Sexual Misconduct; Time’s Up at the Bar

Since October of last year I have been using my Twitter feed to highlight examples of sanctions passed by the Bar Tribunals and Adjudication Service (BTAS) that are in my view, unacceptably lenient. Through doing so, it soon became clear that my views are shared by others.

For those unfamiliar with recent decisions, they include:

BSB v CT, a practising criminal barrister who sexually assaulted two separate young Barristers. One woman was assaulted 5 times and the assaults involved pulling her underwear aside and grabbing her breasts and bottom. He was suspended for just 3 months and made to pay £900 costs.

BSB v DW, a 34 year old practising criminal barrister and qualified pupil supervisor who sexually assaulted a young Barrister at a chambers Christmas party on three separate occasions. He did not know her very well. The assaults included him gripping her around the neck while making sexual comments in her ear, later smacking her bottom with such force that it caused her pain, and later grabbing her by the hips and dragging her backwards onto his lap. The last assault was stopped by a clerk who gave evidence at a contested hearing, as DW denied all three assaults, claiming to have believed she consented. Having been held a poor witness who lacked credibility, the tribunal found against him, but nevertheless allowed him to continue to practise, imposing a reprimand and a fine of £6,000 together with £3,600 costs.

BSB v DTH, an unregistered barrister and then Government Legal Department senior lawyer who ‘upskirted’ a lone female with his mobile phone camera after following her for some while. Having been convicted in the criminal courts and made the subject of police and probation supervision following his inclusion on what is colloquially known as the sex offender’s register, he was not disbarred but suspended for 6 months and made to pay £1,200 costs.

BSB v MR, an unregistered barrister, was convicted of fraud in the crown court following the making of fraudulent expenses claims. He received a 26 week custodial sentence suspended for 2 years. He was suspended for 3 years by the tribunal and made to pay £600 costs.

BSB v FE, an unregistered barrister, was convicted of s.20 GBH in the crown court and received a 24 month custodial sentence, suspended for 2 years. He had battered a hotel receptionist with a hockey stick, striking him twice in the back and once in the face with sufficient force as to break his jaw. He did not report his conviction to his regulator at the time, only disclosing it to the SRA when he later applied to become a Solicitor. The tribunal suspended him for 3 years.

Compare the above with the following cases:

BSB v MB, a barrister who failed to cooperate with the BSB by failing to reply to correspondence when he was already suspended. He was suspended for 3 years concurrent to his existing suspension.

BSB v PM, a barrister of 37 years’ Call, who forgot to renew his practising certificate and appeared twice in family proceedings without a certificate in 2019. He was suspended for 4 months and made to pay costs of £1,200.

BSB v DW, a barrister who accepted a £110,000 loan from a client and failed to advise the client to seek independent representation in a situation where there was a conflict of interest. He also misled two other clients about work done. He was disbarred and made to pay costs of £1,200.

BSB v BH, a barrister who engaged in a lengthy, heated campaign of ‘trolling’ online. She was suspended for 2 years (later reduced to 1 year for clemency, when she became terminally ill and death was imminent).

The Code of Conduct

Sexual, dishonest or violent misconduct contravenes core duties 3, 5 and Rule rC8 of the Bar Standards Handbook:

Core Duty 3 ‘You must act with honesty, and with integrity’.

Core Duty 5 ‘You must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession’

rC8 ‘You must not do anything which could reasonably be seen by the public to undermine your honesty, integrity and independence.’

Sanctions Guidance

At present the BTAS sanctions guidance for sexual misconduct reads as follows:

The starting point for minor offences of inappropriate sexual conduct in a professional context should normally be a reprimand and a medium level fine. Where a conviction results in a custodial sentence, the general starting point should be disbarment unless there are clear mitigating factors that indicate that such a sanction is not warranted.”

For dishonesty it reads:

“Dishonesty is not compatible with practise in a profession which requires exceptional levels of integrity. The general starting point should be disbarment (or revocation of licence or authorisation to practise for BSB Licensed / Authorised Bodies) unless there are clear mitigating factors that indicate that such a sanction is not warranted”

For violence it reads:

“The starting point for a conviction of minor assault should normally be a reprimand and a medium level fine, which may increase to a short suspension. Where a conviction results in a custodial sentence, the general starting point should be disbarment unless there are clear mitigating factors that indicate that such a sanction is not warranted.”

For serious violence, as in the case of FE, it is apparent that a conviction for an act of serious violence should result in disbarment unless exceptional circumstances apply. Use of a weapon is an aggravating factor in the guidance.

The recent tribunal decisions do then appear to be on the lenient side of available sanctions. Two unregistered barristers convicted of fraud and serious violence at the crown court both received custodial sentences, yet neither were disbarred. On the other hand, regulatory misconduct has been treated robustly.

The sexual misconduct sanctions guidance sits starkly in contrast to that of dishonesty or violence. In the most basic terms, sexual misconduct is treated as ‘less bad’. It is weakly drafted and out of step with acceptable behaviour in modern society; the threshold to be met before misconduct causes disbarment is far too high.

Applying the guidance, consider a barrister who has a conviction for possession of indecent images of children, a self confessed paedophile with caches of images of young children being raped at home. This sort of offence rarely results in a prison sentence in the crown court, but is to any sensible view plainly not commensurate with ongoing membership of the profession. Following the present sanctions guidance, this person would be able to continue to practise as a barrister, and would have ready access to vulnerable witnesses, including children.

