Court: Barrister went over the line
A barrister who asked a judge if there was any point in making a submission “because you’re going to rule against me anyway, aren’t you?” has been fined for misconduct.
Chandra Sekar also informed the jury of a ruling the judge had made in its absence and repeatedly sought to reargue one of her decisions.
The Bar disciplinary tribunal said it had “careful regard to an advocate’s duty to advance their client’s case fearlessly” but Mr Sekar’s approach to the latter had been “unduly rude” and inappropriate.
The events occurred at a criminal trial before Her Honour Judge Elizabeth Smaller in July 2024 “where much was at stake, the matters were complex, with an evolving prosecution case, and where the respondent’s client had concerns about the approach of the judge and where all were under time pressure”.
The Bar Standards Board’s case was based on selected audio recordings and parts of the transcript from a trial that lasted several days – the tribunal acknowledged that it had read and heard only very small parts of it.
Mr Sekar, who was called in 1996, accepted “in general terms” that he acted inappropriately and that “his exchanges with the judge may have crossed the line (as he puts it)”, but denied his actions amounted to professional misconduct.
The tribunal disagreed. It found that he failed to observe his duty to the court, behaved in a way which was likely to diminish the trust and confidence in the profession and “abused his role as advocate”.
“The tribunal accepted that not every heated exchange or ill-chosen remark by a barrister will cross the seriousness threshold.
“The tribunal also accepted that, in broad terms, the respondent had acted, as he saw it, to ensure that his client had a fair trial and that his instances of misconduct had stemmed from what he perceived to be incorrect judicial rulings.
“Even allowing for that subjective belief though, the tribunal found that the respondent’s behaviour looked at in the round over the course of several days was disproportionate and unacceptable.”
The need to put forward a client’s case fearlessly, using all proper means, did not excuse Mr Sekar’s “clear and repeated failure to act appropriately”.
The tribunal went on: “Although his motivation may have been understandable, his conduct was disproportionate and plainly unacceptable.
“The respondent’s conduct marked a serious departure from the professional standards expected of a barrister.”
When making submissions on a point of law, Mr Sekar said to the judge: “Is there any point, your honour? Because you’re going to rule against me anyway, aren’t you… I’ve made submissions, make your ruling, just say ‘No, Mr Sekar’, as before.”
The tribunal said he had “cut-off the judge” and spoken to her disrespectfully.
“Whatever the legal correctness of the respondent’s submissions (and the tribunal was not required to decide the point) the conduct of the respondent was unacceptable and could reasonably be taken to undermine the role of the judge.”
Mr Sekar informed the jury that HHJ Smaller had made a ruling in its absence requiring him to put a question to a prosecution witness.
The barrister had “strongly disagreed” with being told to put a question to a witness “where this was not part of their case and where they considered it was not in their client’s best interests to do so”.
Again, the tribunal did not decide whether the judge was correct. Once the judge had made her ruling, he was required to accept it. His conduct had disrupted proceedings and caused the jury to be sent out.
Mr Sekar accepted that, although not his intention, his conduct could be seen as undermining the judge and that he had gone “over the line”.
The third charge found against him was that he repeatedly sought to reargue the judge’s decision to bring his cross-examination of the prosecution’s key witness to a close and require that any further questions be provided to the court in writing.
Mr Sekar argued that it was “unfair, if not unheard of, for defence counsel to be interrupted in the closing stages of their cross-examination, particularly where they would ordinarily save certain of their strongest points to last”.
But he admitted his language and approach in challenging the judge was inappropriate. At one point, he spoke over the judge and “repeatedly and aggressively challenged her even when he was invited to stop doing so”.
Another allegation that Mr Sekar had inferred that HHJ Smaller was biased was not proved, and the BSB withdrew further allegations that he had spent an excessive amount of time conducting his examination in chief and cross-examination.
The barrister was fined £500 for each charge found, £1,500 in total, and ordered to pay £6,100 in costs.