Tuesday, 2 November 2010

A New Legal Ombudsman by Alexander Winterton and Dr Helen Bright

From 6th of October 2010 UK has a new Legal Ombudsman. Alan Sampson is Chief Ombudsman who will on 24th November 2010 answer online your questions as how this new body will function.

Their telephone number is 03005550333.

The Office of Legal Services Ombudsman (tel: 0161 839 7262) is closing down. They used to take up complaints against Solicitors Regulation Authority, for example, when a complaint against a solicitor was rejected.

Contrary, to some peoples expectations (and confirmed to D4J by the Ombudsman Office) the advice provided by The Office of Legal Service Ombudsman were not legally binding on Solicitors Regulation Authority, and it is of interest, when SRA did take up the complaints that went to The Office of Legal Services Ombudsman. We know of at least one malicious complaint made to SRA and The Office of Legal Service Ombudsman. A complaint against a solicitor was initially rejected by SRA and following the decision by The Office of Legal Service Ombudsman and a change in leadership of SRA, the malicious complaint was accepted only to be rejected again by Solicitors Disciplinary Tribunal.

D4J have researched this point and it is interesting to note that the Ombudsman doesn’t appear to know the extent of its own powers - a worrying issue for any consumer using them as a body of last resort to deal with complaints. Section 49(2) of the Access to Justice Act 1999 specifically provided powers for the Ombudsman to make Orders by inserting a section 2A into the Courts & Legal Services Act 1990 as follows:

“(2A) If after completing any investigation under this Act the

Ombudsman considers that, rather than recommending the taking of any action by any person or professional body under paragraph (c), (d) or (e) of subsection (2), he should make an order requiring the taking of that action by the person or body

(a) he shall afford the person or body, and the person who

made the allegation, a reasonable opportunity of

appearing before him to make representations; and

(b) having considered any representations from them, he may,

in reporting his conclusions, make the order.”

Malicious complaints were made by a doctor who was expert witness for a solicitor but changed his tune when asked to act as a joint witness. She complained about him to The General Medical Council and he took successful revenge against her at SRA. Even though she was found innocent the pain of professional investigation by regulatory body should never be underestimated.

SRA remains free from obligations under Freedom of Information Act (due to the fact that it operates as a sub-committee and does not [unlike for example the GMC] have its own separate legal status) and hangs onto any evidence that shows weakness in the thinking of the prosecuting lawyers working at SRA. One would expect regulatory bodies to co-operate in extinguishing professional misconduct, but what gets in the way is the personal pride and conflict of interests.

Police have also colluded in cover ups of perjury (stating in writing that the SRA could not commit a criminal offence!) and can be easily influenced by the solicitors working for SRA, no doubt as a result of the Memorandum of Understanding entered into by it & the Law Society and that the Metropolitan Police's Director of Legal Services, Edward Solomons, is also on the SRA's board. That's a serious conflict of interest.

As a simple matter of law one must question how such appointments sits with the Police Conduct Regulations requiring them to avoid being beholden to any institution -

“1. It is of paramount importance that the public has faith in the honesty and integrity of police officers. Officers should therefore be open and truthful in their dealings; avoid being improperly beholden to any person or institution; and discharge their duties with integrity.” Schedule 1 - The Police (Conduct) Regulations 2004 Statutory Instrument 2004 No 645.

At present members of one tribunal also sit at another regulatory body and the fixing of panels has become legendary. The Courts have dodged this issue of independence and fair trial by concluding if you could appeal to the High Court then your rights under Article 6 to a fair trial have not been breached. However this misses the point. In the 21st Century we have a right and expectation to believe that tribunals should be fair and independent especially when they publish their findings to the public at large, in one single blow ruining the excellent reputation of those honest doctors in their patient community.

So where to go? The Independent Police Complaints Commission is effective and free. Where allegations are not properly or consistently investigated, the law-enforcement authorities run the risk of sowing the seeds for a cycle of impunity for perpetrators of inhuman treatment. Where such impunity exists, an administrative practice or policy of toleration of violations of Article 3 could be said to exist. In the first in a series of cases from Northern Ireland in the 1970s, individuals had claimed that they were not only victims of individual acts of torture, but that they were victims of a practice in violation of the Convention. Donnelly and others v. the United Kingdom, 4 DR 4.The elements that constitute a practice are repetition of acts and official tolerance. Repetition of acts means a substantial number of acts which are the expression of a general situation. Official tolerance means that, though acts are clearly illegal, they are tolerated in the sense that the superiors of those immediately responsible, though cognisant of such acts, take no action to punish them or to prevent their repetition; or that a higher authority, in the face of numerous allegations, manifests indifference by refusing any adequate investigation of their truth or falsity; or that in judicial Proceedings a fair hearing of such complaints is denied. - Greek case, Report, pp. 195- 196.

Articles 1 and 3 of the Convention place a number of positive obligations on states designed to prevent, and provide redress for, torture and other forms of ill-treatment. In Assenov and Others v. Bulgaria the Court held that where an individual raises an arguable claim that he has been seriously ill-treated by the police or other agents of the state unlawfully and in breach of Article 3, that provision, read in conjunction with the state’s general duty under Article 1of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in…[the] Convention”, requires that there should be an effective official investigation. The investigation should be capable of leading to the identification and punishment of those responsible. So we conclude that the Police are the only real independent organ of state to investigate. Next stop ECHR ….

No comments: