The applicant sought to challenge a decision suspending him from authorisation to act as a financial adviser. He was alleged to have sought to affect the Index of share values in order that his company should not be liable under certain options. He said the decision was in effect a criminal decision.
Held: It was not a criminal charge. Applying the principles set out in Human Rights case law, the proceedings were not sufficiently serious to take the case to that point. Nevertheless some aspects of the right to a fair trial might apply under article 6. The appellant knew the basis of the allegation against him, and decisions made by him as to the conduct of his defence made the question of free legal representation irrelevant. Because the charge was not criminal evidence obtained under compulsion was admissible.
Schiemann LJ said: ‘It is common ground between the parties, and we are content to accept, that the Disciplinary Tribunal was involved in the determination of M Fleurose’s civil rights for the purposes of Article 6. Therefore clearly the proceedings had to be fair. We accept for present purposes, as did the judge, that it was for the SFA to prove their case, that the SFA had to inform M Fleurose in good time of the nature of the charges, that he must have adequate time and facilities to prepare his defence, a proper opportunity to give and call evidence and question those witnesses called against him. What fairness requires will vary from case to case and manifestly the gravity and complexity of the charges and of the defence will impact on what fairness requires. In this context we have born in mind, as did the judge, the points made by the Human Rights Court in Paragraphs 30 and 39 of Albert and Le Compte v Belgium, and in paragraphs 32 and 33 of Dombo Beheer BV v The Netherlands [1993] 18 EHRR 213.’
Judges:
Lord Justice Schiemann, Lord Justice Clarke, And, Mr. Justice Wall
Citations:
Times 15-Dec-2001, [2001] EWHC Admin 1085, [2001] EWCA Civ 2015, [2002] IRLR 297
Links:
Statutes:
European Convention on Human Rights Art 6
Jurisdiction:
England and Wales
Citing:
Cited – Official Receiver v Stern and Another CA 20-Nov-2001
The director appealed against a 12 year disqualification. The basis of the disqualification was unlawful trading to the detriment of creditors, and taking excess drawings. . .
Appeal from – Regina v Securities and Futures Authority Limited Disciplinary Appeal Tribunal of Securities and Futures Authority Limited ex parte Bertrand Fleurose Admn 26-Apr-2001
Those elements of Human Rights law which related to criminal charges could not be applied to disciplinary proceedings of the Securities and Futures Authority. Such proceedings are in their nature civil proceedings. Although a financial penalty was . .
Cited by:
Cited – G, Regina (on The Application of) v X School and Others CA 20-Jan-2010
The claimant was a teaching assistant. A complaint had been made that he had kissed a boy having work experience at the school, but it had been decided that no criminal prosecution would follow. He sought judicial review of the school’s decision to . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Administrative
Updated: 05 June 2022; Ref: scu.167307
