BSB guilty of “misleading conduct” in disciplinary case, says High Court

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High Court: failure of elementary fairness

A Court of Appeal judge has accused the Bar Standards Board (BSB) of “misleading conduct” in the way it handled a disciplinary matter that led to a barrister being disbarred.

However, Lord Justice Moses concluded “with reluctance” that despite this, it was not necessary to quash the decision, but the barrister concerned is now planning to go to the Court of Appeal.

In March 2011, Damian McCarthy, formerly of Cloisters Chambers, was found guilty of producing forged ‘rule 6’ client-care letters in his first direct access matter and disbarred. The decision was upheld by the Visitors to the Inns of Court in January 2012, against which Mr McCarthy appealed.

It emerged before the Visitors that the BSB had failed to disclose to the claimant an earlier draft version of a key witness statement, which the Visitors labelled “unacceptable” but by majority they decided to uphold the disciplinary tribunal.

In his Administrative Court ruling last week, Moses LJ was critical of the BSB’s “misleading conduct” and robustly rejected its argument that it was not required to disclose the statement. “It seems to me beyond question that in disciplinary proceedings with the potential for such grave consequences, draft statements capable of being used to discredit a witness should be disclosed.” Indeed, in June 2012 the BSB published a policy statement to this effect.

The judge continued: “I find it hard to understand why there was any difficulty in recognising this obligation in March 2011 or why it took over a year to publish a policy which did acknowledge that duty. The demands of elementary fairness impose such an obligation.”

Moses LJ found that the Visitors – as a result of being “misled” by the BSB – had themselves proceeded unfairly in how they dealt with the draft statement.

But he decided that even had the claimant been able to use the draft statement to “destroy the oral witnesses on whom the BSB relies”, there was still “conclusive evidence” that the rule 6 letters were not sent and instead created subsequently.

Mr McCarthy, who now operates as an “employment law consultant”, said: “The court has found that both my disciplinary and appeal hearings were unfair because the BSB made a conscious decision to withhold central evidence in order to secure a conviction. The court has also found that the BSB misled both the disciplinary tribunal and the Visitors in my appeal.

“Having made that finding I am astonished that the court has found that I will never receive a fair hearing – a hearing that I am certain I would win. I will now appeal to the Court of Appeal.”

A BSB spokeswoman said: “We are pleased that the court, by its very clear findings, has vindicated [our] decision to prosecute.

“The errors made on disclosure, as recognised before the Visitors’ hearing, arose at a time when it was not usual BSB protocol to disclose draft statements. Since then, we have reviewed and updated our policy around disclosure of documents in disciplinary proceedings, and this is publicly available on our website.”