Rehman v The Bar Standards Board

A disciplinary tribunal may proceed in a barrister’s absence where, having acted with utmost care and caution, it is just to do so. The tribunal must balance fairness to the barrister with fairness to the regulator and witnesses, the barrister’s obligation to engage with disciplinary proceedings, the public interest in prompt and effective regulation, and the likely consequences of delay.

Article 6 does not confer an absolute right to representation by counsel of first choice. Religious observance may require reasonable procedural accommodation, but does not necessarily justify adjournment. A civil restraint order is proportionate where repeated totally without merit claims and applications demonstrate a high future risk of abuse.

The claimant, a barrister, brought two statutory appeals under section 24 of the Crime and Courts Act 2013 against findings of professional misconduct by panels of the Disciplinary Tribunal of the Council of the Inns of Court.

The first appeal concerned an allegation that he had accused a solicitor of forging the date on a section 21 notice without reasonably credible material establishing a prima facie case of fraud. The second concerned delays in refunding or paying money due to clients while he was Head of Chambers.

He also challenged the refusal of the panels to adjourn proceedings conducted in his absence, relying on common-law fairness, article 6 and article 9 of the ECHR, and procedural irregularities. The court also considered applications to reopen earlier proceedings and whether an extended civil restraint order should be made.

1. Applications to reopen. The applications to reopen the earlier appeals and judicial reviews were misconceived. The asserted conspiracy grounds had repeatedly been found baseless, and an alternative effective remedy existed in the proposed appeals against the judicial-review decisions. The applications were dismissed as totally without merit.
2. First statutory appeal. The panel was entitled to proceed in Mr Rehman’s absence under regulation rE149 of the Disciplinary Tribunals Regulations 2014. The relevant approach was that identified in Norton v Bar Standards Board and General Medical Council v Adeogba; General Medical Council v Visvardis, applying the criteria derived from R v Jones (Anthony) with appropriate regard to the regulatory context.
3. The panel had to consider fairness to the barrister, the regulator and its witnesses, the absence of compulsory process to secure the barrister’s attendance, the duty of barristers to cooperate with regulation, the cost and delay of adjournment, and the public interest in maintaining professional standards. The panel had considered those matters with utmost care and caution. Mr Rehman had ample opportunity to arrange representation and had voluntarily failed to attend the first day.
4. Article 6 did not give Mr Rehman an absolute right to his counsel of first choice. The panel could proceed despite the absence of his preferred counsel where he had a reasonable opportunity to secure representation. Article 9 did not require an adjournment for the day of Arafat. Any disadvantage caused by fasting could have been addressed by ordinary adjustments, and the interference, if any, was justified by the competing public interests.
5. The panel was also entitled to proceed without Mr Khan. Mr Rehman had not shown reasonable efforts to secure his attendance. The panel kept his evidence under review and was entitled to consider his written statements while hearing the available evidence.
6. The panel was entitled to accept Mr Green’s evidence, notwithstanding the absence of Mr Stachiw and the late preparation of Mr Green’s statement. It had considered Mr Khan’s evidence. The first appeal was dismissed, and the two-month suspension was not arguably inappropriate.
7. Second statutory appeal. None of the procedural complaints had substance. The panel was entitled to refuse Ms Sheikh permission to act as advocate, McKenzie Friend or informal adviser, and to proceed in Mr Rehman’s absence while he was engaged elsewhere. The appeal was dismissed as totally without merit.
8. Civil restraint order. The court had jurisdiction to make an extended civil restraint order because Mr Rehman had persistently issued claims, appeals and applications which were totally without merit. The proper focus was the future risk of continued abuse, and the order had to be proportionate. An extended order for two years was proposed, subject to settling its precise terms.

The judgment records that earlier appeals and judicial reviews had been determined by the same court on 25 May 2016 in [2016] EWHC 1199 (Admin). Applications to stay those proceedings had been refused by the Court of Appeal on 26 July 2016. The present court dismissed both statutory appeals and dismissed two applications to reopen earlier proceedings.