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‘Named and shamed’ barrister gets judge removed from disciplinary appeal hearing

RCJ [1]

Judge was pupil master to BSB counsel “and remained a friend”

Tariq Rehman, the immigration barrister ‘named and shamed’ by the Legal Ombudsman [2] (LeO) for the number of complaints against him, has succeeded in a last-minute bid to remove the judge due to hear his appeal against a disciplinary ruling.

Mr Rehman, based at Kings Court Chambers in Birmingham, argued that the judge should recuse herself on the grounds of her relationship to both the chairman of the Bar disciplinary tribunal and the counsel for the Bar Standards Board (BSB).

Mr Rehman’s appeal related to a ruling last October by the Bar Tribunals and Adjudication Service (BTAS), which suspended him for two months over conduct likely to diminish public confidence in the legal profession or bring it into disrepute.

The tribunal found that in November 2011, in a telephone conversation with a solicitor, Mr Rehman “alleged that the solicitor had forged the date on a section 21 Housing Act 1988 notice, and when he made that allegation he did not have before him reasonably credible material which established a prima facie case of fraud against the solicitor”.

According to a Lawtel report of an ‘ex tempore’ High Court hearing last week, Mrs Justice Laing said that where there was an appeal involving the BSB, the Administrative Court should ensure that “a judge allocated to a case did not have a connection to the parties”.

The High Court heard that the original appeal judge “contacted the parties, stating that she had been the pupil master to counsel for the BSB and remained his friend”.

The judge asked if either party thought recusal was necessary, but neither responded.

“On the day of the hearing the appellant barrister emailed the judge’s clerk stating that he intended to make a recusal application.”

Mr Rehman argued that not only was the original judge connected to the BSB’s counsel, but she was a former member of the same chambers as the chairman of the disciplinary tribunal.

“The barrister submitted that the judge, consciously or subconsciously, would behave more favourably towards the BSB because of her connection to its counsel, and would also behave more favourably towards the disciplinary tribunal because of her connection to the chairman.”

Laing J held that the judge would not have been more favourably disposed to the BSB or its counsel because of her connections to them.

“However, the appellant’s perception had to be considered and, because of that perception, recusal from the appeal was necessary.”

The appeal was adjourned so another judge could be appointed.

Laing J added that in future the Administrative Court office should inquire well in advance if there were any objections to the case being allocated to a particular judge, and the parties would need to respond in advance.

A spokesman for the BSB confirmed that the Lawtel report was an accurate account of the outcome of the hearing.

“An email from the judge asking both parties for their views on whether she should recuse herself was received less than two working days before the hearing was due to commence,” he said.

“In keeping with standard practice in such matters, the BSB decided to wait to learn of the applicant’s views on the matter before responding. Unfortunately these views were not made known until the morning of the hearing.”

In a further ruling published last month, Mr Rehman was again suspended for two months [3], this time for three similar offences of failing to pay other barristers. According to BTAS, an appeal against this ruling is pending.

In January, a Bar interim suspension panel decided [4] that Mr Rehman could continue to practise as a barrister, pending the outcome of any disciplinary action over the LeO announcement, but should be prevented from taking on any new public access cases for four months, or until the date of a disciplinary hearing of future charges against him if earlier.

Mr Rehman has described the LeO announcement [5] as “misleading”.