Applying the criminal law in the case of CT, had the young barrister reported him to the police (and she still could), the starting point for offending on the facts of her case would see her attacker facing a starting point of a year in custody per assault, before significant aggravation (and then mitigation, before credit for his plea). The custody threshold would most certainly be passed, these were serious assaults and he would be subject to sex offender notification requirements (‘the register’). His three month suspension looks rather ridiculous by comparison, and it is unclear why the fact that she declined to report him to the police and secure a conviction means he suffers a lesser sanction.

The military

Comparing the Court Martial sentencing guidelines for sexual misconduct committed by service personnel; upon conviction by Court Martial

“Offenders should.. be dismissed… unless there are exceptional reasons for retention”.

Doctors

The Medical Practitioners Tribunal Service Sanctions Guidance for sexual misconduct states;

“Sexual misconduct seriously undermines public trust in the profession. The misconduct is particularly serious where there is an abuse of the special position of trust a doctor occupies, or where a doctor has been required to register as a sex offender. More serious action, such as erasure, is likely to be appropriate in such cases.”

Police

The College of Policing Guidance on Outcomes in Police Misconduct Proceedings states:

“Offences of dishonesty, sexual offences (including possession of child pornography) and violent crime are particularly serious and likely to terminate an officer’s career. Such offending involves such a fundamental breach of the public’s trust in police officers and inevitably brings the profession into disrepute.”

Solicitors

The Solicitors Disciplinary Tribunal treats sexual misconduct as serious misconduct. The 2016 case of SRA v Dart involved a Solicitor who engaged in an inappropriate discussion about arrangements to settle a bill of costs, and watched pornography with a vulnerable female in his office. He was struck off.

At the very least it is plainly time we fell in step with other regulated professions, if we will not regulate ourselves more robustly. There is no longer an argument to be had that we are isolated in our ivory towers, detached from the public through the existence of our professional clients.

Times have changed, particularly evidently at the publicly funded criminal bar, where thanks to cuts to Legal Aid (a complaint for another day) the presence of an instructing solicitor is now a rarity and we are routinely alone with lay-clients at every hearing and throughout their trials. Our lay-clients, witnesses, co-counsel and professional clients do not expect to have to undertake internet searches to check that we pose no danger to them before meeting us.

Furthermore, we are collectively employers of staff in chambers, have a say in the careers of our pupils, supervise them and hold positions of trust.

It is clear that the present sanctions guidance must be turned on its head and rewritten from scratch. At the moment, the lowest form of sexual misconduct in the guidance is that which occurs professionally. This is patently misguided, as the fact that misconduct occurs at work should be treated as a seriously aggravating fact.

The case of BSB v DW demonstrates that professional sexual misconduct can be factually far more serious than a sexual offence conviction attained in a criminal court. The fact that a victim decides not to make a complaint to the police that brings about a conviction, ought not to reduce the sanction imposed within the framework of the guideline.

In DW we saw three discrete sexual assaults, all involving use of force and an imbalance of power, they took place in public (in so far as a party was going on) and involved a significant age disparity. Furthermore he denied the assaults and caused his victim, to give evidence along with a clerk and other counsel. He was found to lack credibility as a witness. There could hardly be a better example of a case of professional sexual misconduct being much more serious than a single criminal conviction for a sexual offence. In his case, the tribunal was arguably too lenient even on the guidance in its present form.

The starting point for a tribunal when imposing sanctions against a barrister who has committed violent, dishonest or sexual misconduct should always be disbarment. Only the strongest and most persuasive mitigating features must be present for a tribunal to be able to step back from disbarment.

Ours is a respectable profession and the public expect us to take the greatest care both in our personal and professional lives to uphold and adhere to the law. We should hold ourselves to the highest professional standards. The fact that we lag behind other professions is disappointing to this member of the bar.

What message is it sending out to pupils, fellow barristers, solicitor colleagues and the public if we allow those who abuse, steal from and attack others to stay in practice? There is no greater deterrent to a pupil barrister sexually assaulted at a chambers Christmas party than to know that if he or she reports her attacker, he or she will still have to face him in court. Theirs becomes the fear that the next time instructions are received, they may be co-defending with their attacker. They will have to cross paths in the court corridor, or robe near them in the robing room.

When the most they can expect from the tribunal is a fine or a short suspension, victims are deterred, and by deterring future victims, we enable future misconduct.

One further reform is needed. One cannot fail to notice when perusing recent decisions that some of the worst offenders have been unregistered barristers. It is in my humble opinion, time for the BSB to stop regulating these people and for them to cease being called barristers, as their misconduct sullies the name of the wider Bar and confuses the public, who understandably assume they are practising and therefore at risk of inadvertently instructing these individuals.

As well as bolstering public trust in the profession, we must strive to protect people who work for and with us from sexual misconduct. We must not shy away from ensuring sanctions act as a deterrence. At present, we are letting barristers who engage in professional sexual misconduct away with a slap on the wrist.

The BTAS and BSB recently issued a joint statement;

“The Bar Tribunals Adjudication Service and the Bar Standards Board are aware of current concern from the public and the profession at the level of sanctions imposed in cases of sexual misconduct. The sanctions imposed fall within the current Sanctions Guidance. This Guidance covers the whole range of professional misconduct and has been under review since last year. Proposals from the review will be published and subject to consultation with a view to having updated Guidance in place in the summer.”

Until the sanctions guidance is rewritten, no further sanctions should be imposed. The public trust in the profession wanes with every published decision. It is vital that the BTAS and BSB expedite publication of the revised guidance and consult with the profession before revising it.

Continuing the current pattern of leniency only adds fodder to arguments made by those calling for independent professional regulation. It is vital that BTAS and the BSB break this chain and self-regulate more robustly if the Bar intends to continue to do so in future. No one understands the complexities of modern practice at the Bar better than those within it, and we should be more than capable of getting this right.