Misconduct: New guidance to come into force next week
The Bar Tribunals & Adjudication Service (BTAS) has gone a step further in toughening up its sanctions guidance for barristers found to have been involved in sexual misconduct and discrimination.
The revised sanctions guidance will now go live on 1 January 2022.
The guidance has been reviewed in response in particular to concerns about the seemingly low-level sanctions imposed on barristers found guilty of sexual misconduct.
Following a consultation in April [1] on indicative sanctions and a paper outlining the outcome [2] in late July, in September BTAS published a second consultation on the actual wording [3] of the new guidance, which will be the sixth iteration since it was first published in 2014.
The current guidance says the starting point for “minor offences of inappropriate sexual conduct in a professional context” should normally be a reprimand and a medium-level fine, to a short suspension.
The starting point has been changed to a suspension of between 12 and 24 months, with disbarment for the worst behaviour, but for ‘middle range’ misconduct the proposal was a suspension of 24 to 36 months.
These are cases where BTAS has found ‘moderate culpability and moderate harm’, ‘significant culpability and limited harm’ or ‘low culpability and significant harm’.
BTAS has now decided that the upper limit should be disbarment.
It said it had “considered carefully” comments made in response to the consultation by the Bar Council and General Medical Council (GMC).
The GMC said it considered that “the inherent seriousness of the behaviour in most sexual misconduct cases means that the most serious sanction is usually appropriate”.
However, “it acknowledged that there are some cases where suspension may be appropriate”. The Bar Council backed the GMC’s tougher approach.
BTAS said: “We accept that limiting the middle range to 36 months suspension from practice may not be appropriate where, for example, there is high culpability and low harm.
“We have therefore, as suggested, changed the middle range to 24 months suspension up to disbarment.”
It has made the same change for the misconduct group that covers discrimination, bullying and non-sexual harassment.
However, BTAS did not agree with the Bar Council and Family Law Bar Association (FLBA) that freedom of expression needed to be expressly referenced in relation to cases involving social media misuse.
The Bar Council suggested that an additional mitigating factor should apply in social media and communications cases, namely “the public interest in freedom of expression and the right to receive and impart information, including whether the material highlighted is a matter of public interest.”
The Bar Council argued that the guidance should address “how the balancing of competing rights should be approached”.
BTAS said it acknowledged that freedom of expression was “an essential factor when considering issues of inappropriate use of social media”, but this did not need to be covered in the guidance.
“The balancing exercise referred to by the Bar Council and FLBA would have been carried out at the findings stage when determining whether there has been a breach of the BSB Handbook sufficiently serious to amount to professional misconduct.”
In his introduction to the new 90-page guidance, Desmond Browne QC, president of the Council of the Inns of Court, said: “The aim is to promote both transparency and consistency so that the public and the profession know the principled basis on which sanctions will be decided and are able to identify the probable range of sanction for any particular misconduct…
“Those imposing sanctions are free to depart from this guidance where appropriate, but where that occurs, they must be sure they can, and do, explain their reasons with clarity.”
Bar Standards Board director-general Mark Neale said: “We welcome the introduction of the new sanctions guidance and the authority it gives to disciplinary tribunals to impose tougher sanctions in cases involving a wide range of professional misconduct.
“I particularly welcome the increased sanctions for cases involving sexual harassment which I hope will send a clear message that such conduct is completely unacceptable.”