Disciplinary and Regulatory Proceedings Contents · Disciplinary and Regulatory Proceedings ... The self-contained statutory machinery principle 4.26 No general liability for a failure

Disciplinary and RegulatoryProceedingsNinth Edition

Gregory Treverton-Jones QC

Alison Foster QC

Saima Hanif, Barrister

All of 39 Essex Chambers

.

iii

0003 [ST: 1] [ED: m] [REL: 9] Composed: Tue Oct 31 06:38:47 EDT 2017

XPP 9.0C.1 SP #4 SC_00LAW nllp DRP

VER: [SC_00LAW-Local:22 Sep 17 11:16][MX-SECNDARY: 09 Aug 17 08:28][TT-: 19 Jan 11 08:07 loc=gbr unit=drp_binder_01_plm_complete]0

Members of the LexisNexis Group worldwide

United Kingdom RELX (UK) Limited, trading as LexisNexis, 1-3 Strand,London WC2N 5JR

Australia Reed International Books Australia Pty Ltd trading asLexisNexis, Chatswood, New South Wales

Austria LexisNexis Verlag ARD Orac GmbH & Co KG, Vienna

Benelux LexisNexis Benelux, Amsterdam

Canada LexisNexis Canada, Markham, Ontario

China LexisNexis China, Beijing and Shanghai

France LexisNexis SA, Paris

Germany LexisNexis GmbH, Dusseldorf

Hong Kong LexisNexis Hong Kong, Hong Kong

India LexisNexis India, New Delhi

Italy Giuffrè Editore, Milan

Japan LexisNexis Japan, Tokyo

Malaysia Malayan Law Journal Sdn Bhd, Kuala Lumpur

New Zealand LexisNexis New Zealand Ltd, Wellington

Singapore LexisNexis Singapore, Singapore

South Africa LexisNexis, Durban

USA LexisNexis, Dayton, Ohio

© RELX (UK) Limited, trading as LexisNexis 2017

Published by LexisNexis

All rights reserved. No part of this publication may be reproduced in any material form (includingphotocopying or storing it in any medium by electronic means and whether or not transiently orincidentally to some other use of this publication) without the written permission of the copyrightowner except in accordance with the provisions of the Copyright, Designs and Patents Act 1988or under the terms of a licence issued by the Copyright Licensing Agency Ltd, Saffron House, 6–10Kirby Street, London EC1N 8TS. Applications for the copyright owner’s written permission toreproduce any part of this publication should be addressed to the publisher.Warning: The doing of an unauthorised act in relation to a copyright work may result in both acivil claim for damages and criminal prosecution.

Crown copyright material is reproduced with the permission of the Controller of HMSO and theQueen’s Printer for Scotland. Parliamentary copyright material is reproduced with the permissionof the Controller of Her Majesty’s Stationery Office on behalf of Parliament. Any Europeanmaterial in this work which has been reproduced from EUR-lex, the official European Commu-nities legislation website, is European Communities copyright.A CIP Catalogue record for this book is available from the British Library.

ISBN for this volume: 9781784733841

Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY

Visit LexisNexis at http://www.lexisnexis.co.uk

Disciplinary and Regulatory Proceedings

iv




Contents

Contributors

Preface

TABLES

Table of Cases

Table of Statutes

Table of Statutory Instruments

Table of European Materials

PART 1 GENERAL

Chapter 1 The Jurisdiction of Regulators: Powers, Principles andApproach

Alison Foster QC, Jack Anderson, Adam Boukraa

(1) The legal basis for the regulator’s powers

Statutory and contractual powers 1.01

(2) The legal basis for the regulator’s powers: territorial jurisdiction 1.08

(3) The legal basis for the regulator’s powers: jurisdiction in time 1.13

(4) The legal basis for the regulator’s powers: retrospective effect ofrules on past conduct 1.25

(5) General principles and approach

Reasonableness and relevance 1.30

Natural justice/procedural fairness 1.35

Fairness: application to non-statutory bodies 1.43

Fairness: the McInnes classification 1.45

Expectation cases 1.46

Application by the courts 1.47

Concern with overall fairness 1.48

ix




The right to be heard 1.49

Further illustrations 1.54

Legitimate expectations 1.55

Legitimate expectations: substantive legitimate expectations 1.56

Indicating relevant factors prior to a decision 1.60

Policies and guidance 1.62

Human rights: the Human Rights Act 1998 1.65

Article 6: disciplinary proceedings, determination of acriminal charge or of civil rights or obligations 1.67

