(1) the constituent parts of a right to a fair trial can be regarded as the following:

• a fair and public hearing,
• the hearing within a reasonable time,
• the hearing before an independent and impartial tribunal established by law,
• the public pronouncement of any decision (except where press and public may be excluded).

The paragraphs below review how the principles identified above should be applied to ensure a fair hearing.

Prior to the hearing

For there to be a fair hearing, there are a few basic steps that ought to have been completed in advance.  They are directed at ensuring the parties receive the information and documentation they need for the hearing and are provided with sufficient time to prepare.

Those steps are:

• The parties should be notified in reasonable time of the date, time and place of the hearing;
• The issues to be determined by the tribunal ought to have been clearly established and the parties informed a reasonable time in advance;
• The evidence on which a party intends to rely at the hearing should have been served on the other party a reasonable time in advance.

Often these points are covered by procedure rules. However, even where this is not the case, these basic principles still apply. 

Notice of the hearing

If a party is entitled to be present at a hearing, it follows that the party needs to be given a reasonable period of prior notice of the date, time and place of the hearing.  It is usual for procedure rules to require the notice to be in writing and this is good practice in any event.

Rules specify the minimum period of notice to be given to the parties and it is important for this to be observed.  However, the test is one of reasonableness.  Thus, the amount of notice needed will vary from case to case. It will depend upon the urgency of the matter, the number and complexity of the issues, and the volume of evidence to be compiled and considered by the parties.

Advance disclosure of the issues

It is important to establish the purpose of the hearing in terms of clarifying the issues to be determined by the tribunal and for this to be communicated to the parties in good time prior to the hearing.  Typically, this is primarily the responsibility of the party bringing the case.

The degree of detail required will vary.  For some cases, where there is a single issue, it may be sufficient for this to be set it out in one or two sentences.  For others with a multiplicity of issues, greater detail will be needed.  The important point is that, to ensure fairness, there must be clarity on the nature and scope of each issue in order that no party is taken by surprise at the hearing and for the parties have a reasonable opportunity to prepare.

This is particularly important for hearings of a disciplinary nature, where the principal decision frequently depends upon the tribunal first deciding whether certain factual allegations are made out. The party making the allegations should particularise them to the extent required for the other party to know the case they have to meet.
For example, an allegation that “you were rude to a number of your colleagues on a number of occasions” fails to provide the person accused with the necessary detail: which colleagues, and on which occasions?  The person accused should not have to guess or try to work it out for themselves from the evidence; they are entitled to be told.

Issues connected with the tribunal or its members

A fundamental part of a fair hearing in both common law and under Article 6 of the ECHR is that the tribunal should be both independent and impartial.  The following aspects of independence and impartiality should be reviewed in considering the fairness of a hearing:

In addition to independence and impartiality, for the purposes of Article 6, the tribunal must also be established by law.  This is to avoid the tribunal’s existence being reliant on the Executive rather than Parliament. 

Structural and Constitutional Independence

A number of issues connected with the structure and constitution of a tribunal are relevant to fairness, including the appointment of tribunal members, the term and nature of their office, whether there are ‘objective guarantees’ against outside pressures and whether there is an appearance of independence (see for example Findlay v UK [1997] 24 EHRR).

The following features have been held to assist in the independence of a tribunal structure:

• the appointment of members for a limited and fixed term period;
• the separation of functions so that tribunal members have not been involved in the investigation or in the presentation of (i) an individual case or (ii) in those roles more generally for the same body – although where the substantive issues in the case are not determined, the making of a case management decision by a tribunal which goes onto adjudicate at the hearing does not form, without more, the basis of an appeal (Sengupta v Holmes [2002] EWCA Civ 1104);
• that the organisation holding the hearing does not have powers or a role in selecting, training, appraising and dismissing tribunal members;
• the presence of lay individuals as opposed to those who could be regarded as linked to or representative of the body holding the hearing.

Other features which suggest a tribunal is independent are the existence of other rights and guarantees under Article 6 or natural justice - such as the proceedings being in public, presence of legal representation, the ability of the party to question witnesses together with the attendance of legal assessor/advisor who is independent of the parties and the body holding the hearing.

