AS TO THE ADMISSIBILITY OF
Application No. 12502/86
by Cornelius GINIKANWA
against the United Kingdom
The European Commission of Human Rights sitting in private on
9 March 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 19 May 1986
by Cornelius GINIKANWA against the United Kingdom and registered
on 27 October 1986 under file No. 12502/86;
Having regard to:
- reports provided for in Rule 40 of the Rules of Procedure of
the Commission;
- the Commission's decision of 6 March 1987 to bring the
application to the notice of the respondent Government
and invite them to submit written observations on its
admissibilty and merits;
- the observations submitted by the respondent Government on
24 August 1987 and the observations in reply submitted
by the applicant on 17 September 1987;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a citizen of Nigeria, born in 1921 and
resident in London. He is a barrister by profession but has been
disbarred from practice. It is this disbarment which is the subject
of his application.
The facts agreed between the parties may be summarised as
follows.
The applicant was called to the Bar of England and Wales by
the Honourable Society of the Middle Temple in July 1973. He
commenced practice at the Bar in 1977.
On 20 June 1983 the Senate of the Inns of Court and the Bar
received a complaint from His Honour Judge Slot about the applicant's
conduct of the case for the defence in a rape case over which Judge
Slot had presided. After the applicant had been given an opportunity
to comment on the complaint, and his comments had been received by the
Senate, the applicant was informed on 7 October 1983 of the decision
of the Professional Conduct Committee that the complaint would be
referred to a Disciplinary Tribunal.
On 1 November 1984 the applicant was formally charged with the
following three charges of professional misconduct:
"1. Charge: Professional Misconduct
Particulars: Having been instructed to act on 19 May
1983 as Counsel for the defence of who had been indicted at
the Central Criminal Court for the offence of rape, you showed
such professional incompetence as would be likely to be
detrimental to the proper administration of justice in that you
failed properly to prepare and master your brief in relation to
the defendant's antecedent history.
2. Charge: Professional Misconduct
Particulars: On 20 May 1983 when acting as counsel for
the defence of who had been indicted at the Central Criminal
Court for the offence of rape, you showed such professional
incompetence as would be likely to be detrimental to the proper
administration of justice in that without seeking leave of the
Court you asked questions in cross-examination of the complainant
.... relating to her previous sexual experience with other men
contrary to Section 2 (1) of the Sexual Offences (Amendment) Act
1976.
3. Charge: Professional Misconduct
Particulars: On or about 26 May 1983, when acting as
counsel for the defence of who had been indicted at the
Central Criminal Court for the offence of rape, you engaged in
conduct which was prejudicial to the administration of justice in
that during your final speech you misrepresented the evidence by:
(a) Suggesting to the jury that the prosecution's failure to
produce a photofit picture reflected discredit on the
police, without having laid any foundation for such a
suggestion and:-
(b) Wrongly stating that there had been two dissimilar
photofit pictures in the case."
The applicant was also notified of the date of the hearing of
the Disciplinary Tribunal which was arranged for 3 January 1985. At
the applicant's request, the date of the hearing was postponed until
11 April 1985. On 18 March the applicant again sought and obtained a
postponement of the hearing of the charges against him by the
Disciplinary Tribunal.
On 8 May 1985, at the hearing of a Summons for Directions
before His Honour Judge Argyle, Q.C., the date of the hearing was
fixed for 30 May 1985, despite the applicant's objections to such an
early hearing. Before Judge Argyle, the applicant requested the
presence before the Tribunal of his "chief accuser", i.e. Judge Slot
who had lodged the complaint against him. However, Senate Counsel
replied that it was not his intention to call the trial judge to give
evidence. The applicant apparently did not repeat his request before
the Disciplinary Tribunal, or, later, before the Visitors.
On 17 May 1985, the President of the Senate first appointed a
tribunal to hear the charges against the applicant. On 30 May 1985
the applicant (who was not represented) requested and was granted an
adjournment of the hearing.
