The Bar Tribunal and Adjudication Service handed down sanction in Jo Sidhu KC's misconduct disciplinary hearing this week. After doing so, it had to consider publication.
The former Criminal Bar Association chair faced multiple allegations. The majority were dismissed, with three allegations of misconduct proved leading to his disbarment. Though findings have been published, full reasons have not, nor the reasons on the findings of fact. But to reach this waiting point took a little consideration.
According to Regulation E243 of the Bar Standards Board handbook where charges are proved, the BTAS must publish the finding and sanction of the tribunal on its website unless, on application by the respondent at the hearing, it directs it is not in the public interest to do so. Where charges have been dismissed, the BTAS must not publish anything unless the respondent requests it.
Regulation E243A specifies that when charges have been dismissed an anonymised summary of the report must be published unless, after an application from the respondent, the tribunal directs that this is not in the public interest. There is a discretion in sub paragraph d, which says the tribunal may publish the report of the tribunal on its website where charges have been dismissed, provided it is anonymised.
So, what happens when a widely-reported case sees some allegations against a barrister found proved and others dismissed?
The rules do not specify. Sidhu is such a prominent figure in the legal world that it would be hard to envision another barrister testing this regulation in such a way.
Alisdair Williamson KC, for Sidhu, argued anonymity, in a case like this, was impossible. It had been widely reported, and would be easy to identify Sidhu even if the findings were anonymised. He urged the tribunal not to publish anything in relation to the dismissed charges. The harm to Sidhu from the proceedings and subsequent reports had been great, and something on the BTAS website would make matters worse, he said.
Fiona Horlick KC, for the Bar Standards Board, argued it should all be published – bar the parts of the proceedings heard in private – because the tribunal’s findings and ex tempore judgment, delivered orally back in December, had already been made in public hearings attended by the media and the allegations in relation to Person 1 and Person 3 (which were all dismissed) had been ‘widely reported’.
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The tribunal returned with a decision acknowledging there was an ‘obligation to publish a report in respect of charges proved and an anonymised [report] for charges dismissed’.
Taking into account the impact on the respondent, the public interest and open justice, the tribunal said that there should be anonymised reporting of the charges that were dismissed. That means that there will be a published report of the allegations found proved against Sidhu and a second report of the allegations dismissed.
With the greatest respect, it feels slightly silly to have it done this way when the case, including the dismissed allegations, has been widely reported. It feels like following the rules for their own sake even if the result makes little sense: Sidhu's anonymity has already been cut off at the knees.
In fairness to the tribunal, though it does not act in a vacuum it can only be concerned with the things that concern it. Media reporting on the case may be a factor to consider but should not be the deciding factor on a decision.
The tribunal’s decision would be a logical compromise that complies with the regulations in an ordinary case. But, it is fair to say, Sidhu’s hearing and the publicity around it has been less than ordinary. In a case where multiple charges are brought against an individual, splitting published findings/summaries/reports into partly anonymised documents seems more like extra admin than serving any greater purpose.
Ignoring the dismissed claims in their entirety works, of course, but if a case is as widely reported on as Sidhu’s then surely better to publish everything and show that not all charges were found proved and that many were dismissed? Or to not publish at all (granted, this would not be my choice)?
The anonymity agreed here complies with the regulations but does little else, when, as Horlick pointed out, almost everything is already out there.
