Barristers appeal disciplinary findings in wake of Bar tribunal failures

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12 February 2013

Inns of court: tribunal member also sat on BSB committee

Three barristers have so far said they will appeal against disciplinary decisions affected by the failure of the Council of the Inns of Court (COIC) to administer the Bar’s tribunal system properly, with the Bar Standards Board (BSB) not resisting two of them, it has emerged.

However, the number is less than 4% of those barristers who were thought to have an argument that their disciplinary convictions were tainted.

The latest barrister to appeal – which the BSB has indicated it will not resist – did so on the grounds of bias because one of the disciplinary tribunal members was simultaneously a member of a BSB committee.

Of the remaining two cases, one has also cited bias as the basis for their appeal and the BSB indicated it would agree to the tribunal decision being quashed, subject to a decision from the Visitors to the Inns of Court. The BSB also agreed to pay the costs. But in the third case, the BSB said it intended to defend the appeal.

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A further attempt to overturn a disciplinary decision on the basis of anomalies in the constitution of and appointment of tribunal members failed after the Visitors ruled it was valid. According to a report by BSB director Dr Vanessa Davies, given to last month’s main board meeting, the appellant amended his appeal to allege that his tribunal panel included a barrister who had recently changed his status from practising to non-practising. The Visitors decided a breach of the tribunal regulations had taken place but that it did not invalidate the tribunal’s decision.

Last summer the BSB estimated that around 85 disciplinary cases involving barristers could be invalidated by the fact that tribunal members were also member of a Bar Council or BSB committee, leaving them open to claims of apparent bias. There is no evidence of actual bias.

A project set up at the end of last year to professionalise the COIC tribunal system by implementing recommendations of the COIC review group, is due to conclude by April. In November the BSB rejected a proposal by former Bar Council chairman Desmond Browne QC that certain prosecutorial functions exercised by the BSB should in fact be exercised by the new COIC tribunals service.

The implementation project, which is producing the ‘contract’ between the BSB and COIC for delivering a new COIC tribunal service, has produced its first draft specification, Dr Davies revealed. A finalised agreement, which specifies such things as key performance indicators, service standards and governance arrangements, is due to be in place by the start of the next financial year.

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