On 13 June 1985, in consequence of the earlier adjournment,
the President of the Senate made a second order for the appointment of
a Disciplinary Tribunal to hear and determine the charges against the
applicant. The hearing was arranged for 18 July. The members of the
Tribunal were: His Honour Judge West-Russell, a Circuit Judge
(Chairman of the Tribunal); the Right Honourable the Lord Henderson of
Brompton, KCB (a lay member of the Tribunal); and Mr. Raymond Kidwell,
Q.C., Mr. Peter Rawson and Mr. Bernard Phelvin (practising members of
the Bar).
The applicant challenged the chairmanship of the Disciplinary
Tribunal prior to the hearing, but the Senate refused to replace the
judge and the applicant did not pursue the challenge further, on
counsel's advice, at the hearing on 18 and 19 July 1985. The
applicant, who was present throughout the hearing, was represented by
Counsel. On 19 July the tribunal, by a majority of three to two,
found the first of the charges of professional misconduct to have been
proved. The remaining two charges were dismissed.
The applicant alleges that the Tribunal hearing was not held
in public, a number of persons acquainted with the applicant having
been turned away at the door.
On 19 July 1985, in consequence of their finding of
professional misconduct, and having heard the applicant's counsel in
mitigation, the Disciplinary Tribunal ordered that the applicant be
disbarred and expelled from the Honourable Society of the Middle
Temple.
On considering the disciplinary sanction to be imposed, the
Tribunal was informed of two previous findings of the applicant's
professional misconduct: First, the applicant had been admonished by
the Professional Conduct Committee for his failure to appear before
the Court of Appeal, a failure which appears to have been attributed
to his clerk. Secondly, the applicant had been suspended from
practice for six months in 1983 for swearing a false affidavit and
making a false statement during a hearing in an action involving
himself and his family.
On 9 August 1985, in accordance with the provisions of the
Hearings Before the Visitors Rules 1980 ("the 1980 Rules"), the
applicant submitted to the Lord Chancellor a notice of appeal to the
judges sitting as Visitors to the Inns of Court against the finding
and sentence of the Disciplinary Tribunal.
On 17 September 1985 the applicant was notified that the
period of 56 days from the date of the Disciplinary Tribunal's order,
within which Rule 4 of the 1980 Rules requires a petition of appeal to
be served, had expired. On 19 September 1985 the applicant applied to
the Lord Chancellor for an extension of time for the service of a
petition of appeal. The Lord Chancellor allowed the applicant a
further 28 days from the expiry of the 56 day period specified by the
1980 Rules. The applicant's petition dated 8 October 1985 was
received on 14 October. An answer was delivered to the Lord
Chancellor under cover of a letter of 1 November from the Senate of
the Inns of Court and the Bar.
In response to the Lord Chancellor's request made on 10
December 1985, pursuant to Rule 9(1) of the 1980 Rules, the Lord Chief
Justice nominated the following judges of the High Court to sit as
Visitors to the Inns of Court for the purpose of hearing the
applicant's appeal: Mr. Justice Russell (President), Mr. Justice
Waite and Mr. Justice Kennedy. The applicant was notified on
22 January 1986 that the hearing of his appeal had been fixed for
5 and 6 February 1986.
On 27 January the applicant wrote to the Lord Chief Justice
seeking an adjournment to enable the same counsel who had represented
him before the Disciplinary Tribunal to represent him at the hearing
of his appeal to the Visitors. Having discussed the application with
Mr. Justice Skinner - who had been nominated by the Lord Chief Justice
to preside at the hearing of the Visitors in place of Mr. Justice
Russell who was otherwise engaged - the Lord Chief Justice declined to
grant an adjournment.
On 5 February 1986, the Visitors (Skinner, Waite and Kennedy,
JJ.) heard the applicant's appeal against the finding and sentence of
the Disciplinary Tribunal.
Before the commencement of the hearing of the appeal, counsel
appearing on behalf of the applicant, Mr. Nigel Hague, Q.C., made an
application to the Visitors to allow "friends and members of the
Nigerian High Commission to enter and witness the proceedings".
Counsel who appeared before the Visitors on behalf of the Senate
recalls that he did not say anything at all in relation to the
application but adopted a neutral stance. He remembered that no
reasons were given for wanting the presence of these people. He did
not recall the applicant's counsel asking "for the general public to
be admitted to the hearing. Rather, the application was limited - to
Ginikanwa's friends or relatives, or both, (he could not) now remember
which. It was a limited application not a general one".
