Janik, R (on the application of) v Standards Board for England [2007] EWHC 835 (Admin)

Case No CO/2853/2006[2007] EWHC 835 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 20th March 2007
Strand
London WC2
B E F O R E:
MR JUSTICE STANLEY BURNTON
Between
THE QUEEN ON THE APPLICATION OF JANIKClaimant-v-
Between
STANDARDS BOARD FOR ENGLANDDefendantTHE ADJUDICATION PANEL FOR ENGLANDInterested Party
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications CompanySmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
for The CLAIMANT did not attend and was not representedMISS G WARD (instructed by Standards Board for England) appeared on behalf of the DEFENDANTMR T COSGROVE (instructed by the Adjudication Panel for England) appeared on behalf of the INTERESTED PARTY
J U D G M E N T
[1]MR JUSTICE STANLEY BURNTON: This is a statutory appeal of Mr Paul Janik, a former councillor of Slough Borough Council, pursuant to section 79(15) of the Local Government Act 2000 against a decision of a Case Tribunal drawn from the Adjudication Panel for England dated 24th March 2006. The Tribunal found that he had breached the Council's Code of Conduct by failing to treat Council officers with respect and consideration, contrary to paragraph 2.1(b) of the Code, and secondly, by conducting himself in such a way as might reasonably bring his office or authority into disrepute. He also appeals the decision made by the Tribunal, on the basis of its findings of his misconduct, to disqualify him for one year.[2]Mr Janik is unrepresented in these proceedings. He has acted thus far in person. He did not appear today. The question therefore arose as to whether the court should adjourn the hearing of this appeal in order to give him a further opportunity to present his case on the appeal. I decided, for the reasons I shall give, to proceed with the hearing of the appeal.[3]The court has received no application for an adjournment of the appeal. An email was sent by Mr Janik to Natalie Birtle, who is a solicitor acting for the Standards Board for England, and copied to Karren Carter who is a solicitor for the Adjudication Panel for England, the interested party in these proceedings, stating that he was seeking a postponement of the hearing of his appeal against the decision which is the subject of the appeal because:
"(1) The entire situation is too stressful for me. (2) I am unable to prepare for the hearing because I am not a lawyer. (3) I am gravely disadvantaged by the absence of professional legal assistance. (4) To continue in these circumstances would be a breach by the United Kingdom of my right pursuant to the Council of Europe's European Convention for the Protection of Human Rights and Fundamental Freedoms, including the current Article 6 as amended by Protocol 11."
He also refers to the fact that he had recently received advice from the Department of Constitutional Affairs that he might qualify for Legal Aid because of the nature of his case despite it being a "so-called civil case". He said that he was going to ask the listing officer to delay the starting date for a period of three months. In fact, my enquiries elicited the fact that no application for an adjournment was made to the Administrative Court Office. Had it been made, I should have required some medical evidence as to the stress suffered by Mr Janik, having regard to the similarities, both as to content and timing, of this communication with events before the Tribunal itself.[4]So far as the reference to the need for legal assistance is concerned, had Mr Janik been here I should have accorded him every opportunity to deal with his case. Nothing in the documents I have seen have indicated that Mr Janik is inarticulate or unintelligent or unable to formulate or to present a case. I say that by reason of (and this is by way of example only) his own notice of appeal, which sets out his grounds of appeal, and by reference to the letter before claim which he was able to, and did, send to the Standards Board for England on or about 30th August 2005, documents which came into existence following his receipt only a very few days earlier of the draft report on his conduct which had been prepared as a result of the allegations made against him.[5]It is in some respects regrettable, but it is nonetheless the case, that it is commonplace for this court to have before it litigants in person. They are given, so far as possible, every assistance by court officers and by the court in presenting their case. Indeed, it is the duty of counsel appearing against litigants in person to draw to the attention of the court matters, including authorities and evidence, which may assist that litigant's case. I have no doubt that had Mr Janik appeared he could have presented his case more than adequately, assuming he was medically fit to do so. So far as his medical fitness is concerned, as I already said, there is no medical evidence before me. In those circumstances, bearing in mind what had occurred before the Tribunal, it seemed to me to be appropriate to proceed. It may be that Mr Janik will apply to have my judgment set aside. That is a matter which may be considered by another judge or by myself, but it will require some evidence of some inability on his part to appear coupled with an explanation for the fact that he made no application to the Court itself for an adjournment. That lies in the future.[6]I turn, therefore, to consider the issues raised by this appeal. The court is in a sense assisted by the very full decision of the Tribunal. I have read that decision carefully. It contains a full exposition of the findings of the Tribunal, which were based in substance, if not entirely, on documentary evidence before the Tribunal. I have also considered carefully the decision of the Tribunal to refuse an adjournment as sought by Mr Janik and its decision when he withdrew to proceed in his absence. Those decisions form part of the issues to be addressed on this appeal and, in my judgment, those issues are the most substantial of the issues which the Court has to address.