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Cite as: [2000] ScotCS 244

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Lord Prosser

Lord Kirkwood

Lord Allanbridge



delivered by LORD PROSSER













Petitioners: Party (First Petitioner); Mayer; Party (Second Petitioner)

Respondents: Macdonald, Q.C., Devlin; Balfour & Manson

31 August 2000

[1] The petitioners are husband and wife, and were in practice together as solicitors. On 30 June 1994, a complaint was issued against them, along with another partner, making averments of professional misconduct. Shortly before the conclusion of the proceedings in connection with that complaint, before the Scottish Solicitors Discipline Tribunal, a second complaint was issued against the petitioners, again averring professional misconduct. The tribunal dealt with the two complaints together. The decision of the tribunal was that the petitioners should both be struck off the Roll of Solicitors in Scotland. The petitioners appealed against that decision, and on 12 March 1999 the appeals were upheld, and the orders striking the petitioners off the Roll were quashed. The matter was remitted to a new tribunal.

[2] The Opinion of the Court dated 12 March 1999 sets out in some detail the nature and structure of the two complaints, and the way in which they came to be disposed of by the tribunal. The Opinion also identifies the respects in which the decision of the tribunal was seen to be defective, and the reasons for quashing the tribunal's decision to strike the petitioners off the Roll. It will be necessary to refer to certain particular passages in that Opinion; but otherwise we do not think it necessary or appropriate to go over that ground again. Before we turn to what followed, however, we would note that the disposal of the two complaints by the original tribunal was upon agreed pleas; and that while there were certain matters incorporated in the findings and decision of the original tribunal which this court held should be excluded from consideration by the new tribunal, there was no question of the tribunal having erred, or having departed from what the parties agreed, in their identification of the specific charges to which Mr. or Mrs. Thomson had pled guilty. Correspondingly, the petition did not seek to interfere in any way with what one might call the "convictions", which were set out in paragraph 12 of the tribunal's findings in relation to Mr. Thomson, and in paragraph 13 for Mrs. Thomson. What the petitioners were asking to have quashed was the "sentence" - the decision to strike the names of the petitioners off the Roll of Solicitors in Scotland. What was said was that in reaching their decision to impose that particular sentence, the tribunal erred or acted unreasonably in a number of ways, so that the decision represented an unreasonable exercise of their discretion. It was accepted that if the decision were to be quashed, as it was, it would remain necessary that an alternative "sentence" should be considered and imposed. The passages which were to be excluded from consideration were certain parts of paragraphs 10(2), (3) and (4), and findings 10(65), (66) and (67). Otherwise, no part of the original tribunal's findings in fact or findings of guilt was disturbed.

[3] It had been submitted on behalf of the Council of the Law Society that the court should not disturb the decision to strike Mr. and Mrs. Thomson off the Roll, it being pointed out that any error vitiated only a small part of a very substantial catalogue of guilt. In dealing with that submission the court said this:

"We cannot regard that as an appropriate course. It is true that there is a very substantial catalogue of guilt. But it is not for us to consider or reach a conclusion as to its gravity, or the significance of the matters wrongly founded upon; or to decide what would be an appropriate punishment. These matters require a new tribunal."

Immediately following upon this passage in the court's Opinion certain concluding observations were made. As these have been referred to and relied upon by the petitioners at various stages and in various ways, it is appropriate to quote them here:

"It is a matter for the parties whether on remit the new tribunal could be given a clearer documentary basis on which to work. Certainly we would hope that the parties could ensure in advance of the new Hearing that there was an agreed factual basis for the new tribunal's consideration of the appropriate punishment; and that any submissions in addition to, or in substitution for, those set out in the record of the earlier Hearing could be presented in as convenient a manner as possible to the new tribunal."

