Exclusive: Bar disciplinary tribunal panel recuses itself after barrister complains of bias

BSB: third case against barrister

The panel of a Bar disciplinary tribunal has taken the highly unusual step of recusing itself after an allegation that it had shown actual or apparent bias against the defendant barrister, Legal Futures can reveal.

The tribunal said it arrived at the decision narrowly and was simply erring “on the side of caution”.

The decision is the latest twist in a long-running saga involving Julian Smith, a barrister who has twice been cleared of other allegations in the past three years, first by a tribunal and second by the High Court, which lambasted the Bar Standards Board (BSB) for “seriously mishandling” the case.

The successive proceedings have all but destroyed his practice, Mr Smith claims.

Mr Smith is a sole practitioner at Lincoln’s Inn Fields Chambers in Brixton, south London, and also founder and principal of Brixton Legal Centre, which is hosted by a Unitarian chapel where Mr Smith is an honorary minister.

The current proceedings follow a personal dispute over a second-hand car Mr Smith bought, and unsuccessful legal proceedings he subsequently brought, in which he is accused of sending an email to the court saying that the matter had settled when in fact it had not.

Mr Smith asked for an adjournment of the proceedings due to ill-health, but in granting it, the tribunal wrote: “As to the extent of the disadvantage to Mr Smith of proceeding in his absence, the tribunal observed that the disadvantage would be manifest. Only Mr Smith could provide an explanation of the document that formed the foundation of the charge, and what was in it when he wrote it.

“As to the seriousness of the offence, the tribunal said that on the worst view it was blatant dishonesty. At the other end of the scale, it was mere recklessness. This would be a matter for the tribunal to decide.”

Mr Smith applied for the panel to recuse itself on the grounds either that the tribunal had already decided that he had committed an ‘offence’ before hearing the case, or that there was “clear apparent bias at the very least”.

There was a hearing on Friday, at which the BSB was represented but Mr Smith – who is a litigant in person – was not, after which the panel decided to recuse itself.

The Bar Tribunals and Adjudication Service (BTAS)  told Mr Smith that a new panel would be convened “as soon as possible”.

Andy Russell, the BTAS registrar, told Legal Futures: “I can confirm that the decision of the tribunal was that they decided by a narrow margin to err on the side of caution and recuse themselves on the ground of apparent bias.”

He stressed there was “no other basis” for the decision.

In August 2014, a Bar tribunal ruled that Mr Smith’s refusal to co-operate with the Legal Ombudsman was not professional misconduct because the ombudsman had refused to let him see documents relating to the complaint.

Then late last year, the High Court overturned a disciplinary finding against Mr Smith after finding that the BSB “seriously mishandled” the case, and criticising the tribunal for allowing a crucial statement as hearsay evidence. It also made a very large costs award against the BSB.

Mr Smith said he had copied the email in question to the other, which “merely corrected my misinformation and the matter proceeded unaffected”. It was, he contended, a “joke of a case”.

He added: “The BSB and [the second] tribunal dealt me what I now see as almost certainly a fatal blow in terms of my practice at the Bar.”

Coverage of the original conviction is still online and since its publication, he said, “I have received few briefs”.

Mr Smith said he had been put under serious financial pressure and suffered health issues as a result, and he has now been signed off work.

The BSB said: “As this is an ongoing case it would be inappropriate for us to make any comment about the panel’s decision to recuse itself from the tribunal.”

    Readers Comments

  • Andrew Leonard says:

    After BSB v Smith (Ashby) (2016) a BSB spokesperson said they would comment to the press later. That public comment is still awaited.

  • Julian Smith says:

    The tribunals remarks and that of the BTAS Registrar, Andy Russell, add insult to injury. Courts and tribunals headed by senior members of the legal profession do not lightly recuse themselves as suggested. It’s an admission of bias or apparent bias and incompetence at the very least. What were they thinking of in issuing such a stupid statement after the first adjournment, leading to my application? They have brought shame on both themselves and BTAS. Erring on the side of caution on the basis of apparent bias only indeed; as if their standing aside was just some clerical error. There was nothing apparently biased about their statement. The clear prima-facie reading of their statement was one of clear bias. I have never seen a more open and shut case.

  • Julian Smith says:

    My disciplinary record remains spotless.

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