Lexploria

The European Commission of Human Rights sitting in private on 13 March

1986, the following members being present:

MM. C. A. NØRGAARD, President

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

G. TENEKIDES

B. KIERNAN

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. VANDENBERGHE

Mrs. G. H. THUNE

Sir Basil HALL

Mr. H. C. KRÃœGER Secretary to the Commission

Having regard to Art. 25 of the Convention for the Protection of Human

Rights and Fundamental Freedoms (Art. 25);

Having regard to the application introduced on 8 November 1984 by R.G.P.

against the United Kingdom and registered on 20 March 1985, under file N°

11456/85;

Having regard to the report provided for in Rule 40 of the Rules of

Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a citizen of the United Kingdom and a barrister. He

was born in 1944 and lives in Norwich, England.

This is his fifth application to the Commission. Applications Nos.

9096/80, 9522/81, 10331/83 and 10904/84 were declared inadmissible by

the Commission on 5 May 1981, 4 October 1982, 16 December 1983 and 18

May 1984 respectively. His first application complained of a criminal

conviction in 1978 for having travelled on a railway without having

previously paid the fare and with intent to avoid payment thereof and

of contravening a railway by-law. His second, third and fourth

applications criticised the regulations governing the legal

profession, in particular that of barristers, in England and Wales,

the second application referring to disciplinary proceedings brought

by the Disciplinary Tribunal of the Senate of the Bar against the

applicant for professional misconduct as a result of the conviction by

a Magistrate's Court in 1978. The facts of this application, as they

have been submitted by the applicant and are apparent from the file,

can be summarised as follows:

As a result of the conviction on 31 August 1978, the applicant was

subjected to a penalty of £200. On 21 February 1980 an arrest warrant

was issued for the balance of the sum due. The applicant claimed that

the balance on the face of the warrant was wrong and, after some

discussion, the sum which the applicant claimed was due was paid and

the Magistrate's Court proceedings ended. The applicant, however,

regarded the discrepancy between the amount he had been asked to pay

and the amount he eventually paid (a difference of £10) as a serious

matter and he thought that the matter should be taken up by the

Norfolk and Suffolk Constabularies.

The applicant wrote to the Suffolk Constabulary enclosing a copy of a

letter he had received from the Clerk to the Justices. In his letter,

the applicant referred to the fact that the warrant for his arrest had

been destroyed and asked the police to investigate inter alia whether

that was not an offence against the Theft Act 1968. In the course of

the police investigations which followed, the applicant made a

statement to the police in which he made allegations of malice and

misconduct against the Clerk to the Justices, stating that he

considered that the Clerk to the Justices had intentionally made out

the warrant for an an excessive amount in the first place, and had

then destroyed the warrant. It was decided not to proceed with

criminal proceedings against the Clerk, and at the end of the police

investigation, the Clerk complained to the Professional Conduct

Committee of the Bar. That Committee brought charges against the

applicant of conduct unbecoming a barrister, namely making a malicious

and unwaranted attack upon the integrity of the Clerk to the Justices.

The applicant submits that, at the Disciplinary Tribunal, he protested

against the disclosure of the report he made to the police, but that

the report was disclosed to the Tribunal nevertheless. From the

transcript of the Disciplinary Tribunal, however, it appears that the

document in respect of which he made an objection to disclosure was

the report made by the Clerk to the Justices to the Professional

Conduct Committee, and not the applicant's report to the police. The

contents of the applicant's letter to the police of 24 November 1980

and his subsequent written statement of 8 December 1980, were read out

before the Tribunal without objection. The applicant's counsel at the

time did submit that the tribunal should not see either the Clerk's

report to the Professional Conduct Committee or the applicant's

comments when he was given the chance to reply. That submission was

accepted. The applicant further submits that the report was, under

domestic law, a privileged document which should not, therefore, have

been disclosed.

At the proceedings of the Disciplinary Tribunal, the Chairman found

the charge of conduct unbecoming a barrister substantiated, and

sentenced the applicant to a suspension of three months. The

suspension of three months was regarded by the Tribunal as

particularly lenient because the applicant, who at the time had only

completed six months of the twelve months pupillage required before a

barrister may practise alone, was in any event not entitled to

practise and the sentence would have no continuing adverse effect once

the three months suspension had expired.

