CHAPTER TWO – INVESTIGATING BARRISTERS –TRAPS AND TIPS

2.1    Some barristers tend to come out fighting. But this is precisely the wrong way to go about responding to a BSB complaint. Moreover, when the Exocet strikes, many barristers will already be up to capacity, or beyond it, with professional commitments. So the temptation not only to be aggressive, but perfunctory can be irresistible. Other barristers suffer another extreme reaction to complaints: for no good reason they appear over-willing to fall on their proverbial sword.

2.2    The Bar equips barristers from a young age with almost complete independence of thought and action. This too is the wrong mindset for an effective response to complaints. Its reverse side is both self-importance and a tendency to play the victim card – both unattractive traits in a respondent to a complaint. Modesty and measured detachment are the name of the game, but such a tone is often hard to attain without professional draftsmanship.

2.3    The perfect response to a complaint is thus, in the author’s view, beyond the majority of barristers to formulate alone, because the traits that stand them in such good stead as advocates and champions of the causes of their clients – assertiveness, celerity and opinionated thinking, become handicaps. What is required is time, reflection, thoughtfulness, patience and the wisdom of an objective adviser.

2.4    Unfortunately, many barristers have no access to independent legal advice unless they can obtain it pro bono. PII with BMIF only provides cover for advice and the drafting of responses to complaints where the complaint is made by a client who may have a parallel negligence claim. BMIF exercises a discretion in other cases. The often negative exercise of that discretion can in theory be challenged before the Financial Services Ombudsman, but such proceedings are ponderous. Many barristers are unable to fund legal advice on their own for the length of an entire case, whilst the Bar Standards Board has comparatively limitless funds. The current position is indefensible as it plays straight into the BSB’s hands by giving it grossly unfair tactical, financial and psychological advantages.

2.5.   The relevant machinery of investigation is in Part 5A of the BSB Handbook (version 4.7, September 2023). The rules are known as The Enforcement Decision Regulations 2019 (in force from 15 October 2019). They are referred to as “rE1,” “rE2” etc. To its credit, the BSB publishes a helpful policy document, LED04, to be found on the BSB’s website. It sets out the internal practice of the BSB at each phase of an investigation.

2.6    Case files are handled by a case officer (“CO”). The BSB appears to have appointed a number of new case officers in 2022 and 2023. It appears that some work remotely. It is not clear whether all of the case officers are qualified barristers or solicitors, but a number of them are.

2.7    There is a Scheme of Delegations by which the power of investigation devolves from the BSB’s parent body, the General Council of the Bar, to the “Commissioner” down to each case officer. The Commissioner is the BSB’s serving Director-General.

2.8    The prosecutor’s customary prosecutions policy is named an “Enforcement Strategy” (“ES”). It stipulates that investigation is risk-based, that the BSB must act proportionately, fairly, openly and promptly. It is stated that some types of report are less likely to result in consideration of enforcement action such as, information about conduct in private life which has no impact on a barrister’s professional life, or internal disputes within an entity or chambers.

2.9    The ES gives the case officers immense flexibility. It is expressly provided that if the conduct disclosed cannot be properly and fairly investigated, the BSB can decide to take no action. That confers an opportunity to knock out a complaint at inception. It is not easy to persuade the BSB to do that. This power is important in complaints relating to stale matters, where papers and witnesses are not available, where recollection has faded or where (as in many cases) LPP may prevent a barrister responding fully or at all.

2.10 The ES states that the BSB considers, “..the reliability and extent of the evidence we have to support any potential enforcement action and the harm that may have been caused to people, legal rights and public confidence.”

2.11 A decision whether or not to investigate takes into account:

1. whether any of the outcomes in The BSB’s Handbook have been adversely affected;
2. the impact of the act or omission taking into account the BSB’s regulatory priorities as stated from time to time;
3. the impact on clients or others if the BSB takes action, compared with the impact of not taking action, including the number of individuals affected and the seriousness of the adverse impact (or potential adverse impact) on those individuals (particularly if vulnerable persons are affected);
4. the impact on public confidence in the profession and the administration of justice;
5. evidence or a record of insufficient care being taken over compliance or of recklessness, deliberate breaches, or dishonest behaviour.
6. whether the alleged breach is an isolated incident or part of a pattern of repeated breaches and the period of time over which the act or omission took place;
7. whether the regulated person self-reported and has taken, or intends to take, steps to correct the breach and to provide appropriate redress;
8. whether the breach, if proved, would amount to a criminal offence; and/or,
9. whether the regulatory resources required are disproportionate to the likely sanction.
   • The BSB is a creature of statute. Assessment of complaints is in light of the “regulatory objectives” of the Legal Services Act 2007, which are: protecting and promoting the public interest; 2. supporting the constitutional principles of the rule of law; 3. improving access to justice; 4. protecting and promoting the interests of consumers; 5. promoting competition in the provision of legal services; 6. encouraging an independent, strong, diverse and effective legal profession; 7. increasing public understanding of the citizen’s legal rights and duties; and 8. promoting and maintaining adherence to the following professional principles: a. that authorised persons act with independence and integrity; b. that authorised persons maintain proper standards of work; c. that authorised persons act in the best interests of their clients; d. that authorised persons comply with their duty to the court to act with independence in the interests of justice; and e. that the affairs of clients are kept confidential.
   • The ES provides that there will be no referral to a disciplinary tribunal unless there is a realistic prospect of securing a finding on the civil standard of proof and such a referral is in the public interest.

