BSB V Howd  EWHC 210 (Admin)
Inappropriate social or sexual behaviour cannot amount to a breach of Core Duty 3 of the Code of Conduct in the Bar Handbook, as the term "integrity" must be read by reference to the term "honesty" which is incorporated into the drafting of the duty. However, in principle such behaviour would be a breach of Core Duty 5, as it would be likely to diminish the trust and confidence placed in the barrister by the public. The principles in Walker v BSB PC 2011/0219 as to the definition of 'misconduct' apply equally to breaches of the Core Duties in the Handbook as they do to breaches of the 8th edition of the Code of Conduct. On the facts, the medical evidence established that Mr Howd's inappropriate sexual behaviour towards two female barristers and a female administrative assistant during a chambers party was caused by factors beyond his control.
The disciplinary Tribunal of the Council of the Inns of Court (the panel) found six charges of professional misconduct proved against the Appellant practising barrister. The charges arose from complaints made about the Appellant's behaviour towards female colleagues and staff at a party held at his former chambers. By way of sanction, the panel imposed a fine of £1,800 and ordered the Appellant to pay £400 towards witness expenses. The Appellant appealed against the Tribunal's findings of guilt and the respondent Bar Standards Board (BSB) appealed against the sanction imposed.
The Appellant contended that (1) the panel had misinterpreted and failed to give due regard to the medical evidence concerning his medical condition. (2) The panel had erred in having found a complainant's evidence reliable, as her credibility had been fundamentally undermined by other witnesses. (3) The panel had erred in having concluded that Core Duty 3 of the Code of Conduct of the Bar of England and Wales (CD3) could be engaged at all during a chambers party, on a proper interpretation of the code and the BSB handbook. The panel had misconstrued the meaning of 'integrity' in CD3 and so had wrongly concluded that the proved facts had demonstrated a breach of CD3, and had also erred in having concluded that Core Duty 5 of the Code of Conduct of the Bar of England and Wales (CD5) had been breached, as the proved facts could only have adversely affected his personal reputation if at all, not his professional reputation, and had not been likely to diminish the public's trust and confidence in his capacity as a barrister or the standing of the profession. (4) The panel had erred in having concluded that the allegations against him, even if found proved, had been capable of amounting to 'professional misconduct', correctly interpreted, as pestering, opposed to harassment, had not reached the high threshold of serious professional misconduct.
The appeal was to be allowed.
(1) For the reasons set out in a confidential annex which described the Appellant's medical condition, the panel's conclusions on his medical condition had been mistaken. Further, it had misunderstood and misapplied the medical evidence, when it had concluded that the Appellant's medical condition had not made a significant contribution to his conduct and that it had been caused by excessive consumption of alcohol. The medical evidence established, on the balance of probabilities, that the Appellant's inappropriate and, at times, offensive behaviour had been a consequence of his medical condition. It also established that his excessive consumption of alcohol had very likely been a response to the onset of his medical condition, and it probably had had the consequence of exacerbating his disinhibition and loss of judgment on the relevant occasion (see  of the judgment).
(2) The panel had expressly addressed its mind to the relevant issues, having understood that they had raised questions about the complainant's credibility and the reliability of her evidence. There was no proper basis on which the panel's conclusions could be interfered with, as they had been based upon its assessment of the complainant when she had given evidence before it. The panel had been able to assess her credibility in a way the present court could not (see ,  of the judgment).
(3) The BSB had to have intended the duty in CD3 to go beyond the provision of legal services and to apply also to the way in which barristers conducted themselves in chambers' business activities. Further, 'integrity' in CD3 took its colour from the term 'honesty' in CD3, and connoted probity and adherence to ethical standards, not inappropriate and offensive social or sexual behaviour (see ,  of the judgment).
The Appellant's submission as to the scope of CD3 would not be accepted, but his construction of 'integrity' in CD3 was correct. The Appellant's conduct had not been appropriately charged as a breach of CD3 because, although it had been inappropriate and, at times, offensive, it had not demonstrated a lack of honesty or integrity. The charges under CD3 ought to have been dismissed. With respect to CD5, in principle, the Appellant's inappropriate and, at times, offensive behaviour towards female barristers and junior members of staff at a chambers' marketing event attended by professional clients, could be capable of diminishing the trust and confidence which the public placed in him, as a barrister, or in the profession, contrary to CD5, since it had occurred in the course of his professional life and had not been an entirely private matter. However, if the public had been aware that his behaviour had been the consequence of a medical condition, and so had lacked any reprehensible or morally culpable quality, it would be unlikely to diminish the trust and confidence in the profession or in the Appellant as a barrister, provided he was fit to practise (see , , ,  of the judgment).
(4) On the basis of the medical evidence, the Appellant's behaviour had plainly not been reprehensible, morally culpable or disgraceful, as it had been caused by factors beyond his control. It had not reached the threshold for a finding of serious professional misconduct (see  of the judgment).
Given the nature of the charges faced by the barrister, it is likely that the outcome of this case will cause some surprise amongst lawyers. However, given that the details of the medical evidence were contained in a confidential annex to the judgment, it is not possible to analyse why the judge concluded that the medical evidence produced by the barrister wholly absolved him of any responsibility for his actions. The decision in this case, read in conjunction with Malins v SRA, makes clear that a barrister must be acting dishonestly in order to breach Core Duty 3. Other reprehensible behaviour outwith the scope of practice as a barrister must be pleaded as a breach of Core Duty 5. Any question of whether Walker v BSB is confined solely to breaches of the 8 edition of the Code of Conduct has now been resolved. What is of interest, however, is that in approaching the application of the Walker principles the Lang J did so by reference to the approach to misconduct set out in R (Remedy UK Ltd) v GMC  1245 (Admin). The judge stated, "Curiously, the Handbook does not contain any guidance on the meaning of professional misconduct, in particular, there is no reference to the requirement that the misconduct must be serious." She did not embark on any analysis of the effect of the words, "…which is not appropriate for disposal by way of the imposition of administrative sanctions", which is part of the definition of misconduct in the Handbook. On the face of it, this analysis appears to have failed to take into account that the threshold of professional misconduct is determined by the ambit of conduct which may be disposed of by administrative sanctions. However, it cannot be right that the sole arbiter of seriousness is the vagaries of BSB policy-making. The BSB will perhaps have to consider what effect this authority has, if any, on the scope of its use of administrative sanctions.