The High Court has refused judicial reviews of disciplinary decisions bought by three barristers, but criticised the rules governing hearings as ‘opaque’.
Lord Justice Moses and Mr Justice Kenneth Parker dismissed applications by David Leathley, Yash Mehey and Josephine Hayes having found that anomalies in tribunal panel member appointments did not affect the validity of the tribunal findings.
Moses rejected all but two of the arguments as being ‘totally without merit’, but made a series of adverse comments in respect of the Bar Standards Board and the Council of the Inns of Court with regard to the regulations governing the disciplinary tribunals and rules on hearings before the Visitors.
He said anyone reading COIC’s constitution, the relevant guidelines and memorandum of understanding would have required to undertake a ‘process bordering on Talmudic analysis’ to understand them.
‘To allow regulations and rules to become so opaque must expose the Bar Council to an allegation that it has failed to have regard to its legal obligation to abide by the principles of transparency imposed under Section 28(3) of the Legal Services Act 2007,’ he said.
The claimants had sought permission to challenge findings in relation to professional misconduct. The challenges related to the entitlement of some members of the disciplinary panels to sit rather than to the decisions in the individual cases.
The three claimed that some members of the disciplinary tribunals and the Visitors were not qualified because the duration of their eligibility to sit had expired.
Accordingly, they claimed, they were not tried by a tribunal established by law; within the meaning of Article 6 of the European Convention on Human Right the tribunal had no power to try them and the Visitors no power to uphold the findings.
Last year a report by former bar chair Desmond Browne QC uncovered ‘systemic failures’ in the disciplinary regime. The cases of the three barristers in this challenge were all adjudicated before changes to the system were introduced following that report.
In a joint statement, barrister Marc Beaumont and Joel Leigh, consultant at London firm CKFT, who represented Mehey and the Bar Mutual Indemnity Fund, said: ‘The divisional court has in effect held that the argument that a disciplinary judge had an undisclosed income from the BSB as the prosecuting authority was totally without merit; that it does not matter if a disciplinary judge’s tenure has expired; that the agreed process for appointing disciplinary judges can be ignored totally; that it does not matter that the prosecuting authority appointed disciplinary judges to the COIC pool for several years and that serious delays in the Visitors’ appeals process do not matter either.’
The statement continued: ‘This case is about due process and a fair deal for the bar by the bar.’ It said an application for leave to appeal is in the process of being made.
A BSB spokesman said: ‘We are pleased that the court found all but two of the specific challenges made by the claimants to be totally without merit and refused the applications on the two issues it considered were arguable.
‘The judgment confirms the Bar Standard’s Board’s original view: that most of the historic anomalies, while a matter of great concern to us, did not affect the validity of the findings made in the cases that were potentially affected.’
He said the BSB noted Moses’ comments on the disciplinary tribunal regulations and we will be considering the points raised. ‘We will, by the end of the year, have issued a report setting out the progress made in improving the system a year after the Browne Review and its 82 recommendations,’ he added.
Read the full judgment.