The ultimate responsibility for the regulation of the Bar is vested in

the judiciary, barristers being officers of the court.

"... By the common law of England, the judges have the right

to determine who shall be admitted to practise as barristers

and solicitors; and, as incidental thereto, the judges have

the right to suspend or prohibit from practice. In England,

this power has for a very long time been delegated, so far

as barristers are concerned, to the Inns of court ..."

(Halsbury's laws of England, Vol. 3: Barristers, para. 1103,

FN 6).

Reported cases show that the exercise of these delegated powers and

duties has been at all times and remains subject to the "visitorial

jurisdiction of the judges" and further that resolutions of the judges

and of the Inns of Court providing that the Senate of the four Inns of

Court should be responsible for the machinery by which matters of

discipline in regard to professional misconduct should be dealt with

were valid (cf. re S (1969), 1 All ER 949). In 1974 the Senate of the

Four Inns and a further body, the General Council of the Bar, were

amalgamated to form the Senate of the Inns of Court and the Bar whose

constitution and functions are contained in the Regulations of the

Senate of the Inns of Court and the Bar (1974). The Senate accordingly

is now responsible for the disciplinary machinery originally

administered by the judges and later by the separate Inns.

The 1974 Regulations also created the Bar Council which is responsible

for maintaining "the standards, honour and independence of the Bar ...

and ... all matters affecting the administration of justice"

(Regulation 29). The Bar Council has drawn up a Code of Conduct for

the Bar, whose latest edition was published in January 1985. Rules 6

and 7 of that Code provide, so far as relevant, as follows:

6. It is the duty of every barrister:

(a) to comply with the provisions of this Code and with the

Declaration which he made on his call to the Bar;

(b) not to engage in conduct (whether in pursuit of his

profession or otherwise) which is dishonest or which

may otherwise bring the profession of barrister into

disrepute, or which is prejudicial to the

administration of justice;

(c) to observe the ethics and etiquette of his profession;

...

7. Serious failure to comply with the duties set out in

paragraph 6 shall be professional misconduct and, if proved

before a Disciplinary Tribunal, shall render the barrister

liable to be disbarred, to be suspended (either unconditionally

or subject to conditions), to be ordered to repay or forgo fees

...

The Disciplinary Tribunal, set up under Senate Regulations, hears

inter alia cases of alleged professional misconduct, preferred by the

professional conduct committee. Its procedural rules (drawn up under

a Senate bye-law) provide inter alia (in the version applicable at the

time of the applicant's hearings before the Visitors) as follows:

(p) Publication of Finding and Sentence

(1) The following arrangements are to be followed for publication

of the finding and sentence of a Disciplinary Tribunal:

(i) In cases where the sentence is disbarment or suspension,

the President of the Senate shall publish the charges

found proved and the sentence as soon as he has been

informed by the Treasurer of the barrister's Inn of the

date from which the sentence is to take effect.

...

(2) When publishing any finding, sentence or decision in

accordance with sub-pragraph (1) of this paragraph,

the President of the Senate shall communicate the same

in writing to:

(i) The Lord Chancellor

(ii) The Attorney-General

(iii) The Treasurer of each Inn for screening in the Hall,

Benchers' Room and Treasurer's office of the Inn

(iv) The Leaders of the six Circuits

(v) The barrister concerned

(vi) Such one or more Press Agencies as the President

may decide.

All published decisions of the Disciplinary Tribunal involving

suspension are available for consultation at the Senate on request of

a barrister.

An appeal lies against a decision of the Disciplinary Tribunal to a

panel of High Court judges sitting as Visitors of the Inns of Court

(Hearings before the Visitors Rules 1980). Appeals are heard by not

fewer than three judges of the High Court (Rule 9 (1)) and may be in

public at the request of an applicant (Rule 9 (4)). The Visitors may

pronounce their finding in public or in private (Rule 10 (2)) and

certain of the decisions are included in the Law Reports (for example,

re S (1969) 1 All ER 949, referred to above).

