Call to curb return to practice of barristers suspended for sexual misconduct

Barristers: Compulsory CPD call

Barristers suspended for sexual misconduct should face conditions when they return to practice, such as bans from taking pupils or being featured in legal directories, a campaigning group has recommended.

Behind the Gown also said such barristers should face compulsory continuing professional development (CPD).

Behind the Gown was set up in 2018 by barristers committed to tackling harassment at the Bar, in the wake of the MeToo movement.

Members includes a number of leading female QCs, such as Baroness Helena Kennedy, the leader of the Western Circuit Kate Brunner and former Criminal Bar Association chair Angela Rafferty.

The group was responding to the Bar Tribunals & Adjudication Service (BTAS) consultation on new sanctions guidance following a wave of complaints that sentences, particularly for sexual misconduct, were not tough enough.

The revised sanctions for sexual misconduct range from a 12-month suspension to disbarment.

Behind the Gown’s response said: “Therefore, once a suspension period ends, the barrister can return to practice unrestricted. This is concerning particularly if no remediation work to tackle predatory behaviours has been done.

“Behind the Gown considers that a more nuanced approach to sanctioning for sexual misconduct is necessary not just to reflect the harm that this behaviour causes but to promote proper standards of behaviour going forward.”

It said CPD and conditions on practising certificate were “underutilised sanctions”.

The group said there “public confidence issues” raised by a barrister continuing to accept certain types of work following a finding of sexual misconduct.

“A complainant in a rape trial might be concerned and disillusioned to know that a barrister appearing in their trial has a recent disciplinary finding of sexual assault.”

In some cases, “serious thought” should be given to removing the barrister from the Crown Prosecution Service list to ensure public trust.

“Similarly, where a complaint of sexual misconduct made by a pupil barrister against a pupil supervisor is upheld, it should be a condition of the barrister’s practice that they do not take on pupils.

“As part of the research into this response, Behind the Gown spoke with V who experienced conduct amounting to sexual assault by a practising barrister. Following the finding, V questioned why the barrister continued to be marketed as being a leader in their field.

“We consider that in some cases, a barrister should forfeit their right to be marketed in directories such as the Legal 500 and Chambers and Partners.

“To continue to be marketed in this way sends a message that one can sustain a professional reputation undimmed despite a finding of sexual misconduct.”

The group said compulsory CPD should be imposed on barristers suspended for sexual misconduct, or discrimination and bullying.

“Certain cases of sexual assault and sexual harassment will warrant completion of relevant programmes to demonstrate that the barrister has addressed concerns raised by their misconduct.

“The same could be imposed following findings of discrimination and bullying, for example, mandatory unconscious bias training.”

The response recommended that BTAS reconsider having as a factor whether the misconduct was a one-off incident or part of a course of action.

“One incident of assault for example is one too many and could be equally if not more blameworthy than a course of action. It ought not to be viewed as less serious simply because it does not form part of a series of potentially differing incidents.”

It suggested too that ‘Behaviour resulted in a criminal conviction or court order’, listed as an aggravating factor for misconduct of a sexual nature, should not apply to instances of sexual assault or harassment.

“Whether or not a victim chooses to go to the police to report sexual assault or harassment should not elevate the seriousness of the sanction…

“There are many reasons why a victim does not report the misconduct which amounts to a criminal offence, and this should not be a factor reflected in a lesser sanction.”

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