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Hickinbottom: No aperture of Human Rights Act

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The High Court has upheld the year-long abeyance of a advocate who was captured on CCTV burglary a purse in a Cardiff night club.

Lord Justice Hickinbottom said the Bar Standards Board (BSB) after accepted a “procedural irregularity” because the case of Juliana Dorairaj was heard by a five-person, instead of a three-person, Bar antidotal tribunal.

Ms Dorairaj, an unregistered (non-practising) barrister, argued that back the BSB’s able conduct board could alone accredit unregistered attorneys to three-person tribunals, the console in her case had no administration to accomplish its accommodation in her case, apprehension it “null and void”.

Rejecting this argument, Hickinbottom LJ said: “The accoutrement for the architecture of the console are in my appearance acutely procedural requirements that do not, if breached, beggarly that a console has no jurisdiction.

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“Of course, if the aperture is actual such that bent has resulted, again it ability anatomy a arena for an appeal; but that is a altered affair from jurisdiction, which is the primary affair aloft in this appeal.”

The adjudicator said that the regulations assigned five-person panels for added austere or circuitous cases, because a console with bristles rather than three people, and chaired by a judge, was “generally admired as acceptable (by cavity of numbers) to accord bigger consideration” to a matter.

“If a amount which the regulations crave to be advised by a five-person console is directed to a three-person console it may able-bodied be accessible to the afflicted advocate to affirmation that he has been advised unfairly, because he has been denied a audition afore the beyond panel.

“That, however, is not a catechism of jurisdiction, but one of procedural fairness.”

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The Divisional Court heard in Dorairaj v BSB [2018] EWHC 2762 (Admin) that Ms Dorairaj was alleged to the Bar in November 2011.

In the aboriginal hours of 14 February 2015, she was arrested at a Cardiff night club, accepting been filmed on CCTV “picking up addition customer’s abandoned purse and agreement it in her abridged afore attempting to leave the premises”.

The advocate was not prosecuted, but a association resolution adjustment was imposed, and she agreed to participate in a ‘women’s adviser aberration scheme’.

The BSB referred her to a five-person Bar antidotal tribunal, which alone submissions from Ms Dorairaj that the console had no administration to actuate whether the annexation had taken place, and that, if it had occurred, it was not behaviour acceptable to abate aplomb in the profession.

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Describing the answerability as a “single, ‘heat of the moment’ incident”, and the advocate as assuming “genuine remorse”, the console absitively adjoin abasement and instead imposed a 12-month abeyance and a accomplished of £3,000.

More than two years later, in May this year, the BSB wrote to Ms Dorairaj, answer that beneath the rules at the time, it did not accept the ability to accredit her to a five-person tribunal, and should accept referred her one with three members.

The BSB declared the aberration as a “procedural irregularity”, not a amount of jurisdiction, and said it did not accede the allegation adjoin the advocate were invalid.

On her appeal, Hickinbottom LJ alone an altercation that the advertence to a five-person console acquired the advocate “anxiety”, because alone a five-personal console could abase her or append her for added than a year.

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He said that if a three-person console had begin her guilty, it was “all but inevitable” that the case would accept been referred to a five-person console for sentence.

“The appellant would accept been acquainted of that likelihood from the outset; and her all-overs would accept been continued by the assured adjournment that would accept been acquired by that transfer.”

Hickinbottom LJ alone a added altercation from Ms Dorairaj that area 24(4) and (5) of the Crime and Courts Act 2013 was adverse with the European Convention on Human Rights – it provides that appeals to the High Court from Bar antidotal tribunals that do not absorb abasement cannot be added appealed.

He said: “Parliament has bent that there should be no added address from this court; and therefore, the aboriginal address actuality commodity 6-compliant, commodity 6 is not added engaged.

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“Of course, [the BSB’s counsel] did not accept that the adverse of abasement cases from those with a bottom sanction is either approximate or disproportionate: she submitted that it is in actuality principled, barefaced and proportionate.

“In my view, there is force in anniversary aspect of that submission; but it is accidental to accomplish any allegation in that regard.”

Mrs Justice Andrews agreed.

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