There’s an interesting piece by Marc Beaumont on the Bar’s complaints handling processes at the Barrister Magazine. Mr Beaumont makes clear that he advises and defends Barristers and Solicitors in disciplinary cases. I summarise and comment on some of his key points.
Barrister subject to a complaint responds to a single member of the Professional Conduct Committee of the BSB. The language is peculiar: this person is called a sponsor, that sponsor can be a lay member or a barristerial member (a sort of regulatory pot luck, perhaps, depending on your perspective of which would be better). Perhaps this impacts on who’s interests the sponsor is looking after. The sponsor report, but not the barrister’s response to the complaint, is then copied to a division of the PCC that consists of 25 people who meet and decide whether the complaint proceeds.
You read that correctly: 25.
Mr Beaumont states, “they are never actually given, or read, the Barrister’s formal response to the complaint.” He does not say whether they are given the initial complaint or a report of that. It would be interesting to know.
He also states, “I have seen a number of examples of sponsor reports that are misleading and incomplete or even trivialising, sarcastic and, in one case, thoroughly offensive. And the reports remain secret. They are not shown to the accused Barrister before the committee sees them, and invariably they are not disclosed at all.”
I assume from this that the complainant also does not see or get to comment upon it.
Disclosure of such reports should the matter proceed to a trial is also not guaranteed and it is reported there is a policy of redacting large portions of the report.
My Beaumont has other complaints: the 25 person decisions about whether to proceed to trial is not minuted he says; the test of “discreditability” is too broad, used as a catch-all to punish barristers for failings of doubtful seriousness; there is no online registry of Disciplinary Tribunal and Visitor decisions; and, disclosure obligations have in his view been not been complied with. There are the better known problems of apparent failure to properly appoint members to the adjudicating tribunal and, he alleges an insufficiently separation between prosecutor and decision-maker and, somewhat surprisingly, suggests there is capacity for undue influence.
I remain to be persuaded on some of Mr Beaumont’s arguments and it is worth emphasising that he is legitimately arguing the corner of barristers who face investigation. The fairness of the process from the perspective of complainants also needs proper scrutiny. It would similarly be very interesting to hear the BSB’s response to his allegations. His conclusion bears emphasis though:
“The Bar’s disciplinary system is in need of another overhaul and very possibly, an overhaul conducted by an outside body such as the LSB. The sponsor system is defective because it empowers one person to influence the thinking of an entire committee with a document that is not routinely disclosed and is not checked for accuracy before it is relied on in what might be the most significant decision in the life of the subject Barrister. Furthermore, the sponsor report purports to replace the often carefully drafted response of the accused Barrister because the committee members are not given that response to read before they decide to prosecute the Barrister. The committee meetings are un-minuted and thus are held in secret session. The BSB is not making proper disclosure and strict rules as to this need to be codified. A policy of blanket disclosure of all unused material would be welcome.”
Whether or not these problems, “suggest maladministration on a considerable scale,” they do suggest a regulator that has not mastered it’s brief. I am frankly baffled by the need for a 25 person committee to decide whether to proceed with a prosecution especially given the disquietingly pivotal role of a ‘sponsor’. Such large groups are usually reserved for political not forensic decision-making. The system can not survive for long.