Judgment Date: 2 October 2014
A barrister (S) appealed against the decision of a disciplinary tribunal of the Bar Standards Board (BSB) to disbar him, following a finding of misconduct.
S, who had been called in 1988, represented a client (c) in a criminal case in 2011. His client was convicted of drugs offences and sentenced to 42 months in a young offenders institution. In short, it was alleged that S had drafted grounds of appeal for his client and lodged them with the Court of Appeal (on receipt of which the matter was listed before a master) when he knew, and indeed had told his instructing solicitors, that there were no merits in any appeal. The master who heard that case stated that S’s case demonstrated a serious state of affairs, as he had drafted the grounds of appeal when there were none, that he had had a duty to inform the court of that fact as soon as possible and that a case should be brought against him before the BSB.
Charges were duly brought, namely (i) that S had engaged in conduct that was likely to bring the legal profession into disrepute, in that he created a document entitled ‘application to appeal against conviction’ that was false and that he knew was false, with the intention to mislead his client into thinking he had grounds to appeal when he knew there were none and (ii) in proceeding before the Court of Appeal he had misled the court by causing, allowing or inducing the court to believe that an application for leave to appeal against a conviction was a true document and that there were genuine grounds of appeal when he knew that there were none and failed to notify the court of that fact.
The hearing before the tribunal was held in S’s absence; S had retired and emigrated, and maintained that there were no video link facilities.
The tribunal found that while S was remorseful, his behavior was reckless and premeditated. He had intentionally misled the client and engaged in conduct likely to bring the profession into disrepute. S was disbarred on the first charge and suspended for 9 months on the second. S appealed against the sanction imposed on the first charge, submitting that given that the tribunal was considering disbarring him, he should have been given the opportunity to make representations in mitigation. The tribunal should, he says have considered whether to adjourn to allow him an opportunity for mitigation.
The appeal was allowed. It was noted that the circumstances in which Section C of the Bar Code of Conduct (which applied to barrister’s conduct in court) could be breached were so wide as to potentially give rise to sanctions ranging from the giving of advice to disbarment S should have been invited to provide any mitigation before his disbarment.
Section C included a table of common circumstances in which breaches might occur and which were set out according to severity. Item C referred to making intentional, unsupported submissions or allegations of fraud with sanctions ranging from medium suspension to disbarment. There was an extensive list of aggravating and mitigating circumstances. Whist it was clear that this was a serious matter, there was no allegation of fraud. The tribunal decision was not necessarily wrong, however the tribunal should have at the very least considered whether S should have been allowed to make representations. The matter was relisted before a different tribunal for resentencing on the first charge.
The full judgment is yet to be released and it will bear scrutiny when it does. Did the Court believe that registrants should, as a matter of course, be invited to make further representations at sanction stage if erasure/disbarment is on the table or was it simply thought necessary in this case because the sanction guidance may have led the registrant to believe that this was not an option, such that he had not addressed it; we await the full judgment to find out. In any event, it is always advisable for regulators to make clear when giving notice of the hearing what the potential sanctions are, such that a registrant who does not attend is able to make such representations as he sees fit.