The High Court has upheld the disbarment of a barrister who claimed his disciplinary tribunal was influenced by judicial bias and undue influence exercised through the press.
Damian McCarthy had a tribunal sanction against him quashed in the Court of Appeal in 2015, but when the matter returned to the Council of the Inns of Court in June last year he was once again banned from the profession.
McCarthy, who practised at Cloisters Chambers, was charged after allegedly sending the Bar Standards Board four client care letters in an employment matter which he falsely asserted were sent to a client to comply with Public Access Rules. The BSB argued that McCarthy acted dishonestly and falsified the letters during an investigation into how he had handled the case.
After a four-day hearing last June, McCarthy had two charges of professional misconduct proved against him and was disbarred by the tribunal, which was chaired by Her Honour Judge Veronica Hammerton.
But the barrister challenged the decision on the basis that Hammerton had been a pupil of His Honour Judge Crawford Lindsay QC, who was the chairman of the previous disciplinary tribunal, and whose decision McCarthy had successfully appealed.
McCarthy argued that a pupil felt respect, affection, gratitude and deference towards a pupil master, which was likely to be life-long. He submitted Hammerton would defer to Lindsay’s views, whether consciously or not, and be disinclined to reach a different conclusion over McCarthy’s guilt.
He alleged there was such a similarity between the rulings that Hammerton ‘must have secretly obtained a copy of [Lindsay’s] previous report, demonstrating her wish not to undermine or contradict him’.
But sitting in the High Court last month in McCarthy v Bar Standards Board, Mrs Justice Lang DBE said there was ‘no substance’ to the allegation of any collusion. She said the tribunal chair in 2016 had been open about her connection with the previous tribunal chair, and was entitled not to answer McCarthy’s subsequent questions about links between the pupil and pupil master.
Lang refused an application to provide more information, as the court had sufficient information about the connection between each chair, and any fair-minded and informed observer would conclude there was no possibility that Hammerton would be biased.
Lang added: ‘A judge frequently has to have regard to interlocutory or final decisions bearing on the case before him, made by fellow judges, who may be close friends or senior colleagues who may be informal mentors or who may exercise administrative powers over him.’
‘In my view, it is an integral part of judicial work to hear and determine a case without fear or favour, setting aside personal preferences and loyalties.’
Lang also rejected another ground of complaint based on a press release issued by the BSB almost a year before last summer’s hearing, which stated that the regulator remained of the view that McCarthy acted dishonestly and falsified client care letters.
The release, which was reported on in the legal media, including the Law Society Gazette, was said to have placed ‘improper pressure’ on members of the tribunal to find the charges proved at the retrial.
Lang agreed the BSB went ‘somewhat further than was proper’, but it was entitled to express its view and the same argument was advanced at the re-heard tribunal.
She said it was ‘inconceivable’ members of the tribunal were improperly influenced: they were trained and given guidance on their role and they were well aware of the principle that the BSB had to prove McCarthy’s guilty.
The disbarment sanction was upheld and the appeal dismissed.