That the Stewards should be empowered to adjudicate under such circumstances offends many of the more elementary Rules of natural justice, the rule, for example, that a Judge must not be a Judge in his own cause and must be in a position to make a detached and impartial adjudication. In substance, the only requirement of natural justice unaffected by the Rules relating to the Stewards and their inquiry, because not therein dealt with, are that the Stewards must give adequate notice to a person charged of the precise charges against him, and a fair opportunity after hearing the evidence against him of making his defence thereto. ...
92 Although there is no express requirement in the Rules of Racing or the Board Act that the stewards hold a hearing, in my opinion LR106(7), referring to rehearings on "evidence adduced at the hearing in respect of the decision appealed against" sufficiently indicates that the stewards must hold a hearing. And although stewards may rely on their own observations, in my opinion natural justice would require that, at this hearing, the stewards give fair notice to the accused person of the substance of those observations. There is no express requirement that stewards give reasons, but in my opinion there is an implied requirement that at least basic reasons be given.
93 It is plain from s.43 of the Board Act that the appeal to the Panel is by way of rehearing, so that even if this appeal is treated as an appeal from one administrative body to another, the presumption referred to in Strange-Muir is displaced. The question is whether the Panel's role is limited to detection and correction of error, or whether the Panel is to substitute its own view on a consideration de novo of the material.
94 The fact that further evidence received on the rehearing is subject to the discretion of the Panel (LR106(7)) and the power to remit (LR107(a)) point towards limitation to correction of error. However, the lack of any requirement for grounds of appeal, the width of the powers under LR107(b) (explicitly including increasing penalty) and s.43(3) of the Board Act (providing that the Panel should act informally, inform itself in any way, and decide on the real merits and justice of the matter) suggest that the role is not limited to correction of error.
95 The Panel is not completely independent of the Board, but has membership with legal expertise (ss.45(3) and 46(1)), and sits as in open court (s.43(4)). The considerations referred to in the passage from Renzella, plus these characteristics contrasting strongly with the position of the stewards, suggest to me that the Panel should be able to look at the matter de novo; and in my opinion that is the position.
96 What then is the nature of the appeal to the Tribunal? The Board submits that, if the appeal to the Panel is not de novo, the appeal to the Tribunal must be, otherwise there is no de novo hearing after the hearing by the stewards, which has the deficiencies referred to in Renzella; while if the appeal to the Panel is de novo, then s.15(b) of the Tribunal Act suggests that the appeal to the Tribunal must also be, otherwise the right to a de novo appeal would be lost because of the Panel's default.
97 It can be said further, in favour of the Tribunal being able to consider the matter de novo, that it is very like a court in that it is independent of the Board and is constituted by a retired judge or person qualified to be a judge (ss.4, 6, 7), and its proceedings are as in open court (s.16); so one has an appeal from an administrative body, the Panel, to a court-like body, as in Clarke & Walker.
98 However, many features of the Regulation point to its role being limited to the correction of error. Regulation 7(3) requires grounds, and very importantly limits the appeal to those grounds except with leave. Regulation 12(1) provides that there should be no other evidence unless the Tribunal considers there is good reason why it was not presented below (although the effect of this is to some extent cut down by the liberties provided by Regulation 12(2)).
99 The Regulation cannot control the construction of the Act, but the Act itself does not specify the nature of the appeal, and it does authorise regulations making provision "for or with respect to appeals" including procedures and matters "incidental to or connected with appeals". In those circumstances, I think one can have regard to the Regulation in deciding what is the nature of the appeal.
100 Taking all these matters into account, and also having regard to the consideration that it seems unlikely that the legislature would provide for two tiers of de novo appeals, my opinion is that, if one could disregard any effect of ss15(b) and 15(c) of the Tribunal Act, the appeal to the Tribunal is one where the Tribunal's role is limited to the detection and correction of error.
101 However, there is force in the Board's submission, based in particular on s.15(b) of the Tribunal Act, that an accused person would not be deprived of a de novo appeal by the default of the Tribunal, so that the appeal under s.15(b) must be de novo; and therefore the appeal under s.15(a) must also be de novo. Certainly, appeals under s.15(b) are appeals from stewards, who can give very limited natural justice, having regard to the considerations set out in the passage from Renzella, to a court-like body, so that Clarke & Walker would strongly support that there be consideration of the matter de novo. Furthermore, s.15(b) itself suggests that the Tribunal should do what the Panel should have done, if it had not defaulted, that is (on my view as to appeals to the Panel) reach its own view as to the correct result. That has some confirmation from s.17 of the Tribunal Act, whereby the decision of the Tribunal is taken to be the decision of the Panel.
