Court of Appeal: BSB official “blind to any sense of fairness” in disciplinary prosecution


Burnett LJ: “Conscious decision” subverted rules

The Court of Appeal has criticised in the strongest language the behaviour of an official at the Bar Standards Board (BSB) responsible for “subverting the rules” on disclosure.

Ruling in the case of a barrister accused of forging client care letters, Lord Justice Burnett described as “extraordinary” the BSB’s decision not to disclose a statement from the main prosecution witness.

Burnett LJ said a “conscious decision” was taken by an official, “which had the effect of subverting the rules which provide for disclosure and furthermore suggested that he was blind to any sense of fairness in the conduct of a disciplinary prosecution”.

The judge said Damian McCarthy, disbarred by a Bar disciplinary tribunal, was forced to serve his detailed statement and bundle “without sight” of the prosecution witness’s first statement.

A second statement was provided, which Burnett LJ described as an “amalgam” of evidence, comment and argument “intended to demolish” Mr McCarthy’s defence, “rather than to provide unvarnished evidence”.

Burnett LJ said that producing a statement of this kind “compounded” the BSB’s original error by inviting the main witness “to assume the role of surrogate prosecutor”.

Ruling in R (on the application of McCarthy) v Visitors to the Inns of Court [2015] EWCA Civ 12, he said “scrupulous standards” were required of the BSB when acting as prosecutor.

“This tribunal was concerned with very serious allegations which had the potential to destroy a professional reputation and bring to an end a professional career, even though its decision could not result in a criminal conviction.”

Burnett LJ held that Lord Justice Moses should have quashed the decision of the Visitors to uphold the disciplinary tribunal ruling disbarring Mr McCarthy when his judicial review was heard by the High Court; despite criticising the BSB, Moses LJ decided against doing so.

While recognising that there was a “strong case” against Mr McCarthy, Lord Justice Burnett allowed his appeal. Lord Justice Newey and Dame Janet Smith agreed.

After the ruling Mr McCarthy, formerly of Cloisters Chambers, told Legal Futures: “I have been disbarred for four years following a hearing that I have always believed was unfair and should not have led to my conviction.

“Naturally I am delighted that the Court of Appeal has now agreed with me. The last four years have been horrendous and all I want to do now is get on with trying to repair the damage that has been done to my career.”

He thanked his legal team, made up of David Reade QC and barrister Chris Quinn, instructed by Weightmans.

Dr Vanessa Davies, director general of the BSB, described the breach of the rules as a “very regrettable and serious mistake” which should have never have occurred.

Dr Davies went on: “Since this error, which happened over five years ago, we have produced a robust policy on the disclosure of documents in disciplinary proceedings.

“This is available on our website and all staff involved in BSB prosecutions are required to act strictly in accordance with it.

“Our complaints-handling processes have been regularly reviewed and independently quality assured since 2011 and these reports are also publicly available from our website. Following today’s judgment we are considering what further action we should take.”


    Readers Comments

  • JED Hunkin says:

    What was the name of the BSB official please. Such a person should be named and shamed. Misfeasance in a public office used to be treated seriously. Presumably, in modern Britain, it just merits a ticking-off.

  • I think to call this an error is rather generous.

    Not sure how a deliberate refusal to comply with the normal rules of natural justice could be termed an “error”. There must also be a much wider failure (deliberate or otherwise) of the individual prosecutor’s supervisors at the BSB to spot and correct this error.

    Vanessa Davies also seems to be trying to minimise the seriousness of this breach by saying it was just an error by an individual made 5-years-ago. In fact, the BSB has compounded the error by continuing to protest the unfairness of their actions right up to the Court of Appeal.

    Given that the BSB fought this glaring breach all the way to the Court of Appeal you have to suspect that the BSB as an organisation is at fault.

  • David Reade QC says:

    The lead “investigator” here, like the one in the infamous BSB v McCarthy case, has been allowed to leave the BSB without any disciplinary action being taken. Doubtless the BSB will exonerate itself again.

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