Duty to Give Clear Reasons When a Disciplinary Decision-Maker Departs from an Investigating Committee’s Findings

Court: Outer House, Court of Session

Judge: Lord Colbeck

Citation: Petition of Andrew Smith KC for Judicial Review [2026] CSOH 53

Decision under review: Decision of the Disciplinary Tribunal of the Faculty of Advocates dated 18 July 2025

1. Introduction

This judicial review concerned disciplinary proceedings within the Faculty of Advocates arising from complaints made by a litigation opponent (the complainer) against a senior advocate (the petitioner). The core allegation was that the petitioner acted for two clients (“Mr A” and “Mr B”) despite a “close personal involvement” in their business affairs, said to undermine independence and create (or evidence) a conflict of interest.

The disciplinary pathway was lengthy and multi-staged: the Scottish Legal Complaints Commission (“SLCC”) remitted complaints to the Faculty; the Faculty’s Complaints Committee upheld the key complaints and imposed a severe written censure; and the Disciplinary Tribunal largely refused the petitioner’s appeal (allowing it only in respect of one complaint). The petitioner sought reduction of the Tribunal’s decision and declarator of an Article 6(1) ECHR “reasonable time” breach.

The case is important for two distinct reasons: (i) it clarifies the intensity of reasons required when a disciplinary decision-maker departs from an investigating committee’s findings on a crucial factual issue, and (ii) it addresses when the “reasonable time” clock starts where earlier time is attributable to a different body and an appeal process intervenes.

2. Summary of the Judgment

  • Reduction granted: Lord Colbeck reduced the Disciplinary Tribunal’s decision of 18 July 2025. The Tribunal’s decision could not stand because it failed to deal with a well-founded submission: that the Complaints Committee departed from the Investigating Committee’s key factual finding (about a pivotal email) without explaining why, and that such an unexplained departure—given the applicable “benefit of reasonable doubt”—undermined the sustainability of complaint 5.
  • Complaint 10 fell with complaint 5: Because the reasoning on complaint 10 was materially coloured by the stance on complaint 5, the Tribunal’s decision on complaint 10 also could not stand.
  • Article 6(1) rejected on the merits: There was no breach of the reasonable time requirement. The relevant start date was not the SLCC’s earlier remit date; it was when the Inner House determined which complaints should be investigated by the Faculty and the matter was remitted afresh to it. On the facts, there were no unjustified periods of stagnation.
  • Declarator competent (not academic): The declarator sought on delay served a practical purpose (it could support reduction), so it was not refused as merely academic—although it failed on substance.
  • Sanction observations: Had the petitioner failed on complaints 5 and 10, the court would not have interfered with the professional misconduct finding or sanction, emphasising deference to professional evaluative judgments (per Hood v Council of the Law Society of Scotland 2017 SC 386).

3. Analysis

3.1 Precedents Cited

The opinion draws on administrative law and Article 6 jurisprudence to frame both the standard of review and the requirements of fairness and reasons.

(a) The judicial review standard and reasons

  • Hood v Council of the Law Society of Scotland 2017 SC 386: Cited for the restrained basis on which the court may interfere with professional disciplinary decisions (error of law; unsupported findings; fundamental approach error; or a decision no reasonable tribunal could reach). Lord Colbeck also later relied on Hood to emphasise deference where the tribunal is performing an evaluative exercise on professional conduct.
  • Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345: The classic Scottish formulation of Wednesbury-type unreasonableness and the duty to give intelligible reasons sufficient to avoid leaving the informed reader in substantial doubt as to why the decision was reached. The case was invoked by both parties: the petitioner as a defects-in-reasoning template; the respondent to argue the Complaints Committee’s reasoning met the standard.
  • British Broadcasting Corporation v Chair of the Scottish Child Abuse Inquiry 2022 SC 184: Used to reinforce that the court should not substitute its own view but ask whether the decision fell within a range of reasonable responses.
  • Allen v Secretary of State for Communities and Local Government [2016] EWCA Civ 767: This was pivotal. Lord Colbeck applied it for the proposition that where a decision-maker does not follow a recommendation in a report to it, it must “fully and clearly” state why it disagreed. In this case, the unexplained divergence from the Investigating Committee’s finding on the crucial email was treated as a legal error undermining complaint 5.
  • R (Doody) v Secretary of State for the Home Department [1994] 1 AC 531: Relied on by the respondent to stress the limited nature of any general duty to give reasons and that “gist” notice can suffice. Lord Colbeck did not treat Doody as displacing the specific need for reasons where the decision-maker departs from an earlier fact-finding/recommendatory report on a decisive issue.
  • Local Government Board v Arlidge [1915] AC 120: Cited by the respondent as an expression of the minimum core of procedural fairness (opportunity to be heard; unbiased tribunal).
  • Paton, petitioner [2019] CSOH 62 and Gray v Braid Logistics (UK) Ltd 2015 SC 222: Raised in the competency debate. The respondent argued the petition impermissibly attacked both the Complaints Committee and the Tribunal. Lord Colbeck accepted the orthodox position that only the final decision is directly reviewable (Paton, petitioner), but held the petitioner’s criticisms of earlier stages were legitimately deployed to show error in the final Tribunal decision.
  • Wightman v Secretary of State for Exiting the European Union 2019 SC 111: Invoked to argue the Article 6 declarator was academic. Lord Colbeck distinguished this, holding the declarator would have practical effect (capable of leading to reduction), so it was not merely hypothetical.
  • City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33: Cited by the respondent for the proposition that weight is for the decision-maker (subject to extreme irrationality).

