WhatsApp: Barrister sent defendant message following hearing
A prosecuting barrister suspended for “unwanted behaviour of a sexual nature” towards a “very vulnerable” female defendant acted intentionally rather than recklessly, a tribunal has ruled.
The Bar disciplinary tribunal rejected the argument of both Drew St’Clair and the Bar Standards Board that he had only been reckless in seeking the woman’s phone number and then calling her to invite her out to dinner.
“We disagree. The respondent acted intentionally when he obtained Person A’s phone number, when he entered the details on his own phone, when he phoned her, and when he sent her a What’sApp message.”
The decision to suspend Mr St’Clair, called in 2001, for 26 months was announced last November but the reasoning behind it has only recently been published, even though it is dated 29 January – an unusually long wait.
Legal Futures contacted the Bar Tribunal and Adjudication Service to ask about when it would be published on the same day, by coincidence, and again in February, but received no reply.
Counsel for Mr St’Clair argued that there was “no sexual language, no threats, no assault, no bullying” in the three attempts he made to contact the woman after the hearing at Willesden Magistrates Court – twice by mobile phone and once by WhatsApp.
His behaviour could not described as “persistent” and “could not reasonably be described as sexual”, she contended.
Rejecting this approach, the tribunal said: “The fact that sexual language was not used is irrelevant. This was a woman he was pursuing because of his own romantic intention.
“The fact that the behaviour was not persistent does not, of itself, mean that the behaviour was not sexual.”
The tribunal said the barrister had admitted unwanted conduct amounting to harassment related to a protected characteristic (sex), and it was satisfied this was “unwanted behaviour of a sexual nature”.
It accepted his evidence that “he did not intend to produce this result, but nevertheless that is the effect that was produced”.
The tribunal heard that Mr St’Clair was instructed by the Crown Prosecution Service (CPS) to handle four road traffic cases, including a “straightforward” matter involving Person A, who was charged with failing to provide information as driver of a vehicle at the time of a speeding offence.
He had no papers and, when the case was called on, made an application to adjourn. When this was refused, he offered no evidence. It later emerged that he made both these decisions without taking instructions.
Very shortly after the hearing, Person A wrote a letter of complaint describing what happened after Mr St’Clair introduced himself to her at court.
She explained to him that she too had received no papers, but said she trusted Mr St’Clair because he was the prosecutor and “seemed to know” what he was doing.
At his request, she gave him her mobile telephone number and email address. She said she was not guilty and explained that she had been in an abusive relationship with her ex-partner whom she could not trust.
After the hearing, Mr St’Clair called and invited her out to dinner. The tribunal recorded: “She was taken aback, fearful and distressed. She stalled for time on the phone, saying that she had her children in the car and it was difficult to talk.
“Later that day the respondent sent her a WhatsApp message and she blocked his number. The next day he tried to contact her again by telephone.”
Mr St’Clair told the tribunal that he obtained Person A’s details in order to pass them onto the court. “This was not a convincing explanation given that he entered the details on his mobile phone,” it said.
It also rejected his explanation that he wanted to “ensure that she had understood what happened at court and to check that she was able to collect her children”.
Rather, the tribunal found, he contacted her to pursue a romantic relationship.
The tribunal said the various rule breaches “fell into the middle range of seriousness”; the barrister had “used his position of power and authority”, while Person A was “very vulnerable” as both a defendant in a criminal case and a victim of domestic abuse.
The conduct was aggravated by the fact it was intentional, rather than merely reckless, while it was likely to diminish public confidence in the profession “significantly”.
The tribunal registered “surprise” to learn that Mr St’Clair had previously faced disciplinary action, given that he had said he had a good professional record. Those offences were not specified, although they were of a different nature and took place many years ago.
It added: “We find there was a lack of awareness of and insight into professional boundaries. The respondent has been a practising barrister for many years, and even in the course of his evidence there emerged a suggestion that if Person A had said she was not interested he would not have pursued it.
“What should have been apparent to him is that it was totally inappropriate for a barrister to ask a defendant out for dinner.” There was also a failure to self-report.
In terms of mitigating factors, the barrister had “admitted to the CPS at an early opportunity, demonstrated genuine remorse, co-operated with the investigation” and voluntarily taken steps to remedy his rule breaches by taking an online course.
“We were somewhat concerned that the approach of his chambers was to say that he was better suited to family work, which we found inexplicable given his behaviour towards a vulnerable woman. But there we are.”
The indicative sanction for the misconduct started at over two years suspension to disbarment. The tribunal settled on 26 months.
Mr St’Clair also admitted two further charges, relating to acting without instructions. He was fined £1,000 for these offences.
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