Norton v Bar Standards Board

A disciplinary tribunal deciding whether to proceed in the defendant’s absence exercises a severely constrained discretion. It must proceed with the utmost care and caution and apply the relevant factors identified in R v (Anthony) Jones [2002] UKHL 5; [2003] 1 AC 1. Fairness to the defendant is of prime importance, while fairness to the regulator and the public interest must also be considered. The defendant is not required to disclose an intended plea or defence as a condition of obtaining an adjournment. Any failure to provide that information is merely one relevant factor and must be given proportionate weight. The tribunal must address whether the absence was deliberate, whether an adjournment might secure attendance, the disadvantage caused by proceeding, and the effects of delay.

The appellant, a barrister, was found guilty by a five-member Disciplinary Tribunal of professional misconduct concerning undisclosed convictions, claimed academic qualifications and failure to respond to the Bar Standards Board. He was disbarred on two charges and fined on another.

He appealed to the Administrative Court under section 24 of the Crime and Courts Act 2013. The central issue was whether the tribunal had lawfully exercised its discretion under rule E148 of the Disciplinary Tribunals Regulations 2014 when it refused an adjournment and proceeded in his absence.

1. The appeal was allowed. The tribunal’s decision was quashed and the matter was remitted for rehearing before a fresh Disciplinary Tribunal.

2. Under rule E148 of the Disciplinary Tribunals Regulations 2014, the question was whether it was just to hear and determine the charges in the appellant’s absence. The discretion was not general or unfettered. It was a severely constrained discretion requiring the utmost care and caution.

3. The relevant approach was stated in R v (Anthony) Jones [2002] UKHL 5; [2003] 1 AC 1. The tribunal had to consider the relevant circumstances, including whether the absence was deliberate or voluntary and amounted to a waiver, whether an adjournment might secure attendance, the likely length of delay, representation, the disadvantage caused by the inability to give an account, and the public interest in a timely hearing. Fairness to the defence was of prime importance, although fairness to the prosecution also had to be considered.

4. The appellant was not required to state whether he contested the charges or to outline his proposed defence. Such information could assist the tribunal in assessing the likely disadvantage and utility of an adjournment, but it was only one factor and had to be treated proportionately.

5. The tribunal had failed to determine whether the appellant had deliberately avoided the hearing or voluntarily chosen to be absent. It had not considered whether an adjournment might result in his attendance, and its conclusion that an adjournment was unlikely to achieve anything rested mainly on the absence of an outlined defence. It also failed to consider the absence of victims or witnesses whose memories might be affected by delay.

6. Those omissions, together with the tribunal’s apparent acceptance that prejudice was irrelevant and its failure to address the Jones criteria, created a real risk that fairness to the defence had not been properly assessed.

• High Court (Administrative Court): appeal under section 24 of the Crime and Courts Act 2013 allowed; the tribunal’s decision was quashed and the case remitted for rehearing before a fresh Disciplinary Tribunal.
• Disciplinary Tribunal of the Council of the Inns of Court: proceeded in the appellant’s absence, found charges 1, 3 and 4 proven, disbarred him on charges 1 and 3, and fined him £3,000 on charge 4.