Treat personal mitigation “with caution” in cases of sexual misconduct

Sexual misconduct: New guidance beefs up advice

Personal mitigation needs to be treated with “caution” in the context of sexual misconduct, discrimination and harassment, draft new guidance on disciplining barristers warns.

“The nature of such misconduct means that serious sanctions are required to protect others and promote standards regardless, in most instances, of the respondent’s own circumstances,” it says.

“Many practitioners will face personal challenges, such as ill health, bereavement and divorce, but do not resort to committing misconduct.”

The advice is contained in a draft of revised sanctions guidance that will be used by the Bar Tribunals & Adjudication Service (BTAS).

This is the last stage of a project that began earlier this year 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 on indicative sanctions and a paper outlining the outcome in late July, BTAS yesterday published a second consultation on the actual wording of the new guidance, which will be the sixth iteration since it was first published in 2014.

It introduces specific advice on the approach to be taken in cases of dishonesty, sexual misconduct and discrimination.

This includes urging disciplinary panels to be mindful not only of the serious harm that sexual misconduct, discrimination, harassment and bullying can cause to the recipient’s emotional and mental well-being “but also the impact on others at the Bar, those considering entering the profession and wider society”.

It stresses: “A single incident can have a significant harmful impact and misconduct of this nature should not be regarded as less serious because it did not form part of a course of conduct.”

The draft guidance reflects a range of suggestions that have been made in relation to sexual misconduct.

For example, it says conditions on practising certificates “may be particularly effective in relation to misconduct of a sexual nature and other forms of misconduct that may require the respondent to address the reasons for their behaviour or gain greater insight”.

The fact that the person who was targeted in sexual misconduct, discrimination and harassment cases did not report the behaviour to the police “should not in itself be seen as reducing the seriousness of the behaviour, as there are many reasons why they may have chosen not to report it”.

It also says character evidence is likely to hold “little weight” where it relates to dishonesty, misconduct of a sexual nature or discrimination, non-sexual harassment and bullying.

“This is because it is very possible that when instances of such proven misconduct come to light, they will be perceived by many as ‘out of character’ but this does not mitigate the conduct itself or the harm it will have caused.”

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 proposed replacement would put a suspension of between 12 and 24 months as the indicative sanction, with 24 to 36 months for “middle range” misconduct and disbarment for the worst behaviour.

The guidance also proposes multiple factors going to the seriousness of the offence, such as abuse of power, misconduct taking place in a professional context, contact with bare skin and “other degradation, for example recording or photographing the misconduct”.

The section on social media – another contentious area given the overlap there can be between barristers’ professional and personal behaviour – makes clear that “the misconduct can occur in communications made by a barrister in both their professional and non-professional life”.

Factors affecting the seriousness here include “deliberate, calculated attempts to offend or being reckless as to whether offence is caused”.

The consultation closes on 21 October with a view to the new guidance coming into effect on 1 January 2022.

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