The applicant appealed to the Visitors of the Inns of Court, who heard

the substantive appeal on 24 September 1984. The appeal failed and no

further appeal was possible.

The applicant had been informed of the date of the full hearing for

appeal on or about 14 August 1984. At least two weeks before the

hearing, it became plain to the applicant that the barrister of his

choice (not the barrister who represented him before the original

hearing before the Disciplinary Tribunal in January 1984) would not be

able to represent him before the Visitors. At the hearing, the

applicant stated that he had not attempted to engage another counsel,

and that it would not in any event have been possible at such short

notice. He declined to represent himself. The Visitors found that

the rule of conduct requiring a barrister to act (for a proper

professional fee) if able, and if not prevented by special

circumstances, either did not apply to the present proceedings or had

presumably been complied with if the chosen barrister was unable to

attend. Questions of whether the applicant could afford "a proper

fee" did not arise because of a rule of etiquette requiring barristers

to act for colleagues before disciplinary tribunals without a fee.

The Visitors decided that the proceedings, which had already lasted in

one form or another for six years, had been pending for long enough

and they declined to adjourn them when the applicant stated that he

was not willing to appear without his chosen representative. The

applicant then stated that he would approach another barrister, but

the Visitors decided that they should proceed nevertheless. The

applicant refused to obey the directions of the chairman of the

Visitors as to his conduct in the courtroom and he left. The Visitors

decided to continue in his absence.

In a draft petition of appeal the applicant referred to the general

public importance of being able to make reports to the police, stating

that barristers should not be less aware of their public duty than

other members of the public. The question of whether the letter and

statement to the police were privileged was not, in terms, raised. At

the hearing, although the draft petition of appeal was not considered

to be a proper document with formal grounds for appeal (indeed, there

had already been a preliminary hearing of whether the applicant's

petition to the Visitors was in proper form), the Visitors

nevertheless took it into account in their deliberations. The

question of privilege was not raised orally at the hearing.

Since the applicant originally submitted his application he has been

taken into pupillage from 7 August 1985 and it appears that he has

been entitled to practise as a barrister on his own account from 7

February 1986.

COMPLAINTS

As to the original criminal conviction

The applicant complains of unlawful arrest under the warrant of 21

February 1980 in alleged violation of Art. 5, para. 1 of the

Convention (Art. 5-1). He also invokes Art. 5, para. 5 (Art. 5-5) in

this respect. He claims that legal aid could not have been obtained

for an application to secure such compensation and that his rights

under Art. 6, para. 1 of the Convention (Art. 6-1) were thereby

violated. Finally in this connection, the applicant alleges a

violation of Arts. 13 (Art. 13) and 14 (Art. 14) in that no criminal

proceedings were instituted in respect of what the applicant regards

as the clearly illegal activity of the Clerk to the Justices, and in

that legal aid is not available for private prosecutions.

As to the disciplinary proceedings

The applicant claims that his right to freedom of expression under

Art. 10 of the Convention (Art. 10) has been violated by the

disciplinary sanction. He also claims that the hearing before the

visitors was not in accordance with Art. 6, para. 1 of the Convention

(Art. 6-1) because the applicant was not accorded legal

representation. He alleges a violation of Art. 7 of the Convention

(Art. 7) in that his sentence of three months' suspension for a

"malicious and unwarranted attack on the reputation" of the Clerk to

the Justices represented a sentence for a criminal offence which had

not existed at the time the offence took place. In respect of Art. 8

(Art. 8), the applicant alleges a violation in that he has been

subjected to disciplinary measures for the exercise of his rights to

correspond. Finally, in respect of the disciplinary proceedings, he

complains that because there is no appeal to the House of Lords from a

decision of the Visitors, he is denied an effective remedy in alleged

violation of Art. 13 of the Convention (Art. 13).

THE LAW

As to the original conviction

1. The applicant makes various allegations under Arts. 5 (Art. 5)

and 6 (Art. 6) of the Convention concerning the original criminal

conviction in 1978 and the arrest arising therefrom in 1980.

