Remote hearing: Situation would have been different if barrister had been in courtroom
A disciplinary tribunal has sharply criticised the Bar Standards Board (BSB) for how it approached the prosecution of a barrister who provided clear medical evidence to explain why she struggled to stay awake during an inquest she was participating in online.
While it found Ramya Nagesh “beyond reproach” for how she dealt with the prosecution, the BSB – once it had all the evidence – “should have stood back and considered carefully whether it should pursue this case”.
The strong inference from the comments of the five-person bench, chaired by Her Honour Janet Waddicor, was that it should not have done.
Ms Nagesh, called in 2008 and practising from 4-5 Gray’s Inn Square, represented a nurse witness at the inquest, which was held at Pontypridd Coroner’s Court. She took part from a hotel room in Stockport, where she was also briefed in a long-running inquest.
She had been released from that for the day of 6 December 2022 to enable her to appear at the Pontypridd inquest.
Ms Nagesh was 11 minutes late in returning to the inquest after the lunch break, which unusually ended at 1.30pm, and was accused of not actively participating in the proceedings thereafter “without good reason, permission, or authority”.
The assistant coroner reported her to the BSB, which alleged too that the barrister had sought to mislead the coroner in the explanations she supposedly gave for this.
Ms Nagesh said that, during the luncheon adjournment, she had fallen asleep on the bed. She admitted not contributing effectively to the proceeding for at least part of the time, and that she did not meet the test of competence and that she did not act in the best interest of her client.
But she denied the charges of misconduct on the basis that what happened was attributable entirely to her medical condition.
She supplied two medical reports from Dr Neil Munro, a consultant neurologist with a particular expertise in the neurophysiology and clinical features of sleep disorder.
These said she had an undiagnosed medical condition, “namely fatigue and excessive sleepiness (as medically defined), which caused her to be in a state of partial sleep resulting in confusion, impaired cognition, and impaired memory and insight”.
The tribunal noted that, two months prior to the inquest, Ms Nagesh had sought medical advice for excessive sleepiness and confusion and that tests were being undertaken to ascertain the cause, so “it cannot be said that she was latching on to a convenient hypothesis to explain her conduct” – not that the BSB had alleged this.
It found Ms Nagesh to be “a completely reliable, honest and credible witness”.
“Dr Munro’s evidence, which the tribunal accepted, was that the respondent was unlikely to have been fully asleep during the afternoon but that it was likely that she had been in a fluctuating state of partial sleep with differing levels of consciousness and functioning.”
The tribunal dismissed the six charges against Ms Nagesh. Irrespective of the medical evidence, her mistake over the time that the inquest restarted after lunch – for which she immediately apologised – was not misconduct.
“The tribunal took the view that it is not unusual in court proceedings for the advocates involved to miss timings perfectly innocently.”
It also accepted the argument that, had she been in the courtroom, “it is likely that someone would have noticed that she was struggling, and that steps would have been taken to check that she was all right, and perhaps to suggest a break”.
The tribunal rejected, “without hesitation”, the suggestion that during the afternoon session she was asleep on the bed and found there was “no attempt to mislead the assistant coroner whether knowingly or recklessly”.
The medical evidence provided a defence to some of the charges, it went on, while the transcript disproved some of the comments she was alleged to have made to the coroner.
The tribunal concluded by expressing its “concern about the conduct of this case by the BSB”.
The regulator chose not to instruct its own medical expert and also did not check the transcript properly to see if the charges were properly framed.
“It is unfortunate and regrettable that this respondent, who has an impeccable record at the Bar and about whom senior members of the profession speak highly in respect of her integrity, her competence, and her commitment to profession, should have found herself charged with six serious professional misconduct allegations.”
Once the medical evidence was available, the BSB “should have paused to reconsider the charges”.
The tribunal concluded: “To make matters worse, in the run up to her wedding the respondent had these proceedings hanging over her, she had gone through a pregnancy with these proceedings hanging over her, and she had attended two-day hearing having given birth just short of three months ago.
“At every step since 6 December 2022 the respondent had done her best to understand and explain what happened and to seek and follow medical advice to avoid repetition. In short, she is beyond reproach.”
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