Of the surviving Visitors who sat to hear the applicant's
appeal (Skinner, J. having died in March 1986), Kennedy J. only
faintly remembers the application being made for representatives of
the Nigerian High Commission to be present and the refusal of that
application. However, Waite, J. has a more detailed recollection:
"At the outset of the hearing, Mr. Hague (leading counsel
for Mr. Ginikanwa) mentioned that there were people who
had no direct connection with the hearing but whom
Mr. Ginikanwa would like to be present if that were
permissible. I have no recollection of the High Commission
being mentioned, but I could not go so far as to say that I
am positive it was not. Skinner J. commented that their
presence would be unobjectionable if Mr. Ginikanwa availed
himself of his right to apply for the hearing to be held
in public and that application was granted; but that if he
wished the hearing to proceed in private, it would be
inconsistent with privacy for persons with no direct
connection with the case to be allowed to be present.
The suggestion was then taken no further - it having been
stated by Mr. Ginikanwa's counsel or tacitly assumed by
everyone (I cannot now recall which) that the hearing,
which had already been constituted as a private hearing,
would continue in private by Mr. Ginikanwa's own wish.
I doubt if the whole of that exchange took more than about
two minutes. I am also reasonably certain that no grounds
were advanced for having other persons present beyond the
fact that Mr. Ginikanwa would have liked them to be there"
(letter dated 10 July 1981 to Lord Chancellor's Department).
The applicant's representative at the hearing, Mr. Hague,
wrote in the following terms to the applicant on 23 June 1986:
"(1) The rules governing hearings before the Visitors (the panel
of High Court Judges nominated to hear appeals from the
Disciplinary Tribunal of the Senate) are contained in the Hearings
Before the Visitors Rules 1980, which are printed as Annex 2 of
the Code of Conduct for the Bar.
The relevant rule is Rule 9(4) which reads:
'The hearing shall be in private unless the Visitors,
at the request of the appellant, direct that it shall
be held in public.'
(2) I confirm that I certainly made a request on your behalf
that your friends and members of the Nigerian High Commission who
were present should be allowed to enter and witness the
proceedings. I also confirm that this request was refused.
(3) So far as I can remember, the Visitors gave no reasons for
the refusal."
The Visitors found there was strong evidence to prove the
charge against the applicant. Accordingly, they dismissed the
applicant's appeal against the finding of professional misconduct.
In relation to the appeal against sentence, and after having heard
counsel in mitigation, the Visitors concluded that the sentence
imposed by the Disciplinary Tribunal was a proper one and they
dismissed the appeal against sentence.
On 4 March 1986 the Masters of the Bench of the Middle Temple
pronounced that the applicant be disbarred and expelled from the
Honourable Society of the Middle Temple. The finding and sanction
against the applicant were published by the Senate on 24 March 1986.
COMPLAINTS
The applicant complains of a breach of Article 6 para. 1 of
the Convention on the following grounds:
1. The disciplinary proceedings constituted a determination of
his civil rights.
2. Neither the Disciplinary Tribunal nor the Panel of Visitors
constituted a tribunal established by law.
3. The applicant did not have a public hearing before either
body, neither of which gave reasons for their refusal to allow the
attendance of the applicant's friends and acquaintances.
4. The Disciplinary Tribunal was chaired by a judge to whom the
applicant objected.
5. The Panel of Visitors had refused an adjournment of the case
to allow his effective representation, changed their composition at
the last minute and were prejudiced against him after their
pre-hearing, secret discussions of his case.
6. The applicant was denied an opportunity to cross-examine the
judge who originally lodged the complaints against him.
7. There was an allegedly inordinate delay in the whole
procedure.
8. The sanction of disbarment imposed upon him was so manifestly
disproportionate to the misconduct which was found that the hearings
cannot be regarded fair.
9. The applicant was disciplined for failing to master his brief,
but Senate Counsel before the Visitors was allegedly unprepared; his
handling of the case was not sanctioned.
