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James Lloyd and Chloe Birch

BLOG: Sexual Misconduct at the Bar

James Lloyd and Chloe Birch discuss the Bar Tribunals and Adjudication Service sanctions guidance on sexual misconduct.

On 29 January 2021, the Bar Standards Board (‘BSB’) and the Bar Tribunals Adjudication Service (‘BTAS’) issued a joint statement following a stream of recent cases in which barristers found to have committed acts of sexual misconduct faced sanctions from their regulator which were widely condemned as derisory:

"The Bar Tribunals Adjudication Service and the Bar Standards Board are aware of current concern from the public and the profession at the level of sanctions imposed in cases of sexual misconduct. The sanctions imposed fall within the current Sanctions Guidance. This Guidance […] has been under review since last year. Proposals from the review will be published and subject to consultation with a view to having updated Guidance in place in the summer."

To date, no such proposals have been published, nor any consultation opened.

 

Recent examples

Three cases in particular have garnered significant attention in the last six months:

BSB v DW – Barrister, DW, faced multiple charges of professional misconduct relating to his behaviour and actions at his Chambers Christmas party, towards a barrister at that Chambers. This included holding them by the neck and saying, “I really wanted to smack your arse”, before actually doing so, and pulling her on to his lap by her hips. This latter part was stopped by a clerk in Chambers. The Respondent, DW, held positions of responsibility within the profession as both a pupil supervisor and a CPS RASSO (Rape and Serious Sexual Offences) Prosecutor. The Disciplinary Panel determined all charges to have been made out. Despite this, referring to the Indicative Sanction Guidance, they found that the conduct was not “sufficiently serious to justify a suspension”. Instead, DW was sanctioned by way of fines totalling £6000. The Panel concluded that “this is appropriate…as it is a formal indication that the Respondent’s behaviour was unacceptable and should never occur again”.

BSB v CT – Barrister, CT, faced two charges of professional misconduct contrary to Core Duty 5 of the BSB Code of Conduct. In this case, again at a professional social event, CT was accused of inappropriate, sexual touching of two junior colleagues. This included putting his hands inside their clothing and tights, as well as touching their breasts and bottom. CT admitted both offences – as he had during his Chambers’ disciplinary procedure, where he had been fined £2000. The Panel saw fit to impose a 3-month suspension on each charge, to run concurrently.

BSB v DT – Barrister, DT, had pleaded guilty to a single offence of ‘upskirting’ before the Magistrates’ Court, having been caught filming underneath a woman’s skirt whilst travelling on the Tube. He was made the subject of a 12-month Community Order by the criminal courts. The Disciplinary Tribunal suspended him from practice for 6 months. Part of his mitigation included the frequency with which he found himself working over 80 hours a week.

As has been explained with great clarity elsewhere, the sanctions imposed in these cases fell significantly short of those imposed in recent misconduct cases relating, for example, to dishonesty and violence. The first two also fall significantly short of the likely outcome were the matters to be prosecuted under the Sexual Offences Act 2003 in the criminal courts.

Why are sanctions being imposed which do not reflect the severity of the relevant conduct, and which appear inconsistent with the regulator’s approach to other serious conduct? The regulators response: “The sanctions imposed fall within the current Sanctions Guidance”.

 

“Current Sanctions Guidance”

The current BTAS indicative sanctions guidance is unusual in its format. The guidance provides a prescriptive ‘sentencing guideline’ format, familiar to criminal practitioners, but adopted by few other regulators. The guidance in respect of sexual misconduct is currently:

       Possible circumstances

Starting point

a.

Inappropriate sexual conduct in a professional context

Reprimand and medium level fine to a short suspension

b.

A conviction for a sexual offence

A medium level suspension

c.

A conviction for a serious sexual offence

Disbarment (or in exceptional circumstances, a long suspension)

Aggravating features

Mitigating features

·       Previous criminal convictions

·       Lack of cooperation with the police

·       Involved a young or vulnerable victim

·       Lack of remorse

·       Effect on the victim

·       Isolated incident in difficult and unusual circumstances

·       Cooperation with the investigation

 

Immediate concerns

Any cursory reading of the guidance reveals obvious flaws. The presence of a reprimand as a starting point for any form of sexual conduct is difficult to reconcile with any view of the potential impact of such misconduct. Similarly, the prima facie suggestion that disbarment will only be an appropriate starting point in cases of conviction for a serious sexual offence is deeply unsavoury. 

Whilst the guidance is not intended to be exhaustive, the distinctions drawn within it are difficult to defend. The distinction between category (a) and (b) misconduct, for example, does not stand up to scrutiny. The distinction appears to be premised on a suggestion that professional misconduct is more serious where it results in criminal conviction; the seriousness of conduct is judged not by reference to any objective assessment of harm, but by reference to others’ reaction to it, with misconduct attracting a higher starting point because it is in the public domain. That cannot be right. Whether or not misconduct is reported to the police is a poor and arguably irrelevant measure of the seriousness of that conduct. Taking the BSB v DW case, the fact that DW’s victim did not report her ordeal to the police should in no way diminish the regulator’s view of the seriousness of DW’s conduct; similarly, DW’s conduct would not have become appreciably more serious had she done so.

