Appeals against many professional disciplinary tribunals lie to the
High Court. CPR PD 52D lists the bodies over which the court
exercises a supervisory role. Through what could only have been
an oversight, the list omits appeals against decisions taken by the
Secretary of State for Education in respect of teachers under
s.141B of the Education Act 2002. In cases such as Brown,
however, the court has readily filled the legislative gap. Unless
otherwise specified there is no need for permission to appeal,
although under CPR PD 52D a 28day time limit applies.
The practice direction stipulates that certain appeals against
disciplinary tribunals are by way of a re-hearing rather than
review. The court in R(O) has accepted that this must also apply
to teachers. The degree to which the tribunal’s decision should be
scrutinised, by way of either review or re-hearing, has been the
subject of a fair amount of judicial consideration – not all of it
entirely consistent. However, in Brown it was suggested that
there was no substantial difference between the approaches; the
question in each case is whether the decision was ‘wrong’ or
‘unjust because of a serious procedural or other irregularity’. This
should not, however, be mistaken for a judicial review; the court
can be much more interventionist.
The most often-cited formulation comes from the judgment of
under the Human Rights Act 1998; in particular, the right to
a fair and public hearing. Where the tribunal has issued
guidance, there is an expectation that it will be followed.
These broad procedural requirements apply throughout the
disciplinary process, including pre-hearing stages such as
disclosure, interviewing of witnesses and case management.
Material errors of fact
Findings of fact are difficult to appeal as it is assumed that
the tribunal is in the best position to test and balance the
evidence; but is possible where the tribunal has made
findings which are irreconcilable or for which there is no
evidential basis. A recent example can be found in Soni,
where the court overturned a finding of dishonesty on the
grounds that this was an impermissible conclusion to jump
to when the evidence showed overwhelmingly that the
financial irregularities were the result of error.
Fresh evidence
Unless the statutory provisions state otherwise, CPR 52.11(2)
will apply to regulate the introduction of fresh evidence at the
appeal stage. The pre-CPR test in Ladd remains the guiding
Professional disciplin e and
the right of appeal
ADAM OHRINGER, Cloisters
Smith LJ in Briggs: ‘The court, having an appellate jurisdiction
rather than a supervisory one, should be prepared to exercise its
own discretion and to interfere with a penalty imposed by the
disciplinary tribunal if it thinks it right to do so. That said, this
court will always pay due respect to the views of the disciplinary
tribunal.’
Although the court has broad powers to reconsider the
decision of the disciplinary body, it must always be advisable to
set out specific grounds of appeal. Below is a selection
of familiar arguments raised on appeal and their legal
underpinnings.
Procedural injustice
The procedures adopted by disciplinary tribunals must
comply with the rules of natural justice and obligations
authority, stating that new evidence may only be introduced
where the evidence:
• could not have been obtained with reasonable
diligence for use at the hearing below
• is relevant and would probably have had an
important influence on the hearing and • must be
apparently credible.
BRIEFING May 2015 15
Professional discipline and the right of appeal
‘in cases involving disciplinary tribunals the
stakes are very high’
Inadequate reasons
If the disciplinary tribunal has failed to give adequate
reasons, this can in itself be a ground of appeal. The
requirement to provide reasons is, however, not especially
onerous. They must be sufficient to allow the parties and
any appeal court to understand why the particular outcome
has been reached. It need not deal with every conflict of
evidence or every argument. In some circumstances, the
remedy for insufficient reasons is to remit the matter to the
tribunal for them to be elucidated under the familiar
Burns/Barke procedure, which was considered in R(O) in the
present context.
Severity of sanction
In light of the difficulty with overturning findings of fact,
many appeals concentrate on the severity of the sanction
imposed by the tribunal raising one or more of the following
arguments:
• the sanction is at variance with the disciplinary tribunal’s
published guidance. Disciplinary bodies are expected
generally to adhere to their own guidance and to explain
in their reasons how the guidance has been applied;
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BRIEFING Vol. 22 No. 4
• similar cases should be treated similarly. There is, however,
conflicting authority on whether it is appropriate to rely on
comparators in an appeal;
• a sanction should not be intended as a punitive measure,
although it will be likely to have a punitive effect. The purpose
of a sanction is to protect the public and uphold the standards
and integrity of the profession;
• a disciplinary tribunal must consider whether a lesser sanction
would be sufficient in achieving those aims;
• the sanction is too severe. Although the court may overturn a
sanction which is simply excessive, it will not readily interfere
with the disciplinary tribunal’s assessment of the severity of
any misconduct.
Determination of the appeal
Unless other provisions apply, the Appeal Court’s powers are
specified in CPR 52.10. The court may affirm, set aside or vary any
order or judgment. It may also remit the matter or a particular
issue to be re-determined by the disciplinary tribunal.
Costs
In cases involving disciplinary tribunals the stakes are very high.
An appeal can be an attractive proposition as it gives some hope
that any sanction will be overturned. But while disciplinary
tribunals often do not award costs, in the High Court costs will
normally follow the event. It’s not a free shot and the court will
not readily intervene with the workings of a properly constituted
professional disciplinary body. Nonetheless, if the decision is
wrong then the High Court can correct it.
KEY:
R(O)
R(O) v Secretary of State for Education
[2014] EWHC 22 (Admin)
Brown
Brown v Secretary of State for Education
[2015] EWHC 643 (Admin)
Briggs
Briggs v Law Society [2005] EWHC 1830 (Admin)
Soni
Soni v General Medical Council [2015] EWHC
364 (Admin)
Ladd
Ladd v Marshall [1954] 1 WLR 1489