[4] If nothing new had supervened upon the position as it was on 12 March 1999, it appears to us that matters could have proceeded in a very straightforward way. There would have been no doubt as to what was excluded from the new tribunal's consideration. There would have been no reason why the parties should not have agreed upon a document which left out those matters which the court had said should be excluded from consideration, but included everything else that had been found and held by the original tribunal. The tribunal could then, upon that basis, proceed to the question of "sentence" hearing any submissions which the parties wished to make in that regard, upon the basis of what remained after the exclusions required by the court. What remained to be done would be the same, regardless of whether the parties had helped by presenting matters in an agreed document. However, certain events subsequent to the court's interlocutor of 12 March 1999 led to the new tribunal excluding from consideration not only what the court had required to be excluded, but also certain other matters. In Appendix I to their decision, they set out all the charges which had been established before the original tribunal, in relation to each of Mr.  and Mrs. Thomson. In Appendix III they set out those charges which had thus been established, but which the new tribunal took into account in reaching their decision. And in Appendix II, they set out the matters of facts upon which they based their decision, excluding certain matters which had been included in the findings of fact made by the original tribunal. Appendices II and III exclude a number of matters which, for various reasons, the complainers accepted should be excluded, and there is no suggestion that the exclusion of these additional matters was opposed by or to the detriment of either Mr. or Mrs. Thomson.

[5] The issue under remit was set down for hearing on 11 and 12 May 1999, but after a hearing on 7 May, that diet was discharged. The matter was eventually heard on 11 and 14 June, and 23 August 1999, when the tribunal made avizandum. Thereafter, having considered the direction of the court and the submissions of the parties, the tribunal found the facts as set out in Appendix II to be relevant to the established findings of professional misconduct, and having considered the whole circumstances in relation to the findings of misconduct set out in Appendix III, they pronounced an interlocutor on 13 October 1999, in which, in respect of the findings of professional misconduct there narrated, they ordered that Mr. and Mrs. Thomson be struck off the Roll of Solicitors in Scotland, and directed that the order should take effect on the intimation of the decision.

[6] In terms of the prayer of the present petition, the petitioners ask that the interlocutor of 13 October 1999 be quashed. In presenting his submissions, Mr. Thomson advanced five propositions. First, he submitted that the tribunal had not been an independent and impartial tribunal, either in terms of Article 6(1) of the European Convention on Human Rights or at common law. Secondly, he submitted that the parties having failed to reach agreement as to the factual basis upon which the tribunal should proceed, and that method of resolving matters having proved unworkable, a proof in mitigation should have been allowed. Thirdly, he submitted that the tribunal having proceeded upon the basis of the fiscal presenting his proposed factual basis, and the petitioners presenting theirs, and the tribunal having made no ruling in the course of the hearing as to which version was to be preferred upon any point, the petitioners had been denied an opportunity of presenting a plea in mitigation based on facts found by the tribunal. Fourthly, Mr. Thomson submitted that any tribunal has a duty, as he put it, to ascertain that the facts before it and upon which it will exercise its discretion "constitute the pleas". The tribunal had failed to do this in any meaningful or consistent manner. And finally, it was submitted that both the original tribunal and the newly constituted tribunal had made such gross errors as to imply at best disarray and at worst ill-will. We consider these five propositions in the order adopted by Mr. Thomson.

Independent and impartial tribunal

[7] A number of points were relied upon in support of this proposition. It was pointed out that in January 1998, Mr. and Mrs. Thomson had raised an action of defamation in the Court of Session, which was current at the time of the new tribunal's deliberations, with the Law Society and certain members of the original tribunal as defenders. The Scottish Solicitors' Discipline Tribunal as such was formerly a defender. It was submitted that the decision of the present tribunal would have a direct bearing upon the quantum of damages which might be awarded in the defamation action, and that contributions from members of the Law Society of Scotland, including the tribunal panel members, would be required. These members were therefore not impartial. Moreover, the members and their firms were in commercial competition with Mr. and Mrs. Thomson, and would be adversely affected by their continuing in practice. The situation was one in which an observer might well be concerned as to the impartiality of the tribunal members. Mr. Thomson also relied upon the provisions of the 1980 Act which regulate the constitution and membership of the Disciplinary Tribunal. Appointments were upon the recommendation of the Council of the Law Society of Scotland. It was obligatory that there should be a majority of solicitors on any panel of the tribunal, and in this case there had only been one lay member. Moreover, there had been a change in attitudes since 1990, and it could now be seen that what Mr. and Mrs. Thomson were doing in 1990 was out of tune with those times, but in the forefront of the change in attitude which had actually taken place. Moreover, one particular member of the new tribunal was the sister of a member of the Council of the Law Society, who held other important offices in the Society. That relationship was a further example of a lack of impartiality, and an independent observer might well conclude that it showed a lack of fairness, independence and impartiality. It was also pointed out that a member of the tribunal as originally constituted was the Vice Chairman of the tribunal, who worked closely with the Chairman, who sat on the reconstituted tribunal. In November 1999, after the tribunal's hearing was completed but expenses remained to be dealt with, this member had been present at, and talking to the Chairman during, proceedings in the defamation action. Again, it was submitted that this showed a lack of impartiality and independence. While it was acknowledged that the statute allowed for disciplinary proceedings to be in private, an additional submission was made to the effect that they could and should have been in public, and that holding the hearing in private showed a "mind-set" which was not open or fair. While these submissions as originally formulated placed reliance on Article 6(1) of the European Convention on Human Rights, Mr. Thomson acknowledged that the context was not one in which he could rely upon that provision. The submission was based upon common law.

