The Bar Tribunals & Adjudication Service (BTAS) has rejected the argument that a starting point of 12-months’ suspension for sexual misconduct is too much for some less serious types of behaviour.
Some respondents to its consultation on new sanctions guidance suggested that a year’s suspension would be “disproportionate” for misconduct such as telling a crude joke, wolf-whistling, sending a message of a sexual nature on social media, or consensual sexual activity with a partner in a public place.
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.
In its report on the consultation – which attracted 41 responses – BTAS said it did not agree that what was termed ‘low level’ misconduct by some should attract lesser sanctions.
“Sanctions imposed by tribunals can only follow a finding of professional misconduct, which by definition means the proved misconduct was considered to be serious,” it said.
“If conduct falling within these groups has reached this stage of the disciplinary process, then our view remains that it should attract a serious sanction if public trust and confidence in the profession is to be maintained.”
The majority of respondents agreed with nearly all proposals contained in the consultation paper and BTAS is now working on a final draft of the new guidance that will go out for a further consultation in early September.
The revised guidance is scheduled for issue in December and implementation at the start of 2022.
The final draft will incorporate a variety of suggestions made in the responses, such as including CPD orders and restrictions on the respondent’s practice as other sanctions that could be applied for misconduct of a sexual nature, and discrimination and harassment.
Respondents including campaigning group Behind the Gown “expressed the view that CPD requirements and/or conditions on practice should be imposed on barristers who are suspended for sexual misconduct upon their return to practice”, BTAS recorded.
“The CPD requirements would be aimed at re-educating and remediating offending barristers, while conditions on practice could be used to prevent, for instance, barristers who have been found to have committed sexual assaults from acting in criminal sexual offences cases.
“Other suggested uses of conditions included preventing those who have sexually harassed pupils from supervising pupils in future or requiring barristers to request removal of their names from legal directories.”
BTAS said it would include many extra factors going to culpability and harm that were put forward by respondents, such as removing or attempting to pull aside clothes, “penetration by body part or other object”, grooming, a significant disparity in age or experience, the respondent using drink or drugs (“plying, for example”), and the location of the misconduct.
Some respondents felt that a criminal conviction or court order should not be included as an aggravating factor in cases involving sexual misconduct or discrimination and harassment, because there were many reasons why the victim would not report it to the police, and this should not result in a comparatively lesser sanction for the perpetrator.
A common theme in several responses was that evidence of a mitigating factor should be properly scrutinised before it was applied.
“For example, reasons why there is said to be a ‘low risk of repetition’ must be properly considered, and it should be borne in mind that an apology may be made disingenuously with a view to using it as mitigation – in which case, it should not count as mitigation.
“The Bar Council expressed concern in relation to sexual misconduct in particular that barristers may attempt to distance themselves from their behaviour by describing it as ‘banter’ or offering apologies which are not genuine, meaning that apologies must be properly scrutinised before being counted as mitigation.”
The BTAS response did not address these points directly and respondents will have to wait until the second consultation to see how they are dealt with.