Veterinary tribunal did not show bias
18 January 2012
Joseph Lennox Holmes (Appellant) v Royal College of Veterinary Surgeons (Respondent) [2011] UKPC 48 – read judgment
The disciplinary procedures of the Royal College of Veterinary Surgeons did not give rise to any appearance of bias so as to breach a practitioner’s right to a fair trial under Article 6.
Despite the fact that the membership of the committee dealing with the prosecution of charges was drawn from the College’s governing body, in whose name any charges were brought, and that the body dealing with the determination of charges was also drawn from the College’s governing body, in practice their procedures were fair.
Mr Holmes, a single-handed practitioner at a clinic a Grimsby, had carried out four separate operations to shorten the soft palate of a cavalier King Charles spaniel in an attempt to stop it snoring. The committee had heard that the procedure was unnecessary to begin with and beyond his competence, and that the dog eventually had to be euthanased.
Mr Holmes was also found guilty of disgraceful conduct on charges relating to his handling of another client’s pedigree Persian cats in which he carried out dental extractions that were again considered unnecessary.
He had denied a total of nine charges relating to his treatment of the spaniel Jake and the three cats. The complaints against him were brought in the name of the College and all the members of the Disciplinary Council (DC) which heard the complaints were members of the Council of the College.
The complaints
Mr Holmes contended that features of the general system operated by the College for the determination of disciplinary complaints and features of its operation specific to the instant proceedings were deficient in a number of respects, these deficiencies combining to give rise to an appearance of bias against him on the part of the DC. In the absence of his right of appeal to the Board of the Privy Council, it would (so Mr Holmes argues) have infringed the right “to a fair… hearing by an independent and impartial tribunal” conferred on him by Article 6.
He did not suggest that, within a legitimate system of professional self-regulation such as this, the complaints should be brought otherwise than in the name of the College; and he accepted that the relevant legislation presently requires that all members of the DC should be members of its Council. But the Board agreed with Mr Holmes that the statute does not, of itself, preclude his seeking to complain about the connection between the prosecution and the committee which it mandates; and it also accepted that the complaint could be advanced in the absence of any application on his part for a declaration of the incompatibility of the statute with Article 6.
His appeal was dismissed.
The Privy Council’s reasoning
The board observed that the current system allows members of the DC previously to have been members of the Preliminary Investigating Committee (PIC). The complaint is thus that those who fulfil the judicial role may previously have had a role in the sanctioning of prosecutions. Within this systemic complaint lies the major complaint of Mr Holmes specific to the instant proceedings.There are two aspects of his complaint about one of the members of the DC: first that she had been appointed to the DC only two years after the cessation of her membership of the PC in breach of the College’s convention that three such years should elapse; and second that she had served on the very PIC which in 2005 had referred to the DC the complaints against him which it determined in 2006.
The appellant relied on one of the earliest challenges to be taken under Article 6 in respect of internal disciplinary proceedings, Tehrani v UK Central Council for Nursing, Midwifery and Health Visiting [2001] SC 581 (see our post on that case). Another authority which supported Mr Holmes appeal was the decision of the Privy Council in Preiss v General Dental Council [2001] UKPC 36 (see our analysis). In the latter case, it will be remembered, it was held that the dual role of the president as preliminary screener and chairman of the professional conduct committee of the General Dental Council breached the requirement of independence under Article 6.
The common law, pre Human Rights approach to bias was formulated in the following question:
whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased (Porter v Magill [2001] UKHL 67)
However, this appeal fared no better under this common law principle than it did under Article 6. The Board considered that the fair-minded and informed observer would not conclude that there was a real possibility that the DC was biased against Mr Holmes. In particular, it perceived no real possibility of bias in previous membership of the DC on the part of a member of the PIC. As for his complaints about the disproportionality of the sanction – removal of his name from the register – the Board was constrained to agree with the DC that, when considered in the light of the “disgraceful” conduct of Mr Holmes found proved against him in 2006, the only sanction appropriate to the catalogue of egregious misconduct reflected in the 28 charges which fell within the section was the erasure of his name from the register.
Such was the only disposal which could properly reflect the primary need to serve both the interests of animal welfare and the reputation of the veterinary profession.
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