Interim decisions 1.72

Article 8: disclosure and confidentiality 1.73

Article 11: freedom of association 1.75

Article 1 Protocol 1 ECHR 1.76

(6) The Regulators’ Code 2014 1.79

Chapter 2 The Nature of Professional Misconduct

Saima Hanif

(1) A working definition of professional misconduct – seriousnessand professional connection 2.11

Remedy UK 2.26

(2) ‘Discreditable conduct’ 2.29

Misconduct in public office 2.35

(3) Breaches of rules and principles and the mental element ofmisconduct 2.36

Dishonesty and recklessness – generally 2.42

Dishonesty and recklessness – professional discipline 2.47

Extent of dishonesty 2.53

Lack of integrity 2.55

(4) Negligence, single particularly serious incidents and inadequatework

Negligence and single particularly serious incidents 2.56

Inadequate work 2.65

(5) Other issues arising

Vicarious liability 2.75

Double jeopardy 2.78

Estoppel 2.84

Contents

x




Criminal conduct 2.88

Chapter 3 Disciplinary Tribunals

Saima Hanif, Cleon Catsambis

(1) The right to an independent tribunal 3.03

How can the independence of a tribunal be assured? 3.08

The assurance of lay membership

Lay members 3.10

The assurance of independent appointment 3.12

The assurance of security of tenure 3.13

The convenor of the tribunal 3.16

Can a lack of independence be cured by the appointment of afresh tribunal? 3.17

(2) The right to an impartial tribunal

The common law right to an impartial tribunal 3.21

The fair-minded and informed observer 3.26

The Convention right to an impartial tribunal 3.31

Application to tribunals 3.38

Plural tribunals 3.39

The presumption of impartiality 3.40

Knowledge of a witness 3.41

Disqualification for financial interest 3.43

A small interest in the proceedings; the de minimis exception 3.44

Other grounds of objection 3.45

Representative interest 3.46

The problem of tribunal members having been involved in theinvestigation or the decision to bring proceedings 3.47

Prior involvement in an issue 3.49

The problem of disciplinary tribunal members who have beeninvolved in separate proceedings against the accused 3.50

Involvement in the law or standard-making process

The Luxembourg cases 3.51

The UK cases 3.53

The problem of informal contacts 3.56

Practical steps to avoid bias 3.59

Contents

xi




Waiver 3.63

The problem of prejudicial pre-trial publicity 3.64

(3) The right to a tribunal ‘established by law’ 3.67

(4) The appointment of the tribunal members 3.72

The chairman 3.74

The composition of a tribunal 3.76

The need for lay members to be trained 3.77

Voting 3.78

The confidentiality of the retiring room 3.81

Transfer to a fresh tribunal 3.82

Interlocutory matters 3.83

Composition of tribunal after adjournment 3.85

(5) The legal assessor 3.89

Legal assessor not analogous to judge 3.91

On what can the legal assessor advise? 3.92

The legal assessor and the preparation of findings 3.94

How should the legal assessor give his advice? 3.99

When may the legal assessor retire with the tribunal? 3.100

Questions by the legal assessor 3.102

A useful comparator for the role of a legal assessor 3.103

Bias on the part of the legal assessor 3.105

Should the regulator’s in-house lawyer be the legal assessor? 3.107

Security of tenure of legal advisers 3.109

(6) Judicial protection of tribunals 3.1103.113

Chapter 4 Civil Liability of Regulatory Bodies

Saima Hanif, Nicola Kohn

(1) Liability towards members and authorised persons

Remedies in tort 4.03

The ‘complete control’ principle 4.04

Effect of a statutory remedy 4.09

Malicious prosecution 4.10

Remedies in contract 4.11

Limitations on contractual remedies 4.15

Contents

xii




Right to a declaration absent a contract 4.18

(2) Liability towards third parties

Summary 4.19

No general duty of care arising from authorisation 4.20

The government function principle 4.24

The self-contained statutory machinery principle 4.26

No general liability for a failure properly to investigate acomplaint 4.28

(3) Exclusion of liability and indemnities

Exclusion of liability by statute 4.33

Exclusion of liability by contract 4.35

Indemnities 4.36

(4) Issues of liability arising from disclosure/non-disclosure

Disciplinary body liable to disclosure 4.37

Liability arising from use of documents covered by legalprofessional privilege or public interest immunity 4.39