Bias

A hearing will be fair only if the tribunal is impartial; a hearing will be unfair where there is either actual bias or the real potential for bias.  If there is any justifiable doubt that an individual tribunal member is prejudiced or biased on either an objective or subjective basis, that individual should withdraw from the case. The well-known and oft-cited principle is that

…it is… of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. (R v Sussex Justices, Ex p McCarthy [1924] 1 KB 256)

In Lawal v Northern Spirit [2003] UKHL 35, the House of Lords confirmed that there was no difference between the common law test of bias (in applying principles of natural justice) and the requirements under Article 6 of the ECHR for an independent and impartial tribunal.

The current test for bias, formed in Re Medicaments and Related Classes of Goods (No.2) [2001] 1W.L.R. 200 and developed in Porter v Magill [2002] 2 A.C.357 is:

Whether the fair-minded and informed observer, having considered the facts, would conclude there was a real possibility that the tribunal was biased. This test for bias operates in all adjudication forums.

Potential examples of actual or perceived bias include where a tribunal member:

• has a financial or other personal interest in the outcome of the hearing,
• has a close personal or professional relationship with a witness in the case (which may affect the member’s ability to consider the witness’s evidence with an open mind) - it is not appropriate to seek to address the issue by calling alternative witnesses (AWG Group Limited v Morrison [2006] EWCA Civ 6)
• has had previous acrimonious personal dealings with one of the parties or the representatives (Howell v Lees Millais 2007] EWCA Civ 720).
• is active (such as by making statements/writing articles/being a representative) in an organisation which has a particular stance on an issue under consideration by the tribunal (see comments in Helow v Secretary of State for the Home Department [2008] 1 WLR 2416).

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Case Study – attributes of the fair-minded and informed observer

The House of Lords recently considered the attributes of the fair-minded and informed observer.   In Helow, the observer was described as “the sort of person who takes the trouble to read the text of an article as well as the headlines” and more particularly as

reserving judgment until both sides of the argument have been seen and fully observed;

• being detached but not complacent;
• being not unduly sensitive or suspicious;
• recognising that fairness requires that an tribunal must be and must be seen to be unbiased;
• appreciating that members of a tribunal have their weaknesses;
• concluding, without hesitation where objectively justified, that conduct or statements by a member, or his/her or its associations, may make it difficult for a case to be judged fairly before them.

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The inconvenience, cost and delay which will be caused by a member’s recusal must not be taken into account; if there has, will be, or there is a real possibility of bias, the tribunal member should withdraw – there is no balancing factor or discretion in such a situation.

Conduct of a Tribunal Member

The conduct, questioning and approach taken by a tribunal member during a hearing may call into question the fairness of the process and suggest bias.  Tribunal members are expected to conduct themselves throughout proceedings in an appropriately judicial manner. 

The following behaviour may call into question the impartiality and fairness of a hearing:

• comments, tone or body language which gives the appearance of a closed mind – for example, a statement at the opening of a case that one party “faced an uphill struggle” with its case was deemed to mean the hearing was unfair, particularly because it was not expressed as a preliminary view (Chris Project v Lara Hutt EAT 6 April 2006);
• over frequent and aggressive interventions (London Borough of Southwark v Kofi-Adu [2006] EWCA Civ 2008).
• oppressive form of questioning – although seeming irritation is, “not of itself a basis, subjectively or objectively, for requiring [a tribunal] to recuse themselves on account of bias from further proceedings between the same parties” (Aaron v Law Society [2003] EWCH 2271) and neither is discreet whispering of itself biased behaviour (Baba v General Medical Council [2002] UKPC 22.)
• consuming alcohol and falling asleep during a hearing, as this demonstrated that the tribunal was not demonstrably focused on the issues and evidence in the case (Stansbury v Datapulse Plc [2003] EWCA Civ 1951.)

A hearing will not necessarily be unfair because tribunal members have had accidental contact with witnesses or parties – although efforts should be made to avoid such contact where possible.

Prejudicial Material

A fair hearing may be prejudiced by press coverage in advance or during the proceedings.  The provisions within Article 6 are unable to prevent or limit press coverage.  However, the media may voluntarily adopt a restrained and discreet approach to reporting whilst proceedings are ongoing.

The potential prejudicial effect of extraneous publicity was considered by the Privy Council in Montgomery v. HM Advocate [2003] 1 AC 641. In that case an appeal regarding prejudicial material was dismissed given that a judge – or legal assessor – could give careful directions and warnings regarding the press reports which would reinforce the impact of seeing and hearing the witness evidence more than “any residual recollections about media reports”.

