Full case report
Bradley v The Jockey Club (No.2)
Reference  EWCA Civ 851
Court Court of Appeal
Judge Buxton LJ
Date of Judgment 28 Jun 2005
Permission to appeal – new point not taken below – fresh evidence – Human Rights – Article 6 ECHR – privilege against self-incrimination
In evidence given as a witness at a criminal trial B admitted having provided inside information to gamblers for reward over a long period when a jockey licensed by the respondent (JC). Disciplinary proceedings were brought by the JC resulting in B’s disqualification from involvement in racing for 5 years. An action claiming that this penalty was excessive was dismissed by <A
href=”http://www.5rb.com/casereports/detail.asp?case=285″ target=_parent>Richards J. B appealed. On this application he sought permission to add to his appeal a new ground, that use of the evidence at the criminal trial violated his privilege against self-incrimination, and the disciplinary process was thus unfair. He applied for a disclosure order in support of the new ground.
Whether B should be permitted to add a ground of appeal alleging unfairness and breach of Article 6 ECHR, and obtain disclosure in support.
Dismissing the application, (1) this was not a new ground in the sense that the word is used in the appellate jurisdiction, but a new claim, and inconsistent with the approach below; (2) in the absence of evidence as to why the point was not taken before, the court would not exercise its discretion to allow it; (3) the claim based on Article 6 was doomed to failure as there had been no compulsion, and in any event B had a fair opportunity to raise objection in the disciplinary process; (4) the application was far too late; (5) it would call for a trial in the Court of Appeal sitting as a court of first instance, in 14 days’ time. In addition, the requirements of Ladd v Marshall were not satisfied.
The finding that B’s evidence was not compelled is unsurprising; his case was easily distinguished from Saunders v United Kingdom (1997) 23 EHRR 313. The decision is perhaps most interesting for its heavy emphasis on the fact that Article 6 depends on the fairness of the process as a whole. The judge took the view that B had in any case been fairly tried as he had an opportunity to challenge the admission of the evidence in the disciplinary process.
Charles Russell for the Respondent
More from 5RB
5RB is the pre-eminent set in the area for handling defamation, privacy, contempt and data protection matters. Interviewees praise the set for having great depth and quality of counsel, and note that it boasts many of the top barristers in the field. Get the lowdown here.
New 22nd Edition of Clerk & Lindsell on Torts, published by Sweet & Maxwell. Further info here.