 

Criminal liability

The guidance has been criticised for being inconsistent with criminal sentencing guidelines for sexual offences. It is correct, for example, that DW could have faced a Category 2B starting point of 1 years’ custody (before guilty plea) for his conduct if faced with criminal proceedings. Instead, the reprimand which accompanied his fines declared:

The words you said to Ms A, the touching, the pulling and slapping of her in a sexual manner were degrading and offensive. They showed a selfish focus on your own sexual desires, a wholly inappropriate absence of respect for Ms A and a lack of awareness of the impact of your actions. Your acts were upsetting to Ms A and had a negative impact upon her, for which you must take sole responsibility. These are serious matters which undermined public confidence in you as a practitioner and in the Bar as a profession. You should be in no doubt as to the fact that behaviour of this type is wholly unacceptable. We hope and expect that this reprimand ensures that there is no repetition of this entirely reprehensible misconduct.

The disparity between such a reprimand, and a custodial sentence is stark.

However, that disparity is less surprising when considered in the context the purpose of regulatory sanctions themselves. As many regulators’ sanctions guidance makes clear, sanctions are not intended to punish (though they may have a punitive effect). Regulatory sanctions instead function “not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise” (Meadow v General Medical Council [2006] EWCA 1390, per Sir Anthony Clarke MR at [32]):

The question of sanction for a [regulator] is not the same as that of a court imposing retributive punishment.

(Mubarak v General Medical Council [2008] EWHC 2830 (Admin), per Burnett J at [8])

Comparison between criminal sanctions and regulatory sanctions are therefore best undertaken with a pinch of salt. Courts have been quick to recognise and endorse the sentiment expressed by Dame Janet Smith in the Fifth Shipman Report, that:

23.34 […] the sentence passed by the criminal court is of very limited relevance to the seriousness of the [professional’s] misconduct from the point of view of the [regulator]. I can see that, as a very broad guideline, if the judge imposes a sentence of immediate imprisonment, it is reasonable to treat the case as serious. However, the converse should not be assumed. The fact that the court has imposed a very low penalty or even none at all should not lead the [regulator] to the conclusion that the case is not serious in the context of [regulatory] proceedings. The [regulator] should, of course, pay heed to the factual findings of the court and/or to the factual basis for the sentence imposed. However, the role of the [regulator] involves different considerations from those taken into account by the criminal courts when passing sentence. For example, an offence of dishonesty or of indecency committed by a doctor will have implications in the context of medical practice that go well beyond the considerations that the courts will take into account. What may appear relatively trivial in the context of the general criminal law may be quite serious in the context of medical practice.

Context is therefore key. If not by reference to criminal sentencing practice, the seriousness of (sexual) misconduct should be judged by reference to its impact on victims and the profession more broadly. Such an approach will be familiar to many practitioners, from the oft-cited Bolton v The Law Society [1994] 1 WLR 512, in which Lord Bingham (then Master of the Rolls) said of the purposes of regulatory sanctions:

[…] the most fundamental of all: to maintain the reputation of the solicitors' profession as one in which every member, of whatever standing, may be trusted to the ends of the earth […]. Otherwise, the whole profession, and the public as a whole, is injured. A profession's most valuable asset is its collective reputation and the confidence which that inspires.

 

Other regulators

In its ‘review’ of the sanction guidance, the BSB may find the approach of other regulators useful. Disappointingly, sexual misconduct isn’t mentioned at all in the latest edition of the Solicitors’ Disciplinary Tribunal sanctions guidance. Regulators in the healthcare sector have, however, made their positions clear.

The General Medical Council/MPTS sanctions guidance says:

138 More serious outcomes are likely to be appropriate if there are serious findings that involve: […]

b sexual harassment […]

150 Sexual misconduct seriously undermines public trust in the profession. The misconduct is particularly serious where there is an abuse of the special position of trust a doctor occupies, or where a doctor has been required to register as a sex offender. More serious action, such as erasure, is likely to be appropriate in such cases.

The Nursing and Midwifery Council sanctions guidance on serious cases suggests that:

Conduct ranging from criminal convictions for sexual offences to sexual misconduct with patients, colleagues or patients’ relatives could undermine a nurse, midwife or nursing associate’s trustworthiness as a registered professional. […]

Panels deciding on sanction in cases about serious sexual misconduct will, like in all cases, need to start their decision-making with the least severe sanction, and work upwards until they find the appropriate outcome. They will very often find that in cases of this kind, the only proportionate sanction will be to remove the nurse, midwife or nursing associate from the register. If the panel decides to impose a less severe sanction, they will need to make sure they explain the reasons for their decision very clearly and very carefully.