2.14 Initial assessments are carried out by the BSB’s Contact and Assessment Team (known as “CAT”). This is a filtering system. It is not clear if that team has legal qualifications and/or if it is trained to filter out vexation, malice, frivolity and scandal. That is obviously desirable. It should have access to independent barrister advice at inception, (but it is not clear if, as under the previous PCC system, it does).

2.15 Some complaints are on their face without any merit and ought to be given short shrift. Risk assessment is a tick-box proforma that appears to be fed into a computer programme. It may well categorise even the most experienced practitioner as “high risk”, given the nature of the allegation made, an entry made in reference to a barrister’s reputation with his regulator as to which he or she has had no opportunity to make any representations at all. A copy of this document should be sought in all cases and, if it is erroneous, it should be challenged. Its conclusion may be wounding, and whilst it is portrayed as the unavoidable progeny of algorithm and bot, it is obviously managed by human hand.

2.16 On rare occasions, the CAT officer and the Enforcement and Investigations case officer (“CO”) disagree as to the risk profile or merits of a complaint. It is worth asking whether seemingly inexplicable delay before the barrister is told of the complaint is in fact due to such an internal disagreement. In 2021 in BSB v Kwiatkowski, that enquiry revealed that the complaint was dismissed in limine by one CAT officer, but that dismissal was revoked by a more senior CAT officer – (none of this coming to the investigated barrister’s attention until over 12 months later when the author asked about it). It may be relevant for an accused barrister seeking to persuade the IDP not to make a decision to prosecute him or her, if one officer has already dismissed the complaint at triage, only for another one to re-open it. That could be critical information for the IDP in a borderline case when it is deciding whether or not to prosecute.

2.17 The BSB calls “complaints”, “concerns”. Euphemism does not mitigate and in fact may compound, the dread that barristers experience when a “concern” is served on them. This book uses the older terminology: a complaint is a complaint.

2.18 The investigation, unlike any future trial, is confidential: rE63. Any limitation period, formerly as low as 6 months, has been abolished, leaving the Bar apparently potentially exposed to complaints of great antiquity about which memory may have long since faded and papers may have long since been destroyed. As time passes, this change is likely to prove to be a cause of great injustice if and to the extent that the BSB ignores a protest that it is impossible to answer a complaint due to the effluxion of time.

2.19 The CO will summarise the complaint and send that summary to the barrister under investigation for his response. This is a matter of obligation: rE15. The CO is required by LED04 (para 3.1) to say which matters are and are not being investigated. All correspondence with the complainant should be obtained if it is not provided and the BSB asked to confirm that its summary of the complaint is the last word in the matter, so that the goalposts cannot be moved later on in the investigation.

2.20 The CO has power to postpone the investigation in the case of the mental or physical illness of the barrister or where there are parallel court proceedings which should play out first. Any application to postpone should be supported by suitable expert evidence.

2.21 The response to the summarised complaints should be measured, although there will always be exceptions to this sound rule of thumb. A complaint brought by another barrister may call for a more rigorous response and a different style. As stated above, it ought to be drafted by specialist disciplinary law counsel. It must engage with the issues and only the issues. Background should be relevant and not prolix. The response document may well be produced at the tribunal as evidence and so should be the carefully compiled, natural product of the barrister’s account of events. Poor drafting may prove to be unexpectedly costly later on at trial.

