Case comment: Bar Standards Board v Howd; Howd v Bar Standards Board [2017] EWHC 210 (Admin)

The High Court overturned a finding of serious professional misconduct against a barrister, Mr Stephen Howd, primarily on the basis that the Disciplinary Tribunal’s failure to properly take into account the impact that his medical condition had on his conduct had led to an inappropriate finding of serious professional misconduct.

Background

Mr Howd was referred to the Disciplinary Tribunal of the Council of the Inns of Court (the Tribunal) on allegations of serious professional misconduct. It was alleged that at a party in July 2014, Mr Howd had acted inappropriately towards four female colleagues, including sexually motivated behaviour.

The Tribunal found six of the eight charges were proved and that his conduct amounted to serious professional misconduct. It imposed a fine of £1,800 and Mr Howd was also ordered to pay £400 towards witness expenses.

Mr Howd appealed the Tribunal’s findings. The Bar Standards Board (BSB) cross-appealed, contending that the sanction imposed by the Tribunal was not sufficiently stringent.

The appeal

Mrs Justice Lang allowed the appeal. In doing so she had the benefit of assessing more comprehensive evidence pertaining to Mr Howd’s medical condition which had not been adduced before the Tribunal. That evidence led her to conclude that Mr Howd’s conduct was not serious professional misconduct.

Lang J summarised her reasons for allowing the appeal:

‘As I have already said, in the light of the further medical evidence adduced on appeal, I have concluded that the Tribunal misunderstood and misapplied the medical evidence, and thus assessed Mr Howd’s conduct on an erroneous basis. The medical evidence established, on a balance of probabilities, that his inappropriate, and at times offensive, behaviour was as a consequence of his medical condition. It also established that his excessive consumption of alcohol was very likely to have been a response to the onset of his medical condition, and it probably had the unfortunate consequence of exacerbating his disinhibition and loss of judgement. In these circumstances, Mr Howd’s behaviour plainly was not reprehensible, morally culpable or disgraceful, as it was caused by factors beyond his control. In my judgement, it did not reach the threshold for a finding of serious professional misconduct.’ [our emphasis]

As Lang J had observed:

‘…if the public was aware that his behaviour was a consequence of a medical condition, and so lacked any reprehensible or morally culpable quality, it would be unlikely to diminish their trust and confidence in the profession or in Mr Howd as a barrister, provided he was fit to practise.’

Comment

It is clear that a significant factor in the success of the appeal was Lang J’s acceptance that the excess alcohol consumption was a likely consequence of the medical condition, a conclusion which would plainly influence the characterisation of the conduct and whether it was blameworthy.

The decision emphasises the importance of considering the totality of the circumstances in which conduct occurred in determining whether that conduct was reprehensible, morally culpable or disgraceful. Factors which affect the degree of agency exercised by the defendant may go to the core issue of whether the threshold for a finding of misconduct was met. Nonetheless, the observation in R(Campbell) v GMC[1] that matters of pure mitigation are not relevant to the assessment of culpability must not be overlooked.

Lang J referred to the standard of proof applying to the question of whether misconduct was established. While that observation does not appear to have been material to the outcome of this case, such an approach would be at odds with a line of authority that the assessment of misconduct is a matter of judgment to which the standard of proof does not apply[2].

In appeals of this sort, appellants require the Court’s permission to adduce evidence which was not put before the first instance tribunal. It is relatively rare for permission to be granted. Whilst it is clear that Lang J permitted Mr Howd to adduce additional evidence relating to his medical condition, the precise basis on which permission was granted is not clear from the judgment. The judgment makes no reference to the classic case of Ladd v Marshall[3], where the Court established a three stage test to determine if a party should be granted leave to adduce fresh evidence on appeal.

Importantly, that test includes a requirement to show that the evidence could not have been obtained with reasonable diligence for use before the Court or the Tribunal in the first instance. The importance of submitting all relevant evidence to the first instance tribunal should not be underestimated.

The published judgment does not set out details of the appellant’s underlying medical condition or details of the relevant medical evidence. Those matters are dealt with in a confidential annex. Whilst the rationale for adopting such an approach may be obvious it’s not a widespread practice in appeals of this sort.

It is not clear whether the decision to deal with the judgment in this way was made of the Court’s own motion or on the application of one or both parties, nor is it clear whether the Court considered anonymising the appellant. Such a step is regarded as a significant derogation from the principle of open justice. The approach adopted by Lang J represents a limited derogation from that principle which is less drastic than granting anonymity. The approach is consistent with the established case law.

The common law principle of open justice is not absolute and its application must serve the ends of justice. It is accepted that it may be ‘in the interests of justice to protect a party to proceedings from the painful and humiliating disclosure of personal information about [him] where there was no interest in its being publicised.’[4]

It is now standard practice for issues relating to a practitioner’s health to be dealt with in private in the course of fitness to practise hearings and for the identity of witnesses to be withheld from the public. It remains to be seen whether this case is an indication of the courts moving in a similar direction.