The test for determining whether a right to a fair trial had been breached is whether the risk of prejudice was so grave that no direction by a trial judge or advice by a legal adviser/assessor, however carefully crafted, could reasonably be expected to remove it.  The only issue is, however, whether a defendant’s right to a fair trial could be breached and the balancing of matters such as the public interest should not be under consideration.

The following factors should be considered when determining the prejudicial effect of adverse publicity on an otherwise impartial tribunal:

• length of time between the hearing and the publication of the articles/reporting of the matter
• the ‘focussing effect’ of listening to the evidence over a prolonged period of time
• the likely effect of directions or advice to the tribunal
• the nature of the prejudicial material and whether it is different and unrelated to the issues being considered by the tribunal
• the danger of prejudice
• whether the tribunal is experienced and trained in dealing with proceedings and able to distinguish between admissible and inadmissible evidence

As a consequence of the case law, it is clear that awareness of adverse press reporting or prejudicial material need not be fatal to the impartiality of a tribunal but that the effect should be considered in the context of the proceedings as a whole, including the likely impact of oral evidence and legal advice.  In a case which is likely to attract press interest and reporting, at the opening of a case, the tribunal should be advised that members should avoid reading or listening to any articles or reports about the case.

Use of extraneous information and research conducted with the case

An individual facing a hearing should be aware of, and be able to respond to, any of the matters that the tribunal may wish to take into account when reaching its determination in a hearing.  As a consequence a tribunal must not:

• seek to rely on any extraneous research or information undertaken by members themselves
• rely on advice given by a legal assessor or a specialist adviser who sits with the tribunal during their private sessions, unless that evidence or advice is repeated in public session prior to the announcement of the Committee’s decision

Often a tribunal can consist of a member who has specialist knowledge or particular skills in the area under dispute. That member should take care to raise any questions they have about the evidence with a particular witness in public session.

Delay

Both the common law and Article 6 of the ECHR recognise that delay in the bringing of proceedings can interfere with an individual’s right to a fair hearing.

An argument that the proceedings are unfair owing to delay may be advanced on two grounds:

1. that there has been an unjustifiable delay under common law leading to an abuse of process;
2. that there has been a breach of an individual’s right to a hearing within a reasonable time under Article 6 of the ECHR.

Some of the concepts in both grounds overlap but there are differences.  The principal cases for consideration are: Att-Gen’s Reference (No.1 of 1990) [1992] QB 630 CA and Att-Gen’s Reference (No.2 of 2001) [2004] AC 72 HL.

Common Law

Unjustifiable delay can lead to unfairness.

In determining whether the delay is unjustifiable, the period of time that has elapsed from the alleged conduct under consideration and the commencement of proceedings is reviewed.

Delays may be justified.  The complexity of an inquiry/investigation/preparation of a case may justify delay and, whether a delay is justified or not will be dependent on the circumstances of the case.

It is not sufficient for unjustifiable delay to be found – there must also be serious prejudice such that a fair hearing before the tribunal cannot be held.  Even when delays are unjustifiable – i.e. stopping proceedings from progressing to a substantive hearing – is the exception rather than the rule and where there is no fault on the part of the adjudicatory body, it would be very rare for a stay to be granted.  Even where there is fault, halting proceedings should not simply be used to demonstrate disapproval.

There are two issues regarding fairness: (i) whether a fair hearing is possible and (ii) whether it would be fair to consider the case.  If a fair hearing is not possible or if it would be unfair to consider the case, then, in those circumstances, proceedings must be stayed.

Article 6

Under Article 6 of the ECHR an individual is entitled to a fair hearing within a reasonable time.

The period of delay for consideration under Article 6 runs from the time that the individual is “officially notified” (Deweer v. Belgian [1980] 2 EHRR 439) or “substantially affected” (Eckle v. Germany [1982] 5 EHRR 1) of the matter.  Generally, the date from which the right to a trial within a reasonable time under Article 6 is calculated is regarded as the date that an individual is informed of the allegations against him or her.  This may not be the first notification that there are concerns – it is when the individual is notified in general terms of the allegations.  This is different to the timeframe under common law which runs from the events under consideration.

Having determined when the ‘clock starts to run’, the question arises as to whether the delay between that date and the opening of the hearing is unreasonable.  Again, the complexity of the case, the respondent’s conduct and matters such as the way a case may have been dealt with by other administrative or judicial authorities can be taken into account when determining whether the period of time that has elapsed is reasonable.