[7]The question on an appeal of this kind is whether the facts before the Tribunal were such that the Tribunal should have adjourned in the interests of justice in order to permit Mr Janik to present his case before them in person or by representative, legal or not, so that justice was done, not only to the allegations made against him but to his case in relation to those allegations, having regard to the public interest in those allegations being adjudicated upon and a decision made during a reasonable time.[8]The course of events was as follows. At the end of September 2005 the Adjudication Panel informed Mr Janik that his case before the Tribunal -- that is to say its hearing of the allegations against him and his response to those allegations with a view to deciding whether they were well-founded and whether, if so, any, and if so what, decision should be made by reason of those findings -- was likely to be listed for hearing on 10th and 11th January 2006.[9]On 7th October 2005 Ms Carter on behalf of the Adjudication Panel wrote to Mr Janik confirming the location of the hearing and its dates; that is to say 10th and 11th January 2006. On 6th December 2005 Ms Carter sent to Mr Janik a set of case papers together with details. The letter reminded him of the dates which had been fixed for the hearing. On 5th January 2006 Mr Janik wrote to the Adjudication Panel requesting that the hearing be postponed for at least a month "due to my inability, through ill health, to participate in the proceedings". He said he had a doctor's note dated the 5th, presumably of January, specifying high blood pressure and stress, and he said he was due to have a further medical test on the day of the hearing. He did not say which day of the hearing was the day for the medical test. He said:
"My health and welfare has [sic] adversely been affected by the SBEs and APE's handling of the politically motivated (ie Labour Party supporters) complaints against me."
He asked to be contacted with details of the decision as to an adjournment.[10]On the following day, 6th January 2006, Ms Carter wrote to Mr Janik stating that the Chairwoman of the Tribunal had considered his request and had directed that he submit a copy of the medical note and appointment card by 12 noon on Friday 6th January and that once the documentation had been received the Tribunal would consider whether or not to adjourn. On the same day Mr Janik responded, saying he had faxed a copy of his doctor's note but was not able to fax a copy of the requested appointment card because the appointment had been made orally. He said:
"I reiterate I am being discriminated against by the conduct of the Standards Board and the Adjudication Panel and that discrimination is a breach of my Human Rights as stated in the protocols of the Council of Europe relating to the Convention for the Protection of Human Rights and Fundamental Freedoms."
[11]The doctor's note which was faxed was in the common statutory Form Med 3. It appears to have been dated 5th or 6th January -- that is to say to be contemporaneous with this exchange of correspondence -- and the doctor's statement simply said:
"Paul Janik, I examined you today/yesterday and advised you that you should refrain from work for two weeks. Diagnosis of disorder causing absence from work: stress/hypotension."
Following receipt of that doctor's note, the Chairwoman of the Tribunal decide to adjourn the hearing for one month. Mr Janik was notified of that on 6th January 2006 by Ms Carter. Her fax said:
"If a further adjournment is required on medical grounds you are asked to provide a medical report as to your condition and an opinion on whether or not you are fit to attend the hearing."
[12]On 19th January Ms Carter wrote to Mr Janik informing him that the adjourned hearing would take place on 23rd and 24th March 2006. Two months then passed without any communication from Mr Janik. On 13th March he sent an email to Ms Carter saying:
"I am formally requesting legal assistance, in the form of funding for and/or the services of an independent solicitor or barrister, to help me respond to the case against me created and pursued by those with unlimited access to public funds. Please respond as promptly as possible by email."
That was, of course, only 10 days before the upcoming hearing. There was no reference in that email to any disability or illness on the part of Mr Janik. Ms Carter responded on the same day by email dated 13th March 2006 pointing out that the Adjudication Panel was unable to provide legal advice or assistance, and indeed this is the case. The email stated:
"Members of Case Tribunals are well used to situations where one party is unrepresented. The Legal Chairmen in particular are used to seeking to ensure that an unrepresented party is not disadvantaged as a result of not being able to afford legal representation."
[13]On 22nd March 2006, that is to say the day before the first day fixed for the hearing of the case concerning Mr Janik, he again wrote to Ms Carter. He said that he was writing to inform the Panel that he was likely to be declared medically unfit to attend the hearing scheduled for the following day. He said he had a doctor's appointment that morning. The result of that consultation would be forwarded to the APE later that day with a covering letter from the doctor. He said:
"For the last 12 months I have been caused a great deal of unbearable stress as a result of the malicious and politically motivated complaints made against me."
He asserted that the complaints made against him had been made by a local supporter of the Labour Party and said in a paragraph numbered (5):
"My current medical problems include: (a) blurred vision; (b) persistent and severe headaches; (c) feeling exhausted but being unable to sleep for more than 4 hours a night; (d) high blood pressure."
