Misconduct Outside of the Profession – A Judicial Consideration

18th July 2022

The Administrative Court has recently considered two appeals in relation to sanctions imposed on registrants following allegations of sexual misconduct outside of the profession.

GMC v. Mok [2022]

The GMC appealed against a 12 month suspension order imposed following a determination by the Medical Practitioners Tribunal (“the MPT”) that the Respondent’s fitness to practise was impaired by reason of misconduct, with the Respondent sexually penetrating his partner without consent, arguing that the sanction imposed was insufficient to protect the public.

The GMC appealed on three grounds, namely:

  1. the MPT had regard to irrelevant considerations in its determination on sanction;
  2. the MPT failed to apply the Sanctions Guidance and give adequate reasons for its decision on sanction; and
  3. the sanction of suspension fell outside the range of reasonable decisions open to the MPT on these facts.

Mrs Justice Lang, however, dismissed the appeal on all three grounds, stating:

The MPT exercised its evaluative judgment when it identified the considerations which it considered were relevant, and that judgment was informed by its assessment of the evidence and the issues.

As to consideration on the sanction of suspension, Justice Lang commented that: “…the MPT carefully considered the relevant competing considerations in respect of sanction. It appears from the terms of the determination that the choice between 12 months’ suspension or erasure was finely balanced in the minds of the MPT. However, the MPT concluded that Dr Mok’s misconduct fell just short of being fundamentally incompatible with continued registration, and that erasure would be disproportionate in the circumstances of this case.

As the Court of Appeal observed in Bawa-Garba, the decision of a tribunal that suspension rather than erasure is the appropriate sanction constitutes an evaluative decision based on many factors, and a kind of jury question about which reasonable people may disagree.

Farquharson v. Bar Standards Board [2022]

In this case, on the other hand, it was the registrant who sought to appeal the sanction of disbarment imposed on him relating to three charges, two of which related to sexual misconduct.

Here, the Appellant had pleaded guilty to sexual assault committed against a female colleague in a nightclub in 2019. Following the incident, the Appellant sent a text message to that colleague the day after, asking her to respond to a future message from him with an untruthful account of the previous evening. The Bar Standards Board (“BSB”) decided that the Appellant should be disbarred.

Mrs Justice Heather Williams, on appeal, upheld the findings of professional misconduct and commented that, whilst it was clear that the BSB had yet to “fully grapple with the implications of the High Court’s ruling in the Beckwith case”:

“It is perfectly plain that the regulator’s reach may extend into a barrister’s behaviour in their private life and that there is no barrier or bright line drawn between professional and private conduct”.

Whilst recognising the reach of the regulator extended beyond merely professional conduct, however, the judge recognised that the tribunal had got the sentencing wrong. At the time, the official guidance on sanctions for sexual misconduct said that for a custodial sentence, “the general starting point should be disbarment unless there are clear mitigating factors“. The panel did not, however, look for mitigating factors, instead looking for “exceptional circumstances”.

The judge, upon considering this, commented:

In all the circumstances I conclude that a long suspension is the appropriate and proportionate sanction, bearing in mind the guidance and objectives which I have already identified. This in itself is a very serious sanction, second only to disbarment. I do not consider that disbarment is necessary for the protection of the public or in order to maintain public confidence in the profession in all the circumstances. Accordingly, the substituted sentence in respect of [the charge of sexual misconduct] will be a suspension of two years.


These cases are illustrative of the fact that regulators are not afraid to cross the professional/private line when it comes to regulating the profession. The implications of this are potentially far-reaching, as Marc Beaumont, representative for Mr Farquharson commented:

The view might be taken that to be safe from prosecution, no barrister should ever tell a lie in private life. This creates real uncertainty: we are now in a profession where private conduct may be policed by the BSB on the apparent basis under Article 8(2) that this is what the public and the Bar require and expect.

It is also clear that regulators must have regard to a wider range of sanctions, taking into account all aggravating and mitigating factors, when considering findings of sexual misconduct. These two cases demonstrate that the court will be prepared to move from the most severe sanctions of disbarment or suspension where the particular circumstances of the case warrant it.

Another point to note is that the Court in Mok was significantly assisted by the detailed and organised decision from the Lower Tribunal. This serves as a useful reminder to lower courts that, whilst their decisions don’t have to include all evidence it heard, it is important for the decision to capture all evidence pertinent to its decision so that this can be fully understood.

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