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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> O'Connor v Bar Standards Board  EWHC 4324 (QB) (18 December 2014)
Cite as:  EWHC 4324 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| DAPHNE EVADNEY PORTIA O'CONNOR
|- and -
BAR STANDARDS BOARD
Alison Padfield (instructed by Berrymans Lace Mawer LLP) for the Respondent
Hearing date: 9 December 2014
Crown Copyright ©
Mr Justice Warby:
"(b) The Defendant took an exorbitant amount of time to bring the charges against the Claimant. The complaint was made in September 2009. However, the charges were not until the end of July 2010. This delay infringed Article 6(3)(a) of the Convention;
(c) The Defendant refused the request for extra time to prepare her defence. The refusal to allow sufficient time to prepare a Defence was in breach of Article 6(b)."
"22. The Defendant infringed the Claimant's right to a fair trial on grounds of her race, in breach of Article 14 of the Convention.
23. The refusal to allow sufficient time to prepare is in line with the Defendant's general complaints process which impacts disproportionately on black and ethnic Barristers. Black and ethnic Barristers are more likely to have a complaint referred for disciplinary action, are more likely to be convicted, and are more likely to have those convictions upheld. The Claimant avers that the fact that every element of the Defendant's disciplinary system impacts on black and ethnic Barristers more adversely indicates that there is a systemic bias against black and ethnic Barristers.
24. There is no objective or reasonable reason why given that black and ethnic Barrister make up such a small proportion of the Bar, they are more likely to be investigated following a complaint, more likely to have a complaint referred for prosecution, more likely to be prosecuted, more likely to be convicted and more likely to have those convictions upheld. There is no objectively reason why the Defendant ignored its own rules and prosecuted the Claimant."
"The Defendant discriminated against the Claimant indirectly in breach of Article 14 of the Convention. The Defendant's rules are applied in such a way that although the Code of Conduct of the Bar applies to all Barristers in England and Wales it particularly disadvantages ethnic barristers who make up only a small proportion of the membership of the Bar."
"In any event, it averred that the claims under the Human Rights Act are time barred as they pertain to the Disciplinary Tribunal of 2011 or events leading the same, which occurred more than one year before the issue of proceedings. For that reason, if for no other, these claims stand to be struck out as having no reasonable prospect of success."
"As matters stand, there is nothing in the primary facts alleged by the Claimant which, even if true, could give rise to a finding that the Defendant has committed the alleged wrongs, and I am aware of no reason why this matter should be determined at trial rather than under Part 3 or Part 24. In particular, especially following the provision of disclosure, I have no reason to believe that any further information is likely to be forthcoming which will affect the strength of the claimant's case on this matter."
- "BME barristers are disproportionately over-represented in the complaints process in relation to the outcomes of external complaints.
- BME barristers are more likely to have a complaint referred to disciplinary action.
- White barristers are more likely to have a complaint dismissed without referral to disciplinary action.
- BME barristers are more likely to be subject to a disciplinary action outcome of upheld; even when controlling for differences in the subjects of the complaints."
"External" complaints for this purpose include those, such as the Cunliffe, Mushtaq, and Cleggs complaints, which originate with anyone other than the BSB itself.
"Although there are a series of steps that the Bar Standards Board could take to improve the complaints process from an equality and diversity perspective, our view is that the procedure itself is not at fault. This means that other factors, as yet unidentified, are causing the disproportion shown in the data."
The hearing and decision by the Master
" UPON the Defendant's application for an order striking out the Claimant's statements of case and dismissing the action, alternatively for summary judgment AND for the reasons given below
IT IS ordered as follows:---
1 The Defendant's application is granted.
2 The Claimant's statements of case are struck out, and the action dismissed, with judgment for the Defendant for costs. ."
"7. She alleges
b) That the Defendant's conduct infringed her rights under the Human Rights
i) The allegation is on its face time-barred, and there is no application to
extend the time limit; and
ii) So far as the allegation rests on the allegations supporting misfeasance, it must fail.
iii) The allegation rests also on a general assertion that the Defendant is habitually or systematically unfair to black barristers, an allegation which is demurrable.
iv) The evidence is quite to the contrary."
Issues on this appeal
The relevant law
"Right to a fair trial
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.
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;"
Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal,
but only if he is (or would be) a victim of the unlawful act.
(5) Proceedings under subsection (1)(a) must be brought before the end of
(a) the period of one year beginning with the date on which the act complained of took place; or
(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances, but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.
(7) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act."