He continued:
"The mental and emotional stress caused to me by the SBE's handling of the latest complaint against me, made in 2004, has probably reduced my life expectancy by 5 or more years. I have received absolutely no help or support from the SBE, from the local Council, from the APE or from the ODPM. Persecute Janik appears to be their objective."
Paragraph 7 of the email says as follows:
"The mental and emotional stress has prevented me from constructing even a simple defence to the circa 600 pages of complaints against me. I have glanced at a few and became instantly dismayed and stressed by the lies, falsehoods and distortions. Its a real work of art that shows the expertise, long practised on Council staff, of the chief author. (8) I have evidence seriously question the honesty, truthfulness and reliability of [a particular witness's] testimony."
[14]In paragraph 15 he asserted that there had been no recent complaints against him and therefore it was not an urgent matter to proceed with the hearing. In paragraph 16 he said that there were a very large number of people he wished to call as witnesses. Significantly, at paragraph 17 he said this:
"Despite all the severe pressures on me I continue to hold a weekly surgery for residents and do my daily best to deal with the problems residents continually bring to me."
He refers to the fact that only the night before he had to deal with a matter on behalf of a resident. He then asserted that he wished to have a fair hearing which was impossible because of his health and his lack of legal advice.[15]The Standards Board, having received a copy of Mr Janik's application for an adjournment, in an email of 22nd March 2006 expressed its concern by what it referred to as "a very late application for a further adjournment". The email pointed out that there was no medical evidence as yet, that there was a public interest in the proceedings against Mr Janik being resolved, and expressed concern as to the history of prevarication in the past of Mr Janik:
"Cllr Janik raises a number of points about preparation for the hearing. We note that Cllr Janik has not used the period either before or after the last adjournment to provide information which he refers to in his letter of 22nd March. Neither did he provide a written response to the Tribunal prior to listing. We also note that, despite agreement by the ESO to an extension of time to allow Cllr Janik to respond to the draft report, Cllr Janik failed to respond. We are concerned that there is a history of prevarication on the part of Cllr Janik. Clearly Cllr Janik has had months in which to put together a response. In terms of public funding, this is a matter he could have pursued over 5 months ago."
The email accepted that a decision whether or not to adjourn was a matter for the Tribunal but expressed readiness to proceed.[16]Having received Councillor Janik's communication, the Chairwoman of the Tribunal made the following directions which were communicated to Mr Janik by fax on 22nd March and emailed also:
"The Chairwoman notes that you are to seek a further doctor's letter to be presented tomorrow morning at the hearing. Please can you bear in mind that it is a medical report, not just a further letter that the Case Tribunal [is] seeking. Insofar as this report is however contained in a letter, it will need to deal with: (a) Councillor Janik's medical condition; (b) Whether this means Councillor Janik is medically unfit to attend the hearing and, if so what would be the medical consequences of his attending; (c) For how long this prognosis is likely to last; and (d) Whether there are any in conditions under which the hearing may go ahead tomorrow, that is, what the Case Tribunal may do to alleviate any stress."
That was followed by a further email communicating the Chairwoman's direction that an application for adjournment should be made before 3 pm on the 22nd with medical evidence.[17]Mr Janik responded with an email timed at one minute to 3 pm on the day before the hearing saying that he had faxed a copy of the sickness certificate which he had received from the doctor who had examined him that morning. The doctor had prescribed tranquillisers which she would expect would not begin to be properly effective for about two weeks, and there might be some side effects. He said:
"The doctor recommended I do not attempt to deal with the Standards Board complaint against me and I should take a complete break away from it because of the stress it is causing me. She thinks that if the lawyer does act for me it will reduce the considerable pressure I am experiencing. The doctor also recommends exercise . . . "
He said that he would contact the Tribunal again in two weeks to advise of his progress. The enclosure was a doctor's certificate in the same form as the previous; that is to say the normal statutory form used for statutory sick pay purposes. It simply said that the doctor had examined Mr Janik "today/yesterday" and advised him that he should refrain from work for two weeks and gave a diagnosis of stress.[18]A further email was sent at 5.02 pm by Mr Janik saying that he had spoken to the doctor who had given him the sick note indicating that he suffered from stress and would be providing him with a letter. It included the assertion that:
"The doctor stated to me that my holding surgeries for residents was therapeutic and it helped to reduce the severe stress I am suffering."
