DAVID PREISS v GENERAL DENTAL COUNCIL (2001)
[2001] UKPC 36

Rosalind English

SUMMARY

The appellant argued that his hearing before the Professional Conduct Committee of the GDC offended against the requirements of independence and impartiality in Article 6. He had been suspended from practice for 12 months following a determination of serious professional misconduct by the PCC. He contended that Article 6 and/or natural justice had been breached by the appearance of the respondent's president on the chair of the PCC, since the same President had acted as preliminary screener. He also raised complaints about his lack of opportunity to mitigate and the severity of the penalty imposed.

Held: The dual role of the president gave an appearance and a real danger that the PCC lacked the necessary independence and impartiality. Only the fact that there had been a full hearing of this appeal before the Board saved the day, in this case, although the penalty was disproportionate.

COMMENT (October 2001)

Although the hearing that was the subject of the Article 6 European Convention on Human Rights challenge (the Professional Conduct Committee) did not take place before the Convention came into operation in this country, the appellant was able to rely on the retrospective provisions in s.22(4) of the Human Rights Act 1998. The appellant thus achieved a significant victory not only for himself but an important landmark in the march of Article 6 across domestic appellate systems. To persuade the Board to undertake such a complete rehearing would have been an impossible goal in litigation before the advent of the Act, and it remains to be seen to what extent other appellate courts are prepared to follow the Privy Council's lead in a range of different areas of the law. For example, their Lordships hinted at the possibility that even if the final appeal hearing was such as to redress the due process shortcomings of all the previous links in the chain, so that the proceedings as a whole satisfied Article 6(1), this may not be the end of the story. "A disciplinary system in which a hearing satisfying Article 6(1) could be secured only by going as far as the Privy Council could not be commended."

 So, it might be argued by a disappointed litigant that the delay, expense and emotional energy involved in waiting for his or her case to be heard on appeal meant that the proceedings as a whole remained unfair in Article 6 terms, even though the appeal hearing itself eventually satisfied all the due process requirements expressed or implied in that Article. This may be a somewhat far-fetched scenario, but the Privy Council has certainly opened the door to this kind of challenge, particularly when they refer to the "risk of unpredictable circumstances where even a full Privy Council rehearing is not enough".

In its enthusiasm to comply with the reading down obligations under s.3 of the Act, the Privy Council has arguably gone further even than the Strasbourg Court in its interpretation of Article 6. In Bryan v United Kingdom that Court held that the cumulative effect of proceedings in the context of planning complied with Article 6, even if some of the constituent elements of those proceedings did not. In a case similar in many respects to the present one, Stefan v United Kingdom (1997) 25 EHRR CD 130, the European Commission of Human Rights rejected a complaint relating to proceedings before the Health Committee of the General Medical Council as inadmissible because the jurisdiction of the Privy Council, although confined to questions of law, provided a sufficient safeguard in the particular circumstances. Now it seems that neither of these authorities are conclusive as the Privy Council (which is not binding, but persuasive) appears to be saying that each case has to be examined on its own individual facts before it can be said that a final appeal hearing renders the proceedings cumulatively unfair.

[e]