2.22 The response time is 21 days. This is extendable for good reason as set out in LED04.

2.23 LED 04, paras 4.10 and 4.21, expressly empower the CO to send the barrister’s response to the complainant or other potential witnesses for comment. In binary cases where witness contamination could have a detrimental effect on witness recollection for the reasons explained in Gestmin SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) at [16] to [22], the defence should insist that the barrister’s response is served on the BSB only on condition that it is not shown, directly or indirectly, to potential prosecution witnesses. Unless this is done, there is every possibility that the BSB will show the barrister’s response to those potential witnesses as para 4.30 of LED04 enables the CO to go back to a dishonest complainant to investigate credibility. Now that we better understand how memory is adulterated by previews of defence evidence, this issue is critical in any case in which there may well be a trial of contested facts. Para 4.22 of LED04 empowers the CO, on request, not to send the barrister’s response to a future prosecution witness.

2.24 A complainant should not be permitted to recast their case once the complaint has been summarised and fully answered by the barrister. However, the BSB has the power to raise fresh allegations: LED04, para 5.1.

2.25 The taking of witness statements by third parties is dangerous. They may be conflicted by involvement in the facts that are the subject of the complaint. If they are solicitors, the witness could set up LPP to prevent the BSB making proper disclosure of communications with that witness. Para 4.30 of LED04 rightly warns the CO of this risk.

Legal professional privilege

• A recurring issue is how a barrister responds when a complaint is made by a third party, such as the opposing litigant or lawyer, about a case concerning a barrister’s client, who has not waived and will not waive legal professional privilege. As in wasted costs cases, it is a valid response that the barrister cannot circumvent LPP and so cannot respond in a manner that does him or her justice. LPP cannot be ignored: it is a constitutional and fundamental human right: R v Income Tax Commissioner ex parte Morgan Grenfell [2003] 1 AC 563 at [7] and [30], which requires that, “….the client should be secure in the knowledge that protected documents and information will not be disclosed at all.”
• B v Auckland District Law Society [2003] 2 AC 736 was a professional misconduct case, notably involving, “extremely serious allegations” [20]–[21]. The questions were: (1) whether the Law Society could retain documents obtained by it under an arrangement that privilege in the documents was not waived by the law firm, and (2) whether the Law Society could seek disclosure of privileged documents in the firm’s possession under statutory provisions. The Law Society argued [46]–[57] that the public interest in the maintenance of the integrity of the legal profession required that all relevant information be made available to those charged with the investigation and determination of complaints against legal practitioners, but that it was to be balanced against the public interest underlying LPP. The Privy Council rejected this, deciding at [65] that LPP was a good answer to a request made by the Law Society “..whether at the investigative stage or in proceedings before a disciplinary tribunal.” LPP is what enables a person to consult a lawyer in the utmost confidence and, without it, access to justice would be impaired: Auckland District Law Society at [37]–[45].
• The Privy Council decided at [57] that LPP can only be overridden by legislation containing words which did so, “..expressly or by necessary implication”. The test on necessary implication is at [58]–[59]: “A necessary implication is not the same as a reasonable implication … A necessary implication is one which necessarily follows from the express provisions of the statute construed in their context. It distinguishes between what it would have been sensible or reasonable for Parliament to have included or what Parliament would, if it had thought about it, probably have included and what it is clear that the express language of the statute shows that the statute must have included. A necessary implication is a matter of express language and logic, not interpretation.”. The PC at [74] was prepared to make a mandatory order against the regulator requiring the documents to be returned and the information “removed from the record.”
• When the Legal Services Act 2007 was enacted, it made no change for the BSB, established in 2005, to the position authoritatively established in Auckland District Law Society, including for the kind of “extremely serious allegations” spoken of in that case at [21].

2.30 The regulatory objectives binding on the BSB, include in s.1(1)(c) of the Legal Services Act 2007, “improving access to justice”. This and the other regulatory objectives must be read and applied by the BSB in the context that in the Act, Parliament preserved the position on LPP as decided in Auckland District Law Society. In Financial Reporting Council Limited v Sports Direct International [2021] Ch 457, the Court of Appeal followed and applied Auckland District Law Society to the statutory authority responsible for the public oversight of statutory auditors. The CA held at [13]–[17], that the test to be applied to whether statutory provisions override LPP, is whether they did so expressly or by necessary implication, as stated, in Auckland District Law Society. The CA rejected at [23]–[24] and [50]–[51], an argument that where a regulator sought privileged documents, there was no infringement or only a technical infringement of LPP. The primacy of LPP in disciplinary investigations is the same in Scotland: Scottish Legal Complaints Commission v Murray (2022) CSIH 46