PART 2 THE DISCIPLINARY PROCESS

Chapter 5 The Investigation

Gregory Treverton-Jones QC, Peter Mant

(1) What may trigger an investigation? 5.01

Complaints from clients and third parties 5.02

Complaints arising from monitoring/supervision 5.06

Complaints and reports from fellow members andcompetitors 5.08

Complaints from employees and whistle-blowers 5.09

Anonymous complaints 5.18

Other reasons for investigation 5.19

(2) The duty to report misconduct 5.20

(3) Inter-regulatory disclosures 5.24

Memoranda of understanding 5.26

Duty to notify other regulator 5.27

Disclosure of money laundering, etc 5.29

Disclosure authorised or required by statute 5.31

(4) The decision to investigate 5.33

Contents

xiii




Statutory discretion to investigate 5.35

Meritless complaints 5.36

Can a person under investigation challenge a decision toinvestigate? 5.37

Does the person under investigation have a right to know whythe investigation was instituted? 5.39

(5) Publicising the commencement of an investigation 5.41

(6) Conduct of the investigation 5.44

Application of the European Convention to investigations bypublic authorities 5.49

What duty does the investigator owe to the subject of adisciplinary investigation? 5.50

Entrapment 5.52

No duty to administer a caution 5.56

Provisional determination 5.59

The power to demand information 5.61

(7) When should an investigation be deferred pending action byanother regulator? 5.66

(8) When must an investigation be deferred pending criminalproceedings? 5.70

When deferment of disciplinary proceedings may be justifiedpending criminal proceedings 5.75

(9) Deferment of disciplinary investigation pending civil action 5.79

The case-law 5.86

(10)Resignation to prevent disciplinary action 5.91

(11)Libel implications concerning information supplied to aregulator 5.95

Absolute privilege 5.96

Qualified privilege 5.101

Data protection 5.103

Chapter 6 The Decision to Prosecute

Gregory Treverton-Jones QC, James Potts

(1) Who decides to bring disciplinary proceedings? 6.01

(2) The decision to bring disciplinary proceedings 6.03

The evidential test 6.04

The public interest test 6.12

Contents

xiv




Information provided to the decision-maker 6.16

(3) Action other than referral to a disciplinary tribunal 6.19

No further action 6.22

Formal or informal advice 6.24

Requirements as to further training or control of practice 6.28

Caution, warning, reprimand or rebuke 6.29

Penalties without referral to disciplinary tribunal 6.33

Inappropriateness of dismissal from office as an alternative todisciplinary action 6.35

(4) Challenging decisions to bring or not to bring disciplinaryproceedings

Can the complainant challenge a decision not to bring disci-plinary proceedings? 6.36

Can the respondent challenge a decision to bring disciplinaryproceedings? 6.41

Convention rights not engaged in decision to bring disciplin-ary proceedings 6.46

Informing a respondent that he will not be prosecuted 6.48

(5) Publication of decisions to bring disciplinary proceedings andadministrative sanctions 6.52

