Bar regulator counts cost of “extremely challenging year”

Social media: Reports almost doubled

The Bar Standards Board (BSB) has described how it “struggled” to hit timeliness targets in an “extremely challenging year” for its enforcement work, with only a third of investigations reaching the decision stage within the target time of 25 weeks.

Complaints about barristers’ behaviour outside their professional lives fell by around a third while those relating to social media almost doubled.

There was an even bigger rise in complaints about behaviour in work but “not in relation to the provision of legal services”, such as “conduct in chambers”. The number of these cases almost tripled.

Last week, the Bar Council attacked the BSB for its “unacceptable and inexcusable” handling of a complaint against Dinah Rose KC and went on to criticise the regulator’s performance more broadly.

In its annual report on regulatory decision-making, published on Friday, the BSB said it “struggled to hit timeliness performance standards” throughout the period from April 2021 to March 2022.

Although 54% of cases referred to its investigation and enforcement team were accepted for investigation within two weeks, only a third (34%) were concluded within 25 weeks. The target was 80%.

The BSB said the median time it took for investigations to be closed, from date of receipt of the initial reports was 318 days in 2021-22, compared to 296 in the previous year.

The median figure for concluding tribunal cases, from the date the report was first received to the end of the hearing, increased more dramatically from 638 days (21 months) to 805 days (26.5 months).

The BSB said these figures included periods when investigations were put on hold, due to the ill-health of the barrister or the need to await the conclusion of other proceedings, but its “poor performance”, both this year and in previous years, was a “cause for concern”.

Having recognised “issues with staff capacity” and agreed an increase, it “proved difficult in the current labour market to recruit to the new posts”, and by the end of the year, the size of the team had not increased, at times “falling below the level prior to the agreed increase”.

Complaints about barristers’ behaviour outside their professional lives fell by around a third from 274 to 189, while those relating to social media almost doubled from 49 to 89.

The BSB said it hoped the interim social media guidance it published this summer would lead to “a reduction in reports in relation to social media” next year.

Meanwhile, there was a surge in reports of misconduct relating to “conduct at work but not in relation to the provision of legal services”, which included conduct in chambers. The BSB handled 304 of these cases in 2021/22, up from 131 the previous year.

The area of law responsible for the most cases remained family law, with a “slight increase” in those relating to criminal law, while cases involving employment law doubled.

The BSB dealt with a total of 2,517 reports of misconduct by barristers in 2021-22, an increase of 54% on the previous year. The vast majority were not referred for action.

Six barristers were disbarred and seven suspended.

The BSB’s independent reviewer reviewed 131 decisions and made recommendations in seven of them.

The regulator said that “very often”, the person requesting the review was a litigant in person and the report arose from a dispute “where the respondent barrister represents the party on the other side”.

There were also “many requests for review” relating to social media and expression of opinion, the decisions in such cases being “finely judged but parties in them often hold very strong views”.

In a separate report, the BSB’s independent decision-making body (IDB) – which makes BSB decisions where independent input is needed, such as on taking disciplinary action – said it handled 68 enforcement and 22 authorisation cases.

Of the enforcement cases, 27 saw allegations dismissed, while eight authorisation decisions were overturned.

Iain Christie, chair of the IDB, said that following the High Court’s ruling in BSB v Eve last year, in which Mr Justice Griffiths strongly criticised the IDB for failing to give reasons for approving a BSB executive decision on a Bar student’s application for an exemption from the vocational element of his training, he carried out an “extensive lessons learned review”.

This resulted in training for IDB members and a reduction in the number of authorisation cases the panel handled so it could give reasons for decisions.

Mr Christie said he was “pleased to report that there have been no new appeals to the High Court or judicial reviews of IDB decisions during 2021-22”.

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