The applicant also complains of a breach of Article 13 of the
Convention as he had no court or other remedy for his complaints
against the Visitors.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 19 May 1986 and registered
on 27 October 1986.
After a preliminary examination of the case by the Rapporteur,
the Commission considered the admissibility of the application on
6 March 1987. It decided to give notice of the application, pursuant
to Rule 42 para. 2 (b) of its Rules of Procedure, to the respondent
Government and to invite the parties to submit written observations on
the admissibility and merits of the applicant's allegation that he was
denied a public hearing before the Panel of Visitors on 5 February
1986, contrary to Article 6 para. 1 (Art. 6-1) of the Convention.
The Government sent their observations on 24 August 1987,
after two extensions of the time-limit for their submission had been
granted by the President of the Commission. The applicant submitted
his observations in reply on 17 September 1987.
SUBMISSIONS OF THE PARTIES
The Government
Part 1: The facts (mostly incorporated into THE FACTS above)
The Government submit that the evidence, including evidence
given by the applicant's own counsel at the hearing, shows that,
contrary to what the applicant alleges, his application to the
Visitors related only to the admission to the proceedings of certain
individuals and was not an exercise of his right, under Rule 9(4) of
the 1980 Rules, to request that the hearing should be in public.
Though it was open to him to exercise that right, he did not do so.
Part 2: Disciplinary procedures at the Bar of England and Wales
Ultimate responsibility for the regulation of the Bar of
England and Wales is vested in the judges deriving their authority
from the Crown. By the common law 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, as far as barristers are concerned, to
the Inns of Court (see Attorney General of the Gambia v. N'jie
2 All E.R. 504, 508 E-F, per Lord Denning).
Despite the delegation of their common law disciplinary powers
to the Senate of the Inns of Court, the judges retain a supervisory
jurisdiction as Visitors to the Inns (see In re S. (a barrister)
1 All E.R. 949). The judge's visitatorial powers have been
recognised and confirmed as part of the common law for over three
centuries.
The historical origins and legal basis for the disciplinary
arrangements of the Bar of England and Wales were considered by the
Commission in the cases of S. v. the United Kingdom (No. 9502/81,
Dec. 13.7.83, D.R. 34 p. 102) and P. v. the United Kingdom
12502/86
(No. 11456/85, Dec. 13.3.86 unpublished). In both cases the
Commission noted that, following resolutions of the judges and of the
Inns of Court, responsibility for the regulation of discipline at the
Bar was transferred to the Senate of the Inns of Court and the Bar,
subject to the supervisory jurisdiction of the Visitors.
Members of the Bar of England and Wales are subject to a Code
of Conduct, the purpose of which is to maintain the dignity and
standing of the profession and to ensure the maintenance of high
standards by all who practise in the courts. Although the rules of
professional conduct of the Bar (as of most other professions) are
determined by the profession itself in the light of tradition and
experience, developing over the years as circumstances change, they
remain subject to the supervisory jurisdiction of the judges, as
Whitford, J. observed in Re T (a barrister) 2 All E.R. 1105,
1109:
"If any rule acceptable to the Bar were held by the judges
(in whatever capacity) to be contrary to public policy or
to be liable to undermine the proper administration of
justice that rule would of course be ineffective..."
The Code of Conduct relevant to this application was the one
which had been approved by the Bar in General Meeting on 15 July 1980
and published, with subsequent amendments, in January 1983 (referred
to hereafter as "the 1983 Code"). The 1983 Code was in due course
replaced by the code currently in force which was published in January
1985 ("the 1985 Code") but transitional provisions provided that the
1983 Code should govern the circumstances to which this application
relates.
Rule 6 of the 1983 Code provided as follows:
"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;
(d) if a practising barrister, or an employed barrister
acting under paragraph 183 of this code, to be competent
in all his professional activities."
Rule 7 of the 1983 Code provided as follows:
"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 fees..."
Part 3: The issues under Article 6 para. 1 of the Convention
The Government deny that the applicant's right to continue to
exercise his profession was a "civil right" within the meaning of
Article 6 para. 1 of the Convention or that the Disciplinary Tribunal
or the Visitors determined the applicant's civil rights. Accordingly,
they submit that the application is inadmissible as being incompatible
ratione materiae with the Convention, or, alternatively, as being
manifestly ill-founded.