Under Article 6 there is no need for a respondent to demonstrate that he or she has suffered prejudice as a consequence of any delay.  If a body has failed to bring a hearing in a reasonable time, Article 6 is contravened.  However, even if there has been a breach of Article 6, progressing with a hearing will not necessarily be unfair and it is not appropriate to halt proceedings permanently unless:

• There could not longer be a fair hearing
• It would otherwise be unfair to hear the allegations, for example because of bad faith or unlawfulness

In considering whether proceedings should be stayed, a tribunal should consider the public interest in allegations being tested and considered at a public hearing.  If a hearing is able to proceed fairly a tribunal may take into account the delay in determining the outcome or any sanction imposed should allegations be proved.

Procedures at a hearing

This part looks at some of the more common procedural issues that arise at a hearing, including those where a decision is required on the fairest way of proceeding.

Proceeding in the absence of a party

Generally, the parties will have a right to attend the hearing.  This may be by virtue of the applicable procedure rules or where Article 6 applies.  However, it does not follow that a party is required to attend the hearing.  Nor does it mean that a hearing cannot proceed if one party fails to attend.  There may be instances, more typically in regulatory prosecutions, where the party against whom the case is brought chooses not to engage in the process or hopes that by not attending they will be able to delay or frustrate the hearing.  The party bringing the case is also entitled to expect that the proceedings will be concluded within a reasonable time.  There may, in addition, be a public interest in seeing that this is achieved. 

However, a tribunal needs to act with caution before deciding to proceed with a hearing in the absence of a party.  Generally, there are three stages to making the decision:

1. The tribunal should satisfy itself that the notice of hearing was sent to the party.
2. The tribunal should next check to see that the notice was served properly in accordance with the applicable procedure rules. 
   If the tribunal is not satisfied on points (1) and (2), it will usually be bound to adjourn the hearing until such time as proper service has been effected.
3. If satisfied that there has been proper service, the tribunal should then decide whether to exercise its discretion in favour of proceeding with the hearing in the absence of the party.

The discretion needs to be exercised with utmost caution, with the tribunal taking into account all the circumstances of the case.  Those circumstances will include what is at stake in the proceedings for the non-attending party.  The more that is at stake, the more the tribunal should be cautious about deciding to proceed.  It needs to guard against any feelings of irritation at the party’s non-attendance. The presumption should be in favour of adjourning the hearing unless the tribunal is satisfied that it is fair to go ahead in all the circumstances.

The House of Lords listed the factors to be considered in the exercise of the discretion in the criminal case of R v Jones [2003] 1 AC 1.  The Privy Council in Tait v Royal College of Veterinary Surgeons [2003] UKPC 34 effectively endorsed these factors as applying in conduct proceedings for professional regulatory bodies.  Even for other types of hearing, the factors laid down in Jones provide a useful checklist for any tribunal.  Those factors are:

• the nature and circumstances of the party’s non-attendance and, in particular, whether they have chosen voluntarily not to be present
• whether an adjournment might result in the party attending voluntarily
• the likely length of such an adjournment
• whether the party is, or wishes to be, legally represented at the hearing or has, by their conduct, waived their right to representation
• the extent of the disadvantage to the party in not being able to give their account of events, having regard to the nature of the evidence against them
• the risk of the tribunal reaching an improper conclusion about the absence of the party
• the public interest and the particular interests of the other parties, including their witnesses, in the hearing proceeding within a reasonable time
• the effect of delay on the memories of witnesses

Given the importance of a decision to proceed in a party’s absence, a tribunal is well-advised to retire to consider the matter and avoid coming to a snap decision.  In addition, a tribunal ought to give reasons for its decision.

Adjournments

This subject is closely connected to that of whether to proceed in the absence of a party.  Sometimes the two issues arise together, and generally the tribunal will need to consider many of the same factors, or seek to weigh up similar competing interests.  The reasons given for seeking an adjournment can, of course, take many forms.  The following are the more typical.

(1) A party’s ill-health

If a party applies for an adjournment of the hearing on grounds of their ill health, a tribunal will wish to consider whether the party is genuinely unwell, and not just engaging in a delaying tactic, and whether the party is suffering from a medical condition that is likely to prevent their attendance or effective participation.

The following tend to be relevant questions for the tribunal to consider:

• Has the party produced supporting evidence from their treating doctor? (It is reasonable to expect the party to provide it.)
• What is the quality of the supporting evidence: does it identify the nature of the medical condition, its seriousness in terms of the party’s ability to attend the hearing, and its likely duration? 
• What else is known about the party’s state of health?
• Is there any reason to believe the assertion of ill health is anything other than genuine?
• What are the likely consequences of an adjournment and will it cause prejudice to the other party?