Failure to agree and need for proof

[8] This submission has its roots in the comment made by this court when remitting the matter to a new tribunal, to the effect that it was a matter for the parties whether on remit the new tribunal could be given a clearer documentary basis on which to work, and the hopes which this court expressed in relation to having an agreed factual basis for consideration of punishment, and the clear presentation of any additional or substituted submissions. As a result of the subsequent concessions which we have mentioned, there was more to be "cut out" than this court originally envisaged. Putting matters briefly, what happened was that the fiscal prepared what he considered to be a correct reflection of the court's decision and subsequent concessions. On behalf of Mr. and Mrs. Thomson, this was not agreed; and after the matter had been aired before the tribunal, in a manner which we do not really understand and do not attempt to describe, they produced an alternative documentary version of the position as they submitted it ought to be. That in turn was not agreed. It is against that background that this submission is made.

[9] Mr. Thomson submitted that with two sets of facts before them, which were not agreed, the tribunal should have allowed what he called a "proof in mitigation". Despite the use of that expression, it is clear that the proof which Mr. Thomson envisaged would have been one in which, on the basis of the two differing versions of the facts produced by the parties, significant matters of fact which had been found by the original tribunal, and which were the basis of their findings of professional misconduct, would have been reopened for consideration by the new tribunal. In suggesting that this was necessitated by the absence of agreement, and that the new tribunal should have allowed a new proof upon these matters, Mr. Thomson relied in particular upon the fact that after the matter was remitted to the new tribunal by this court, the fiscal had reopened matters which would otherwise have been closed. While Mr. Thomson relied upon the fact that there were a number of charges which the fiscal no longer insisted in, in respect of which supporting factual findings were removed, he concentrated his attention on one point, which is of particular significance and shows the nature of this submission. When the matter was remitted by this court to the newly constituted tribunal, there was one remaining charge in relation to which the underlying findings of fact included an element of dishonesty. Subsequent investigation of the matter, including recourse to the fiscal who had conducted the earlier proceedings, resulted in the fiscal being willing to drop that charge, and cut out those passages which involved dishonesty from the findings in fact which the new tribunal would consider. It was these proceedings on the part of the fiscal which Mr. Thomson relied upon: the fiscal had been able to go to outside sources, and alter his position as to the facts, and it was submitted that Mr. and Mrs. Thomson likewise were entitled to go to outside sources, and upon that basis put forward a version of facts differing from the findings of the original tribunal. And if agreement proved impossible, as was the case, then there should have been a proof to establish the facts anew upon these points.

Mitigation submissions

[10] Mr. Thomson's third submission followed from the second. The tribunal had been faced with the two factual bases contended for by the fiscal and the Thomsons. At no stage before the end of the hearing had the tribunal made any ruling as to which version they accepted upon any point or in any respect. That being so, the petitioners had been denied an opportunity of making a plea in mitigation based on facts which were known to have been found by the tribunal. The tribunal had in fact proceeded upon the fiscal's version. It was the tribunal itself which had asked the petitioners to produce their own version - what the petitioners said had happened. While the petitioners of course contended that this latter formulation provided the basis upon which the tribunal should have proceeded, there was a further submission to the effect that the tribunal should have said that they were proceeding upon the fiscal's version before any summing up or submissions in mitigation required to be made by the petitioners. As a result, at that stage, the submissions on behalf of the petitioners were essentially based upon their own submitted version of the facts, and they had been unable to bring in matters which might have been relevant to the question of mitigation, if it had been appreciated that the tribunal were accepting the fiscal's version of facts.

