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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Kaur, R (on the application of) v Ilex Tribunal  EWHC 3321 (Admin) (23 November 2010)
Cite as:  EWHC 3321 (Admin),  ACD 25
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF KAUR||Claimant|
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
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(Official Shorthand Writers to the Court)
Mr J K Mccartney (Instructed By Russell-Cooke Solicitors) Appeared On Behalf Of The Defendant
Crown Copyright ©
"engaged in conduct unbefitting to ILEX or likely to bring ILEX into disrepute contrary to rule 1(1) of the code of conduct and/or conducting herself in a matter to cast doubt on her professional integrity contrary to 1(2) of the code of conduct."
"either alone or with others -
1. She cheated in two ILEX examinations;
2. She produced two examination scripts that were not wholly her own work; or
3. Were not wholly from her own knowledge or memory."
The allegation against her was to the effect that she must have had access to the course manual during two examinations.
"heard by three members of the disciplinary tribunal, of whom two shall be lay members and one shall be a council member."
(a) the president or the vice-president of the institute, or -
(b) two lay members who did not sit on the panel which heard the original application."
"ILEX is a company limited by guarantee and governed by elected representatives known as the Council. Council members are responsible for ensuring that the affairs of the institute are conducted 'diligently, legally and honestly.'.
The Council makes all the strategic and policy decisions of ILEX as a professional body which are then implemented at an operational level by the Chief Executive and his/her team of officers and staff. The Council members are drawn from and represent the twelve constituencies in England and Wales. Most of those constituencies have two Council representatives, depending on the size of the membership within those areas. Additional members may be appointed to the Council as specialist or co-opted members to represent particular areas of legal practice or special knowledge. The Articles of Association of ILEX regulate in general terms the powers and obligations of the Council, including membership criteria and the number of members of the Council.
Council members are directors of the company and are accordingly required to exercise the duties, fiduciary and otherwise, expected of any director of a company, and like ordinary directors, they are required to retire on a rotational basis every three years."
For the record Mr Hanning and Miss Gordon-Nichols were directors of ILEX at the time that they adjudicated respectively on the claimant's case. The Articles of Association of ILEX provide that its objects include promoting and securing professional standards of conduct amongst Fellows and those that are registered with ILEX and the regulation of Fellows and registered persons in the public interest to ensure compliance with those standards and providing for the education and training of those seeking qualification. The Articles of Association also provide that ILEX had powers to achieve these objectives by forming a company and entering into ventures with education providers, such as the college where the claimant studied and took her examinations.
Mr Beaumont has placed particular emphasis on the duty that is thus imposed on Council members as directors of ILEX:
"to promote and secure professional standards of conduct... and to ensure compliance with those standards."
I will return to this shortly.
"The rule of law requires that judicial tribunals established to resolve issues arising between citizen and citizen or between the citizen and the State should be independent and impartial. This means that such tribunals should be in a position to decide such issues on their legal and factual merits as they appear to the tribunal, uninfluenced by any interest, association or pressure extraneous to the case. Thus, a judge will be disqualified from hearing a case, whether sitting alone or as a member of a multiple tribunal, if he or she has a personal interest which is not negligible in the outcome or a friend or relation of a party or a witness or is disabled by personal experience from bringing an objective judgment to bear on the case in question. Where a feature of this kind is present, the case is usually categorised as one of actual bias, but the expression is not a happy one, since "bias" suggests malignity or overt partiality, which is rarely present. What disqualifies the judge is the presence of some factor which could prevent the bringing of an objective judgment to bear which could distort the judge's judgment."
"an institutional inertia to decide in conformity with the cause of ILEX as a promoter of professional standards and of good legal education."
"Whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."
"Following consultation with ILEX members IPS revised the rules governing how allegations about the conduct of members is investigated and disciplinary proceedings are brought. The main driver between the need for the revisions was that members of the ILEX Council served on the various committees and tribunals considering complaints. This no longer happens. The dual role was inconsistent with the requirement for complete separation of regulatory and representative functions. We also took the opportunity to draw on good practice among modern regulators and to edit away a good deal of verbiage which had become redundant over the years."
"There is no general principle of convention jurisprudence which prevents professional self-regulation, see Albert in Le Compte v Belgium  5 EHRR 533 especially at 541 to 542, paragraph 29. Whether a tribunal satisfies the requirements of Article 6 depends on all the relevant circumstances, including how the members of tribunal are appointed, their tenure of office, their protection from outside pressure and their apparent independence, as evidenced by their standing in procedure, see Brown v United Kingdom  21 EHRR 342, especially at page 358, paragraph 37."