Chapter 7 Pre-trial Issues

Gregory Treverton-Jones QC, Alexis Hearnden

(1) Prosecution case statement

The right to fair notice at common law 7.02

The Convention right to receive particulars 7.04

Drafting of the particulars 7.07

Amendments to particulars 7.12

‘And/or’ allegations 7.13

Dishonesty must be pleaded 7.15

Multiple charges 7.17

The rule against duplicity 7.19

(2) Other pleadings

Defence case statement 7.24

Further and better particulars 7.26

(3) Case management and pre-trial hearings

Contents

xv




Case management 7.27

Challenging interlocutory decisions 7.31

(4) Securing the attendance of witnesses 7.32

(5) Adjournments 7.34

The criteria to be adopted in applications to adjourn 7.36

The need to exercise discretion 7.37

Doubtful reasons for adjournment 7.39

Adjournment on grounds of criminal proceedings against therespondent 7.42

Adjournment on grounds of respondent’s ill health 7.45

(6) Stay of proceedings 7.49

Abuse of process 7.51

Delay as grounds for a stay 7.54

Delay: common law 7.56

Delay: Art 6 and the ‘reasonable time requirement’ 7.58

When does time start to run? 7.65

Remedy for delay 7.70

Stay on grounds of bad faith, etc 7.73

Stay on the ground of a collateral attack on a decision of acompetent court 7.78

Other grounds for stay 7.81

Double jeopardy 7.82

(7) Preparation for trial

Notice of the hearing 7.86

Where notice is not received 7.87

The effect of a finding or order obtained without noticereceived 7.88

Notice not given through fault of respondent’s solicitor 7.91

Chapter 8 Disclosure and Confidentiality

Gregory Treverton-Jones QC, Alexis Hearnden

(1) Introduction 8.01

(2) Disclosure of confidential information to a regulator 8.06

Disclosure of wrongful acts 8.08

(3) The compelling by a regulator of production of information ordocuments in the possession or control of the regulated

Contents

xvi




individual or entity 8.12

Do these powers override confidentiality and/or privilege? 8.18

(4) Other means by which a regulator may obtain documents in thecontrol of the regulated individual 8.21

The use of medical records in disciplinary proceedings 8.22

The use of police or another regulator’s materials in disciplin-ary proceedings 8.28

(5) Disclosure by a regulator of non-documentary information in itspossession, particularly the identity of its sources 8.30

(6) Disclosure by a regulator of documents in its possession orcontrol during disciplinary or other legal proceedings

General principles 8.38

Disclosure and the EHCR 8.41

Disclosure of documents by a regulator as a non-party in civilproceedings 8.48

Documents held by a regulator may be subject to a request orapplication for disclosure from a third party 8.50

(7) Can the regulator resist production on the grounds of confiden-tiality, public interest immunity, and/or privilege?

Confidentiality 8.56

Public interest immunity (PII) 8.60

Legal professional privilege and litigation privilege 8.65

Waiver of privilege 8.72

In-house advisers 8.76

The ambit of privilege in disciplinary proceedings 8.77

Without prejudice communications 8.79

(8) Failure to disclose relevant documents by a regulator 8.85

Chapter 9 The Hearing

Gregory Treverton-Jones QC, Rory Dunlop

(1) The right to a fair hearing 9.02

(2) Public hearings and reporting 9.06

Hearings in private etc 9.13

Private disciplinary hearings 9.17

Reporting of disciplinary proceedings

Public disciplinary proceedings 9.18

Private disciplinary proceedings 9.22

Contents

xvii




(3) The right to an oral hearing 9.24

Trial in the absence of the respondent 9.28

(4) The right to representation

Legal representation 9.31

Public funding 9.36

Assistance from a non-legal adviser or friend 9.38

(5) The burden of proof 9.40

Reverse onus clauses 9.43

(6) The standard of proof 9.48

The different treatment of barristers and solicitors 9.50

The civil standard explained 9.53

(7) The order of proceedings 9.57

(8) Securing the attendance of witnesses and the production ofdocuments

Securing the attendance of witnesses 9.60

Securing the production of documents 9.65

Witnesses outside the jurisdiction 9.69

Objections by third parties to the production of documents 9.72

Conduct money and costs 9.76

Disobedience to a witness summons 9.77

Use of witness statement for collateral purposes 9.78

(9) Aspects of the evidence

Admissibility of evidence and hearsay 9.79

Hearsay evidence 9.83

Findings in other proceedings 9.85

(i) Criminal convictions 9.86

Findings in civil proceedings 9.88

Findings of another tribunal 9.90

Vulnerable witnesses 9.91

Expert evidence and the inherent expertise of the tribunal 9.92

The privilege against self-incrimination

The civil law rule 9.98

Acceptance of rules can exclude the privilege 9.99

Self-incrimination before public authorities 9.101

Contents

xviii




(10)The defence case 9.102

Submission of no case to answer 9.103

Respondent not giving evidence 9.105

Character evidence 9.107

(11)The conduct of the tribunal 9.108

Inattention etc 9.109

Over-interventionist approach 9.111

(12)Consequences of procedural defects 9.112

Internal appeals process ‘curing’ earlier unfairness 9.115

No power in the tribunal to re-open its decision 9.121

Chapter 10 The Tribunal’s Decision

Gregory Treverton-Jones QC, Fenella Morris QC, Jack Anderson

(1) The need for reasons 10.02

When reasons are required of public authorities under theEuropean Convention 10.04

