The legality of the bar’s disciplinary system has been called into question this week as the High Court hears three claims for judicial review.
The cases have been brought by three barristers in relation to charges of professional misconduct brought by the Bar Standards’ Board.
In each case the charges were upheld by the bar’s disciplinary tribunal, established by the Council of the Inns of Court (COIC), and subsequent appeals to the Visitors of the Inns of Court dismissed.
These claims seek judicial review of the decisions of the visitors and raise issues about the lawfulness of the system for dealing with complaints of professional misconduct against barristers. The three cases were all adjudicated before changes to the system that followed last year’s report on the disciplinary regime by former bar chair Desmond Browne QC.
Browne recommended the creation of a new tribunal services after uncovering ‘systemic failures’ in the regime, including issues about eligibility of tribunal members and potential conflicts of interest.
The cases before the High Court relate to the entitlement of panel members to sit rather than to the decisions in individual cases.
In essence their claims are based on the fact that as a result of the flaws before the reforms, neither the disciplinary tribunal nor the visitors were an independent or impartial tribunal, in contravention of article 6 of the European Convention on Human Rights.
Specific claims, raised by some or all of the claimants, as laid out in the skeleton argument provided by the BSB as an interested party in the cases include that:
- members of panels sat beyond the time when their eligibility to be included on the COIC panels had expired;
- lay and barrister members of the disciplinary tribunals and visitor panels were not independent of the prosecuting authority, the BSB, because the body intended to vet those who wished to be on the COIC panel included a person who was a member of the BSB’s professional conduct committee or had been a member – giving rise to an appearance of bias or lack of independence on the part of all panels;
- lay and barrister members of disciplinary tribunal and visitor panels could be removed without cause from the COIC panel. The possibility of such removal meant that the members were not independent or impartial as required by article 6 and led to an appearance of bias;
- there was an appearance of bias because lay members were paid fees and expenses by the BSB;
- the guidance provided to members of the panels by COIC and which had been produced by it in conjunction with the BSB contained subliminal messages in favour of conviction.
The three cases are those of Yash Mehey, represented by John Hendy QC, David Leathley, represented by Marc Beaumont and Josephine Hayes, who represented herself. All three contested the charges.
The BSB was represented by Paul Nicholls QC and Tom Cross.
The charges faced by Mehey included that he had drafted an application for judicial review which he knew was not properly arguable; on more than one occasion knowingly or recklessly attempted to deceive or mislead or had misled a court; withdrawn from a case where there were no grounds to do so; received or handled client monies other than by way of receiving payment of remuneration; failed to comply with a request from the Criminal Appeals Office to comment on grounds of appeal for consideration by a judge; failed to attend a directions hearing; and made a claim for counsel’s fees which was inaccurate, excessive and not shown by evidence to have been agreed by his lay client.
The Disciplinary Tribunal upheld the charges and imposed a number of sentences, including that he be disbarred on three charges.
Hayes was charged with failing to undertake the requisite 12 hours’ continuing professional development activity or to submit a record card within the time required and that she failed to pay a £100 fine imposed by the BSB for her failure to undertake the necessary CPD hours. Her case was that she had undertaken the required CPD hours because she had spent time writing for professional publications.
Leathley was charged with conduct discreditable to a barrister because he had telephoned a member of staff at the Criminal Appeals Office at the Royal Courts of Justice in order to enquire after another member of staff who was a witness in a disciplinary tribunal.
It was alleged that in the course of the telephone call, Leathley claimed to be Joel Bennathan QC, counsel who was acting for the BSB in the disciplinary proceedings.
The case is being heard by Lord Justice Moses and Mr Justice Parker. It is listed for three days and judgment is expected to be reserved until next term.