[19]Later that afternoon the Chairwoman decided to refuse the adjournment. Her decision referred to the correspondence that had been received and the medical note, and reminded Mr Janik that any further request for adjournment should be accompanied by a medical report as to his condition and an opinion whether or not he was fit to attend the hearing. As was rightly pointed out, there was no medical report, simply a statutory sick pay note. There was no medical opinion given as to whether or not he was fit to attend the hearing. The Chairwoman pointed out that stress is involved in all such hearings and if stress itself were to justify an adjournment it might be that the Tribunal would never be able to have a substantive hearing, and she referred to the public interest in the case being determined unless there were a good reason to adjourn.[20]Mr Janik's GP provided a letter on 23rd March 2006 which was faxed to the Tribunal, the text of which was emailed. It said:
"I can confirm as Mr Janik's GP that he attended the surgery on 22/3/06. He is suffering from a stress related disorder. The source of his stress is a forthcoming tribunal. The symptoms of his illness include headaches, sleep disorder and a lack of concentration which have led to an inability to prepare for this Tribunal. A Med 3 certificate has been issued. Yours faithfully."
In his email dated 23rd March 2006, timed at 10.46, Mr Janik stated that he would be returning to the doctor to see the GP and would seek to obtain another letter in the terms that had been requested by the Chairwoman in her communication of the previous afternoon.[21]The Tribunal decided to postpone its start of the hearing until 11 am rather than the normal 10.30 am to give Mr Janik an opportunity to attend. That decision was communicated to Mr Janik. That morning Mr Janik faxed another letter from his GP, the text of which was:
"This gentleman is unfit to attend today's Tribunal. Please refer to my earlier letter of today."
[22]The Tribunal had obviously invited Mr Janik to attend the hearing and had offered to pay for a taxi to enable him to get there. That offer was referred to in an email from Mr Janik on 23 March 2006. It said:
"I would like to avail myself of the Tribunal's invitation to attend the hearing. I understand they will pay for a taxi to take me to and from the hearing. I will attend if I am allowed to address the Tribunal on my arrival or very shortly afterwards."
He did so. The further letter from the GP is in the bundle of documents for this appeal.[23]Mr Janik did appear before the Tribunal. The question of the adjournment was canvassed. The Tribunal decided to continue. Mr Janik withdrew and the Tribunal then decided, notwithstanding his withdrawal, it would continue with the hearing. The Tribunal gave detailed reasons for its decision to refuse the adjournment and proceed in Mr Janik's absence. Those reasons consisted of 8 paragraphs which read as follows:
"(1) On 29th September 2005 the Adjudication Panel informed Councillor Janik that the case was listed for the 10th and 11th January 2006. Councillor Janik requested an adjournment on the 9th January 2006 on the basis of ill health. He produced a medical note stating that he should refrain from work for 2 weeks on account of stress. The Chairwoman issued a direction that the case be adjourned and that if the Councillor wished to request a further adjournment on this basis he should produce a 'medical report' and that this include an opinion whether he was fit to attend the hearing. The hearing was re-scheduled for the 23rd and 24th March 2006. (2) On the 22nd March 2006, again on the day before the hearing was scheduled to commence, Councillor Janik requested a further adjournment on the basis of ill health. He provided a statutory sick note from the doctor stating that he should refrain from work for 2 weeks on account of stress. The Chairwoman did not grant an adjournment on the grounds that this was not a medical report and that the doctor had not given an opinion that Councillor Janik was not fit to attend the hearing. She issued a further direction that any further communication from the doctor should contain the following information: (2.1) Detail of his medical condition; (2.2) Whether this meant that he was medically unfit to attend the hearing and if so, what would be the medical consequences of his attending; (2.3) For how long this diagnosis was likely to last; (2.4) Whether there were any conditions under which the hearing could go ahead, that is, what the Case Tribunal might do to alleviate any stress. (3) In the event, the Case Tribunal was provided with a letter from Councillor Janik's doctor on the morning of the hearing. The letter, which was extremely short, confirmed that the source of the stress was the forthcoming Tribunal and that his symptoms were 'headaches, sleep disorder and lack of concentration, which have led to an inability to prepare for this Tribunal'. On being asked by Councillor Janik to address the further information required as a result of the direction of the 6th March 2006, the doctor wrote a second letter. The Case Tribunal delayed the start of the hearing to allow for the letters to be obtained. In the event, the second letter was no more than two lines, stating 'This gentleman is unfit to attend today's Tribunal. Please refer to my earlier letter of today'. (4) The Case Tribunal further delayed the start of the hearing to allow for Councillor Janik to travel to the hearing. Councillor Janik attended the hearing in order to argue that it should not go ahead on grounds of health. He explained that the complaint had made him unwell with stress, that he had headaches and was unable to sleep. He submitted that he had not been well enough to even look at the documents since they were sent to him last year. (5) The representative of the ESO argued that the medical evidence was insufficient to warrant a further adjournment when balanced against the public interest in the case proceeding. She argued that there had been no diagnosis as such and no information as to prognosis. She submitted further that there was so much documentary evidence in this case, that it could almost be decided on the papers. (6) The Case Tribunal gave very careful consideration to its decision whether or not to