SSSC successfully challenges sheriff’s ruling that article 6 ECHR is ‘engaged’ during conduct committee proceedings

Sheriff Principal Alastair Dunlop QC (pictured) allowed the Scottish Social Services Council’s (SSSC) appeal, after concluding that the “proper” approach in considering whether the right to a fair trial in terms of article 6 had been satisfied was to look at the proceedings “as a whole, including any appeal proceedings”.

The appeal arose out of the sub-committee’s decision to remove a social worker’s name from the register of social workers.

In her summary application the pursuer, Judy Smith, asked the court to “dismiss” that decision and to re-instate her to the register.

The principal ground on which she based her application was an alleged breach of her human right to a fair trial in accordance with article 6(1) of the ECHR.

During the course of the proceedings before the sheriff a question arose whether article 6 was “engaged” by the procedure in issue, namely the proceedings before the conduct sub-committee.

Following a debate at another hearing the sheriff issued an interlocutor dated 17 November 2014 in which she found “that article 6 of the European Convention of Human Rights is engaged throughout the procedure in issue”.

But the council appealed the sheriff’s interlocutor, its primary contention being that the sub-committee could not breach a registrant’s article 6 rights because there was a right of appeal to the court under section 51 of the Regulation of Care (Scotland) Act 2001.

It was submitted that the “correct approach” was to look at the position “at the end of the proceedings viewed as a whole” and, if the pursuer’s article 6 rights had not been satisfied at the stage of the proceedings before the sub-committee, the sheriff can and ought to take such steps as are necessary to ensure that they are satisfied by the conclusion of the appeal proceedings.

The council’s submissions were advanced primarily under reference to the 2001 case of Tehrani v United Kingdom Central Council for Nursing, Midwifery and Health Visiting, in which the Lord Ordinary (Mackay of Drumadoon) emphasised that section 6(1) of the Human Rights Act 1998 did not accord the petitioner the right to have each stage of the disciplinary proceedings conducted before a tribunal which meets all of the requirements of article 6.

In response, the pursuer contended that the court should consider whether what the sub-committee had done was “practically speaking” compliant with article 6(1) and that, if it was not, the sheriff could ensure that the whole proceedings were compliant by the measures that he chose to take to achieve that end, which might include a full or partial re-hearing.

However, the court adopted the analysis of Lord Mackay of Drumadoon in the case of Tehrani and recalled the sheriff’s interlocutor after concluding that the submissions for the council were “well founded”.

In a written judgment, Sheriff Principal Dunlop said: “In the present case it is not in dispute that the right of appeal to the sheriff is a right of full appeal but in any event I consider that, as in Tehrani, I would be bound to construe the right of appeal under section 51 in a way which is compatible with Convention rights and thus as unrestricted.

“The weight of authority clearly supports the view that there can be no violation of the Convention in proceedings before a tribunal if the tribunal’s decision is subject to subsequent control by a court that has full jurisdiction and does provide the guarantees required by article 6(1).

“The proper question therefore is whether, looking at the proceedings as a whole, including any appeal proceedings, the pursuer’s entitlement to an article 6(1) process has been satisfied.”

He added that such an approach did not mean that the sub-committee could simply “ignore” article 6 in the proceedings before it.

The Sheriff Principal explained: “The court is entitled to expect that the council will have regard to the pursuer’s entitlement to an article 6 compliant process and, while that process includes the right of appeal, in my view it cannot be right that the council should be careless as to whether its own proceedings are article 6 compliant or not.

“However it is one thing to say that the council ought to have regard to article 6 in its proceedings and it is another to say that article 6 applies to those proceedings so that a breach of article 6 can be determined by looking exclusively at those proceedings. In my view the latter approach is erroneous. Accordingly I am satisfied that the proper course is to allow the appeal and recall the sheriff’s interlocutor insofar as it finds that article 6 is engaged throughout the procedure in issue.”

Sheriff Principal Dunlop added: “In conclusion therefore it seems to me that, in approaching the pursuer’s claims with regard to article 6, the proper course now is for the sheriff to hear parties on the summary application, to consider whether what happened before the conduct sub-committee was compliant with article 6 and, if it was not, to consider what requires to be done to ensure that the proceedings as a whole are compliant and that the pursuer’s article 6 entitlement is met.”