Update on dishonesty – Tariq Rehman v Bar Standards Board (2013)
On 20 July 2013, Visitors to the Inns of Court held that a disciplinary tribunal of the Inns of Court had been justified in finding that a barrister, Tariq Rehman ("R"), had lied before it, despite R
On 20 July 2013, Visitors to the Inns of Court held that a disciplinary tribunal of the Inns of Court had been justified in finding that a barrister, Tariq Rehman ("R"), had lied before it, despite R not being 'charged' with dishonesty, and had been entitled to take that finding into account in reaching its conclusion that his conduct was discreditable.
On 29 July 2011 the disciplinary tribunal had found that R had failed to comply with a Court Order to pay a judgment obtained against him for repayment of a loan from the Bar Standards Board (BSB), and that this amounted to professional misconduct, contrary to paragraph 301(a) of the Code of Conduct of the Bar of England and Wales. This states that barristers must not engage in conduct which is dishonest or otherwise discreditable to a barrister. The particulars of the offence alleged that R "engaged in conduct which was discreditable to a barrister" (failing to comply with a Court Order), but did not specifically allege dishonest conduct (relating to R's explanation that he had sent a cheque to pay the Court Order, but that this had been lost in the post).
In finding the charge proved, the disciplinary tribunal concluded that R had lied that he had sent a cheque to the BSB for £2,000 in October 2009, which had not been received and which R stated must have been lost in the post. R also repeated this lie to the disciplinary tribunal.
The Visitors determined that the disciplinary tribunal had been entitled to take into consideration R's 'lie' to the BSB in deciding whether his failure to comply with the Court order was discreditable. The Visitors also confirmed the disciplinary tribunal's conclusion that what R had told the tribunal by way of defence or explanation did not form part of the circumstances relating to the non-payment. The Visitors confirmed that if a defendant lies to a tribunal, such a matter may subsequently be met with a charge of dishonest conduct, but it cannot form part of the original offence. The Visitors held that the disciplinary tribunal had not made any error, and found that the tribunal had considered the impact of the lie to the BSB rather the dishonest explanation which R had given to the tribunal.
In reaching this conclusion, the Visitors noted that during the hearing, the disciplinary tribunal had discussed with Counsel for both parties whether it was necessary for a separate charge of dishonesty to be included. Counsel for the BSB had argued that the dishonesty formed part of the allegation of discreditable conduct and Counsel for R accepted that dishonesty could be included in a charge of discreditable conduct because dishonesty was discreditable.
The Visitors considered that where an allegation of dishonesty forms part of a disciplinary case, dishonesty should ordinarily appear in the charge, as in the case of Singleton (see comment below) "and there can be no distinction". However, on the particular circumstances of R's case, no procedural unfairness arose as R knew the charge against him. R's Counsel had accepted that the alleged dishonesty might, if proven, be taken into account in deciding whether R's conduct was discreditable rather than requiring a separate charge, a position which was advantageous to R (i.e. he did not face a separate charge of dishonesty). The Visitors concluded that R could not later argue that his lie was unfairly considered by the disciplinary tribunal in considering whether his conduct in connection with the non-payment of the judgment was discreditable.
Comment:
It is common ground that if a regulatory body seeks a finding that one of its professional members has acted dishonestly, such an allegation must be explicitly put to the member. This has long been established in case law, including in Singleton v Law Society [2005] EWHC 2915, in which Mr Singleton successfully appealed the finding of 'conduct unbefitting a solicitor' on the grounds that a procedural irregularity had taken place as he did not have advanced notice that the allegation against him was one of dishonesty.
This approach has recently been upheld in the case of Fabiyi v Nursing & Midwifery Council [2012] EWHC 1441 in which a nurse was struck off the register for a finding of dishonesty, but the finding was overturned on appeal as the nurse was effectively ignorant as to the seriousness of the charge. His Honour Judge Anthony Thornton QC confirmed that a regulator should provide details of three elements in relation to an allegation of dishonesty:
In the case of Fish v General Medical Council [2012] EWHC 1269 in which Registrant doctor successfully appealed a finding of dishonesty made by the GMC, the Court considered that the dishonesty allegation had not been advanced as a free-standing allegation and noted the long-standing principle that an allegation of dishonesty should be clearly particularised and that the allegation should be fairly and squarely put to a registrant during a hearing.
The case also raises an interesting issue as to whether a professional's "defence" can later be part of the matters considered when making an adverse finding (see Misra v General Medical Council [2003] UKPC 7).
The Visitors' decision in Tariq Rehman's case therefore does not sit squarely with the well-established regulatory case-law on charging allegations of dishonesty, although it may be that the informed discussions at first instance distinguish the case. It remains to be seen whether the Visitors' 'purposive' approach to dealing with dishonest conduct which had not been specifically alleged by considering whether, on the particular facts of the case, any procedural unfairness had arisen, is adopted in other disciplinary settings.