proceed. On the one hand, it recognised that Councillor Janik had produced some medical evidence that he was not fit to attend the hearing. On the other however, the Case Tribunal took into account that despite the previous directions, the medical evidence did not adequately address the nature or severity of his condition and in particular the prognosis for how long this might continue. The significance of this was that, given the cause of the stress was the hearing itself, this raised the possibility that Councillor Janik would not for some significant period of time, or indeed ever, be fit to attend the hearing. The Case Tribunal had to take into account the public interest in this matter being resolved within a reasonable period of time. The matters under consideration dated back to 2003. There had already been extensive delays partly on account of the length of time the investigation had taken but also on account of the earlier adjournment. Further, the Case Tribunal had received representations both from the ESO and the Council that Councillor Janik was continuing in the course of conduct which had given rise to the current allegations, that is, that he was continuing to cause difficulty and upset amongst Council officers and thereby impede Council business. The Case Tribunal also took into account that Councillor Janik was continuing with his weekly surgery for residents such that he was able to carry out some of his Councillor related functions. (7) The Case Tribunal balanced the difficulties faced by Councillor Janik on account of the stress with the need for this matter to be resolved. It noted that resolution of the matter would be operative in ending the stress faced by Councillor Janik. The Case Tribunal took account of the fact that Councillor Janik had at no stage availed himself of the opportunity of responding to the allegations, either by way of written representations or interview with the Standards Board or by making a response to the reference. Councillor Janik had been notified of the first hearing dates on 29th September 2005. The Case Tribunal considered that, if he had been unable or unwilling to prepare for the hearing in the last six months, there was little likelihood that he would do so in any further adjournment. The Case Tribunal felt that, given the unusual circumstances leading up to this request for an adjournment, the public interest would not be served by any further delay. (8) Councillor Janik, on being told the hearing was to go ahead, was asked what support the Case Tribunal could give to assist him with the proceedings. Councillor Janik decided to leave. The Case Tribunal then considered whether to proceed in his absence. It decided that it would do so on the basis that it was not satisfied, having heard him in person and taking into account that he was continuing to carry out some of his Councillor related functions, that Councillor Janik was unable to present his own case and to remain at the hearing. The Case Tribunal took not of the fact that he had an extensive period of time within which to prepare and seek assistance and representation."
[24]The question then arises whether or not the Tribunal acted appropriately in the circumstances. In my judgment, in a case such as the present, the Tribunal was entitled to view Mr Janik's application on the basis that it required serious scrutiny. I say that because there had been no communication from him between January and March. If, during that time, he had been suffering from the kind of stress and the kind of symptoms to which he referred, one would have expected, first, that he would have been seeing his doctor about it; secondly, that he would have been prescribed something for it; and thirdly that he would have been in communication with the Tribunal in relation to any difficulty that was created. None of those things happened.[25]It is clear from the communications that I have seen that Mr Janik did not go to see his doctor between January, when there had been fixed the first date for the hearing, and March, the second dates fixed for this hearing. Secondly, he went to see the doctor immediately before the hearing date itself. Thirdly, it is apparent from his account of the symptoms that, other than possibly hypotension, there would be no, or at least very little, objective evidence on which a doctor could base a reliable diagnosis. That is to say his GP would have been reliant on Mr Janik's account of his symptoms.[26]Next, Mr Janik protested that he was unable to deal with the allegations against him, and indeed had not done so. But he had not done so for a very considerable time, including that period in 2005 when he had had the draft report concerning those allegations; yet he had never responded to them. However, at the same time he had been able to operate apparently effectively as a Councillor. He asserted that his surgeries had a therapeutic effect and he had been so told by the doctor, but the doctor herself did not so explain, and I have to say that I find some difficulty in reconciling his proclaimed incapacity so far as the allegations against him and the proceedings before the Tribunal are concerned with his ability to act as a Councillor.[27]Next, the Tribunal had the advantage of seeing Mr Janik in person before it on 23rd March and was able to form a view as to whether or not he could sensibly represent himself. Furthermore, one of the considerations which the Tribunal had to bear in mind was whether there would, given a reasonable time, be another date when Mr Janik would be fit to represent himself. But no prognosis was given, nor was there any real explanation as to why Mr Janik was incapable of representing himself or what damage to his health would result from his appearance; an appearance which of course he did in fact make on the 23rd.