The conviction formed the basis of the applicant's first application

to the Commission, No. 9096/80. The Commission is not, however,

prevented from hearing these complaints under Art. 27, para. 1,

sub-para. b of the Convention (Art. 27-1-b) because these parts of the

present application are principally concerned with events following

the conviction, namely the arrest warrant of 1980. This constitutes

relevant new information for Art. 27, para. 1, sub-para. b

(Art. 27-1-b).

However, the Commission is not required to decide whether or not the

facts alleged by the applicant in this respect disclose any appearance

of a violation of the Convention as Art. 26 of the Convention

(Art. 26) provides that the Commission "can only deal with a matter

... within a period of six months from the date on which the final

decision was taken."

In the present case the warrant for the applicant's arrest which was

the final decision regarding the subject of these particular

complaints was issued on 21 February 1980, whereas this application

was submitted to the Commission on 8 November 1984, that is more than

six months after the date of this decision. Furthermore, an

examination of the case does not disclose the existence of any special

circumstances which might have interrupted or suspended the running of

that period.

It follows that this part of the application has been introduced out

of time and must be rejected under Art. 27, para. 3 of the Convention

(Art. 27-3).

2. The applicant has also complained that he has been unable to

ensure the prosecution of what he regards as the clearly illegal

activities of the Clerk to the Justices in respect of the warrant for

his arrest. He invokes Art. 13 of the Convention (Art. 13). He also

alleges a violation of Art. 14 (Art. 14) in that legal aid is not

available for a private prosecution.

In this respect, the Commission recalls that it is only competent to

receive complaints from individual applicants under Art. 25 of the

Convention (Art. 25) which allege violations of the rights and

freedoms defined in Section 1 of the Convention, and that it has

consistently decided that no right to institute criminal proceedings

is as such guaranteed by the Convention. It consequently has no

competence ratione materiae to examine either such a complaint or the

alleged discrimination attached to it.

It follows that this part of the application must be rejected under

Art. 27, para. 2 of the Convention (Art. 27-2).

As to the disciplinary proceedings

3. The Commission notes that the judiciary is ultimately

responsible for the regulation of the Bar and that judges exercise a

visitorial jurisdiction over the exercise of powers delegated to the

Inns of Court.

In these circumstances, the Commission concludes that the applicant's

claims may involve the responsibility of the United Kingdom Government

under the Convention in that it is responsible for the acts (either

direct or delegated) of its judiciary.

The applicant's complaints in respect of the disciplinary proceedings

are not, therefore, against a mere private organisation but against a

High Contracting Party and accordingly are not incompatible ratione

personae with the Convention within the meaning of Art. 27, para. 2

(Art. 27-2).

4. The applicant complains that the imposition of a disciplinary

sentence upon him by the Disciplinary Tribunal of the Senate in

respect of a letter to the Suffolk Constabulary and a written

statement to the police at Holborn constitutes an interference with

his right to freedom of expression under Art. 10 of the Convention

(Art. 10), and that such interference is not justified under Art. 10,

para. 2 (Art. 10-2). Article 10 (Art. 10), so far as relevant,

provides as follows:

1. Everyone has the right to freedom of expression. ...

2. The exercise of these freedoms, since it carries with it

duties and responsibilities, may be subject to such

formalities, conditions, restrictions or penalties as are

prescribed by law and are necessary in a democratic society,

... for the prevention of disorder or crime, for the

protection of health or morals, for the protection of the

reputation or rights of others, ... or for maintaining the

authority and impartiality of the judiciary.

In the present case, the applicant was subjected to a disciplinary

sanction of three months' suspension from practice as a barrister for

having made an "unwarranted" attack on the character of the Clerk to

the Justices in a letter and in a subsequent statement to the police.

The Commission considers that such a sanction must be regarded as

constituting an interference with the applicant's right to freedom of

expression under Art. 10, para. 1 (Art. 10-1).

The Commission must next consider whether any of the exceptions

provided for in Art. 10, para. 2 of the Convention (Art. 10-2) applies

to the imposition of a disciplinary sanction on the applicant.

