• Disciplinary and Regulatory Proceedings
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Disciplinary and Regulatory Proceedings

FROM £94.50

Examines the general principles that apply to all regulatory and disciplinary tribunals

Disciplinary and Regulatory Proceedings is the leading work on this important and dynamic area of law, written by leading practitioners in the field with considerable experience of tribunals both as chairmen and lawyers. The authors maintain a companion website dedicated to regulatory law and will post updates to the book and articles on to the site as developments occur visit regulatorylaw.co.uk

The book provides an authoritative examination of the general principles that apply to all regulatory and disciplinary tribunals, including coverage of the basis of the tribunal's authority and extent of its jurisdiction, natural justice, human rights, grounds for disciplinary action, investigations, the decision to prosecute, hearings, evidence, appeals, and enforcement. It goes on to examine the specific working of three major professional areas: healthcare, the FSA and legal services.

In addition to this core commentary, guidance on the practical application of the general principles is provided, looking in detail at such issues as the retrospective effect of rule changes, malicious falsehood, data protection and freedom of information, whistle-blowing, and guidance on defending a claim or how to avoid or defuse a claim. The disciplinary arrangements of the most prominent regulators are described in outline in a separate section.

WHAT'S NEW?

Since the last edition the regulatory arrangements of most of the important statutory regulators have undergone a massive restructuring by Parliament, which is reflected throughout the new edition, notably in the chapters relating to legal, financial and health services.

Among the many notable recent cases examined in this new edition are:

  • R v (On the application of Coke-Wallis) v ICAEW - the perils of taking shortcuts in investigations and the charging process
  • Bonhoeffer v GMC - the right to cross examine
  • Baxendale-Walker v Middleton & Ors - the role of privilege in the Solicitors Disciplinary Tribunal
  • R(Hill) v ICAEW - waiver of natural justice
  • Holmes v Royal College of Veterinary Surgeons - impartial tribunals and the incompatibility of tribunal members' roles
  • Hazelhurst & Oths v SRA - the desirability of indicative sanctions
  • Mattu v University Hospital Coventry and Warwickshire - Convention rights in Interim Orders

Part I: Disciplinary and Regulatory Proceedings

  • The Basis of the Jurisdiction
  • The Right to a Fair Trial
  • The Common Framework
  • The Grounds for Disciplinary Action
  • The Role of Ethical Guides and Codes of Practice
  • Commencing an Investigation
  • The Investigation
  • The Decision to Prosecute
  • The Tribunal
  • Pre-trial Issues
  • Public Hearings
  • Witnesses, Evidence and Proof
  • The Hearing
  • Penalties, Powers and Costs
  • Appeal and Judicial Review
  • Regulatory Functions
  • The Enforcement Powers of the Financial Services Authority
  • Healthcare Regulation
  • The Regulation of Legal Services
  • The Civil Liability of Disciplinary and Regulatory Bodies
  • The Retrospective Effect of Rule Changes
  • Data Protection and Freedom of Information

Part II: Disciplinary and Regulatory Arrangements in Practice

  • Practical Advice
  • Exemplars

Appendix

  • The Human Rights Act 1998

Authors/Editors are listed in alphabetical order

"hard pressed practitioners will certainly applaud the authors' overall aim of making this complex subject as accessible as possible ... together with its accompanying website, the book is an indispensible resource for practitioners involved in any way with disciplinary and/or regulatory proceedings"
Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers

"one of the leading textbooks in the field of disciplinary and regulatory proceedings, providing an authoritative examination of the general principles that apply to the majority of regulatory and disciplinary tribunals"
Association of Regulatory and Disciplinary Lawyers Bulletin

"the leading work on this important area of law ... Eminently readable as well as thorough and analytical"
Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers

REVIEWS OF THE PREVIOUS EDITIONS

"this excellent and authoritive work is an invaluable aid not only to regulatory enforcement lawyers but to anyone working in a regulated industry or dealing with public bodies"
Association of Regulatory and Disciplinary Lawyers Bulletin