102 There are contrary indications from the Regulation, as before, namely the requirement for grounds in Regulation 7(3) and the limitation concerning evidence in Regulation 12(1). However, it can be said that the ground in such cases could simply be that the correct and preferable decision is different from that which the stewards made, and the power of the Tribunal under Regulation 12(2) could overcome Regulation 12(1) limitations.
103 There seem to be three possibilities here: first, that s.15(b) appeals are rehearings requiring detection of error; second, that s.15(b) appeals and s.15(a) appeals are both appeals requiring de novo consideration; and third, that s.15(b) appeals are appeals requiring de novo consideration, while s.15(a) appeals require detection of error. Of these three possibilities, I think the second is the least satisfactory: I do not think that it could have been intended that there be two tiers of appeals each requiring de novo consideration.
104 Although it is not absolutely necessary to decide the matter in this case, I prefer the third alternative to the first, although it might prima facie seem unlikely that the Act and Regulation should provide for two different types of appeal to the one body. But the statute gives a right of appeal and does not itself specify what is involved in that right of appeal, leaving it to the Regulation and to the context to determine the nature of the appeal. Under the Act, the determination of the Tribunal is treated as a determination of the Panel, and in those circumstances it seems to me not unreasonable that, if the Panel has made a decision, the question before the Tribunal should be whether error is shown; while if the Panel has not made a decision but has neglected or refused to deal with an appeal, the Tribunal should in substance do what the Panel should have done.
105 Accordingly, in my view, s.15(a) appeals require detection of error. If, contrary to my view expressed above, the appeal to the Panel did not involve de novo consideration, I would still reach the same conclusion. I think it most unlikely that an appeal involving de novo consideration would be introduced for the first time at the second tier of appeals. I would add that there were no detailed submissions as to the nature of hearings by the Board itself or of appeals from the Board under s.15(c). I do not think it necessary to reach any conclusion on this.
106 In this case, I accept that the Tribunal did not approach its task as one where detection of error was required before the decision of the Panel could be interfered with. On the appeal against sentence, the Tribunal took the view that it could substitute its own view without first deciding that there was error. That was in my opinion an error going to jurisdiction, or at least an error of law on the face of the record. I am unable to say that it was not material.
107 The next question is whether relief should have been refused by the primary judge, because there was in truth error by the Panel in relation to the questions of honesty, deterrence and manifest inadequacy, giving a discretionary reason to deny relief: cf. Saatchi. That raises a further question, namely even if there were such errors, could the Tribunal have entered upon a review of penalty by reason of these errors?
108 I note that the Board has not challenged the Tribunal's finding that the Board had no right of appeal from the Panel, although it did submit that this was by reason only of the Regulation and not by reason of the provisions of the Tribunal Act. I do not find it necessary to rule on that aspect. However, the Tribunal's finding that the Board had no appeal meant that the Board could not have sought to have the Panel's penalty reviewed by reason of the errors referred to, or to have these errors added to Mr. Waterhouse's grounds of appeal. Those errors were certainly not within Mr. Waterhouse's grounds of appeal, and Mr. Waterhouse certainly did not seek to have them added. In my opinion, the limitation in Regulation 7(3) is binding on the Tribunal as well as the parties, so the appeal is limited to the grounds of appeal, and matters outside those grounds "by leave of the Tribunal". This contains no suggestion that the Tribunal can simply add its own grounds, only that it can give leave to a party to rely on further matters.
109 If an error within the grounds of appeal (such as that the Panel acted on irrelevant considerations) vitiated the Panel's decision on penalty, it may then be open to the Tribunal to impose the penalty which it believed appropriate, even if this is greater than that imposed by the Panel. But the errors that the Board now seeks to rely on were not within the grounds of appeal, were never sought to be added by anyone, and were never the subject of leave by the Tribunal.
110 In my opinion, therefore, the primary judge was not in error in granting relief, in so far as it had the effect of quashing the increase in penalty; and there can be no question of remitting the matter to the Tribunal for further consideration. Accordingly, any appeal from that part of the primary judge's decision would fail.
111 It is not necessary to decide the question of denial of natural justice. However, I am inclined to the view that, if the case had been one where the Panel decision was vitiated by an error raised by a ground of appeal, Mr. Waterhouse would have been sufficiently on notice that an increased penalty was a real possibility. I do not think the material referred to by Mr. Brereton, contained in reports of cases decided by the Tribunal, indicates a uniform practice of informing appellants that an increase in penalty was seriously under consideration, such that any failure to do this in circumstances where a penalty is increased is a denial of natural justice. In this case, in my opinion, the question of increase and the view of the Tribunal that it could increase the penalty were well and truly on the table. The case is in my opinion very different from Parker.