[28]One looks as those considerations in the light of the fact that the previous hearing had in fact been adjourned as a result of a last minute doctor's note and the complete lack of any written response on the part of Mr Janik to the substance of the complaints made against him. When I put all those matters together and consider the decision made by the Tribunal, it seems to me that it was one which was justified in the circumstances. I would go so far as to say that had I been the Tribunal on this occasion, I would have made the same decision, but it is not necessary for me to go so far. It is sufficient for me to say that the decision made by the Tribunal to refuse the adjournment and the decision which was almost bound to follow when Mr Janik took the decision to withdraw, that they would proceed in his absence, were decisions that they were entitled to make in the exceptional circumstances of this case. I make it clear that I approach the decision made by the Tribunal on the basis that, in normal circumstances, when a medical condition prevents a litigant from presenting his case, a Tribunal is bound to adjourn it, and strong facts are required before an adjournment is to be refused in such circumstances. But in my judgment these were such facts.[29]There are two other matters it seems to me that the Tribunal had a right to take into account in a deciding whether or not to adjourn the hearing in the absence of Mr Janik. The first is that, as I have already said, the material before the Tribunal (that is to say the evidence which was relied upon in support of the allegations made against Mr Janik) was almost entirely in writing, if not entirely in writing. This was not a case in which the outcome depended on questions of credibility, conflicts of evidence which could only fairly be resolved by hearing oral evidence on both sides with examination and cross-examination. This was very far from such a case.[30]Secondly, the Tribunal was informed that the kind of conduct which formed the substance of the allegations against Mr Janik was continuing. That added to the need to resolve the issues as soon as reasonably possible. I say added, because there is in any event, as I already indicated, a public interest in the resolution of this determination of allegations such as those which were involved in this case. Indeed, quite apart from the public interest I would have thought that Mr Janik had an interest in the resolution of the proceedings so as to relieve him of the source of stress which he asserted. I will leave that aside.[31]For those reasons, in addition to those which I referred to earlier, it seems to me that the decision made by the Tribunal was not only a justifiable one but, with respect, the appropriate decision and the right decision to make in the circumstances.[32]I turn, therefore, to consider the other contentions made by Mr Janik on which this appeal is based. Before I do so, perhaps I should add that having reached the conclusion I did on the question of adjournment and hearing in his absence as a matter of common law, it seems to me that reliance on Article 6 of the European Convention on Human Rights adds nothing, having regard to the fact that proceedings in the absence of a litigant are permissible where the proceedings are subject to Article 6, provided there is sufficient reason for proceeding in the absence of a party; and indeed there are circumstances in which serious criminal proceedings may be continued and determined in the absence of a defendant. So far as the reasons given by the Tribunal are concerned, they were, in my judgment, clearly adequate.[33]The second contention of Mr Janik is that the investigation by the Ethical Standards Officer into the allegations which were ultimately found to have been proved were so unfair as to lead to a biased hearing before the Tribunal. Having read the correspondence relating to that investigation, I have to say I have had some difficulty with understanding that it has any arguability or credibility at all.[34]On or before 21st April 2005 a telephone conversation took place between Fiona Morris, the investigator appointed by the Standards Board, and Mr Janik, the substance of which was confirmed in a letter of 21st April 2005. Ms Morris proposed to interview Mr Janik in relation to the allegations that had been made. She confirmed in her letter that Mr Janik had said that he was available for interview on Friday 13th May 2005. Ms Morris said that she was going to come to Slough with the Ethical Standards Officer to meet with him and discuss the allegations. She told him that the interview might take a number of hours due to the amount of evidence involved which would have to be considered. She suggested that the interview commence at 10 am and said that she had booked a meeting room at a venue which she identified in the letter. The letter finished:
"Could you please confirm that you are available to attend the interview at 10 am on 13th May 2005 and you are comfortable for the interview to take place at the Centre."
There was no response from Mr Janik. As a result, on 29th April 2005 Ms Morris sent a chaser:
"Could you please contact me urgently to confirm the interview time and location."
Still nothing was heard.[35]On 13th May 2005, some two weeks later, Ms Morris sent an email, again chasing Mr Janik. She said:
"I have not received any response from you and query whether you intend to meet with me in order to be interviewed in relation to the above allegations? It is important that you have the opportunity to respond to the evidence obtained in relation to the allegations. In addition, it is important that the investigation concluded in a timely manner and accordingly I am seeking to arrange interview with you as soon as possible."
Again the communication was met with silence. Ms Morris wrote on 20th May 2005 to Mr Janik. This letter, like the previous letters, was sent to Mr Janik care of the Town Hall. I understand that he disputes receiving one or other of them, but there is no suggestion that any of them was returned in the course of post and of course the email would have bounced back had it not been received.[36]The letter of 20th May 2005 referred to the earlier letters and the email of 13th May 2005. Ms Morris said that she was urgently seeking to arrange a time to meet to discuss the allegations. She again said that it was important that Mr Janik had the opportunity to respond to the evidence obtained in relation to the allegations and continued:
"I advise that I am seeking to conclude matters in the near future and have already provided you with a one month delay in scheduling the interview as you stated you would not be available to meet with me until 13th May 2005 due to focusing on your general election campaign."
