Hill: Disbarment not wrong
A barrister disbarred for sexual harassment has lost his appeal against the sanction.
Robert Michael Kearney, who was called in 1996, admitted to sexually harassing a woman during a mini pupillage and, separately, two pupils at social events.
A Bar disciplinary tribunal said misconduct such as this “needs to be deterred”.
It was actually the second time he had been disbarred for these actions, after the High Court overturned the original decision on the basis of apparent bias on the part of the tribunal panel and ordered a fresh sanction hearing.
It was also the third time Mr Kearney had appeared before a Bar disciplinary tribunal. In 2018, he was fined £1,000 for “disgraceful” behaviour towards a male pupil barrister, who complained that Mr Kearney put his arm round him and made a number of “uncomfortable, hostile and intimidating” statements.
Then, in 2021, he was handed a six-month suspension, when he was found to have made crude sexual comments to a woman on a mini-pupillage in 2015. The High Court rejected his appeal.
On this appeal, Mrs Justice Hill rejected the suggestion that the tribunal had almost entirely disregarded evidence of Mr Kearney’s rehabilitation since the last incident in 2020.
The tribunal “specifically acknowledged the strong references” he had provided and “clearly afforded them some weight”. It also noted that there had been no reports of misconduct since 2020.
But, Hill J said, the tribunal was still justified in concluding that there remained a risk that Mr Kearney would reoffend, particularly if inebriated.
Among the reasons were that, between 2015 to 2020, he had behaved in a similar way towards five different junior members of the Bar, latterly even when he knew he was under investigation.
The character references, Hill J added, “did not suggest that he had removed himself entirely from work-related social events: on the contrary, two of them specifically spoke of him attending ‘drinks at several local bars’ and ‘drinks and/or dinner locally’ when conducting trials away from home”.
She found that, contrary to Mr Kearney’s case, the tribunal afforded sufficient credit for the mitigating factors – such as the extent of his insight into his actions – and considered the ‘totality’ principle when sentencing the two cases together.
Hill J said: “The appellant had engaged in ‘multiple examples’ of similar behaviour on different occasions over a period of time, but had continued to commit acts of misconduct despite knowing of the concerns raised about his conduct by his chambers and his regulator.
“This factor justified the view that this was not simply a case of ‘multiple examples’ of similar behaviour.”
The tribunal also found that disbarment was appropriate for each of the cases, rather than “tacking them together”, as Mr Kearney had alleged.
As to the fact that the misconduct occurred under a previous version of the tribunal’s sanctions guidance, Hill J said: “I do not accept that it is necessarily the case… that disbarment would not have followed, given the serious and repeated nature of the misconduct here and the fact that the sanctions guidance is not prescriptive.”
Finally, she rejected the submission that the tribunal failed to explain why a long suspension would not have sufficed, given that disbarment is the sanction of last resort.
“The tribunal conducted a detailed and careful exercise, identifying and weighing matters relevant to culpability and harm and aggravating and mitigating factors. They gave detailed and clear reasons. Together, these fully explain why the tribunal did not consider that a further period of suspension was the appropriate sanction.”
The tribunal, she continued, was “fully entitled to have regard for his pattern of misconduct, and to reflect on the question of why the previous investigations and sanctions had been ineffective in preventing his misconduct towards Pupil A and Pupil B.
“For cases within the upper range of seriousness, which both cases were for the reasons the tribunal gave, the sanctions guidance made clear disbarment was the ‘indicative sanction’.
“In those circumstances the sanction of disbarment was not manifestly excessive; nor was it wrong or clearly inappropriate, which is the test applicable to this appeal.”
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