In any event, the Government contend that the applicant was
not denied a public hearing of his disciplinary case. Under Rule 9(4)
of the 1980 Rules the applicant could have requested a public hearing,
but he did not. His application to the Visitors was limited to the
attendance of his friends and members of the Nigerian High Commission,
i.e. an application for a semi-private hearing to which only selected
individuals should be admitted. The Government contend that the
applicant's counsel was provided with an opportunity to modify his
application to enable the public to witness the proceedings, but he
did not do so.
The Government invite the Commission to conclude that the
applicant, far from being refused a public hearing, refrained from
exercising his undoubted right to request such a hearing. They
submit, therefore, that the applicant's complaint of a violation of
Article 6 para. 1 in this respect is manifestly ill-founded or,
alternatively, that the facts of the case disclose no such violation.
The applicant
The applicant concedes that an application was made on his
behalf for his friends and members of his High Commission to be
allowed to attend the Visitors' hearing.
He contends that such an application was in effect an
application that the public should be admitted since the said friends
and members of the High Commission were not in any way connected with
the case. In any event, by refusing the application the Visitors
deprived the applicant of his right under the Convention to have his
case heard in public.
The applicant denies that Skinner J. commented that the
presence of the people concerned would be unobjectionable if the
applicant availed himself of his right to apply for a public hearing
and that application was granted. He points out that the comment was
not recorded in any court notes, and that the recollection of other
witnesses should be disregarded.
In the light of the above observations, the applicant
respectfully invites the Commission to conclude that he was deprived
of his right under the Convention to have his case heard in public,
despite the fact that he specifically applied that members of the
public should be allowed to come into and witness the Visitors'
hearing.
In conclusion the applicant invites the Commission:
- to reject the submissions and arguments of the respondent
Government;
- to declare admissible and/or as being well-founded, his
complaint of a breach of Article 6 para. 1 of the Convention
in relation to the proceedings against him before the
Visitors, and to find that the facts of the present case
disclose an undoubted violation of that provision.
THE LAW
1. The applicant's principal complaint is that he has suffered a
breach of Article 6 para. 1 (Art. 6-1) of the Convention, because,
allegedly, neither the Disciplinary Tribunal nor the Visitors
constituted a tribunal established by law and they denied him a public
hearing in the determination of his civil rights.
Article 6 para. 1 (Art. 6-1) of the Convention provides as follows:
"In the determination of his civil rights and obligations
... everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial
tribunal established by law. Judgment shall be pronounced
publicly but the press and public may be excluded from all
or part of the trial in the interests of morals, public
order or national security in a democratic society, where
the interests of juveniles or the protection of the private
life of the parties so require, or to the extent strictly
necessary in the opinion of the court in special
circumstances where publicity would prejudice the interests
of justice."
The Government first deny that Article 6 para. 1 (Art. 6-1) of
the Convention applies to the present case.
The expression determination of "civil rights and obligations"
in Article 6 para. 1 (Art. 6-1) of the Convention has been interpreted
by the European Court of Human Rights in such cases as Le Compte, Van
Leuven and De Meyere v. Belgium to mean, first, that the evidence
must disclose the existence of a "contestation" or dispute, secondly,
that the dispute must relate to civil rights and obligations or, in
other words, that the result of the proceedings must be directly
decisive for such rights and obligations (Eur. Court H.R., Le Compte,
Van Leuven and De Meyere judgment of 1 October 1980, Series A no. 43
paras. 41-50).
The Commission finds that the first element was clearly
present in this case. A "contestation" or dispute existed between the
applicant and his professional organisation, the Senate of the Inns of
Court, as to whether he was guilty of professional misconduct. The
proceedings against the applicant before the Disciplinary Tribunal
resulted in his being disbarred and expelled from his Inn, the Middle
Temple. There can be no doubt therefore that the applicant's right to
practise as a barrister was directly at issue before the Visitors who
had jurisdiction either to uphold or reject the decision and the
sentence of the Disciplinary Tribunal.