Then she said that she had tentatively arranged a meeting room for 31st May 2005 at 10 am. Lastly she said:
"If I do not hear from you by 27th May 2005 I will assume you have chosen not to be interviewed in relation to this matter and we will proceed to issue the draft report. You will, of course, have the opportunity to provide your comments and views on the investigation and evidence obtained in your response to the draft report."
[37]The draft report was sent to Mr Janik on or about 28th August. As I have already mentioned, on 30th August he sent a letter before action to the Standards Board for England challenging the decision of the defendant:
"(a) . . . not to interview, consult or otherwise involve the claimant in an investigation into the claimant's alleged misconduct as a the local authority councillor; and (b) to give the claimant 7 and a half working days, namely from 9.00 hours Tuesday 30th August 2005 to 12.00 hours on Wednesday 8th September 2005 to respond in a full and an appropriate manner to 80 pages of allegations against the claimant many of which require substantial research to rebut; and (c) to abuse the Human Rights of the claimant."
[38]The basis for asserting that there had been a decision not to interview Mr Janik does not appear. The correspondence establishes, to my mind conclusively, that there had been no such decision. Far from it. It was Mr Janik whose action led to there not being an interview. He was understandably taken to decline the interview.[39]So far as the time limit is concerned, for present purposes it matters not because Nick Marcar, the Ethical Standards Officer, agreed in a response of 31st August 2005 to agree to an extension of the deadline for comments to 22nd September 2005. That complaint therefore became redundant. However, I am bound to say that parts of the content of the letter before action, including the accusations made against Mr Marcar, do not appear to me to be justified by the documents I have seen, and echo in a regrettable way much of the material that was later to be put before the Tribunal which formed the basis of the allegations against Mr Janik.[40]In fact, Mr Janik did not respond in writing or otherwise to the draft report which was, as a result, issued and formed the basis of the allegations against him which were put before the Tribunal. I see nothing in those facts which could justify Mr Janik's complaints about the unfairness of the investigation, anything that could lead to the conclusion that the hearing before the Tribunal was biased or in any way liable to be challenged. Indeed, Mr Janik had a full opportunity to respond in writing to the draft report and to the report itself, an opportunity which he chose not to avail himself of. Accordingly, that ground of appeal seems to me to be without foundation.[41]The third ground of challenge is that there was no available free legal assistance at the hearing and therefore there was a breach of the requirements of fairness and common law and a breach of Mr Janik's Convention rights under Article 6 and/or Article 14 taken with Article 6; Article 14 of course being the prohibition against discrimination. So far as that is concerned, in other circumstances a question might arise whether these proceedings were civil or criminal. I do not think it necessary for purposes of disposing with this appeal to decide whether they are civil or criminal. To my mind they are disciplinary. My provisional view is that they would not be categorised as being criminal for the purposes of Article 6, but that may not matter. If these were criminal proceedings then the question would be whether the interests of justice require free Legal Aid to be available to a defendant. Whether free Legal Aid is necessary for proceedings to be conducted fairly and in compliance with the convention will no doubt depend on the facts of the particular case. What are the issues? In particular, are they complicated factual or complicated legal issues which one cannot expect a layman to be able to understand or to address? What are the penalties? Manifestly, the more serious the possible penalties the greater the argument for legal representation.[42]In this particular case it is difficult to see why legal representation was necessary. As I have already indicated, the issues to be determined were based on written evidence in the main; documents written by Mr Janik himself. As I have already said, there was no significant conflict of oral testimony. There was no issue of fact or law of any particular complication. There was a significant volume of material, much of which, as I have already said, had emanated from Mr Janik himself. But the volume does not, of itself, make for sufficient difficulty to make legal representation mandatory. Nor were the consequences of an adverse finding so serious as to require legal representation. No question of any loss of liberty, for example, was involved. These were, in my judgment, disciplinary proceedings of a relatively routine nature. Just as I would have expected Mr Janik to have been able to conduct this appeal in person, I have no doubt that, had he chosen to do so, he could have conducted his case before the Tribunal more than adequately. I say that having read the content of his correspondence, including the letter before claim and of course his notice of appeal and grounds of appeal. In my judgment, therefore, there is nothing in this point at all. Not all proceedings before a court or Tribunal require legal representation. I do not think it appropriate for me to make a conclusion as to whether legal representation before a Tribunal in a case such as the present can never be mandatory, but it was clearly not mandatory in the present case.[43]The next ground asserted by Mr Janik arises from the experience of the Tribunal members, all of whom had been involved in local government. He suggests that as a result they were biased and there was a breach of natural justice and of Article 6. I have to say that I find this contention even more difficult to give any credibility to than the previous. It is precisely because the members of the Tribunal have experience of local government that they are particularly qualified to sit on this Tribunal. Their experience and background are not factors disqualifying them, they are factors qualifying them.