Bar to bring forward publication of disciplinary charges

The Bar Standards Board is to bring forward publication of disciplinary charges faced by barristers - but, following objections from practitioners, not until after a case management hearing 

Currently, the regulator does not name defendants until a date has been set for a substantive hearing and a convening order signed off – generally less than 14 days before the hearing takes place.

The BSB initially proposed either to publish details about cases when proceedings were underway, or to publish them after the initial case management hearing. Both options would have resulted in earlier publication than is currently made.

Following expressions of concern about the potential added stress for barristers, the regulator decided that publication should wait until after the case management hearing. The BSB said this would enhance openness and transparency but also give the parties extra time to address and resolve any preliminary issues.

The decision is set out in the BSB’s statement following a consultation last year on proposed ‘in principle’ changes to the bar’s enforcement regulations. The consultation coincided with the Harman review of bullying, harassment and sexual harassment at the bar.  

The BSB revealed last week that just eight responses were received by the consultation, all of which broadly supported the principle of bringing forward the publication of charges.

It added: ‘We consider that it will promote greater procedural fairness, by allowing the barrister or the BSB the opportunity to object to publication before it occurs. In our view, the opportunity to raise and determine such objections or applications outweighs the benefits of publication at an earlier stage.’

The issue of delays in publication were raised during last year’s Harman review into bullying, harassment and sexual harassment at the bar. Lady Harman (the former MP Harriet Harman) cited one case where 10 months elapsed between the decision to charge and any details entering the public domain.

She proposed that the name of a respondent should be made public when the decision is taken to pursue charges and that an interlocutory hearing should consider any applications for anonymity. This early naming hearing would ensure transparency for professional and lay clients, encourage potential further complainants to come forward in the knowledge that they are not alone, and may serve to protect potential victims of misconduct. 

However one respondent to the BSB consultation suggested that early publication of charges could ‘cause disproportionate reputational harm and unnecessary anxiety for the barrister concerned’. Another pointed out that publishing details when charges were brought would increase the time that the barrister and witnesses ‘have to endure this discomfort’.

The BSB also announced it would reset the ‘fitness to practice’ regime to facilitate a ‘more flexible and compassionate process’ to handling issues of physical or mental impairment. This was to be renamed the ‘health regime’, but one respondent to the consultation reflected much of the opposition when they said it sounded more ‘like a gym membership’. The regulator now proposes to name the regime along the lines of the ‘Health Panel and Procedure Regulations’, on which it will consult later this spring.