Basis for pleas

[11] Mr. Thomson submitted that it was the duty of any tribunal to be sure, even where matters were being disposed of on the basis of pleas which had been accepted by the fiscal, that the facts before it, on the basis of which they would require to exercise their discretion in relation to sentence, provided a sufficient basis for the pleas in question. It was submitted that the newly constituted tribunal had failed to do this in any meaningful or consistent manner. The new tribunal had been willing to reconsider matters in this way, in one instance where it appeared that the original tribunal, on a point of law, had adopted an approach which was subsequently revealed, in another case, to be incorrect. But otherwise, the newly constituted tribunal had failed to reconsider the question of whether there were facts which supported the pleas. They should have done so.

Gross errors

[12] Mr. Thomson submitted that both the original tribunal and the new tribunal had made such gross errors as to imply at best disarray, and at worst ill-will. The original tribunal and the new one were the Discipline Tribunal - a single tribunal despite the different membership at the two different stages. If an overall consideration of what they had done showed a range of serious or gross errors, that would undermine the whole proceedings and what the tribunal had done. Having regard to the matters covered by Mr. Thomson's four preceding submissions, together with the errors which had previously been identified in the original tribunal's handling of the matter, the whole proceedings were fundamentally flawed. In particular, in relation to the findings of the original tribunal on matters involving legal aid, the tribunal's approach did not add up. What had been done in relation to legal aid must be either fraudulent or acceptable. The tribunal gave the impression of Mr. and Mrs. Thomson having permitted fraudulent activity in relation to legal aid, without there being any actual guilt. Overall, an inference of ill-will was appropriate; but if it was not a matter of ill-will, then there was in any event such disarray in what the tribunal had done as to invalidate their decision.

Submissions for Mrs. Thomson

[13] On behalf of Mrs. Thomson, counsel adopted the submissions made by Mr. Thomson. However, against the background of a written Note of his intended submissions, Mr. Mayer advanced a number of arguments in supplement to, or different from, those advanced by Mr. Thomson. In general, however, the submissions for the petitioners are as we have indicated, and they do not need significant additional comment as a result of what was said by Mr. Mayer. Certain of his submissions nonetheless call for some specific reference.

[14] In relation to Mr. Thomson's first proposition, Mr. Mayer acknowledged that in relation to a body such as the tribunal, the presumption was that they were impartial. The presumption would be displaced if it could be shown that there was a legitimate doubt as to their impartiality; but it was acknowledged that this would not be achieved merely by showing subjective suspicion - the doubt had to be one which was legitimate, having regard to all the circumstances. It was submitted that the circumstances founded upon by Mr. Thomson provided a proper basis for legitimate doubt.

[15] Mr. Mayer advanced a number of propositions relating, more or less directly, to Mr. Thomson's second, third and fourth propositions and the overall question of whether the tribunal were in error in proceeding upon the basis of the original tribunal's decisions and findings in fact, subject only to excision of those elements upon which the fiscal no longer sought to rely. We did not find it easy to follow the overall structure of Mr. Mayer's approach to these questions; but a number of his suggestions or underlying assumptions require comment.

[16] It was submitted that the removal of the one remaining charge which involved dishonesty, and of the findings in fact upon which it was based, changed the whole "complexion" of the case against the petitioners. It was said that that was why an attempt had been made, at the hearing before the new tribunal, to "provide a view of the correct complexion". In consequence, there had been a good deal of discussion around this matter, and Mr. and Mrs. Thomson had been allowed to set out their position in documentary form. We are not sure what the problem was perceived to be, or why the dropping of this particular charge and these findings was thought to raise any question in relation to other charges and other findings: not only had this court made it clear that it was not the function of the new tribunal to reconsider the remaining pleas of guilty or the facts upon which they proceeded, but these remaining charges and facts were matters which had not been challenged by appeal. Nonetheless, as part of the history of proceedings, it is evident that on behalf of Mr. and Mrs. Thomson an attempt was made, in the documentary material which was produced, to reopen matters in a way which would have removed the factual basis upon which the pleas were given, and inserted new factual material which was no part of what the original tribunal proceeded upon. At this stage, Mr. Mayer suggested that the Thomsons and those advising them had been "led into confusion" by being allowed to submit their own position in documentary form, and then not being told, during the hearing, what decision the tribunal had reached on the issues raised by that documentary material.