As to the second element of whether the determination of the
dispute in the present case was directly decisive for the applicant's
civil rights and obligations, the Commission again refers to the
case-law of the European Court of Human Rights. The Court has held
that the withdrawal, through professional disciplinary proceedings, of
the authorisation to practise a liberal profession, albeit providing a
public service (such as the medical, accountancy and legal
professions) may involve the determination of rights of a private,
civil nature. Article 6 para. 1 (Art. 6-1) may, therefore, be
applicable to such disciplinary proceedings (Eur. Court H.R., König
judgment of 23 April 1977, Series A no. 27 paras. 86-95, Le Compte,
Van Leuven and De Meyere judgment of 1 October 1980, Series A no. 43
paras. 41-50 and the H judgment of 30 November 1987 paras. 37-48).
In the case of H v. Belgium (Eur. Court H.R., H judgment of
30 November 1987, Series A No. 127 paras. 46-48), the Court found,
inter alia, that various aspects of the profession of "avocat" in
Belgium conferred on the right asserted by H, i.e. the right to resume
his practice after a period of disbarment, the character of a civil
right within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention. The Commission finds that no significant distinction can
be drawn between the right to resume practice at the Bar and the right
asserted by the present applicant to continue practice at the Bar.
Moreover the aspects of the profession of Belgian "avocats" emphasised
by the Court may be found in the barristers' profession at the Bar of
England and Wales: Barristers at the Bar of England and Wales are
officers of the Court providing a public service and contributing to
the administration of justice. Nevertheless they belong to a
profession independent of the State, have private-law relationships
with their clients through instructing solicitors, civil property
interests in their chambers and clientèle and perform various
functions, such as conciliation and arbitration, which are not
exclusively concerned with the functioning of the country's courts.
In these circumstances, the Commission concludes that the withdrawal
of the applicant's right to practise as an English barrister involved
a determination of matters which were directly decisive for his
private rights. Accordingly Article 6 para. 1 (Art. 6-1) of the
Convention (the determination of civil rights and obligations) is
applicable to the disciplinary proceedings in which the applicant was
involved.
The next question raised by the applicant is whether there has
been compliance with Article 6 para. 1 (Art. 6-1) of the Convention,
and, in particular, whether the applicant's case was determined by a
"tribunal established by law" with the benefit of a public hearing.
The Court stated in its judgment in the case of Albert and Le
Compte that, since the professional disciplinary decisions in that case
involved a dispute over civil rights, the applicants were entitled to
have their cases heard by a tribunal providing the guarantees of
Article 6 para. 1 (Art. 6-1) of the Convention. It is common in the
High Contracting States for disciplinary matters to be dealt with by
the jurisdictional organs of professional associations. This is
acceptable provided that either these organs comply with Article 6
para. 1 (Art. 6-1) themselves or they are subject to subsequent
control by a judicial body with full jurisdiction providing the
necessary guarantees (Eur. Court H.R., Albert and Le Compte judgment
of 10 February 1983, Series A no. 58 para. 29).
The present applicant's case has been considered by the
Disciplinary Tribunal and the Visitors. The Commission does not find
it necessary to decide whether the proceedings before the Disciplinary
Tribunal were in conformity with Article 6 para. 1 (Art. 6-1) since it
is satisfied that its requirements were fully met by the Visitors, for
the following reasons:
It is clear from the reported decisions of the Visitors
referred to in the Government's observations and the Hearings before
the Visitors Rules 1980 that the Visitors act as an appeal tribunal
with full jurisdiction on all questions of law and fact, including
questions relating to sentence. In this respect, therefore, the
Visitors satisfy the requirement as to the scope of jurisdiction
considered essential under Article 6 para. 1 (Art 6-1) by the Court in
the aforementioned case of Albert and Le Compte.
As to the question of whether the Visitors may be said to be a
tribunal "established by law", the Commission refers to the Sunday
Times case in which the Court held as follows:
"The word 'law' in the expression 'prescribed by law' covers
not only statute but also unwritten law. Accordingly the
Court does not attach importance here to the fact that
contempt of court is a creature of the common law and not
of legislation" (Eur. Court H.R., Sunday Times judgment of
26 April 1979, Series A no. 30 para. 47).
The Commission considers that the same principle applies to
the use of the word "law" in the expression "established by law" in
Article 6 para. 1 (Art.6-1) of the Convention.
