Davies: Panel appeared to have formed a clear view in private
A male barrister disbarred for sexual harassment is to have the sanction redetermined because the panel appeared to have prematurely decided it, the High Court has ruled.
His Honour Judge Stephen Davies, sitting as a High Court judge in Manchester, said that while there was no actual bias on the part of the panel, which had refused to recuse itself, the argument of apparent bias succeeded.
“A reasonable observer” would conclude that Robert Kearney “would have a justified sense of grievance at having been disbarred by a panel which had already formed such views in private before any evidence and submissions on mitigation had been adduced”.
The decision was made in February but only published yesterday.
Mr Kearney admitted to sexually harassing a woman during a mini pupillage and, separately, two pupils at social events. He was disbarred by a panel of the Bar Tribunal and Adjudication Service (BTAS) headed by His Honour Judge Carroll, who is also the chair of BTAS.
A hearing scheduled for December 2022 was adjourned – the judge said “with evident reluctance” – because Mr Kearney had Covid.
The same day, HHJ Carroll emailed Lord Justice Green, who is chair of the Inns of Court, copied to the director-general of the Bar Standards Board and the registrar of BTAS, to complain about a lacuna in the BTAS rules which meant the panel could not impose an interim suspension on Mr Kearney (this has since been closed).
HHJ Carroll wrote: “I can freely indicate, because it was indicated within the tribunal hearing, that both cumulatively and individually the current guidance points to disbarment.
“The respondent has not cooperated with proceedings and caused delay throughout. Now at day of sanction he has provided a sick note re Covid and applied to adjourn sanction. He has continued to practise.
“Whilst we could not go behind the Covid sick note, given his past history we unanimously were of the view that he is a high likelihood of further offences and ought in the public interest and in the interest of young females at the bar, he ought to be suspended until the sanction hearing can be concluded.”
After this email was disclosed to Mr Kearney, he applied for the panel to recuse itself, but it refused and went on to disbar him.
He challenged the decision in the High Court and HHJ Davies dealt with the complaint of bias first as it would render the rest of the appeal unnecessary were it to succeed.
He found multiple problems with the email. First, there was actually no reference to likely disbarment at the hearing; the BTAS guidance pointed either to a lengthy suspension or to disbarment and, when the final decision was eventually reached, it was made by majority.
Second, while the judge said Mr Kearney “had not been fully co-operative at all stages and that his conduct was, at least in part, responsible for some of the delay”, the panel had recognised in the final decision that the Bar Standards Board was partly to blame, such that his conduct on this was not treated as an aggravating factor.
Third, the email indicated that the panel appeared to question Mr Kearney’s Covid excuse and that it was instead further evidence of his deliberate delaying tactics.
The final problem was what appeared a clear view that Mr Kearney would likely commit further offences.
HHJ Davies held that the totality of this met the test of apparent bias. “It is very different from the robust expression of a provisional view in an open hearing. It is what has been decided in private, before any evidence or submissions on mitigation has been heard.
“In my view, it provides real grounds for doubt as to a lack of bias and it should, therefore, be resolved in favour of recusal.”
The “extremely conscientious, thorough and detailed” final decision did not remove the concern, since the panel should have recused itself by then.
“The reasonable observer would still be left wondering whether, notwithstanding what was said on the face of the determination, the panel was still influenced by the conclusions already reached in private at an earlier stage and that this case was always only ever going to end up with disbarment, whatever was said in mitigation.”
The judge noted that, at the sanctions hearing, Mr Kearney provided evidence of “the concrete steps he had taken to deal with what he recognised as wholly unacceptable behaviour, and providing a series of character references”.
“If there may reasonably be perceived to be a real risk that this evidence was not treated in the fair way that it deserved, due to minds already being closed, then that perception supports the conclusion that the panel ought to have recused itself beforehand.
“I would wish to emphasise first that this decision is made firmly only on the basis of apparent bias, and second is adopting the approach of erring on the side of caution where there is a real possibility or a real danger of apparent bias.
“Since, on the authorities, that is the appropriate test to apply I must allow the appeal.”
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