High Court: Tribunal decision upheld
The High Court has rejected an appeal from a criminal law barrister suspended for six months [1] by a Bar disciplinary tribunal for lewd comments to a female mini-pupil.
Mr Justice Soole said [2] Robert Kearney had failed to accept responsibility for his actions and the tribunal had taken into account the “limited” mitigating factors in reaching its decision.
Mr Kearney, who was called in 1996, met Ms A while she was working as a waitress in a restaurant in the same building as his chambers in Manchester.
Ms A told him she was “a law student and aspiring barrister”. He offered to help her find a mini-pupillage and she took his card. In January 2015 she undertook a three-day mini-pupillage.
Shortly afterwards, Ms A complained to family and friends – in particular her mother, aunt and boyfriend (now husband) – about Mr Kearney’s crude sexual remarks to her.
But “in the light of their advice”, she decided not to take the matter further, only complaining to the Bar Standards Board (BSB) in November 2018 after reading that Mr Kearney had been reprimanded and fined £1,000 [3] for his “disgraceful” drunken behaviour at an informal Bar Mess event.
Among the “uncomfortable, hostile and intimidating statements” made to the pupil were that Mr Kearney had “buttfucked another chambers dry”.
He also said he “kept his nails short as he can’t finger a woman with long nails” and that “eating pineapple makes semen taste better”.
Mr Kearney was said to have asked Ms A if she had ever had sex in her parents’ house, told her to wear short shirts and heels rather than trousers and asked her bra size.
The barrister told the tribunal that he did not remember having Ms A as his mini-pupil and denied most of the allegations. The tribunal said his view of events “verges on the evasive”.
Mr Kearney’s appeal was based mainly on the delay in bringing the complaint, which he said made it procedurally unfair and affected the witnesses’ memories.
Soole J saw “nothing to question” the conclusion that there was sufficient evidence of a potential breach of the handbook, that the conduct was serious and that in the circumstances it was in the public interest for the complaint to be considered notwithstanding the passage of time.
The judge did not accept that only an “exceptional case” should reach the tribunal where there was a delay of more than a year to make the complaint.
The reliability of the evidence, meanwhile, was “a classic issue of fact” for the tribunal.
Mr Kearney argued that the sanction was contrary to the published guidelines, excessive, too focused upon general deterrence and unnecessarily punitive.
Soole J disagreed. Two of the aggravating factors in the case were “specifically identified” in the BSB guidance: Mr Kearney’s failure to accept responsibility for actions and the “significant negative impact” on the victim.
Other aggravating factors included premeditation, undermining the profession in the eyes of the public and the earlier disciplinary finding.
There were “limited” mitigating factors, such as character references and the impact of the pandemic on the barrister’s practice.
Counsel for the barrister had argued that by March 2021, when the tribunal suspended his practice for six months, it had already been suspended for a year because of the pandemic.
Soole J dismissed the appeal on all grounds.