It is clear from an examination of the domestic case-law that
the powers of discipline over barristers were traditionally exercised
by the judges, who in turn delegated their powers to the Inns of Court
and subsequently the Senate of the Inns of Court and the Bar. The
exercise of these powers, however, remained subject at all times to
the visitatorial jurisdiction of the judges (see Re S. (a barrister)
1 All E.R. 949). The Commission concludes therefore that the
jurisdiction of the Visitors derives from the common law and is thus,
in this sense, "established by law" within the meaning of Article 6
para. 1 (Art. 6-1) of the Convention.
Part of the guarantees to be provided by the tribunal
established by law is independence and impartiality. The applicant
has not challenged the independence and impartiality of the Visitors,
and the Commission finds no reason to doubt that they have this
quality, the Panel of Visitors being composed of three judges of the
High Court, nominated by the Lord Chief Justice after consultation
with the Lord Chancellor (Rule 9(1) of the Hearings Before the
Visitors Rules 1980).
However, the applicant has challenged the fact that the
proceedings before the Visitors were not held in public. The
Commission notes that hearings before the Visitors and the
pronouncement of their findings are normally in private. Nevertheless
Rule 9(4) of the Hearings Before the Visitors Rules 1980 provides that
the Visitors may, at the request of the appellant, direct that a
hearing shall be held in public.
In the Albert and Le Compte case the Court made the following
remarks concerning the requirement of publicity in Article 6 para. 1
(Art. 6-1) of the Convention:
"The rule requiring a public hearing, as embodied in
Article 6 para. 1 (Art. 6-1) , may also yield in certain
circumstance to the will of the person concerned. Admittedly,
the nature of some of the rights safeguarded by the Convention
is such as to exclude a waiver of the entitlement to
exercise them ... but the same cannot be said of certain
other rights. Thus, neither the letter nor the spirit of
Article 6 para. 1 (Art. 6-1) would prevent a medical practitioner
from waiving, of his own free will and in an unequivocal
manner ... the entitlement to have his case heard in
public; conducting disciplinary proceedings of this kind
in private does not contravene Article 6 para. 1 (Art. 6-1) if
the domestic law so permits and this is in accordance with
the will of the person concerned..." (Eur Court H.R.,
Albert and Le Compte judgment of 10 February 1983,
Series A no. 58 para. 35).
The Commission endorses the principle that the person subject
to disciplinary proceedings may, if he so wishes, waive his right to a
public hearing, for it is likely to be in the future professional
interests of the person concerned to maintain the confidentiality of
such proceedings, to reduce any unwarranted damage to reputation which
might otherwise occur, whether or not they result in an acquittal or a
disciplinary sanction.
The Commission notes that, under Rule 9(4) of the Hearings
Before the Visitors Rules 1980, the barrister facing disciplinary
proceedings before the Visitors has the right to apply for a public
hearing. The extent of the discretion left to the Visitors on whether
to grant such an application may raise an issue under Article 6 para.
1 (Art. 6-1) of the Convention. However, the Commission does not consider it
necessary to determine that issue in the present case because, on its
particular facts, the Commission finds that the applicant has not
substantiated his claim that he wanted a public hearing, with all the
consequences, such as publicity, that such a hearing might have
entailed.
The Government contend, on the basis of the recollection of
one of the High Court Judges on the Panel of Visitors, that the
applicant only requested the attendance of specific people at the
disciplinary hearing. One of the Judges then commented that the
presence of these people would be unobjectionable if the applicant
availed himself of his right to apply for the hearing to be held in
public and that application was granted. However, apparently the
request was taken no further (p. 5 THE FACTS above).
The applicant denies this recollection of events. He claims
that his application for the attendance at the hearing of certain of
his friends and members of the Nigerian High Commission was in effect
an application for a public hearing. However, the applicant's claim
was not reflected in the statement of his representative, senior
counsel, who only confirmed that he had made an application on the
applicant's behalf for the admission of specific people to enable them
to witness the proceedings (p. 5 THE FACTS above).