"the first source of reference for anyone dealing seriously with this subject"
New Law Journal

"the latest edition of this excellent and authoritive work is an invaluable aid not only to regulatory enforcement lawyers but to anyone working in a regulated industry or dealing with public bodies"
Sidney Myers, Partner, Allen & Overy LLP

"truly authoritative and highly relevant. It is an elegant and beautifully crafted tome... It has everything you need and more beside in a highly readable text"
Justice of the Peace

"essential for those dealing in this area of law"
Professional Briefing

"provides an excellent and practical overview of the world of disciplinary proceedings ... a textbook that is not only eminently readable but also enjoyable!"
Michael Williams, Barrister

5 THE LEGAL ASSESSOR

9.66 Disciplinary tribunals sitting without a legally qualified chairman are sometimes advised by a legal adviser, commonly known as a legal assessor. The nature of the legal assessor’s responsibilities will depend on the rules and practices of the particular tribunal, but there is much to be said for not placing undue restrictions on the extent to which a tribunal may make use of its adviser. It must always be remembered, however, that the legal assessor is an adviser and not the decision-taker.

9.67 Although a school disciplinary panel was held not to have been unduly influenced by the use of the local authority’s solicitor as a legal assessor (R v Hertfordshire County Council, ex parte A) this practice is not to be recommended and can easily be resolved by the instruction of a barrister or solicitor in independent practice. Where it was desired to examine the conduct of the legal assessor in the retiring room the practice of taking sworn statements from the tribunal members and the assessor has been used in order not to breach the immunity of the in camera discussions unduly (Walker v General Medical Council).

9.68 Exceptionally, a legal assessor may be a member of a disciplinary tribunal. Thus, the Board has held that there was no objection to the legal assessor of the Hong Kong architects’ disciplinary tribunal declining to disclose the advice he had given to the tribunal during its retirement when he himself was a member of that tribunal (Re Chier Singh-Chou). Where it is desired to include a lawyer as a member of the tribunal, however, it would seem preferable for him not to be described as a legal assessor.

Legal assessor not analogous to judge

9.69 It has been said that,

‘it is well-established that the role of a legal assessor assisting a disciplinary panel is not analogous to that of a judge summing up in a criminal trial. In R (Campbell) v General Medical Council (above), at para 23 Judge LJ repeated the following passage from Libman v General Medical Council: “The legal assessor who assists the committee at its hearing is not a judge, and his advice to the committee is not a summing up, and no analogy with a criminal appeal against a conviction before a judge and jury can properly be drawn. The legal assessor simply advises the committee in camera on points of law and reports his advice in open court after he has given it. The committee under its president are masters both of law and of the facts and what might amount to misdirection in law by a judge to a jury at a criminal trial does not necessarily invalidate the committee’s decision. Where a criticism is made of the legal adviser’s account of his advice the question is whether it can fairly be thought to have been of sufficient significance to the result to invalidate the decision. See Fox v General Medical Council and per Lord Guest in Sivarajah v General Medical Council.”’

Per Underhill J in Gopakumar v General Medical Council.

On what can the legal assessor advise?

9.70 The functions of the legal assessor to the disciplinary committee of the GMC were described by Lord Radcliffe as being:

‘… confined to advising on questions of law referred to him and to intervention for the purpose either of informing the committee of any irregularity in the conduct of their proceedings which comes to his knowledge, or of advising them when it appears to him that, but for such advice, there is a possibility of a mistake of law being made.’

9.71 Since the question of whether a dentist’s conduct may be described as ‘infamous or disgraceful’ was a matter of mixed law and fact (Felix v General Dental Council), it follows that it is also one upon which the legal assessor may properly advise (but not, of course, rule). However, the weight to be
attached to previous convictions by the disciplinary committee of the GMC is not a matter of law for the legal assessor but for the collective judgment of the committee (Ziderman v General Dental Council). Ultimately, the tribunal members are masters of both law and fact, per Lord Guest, in Sivarajah v General Medical Council.

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