The adequacy of reasons under UK jurisprudence 10.05

Delay in producing reasons 10.07

(2) The order of proceedings in determining penalty 10.08

Newton hearings: disputed facts following an admission ofguilt 10.09

Past record of the defendant 10.11

Submissions on penalty by the prosecution 10.14

Mitigation 10.16

(3) The purpose of disciplinary sanctions 10.17

Bolton v The Law Society 10.18

Application of Bolton 10.19

Bolton and the ECHR 10.21

Public confidence in the profession 10.22

Protecting the public generally 10.24

(4) Proportionality in the imposition of sanctions 10.25

(5) Guidance and indicative sanctions

Dangers of reliance on sentencing precedents 10.28

Indicative sanctions guidance 10.31

Changes of sanctions policy 10.34

Contents

xix




(6) Factors relevant to penalty 10.35

The relevance of facts admitted but not charged 10.36

The relevance of foreign regulatory orders 10.37

The effects on penalty of a plea of not guilty in criminalproceedings 10.40

(7) Duty to give reasons 10.41

(8) Particular penalties and powers 10.42

Minimal sanctions to be considered first 10.43

Expulsion from membership/removal of authorisation 10.44

Commission of a criminal offence 10.46

Dishonesty 10.48

Lack of integrity short of dishonesty 10.49

Drugs convictions 10.50

Penalties for bad work 10.52

Temporary suspension 10.54

The need for warning before suspension 10.60

Review hearing 10.61

Conditions 10.62

Orders requiring medical treatment 10.67

Admonitory penalties 10.69

Fines 10.71

The relevance of the respondent’s means 10.78

Compensatory orders 10.80

Warnings 10.82

No further action 10.84

The need for reasons in penalty decisions 10.86

(9) Costs 10.87

Costs against the respondent 10.88

What may be subject to an order for costs? 10.90

Fair procedure 10.92

Costs against the respondent 10.94

The means of the respondent are relevant 10.95

Partial success 10.99

Costs of the Tribunal 10.100

Contents

xx




Costs against the Regulator 10.101

Costs under the Convention 10.105

(10)Payment of fines and costs

Time to pay 10.109

Enforcement of fines and costs 10.110

Chapter 11 Appeals and Reviews

Saima Hanif, Rory Dunlop


(2) When a right of appeal may be exercised 11.02

Time limits 11.04

(3) What will happen on an appeal? 11.10

Grounds of Appeal 11.11

Wrong 11.14

Unjust because of a serious procedural or other irregularity 11.19

Injustice, causation and remittal 11.22

Fresh evidence 11.23

Remedies 11.25

(4) Judicial review 11.27

Bodies that are amenable to judicial review 11.29

Time limits and procedure 11.32

The grounds for judicial review 11.36

Remedies on judicial review 11.44

PART 3 SPECIFIC REGULATORY REGIMES

Chapter 12 General

Saima Hanif, Jack Anderson

(1) The criteria for admission to membership/authorisation 12.03

(2) Application to be re-admitted as a member/re-authorised 12.12

(3) Conditions of authorisation 12.17

(4) Interim measures 12.19

(5) Fitness to practise proceedings 12.21

(6) Delegation 12.23

(7) Equality Act 2010 12.24

(8) The rights of third parties 12.34

Contents

xxi




Chapter 13 The Regulation of Financial Services

Saima Hanif


Overview 13.07

(2) FCA’s functions and statutory objectives 13.10

(3) FCA authorisation and approval 13.12

Regulated activities 13.14

Approved persons 13.15

(4) Information gathering and investigation powers 13.16

Requiring information and documents from firms 13.18

Reports on firms by skilled persons 13.20

General investigations of firms and appointed representatives 13.21

The appointment of investigators to carry out investigationsinto specified matters 13.22