Generally, the case law indicates that a tribunal should err in favour of granting an adjournment, particularly where credible medical evidence in support is received.  (See for example: Brabazon-Drenning v United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2001] HRLR 6, Malkhandi v General Medical Council [2003] UKPC 73, R (Mahmood) v General Medical Council [2007] EWHC 474 and Janik v Standards Board for England [2007] EWHC 835).

It tends to be only in cases where no supporting medical evidence is produced, and where there is good reason to believe that this is a delaying tactic, that a tribunal is justified in refusing an adjournment.

(2) To obtain or change legal representation

Where a party is entitled to be legally represented at the hearing, it is important that they are given a reasonable opportunity to obtain that representation.

However, a tribunal is entitled to expect an explanation from the applying party. It should also put into the balance the public interest, the interests of the other parties, and the potential consequences of an adjournment.

Nevertheless, the interests of justice usually tend to be in favour of an adjournment, at least on the first occasion of an application on this basis, notwithstanding the delay, administrative inconvenience and additional expense that an adjournment inevitably causes.

(3) To obtain further evidence

The tribunal is entitled to expect the parties to be ready for the hearing, provided they have been given adequate notice of the hearing and a reasonable time to prepare.

However, as with all adjournment applications, it is necessary for the tribunal to consider the overall interests of justice, including the competing interests of the parties.  The key factors to be considered are:

• whether there is a good reason for the party seeking the evidence late
• the likely importance of the evidence to the issues in the case and the risk of the tribunal wrongly deciding the case without it.
• the extent of the potential prejudice to the party seeking the evidence if an adjournment is refused.

Whether to conduct the hearing in public or private

It is usual for public and statutory bodies to hold their hearings in public.  This is in part because the proceedings frequently involve the determination of a party’s civil rights and obligations and thus the party has a right to insist on a public hearing under Article 6.  However, it is also in recognition of a need for transparency, which is promoted by the public being able to see the body carry out its functions, as this in turn helps to maintain public confidence in the body.

For those statutory bodies that are professional regulators, it is further said that hearings in public are important for upholding the standards of the profession and in maintaining public confidence in the profession.

In short, it is argued that there is a public interest in hearings being held in public.

However, not all hearings are required to be in public.  Many hearings still take place in private with only the parties and the tribunal present and the public excluded.  Provided the proceedings do not involve the determination of a person’s civil rights, a party has no right at common law to demand a public hearing.

Further, Article 6(1) itself provides exceptions to the right to a public hearing:

“The press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interest of justice.”

Public and statutory bodies typically incorporate such exceptions into their rules.

When considering an application to exclude the public from what would otherwise be a public hearing, it usually necessary for the tribunal:

• to undertake a balancing exercise between the private interest of the party (or witness) seeking a private hearing, and the competing public interest, as described above, in having the hearing proceeding in public - where the weight to be attached to these competing interests will depend on the particular circumstances of the case
• to consider whether there are other practical measures available to meet the particular concern (for example, by allowing a witness to maintain their anonymity)
• where the balance is in favour of the private interest, whether the exclusion of the public can fairly be limited to a particular part of the hearing.

Burden and standard of proof

The burden of proof means having the responsibility for proving a disputed issue or allegation to the satisfaction of the tribunal.

It is generally on the party bringing the case.  In disciplinary cases, the burden is invariably on the party making the factual allegations; it will not be for the accused party to disprove the allegations.  This is important for the tribunal to bear in mind.  Questions to the accused party along the lines of “convince me that you did not . . .” are to be strictly avoided as they give the clear impression that the questioner does not understand the burden of proof.

The standard of proof is the level of proof required to persuade the tribunal that a particular fact or proposition is true.

There are two standards of proof recognised in English law: the criminal standard of “beyond a reasonable doubt”; and the lower civil standard of “on the balance of probabilities”.  “The balance of probabilities” means that, before deciding whether a fact or proposition is true, the tribunal must be satisfied that the event is more likely to have happened than not.

Some public and statutory bodies expressly stipulate which standard of proof is to be applied in their procedural rules.  However, this is frequently not the case, although there may be a tradition of applying a particular standard.

Given that proceedings before public or statutory bodies are typically civil rather than criminal in nature, the preponderance of case law suggests that the civil standard is to be preferred by a tribunal when hearing a case.

