O’Connor v Bar Standards Board [2017] UKSC 78

A black barrister brought a Human Rights Act claim against the Bar Standards Board, alleging racially discriminatory disciplinary proceedings. The Supreme Court held the prosecution constituted a single continuing act lasting until her successful appeal, meaning her claim was brought in time under section 7(5)(a).

Facts

The appellant, Ms O’Connor, a practising barrister who is black, faced six disciplinary charges brought by the Bar Standards Board (BSB) Complaints Committee on 9 June 2010. On 23 May 2011, a Disciplinary Tribunal found Charges 1-5 proved. She appealed to the Visitors to the Inns of Court, who on 17 August 2012 allowed her appeal, finding that none of the conduct alleged involved any breach of the Code of Conduct.

On 21 February 2013, the appellant issued proceedings against the BSB under the Human Rights Act 1998, alleging that the disciplinary proceedings constituted discrimination against her on grounds of race, in breach of article 14 ECHR read with article 6. The BSB pleaded that the claim was time-barred under section 7(5)(a) of the 1998 Act, which imposes a one-year limitation period.

Deputy Master Eyre struck out the claim. Warby J held that an indirect discrimination claim was adequately pleaded but was time-barred, treating the act complained of as the decision to prosecute in mid-2010. The Court of Appeal held the limitation period had begun running at the latest by the Tribunal’s verdict in May 2011 and had expired before issue.

Issues

The Supreme Court considered two issues under section 7(5)(a) of the 1998 Act:

1. Whether the disciplinary proceedings brought by the BSB constituted a series of discrete acts or a single continuing act for the purposes of section 6(1)(a) of the 1998 Act;
2. If a single continuing act, whether it ended with the Tribunal’s verdict or with the Visitors’ decision on appeal.

A respondent’s notice also raised whether Warby J erred in holding the article 14 claim had real prospects of success.

Arguments

Appellant

Mr Anderson QC submitted that the appellant’s complaint was not about each individual step of the prosecution but the fact that the BSB prosecuted her — a state of affairs that lasted until the prosecution ended. He relied on section 6(6), which provides that an act includes a failure to act, noting the BSB could have offered no evidence at any time before the Visitors’ verdict.

Respondent

Ms Padfield submitted that the decision to refer the appellant to a disciplinary tribunal, even if indirectly discriminatory, was a one-off act with potentially continuing consequences. She accepted there was evidence of disproportionate impact in relation to referrals, but argued there was no such evidence for the continuation of prosecutions.

Judgment

Nature of the claim

Lord Lloyd-Jones (with whom Lady Hale, Lord Kerr, Lord Wilson and Lady Black agreed) adopted Elias LJ’s analysis: the challenge was to the BSB’s conduct in bringing and pursuing disciplinary proceedings against the appellant, not to an alleged systemic state of affairs. Reliance on DH v Czech Republic (2008) 47 EHRR 3 was intended to demonstrate that the proceedings against her were discriminatory.

Single continuing act

The Court held that section 7(5)(a) should not be read narrowly and must be capable of applying to continuing acts. Although the proceedings necessarily involved a series of steps, the essence of the complaint was the initiation and pursuit of the proceedings to their conclusion — the entirety of the course of conduct, not the component steps. As Lord Dyson MR had observed, prosecution is a single process in which the prosecutor takes many steps; Parliament cannot have intended each step to be a separate “act” attracting a one-year limit. The Court agreed with Lord Hope in Somerville v Scottish Ministers [2007] UKHL 44 that, for a continuing act, time runs from when it ceased.

When the continuing act ceased

The Court of Appeal had held the prosecution ended with the Tribunal’s verdict, viewing opposition to an appeal as categorically different from prosecuting. Lord Lloyd-Jones disagreed, cautioning that the analogy with criminal prosecution was imprecise. Examining the regulatory scheme, he identified several features supporting treating the Tribunal and Visitors stages as a single continuing act:

• The Visitors exercised a long-established supervisory jurisdiction over disciplinary matters at the Inns of Court;
• A designated judge gave directions for the conduct of disciplinary proceedings;
• An appeal lay as of right against conviction or sentence;
• The Visitors looked afresh at matters in dispute, conducting a rehearing on the merits;
• The Visitors could correct procedural defects and unfairness;
• Pronouncement and implementation of sentence was automatically deferred pending appeal — the Tribunal’s verdict could not be put into effect until after the Visitors’ decision.

Considered cumulatively, the BSB’s role before the Tribunal and Visitors was essentially one continuing act, ceasing on 17 August 2012. The proceedings issued on 21 February 2013 were therefore in time.

Respondent’s notice

The Court addressed the merits despite considering the point adventitiously before it. Warby J had been correct to conclude the article 14 claim had a real prospect of success. The appellant relied on a 2013 Inclusive Employers report finding BME barristers were disproportionately over-represented in the complaints process. While the statistical difference might not, of itself, be as striking as in DH or Sampanis v Greece, the appellant was entitled to rely on this evidence together with the history of proceedings against her. Indirect discrimination can be proved without statistical evidence. The application to adduce new evidence was refused as inappropriate at strike-out stage.

Implications

The decision establishes that section 7(5)(a) of the Human Rights Act 1998 is capable of applying to a continuing course of conduct, and that for such continuing acts time runs from cessation rather than commencement. This avoids placing claimants in the position of having to issue proceedings before the outcome of lengthy underlying proceedings is known.

For regulatory and disciplinary proceedings analogous to those before the BSB and Visitors, where the appellate body conducts a rehearing on the merits, can correct procedural defects, and whose decision is required before any sentence takes effect, the prosecuting body’s conduct may be treated as a single continuing act extending until the appellate determination. The Court expressly declined to express any view on whether the same conclusion would apply to a prosecutor’s role in an appeal against a criminal conviction, leaving that question open.

The judgment also confirms that indirect discrimination contrary to article 14 may be established without statistical evidence of the kind seen in DH v Czech Republic, and that statistical material short of a striking disparity may still support a claim when combined with case-specific evidence. The decision is significant for practitioners advising on limitation in human rights claims arising out of ongoing regulatory or quasi-judicial processes, and for those concerned with the evidential threshold for indirect discrimination claims at the strike-out stage.

Verdict: Appeal allowed. The Supreme Court held that the BSB’s conduct in bringing and pursuing the disciplinary proceedings was, for the purposes of section 7(5)(a) of the Human Rights Act 1998, a single continuing act which continued until the Visitors to the Inns of Court allowed the appeal on 17 August 2012. The proceedings commenced on 21 February 2013 were therefore brought within the one-year limitation period. The respondent’s notice and application to adduce new evidence were rejected.

Source: O'Connor v Bar Standards Board [2017] UKSC 78