• Unfortunately, it appears that the current practice of the BSB is to require the barrister to respond to a complaint, despite being constrained by LPP from giving a full (or sometimes, any) answer to it. There exists the power to halt the investigation on the footing that the barrister cannot be expected to respond in breach of LPP: see rE13. But it is almost impossible to persuade the case officers to do that. In one case, the matter was taken by the accused barrister to the “Independent Reviewer”, setting out a careful analysis of the law on privilege. That was ignored and the matter proceeded for another year, at the end of which the barrister, a KC, was vindicated. The power summarily to discontinue such unfair investigations is not being exercised and that is very wrong indeed.
• That said, it appears that the Independent Decision-Making Body will, when it decides whether to prosecute, take into account that the barrister has been unable due to LPP to speak out fully on the issues before that panel. The House of Lords in Medcalfe v Mardell [2003] 1 AC 120 decided that where counsel is facing an allegation of misconduct grounding an application for wasted costs by the opposing party and is unable to put forward his full version of events because of LPP, a court could only make the wasted costs order if it was satisfied that counsel, if unconstrained, could have no defence to the application for such an order. That test is an exceptionally high one, as explained by Lord Bingham at [24] and Lord Steyn at [42]. It should be applied mutuatis mutandis to disciplinary investigations.
• The former PCC practice of a ‘sponsor’ barrister or case examiner producing a report on the papers for the decision-making committee – now the IDB/IDP – seems to have fallen away. It appears that such a report is written by the CO, who produces a document that summarises the facts and analyses the issues, but does not suggest an outcome. The CO also revisits the computer-driven risk assessment. The report is disclosable on request after the IDB stage, which prevents the satellite litigation of former years when the PCC would refuse such requests for disclosure, leading to costly interlocutory applications: see for instance, Rich v BSB [2011] EWHC 2990 (QB).
• With some exceptions (see LED04, para 8.1), the CO will refer the report and a bundle to a 5-person panel of the Independent Decision Making Body (“IDB”) – the former is known as the “IDP” and the parent body, as the IDB. The defence should make a point of requesting that key defence documents are sent to the IDP without editing. The name of the barrister is redacted from the papers for the IDP.
• A decision to refer to the IDP will be governed by LED04, para 9.7. The test is the traditional one: whether there is a realistic prospect of success, and whether it is in the public interest to refer a complaint to disciplinary action. COs also take into account: (a) whether it is possible to set out the facts of the conduct in a manner that clearly supports the contravention of a specific Core Duty or Handbook Rule; (b) whether the central witnesses are credible and reliable; (c) whether relevant witnesses are prepared to give live evidence at a Tribunal; (d) whether the potential issues in dispute can be supported by documentary or live evidence; (e) whether all the evidence needed to prove the charges against the barrister is available or can be reasonably obtained prior to the hearing; and/or (f) whether any defence or explanation put forward by the barrister (or any alternative interpretation of the available evidence) is not likely to be accepted as a complete or partial defence to the charges, or to raise doubt as to whether the conduct in its wider context is sufficiently serious to be considered to be “professional misconduct”.
• The report is considered by the IDB. One criticism of the old PCC procedure was that the case papers, including the barrister’s detailed response to the complaint, were not read by all of the committee members in advance of the committee meeting, or at all. The case papers were not even copied for each committee member, but one bundle was available in the room for anyone who might wish to read it. It was thought that nobody usually did so save the ‘sponsor’ member or case examiner who wrote the report for the PCC. It is not known if the IDB panels delegate to one of the five IDP members to produce a report for the other four, nor whether each of the five members has their own bundle and reads the full barrister response to the complaint.
• Early IDB reports were remarkably thorough and commendably analytical. More recent reports have been disappointingly jejune.
• As of September 2023, there were 29 members of the IDB (12 barristers and 17 lay members). The five-person panels include both barrister and non-legally qualified members and always include more non-legally qualified members than barristers. Unlike in the past, the names of the five panel members are disclosable after the event. Thus there is no check or balance against any conflict of interest before the event, albeit the decision-makers appear not to know the name of the barrister in question.
• The committee reaches a decision as to dismissal of the complaint, or whether to refer the matter to a Tribunal, whether 5-person or 3-person, or as to whether, say, to proffer advice. It may also impose an “administrative sanction” (see below). In doing so, it applies a two-fold test: (1) is there is a realistic prospect of a finding of ‘professional misconduct’ being made and (2) having regard to the regulatory objectives, is it in the public interest to pursue disciplinary action?