Investigations in support of overseas regulators 13.24

The appointment of investigators to carry out investigationsof collective investment schemes 13.25

Protected items, banking confidentiality and privilege 13.26

Admissibility of statements 13.30

Policy and practice 13.31

Notification 13.32

Publicity 13.33

Interviews and search warrants 13.34

Certification procedure 13.39

(5) The Regulatory Decisions Committee 13.40

Warning notice and decision notice procedures 13.46

Third party rights and access to FCA material 13.50

Mediation 13.53

Decision notice procedure 13.54

Supervisory notice procedure 13.56

Publication 13.58

(6) The discipline of authorised firms and approved persons 13.60

Alternatives to commencing disciplinary proceedings 13.62

The decision to take disciplinary action 13.63

Contents

xxii




The nature and seriousness of the breach 13.64

The conduct of the firm or the approved person after thebreach 13.65

The previous regulatory record of the firm or approvedperson 13.66

Guidance given by the FCA 13.67

Action taken by the FCA in previous similar cases 13.68

Action against approved persons 13.69

Public censure and statements of misconduct 13.70

Financial penalties 13.72

Factors which may be relevant in determining the level of fine

The seriousness of the misconduct 13.74

The extent to which the contravention was deliberate orreckless 13.75

Whether the person on whom the penalty is to be imposedis an individual, and the size and financial resources of thefirm and individual 13.76

The amount of profits accrued or loss avoided 13.77

Conduct following the contravention 13.78

Disciplinary record and compliance history 13.79

The variation or cancellation of permission and withdrawal ofa firm’s authorisation 13.80

Withdrawal of approved person status 13.82

Prohibition of individuals 13.86

Cancellation of Part 4A permission on FCA’s own initiative 13.89

Prohibition of unfit persons 13.92

(7) The market abuse regime 13.93

What is market abuse? 13.96

Sanctions for market abuse 13.98

(8) The role of the FCA as prosecutor 13.105

Regulatory or criminal proceedings? 13.111

Sentencing guidelines 13.114

(9) A summary of FCA’s restitution powers 13.115

FCA’s power to require restitution 13.119

FCA’s criteria for determining whether to exercise its restitu-tion powers 13.120

