The Bar Standards Board (BSB) has successfully defended a challenge to the validity of a disciplinary tribunal, in the first case to be argued over flaws in the system of reappointing tribunal members.
As Legal Futures has reported in a series of stories, issues emerged initially over the impact on previous rulings of around 80 tribunal members not being formally reappointed when their initial terms expired.
Disciplinary panels are administered by the Council of the Inns of Court (COIC) to ensure their independence from the BSB.
Appeals against disciplinary tribunal rulings are heard by the Visitors of the Inns of Court, and in what is seen as a test case yesterday a Visitors panel headed by Mr Justice Singh handed down a decision comprehensively dismissing a preliminary challenge over the appointment of barrister John Smart as one of five members who sat on a tribunal that that found proven a charge of conduct unbecoming a barrister against Carron Ann Russell in 2010.
Singh J said the tribunal was properly constituted in accordance with the Disciplinary Tribunals Regulations – which do not require a member to be on COIC’s list of barristers volunteering to sit on tribunals – and so the fact that Mr Smart was no longer eligible to be on the list did not render his nomination invalid.
The Visitors went on to say that even if they were wrong on this, Mr Smart had de facto authority to sit as a member of the tribunal. The BSB said that COIC will now be writing to affected parties.
BSB chair Baroness Ruth Deech said: “Today’s judgment is welcome news for COIC and BSB. We are extremely pleased that the Visitors have independently confirmed the validity of the composition of the tribunal panel concerned.
“We will continue to closely monitor COIC’s progress in relation to the situation and look forward to the imminent report from the COIC review group on its tribunal services. This will help to inform our options for the administration of the BSB’s disciplinary system, currently under active consideration.”
The decision does not yet mean that COIC and the BSB are out of the woods, as there remains a smaller number of cases – about 85 – where tribunal members had simultaneous membership of a Bar Council or BSB committee, leaving them open to claims of apparent bias.
A further concern has also emerged over the position of a barrister who sat on the BSB’s professional conduct committee – which sends cases to the tribunal – at the same time as being a member of the COIC’s body that appoints tribunal members.