The head of the bar has criticised the standards regulator for its ‘unacceptable and inexcusable’ handling of a complaint against a high-profile barrister.
The Bar Standards Board publicly apologised to Dinah Rose KC of Blackstone Chambers over the way it handled a complaint made by a campaign group in relation to a case concerning same-sex marriage in which Rose represented the Cayman Islands government.
The Bar Council said it welcomed the BSB’s apology but was ‘deeply concerned’ by what happened.
Mark Fenhalls KC, bar chair, said: ‘It is central to the professional standards of barristers that they represent clients whether or not they approve of the client's position, and that barristers are not to be associated with their clients' causes merely by virtue of having represented them.
‘The BSB’s handling of the complaint against Dinah Rose was unacceptable and inexcusable. It is inconsistent with the fundamental principles of fairness to ever issue a decision document to a complainant which is critical of a barrister without providing the barrister with an opportunity to be heard or to comment.’
Fenhalls also criticised the BSB for failing to meet its performance indicators.
The Bar Council is the approved regulator for barristers but is required by the Legal Services Board to delegate its regulatory functions to a separate body.
Fenhalls said the BSB was dealing with cases too slowly. ‘The BSB must now concentrate on its core responsibility of investigating allegations of professional misconduct in a timely and accurate manner, and do so in a way that conforms to the elementary principles of natural justice which were overlooked in this case.'
The BSB's review must be 'root and branch' and transparent to regain confidence among the profession and the public, Fenhalls added.
The BSB told the Gazette that, as its statement made clear, it entirely agreed with the council about the importance to the administration of justice of an independent bar, willing to take controversial or unpopular cases.
‘We also agree that we should not issue decision documents which might be seen as being in any way critical of a barrister without providing the barrister with an opportunity to be heard or to comment. We should like to emphasise again that, in this case, we did not see any evidence that Ms Rose knowingly or recklessly misled or attempted to mislead anyone in her public statement. But we fully accept that it would have been appropriate to have invited Ms Rose to comment and we have apologised to her accordingly.’
The BSB dealt with over 2,500 reports alleging professional misconduct in 2021-22, which represented a 54% increase on the previous year. Its independent reviewer ‘continues to assure us that the quality of our decision-making is generally of a high standard’.
The BSB ‘entirely accepts’ that there are lessons to be learned from how it handled the complaint concerning Rose and that a thorough review of its processes is required.