The merits of the Article 6 claims
"According to the Court's and the former Commission's settled case-law a person may not claim to be a victim of a breach of his or her right to a fair trial that allegedly took place in the course of proceedings in which he or she was acquitted or which were discontinued."
"a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a 'victim' unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention".
The Article 14 claim
i) The appellant's claim is that the BSB has indirectly discriminated against her in respect of her Article 6 rights.
ii) A claim for such indirect discrimination may be made under Article 14, as established by the decision of the Grand Chamber in DH v Czech Republic (2008) 47 EHRR 3, which identifies the essential factual elements of such a claim, and the correct approach to the burden of proof.
iii) The appellant's particulars of claim sufficiently plead the existence of those factual elements in the present case and cast a burden on the BSB to justify what is on the face of the pleaded case discriminatory conduct. Any deficiency could be cured by amendment. The Master was therefore wrong to hold that the particulars are "demurrable" and strike them out.
iv) The BSB's own Diversity Review report makes it sufficiently clear for the purposes of a summary judgment application that the factual allegations made in the particulars of claim can be supported evidentially. The Master was therefore wrong to hold that the evidence is contrary to the appellant's case. Alternatively, there is an application to adduce fresh evidence in support of the contention that the BSB conducts its disciplinary processes in a discriminatory way towards BME barristers.
"It was common ground that the impugned difference in treatment did not result from the wording of the statutory provisions on placements in special schools in force at the material time. Accordingly, the issue in the instant case is whether the manner in which the legislation was applied in practice resulted in a disproportionate number of Roma children including the applicants being placed in special schools without justification, and whether such children were thereby placed at a significant disadvantage."
"In these circumstances, the evidence submitted by the applicants can be regarded as sufficiently reliable and significant to give rise to a strong presumption of indirect discrimination. The burden of proof must therefore shift to the government, which must show that the difference in the impact of the legislation was the result of objective factors unrelated to ethnic origin."
"38. The court recalls that article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to 'the enjoyment of the rights and freedoms' safeguarded by those provisions (see, amongst many authorities, Sahin v Germany (2001) 36 EHRR 765 , para 85). The application of article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. It is necessary but it is also sufficient for the facts of the case to fall 'within the ambit' of one or more of the Convention articles (see, among many other authorities, Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471 , para 71; Schmidt (Karlheinz) v Germany (1994) 18 EHRR 513 , para 22; and Petrovic v Austria (1998) 33 EHRR 307 , para 22)."
"Plainly, expressions such as 'ambit', 'scope' and 'linked' used in the Strasbourg cases are not precise and exact in their meaning. They denote a situation in which a substantive Convention right is not violated, but in which a personal interest close to the core of such a right is infringed. This calls, as Lord Nicholls said in M [v Secretary of State for Work and Pensions  2 AC 91] at para 14, for a value judgment. The court is required to consider, in respect of the Convention right relied on, what value that substantive right exists to protect."
i) On its face the appellant's discrimination claim does include complaints about delay in bringing charges and inadequate time to prepare her defence. However, Mr Southey does not press that pleaded claim, which could not add to any remedy under Article 6. In any event, quite apart from my earlier conclusions, the particulars of claim fail to allege that the BSB in these respects treats the appellant's ethnic group differently from any other, and the report on which she relies does not contain any statistics to that effect nor any reference to any such statistics.
ii) There is no pleaded case that the BSB behaved in a discriminatory manner in respect of the appellant's appeal. The appellant does plead that BME barristers are more likely to have convictions "upheld", but decisions on appeal are the responsibility of the Visitors and not the BSB. The pleaded case appears, moreover, to be based on a mis-reading of the Diversity Review report which makes no reference to appeals. The report contains nothing to support any allegation that the BSB makes a practice of treating BME barristers less favourably in relation to appeals.
iii) I do not accept the submission that the particulars allege that the BSB discriminated against the appellant in breach of Article 14 by investigating the Mushtaq and Cleggs complaints. The onus is on the pleader to state such a case clearly and that has not been done. That is not how Ms Padfield or her clients understood it. Hence their plea that all the human rights claims were barred by limitation. The Master clearly did not understand such a claim was advanced, or he would not have upheld that contention. Further, and in any event, it seems to me plain and obvious that an Article 14 claim in respect of such conduct could not succeed. Where a complaint is investigated but dismissed without any disciplinary proceedings being brought the facts cannot be said to fall within the ambit of Article 6, however much that notion might sometimes be stretched.