The Health and Care Professions Council Sanctions Policy suggests that:

76. Sexual misconduct is a very serious matter which has a significant impact on the public and public confidence in the profession. It includes, but is not limited to, sexual harassment, sexual assault, and any other conduct of a sexual nature that is without consent, or has the effect of threatening or intimidating someone. The misconduct can be directed towards: service users, carers and family members; colleagues; and members of the public.

77. Because of the gravity of these types of cases, where a panel finds a registrant impaired because of sexual misconduct, it is likely to impose a more serious sanction. Where it deviates from this approach, it should provide clear reasoning. […]

130. A striking off order is a sanction of last resort for serious, persistent, deliberate or reckless acts involving (this list is not exhaustive) […] sexual misconduct.

 

Professional disparity

The clear statements of intent from healthcare regulators above, indicating that sexual misconduct should attract the most severe sanction in all but exceptional circumstances sit in stark contrast to BTAS guidance, starting as it does with a reprimand for “inappropriate sexual conduct”.

There is no good reason for such divergent approaches, nor any justification for holding barristers to a lower standard than healthcare professionals. Just as healthcare regulators recognise the position of their registrants in respect of vulnerable patients, service users, and junior colleagues, so too the BSB needs to consider carefully the analogous positions in which many barristers work. Barristers frequently work with vulnerable clients and witnesses; and often hold positions of responsibility over junior members of the profession and pupils. Ours is a profession just as susceptible to abuse. Ours should be a profession just as intolerant of abhorrent behaviour.

 

Lasting impact

A lack of robust sanction for those who seek to sexually harass women does much to perpetuate the crisis of retention of women at the Bar. The profession and the regulator need to be able to challenge sexual misconduct in a way which sends the message that it simply won’t be tolerated; that the Bar is a place of mutual respect, open and safe to all.

That is not a message which is sent by the existing sanctions guidance. As the Chair of Women in Criminal Law, Katy Thorne QC recently commented in The Times:

Low-level sanctions for men who would be summarily dismissed if they behaved in a similar way in an employed setting underlines the impression that women have: you are not welcome or valued at the Bar. Such low punishment belittles unacceptable and sometimes criminal behaviour and undermines the confidence women barristers have in complaining to the BSB.

 

The way forward

The sanctions guidance as currently drafted does not meet the regulatory objectives it should. It fails to mark sexual misconduct as serious misconduct, going to the heart of a safe and cohesive profession. It is at odds with the approach taken by other regulators. Disparity in sanctions guidance between regulators, however, is no defence to disparity in outcome, and in that sense the BSB/BTAS statement, suggesting that “sanctions imposed fall within the current Sanctions Guidance” entirely misses the mark.

As panels in disciplinary proceedings are frequently reminded, and as made clear in Atkinson v General Medical Council [2009] EWHC 3636 (Admin):

Indicative Sanctions Guidance is just that: guidance. It is something which every panel must take into consideration, and departures from it may need some explanation, but it is not the source of legal obligation.

If the regulator is serious about sexual misconduct, it should provide a statement to that effect without further delay. It should send a clear message to the profession and empower BTAS panels to depart from existing sanctions guidance until such time as it is fit for purpose. Summer can’t come soon enough.

The consultation exercise referred to in the joint statement is welcome, but must be meaningful. Consultation must include those working within the profession, and should consider their experiences, the impact of sexual misconduct and their views on how best to deal with sexual misconduct. So too, external consultation should be undertaken to establish the dangers that such conduct has on the reputation of the profession as a whole.

Only careful consideration and consultation will result in sanctions guidance that properly reflects and protects the values of the profession and those working in it.

 

Further support

Reforming sanctions guidance is one way in which the profession must choose to challenge sexual misconduct at the Bar.

There are other ways in which the tide is turning, with which the regulator needs to keep pace. Recent developments include The Bar Council’s “Talk to Spot” tool, which enables the anonymous reporting and recording of inappropriate behaviour (whether experienced or witnessed).

It is important that those at all levels of organisations, firms and Chambers can report sexual misconduct without fear of repercussion, both to the regulator and internally within Chambers. Practical resources such as The Bar Council’s ‘Toolkit’ provide invaluable guidance on processes which chambers can adopt in their internal dealings with any such misconduct, and go a long way to increasing the equity with which matters can be dealt.

 

Conclusion

We hope that the “current concern from the public and the profession” acknowledged by the BSB and BTAS provides the impetus for change. It is long overdue. If our profession cannot stamp out misconduct within its own ranks, the whole profession, and the public as a whole, shall be injured.

 


James Lloyd is a barrister at Carmelite Chambers with significant experience of regulatory investigations. James practises in regulatory and professional disciplinary law, representing both regulators and regulated individuals and entities. He also maintains a general criminal defence and extradition practice. 

Chloe Birch is one of Carmelite’s newest junior tenants. She has a very busy Youth Court practice and is frequently instructed in serious youth cases including robbery, weapon offences, public order offences and those of serious violence, with a proven record of success. She is Vice-Chair of Women in Criminal Law, and a Middle Temple scholar.