On 29 July 2011 the disciplinary tribunal had found that R had failed to comply with a Court Order to pay a judgment obtained against him for repayment of a loan from the Bar Standards Board (BSB), and that this amounted to professional misconduct, contrary to paragraph 301(a) of the Code of Conduct of the Bar of England and Wales. This states that barristers must not engage in conduct which is dishonest or otherwise discreditable to a barrister. The particulars of the offence alleged that R "engaged in conduct which was discreditable to a barrister" (failing to comply with a Court Order), but did not specifically allege dishonest conduct (relating to R's explanation that he had sent a cheque to pay the Court Order, but that this had been lost in the post).
In finding the charge proved, the disciplinary tribunal concluded that R had lied that he had sent a cheque to the BSB for £2,000 in October 2009, which had not been received and which R stated must have been lost in the post. R also repeated this lie to the disciplinary tribunal.
The Visitors determined that the disciplinary tribunal had been entitled to take into consideration R's 'lie' to the BSB in deciding whether his failure to comply with the Court order was discreditable. The Visitors also confirmed the disciplinary tribunal's conclusion that what R had told the tribunal by way of defence or explanation did not form part of the circumstances relating to the non-payment. The Visitors confirmed that if a defendant lies to a tribunal, such a matter may subsequently be met with a charge of dishonest conduct, but it cannot form part of the original offence. The Visitors held that the disciplinary tribunal had not made any error, and found that the tribunal had considered the impact of the lie to the BSB rather the dishonest explanation which R had given to the tribunal.
In reaching this conclusion, the Visitors noted that during the hearing, the disciplinary tribunal had discussed with Counsel for both parties whether it was necessary for a separate charge of dishonesty to be included. Counsel for the BSB had argued that the dishonesty formed part of the allegation of discreditable conduct and Counsel for R accepted that dishonesty could be included in a charge of discreditable conduct because dishonesty was discreditable.
The Visitors considered that where an allegation of dishonesty forms part of a disciplinary case, dishonesty should ordinarily appear in the charge, as in the case of Singleton (see comment below) "and there can be no distinction". However, on the particular circumstances of R's case, no procedural unfairness arose as R knew the charge against him. R's Counsel had accepted that the alleged dishonesty might, if proven, be taken into account in deciding whether R's conduct was discreditable rather than requiring a separate charge, a position which was advantageous to R (i.e. he did not face a separate charge of dishonesty). The Visitors concluded that R could not later argue that his lie was unfairly considered by the disciplinary tribunal in considering whether his conduct in connection with the non-payment of the judgment was discreditable.
Comment:
It is common ground that if a regulatory body seeks a finding that one of its professional members has acted dishonestly, such an allegation must be explicitly put to the member. This has long been established in case law, including in Singleton v Law Society [2005] EWHC 2915, in which Mr Singleton successfully appealed the finding of 'conduct unbefitting a solicitor' on the grounds that a procedural irregularity had taken place as he did not have advanced notice that the allegation against him was one of dishonesty.
This approach has recently been upheld in the case of Fabiyi v Nursing & Midwifery Council [2012] EWHC 1441 in which a nurse was struck off the register for a finding of dishonesty, but the finding was overturned on appeal as the nurse was effectively ignorant as to the seriousness of the charge. His Honour Judge Anthony Thornton QC confirmed that a regulator should provide details of three elements in relation to an allegation of dishonesty:
- the nature of the dishonesty alleged and, in particular, the actions which it was alleged the respondent had undertaken dishonestly;
- the state of mind which it was alleged that the respondent had had when performing those actions which it was alleged amounted to dishonesty; and
- the evidence that the panel was relying on to show that the respondent had the alleged state of mind in performing the alleged actions.
In the case of Fish v General Medical Council [2012] EWHC 1269 in which Registrant doctor successfully appealed a finding of dishonesty made by the GMC, the Court considered that the dishonesty allegation had not been advanced as a free-standing allegation and noted the long-standing principle that an allegation of dishonesty should be clearly particularised and that the allegation should be fairly and squarely put to a registrant during a hearing.
The case also raises an interesting issue as to whether a professional's "defence" can later be part of the matters considered when making an adverse finding (see Misra v General Medical Council [2003] UKPC 7).
The Visitors' decision in Tariq Rehman's case therefore does not sit squarely with the well-established regulatory case-law on charging allegations of dishonesty, although it may be that the informed discussions at first instance distinguish the case. It remains to be seen whether the Visitors' 'purposive' approach to dealing with dishonest conduct which had not been specifically alleged by considering whether, on the particular facts of the case, any procedural unfairness had arisen, is adopted in other disciplinary settings.