Jagger: Targeting most serious breaches
The Bar Standards Board (BSB) is struggling to cope with the rise in complaints from members of the public, its annual enforcement report has revealed.
While external complaints were up by 18% in 2018-2019, only 49% of investigations into them were concluded within eight months; the BSB’s target is 80%. This was “disappointing”, the regulator acknowledged.
While internal complaints – ie, those raised by the BSB – were down by 30% in the period, it also missed the 80% target of concluding these within five months, achieving it in only 72% of cases.
The report said: “Improvements in the way investigations are conducted, increases in the number of those subject to investigation being legally represented and a rise in the number of challenges to the process (mainly unsuccessful) have all led to investigations of both internal and external complaints taking longer to complete.”
Internal complaints had a shorter timescale because it was thought that the absence of a complainant would speed up the process, but the BSB said it found that these increasingly included “some of the most serious and complex matters arising from the serious misconduct reporting obligations” and so were in the event no quicker.
The BSB report covered the 12 months to 31 March 2019, the final year before the BSB’s new enforcement regime was introduced, in October last year. New performance indicators have been set as a result.
In all, the total number of new complaints went up by just four in 2018-19 to 479.
The regulator said that of the 359 external complaints received, more than a quarter (95) were from litigants in person (LiPs) – the highest amount recorded from this source.
“As in previous years, the majority of the complaints from litigants in person related to concerns about barristers making misleading/false statements or otherwise misleading the court, or about a barrister’s rudeness or misbehaviour, either in or out of court.”
The BSB said the biggest single category of complaints from members of the public continued to be about “all forms of misleading” but the vast majority of these (89%) were dismissed on initial assessment.
On rudeness and misbehaviour, where 51% of complaints were made by LiPs, barristers were accused of “calling a witness a liar; sending rude and unprofessional emails to their client who was concerned about the conduct of his case; and making spurious allegations about a witness while behaving aggressively”.
The BSB said almost half these complaints were made in the context of contentious family proceedings.
“As in previous years, many of the complainants in this category were unhappy with statements or allegations about them that were put forward in submissions by their former partner’s barrister, or they felt that they had been pressured into accepting an outcome they did not want by the barrister on the other side.”
Several other trends were down: reports of serious misconduct received from the profession decreased from 133 to 100, although the number of complaints referred to disciplinary action increased from 37 to 50 cases.
The number of barristers disbarred during 2018-19 fell from six to four, and the number suspended from eight to four.
The regulator said the number of complaints that did not progress further than the initial assessment stage continued to rise, hitting 66% in 2018-19, compared to 57% the previous year.
On sexual harassment, the BSB said it received nine reports from barristers of sexual harassment by another barrister in 2018-19, compared to eight the year before.
However, the regulator said its “IT systems did not effectively support the identification of reports/complaints of sexual harassment”, which would be recorded properly under the new case management system introduced in October 2019.
The BSB referred to research by the Bar Council in 2018, which noted the lack of reporting of discrimination and harassment by a “large majority” of female barristers.
In line with this finding, the BSB said it had not seen the increase in complaints it would have expected, or that “other professional regulators have reported seeing”.
Sara Jagger, the BSB’s director of legal and enforcement, said: “The findings of this report reflect our continued success in taking action against the small number of barristers who pose a risk to the public.
“We are committed to embedding our reforms to our regulatory operations, which will enhance our risk-based approach to regulation and help to ensure that our resources are targeted on the most serious breaches of barristers’ professional obligations.”