Porter v. the United Kingdom (dec.)

Information Note on the Court’s case-law 52

April 2003

Porter v. the United Kingdom (dec.) - 15814/02

Decision 8.4.2003 [Section IV]

Article 6

Civil proceedings

Article 6-1

Impartial tribunal

Investigation by auditor into loss caused to local authority by wilful misconduct in office: inadmissible

Criminal charge

Order to pay a very large sum to local authority for loss caused by wilful misconduct in office: inadmissible

The applicant is a British national resident in Israel. In the 1980s, she was the Conservative leader of Westminster Council. In an attempt to improve their electoral prospects, the applicant and other Conservative councillors devised a scheme to sell local authority housing at below cost to purchasers who were more likely to vote Conservative. In the period 1987-1989, 618 dwellings were sold to an approved list of purchasers at discounts varying from 30% to 70% of their real value. In July 1989, a number of persons complained to the Council Auditor about the sales. He sought a formal response from the Council, which reacted in November 1989. This marked the beginning of an investigation that lasted for more than six years, entailed 135 interviews of 50 persons, including the applicant, many thousands of pages of evidence and thirty two days of hearings. In January 1994, the Auditor reached provisional findings and issued “Notices to Show Cause” to ten persons. In relation to the applicant, he concluded that he was provisionally minded to find her guilty of wilful misconduct. The persons concerned were given the opportunity to make representations to the Auditor before he reached final conclusions. The Auditor gave a press conference that same day in which he made public his findings. In May 1996, the Auditor found six individuals (including the applicant) jointly and severally liable for the sum of GBP 31,677,064, being the amount of money lost through their wilful misconduct. The six respondents appealed to the Divisional Court, which held a full rehearing of the merits and upheld the Auditor's conclusions. They then appealed to the Court of Appeal, which quashed the Auditor's findings. The Auditor appealed to the House of Lords, which overruled the Court of Appeal and restored his findings. In December 2001, Westminster Council issued proceedings in the High Court for the certified sum. The applicant opposed the application. Judgment was entered against her in July 2002. She was granted leave to appeal. To date, she has not complied with the judgment and her appeal is liable to be dismissed.

Inadmissible under Article 6: The applicant was ordered to pay a huge sum, but this related to the sum lost by the Council, which the applicant was required by law to make good. Although the surcharge was applied on account of the applicant's “wilful misconduct”, it did not include any element of a fine and there was no question of imprisonment, even in the case of default. The proceedings were therefore not criminal in nature. Instead, they had the appearance of public law proceedings. However, since the domestic courts had proceeded on the basis that the proceedings involved the determination of the applicants civil rights and obligations, the Court was prepared to assume the same. The applicant contested the Auditor's independence and impartiality. However, the procedures adopted by him were essentially investigatory in nature. Despite the publicity attracted by his investigation, it was essentially an internal inquiry. It was only when the Auditor reached his provisional findings that the proceedings could be said to come within Article 6 § 1. Even if, as the House of Lords acknowledged, there was some validity in the criticism of the Auditor's role thereafter, the fact that the Divisional Court had engaged in a complete rehearing of the issues meant that the applicant's claims were heard before a body satisfying the requirements of Article 6(1).

The applicant complained of inequality of arms in that the burden of proof lay on her and she was unable to cross-examine the Auditor. Regarding the former complaint, the fact that the applicant had to discharge an initial burden of proof in putting the Auditor's findings into doubt was not unfair. She had the benefit of legal representation and the services of accountants to challenge the report and was not prevented from making her arguments before the courts. In the same way, although she was not able to cross-examine the Auditor himself, her representatives were able to challenge his financial calculations.

The applicant complained of the length of the proceedings before the Auditor and the Divisional Court. Article 6 § 1 only applied from the time the Auditor reached his provisional findings (January 1994). The total duration of the proceedings, up to the judgment of the House of Lords, was seven years and eleven months. They were complex, raising difficult issues of law and fact. The Auditor was not responsible for any part of the delay. The Divisional Court was delayed by the time taken by the appellants to file their evidence. The higher courts did not exceed what was reasonable, given the indisputable complexity of the case.

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

Click here for the Case-Law Information Notes

Full & Egal Universal Law Academy