The Commission notes that the sanction of a period of suspension

imposed on the applicant was clearly prescribed by the law in the

sense that the common law recognises first, that the authority of the

judges to suspend barristers or prohibit them from practice has been

legally exercised by the Inns of Court rather than the judges and,

secondly, that the Senate of the Inns of Court and the Bar now

effectively exercises that disciplinary authority (re S, loc. cit.,

and Regulations of the Senate of the Inns of Court and the Bar

(1974)).

The Commission must also consider whether the restriction imposed on

the applicant, namely the very existence of Rules likely to impede him

in the exercise of his right freely to express himself as guaranteed

by Art. 10 of the Convention (Art. 10), can also be regarded as

"prescribed by law". The Rules applied in the applicant's case are

contained in the Code of Conduct of the Bar and are those which are

applied by the Disciplinary Tribunal and the judges in the exercise of

their disciplinary functions. Moreover, the decisions of the

Disciplinary Tribunal involving suspension from practice are

invariably published in accordance with Senate bye-laws and all such

decisions are available to a barrister from the Senate of the Inns of

Court and the Bar on request. The more important decisions of the

Visitors are published in the Law Reports.

The Commission therefore considers that both the sanction imposed and

the Rules which the applicant was found guilty of having breached,

which constitute the restriction in the present case, may be regarded

as "prescribed by law" within the meaning of Art. 10, para. 2

(Art. 10-2).

The Commission recalls its previous case-law (cf. Dec. No. 9417/81,

5.10.82, unpublished) that where a sanction aims at the combined

purposes of protecting the reputation of the legal profession and of

maintaining the authority of the judiciary, that sanction is to be

regarded as being a legitimate aim for the purposes of Art. 10,

para. 2 (Art. 10-2). The sanction in the present case was undoubtedly

aimed at maintaining the good reputation of the Bar and, ultimately,

of the judiciary (as senior judges in England and Wales are invariably

chosen from barristers of some standing).

It follows that the sanction falls to be regarded as pursuing a

legitimate aim for the purposes of Art. 10, para. 2 (Art. 10-2).

Next, the Commission must consider whether the sanction can be

regarded as necessary in a democratic society. In determining this,

regard must be had to the criteria propounded by the Court and

Commission in previous case-law. Thus, although "necessary" does not

mean "indispensable", it is not as flexible an expression as "useful"

or "desirable"; rather, it implies a "pressing social need" (cf.

Barthold case, Eur. Court H.R. judgment of 25 March 1985, para. 55).

In assessing the margin of appreciation enjoyed by the Contracting

States, the question must be considered whether the interference is

proportionate to the legitimate aim pursued, and whether the reasons

for it are relevant and sufficient.

The Commission notes that the hearing before the Disciplinary Tribunal

was the applicant's second appearance before that body in connection

with the original railway offence, and that the tribunal, in coming to

its decision to suspend the applicant for a period of three months,

expressly indicated that the sanction would have no continuing adverse

effect on the applicant after the expiry of the three months, and that

its effect during the period of suspension would also be minimal as

the applicant was not, in any event, entitled to practise, not having

completed the second half of his period of pupillage. The Board of

Visitors regarded the sanction as "a technicality". The Commission

also notes that the person alleged to have been attacked was a court

official, which brings the matter more closely within the province of

the Bar's professional activities than if the "victim" had been a

complete outsider to the legal process.

In the circumstances of this particular case, the Commission sees no

reason to conclude that the sanction complained of was not

proportionate to the legitimate aim pursued, and accordingly, it is to

be regarded as "necessary in a democratic society" "for the protection

of the rights of others".

This part of the application must therefore be rejected as being

manifestly ill-founded within the meaning of Art. 27, para. 2 of the

Convention (Art. 27-2).

5. The applicant claims that the hearing before the Visitors was

not in accordance with Art. 6, para. 1 of the Convention (Art. 6-1)

because he was not accorded legal representation.

Article 6, para. 1 of the Convention (Art. 6-1) provides, so far as

relevant, as follows:

1. In the determination of his civil rights and obligations or of

any criminal charge against him, everyone is entitled to a fair and

public hearing within a reasonable time by an independent and

impartial tribunal established by law. ...

