With few exceptions, it has not generally been common practice in professional disciplinary proceedings for Tribunals to draw any adverse inference against a respondent from their silence or the
With few exceptions, it has not generally been common practice in professional disciplinary proceedings for Tribunals to draw any adverse inference against a respondent from their silence or the absence of requested evidence. However, recent appeal cases suggest that the scene may be changing in this respect, at least insofar as the legal regulators are concerned.
In the case of Iqbal v Solicitors Regulation Authority [2012]. the Divisional Court considered the appeal of a solicitor who had been removed from the roll following a hearing before the Solicitors Disciplinary Tribunal ("SDT"). He contended that although the SDT had rejected allegations of dishonesty, it had effectively sanctioned him as if he had been dishonest.
The Divisional Court found that it was hard to avoid the conclusion that the SDT had considered the case on the basis that there had been an element of dishonesty. Ultimately, however, the Court determined that, in light of the degree of incompetence exhibited, the only possible sanction was to remove Mr Iqbal from the roll and the SDT's decision was therefore upheld.
In giving judgment, the Divisional Court also passed comment on Mr Iqbal's failure to give oral evidence, despite the seriousness of the allegations he was facing. The Divisional Court noted that the public would expect a professional man to account for his actions, and suggested that the SDT review and update its practice so that an adverse inference might be drawn, where a person in Mr Iqbal's position failed to give evidence.
This is an interesting line, which was recently developed in the case of Ashiq v Bar Standards Board [2013]. Mr Ashiq, a barrister, had been reported to the Bar Standards Board ("the BSB") following allegations that he had failed to pay a judgment debt against him. In response to a letter from the BSB concerning the allegations, Mr Ashiq contended that he had paid the debt and provided the BSB with a copy of a cheque and letter to the complainant, dating back to October 2008. The BSB subsequently asked him for proof that the cheque had been paid, but he refused to produce his bank records or cheque stubs.
At hearing, the BSB’s case was opened on the basis that the cheque had not been sent in October 2008 or at all. Counsel for the BSB informed the Tribunal that Mr Ashiq had refused to provide access to his bank statements and cheque book stubs so that the dates either side of the cheque concerned could be seen. Mr Ashiq represented himself at hearing, and gave evidence on his own account, continuing to refuse to allow even limited access to his bank records.
The Tribunal noted that it was Mr Ashiq’s duty under paragraph 905(d) of the Code of Conduct to respond promptly to a request for information, and drew the inference requested by the BSB, that the true reason why Mr Ashiq was unwilling to produce his bank statements was that he knew that they would not support his story that he had sent a cheque in October 2008.
Mr Ashiq appealed on the basis that the Tribunal had in effect reversed the burden of proof by requiring him to prove his innocence and that the Tribunal should only have drawn the inference against him that it did, if it was the only inference that could be drawn from the fact of the refusal.
The Visitors to the Inns of Court, in hearing the appeal, did not agree that the Tribunal had reversed the burden of proof by requiring Mr Ashiq to produce his bank statements. It had given him an opportunity to consider his position and to provide documents redacted to conceal anything that was not material. He had refused that opportunity. The Tribunal correctly found that his reasons for doing so had no weight. It was Mr Ashiq’s duty under the Code of Conduct to respond positively to any requests made by the BSB, and the evidence before the Tribunal was evidence of an unjustified refusal.
The Visitors concluded that it was for the Tribunal to consider what inference it should draw from the refusal and that was not a reversal of the burden of proof. The Tribunal had been entitled to find that there could be no other explanation for Mr Ashiq's refusal to provide the records and to have drawn the inference it did. The appeal was therefore dismissed.
It remains to be seen whether these two cases will lead to adverse inferences being more regularly drawn in professional disciplinary proceedings.
In the event that regulators do wish to follow the suggestion that a professional man should account for his actions before his regulator, or draw an adverse inference from his failure to provide evidence, the introduction of appropriate safeguards in order to avoid infringing a respondent's article 6 right to a fair trial should be considered. These might include Panels being given the Cowan direction applied in criminal trials where prosecutors are requesting that an adverse inference be drawn. As laid down by the ECHR in the case of Murray (John) v UK (1996), the overall fairness of the proceedings to the respondent is the key in this regard.
