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On 6 December 2017, the Supreme Court unanimously allowed the appeal in O’Connor v Barheadshot Standards Board [2017] UKSC 78. Lord Lloyd-Jones (with whom Lady Hale, Lord Kerr, Lord Wilson and Lady Black agreed) determined that disciplinary proceedings brought against the appellant by the Bar Standards Board (the “BSB”) were a continuing act that concluded within the limitation period under s 7(5)(a) of the Human Rights Act 1998 (“the 1998 Act”).

BACKGROUND

The appellant is a practising barrister and is black. She alleges that the respondent, the BSB, discriminated against her on grounds of race by bringing disciplinary proceedings against her. On 23 May 2011, the Disciplinary Tribunal found five of the charges proved. However, she was acquitted of the charges on appeal to the Visitors of the Inns of Court (“the Visitors”) on 17 August 2012.

The appellant issued the present proceedings on 21 February 2013, alleging that the BSB violated the ECHR, art 14, read with art 6. The BSB argued that the claim was time-barred under s 7(5)(a) of the 1998 Act which provides that proceedings must be brought within one year from the date on which the act complained of took place. The BSB succeeded in an application to strike out the claim.

On 18 December 2014, Warby J upheld the strike out determination. Although there was a sufficiently pleaded case of indirect discrimination, the claim was time barred under s 7(5)(a).

The Court of Appeal ([2016] EWCA Civ 775) upheld the decision of the High Court, finding that the limitation period had expired as it started to run when the Disciplinary Tribunal found the charges against the appellant proved. Permission to appeal was granted in respect of the limitation issue and the BSB cross-appealed contending that Warby J erred in holding that the art 14 claim had a real prospect of success.

SUPREME COURT JUDGMENT

s 7(5)(a): A series of acts or a single act?

The Court considered that the provision should not be read narrowly and should be capable of providing an effective and workable rule for situations where the infringement arises from a course of conduct [23].

The essence of the complaint here was the series of steps involved in the bringing of disciplinary proceedings by the BSB, i.e. the entirety of the course of conduct as opposed to any component steps. Were it otherwise, a claimant would be placed in the difficult position of having to bring a human rights claim within one year of the commencement of what might be lengthy proceedings, without knowing the outcome which might be very material to the claim [29].

When did the continuing act cease?

Under s 7(5)(a), time begins to run from the date when the continuing act ceased [30]. In determining when the proceedings against the appellant ceased, the Court considered the regulatory scheme and features of the Visitors’ jurisdiction such as their supervisory powers and the finality of their determinations [35]. The Court concluded that the conduct of the BSB in bringing and pursuing the disciplinary proceedings was, for the purposes of s 7(5)(a), a single continuing act which continued until the Visitors allowed the appeal on 17 August 2012 [38].

Indirect discrimination

It was adventitious that the BSB’s cross-appeal was before the court, as it would not have satisfied the second appeals test [42].

The appellant relied upon a 2013 report showing that (i) BME barristers were disproportionately over-represented in the complaints process in relation to the outcomes of external complaints; (ii) BME barristers were more likely to have a complaint referred to disciplinary action; and (iii) BME barristers were more likely to have complaints upheld [43].

The appellant was entitled to rely on this evidence, in conjunction with the unhappy history of the proceedings against her, as supporting her case that she had been the victim of indirect discrimination. The ECtHR had made clear that indirect discrimination can be proved without statistical evidence [43].

COMMENT

Approach to limitation

The Court’s sensible approach to the construction of s 7(5)(a) ensures that a claimant does not have to rely solely on the discretionary remedy available in s 7(5)(b) of the 1998 Act. The Court’s willingness to ensure that s 7(5)(a) provides an effective and workable rule means that claimants will be in a much clearer position where an alleged infringement arises from a course of conduct.

Criminal prosecutions

Lord Lloyd-Jones was careful to ensure that his approach was not influenced by an analogy with criminal prosecutions [34] and he did not express any view as to whether the same conclusion should be drawn in relation to an appeal against a criminal conviction [36]. However, the concern that a claimant would be placed in the difficult position of having to bring a human rights claim within one year of the commencement of what might be lengthy proceedings also applies to criminal prosecutions. Similarly, despite the relevance of the specific regulatory context of the Visitors’ jurisdiction to the Court’s approach in this case, appeal courts in criminal proceedings have many of the same supervisory features. It is therefore likely that the same approach would be appropriate.

Indirect discrimination

As it was unclear from the appellant’s pleaded case, the Court had to consider whether the complaint was directed at this particular prosecution or at general systemic discrimination against BME barristers (see [15]). In this case it would have been prohibitively difficult to demonstrate that there was general systemic discrimination, particularly by relying on the statistics alone.

However, the Court usefully commented on the proper approach to statistics and indirect discrimination in light of the Strasbourg authorities. While it is clear that statistics are not required to bring a claim for indirect discrimination, claimants should plead carefully the precise nature of their discrimination claim. Unless the evidence is particularly striking, it will be more effective to rely on statistical evidence in support of an individual case, rather than statistics alone.