Bar Standards Board v Howd (also known as Howd v Bar Standards Board) [2017] EWHC 210 (Admin)

A barrister, H, has succeeded in his appeal against a finding of misconduct against him following his actions at a chambers party. The disciplinary tribunal who had made the finding, and imposed a fine of £1,800 by way of sanction, had wrongly rejected medical evidence presented by H. Further medical evidence was submitted on appeal. A cross appeal by the Bar Standards Board, contending that the sanction imposed was too lenient, necessarily failed.

The events giving rise to the allegations occurred at a marketing party held by H’s chambers for professional clients. The complainants – anonymised in the judgment – were two of H’s fellow barristers, and a clerk and administrative assistant from his chambers. There were eight charges, all of which related to inappropriate conduct towards the female complainants. The charges all alleged breach of either Core Duty 3 of the Code of Conduct (to act with honesty and integrity) or Core Duty 5 (to not behave in a way likely to diminish the trust and confidence which the public placed in him or the profession). Six of the charges were found proved.

The grounds of appeal were that the tribunal had:

  1. misinterpreted and failed to give due regard to the medical evidence.
  2. erred in finding the evidence of one of the complainants reliable, given that other witnesses contradicted her evidence.
  3. erred in concluding that Core Duty 3 could be engaged at all during a chambers party.
  4. misconstrued the meaning of "integrity" in Core Duty 3, and so wrongly concluded that the facts found proved were a breach of that duty.
  5. erred in concluding that Core Duty 5 had been breached, as it was contended that any damage could only be to H’s personal – rather than professional – reputation.
  6. erred in concluding that the allegations – which referred to H’s “pestering” behaviour – were capable of amounting to professional misconduct.

Findings of the High Court

In relation to those six grounds, it was respectively held as follows:

1. The medical evidence seen by the court was more extensive than had been seen by the tribunal. It was contained in a confidential annex to the judgment of the High Court. It was held that, on the balance of probabilities, it was H’s medical condition which was the cause of his inappropriate behaviour and also his excessive alcohol consumption, which exacerbated his loss of judgement.

2. This ground of appeal failed – the tribunal had considered the inconsistencies between the witnesses, including the evidence that contradicted the relevant complainant. However, the tribunal found the complainant to be “careful and consistent”. There was no proper basis on which the court could interfere with the tribunal’s judgment, with the judge commenting: “They were able to assess her credibility in a way which I cannot”.

3, 4 and 5. These grounds were considered together. Core Duty 3 could be engaged during a chambers party. H’s submission that it was engaged only when a barrister was providing “legal services” was rejected. However, the court accepted that the tribunal had misinterpreted the meaning of “integrity”. The court found that H’s behaviour was not in breach of Core Duty 3 because, although the behaviour had been inappropriate and sometime offensive, it did not demonstrate lack of honesty or integrity: a charge under Core Duty 3 was not appropriate to the behaviour in question. The court rejected H’s contention that his behaviour was capable only of damaging his personal reputation, rather than the reputation of the profession. However, the court went on to find that, given that H’s behaviour was a consequence of his medical condition and that therefore H was not morally culpable, his behaviour would not damage public trust and confidence in the profession, if the public were aware of the cause of the behaviour.

6. Given the circumstances – namely that H’s behaviour was the result of his medical condition – the conduct complained of did not amount to disgraceful conduct; it was caused by factors beyond his control.

The appeal succeeded, and the cross appeal failed.