[17] Mr. Mayer suggested that the pleas which Mr. and Mrs. Thomson had given and which had been accepted, and which formed the basis of the original tribunal's decision, were what he called "pleas of convenience" - pleas given in order to bring proceedings to an end for what one might call broader and extraneous reasons. It was said that these would require to be "rectified" if the whole complexion of the case was altered, as it had been in this case, by the dropping of a particular charge of dishonesty. These propositions appeared to be linked to the assertion that the newly constituted tribunal had a duty, notwithstanding what had been done by the original tribunal, to ensure that the charges had a sufficient basis in the findings of fact, although it had never been suggested in the previous appeal that there was any insufficiency in relation to any of the remaining charges.

[18] In suggesting that the new tribunal should have allowed a proof on the questions raised by Mr. and Mrs. Thomson's documentary material, effectively reopening the matters which had been disposed of by the original pleas of guilty, Mr. Mayer suggested to the tribunal and to this court that what he was seeking was a "proof in mitigation". If that created some confusion in the minds of the tribunal, we would find that understandable; and we are not sure why it is suggested that by allowing documentary presentation, the tribunal should be said to have created confusion or disarray. But if one turns from the primary question of guilt and its factual basis, to the subsequent issue of what might be mitigatory considerations in relation to sentence, Mr. Mayer did not appear to submit that there had been no opportunity to make submissions in mitigation, nor did he identify any matter upon which actual evidence, in mitigation, would have been necessary or appropriate, or would have been excluded by the tribunal if a motion had been made to lead such evidence. Like Mr. Thomson, Mr. Mayer suggested that there was a disadvantage in not knowing what findings of fact had been made before they were called upon to deal with mitigatory matters.

[19] Mr. Mayer advanced an additional argument which in his written Note of submissions is expressed thus: "The tribunal failed to adhere to the principle of natural justice by allowing the defence to speak last in reply to the whole prosecution. Instead what it allowed was a continuous prosecution with the prosecutor being allowed to make the last substantive speech. That amounted to persecution of the petitioners." However, he accepted that he had in fact had the last opportunity to speak, after the fiscal had replied to his very substantial original submissions. He had not availed himself of that opportunity, and this submission effectively came to be that the submissions which he had in fact made would have had more "effect" if made in a final speech. That this had not happened represented a breach of the rules of natural justice, although Mr. Mayer was unable to suggest which of these rules he claimed had been breached.

[20] Mr. Mayer acknowledged that all the excisions which had been made from the original charges and findings were of material detrimental to Mr. and Mrs. Thomson. Nothing had been done, since the findings of the original tribunal, which was not to the advantage of Mr. and Mrs. Thomson. And he accepted that the dropping of charges, and the excision of certain findings in fact, meant that the new tribunal did not need to consider these matters. He nonetheless submitted that these changes in what they required to consider meant that Mr. and Mrs. Thomson should have been allowed to suggest further changes, the result of which would be that the new tribunal would have had to consider, or re-consider, matters disposed of by the original tribunal. He acknowledged that he had to "live with" the fact that the matters which he claimed should have been reopened had not been the subject of any appeal, and had been left standing at the conclusion of the appeal, when the matter was remitted to the new tribunal on questions of sentence. In the circumstances we do not find it necessary to elaborate upon any of the various justifications which Mr. Mayer put forward for reopening what was done by the original tribunal in these respects.

[21] Mr. Mayer also submitted that the original complaint by the Law Society against Mr. and Mrs. Thomson had not been determined within a "reasonable time". In his written Note, he referred to certain tests which have been considered in the European jurisprudence. He accepted, however, that the European Convention did not apply. He adopted an alternative approach, to the effect that the proceedings had already gone on too long, and that it would be oppressive to continue them further. He suggested that there might be prejudice to the Thomsons, resulting from delay, but he did not seek to amend in order to incorporate such an element in the petition. He submitted that there was oppression, but it was not clear whether he regarded prejudice as essential or not. He referred us to no authority for the propositions which he advanced. He then said that he would "drop all that". In response to a question from a member of the court, he said that while dropping the argument which he had been advancing, he was not dropping the submission that the original complaint had not been determined within a reasonable time, upon which he wished the court's decision.

[22] Finally, Mr. Mayer submitted that the decision of the tribunal should be quashed, and that having regard to the way in which Mr. and Mrs. Thomson had co-operated in producing their files to the Law Society of Scotland, the sentence should be reduced to one of suspension from practice for the period of time already served.

Respondents' submissions

[23] Counsel for the respondents submitted that the various points raised on behalf of Mr. and Mrs. Thomson essentially fell into two chapters. One covered a variety of factual questions and associated issues, while the other related to alleged procedural irregularities.

