High Court: Guidance was ambiguous
A male barrister who sexually assaulted a female colleague and then asked her to lie to help him cover his tracks with his partner has won his appeal against disbarment.
Mrs Justice Heather Williams imposed a two-year suspension on Kevin Farquharson instead after ruling that the Bar disciplinary tribunal misinterpreted the then sanctions guidance.
Mr Farquharson, called in 2011, sexually assaulted the woman in a photo booth in a bar in the early hours of 28 September 2019.
He ignored the efforts of the younger woman, referred to as A, to fight him off, touched her crotch, pinned her arms down and tried to force her to kiss him. The woman’s ordeal only came to an end when staff at the bar in Bristol stepped in to remove him as the woman hid in the bathroom.
Mr Farquaharson was given a six-month suspended sentence after admitting sexual assault in court.
He was disbarred [1] on each of the three counts before the tribunal: the first over the conviction, the second over a text message he sent A the day after asking her to respond to a future message from him with an untruthful account of the previous evening, and the third over a similar text he sent to another barrister.
It was accepted that his aim was to pacify the suspicions of his partner, rather than to mislead the police.
Williams J rejected Mr Farquharson’s appeals against the tribunal findings; in relation to the first charge, it had been argued that the tribunal failed to consider that his drunken misbehaviour was a reaction to a medical condition.
She found the tribunal had erred in failing to consider the barrister’s article 8 rights to a private life in relation to the texts – raising again the issue of the extent to which a lawyer’s actions in their private life should be subject to regulatory oversight – but decided the interference with those rights was justified.
“The finding that charges 2 and 3 were made out was necessary and proportionate given the seriousness of the conduct involved and the importance of making clear to the appellant, to others in the profession and to the public at large that behaviour of this kind is not acceptable by a barrister,” she said.
When it came to sanction, the guidance made contrasting references to “clear mitigating factors” and “exceptional circumstances” when it came to deciding not to disbar in the case of a serious sexual offence.
This was more than simply semantics, the judge said: “The two concepts do not appear to be the same: clear mitigating factors may exist without circumstances being exceptional.”
The Bar Standards Board (BSB) accepted there was a “lack of clarity” and the judge said fairness indicated that any ambiguity should be interpreted in Mr Farquaharson’s favour.
Williams J said: “I consider that the panel’s approach was ‘clearly inappropriate’ (albeit understandable in light of the ambiguity) in looking to see if there were ‘exceptional circumstances’, rather than identifying whether there were ‘clear mitigating factors’ sufficient to depart from a starting point of disbarment.”
She continued that the mitigating features present were sufficient to amount to “clear mitigating factors”.
These included pleading guilty to the criminal charge, his previous good character and clean disciplinary record, that this was “a single incident (albeit a serious one)”, and the “substantial number of very positive testimonials from barristers, solicitors and other professionals who the appellant had worked with, many of whom are women”.
Further, he had expressed genuine remorse and taken “very substantial steps voluntarily to address his conduct and to prevent reoccurrence”, as well as addressing his confidential medical conditions.
In imposing the two-year suspension, Williams J said: “I do not consider that disbarment is necessary for the protection of the public or in order to maintain public confidence in the profession in all the circumstances.”
The sentence of disbarment imposed in respect of the other two charges, for which the tribunal gave no separate reasons, was “clearly inappropriate”, the judge continued. She replaced them with suspensions of four months and two months respectively, all to run concurrently from the tribunal’s decision on 21 October 2021.
However, Williams J also noted that “an unsatisfactory and concerning feature” of the mitigation before her were suggestions that “events were not all one way” as regards A and that the barrister did not accept there was a power imbalance.
Before the tribunal, Mr Farquharson did not challenge any aspect of A’s account and received the credit he was entitled to in consequence, the judge observed.
“Had he raised these matters, then it is quite possible that he would not have received that full credit and indeed he would have risked this being regarded as an aggravating factor.
“I can see no valid basis for raising these points at this late stage and no sensible or credible reason has been advanced for querying any aspect of A’s account.
“Whilst I will not treat this as an aggravating feature, inevitably, it does cause me to question whether the appellant has yet developed the full insight into his behaviour that he claims. He may wish to reflect on this.”
The judge made no order for costs, noting that the attempted appeal against charge 1 was “particularly weak”.
Mr Farquaharson’s barrister, Marc Beaumont of Windsor Chambers, highlighted the judge’s comment that the BSB “has yet to fully grapple with the implications” of the decision in the case of solicitor Ryan Beckwith, in which the High Court found [2] that cases should be tied to a specific rule rather than just a guiding principle.
He said: “After Beckwith v SRA, the core duty 5 standard used in the majority of cases by the BSB must be tied to a specific sub-stratum of rules. CD5 does not suffice as a conduct standard in its own right. The BSB Handbook is in need of reform.”