The Bar Standards Board (BSB) is to accept that some barristers should have disciplinary findings against them overturned because of “anomalies” in the constitution of the tribunal panel which made the decision, it has emerged.
A string of revelations since March cast doubt on hundreds of tribunal decisions over recent years because of what a damning recent report described as “systemic failures” in the administration of the tribunal system.
The main issue – in terms of the numbers affected – concerned the failure of the Council of the Inns of Court (COIC), which administers the tribunal system separately from the BSB, to properly appoint or renew the appointment of tribunal members. However, in an appeal last month, the Visitors to the Inns of Court found that this did not affect the validity of the decision taken by the panel.
The BSB has issued guidance that as a result, it takes the view that, despite the anomalies, the decisions of most past tribunals affected are valid.
However, the report by former Bar Council chairman Desmond Browne QC, commissioned by COIC, revealed a host of other appointment problems, including tribunal members appointed by the Bar Council, BSB prosecutors who were also sitting as tribunal members, and tribunal members who were also on BSB or Bar Council committees.
The BSB guidance said: “There are a small number of cases where we recognise that the anomalies could have produced a perception of (but not actual) bias. In these few cases, we are prepared to accept that the original decisions are rightly susceptible to being overturned and we do not intend to resist challenges to them. Nevertheless, we may seek to rehear the cases dependent on the circumstances.”
These circumstances include, for example, if the misconduct or sanction imposed was at the more serious end of the scale.
The barristers involved in such cases should have been informed directly of the position via individual letters from the BSB earlier this month. The BSB has also set up a dedicated helpline and e-mail address.
It said: “This matter has been and continues to be of concern to the BSB. The protection of the public, and the need to ensure that barristers are subject to fair disciplinary processes, demand the most rigorous disciplinary procedures. It is for this reason that we continue to work closely with COIC to resolve any outstanding administrative tribunal appointment errors, ensuring everything necessary is being done to resolve these historic cases.”