In the case of Iqbal v Solicitors Regulation Authority [2012]. the Divisional Court considered the appeal of a solicitor who had been removed from the roll following a hearing before the Solicitors Disciplinary Tribunal ("SDT"). He contended that although the SDT had rejected allegations of dishonesty, it had effectively sanctioned him as if he had been dishonest.
The Divisional Court found that it was hard to avoid the conclusion that the SDT had considered the case on the basis that there had been an element of dishonesty. Ultimately, however, the Court determined that, in light of the degree of incompetence exhibited, the only possible sanction was to remove Mr Iqbal from the roll and the SDT's decision was therefore upheld.
In giving judgment, the Divisional Court also passed comment on Mr Iqbal's failure to give oral evidence, despite the seriousness of the allegations he was facing. The Divisional Court noted that the public would expect a professional man to account for his actions, and suggested that the SDT review and update its practice so that an adverse inference might be drawn, where a person in Mr Iqbal's position failed to give evidence.
This is an interesting line, which was recently developed in the case of Ashiq v Bar Standards Board [2013]. Mr Ashiq, a barrister, had been reported to the Bar Standards Board ("the BSB") following allegations that he had failed to pay a judgment debt against him. In response to a letter from the BSB concerning the allegations, Mr Ashiq contended that he had paid the debt and provided the BSB with a copy of a cheque and letter to the complainant, dating back to October 2008. The BSB subsequently asked him for proof that the cheque had been paid, but he refused to produce his bank records or cheque stubs.
At hearing, the BSB’s case was opened on the basis that the cheque had not been sent in October 2008 or at all. Counsel for the BSB informed the Tribunal that Mr Ashiq had refused to provide access to his bank statements and cheque book stubs so that the dates either side of the cheque concerned could be seen. Mr Ashiq represented himself at hearing, and gave evidence on his own account, continuing to refuse to allow even limited access to his bank records.
The Tribunal noted that it was Mr Ashiq’s duty under paragraph 905(d) of the Code of Conduct to respond promptly to a request for information, and drew the inference requested by the BSB, that the true reason why Mr Ashiq was unwilling to produce his bank statements was that he knew that they would not support his story that he had sent a cheque in October 2008.
Mr Ashiq appealed on the basis that the Tribunal had in effect reversed the burden of proof by requiring him to prove his innocence and that the Tribunal should only have drawn the inference against him that it did, if it was the only inference that could be drawn from the fact of the refusal.
The Visitors to the Inns of Court, in hearing the appeal, did not agree that the Tribunal had reversed the burden of proof by requiring Mr Ashiq to produce his bank statements. It had given him an opportunity to consider his position and to provide documents redacted to conceal anything that was not material. He had refused that opportunity. The Tribunal correctly found that his reasons for doing so had no weight. It was Mr Ashiq’s duty under the Code of Conduct to respond positively to any requests made by the BSB, and the evidence before the Tribunal was evidence of an unjustified refusal.
The Visitors concluded that it was for the Tribunal to consider what inference it should draw from the refusal and that was not a reversal of the burden of proof. The Tribunal had been entitled to find that there could be no other explanation for Mr Ashiq's refusal to provide the records and to have drawn the inference it did. The appeal was therefore dismissed.
It remains to be seen whether these two cases will lead to adverse inferences being more regularly drawn in professional disciplinary proceedings.
In the event that regulators do wish to follow the suggestion that a professional man should account for his actions before his regulator, or draw an adverse inference from his failure to provide evidence, the introduction of appropriate safeguards in order to avoid infringing a respondent's article 6 right to a fair trial should be considered. These might include Panels being given the Cowan direction applied in criminal trials where prosecutors are requesting that an adverse inference be drawn. As laid down by the ECHR in the case of Murray (John) v UK (1996), the overall fairness of the proceedings to the respondent is the key in this regard.