O'Connor v Bar Standards Board

For the one-year limitation period under section 7(5)(a) of the Human Rights Act 1998, a prosecution will ordinarily be treated as one continuing act until conviction or acquittal. The prosecutor’s opposition to an appeal is a distinct act and does not continue the original prosecution. The limitation period therefore runs from the verdict, subject to any equitable extension under section 7(5)(b). A claimant seeking an extension must make that request clear to the court and the opposing party and identify the grounds and evidence relied on. The court is not generally required to consider an extension of its own initiative, particularly where the claimant is legally represented.

The appellant, a practising barrister, brought proceedings against the Bar Standards Board concerning disciplinary proceedings which had resulted in her conviction by a Disciplinary Tribunal and acquittal on appeal. She alleged, among other matters, that the disciplinary process infringed Article 14 of the Convention, read with Article 6, and that the BSB’s conduct was indirectly discriminatory.

The Deputy Master struck out or summarily dismissed the claims, including on limitation grounds. Warby J held that the Article 14 claim had real prospects of success but was barred by section 7(5) of the Human Rights Act 1998. The central issues on appeal were whether the prosecution continued while the BSB opposed the appeal, and whether time should be extended under section 7(5)(b).

1. Appeal dismissed. The one-year period under section 7(5)(a) of the Human Rights Act 1998 began when the Disciplinary Tribunal found five charges proved on 23 May 2011. The proceedings issued on 21 February 2013 were therefore out of time.
2. Under section 7(5)(a), the classification of alleged acts depends on the circumstances and the nature of the complaint. The institution and conduct of a prosecution will ordinarily be treated as one continuing act until the verdict, when the prosecution has run its course.
3. Opposing an appeal against conviction is categorically different from prosecuting the defendant. It seeks to uphold the tribunal’s decision rather than continue the original prosecution. The prosecutor’s conduct in resisting the appeal therefore did not extend the limitation period. A complaint about discriminatory conduct in the appeal would be a different complaint, and none was alleged here.
4. The authorities concerning the duration of proceedings for Article 6 purposes did not determine the separate limitation question under section 7(5)(a).
5. Section 7(5)(b) confers a discretion to extend time, but a party seeking an extension must make that request clear, identify the grounds and provide supporting evidence. The court was not required to consider an extension on its own initiative where no application had been made, particularly as the appellant was legally represented. The judge’s additional conclusion that the proposed grounds were insufficient disclosed no error of principle.
6. The court did not determine conclusively whether the evidence established indirect or systemic discrimination under Article 14. Elias LJ added that a systemic-discrimination claim does not necessarily establish unlawful discrimination against every individual subjected to the process, although each individual may be a victim entitled to challenge the wider discrimination.

• Court of Appeal (Civil Division): Appeal from Warby J’s decision in the Queen’s Bench Division. The Court of Appeal dismissed the appeal.
• High Court of Justice, Queen’s Bench Division: Warby J held that the adequately pleaded Article 14 claim had real prospects of success but was barred by section 7(5) of the Human Rights Act 1998.
• Disciplinary Tribunal: On 23 May 2011, five of the six disciplinary charges were found proved.
• Visitors to the Inns of Court: On 17 August 2012, the appellant’s appeal was allowed and none of the alleged conduct was found to breach the Code.