However, the law in relation to the application of the burden and standard of proof is relatively complex and a lengthy review is beyond the scope of these practice notes.

Important recent cases on the civil standard of proof include Re H (Minors) [1996] AC 563, In Re B (Children) [2008] UKHL 35 and In Re Doherty [2008] UKHL 33.

Amending the factual allegations

In cases where there the tribunal is required to determine factual allegations by one party against another, it is permissible for the tribunal to allow a party to amend a factual allegation,  provided that the amendment does not cause unfairness or prejudice to the accused party.

Before deciding whether to allow an amendment, the tribunal should invite representations from the parties on the issue of possible unfairness or prejudice.

Generally, an amendment will cause unfairness or prejudice if it changes the nature of the allegation or makes it more serious than before.  This is because the accused party will have prepared his case on the basis of the different or less serious allegation.  An example would be where the original allegation was one of financial mismanagement and the presenting party applied to amend the allegation to one of dishonesty.

Decision and Outcome

When the tribunal retires at the end of the hearing to embark upon its decision-making, there are likely to be a range of issues for the tribunal to determine.

Good decision-making depends upon the tribunal determining these issues in the correct sequence and so tribunals are well advised to spend the first few minutes after they retire in talking this through.

Typically, the sequence of decision-making will be:

• making findings of fact
• determining the issue to be drawn from those facts (for example whether they amount to misconduct)
• if any action should be taken as a consequence (for example whether a sanction should be imposed)

The fact-finding stage

In disciplinary type cases, the factual allegations will frequently have been set down in the form of “a charge” by the presenting party in advance of the hearing, and it will be for the tribunal to decide whether all or any of those facts are proved.  In other cases, the areas of factual dispute may be set out in pleadings by the parties or in other forms of written submission.

The tribunal should consider the disputed facts one by one.  The order in which they do so will be for the tribunal to decide – although as a general rule of thumb, a chronological approach usually works best.

For each disputed fact, the tribunal should identify the evidence that has been presented to it by the parties relating to that matter, consider that evidence and, where the evidence conflicts, decide which piece of evidence it prefers, and why.

In this way, the tribunal will be able to decide, applying the correct standard of proof, whether the factual allegation is made out.

It is good practice for a tribunal to give its reasons for its decisions on matters of fact.  Adopting this structured approach will assist the tribunal in this task.  Where conflicting accounts are given by witnesses, it is usually necessary for the tribunal to decide which witness’s evidence should be preferred.  Analysing why it prefers one particular version rather than another will help the tribunal to explain in its reasons why it has reached the particular conclusion.

Determining the issue to be derived from the findings of fact

Having made its factual findings, the tribunal can proceed to determine the next issue in the case; for example whether a party is guilty of misconduct.  This will involve the tribunal members exercising their judgement?

In reaching its decision, the tribunal should:

• base it upon its findings of fact
• identify and consider separately the relevant individual factors (in a disciplinary case, a code of practice will often give useful guidance in this respect)
• take care to ensure that it considers only factors relevant to that particular issue, and not to stray into matters that will be relevant at a subsequent stage of the decision-making
• formulate its reasons for the decision

In disciplinary type cases, mitigation is relevant at this stage.  However, the tribunal needs to take care that the form of mitigation taken into account at this stage should be only of a type that assists it in judging whether misconduct is established.  Other forms of mitigation will only be relevant to the issue of outcome (see below).  The current leading case in professional regulatory proceedings is Azzam v General Medical Council [2008] EWHC 2711. 

Outcome

Having reached its decision on the central issue, the tribunal may have a number of options available to it for the outcome of the case. 
The extent to which the tribunal has options will depend entirely upon the powers that it has been given. It is crucially important for a tribunal to act strictly within its powers.

Many rules of procedure provide for the parties to have a further opportunity to make representations before the tribunal embarks upon this last stage of the decision-making.  This is done out of fairness to the party to be affected by the final decision.  For this reason, it is worth the tribunal considering whether to give the parties this opportunity, even where there is no express requirement in the rules to do so.

Where the tribunal has a range of outcomes available to it at the final stage, it is important for the tribunal to choose the one that is fair and reasonable in all the circumstances, taking account of any mitigation.  This is often described as applying the principle of proportionality.  What it means in practice is that the tribunal needs to balance the interests of the party to be affected with those of the other party and the public interest.  The tribunal should do no more than is necessary to protect the public interest and avoid acting oppressively.