UK: Regulatory Proceedings and the Right to a Determination Within a Reasonable Time

Last Updated: 12 August 2002
Article by Andrew Lidbetter
Regulatory proceedings including disciplinary proceedings brought by public authorities are covered by the Human Rights Act. Where such proceedings determine a civil right or a criminal charge, e.g. professional disciplinary proceedings, they engage the right to a fair hearing under Article 6 of the European Convention on Human Rights. Article 6(1) includes the right to a determination “within a reasonable time”. Undue delay can therefore lead to an infringement of Article 6. As a separate matter, under the common law, undue delay can lead to proceedings becoming an abuse of process.


In Haikel v General Medical Council [2002] All ER (D) 99 (Jul), the Privy Council had to consider the impact of Article 6 and the common law in the context of GMC disciplinary proceedings. The GMC’s Professional Conduct Committee (“PCC”) had found a registered general practitioner guilty of serious professional misconduct following allegations that he had conducted clinically inappropriate intimate examinations of a number of female patients, and the PCC ordered his name to be erased from the register.

An appeal was launched on various grounds including in relation to delay. The first allegation by the GMC against the doctor concerned an incident in autumn 1988 and the charges also included further incidents over a four year period. The initial complaint to the GMC was made by the practice nurse in December 1996 and was followed up by a letter of complaint from the Health Authority to the GMC in July 1999. The Health Authority’s letter was then drawn to the doctor’s attention by the GMC in a letter dated 23 September 1999. Charges were served on 5 June 2001 and the hearing began on 19 July 2001.

When does time begin to run?

In order to determine whether there had been a breach of the right to a hearing within a reasonable time, the Privy Council first sought to identify the relevant period of time over which the protection of Article 6(1) applied. Article 6(1) is concerned only with procedural delay and not the passage of time between the conduct in question and the commencement of proceedings. Therefore, in civil cases, time begins to run from the initiation of proceedings (see Guincho v Portugal (1994) EHRR 223) and continues throughout the entire proceedings. In a solicitors’ case, the Strasbourg Court has held that time runs from the date of the bringing of charges (Brown v UK (38644/1997, judgment 24/11/1998). In that case, the Solicitors Complaints Bureau had entered into correspondence with the applicant in 1990 in relation to the conduct in question but the Court held that time did not begin to run until November 1995 when proceedings were issued for professional misconduct.

In Haikel, Sir Phillip Otton said that the “period for consideration is the time during which the administrative and judicial authorities were dealing with the case”. It was agreed between the parties that the relevant period was the time between the GMC’s letter to the practitioner (23 September 1999), which outlined in general terms the nature of the allegations, and the hearing itself (19 July 2001), i.e. twenty-one months.

Is the period of time reasonable?

Having determined the duration of the period, it is then necessary for the court to assess whether this period is itself unreasonable. The test is whether proceedings have been completed in a reasonable time, not whether they could have been completed sooner (Eckle v Germany (1983) 5 EHRR 1). The factors which the Strasbourg Court will consider are (i) the complexity of the case; (ii) the conduct of the applicant and the authorities; (iii) the behaviour of any other parties to the case; and (iv) what was at stake in the case for the applicant.

Disciplinary proceedings against an accountant which lasted 11 years from the initiation of proceedings were found to constitute an unreasonable delay (Luksch v Austria, Case 37075/97, judgment 13/12/2001). Similarly, disqualification proceedings against a company director lasting approximately five and a half years were very recently held to have violated the reasonable time requirement, even though some of the delay was attributable to the conduct of the accused (Davies v UK, Case 42007/98, judgment 16/07/2002). By contrast, periods of delay which have not amounted to a violation include around eighteen months in administrative proceedings (Lechner and Hess v Austria (Case 9316/81, judgment 23/04/1987) and twenty months in relation to criminal proceedings in Procurator Fiscal, Linlithgow v Watson and Burrows [2002] UKPC D1.

As stated in Watson and Burrows, prejudice is not a specific factor in relation to Article 6, but it may be a relevant consideration because it “lies at the very heart of the article”. On the facts of Haikel, the Privy Council was not persuaded that the reasonable time requirement had been violated by the period of twenty-one months’ delay. Therefore, it was not necessary to consider the various criteria applicable to Article 6(1), such as the conduct of each party in contributing to the delay.

Common law abuse of process

In addition to Article 6, a tribunal may stay proceedings under the common law on the ground its process is being abused. Unlike the position under Article 6, the entirety of the period from when the events arose to the conclusion of the proceedings can be taken into account. However, the person alleging abuse will need to show prejudice. Where the length of time elapsed is due to some unjustifiable act or omission on the part of the authority and the accused can show on the balance of probabilities that he has been or will be prejudiced then abuse of process should be found. Also, when the period of delay is particularly long it can be legitimate to infer prejudice without proof of specific prejudice.

Practical Implications

The Privy Council’s decision in Haikel shows that there is some uncertainty about the point when time begins to run for the purposes of the reasonable time requirement in Article 6. In particular, it is not clear that the Privy Council considered Brown v UK where time began running from the laying of charges. However, regardless of when time begins to run, the simple practical answer for regulators is to progress proceedings as quickly as possible, within the confines of the proper administration of justice.

Finally, where delay occurs and a breach of the right to a determination within a reasonable time is found, a tribunal may stay or quash proceedings; but alternatively it could reduce the sanction imposed upon the accused as in the recent criminal case of Mills v HM Advocate & anr [2002] UKPC D2 where the Privy Council confirmed a nine-month reduction in a prison sentence.

© Herbert Smith 2002

The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

For more information on this or other Herbert Smith publications, please email us.

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