Neale: Guidance needs to command support of public and profession
Plans to beef up the sanctions imposed on barristers for serious offences – including sexual misconduct, harassment and discrimination – were unveiled yesterday.
A review carried out by the Bar Tribunals & Adjudication Service (BTAS) found that many of the starting points recommended in its current sanctions guidance were on the “lenient” side.
On average over the past three years, only 28 barristers a year were made subject to sanctions.
A consultation on revised guidance said: “These extremely low numbers are, to a large extent, a reflection of the high standards of the profession, but conversely may also be a reflection of the under-reporting of incidents of potential misconduct, particularly in areas such as sexual misconduct, harassment, and discrimination.”
It acknowledged the “widespread and almost unanimous condemnation” of seemingly lenient sentences handed out over the past year to several male barristers for sexual misconduct, a view shared by a survey of direct users of the guidance.
Respondents also considered the approach to criminal convictions including drunk driving and conduct involving violence too lenient.
BTAS research found that generally, outside the legal profession, sexual misconduct most usually attracted suspensions from practice of 12 months at least.
Discrimination and harassment of a non-sexual nature also led to suspensions, albeit starting at lower than 12 months.
The current BTAS guidance says the starting point for “minor offences of inappropriate sexual conduct in a professional context” should normally be a reprimand and a medium-level fine, to a short suspension.
The proposed replacement would put a suspension of over 12 months as the starting point.
The consultation said: “The view is that all such behaviour should attract serious sanctions not only to reflect the nature of the behaviour but to send a clear signal that it is entirely inappropriate and will not be tolerated at the Bar.
“Consideration was given to starting the range at suspension of under 12 months, but this would allow for significant mitigation to take the sanction into the realms of a fine.”
The proposed sanctions for discrimination and non-sexual harassment would also start at a suspension of over 12 months, again a significant increase compared to now.
The consultation also seeks to increase the levels of fines and suspensions handed out more generally.
While Bar tribunals can impose fines of up to £50,000, the maximum levied in the last three years was under £8,000 and the most common level of fine for an individual charge was under £1,000.
In a bid to make fines “a more meaningful sanction”, the bandings would change so that a low fine, currently defined as up to £1,000, would change to £5,000, and the starting point for a high fine would rise from £3,000 to £15,000.
Three years is generally seen as the upper limit for suspensions – beyond which disbarment is probably appropriate – but only five of the 25 barristers suspended in the last three years received terms of over six months.
The consultation proposed having just two suspension categories: shorter (up to a year) and longer (over a year).
BTAS noted that only two of the 17 professional regulators it looked at set out comprehensive indicative sanctions like this, but there was support for retaining the approach.
The impact of the changes on equality was hard to judge given the small numbers involved. In the last three years, 84 individual barristers were subject to one or more findings of professional misconduct which resulted in sanctions being imposed.
Of these, 67 were men, 18 identified as being from a black or minority ethnic group and 54 as being from a white group (12 did not provide ethnicity information).
Responses to the consultation will inform draft guidance which will be subject to a second consultation in July, with the final version issued in November. It was drafted by a working group made up of representatives of BTAS, lay and barrister members of the tribunal panels and the Ba Standards Board (BSB).
BSB director general Mark Neale urged people to take part in the consultation. “It is very important that the final guidance commands the support of both the public and the profession,” he said.
Bar Council chair Derek Sweeting QC said: “It’s no secret that many at the Bar feel that the current sanctions do not reflect the seriousness of cases concerning sexual misconduct and the Bar Council has raised concerns with both the BSB and BTAS on this point.
“We hope that in assessing the sanctions guidance the impact on victims of harassment at the Bar is considered.
“Now is the time for the Bar to get its views heard on this matter and the wider sanctions review and respond to this consultation. BTAS is listening.”
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