(b) Article 6 and disciplinary proceedings

  • Pine v Law Society (No 1) [2002] UKHRR 81 and Sutherland-Fisher v Law Society of Scotland 2003 SC 562: Cited for Article 6 applicability to professional disciplinary bodies exercising public functions.
  • O'Connor v Bar Standards Board [2017] 1 WLR 4833: Cited to support that such regulatory bodies can fall within section 6(3) of the Human Rights Act 1998 when performing regulatory/disciplinary functions.
  • General Medical Council v Pembrey [2002] EWHC 1602 (Admin): Relied on by the petitioner for the proposition that time starts when the professional is notified by the competent authority of the allegation. Lord Colbeck accepted the general framework but rejected the petitioner’s proposed start date because the Faculty bore no responsibility for the period while the SLCC decision was under appeal.
  • Dyer v Watson 2002 SC (PC) 89: Applied for the high threshold for establishing a reasonable time breach and the need to assess the facts and circumstances in detail.
  • Spiers v Ruddy 2009 SC (PC) 1: Mentioned by the petitioner for the proposition that prejudice need not be shown; however, Lord Colbeck’s analysis ultimately turned on explanation/justification and absence of stagnation.
  • Comingersoll S.A. v Portugal, Case 35382/97 and Beaumartin v France, Case 15287/89: Raised by the respondent as Strasbourg guidance: reasonableness depends on complexity, conduct of parties, and what is at stake, with focus on unexplained periods of stagnation. Lord Colbeck’s conclusion aligned with this “stagnation” approach.
  • Albert and Le Compte v Belgium (1983) 5 EHRR 533, Tehrani v United Kingdom Central Council for Nursing, Midwifery and Health Visiting 2001 SC 581, R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295, Ramos Nunes de Carvalho e Sá v Portugal (Application Nos 55391/13, 57728/13 and 74041/13) (unreported) 6 November 2018, and U3 v Secretary of State for the Home Department [2025] AC 1510: These authorities were deployed in argument about whether availability of judicial review can satisfy Article 6 where the initial disciplinary process is not fully Article 6-compliant. Lord Colbeck did not need to determine this broader issue because he addressed only the pleaded “reasonable time” complaint and rejected it on the facts.

3.2 Legal Reasoning

(a) The decisive flaw: unexplained departure from the Investigating Committee on a crucial fact (complaint 5)

The Investigating Committee produced a substantial report supportive of the petitioner, including a finding that communications with the liquidator (including the 31 January 2015 email) were conducted actually and ostensibly as counsel for Mr A and Mr B, notwithstanding first-person plural language. The Complaints Committee, by contrast, treated the 31 January 2015 email as yielding an “overall impression” of commonality of interest supporting “close personal involvement”.

Lord Colbeck held that while the Complaints Committee was not legally bound by the Investigating Committee’s findings, an unexplained divergence on a crucial issue was not acceptable. Applying Allen v Secretary of State for Communities and Local Government [2016] EWCA Civ 767, the judge stated that where the final decision does not accord with a recommendation/report to the decision-maker, the decision-maker must “fully and clearly” state why it disagreed.

Two features intensified the error:

  • Centrality: The meaning and effect of the 31 January 2015 email was foundational to the “close personal involvement” narrative.
  • Standard of proof / benefit of doubt: The Complaints Committee had acknowledged rule 69 of the Faculty of Advocates Disciplinary Rules 2015 (benefit of reasonable doubt to the member). An unexplained divergence from a competing committee’s view on the same document could itself indicate (at least) reasonable doubt.

The Disciplinary Tribunal’s legal error lay not in endorsing the Complaints Committee’s power to reach its own view, but in failing to grapple with the petitioner’s “alternative submission”: that if the Complaints Committee rejected the Investigating Committee’s key conclusion, it needed to say why, and the Tribunal needed to confront that absence. This omission was sufficiently material that the Tribunal’s decision on complaint 5 “cannot stand”.

(b) Consequential collapse: complaint 10

Lord Colbeck held that, given his conclusion on complaint 5, the Tribunal’s decision on complaint 10 also could not stand. The Tribunal itself treated the additional “context” facts for complaint 10 as “not suggested as being worthy of blame in themselves”, implying the gravity and colouring came from the earlier conduct (particularly the email episode).

