Barristers: Deterrence needed
Sexual harassment at the Bar that “might have been tolerated and even expected in the past is no longer acceptable”, a disciplinary tribunal has said – but “regrettably, such behaviour is still widespread”.
Misconduct such as that exhibited by barrister Robert Michael Kearney – who between 2015 and 2020 behaved inappropriately towards five junior members of the Bar – “needs to be deterred”.
We reported in January that Mr Kearney, who was called in 1996 and formerly of Lincoln House Chambers in Manchester, was disbarred after he admitted to sexually harassing a woman during a mini pupillage and, separately, two pupils at social events.
It was the second time this has happened, after the High Court overturned the original decision on the basis of apparent bias on the part of the tribunal panel and ordered a fresh sanction hearing.
The full decision of the new panel has now been published.
The original tribunal heard that Mr Kearney told one pupil that she needed to have sex with senior members of the Bar to be successful and another that she was frigid. Mr Kearney was also found to have engaged in lewd conduct towards the mini-pupil.
This was the third time Mr Kearney had appeared before a Bar disciplinary tribunal. In 2018, he was fined £1,000 for “disgraceful” behaviour towards a male pupil barrister, who complained that Mr Kearney put his arm round him and made a number of “uncomfortable, hostile and intimidating” statements.
Then, in 2021, he was handed a six-month suspension, when he was found to have made crude sexual comments to a woman on a mini-pupillage in 2015. The High Court rejected his appeal.
The new panel, chaired by HH Janet Waddicor, recorded that, in mitigation, Mr Kearney’s counsel said that since the last incident in 2020, “he had reflected on his behaviour and had sought and followed appropriate advice”.
Rossano Scamardella KC said Mr Kearney had undertaken a number of courses, “some of which he had found particularly challenging”, and been “forced to confront his behaviour and to recognise that, although he never intended to cause upset or offence, regrettably he had done so”.
The silk said a “common theme” of all the references provided to the tribunal was Mr Kearney’s “deep commitment not just to his own work but to the profession generally”.
The barrister was “a larger-than-life character whose sense of humour sometimes crossed the line and was not to everyone’s taste, but he was never malicious and never intended harm or to cause offence”.
The panel noted that a number of referees said crude language was “prevalent” at the criminal Bar in Manchester “as a mechanism for letting off steam”.
It said: “It may be, as suggested by some of the referees, that robust individuals of equal seniority do not take offence and are able to laugh off the respondent’s bawdy sense of humour and perhaps give as good as they get.
“We are in no doubt that the offensive comments directed at the two young female pupils by the respondent, an older man, are examples of sexual harassment and that such harassment damages the reputation of the Bar.”
The panel noted the “long standing concerns” about sexual harassment at the Bar.
It continued: “Behaviour that might have been tolerated and even expected in the past is no longer acceptable. Regrettably, such behaviour is still widespread. Misconduct such as that exhibited by the respondent needs to be deterred.”
It found the similarities between his behaviour towards the male pupil and the two pupils in 2020 to be striking – “offensive and lecherous comments and inappropriate touching whilst in drink”.
Mr Kearney had shown a lack of insight as well. “His initial response was to explain his comments as innocent and harmless banter. He did not realise that Pupils A and B were upset by his behaviour. It was not until late 2022 that he recognised that his behaviour amounted to sexual harassment.”
The tribunal could not accept Mr Scamardella’s submissions that there was no risk of repetition. “We cannot ignore the fact that in the five years from 2015 to 2020 the respondent behaved in a similar way towards five different junior members of the Bar.
“We are unanimous in our view that there remains a likelihood of repetition particularly if the respondent is inebriated.”
The panel concluded that disbarment was the “just and appropriate” sanction for each of the two matters, that of the two pupils and of the mini-pupil.
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