[24] Counsel began by referring to the history of the case, and in particular the stage when the pleas were accepted. The averments contained in the specific articles referred to in the charges had been expressly accepted, and the pleas which were accepted were set out in a letter and schedule. Professional misconduct was explicitly admitted by a Note relating to the plea. When the matter came to appeal, it was clear that all that had been sought was a quashing of the sentence, with no attack on conviction. As was clear from the Opinion of the Court when remitting the matter to the new tribunal, it was appreciated that the survival of one charge involving personal dishonesty might not be what had been intended: the court had said that "as matters presently stand" it appeared to them that the tribunal could not be criticised for making the finding which they did make, or for taking it into account when assessing culpability. The court had identified those parts of the original decision and findings which should be excised; but it was entirely unsurprising, having regard to the original intentions of the fiscal, that after the decision of this court, that remaining charge involving dishonesty had been dropped.

[25] The other concessions and excisions which had been made were thought to be proper, and were in the interests of Mr. and Mrs. Thomson. And thereafter it had been thought right to set out the factual material which should be taken into account by the new tribunal, leaving all the original findings standing, subject only to excision where there were concessions. The matter was not one which seemed to have any scope for disagreement. An attempt had been made to obtain agreement. However, on what was evidently a misreading of the final paragraph of this court's Opinion of 12 March 1999 no agreement had been forthcoming from Mr. and Mrs. Thomson, and they had embarked upon the course of attempting to open up matters which were plainly closed. It had never been suggested by them that a reopening of the facts would be justified on the basis that the pleas had been "pleas of convenience". What was suggested was that there should be a "proof in mitigation" although it became clear that what they were seeking was a re-determination of findings of guilt and the findings of fact which were their basis.

[26] Whatever scope the petitioners might have thought existed for reconsideration of their pleas and the original findings in fact, it was very clear from the transcript that the version of facts prepared by the fiscal represented the case which the Thomsons had to answer. In these circumstances, counsel submitted that any complication was of the petitioners' own creation. They had originally pled guilty, explicitly, to charges of professional misconduct on the basis of certain identified statements of facts. These were the basis of the first tribunal's decision, and had never been quarrelled at appeal. Apart from the excised matters, which were conceded and readily identifiable, there was quite clearly no basis for resiling from the original pleas, or disputing the facts upon which they were based, or reopening any matter for consideration by the new tribunal, apart from the question of what the appropriate sentence might be on the reduced charges. The tests for professional misconduct were therefore not in point for the new tribunal. The case which required to be answered was clear. The Thomsons had not been prevented from presenting any material in mitigation, whether by submission or documents or even evidence. Mr. Thomson had spoken, and spoken well, in mitigation. Knowing the case against them, it was for the petitioners to deal with all points which they thought relevant to mitigation. On this first chapter, there was no substance in the appeal.

[27] Turning to the second chapter, counsel submitted that provided the tribunal had complied with the requirements of the statute, there could be no complaint of procedural error. As regards the composition of the tribunal, it had complied with the statutory requirements and involved nothing that could be called unfair. The existence of the defamation process was known, but no objection had been taken to the composition of the tribunal. There was implicit waiver of any objection to the composition of the tribunal (Clancy v. Caird 2000 S.L.T. 546 at 554D-F) - but there was in fact no need for waiver, as the composition of such a tribunal, including solicitors, was unavoidable in terms of the statute. Otherwise, the mere raising of an action would make it impossible to hold a valid disciplinary proceeding. As regards other procedural points, the claim that there had been no opportunity to speak last was quite baseless. So too was the claim that the matter had not been dealt with within a reasonable time: that was not a point which had been taken in the petition, and it would have been answered in detail if it had been. No basis for that submission had been advanced. It appeared simply to have been dreamt up without reference to the grounds of appeal, and the need to show prejudice had simply been ignored.

[28] There remained the questions of impartiality, in relation to the two individual members of the second tribunal. So far as contact with the original Chairman was concerned, not only had that occurred after the interlocutor of the new tribunal had been signed, but when subsequently expenses came to be dealt with, no objection was taken to the fact that the same person was presiding over the new tribunal.