[44]A similar contention was advanced before Keith J in the case of Murphy v The Ethical Standards Officer of the Standards Board for England [2004] EWHC 2377 Admin. It was rejected in that case. There is no reason to think that the members of the Tribunal would have had any conscious or unconscious bias towards the Ethical Standards Officer or the Standards Board or the Adjudication Panel for England when addressing the issues before them in this case. To the contrary, it seems to me that their decision demonstrates a scrutiny of the case against Mr Janik, and a willingness to reject allegations against him based on the experience of the Tribunal, all of which speaks to the fairness of its decision-making rather than their unfairness.[45]Mr Janik does not in his notice of appeal and grounds of appeal expressly contend that the findings of the Tribunal or his breaches of the Code were unfounded. Nonetheless, having regard to the fact that he is a litigant in person I have scrutinised the full decision of the Tribunal, both those parts of the reasons which set out the evidence before them and the reasons for their determination in accepting certain breaches of the Code as having been established and in rejecting others. I have seen nothing which would lead me to question any of the substantive decisions of the Tribunal as to the infringement by Mr Janik of the provisions of the Code.[46]Lastly, there is the sanction imposed by the Tribunal. Was that proportionate? On an appeal such as the present the question for the Court is not whether the Court would have imposed the same sanction. It is whether the sanction should be upheld having regard to the experience of the Tribunal in local government affairs, which means that they are, to a significant extent, an expert Tribunal where the Court is not. Moreover, the question of the sanction to be applied is one of judgment, sometimes referred to as a question for the discretion of the lower Tribunal, with which the court will not interfere normally unless it can be shown that the sanction was wrong in principle, that it was arrived at on an incorrect basis, or that looking at the facts as a whole it can be seen to be clearly wrong.[47]In my judgment, the present facts fall far short of crossing any of those thresholds. The Tribunal expressly had in mind the guidance in relation to sanctions. The reasons given for their decision are more than adequate. They took all relevant matters into account. I have to say, looking at the content of a number of Mr Janik's communications, that they displayed an entirely inappropriate attitude to Council staff, quite inconsistent with the proper conduct of an elected officer. This was not a case in which it was said that the councillor had acted out of personal gain. It was a case in which it was said, and established, that the councillor had repeatedly, over a significant period of time, acted in breach of the Code. In my judgment, a significant sanction was called for. Mr Janik's conduct, as demonstrated by his own correspondence, was not of a kind which should be tolerated within an elected authority. It follows that disqualification was appropriate and disqualification for a significant period was necessary.[48]The question has arisen whether the disqualification was inconsistent with Mr Janik's right under Article 3 of the First Protocol. So far as that is concerned, it is unnecessary for me to determine whether or not local authority connections fall within that provision and I do not propose to do so. Nor is it necessary for me to consider whether the right which is conferred is conferred on the electorate or on the candidate. It is inherent in any regulation of any election that those standing for election may, in certain circumstances, be disqualified. A disqualification is not incompatible with the rights conferred by Article 3 of the First Protocol, provided there are good grounds properly established by this for imposing the disqualification in question. That disqualification is not necessarily incompatible with the Convention right that was established by the European Court of Human Rights itself in the case of Ahmed v United Kingdom (see paragraphs 72 to 76). Restrictions such as those involved in this case are designed to promote rather than to offend the principles of local representative democracy. In this connection I refer to and adopt what was said by Richards J (as he then was) at first instance in Richardson v North Yorkshire County Council as set out in the judgment of the Court of Appeal [2000] EWCA Civ 1860.[49]Mr Janik complains that since there has been a long period of time between the last of the allegations made against him and the hearing before the Tribunal, a period of one year was excessive. So far as that is concerned, he overstates the gap between the last complaint which dated from May 2005 and the hearing before the Tribunal. Moreover, his complaint ignores the fact that necessarily the allegations considered by the Tribunal had been the subject of the report of the Ethical Standards Officer which had been drafted during 2005 and which had followed the investigation by the investigator, which was the subject of the correspondence I referred to when addressing the complaint that the investigation had been biased. Inevitably, therefore, the allegations before the Tribunal concerned events a significant time before the hearing.[50]For those reasons, I have concluded that the sanction imposed by the Tribunal was not disproportionate and that there was no breach of any Convention rights of Mr Janik.[51]In those circumstances, for the reasons I have given, this appeal is dismissed. Are there any applications?[52]MISS WARD: No.[53]MR COSGROVE: No, my Lord.[54]MR JUSTICE STANLEY BURNTON: Thank you very much. Thank you for your helpful skeletons, and the chronology was of great assistance.