Contents

xxiii




FCA’s choice of powers 13.121

Determining the amount of restitution 13.122

Other relevant powers 13.124

(10)The role of the Upper Tribunal (Tax and Chancery Chamber) 13.126

Rules and legislation 13.128

(11)Designated professional bodies 13.133

Chapter 14 The Regulation of Healthcare

Alison Foster QC, Peter Mant, Tom Tabori

(1) Impairment of FTP 14.04

Grounds of impairment 14.05

Ground (1): misconduct 14.07

Ground (2): deficient professional performance and lack ofcompetence 14.11

Ground (3): convictions and decisions by other regulatorybodies 14.14

Ground (4): adverse physical or mental health 14.19

Finding impairment 14.23

(2) Initial consideration of allegations 14.26

Case examiners 14.28

Exceptions: when an allegation must not be referred 14.29

Direct referral to FTP Committee 14.30

Delay 14.33

Referral to Interim Orders Panel 14.34

Notice of referral to Investigating Committee 14.35

Review of decision whether to refer 14.36

(3) Investigating Committee

Consideration 14.39

Assessments 14.43

Procedural fairness at the investigation stage 14.48

Determination 14.52

Agreement of undertakings 14.54

(4) Action following referral to a FTP Committee 14.55

(5) Procedure of a FTP Committee

Right of appearance 14.59

Contents

xxiv




Representation 14.60

Evidence: burden and standard of proof 14.63

Admissibility of evidence 14.65

Evidence of convictions or prior regulatory determinations 14.68

Recording and transcripts 14.70

Extraterritorial conduct 14.71

Referral for Interim Orders Hearing 14.73

Public and private hearings 14.74

Absence of the registrant 14.78

Order of proceedings 14.80

(6) Disposal of the case

Available orders 14.82

Reasons 14.86

Publication of decision 14.89

Review of FTP Committee Decision 14.93

(7) Fraud or error in relation to registration 14.95

(8) Interim Orders Hearings 14.98

Test 14.99

Procedure 14.102

(9) Costs

General rule 14.112

(10)Appeal 14.114

The nature of the appeal jurisdiction 14.115

Procedural rules on appeal 14.117

(11)PSA’s power to refer decisions to the court

Section 29 14.121

The court’s approach to s 29 referrals 14.123

Scope of referrals 14.124

Chapter 15 The Regulation of Legal Services

Gregory Treverton-Jones QC

(1) The structure of legal services regulation

Introduction: the genesis of the Legal Services Act 2007 15.01

Reserved legal activities 15.03

Contents

xxv




The Legal Services Board 15.06

The Legal Ombudsman 15.11

(2) The regulation of solicitors and Alternative Business Structures

The Law Society and the Solicitors Regulation Authority 15.15

The SRA Principles and Code of Conduct 15.17

The regulation of entities 15.21

The regulation of Alternative Business Structures 15.22

Investigations by the SRA 15.25

Intervention 15.29

The disciplinary powers of the SRA: traditional law firms 15.32

The disciplinary powers of the SRA: AlternativeBusiness Structures 15.35

The Solicitors Disciplinary Tribunal 15.37

Appeals 15.43

(3) The regulation of barristers 15.46

The BSB Handbook 15.52

Disciplinary structure 15.58

Appeals 15.60

(4) The regulation of other legal professionals 15.63

Legal Executives 15.64

Licensed conveyancers 15.74

Patent attorneys, Trade Mark attorneys, Costs lawyers andNotaries 15.77

Chapter 16 The Regulation of Other Professions

Saima Hanif, Yash Bheeroo

(1) Architects Registration Board

Introduction 16.04

Applicable code of standards and conduct 16.05

The complaint process 16.07

The disciplinary hearing 16.08

Sentencing 16.11

Jurisdiction of the Committee 16.14

Appeal 16.15

(2) Institute of Chartered Accountants in England and Wales

Contents

xxvi




Introduction 16.16

Applicable Code of Standards and Conduct 16.17



Sentencing 16.24

Costs 16.25

Appeal 16.26

(3) Chartered Institute of Management Accountants

Introduction 16.30




Sentencing 16.41

Costs 16.45

Appeal 16.46

(4) The General Pharmaceutical Council

Introduction 16.50




Sentencing 16.61

Costs 16.62

Appeal 16.64

(5) Police Disciplinary Tribunal

Introduction 16.66


(6) Rugby Football Union

Introduction 16.70



Sentencing 16.77

Costs 16.81

Appeal 16.83

Contents

xxvii




PART 4 DATA PROTECTION AND FREEDOM OF INFORMATION

Chapter 17 Data Protection and Freedom of Information

Saima Hanif, Jennifer Thelen, Annabel Lee

(1) The Data Protection Act 1998 17.01

The data controller 17.03

Personal data 17.08

Processing 17.11

Permitted processing 17.12

‘Consent’ 17.13

Notifying the data subject 17.14

Sensitive personal data 17.15

Individuals’ right of access to data 17.16

Requesting information 17.18

Responding to a request 17.22

Use of data 17.28

Exemptions 17.29

The regulatory activity exemption 17.30

The concept of ‘prejudice’ 17.34

The ‘publicly available information’ exemption 17.35

The ‘disclosures required by law’ exemption 17.36

Other exemptions 17.37

Discretionary disclosure not exempted 17.38

Enforcement 17.39

(2) The Freedom of Information Act 2000

Introduction 17.43

A ‘public authority’ 17.44

Response to a request for information 17.46

The duty to advise and assist 17.47

Right to levy reasonable charges 17.48

Refusals – reliance on exemptions 17.49

Exemptions 17.50

Investigations and proceedings conducted by public au-thorities (s 30(1)) 17.51

Law enforcement (s 31) 17.52

Contents

xxviii




Inquiries (s 32(2)) 17.57

Personal information (s 40) 17.58

Information provided in confidence (s 41) 17.59

Legal professional privilege (s 42) 17.61

Prejudice and the public interest test 17.62

The Freedom of Information Act 2000 versus the DataProtection Act 1998 – which route should applicants take? 17.63

Contents

xxix


