In R (on the application of Fleurose) v. Securities and Futures Authority Ltd [2001] All ER (D) 361 (Dec) the Court of Appeal affirmed a decision of the administrative court that disciplinary proceedings of the SFA had not infringed the appellant’s right to a fair trial under Article 6 of the European Convention on Human Rights ("the ECHR"). The case is important particularly in relation to whether offences are "criminal" rather than "civil" for the purposes of the ECHR; the former guaranteeing more extensive rights to defendants.
The Court of Appeal approved the test adopted in the recent case of Han & Yau v. Customs and Excise Commissioners [2001] 1 WLR 2253 to determine whether proceedings are criminal for the purpose of the ECHR. The first criteria is how the allegation is classified in domestic law. However, even if the "allegation" is not classified as criminal this is not decisive and the court should also have regard to the nature of the "allegation" and the severity of the penalty. Where the offence is restricted in its application to a specific group, which is generally the case in relation to disciplinary "matters", the court will not usually classify the "matter" as criminal unless it involves or may lead to loss of liberty. The court was not persuaded by the argument put forward on behalf of the appellant that, although he was a member of the SFA, he was not in a specific group. Accordingly even the prospect of unlimited fines was insufficient to convince the court that the SFA proceedings against the appellant involved a criminal charge or offence.
Based on the conclusion that the proceedings were not criminal, statements made by the appellant to the London Stock Exchange during their investigation of his employer were held to be admissible in evidence against him. The court also had regard to the fact that neither the appellant nor his counsel had raised any objection during the disciplinary tribunal or appeal tribunal hearings and he was under no legal obligation to answer the questions put by the London Stock Exchange.
© Herbert Smith 2002
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