Lord Colbeck also signalled an additional analytical weakness: complaint 10’s wording suggested it required identification of a conflict of interest distinct from “close personal involvement”, yet the Complaints Committee had not clearly identified such a conflict and the Tribunal did not address that point.

(c) Jurisdiction issue left undecided

The petitioner advanced an important structural argument: that under the 2015 Rules the Tribunal on appeal required to reconsider merits (effectively de novo), and had wrongly confined itself to a legality review. Lord Colbeck did not determine this, because the petition succeeded on a narrower ground (error in handling the unexplained departure point).

Practically, the judgment therefore does not finally settle the construction dispute about the Tribunal’s appellate jurisdiction under the 2015 Rules; it instead demonstrates that even on a more deferential approach, a Tribunal must address material submissions about reasons and fairness.

(d) Article 6(1) “reasonable time”: start date and no breach

Lord Colbeck rejected the petitioner’s suggested start date of 28 June 2019 (the SLCC acceptance/remit date) because the petitioner appealed the SLCC decision and the Faculty had no responsibility for the period until the Inner House determined, on 29 April 2020, which complaints should proceed for Faculty investigation (following AS v Scottish Legal Complaints Commission 2020 SC 443).

On the reasonableness of the overall duration thereafter, the court accepted:

  • the factual and procedural complexity (multiple litigations, large documentary record);
  • the justificatory value of a remit to an Investigating Committee to clarify factual background and provide fair notice;
  • the absence of long unexplained periods of stagnation; and
  • that the appeal stage to the Tribunal was “unremarkable” in length.

The reasonable-time breach was therefore not established.

3.3 Impact

(a) Disciplinary decision-making: reasons when departing from an investigative report

The most significant practical effect is the reinforcement of a reasons discipline in professional regulation: where a disciplinary decision-maker rejects a prior investigative committee’s finding on a decisive issue (especially one rooted in the interpretation of a key document), it should articulate why. This is not a mere stylistic preference; it is treated as legally material to whether the outcome can stand.

(b) Appellate tribunal obligations: engage with “missing reasons” submissions

The judgment underscores that an appellate disciplinary tribunal cannot simply say “the first instance committee was entitled to draw inferences” if a core submission is that the first instance body failed to explain a crucial divergence from the investigative fact-finding. A failure to address that submission can itself vitiate the appellate decision.

(c) Article 6 timing: responsibility-based start date in multi-body complaint pathways

For “reasonable time” challenges, the opinion indicates a pragmatic, responsibility-based start date where time is spent in an earlier stage under a different body’s control, especially where the professional successfully appeals the earlier stage and the matter is remitted “afresh”. This may make it harder to attribute systemic delay to the professional body for periods when it had no procedural control.

(d) Remedies and competency: declarator not necessarily “academic”

The court’s refusal to characterise the Article 6 declarator as academic is notable in judicial review practice. Where a declarator can have a concrete remedial consequence (here, potentially supporting reduction), the court may treat it as serving a practical purpose even if the main remedy is reduction.

4. Complex Concepts Simplified

“Reduction”
A Scottish judicial review remedy that sets aside (quashes) the impugned decision, as if it had not been made. Here, reduction of the Tribunal’s decision re-opens the disciplinary outcome at the final stage.
“Reasonable doubt” / benefit of doubt in disciplinary findings
Under the disciplinary rules applied (rule 69 of the 2015 Rules, as referenced), if evidence leaves a reasonable doubt about whether misconduct is proved, the member should receive the benefit of that doubt. This heightens the importance of explaining why one factual view is preferred over another where both are plausibly available.
Investigating Committee vs Complaints Committee vs Disciplinary Tribunal
The Investigating Committee investigates and reports; it does not determine guilt. The Complaints Committee determines complaints and can impose sanctions. The Disciplinary Tribunal may act either as a first-instance tribunal (on remit) or as an appeal body (reviewing a Complaints Committee decision). This case shows that, even if the Complaints Committee is not bound by the Investigating Committee’s view, it must still rationally explain decisive departures.
Article 6(1) “reasonable time”
A fairness guarantee requiring civil rights and obligations to be determined without undue delay. The court assesses complexity, party conduct, what is at stake, and—critically—whether there are long unexplained periods where the case effectively went dormant.

5. Conclusion

Lord Colbeck’s decision reduces the Disciplinary Tribunal’s refusal of the petitioner’s appeal because the Tribunal failed to address a decisive legal point: the Complaints Committee’s unexplained departure from the Investigating Committee’s key finding on the meaning and significance of a crucial email underpinning complaint 5. With complaint 5 undermined, complaint 10 could not safely stand either.

Although the court rejected the Article 6 reasonable-time challenge—both by adopting a later start date and by finding the elapsed time justified—the case establishes an important administrative law constraint in disciplinary systems: when an ultimate decision-maker departs from an investigative report on a crucial matter, clear and full reasons are required, and an appellate tribunal must squarely engage with that failure.