[29] As regards the other member of the tribunal, the fact that her brother held certain offices was of no significance, and there was no indication that he had responsibility for matters which would be the concern of the Scottish Legal Aid Board. There was no indication that he had any connection with his sister, as they were in different firms and did different types of work. The test in a situation such as this was whether the circumstances affecting members of the tribunal were such as would create in the mind of a reasonable person a suspicion that the member might not be impartial. Reference was made to Bradford v. McLeod 1986 S.L.T. 244, at page 247G; Doherty v. McGlennan 1997 S.L.T. 444; Locabail Ltd v. Bayfield Properties [2000] 1 All E.R. 65; and the separate question of automatic disqualification as discussed in the Pinochet case [1999] 1 All ER 577, in particular Lord Browne-Wilkinson at page 586 and Lord Hope of Craighead at pages 592 to 594. That case gave no justification for the suggestion that mere relationship, far less the relationship of brother and sister, gives rise to any reasonable suspicion of partiality. No fair-minded or informed member of the public would have found any reasonable ground for suspicion in the facts of the present case. In relation to these matters, as in relation to all others, the appeal should be refused.


[30] We are satisfied that the submissions advanced on behalf of the Council of the Law Society are well-founded. Mr. Thomson advanced his submissions with care and restraint, and we accept that he feels that he has not been fairly dealt with. But we are not persuaded that there is any ground for questioning the partiality of the tribunal or any member of it on the lines suggested in his first submission, and we are satisfied that counsel for the respondents was well founded in his submissions upon that issue. Having regard to the basis upon which the pleas of guilty to professional misconduct were originally offered and accepted, and the fact that no appeal was taken except in relation to sentence, we are at a loss to understand how Mr. Thomson, far less any professional adviser, could at any stage have taken the view that when the new tribunal was constituted, it would be any part of their function to reopen any issue as to guilt of professional misconduct or the factual basis for the charges which were held established. The charges which were dropped, and the underlying findings in fact which were excised, whether in accordance with the decision of the court or by concession thereafter on the part of the fiscal, quite simply ceased to be part of the material which the new tribunal had to consider, when deciding what the appropriate sentence would be in relation to what was left. Comparing the eventual material which had to be considered with the material as it previously was, the removal of a charge involving dishonesty was of course significant. But it does not otherwise appear to us to alter the complexion of the charges which did remain, and in any event we simply do not understand upon what basis the new tribunal could have reopened these matters, or allowed proof upon issues which had been finally determined. The suggestion that such matters were reopened simply by the petitioners' refusal to agree material which could not be questioned at the stage which had been reached appears to us to be without any foundation, and we can see nothing in what was said in the final paragraph of this court's previous Opinion which carries any suggestion of that kind.

[31] While a tribunal will have a duty to ensure that a guilty plea has a sufficient basis in the facts which are proved or admitted, that function had been fulfilled by the original tribunal. The new tribunal knew what had been decided, and upon what factual basis. The fact that there had been excisions did not alter that situation in relation to what was left. And as regards mitigation, it appears to us that there was no failure on the part of the tribunal: an opportunity was afforded to Mr. and Mrs. Thomson to make such submissions as they thought fit (including, if so advised, seeking to lodge documentary material or indeed to lead mitigatory evidence) and it is clear that there was an opportunity to speak last. The argument that this involved a loss of "effect" does not appear to us to have any substance. Moreover, we are satisfied that when the opportunity to deal with the question of mitigation was given, the nature of the case against Mr. and Mrs. Thomson was entirely plain, so that even if, for some reason, they thought that the new tribunal might alter the findings of guilt, or the underlying facts, in their favour, they were not put at any disadvantage in being expected to deal with mitigation in relation to what remained of the original findings of professional misconduct and the facts upon which they were based. On Mr. Thomson's final submission that there were gross errors implying disarray or ill-will, we see no basis at all for asserting ill-will; and any confusion which there may have been appears to us to have been suitably and indeed generously handled by allowing a written formulation of what was contended for by Mr. and Mrs. Thomson. We see no basis for the assertion that that step was in some way itself likely to confuse Mr. and Mrs. Thomson or their advisers, or that it might suggest that there was scope for reconsidering what had been done by the original tribunal, and not challenged by appeal.

[32] The specific points raised by Mr. Mayer are in our opinion without substance. In particular, in asking the court to decide a matter upon which he had abandoned all argument, we do not know what he had in mind. The point was bad, and had no foundation in pleadings. In the absence of any argument, we can only express our surprise, and regret, that he did not think it right to abandon the point entirely.

[33] In the whole circumstances both appeals are refused.

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