News focus: ‘Perverse’ punishments at the bar

It is unusual for a profession to demand harsher sanctions against its own members. Bolstering the power of regulators and dreaded disciplinary tribunals is rarely at the top of a lawyer’s to-do list. Over the past year, however, calls for tougher punishments for barristers who commit sexual misconduct have grown louder at the bar – including from those at the top.

In the most recent case of male barristers sanctioned for inappropriate sexual behaviour, Robert Kearney (called in 1996) was suspended for six months after making lewd comments to a mini pupil in 2015. The veteran barrister, who intends to appeal this month’s ruling, had previously been fined for inappropriate drunken behaviour towards a male pupil in 2017.

Other cases follow a familiar pattern. In January, a male barrister who held a junior colleague ‘by or around the neck’ and told her ‘I really wanted to smack your arse’ – before doing so – was fined £6,000 by the Bar Tribunals and Adjudication Service (BTAS). Another was suspended for three months for groping two junior lawyers at a social event. A few months earlier, a barrister convicted by magistrates of ‘upskirting’ a woman at a London tube station received a six-month suspension.

Such sanctions have been decried as overly lenient by sections of the profession. In letters seen by the Gazette, the Bar Council told both the Bar Standards Board and BTAS that there are ‘still clearly issues with the investigations and sanctions process in this sensitive area’.

‘Many barristers have spoken to us about what appears to be a trend indicative of a level of inconsistency in sanctions based on offence,’ Bar Council chair Derek Sweeting QC wrote. He referred to cases where a barrister was sanctioned more severely for failing to renew a practising certificate than another barrister who ‘sexually assaulted’ two women at a bar event.

‘Rather perversely and seemingly not reflective of the seriousness of offences, the practising certificate offence received a four-month suspension as opposed to the sexual assaults receiving a three-month suspension. While we appreciate that individual cases may not always be comparable, such examples do give the appearance of being out of step and may understandably give rise to public concern,’ Sweeting said.

Individual barristers have also raised the alarm. James Lloyd, a member of Carmelite Chambers, which specialises in professional disciplinary matters, said the bar ‘continues to see sanctions imposed by the regulator for sexual misconduct which do not, on their face, reflect the severity or lasting impact of that conduct’.

These concerns have not fallen on deaf ears. A six-week public consultation on proposals to update the sanctions guidance will begin next month and new guidelines are expected to come into force in November.

'The bar "continues to see sanctions imposed by the regulator for sexual misconduct which do not, on their face, reflect the severity or lasting impact of that conduct"'

James Lloyd, Carmelite Chambers

A BSB spokesperson said: ‘We know that concern has been expressed about the sentences imposed in some recent cases of professional misconduct and we hope that everyone who has an interest in these issues will respond to the consultation.’

Punishments may only be part of the story, however. In its letter to BTAS, the Bar Council questioned the ‘under-representation’ of women on disciplinary panels. Recent figures show that while half of barristers on the BTAS panels are female, just 23% of QCs and 33% of clerks are female, making the total panel pool 62% male.

BTAS said it had proved ‘particularly difficult’ to secure a sufficient number of female QC applicants but pledged that ‘every effort will be made to ensure that the 2022 recruitment exercise does all that is possible to ensure a diverse and representative panel is recruited’.

How barristers report cases of harassment and inappropriate behaviour is also under scrutiny. The Bar Council’s ‘Talk to Spot’ app – designed to help barristers report bullying and harassment quickly and anonymously – has been largely ignored. While January saw a spike in Covid-related complaints, just eight reports have been filed in the past two months, none of which relates to sexual harassment.

Yet bullying and harassment are still ‘endemic’ in areas of the bar, according to an October study. Such reports are now familiar but – until now, at least – seem to have had little impact. Similarly, the Bar Council wrote to the BSB in 2019 over the handling of harassment cases. Two years later it has written again, voicing the same concerns.

This time around, however, the profession seems to be listening. Perhaps change is in the air.

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