Calver: Suspension was justified
The High Court has halved the 12-month suspension imposed on a barrister who recklessly misled the Court of Appeal.
Mr Justice Calver held that the Bar disciplinary tribunal failed to take proper account of the mitigating factors in favour of David Owusu-Yianoma.
In June 2019, Mr Owusu-Yianoma completed and submitted a form NG – notice of appeal against conviction – together with advice on the grounds of appeal which contained information that was incorrect and “recklessly misleading”, the tribunal found.
This was because he wrongly indicated on the form that he had complied with his McCook obligations.
These require fresh appeal counsel to approach the solicitors and/or counsel who had acted at trial to ensure that the factual basis on which the appeal was advanced was correct and/or to take steps to obtain objective and independent evidence in support of the grounds of appeal.
The tribunal found that Mr Owusu-Yianoma had not personally checked the guidance in R v McCook. It was “unreasonable of him to have taken that risk”.
But, while his conduct was reckless, the tribunal said it did not consider there was sufficient evidence to justify a finding of dishonesty.
In appealing the 12-month suspension it handed out, Mr Owusu-Yianoma argued that the sanction was disproportionately harsh in light of what was an isolated and admitted instance of misconduct.
Calver J said the tribunal was “entirely correct to mark the gravity of the appellant’s reckless conduct, and the serious harm that it caused, with a suspension from practice” – Mr Owusu-Yianoma had admitted his behaviour was reckless, he showed a lack of insight into the seriousness of his misconduct, and the harm caused was serious.
But the judge concluded failed to give “sufficient weight” to the importance of Mr Owusu-Yianoma’s admissions, having referred them to as only ‘partial’ admissions.
Calver J said: “They were partial admissions in the sense of their being admissions of recklessness but not admissions of knowingly misleading the court; but the tribunal went on to find that the appellant did not knowingly mislead the court but rather did so recklessly, which he had admitted.”
It also failed to give sufficient weight to the fact that this was an isolated incident and the misconduct “was not done for gain but rather was motivated by a desire to help the accused”.
Calver J continued: “This is a case of moderate culpability and the tribunal ought to have held that the misconduct in this case fell within the middle range of seriousness rather than the upper range.”
A suspension of less than 12 months would have fulfilled the purpose of protecting the public, maintaining trust and confidence in the profession, and promoting high standards of behaviour.
“Accordingly, I consider that imposing a period of suspension of as much as 12 months was clearly inappropriate in all the circumstances and the sanction which most appropriately fulfils the relevant purpose in the present case is to impose a period of suspension of 6 months.”
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