Key issues regarding the Bar Standards Board latest consultation paper – “Review of the Disciplinary Tribunal Regulations"
The BSB is seeking to review the Disciplinary Tribunal Regulations which have been in place (relatively un-amended) since 2009. In relation to the disciplinary tribunal system, issues have been raised surrounding the method of appointment of Tribunal panel members (perceived bias) and the relatively narrow criteria by which the Court was able to order a rehearing whereby a BSB member was unable to attend the Tribunal hearing. Further, concerns have been raised by registrant members surrounding the overall clarity, transparency and fairness of the current process. The BSB is also seemingly wishing to rid the system of inefficient, and perhaps outdated, procedures.
What are the current perceived failings/ challenges of the system?
During a review in 2012, the Council of the Inns of Court ["COIC"] disciplinary and hearings review group (chaired by Desmond Browne QC) identified over 60 failings and/or challenges within the current system. Amongst these, attention was brought to "inadequate record keeping" due to outdated case management and IT systems, "inadequate staff supervision" whereby the Tribunal Secretary is often unsupported and expected to perform numerous important roles throughout proceedings and evidence that both lay and barrister panel members had exceeded their three-year appointment time.
Externally to COIC, concerns surrounding transparency and fairness of the current system have been raised by registrant BSB members. For example, a barrister subject to a complaint currently has to correspond with a single member of the Professional Conduct Committee ["PCC"]. This point of contact is referred to as a 'sponsor' and this sponsor can be a lay or registered Committee member. The sponsor produces a report on behalf of the registrant barrister and this is subsequently reviewed by a division of the PCC ahead of deciding whether to pursue the complaint. The registrant's own words however, are not reviewed. The current system means that the registrant's response is somewhat open to interpretation by the sponsor. Not only this, but the Committee considering the sponsor's report meets in private and therefore their consideration is not only undocumented but it is also not disclosed.
What are the key issues being put to consultation and what are the main proposals for change?
The consultation paper recently released by the BSB identifies three key areas within which amendments to the regulations are proposed. These are as follows:
1. Section A – changes to terminology and clarification of roles. This section address issues in relation to the consistency and clarity of the terminology as it is currently used throughout the regulations. Proposals to amend the terminology will aim to bring it in line with that used by most other Tribunals, as well as professional regulators. Where the roles referred to in the Regulations are currently out-of-date and or are inaccurate, the proposals seek to amend these and further allocate actions to the correct person/body in practice.
2. Section B – straightforward changes to the disciplinary tribunal process. This section covers proposed amendments to directions in order to streamline the process and make it easier for all to understand. The proposals also relate to the common issue of defence failure to adhere to directions without fear of sanction. This section further addresses the concerns relating to the appointment of Tribunal panel members however, rather than reforming the process, the proposal relates to transparency whereby the 'underlying an accepted system for nomination to panels' is to be expressly and openly referred to. The section further considers amends to joinder, witness policy and dealing with complainants, amongst other things.
3. Section C – fundamental or more complex changes to the processes or Tribunal powers. This section looks at the current powers of the Tribunal and the potential gap whereby a Tribunal finds a breach of the handbook which does not amount to misconduct. The proposals will allow for the Tribunal to refer the matter back to the BSB to impose an administrative sanction. The proposals also deal with the current restrictions upon registrant's seeking a rehearing and aim to make this option more widely available.
The issue of costs is also considered within Section C. The BSB is seeking to address the issue of cost awards being made against it whereby registrants appear in person and seeks an award at an hourly rate. The proposal includes a suggestion that the BSB is able to seek preparation costs and/or each party covers their own costs.
What impact could the proposed changes have for lawyers representing barristers who come before the BSB?
There seem to be four key issues which the BSB are considering as part of the consultation which would be of significance for defence lawyers:
1. Sanctions for late/non-compliance with Directions
The BSB has become understandably frustrated by poor defence compliance with directions. Lack of compliance by either party can frustrate the proper conduct of proceedings and cause undue cost and delay. In an effort to encourage compliance the BSB has suggested, having looked at other regulators' rules of procedure, a provision in the proposed revised Enforcement Regulations to give a Disciplinary Tribunal the power to exclude relevant evidence or draw an adverse inference against the party in question. If this is incorporated in due course it may be unlikely to have much impact in practice. Those who appear before those regulators who already have these provisions on a regular basis will know that Panels will generally tend, in the wider interests of justice, to admit late evidence and to only draw the inferences which are appropriate from the evidence itself rather than from the fact of late service. Any prejudice caused to the other party by late compliance can usually be averted by an adjournment. A better and more effective sanction may be costs, particularly given that the BSB is considering revising its costs provisions in any event.
2. Administrative Sanctions
A significant change between the enforcement approach under the Code of Conduct (8th Ed.) and the Handbook is the option for the Professional Conduct Committee to impose 'administrative sanctions'. These allow breaches of the Handbook to be marked by action short of a referral to a full Disciplinary Tribunal. However, if the Disciplinary Tribunal finds that a breach of the Handbook has occurred but that it is not sufficiently serious to amount to professional misconduct it is not empowered to impose any of the administrative sanctions. Currently, the BSB's preference is to incorporate a power for the Disciplinary Tribunal to refer cases back to the BSB for consideration of the imposition of an administrative sanction. If this goes ahead then defence lawyers will need to ensure that they are aware that even though their clients may have been found not guilty of professional misconduct they may well not find themselves wholly out of the woods.
3. Settlement Agreements
Processes of 'consensual disposal' are beginning to find favour at regulators, and the BSB already has its own version in its 'Determination by Consent' procedures. That process allows defendants to consent to the Professional Conduct Committee determining the outcome of charges of professional misconduct without the involvement of the Disciplinary Tribunal. The BSB is considering extending this to 'settlement agreements'. These are a more flexible way of delivering the outcome of the proceedings, in that agreement as to the outcome is reached between the barrister and the BSB, and the agreed approach is submitted to the Disciplinary Tribunal for approval. If implemented, this is doubtless something which defence representatives will welcome, and will wish to make full use of in seeking to gain an acceptable outcome for their client where what is really in issue is not so much whether the barrister is guilty of professional misconduct, but the extent and seriousness of that misconduct.
Hitherto the BSB has only been able to recover very limited costs from defendants, and in particular, could not recover preparation costs. It is concerned that that has led to some well-resourced defendants to make numerous and sometimes unmeritorious applications which prolong the process and are a drain on the resources of the BSB without increasing their costs exposure (beyond their own costs). The BSB is considering two possible approaches: either to permit the BSB to claim for preparation costs, or alternatively have a system whereby each party bears its own costs. It is difficult to see how the latter approach could resolve the problem it perceives, particularly given that principles in the well-known authority of Baxendale-Walker v Law Society  EWCA Civ 233 ensure that it is quite difficult for defendants in professional disciplinary proceedings to recover their costs. Were to BSB to move to a position where it did seek preparation costs from defendants, and in particular if there were costs sanctions for non-compliance with directions, that may well have a significant effect on the degree of care which would need to be taken before advising clients that a particular application which may not have a high probability of success should be contemplated.
Guy Micklewright is a barrister in Blake Morgan's Professional Regulatory team. He is a specialist in professional disciplinary law and is on the Panel of Prosecutors for the Bar Standards Board as well as sitting as a Legal Advisor to the Professional Conduct Panel of the National College of Teaching and Leadership. He has developed a particular interest in information law in the context of professional regulation, having a particular expertise in disclosure.
Guy provides training to regulators in fitness to practise law and procedure, including members of disciplinary panels and is a regular speaker at national seminars.