Given the context of the legal profession in the present case,
the Commission considers that the applicant and his representative,
with their professional knowledge, must be deemed to have understood
the clear distinction between a private hearing (even if a limited
number of people, not party to the proceedings, are allowed to attend
as observers) and a public hearing. Accordingly, they must also be
deemed to have understood how an application under Rule 9(4) of the
Hearings Before the Visitors Rules 1980 should have been formulated.
In these circumstances, the Commission concludes that the applicant
has not established that it was his wish to have a public hearing of
his disciplinary case or that his conduct in the matter did not amount
to an unequivocal waiver of his right to a public hearing, within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that this aspect of the case must be rejected as
being manifestly ill-founded, within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant has next complained in the context of Article 6
para. 1 (Art. 6-1) of the Convention about the chairmanship of the
Disciplinary Tribunal and the absence of any opportunity to
cross-examine the judge who originally denounced his professional
conduct. However, the Commission cannot deal with these complaints
because the applicant has failed to exhaust domestic remedies. It has
not been shown that he pursued his challenge to the chairmanship of
the Disciplinary Tribunal at its hearing on 18 and 19 July 1985.
Furthermore he did not request the Disciplinary Tribunal or the
Visitors to hear the judge in question. These aspects of the case
must, accordingly, be rejected under Articles 26 and 27 para. 3
(Art. 26, 27-3) of the Convention.
3. The applicant has also complained under Article 6 para. 1
(Art. 6-1) of the Convention about the Visitors' refusal of an
adjournment, their composition, their alleged personal bias, his
representation, the Senate's representation, the allegedly
disproportionate sanction imposed upon him and the length of the
proceedings. By virtue of Article 19 (Art. 19) of the Convention, the
Commission is unable to deal with complaints of alleged errors of law
or fact committed by domestic courts and not involving a violation of
the Convention, such as the question of the appropriate disciplinary
sanction that should have been imposed on the applicant. Insofar as
the applicant has alleged a breach of Article 6 para. 1 (Art. 6-1) of
the Convention in respect of the other aforementioned matters the
Commission finds no evidence that the refusal of a further adjournment
of the case by the Visitors, or both parties' representation before
the Panel, effectively denied the applicant a fair hearing. Nor is
there any substantiation of the applicant's allegations of personal
bias on the part of the Visitors.
Moreover, the Commission finds an inconsistency of reasoning
in the applicant's complaints that on the one hand the Visitors
refused his request for an adjournment, and on the other hand the
length of proceedings as a whole was unreasonable. The Commission
notes that the proceedings lasted from 20 June 1983, when the
allegation of professional misconduct was lodged against him, until
5 February 1986, when the Visitors determined his appeal. During this
time the only evidence of delay is the applicant's own requests for
adjournments, most of which were granted. In these circumstances the
Commission also finds the applicant's complaint of unreasonable delay
unsubstantiated.
It follows that these aspects of the case are manifestly
ill-founded, within the meaning of Article 27 para. 3 (Art. 27-3) of the
Convention.
4. The applicant finally complains of the absence of an effective
remedy in respect of his complaints concerning the Panel of Visitors.
He invokes Article 13 (Art. 13) of the Convention which provides as follows:
"Everyone whose rights and freedoms as set forth in
this Convention are violated shall have an effective
remedy before a national authority notwithstanding that
the violation has been committed by persons acting in an
official capacity."
However, Article 13 (Art. 13), as a more general guarantee, is
not applicable in cases where the more specific guarantees of Article
6 (Art. 6) apply, Article 6 (Art. 6) being the lex specialis in
relation to Article 13 (Art. 13) (cf. e.g. W v. the United Kingdom, Comm.
Report 15.10.85, paras. 130-132, and Eur. Court H.R., judgment of 8
July 1987, Series A No. 121 paras. 85-86). The Commission, therefore,
having found above that Article 6 (Art. 6) applies, finds no separate issue
arises under Article 13 (Art. 13) of the Convention in the present
case.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)