The criminal & civil courts can draw ‘adverse inferences’. Alexandra Felix & Tom Orpin-Massey ask might more regulatory & disciplinary panels do the same?
- Could regulatory and disciplinary panels be allowed to draw ‘adverse inferences’ from a professional’s non-cooperation?
- Why and how ‘adverse inferences’ could be introduced.
It is said that with the many advantages of membership of a profession comes the obligation for the registrant to engage with the regulator where concerns have arisen. What, though, when a registrant refuses to engage in the investigatory process and/or does not attend and/or chooses not to give evidence at a regulatory or disciplinary hearing?
This topic has generated significant interest, not least in the High Court, where several judges have commented on the peculiar arrangement whereby the majority of regulators do not recognise the adverse inferences familiar to the criminal and civil courts. For some time now, practitioners in the disciplinary and regulatory fields have wondered whether adverse inferences are on the horizon.
Before 1994 in the criminal courts there was considered to be a ‘right to silence’ under the common law, with
