A barrister who was disbarred for sexual harassment has won his appeal against sanction.
Sitting in the Manchester Administrative Court, His Honour Judge Stephen Davies said Robert Michael Kearney’s sanction ‘should be remitted to a differently constituted panel for a fresh determination’.
Kearney, called by Inner Temple in 1996, appealed after his application for the five-person tribunal panel to recuse itself over an email written by a panel member was refused.
Kearney faced ‘a number of charges’ related to allegations of sexual harassment of a person, referred to as Person A in court, during a mini-pupillage. Kearney admitted two charges related to that conduct, the court heard. He admitted to six other charges of sexual harassment related to two people, referred to as Pupil A and Pupil B.
The court heard that, during an adjournment, panel member His Honour Judge Caroll emailed the chair of Inns of Court and the director general of the Bar Standards Board in his capacity as chair of The Bar Tribunal and Adjudication Services.
The email, read out in court, stated that ‘as the hearing has not reached resolution, I should not disclose confidential discussions’. However it noted that Kearney had two previous BSB findings or sanctions against him for ‘almost the exact same behaviour’. It said ‘current guidance points to disbarment’ adding the panel was ‘unanimous of the view that he is likely to behave like this again’ and the panel was ‘dismayed to find we have no such power’ in regard to temporary suspension.
Ruling on Kearney's claim that the email displayed bias, the judge said: ‘I should say straight away the allegation of actual bias is not made out, but I must consider apparent bias in the context of that email.’
‘[The email] said the panel was unanimous of the view the appellant could continue to cause offences. It appears [to be] disclosure of panel discussions and that the panel had already formed a clear view.
‘Returning then to the legal test, would a fair-minded and informed observer conclude there was a real possibility the tribunal was biased. In my judgment, in the totality, they would.
‘It is what has been decided in private before any evidence of submissions on mitigation. In my judgment, a reasonable observer would see the appellant would have a justified sense of grievance.’
The judge said the panel should have recused itself, adding: ‘This case was only ever going to end up with disbarment whatever was said in mitigation.'
He added: ‘It is important to note at this stage when the case came to the sanction hearing, the appellant put in a reflective statement setting out the steps he had taken to resolve his unacceptable behaviour.’ Allowing the appeal, he said his judgment ‘erred on the side of safety’.