2.40  A decision to prosecute may be reviewed: rE61 and LED04, para 12.1. The latter refers to examples, i.e. new evidence coming to the BSB’s attention that impacts upon the original decision or where a procedural issue is highlighted that calls into question the validity of the original decision. That aside, a decision to prosecute is, in principle, susceptible to judicial review. This was tacitly accepted in Rich v BSB [2012] EWCA Civ 320. In that case, the concern of the appellant (against whom all disciplinary charges were eventually withdrawn by the BSB) was that the ‘sponsor’ report failed accurately to set out the true context of his discussions with the opposition advocate. So, in principle, if a CO’s report has significantly misled the IDB, judicial review would lie to compel a freshly constituted IDB to consider a fresh report.

The Independent Reviewer

2.41   The BSB has an “Independent Reviewer” (“IR”). Any issue of law or other complex issue raised by an investigated barrister may be submitted to the IR. But this procedure is open to criticism. First, it is arranged by the BSB. The defence has no direct access to the IR. Defence communications with the IR have to be routed through the BSB. The BSB communications with the IR are not necessarily served on the defence. The IR will never contact the defence or even reply to defence correspondence. So overall, there is only a questionable appearance of independence. Second, the IR has exclusive access to the BSB’s case management system. The defence does not know which documents the IR is able to read. Third, the IR is employed and remunerated by the BSB. Fourth, the IR appears almost without exception to vindicate the BSB. Fifth, there has been dissatisfaction with the quality of the IR’s written decisions. Sixth, despite target dates, resort to the IR is liable to create delay in an already lengthy process. Finally, it appears that one of the two BSB IRs is also a serving member of the BTAS tribunals, which after the far-reaching reforms of 2013 that set up BTAS and its independent tribunals, were supposed to be fully and rigorously insulated from the BSB.

Administrative Sanctions

2.42  A possible IDB outcome short of referral to a Tribunal is an “administrative sanction” under rE22. This could be a fine of up to £1,000 for an individual, or £1,500 for a BSB entity, or a warning or fixed penalty. After Re P, a barrister [2005] 1 WLR 3019, where it was held that an appeal panel could not lawfully include a serving PCC member, the Bar Council’s PCC (the BSB’s microcosmic precursor), had to disband its so-called summary panels. These were committees of three PCC members, who would conduct an inquisitorial process, held in private, at the end of which they had the power to reprimand a barrister. The objection to that process, conceived before Article 6 of the ECHR was enacted into UK law by the Human Rights Act 1998, was that the Bar Council played investigator, prosecutor, judge and jury. As “judge”, it was obviously not “independent” within Article 6.

2.43  By way of the “administrative sanction” procedure, the BSB has introduced something resembling the Bar Council’s anachronistic and unlawful summary panels. It is impossible to see how any sanction imposed by the BSB itself, thereby acting as investigator, prosecutor and judge and so qua judge in its own cause, can be lawful at common law, let alone under Art 6. The availability of an appeal to an independent panel under rE54 et seq is a public lawyer’s answer to this criticism, but at the point of investigation and imposition of the administrative sanction, the obvious illegality is not counteracted. The legality of a procedure for barristers should not depend on them having to appeal in every case.

2.44  It is not possible to understand how the Re P embargo in r.E144 on disciplinary decision-makers being concurrent Bar Council or BSB officers or advocates, can be circumvented by the expedient of moving decision-making about internally imposed sanctions to a reincarnation of the PCC in the form of the Independent Decision-Making Body and away from the genuinely independent BTAS tribunals. The BSB’s mere labelling of a BSB committee as “Independent,” does not make it independent of the BSB, although the nomenclature clearly recognises the legal obligation to try to achieve independence.

2.45  The author’s written submissions to the above effect in J v BSB (2017) resulted in these remarks being made by the appeal panel dealing with an appeal against an administrative sanction:

“…the Appeal Panel recognised that as an approved regulator, the BSB should have robust regulations and procedures enabling it to impose administrative sanctions without the risk of unnecessary challenge on procedural or natural justice grounds. It therefore observed (but without making any findings in that regard) that the BSB might wish to re-consider the processes and operation of the Administrative Sanction procedure; in particular the applicability of the common law to the processing of a complaint up to and before a decision is made to lay a charge with reference to the principles set out in the case of In re P (a Barrister) [2005] 1 WLR 3019.”

2.46  An order to pay a fine of £1,000 is a “civil obligation” within the meaning of Art 6(1) of the ECHR. That engages the civil limb of Art 6(1). The decision-maker must be “independent and impartial.” There must be a public hearing. The BSB cannot lawfully sit in judgment on its own investigations. It is submitted that the IDB is part of the BSB and thus is not “independent and impartial” for these purposes. That is why the BTAS tribunals exist. All this said, given the choice between a public disciplinary trial and a private reprimand or private fine, most barristers would understandably choose the latter.

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