Two-thirds of the reports of sexual misconduct by barristers received by the Bar Standards Board (BSB) over the past two years have been referred for regulatory action, it has revealed.
It was responding to a request for information from the Bar Council, which has expressed concern over the handling of harassment cases by the Bar Tribunal and Adjudication Service (BTAS) ahead of the upcoming review of the sanctions guidance.
In a joint letter, Bar Council chair Derek Sweeting QC, and Elaine Banton – chairs of the equality, diversity and social mobility committee – said: “Many barristers have spoken to us about what appears to be a trend indicative of a level of inconsistency in sanctions based on offence.
“For example, a case where a practising barrister was awarded a more severe sentence for failing to renew a practising certificate, compared to another barrister who sexually assaulted two women at a Bar-related social event.
“Rather perversely and seemingly not reflective of the seriousness of offences, the practising certificate offence received a four-month suspension as opposed to the sexual assaults receiving a three-month suspension.
“Whilst we appreciate that individual cases may not be always be comparable, such examples do give the appearance of being out of step and may understandably give rise to public concern.
“They are also likely to reduce confidence on the part of the public and amongst barristers that the profession is dealing appropriately with allegations of sexual misconduct and harassment.”
BSB chair Baroness Blackstone said in response that, of the 21 reports of sexual misconduct by barristers associated with their work since March 2019, three were still at the initial assessment stage and four were dismissed.
The remaining 14 were referred for some form of regulatory action: 12 were sent for investigation with a view to taking enforcement action and two were referred to the supervision team “as the issues involved were more appropriately addressed by supervisory action”.
Six of the 12 investigation cases are still continuing. One is not being taken forward as sexual misconduct and another has been combined with an existing investigation. The other four cases resulted in referrals to a disciplinary tribunal.
The Bar Council letter pointed out that it raised concerns back in May 2019, specifically around the quality of caseworker support available to complainants, the type of training provided to those on disciplinary panels, and greater consideration of the impact on the complainant.
“We are disappointed that there are still clearly issues with the investigations and sanctions process in this sensitive area.
Baroness Blackstone said investigations of sexual misconduct allegations were handled by trained senior officers or managers, all of whom were legally qualified.
“Complainants are given a named caseworker as a contact point who, as far as possible, remains their primary point of contact for all matters throughout the investigation and any subsequent disciplinary proceedings.”
Both caseworkers and any counsel representing the BSB in these cases undergo vulnerable witness training. Complainants are also signposted to the services provided by LawCare and Victim Support.
Baroness Blackstone added: “We are actively exploring with several external support organisations the possibility of the BSB funding dedicated and bespoke external support services, to run alongside and throughout the progress of our enforcement process.”
She said the regulator was satisfied that the impact on victims was fully taken into account in the disciplinary process.
The Bar Council also asked what was being done to address the under-representation of women on BTAS panels.
Nineteen of the 50 panel members and clerks are women, with the disparity particular marked among QC members, of whom just three of 13 are women.
“Every effort will be made to ensure that 2022 recruitment exercise does all that is possible to ensure a diverse and representative a panel is recruited,” Lady Justice Simler, chair of the Tribunal Appointments Body, and His Honour Judge Carroll, chair of the disciplinary tribunal, said in a joint reply.
All panellists have received training in unconscious and implicit bias, equality legislation, and harassment, bullying and victimisation, with further training on vulnerable witnesses planned for later in the year.