Dorairaj v The Bar Standards Board (Rev 1)

A procedural failure in disciplinary proceedings does not deprive a tribunal of jurisdiction unless the governing instrument objectively shows that compliance was intended to be a condition precedent to the exercise of power. The court must distinguish jurisdictional defects from procedural irregularities. A wrongly constituted panel may raise procedural fairness, particularly where the irregularity causes material unfairness, but it does not automatically invalidate the proceedings. Where referral to a tribunal and the constitution of its panel are analytically distinct steps, an error in selecting the panel does not necessarily invalidate the tribunal’s jurisdiction. Article 6 of the ECHR does not itself guarantee a right of appeal from an article 6-compliant decision.

The appellant, an unregistered barrister, was found guilty by a five-person Bar disciplinary tribunal of conduct contrary to Core Duty 5 and was suspended for 12 months and fined. The Bar Standards Board later accepted that its Professional Conduct Committee should have directed a three-person panel, but maintained that the error was procedural rather than jurisdictional.

The appellant appealed under section 24 of the Crime and Courts Act 2013, arguing that the tribunal’s decision was null and void. She also argued that the five-person panel was unfair and sought a declaration that the statutory limits on further appeals were incompatible with article 6 of the ECHR.

1. Appeal dismissed. The five-person tribunal had jurisdiction, and the application for a declaration of incompatibility was refused.
2. The governing approach to procedural failures was derived from R v Soneji [2005] UKHL 49, R v Sekhon [2002] EWCA Crim 2954, R v Ashton [2006] EWCA Crim 794 and R v Clarke [2008] UKHL 8. The court must ask whether the relevant rule objectively shows an intention that non-compliance should invalidate the act. If not, the court considers the interests of justice, including any real possibility of prejudice.
3. The same analysis applies to disciplinary proceedings, subject to caution when drawing analogies from criminal cases. Tribunals are creatures of statute and possess no inherent powers beyond those arising expressly or impliedly from their governing instruments.
4. Under the Handbook, the power to refer a complaint to a tribunal under regulations rE37 and rE38 was distinct from the direction as to panel composition under regulation rE57. Regulation rE60 did not make the number of panel members a condition precedent to jurisdiction. The panel-composition rules were procedural requirements.
5. A material breach of those requirements might support an appeal on procedural fairness grounds, but it would not itself establish absence of jurisdiction. The five-person panel was not unfair merely because the appellant might have faced a different panel or because a three-person panel had more limited sentencing powers. A five-person panel was generally the stronger tribunal, and referral for sentencing would have been likely in any event.
6. Section 24(4) and (5) of the Crime and Courts Act 2013 was not incompatible with article 6. Article 6 guarantees a fair hearing, but does not guarantee a right of appeal where the original decision was article 6-compliant. The distinction between disbarment cases and lesser sanctions therefore did not require further consideration.

• Bar Tribunal and Adjudication Service disciplinary tribunal: found the charge proved and imposed a 12-month suspension and a £3,000 fine.
• High Court (Administrative Court), Divisional Court: dismissed the appeal and refused the application for a declaration of incompatibility.