Visitors: “no real risk of inequality of arms”
A long-running disciplinary case involving accusations that a barrister forged client care letters must be heard again, the Visitors to the Inns of Court have ruled.
The Visitors said there was “no basis” for saying that Damian McCarthy, who launched a judicial review after he was disbarred in 2011, would be deprived of a fair hearing “by reason of delay and/or any prior knowledge” of BSB witnesses.
At a Court of Appeal hearing in January this year, Lord Justice Burnett described a BSB official who failed to disclose a prosecution statement in the case of “subverting the rules” and being “blind to any sense of fairness”. However, the court recognised that there was a “strong case” against Mr McCarthy.
At a further hearing the following month, appeal judges ruled that the case should return to the Visitors.
Delivering the ruling of a new panel of Visitors, Sir Stephen Stewart said the BSB sought a rehearing while Mr McCarthy argued against one, on the grounds of delay and “alleged unfair advantage” that the BSB witnesses would have.
Sir Stephen said it would be helpful to take into account the approach of the criminal courts, in deciding whether to order a rehearing.
“There is clearly a public interest in there being a hearing of serious allegations made against a barrister,” he said.
Sir Stephen said retrials occurred “on a regular basis” in the Crown Court, and in the majority of cases “the prosecution witnesses have been cross-examined in detail at the first trial and are therefore fully aware of the nature of the questioning likely to take place at the second trial”.
He went on: “In some of the cases, particularly historic sex abuse cases, the delay before the first trial is considerably greater than the delay in this case, which has been caused by the appeal process”.
Sir Stephen said the Visitors did not accept that the “very fact” that one could not put Mr McCarthy back into the situation he was prior to the first disciplinary hearing meant that there could not be a fair trial”.
Instead, he said they accepted the BSB’s point that “there is no real risk of inequality of arms”.
He continued: “Both sides know much more than would have been the case at the first hearing (if it had gone ahead properly) as to the points which can be put to them in cross-examination.”
Sir Stephen said the Visitors did not lose sight of the fact that Mr McCarthy could submit to the tribunal that the BSB’s witnesses “have had forewarning of the case before them”, that delay may have affected the accuracy of their memories and “any other points” which are relied on as undermining the BSB’s case.
“That tribunal will be perfectly capable of giving to such submissions the weight that they merit.
“In short we see no basis for saying that Mr McCarthy will be deprived of a fair hearing by reason of delay and/or any prior knowledge by BSB’s witnesses’ understanding of points which will be put to them in cross-examination.”
Ordering a rehearing, Sir Stephen ordered the BSB to pay the costs of the original Bar disciplinary tribunal hearing and previous hearing before the Visitors on an indemnity basis.
Mr McCarthy was ordered to pay 70% of the BSB’s costs of the hearing on the standard basis, while the BSB was ordered to pay his costs of the original tribunal and Visitors hearing on the indemnity basis.
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