The applicant's only allegation is of the lack of legal

representation, and he cites the decision of the European Court of

Human Rights in the Airey case (Judgment of 9 October 1979, paras. 20

et seq.). The Commission is, however, not called on in the present

case to decide whether the applicant's civil rights and obligations

were determined, as it finds that legal representation would have been

available to the applicant if he had chosen to avail himself of the

opportunity.

The Commission notes that the applicant was represented before the

original Disciplinary Tribunal in January 1984, and the question of

representation is therefore limited to the appeal hearing before the

Visitors. The applicant was informed that his chosen representative

would not be able to attend the Visitors' hearing at least two weeks

before the hearing began, and it is clear from the transcript of the

hearing that the applicant made no attempt to look for further

representation. The Commission considers that the responsibility for

choosing representation in a case such as the present one, where the

applicant is, himself, a barrister and is not detained, must lie in

the first instance with the applicant, rather than with the Bar

authorities. Further, barristers brought before a Disciplinary

Tribunal and on appeal therefrom are in a particularly privileged

position because of a rule of etiquette which requires barristers

assisting their colleagues at such hearings to give their services

free of charge.

It follows that the applicant has not exhausted the available domestic

remedies and this part of the application must be rejected under Art.

27, para. 3 of the Convention (Art. 27-3).

6. The applicant claims that his sentence of three months'

suspension for a "malicious and unwarranted attack on the reputation"

of the Clerk to the Justices constitutes a violation of Art. 7 of the

Convention (Art. 7), because when the attack took place, no such criminal

offence existed.

The Commission recalls its previous case-law that a purely

disciplinary sanction for a breach of professional rules does not

constitute a criminal offence for the purposes of Art. 7 of the

Convention (Art. 7) (Dec. No. 4519/70, 5.2.71, Collection 37

p. 134, 136).

It follows that an examination of this part of the application is

outside the competence of the Commission ratione materiae and must

therefore be declared inadmissible in accordance with the provisions

of Art. 27, para. 2 of the Convention (Art. 27-2).

7. The applicant complains that his right to respect for

correspondence under Art. 8 of the Convention (Art. 8) has been

violated in that the contents of his reports to the police were

transmitted to another public authority, namely the Disciplinary

Tribunal of the Bar.

Insofar as the applicant complains of the disclosure of his

communications with the police to the disciplinary tribunal, the

Commission notes that although the applicant made a general reference

to this matter in his draft petition to the Visitors, he did not

develop the point further in the proceedings before them. The

Commission is therefore not required to decide whether or not this

part of the application discloses any appearance of a violation of

Art. 8 of the Convention (Art. 8) as, under Art. 26 of the Convention

(Art. 26), it may only deal with a matter after all domestic remedies

have been exhausted according to the generally recognised rules of

international law. The mere fact that the applicant has submitted his

case to an appeal body and made oblique reference to a particular

point in his written submissions does not of itself constitute

compliance with the rule. It is also required that the substance of

any complaint made before the Commission should have been properly

raised during the appeal proceedings concerned. Moreover,an

examination of the case does not disclose the existence of any special

circumstances which might have absolved the applicant, according to

the generally recognised rules of international law, from raising his

complaint in the proceedings before the Visitors.

It follows that the applicant has not complied with the condition as

to the exhaustion of domestic remedies and his application must in

this respect be rejected under Art. 27, para. 3 of the Convention

(Art. 27-3).

8. The applicant alleges a violation of Art. 13 of the Convention

(Art. 13) in that, unlike members of other professions, he was not

able to take an appeal from the final "internal" appeal body to the

Privy Council or the House of Lords. He does not invoke the Article

in connection with any other Article.

The Commission notes that in his appeal to the Visitors, the applicant

was at liberty to raise any complaints concerning the hearing before

the Disciplinary Tribunal and whether it proceeded in accordance with

the norms laid down by the Senate regulations.

It follows that the remedy against the application of the relevant

norms by the Disciplinary Tribunal was available to the applicant.

It follows that this part of the application is also manifestly

ill-founded within the meaning of Art. 27, para. 2 of the Convention

(Art. 27-2).

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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PRINCE v. THE UNITED KINGDOM

PRINCE v. THE UNITED KINGDOM

LEXI