Sukul v Bar Standards Board

A professional disciplinary tribunal considering disbarment must give the barrister a proper opportunity to make representations in mitigation after deciding guilt, unless the sanction is inevitable. An appeal court ordinarily reviews the tribunal’s decision and should remit the question of sanction where the tribunal failed to provide that opportunity. The seriousness of intentional professional misconduct does not, without more, establish that disbarment is the only permissible sanction.

The appellant, a barrister, was found guilty by a disciplinary tribunal of professional misconduct relating to false grounds of appeal prepared for a client and subsequently used in proceedings before the Court of Appeal (Criminal Division). He initially appealed against conviction, principally relying on the tribunal having proceeded in his absence, but abandoned that appeal. He sought leave out of time to appeal against his disbarment on the first charge. The issue was whether the tribunal had been required to allow representations in mitigation before determining the sanction.

1. The appeal against conviction was abandoned. The court considered that abandonment to be right and proper.
2. The tribunal’s power to proceed in the appellant’s absence under Procedure Rule E148 was severely constrained and required the utmost care and caution. The tribunal had adopted a legally correct approach, so the abandoned conviction appeal disclosed no basis for further decision.
3. Under Part 52.11 of the Civil Procedure Rules 1998, an appeal is ordinarily a review. If the tribunal ought to have afforded an opportunity to make mitigation representations, the proper course was remittal unless disbarment was inevitable.
4. The misconduct was grave. The appellant knowingly drafted grounds of appeal in which he had no belief, apparently to assist his former instructing solicitor and to appease the client. Nevertheless, the conduct did not involve allegations of fraud, and the applicable sanction guidance ranged from advice to disbarment. The reference to premeditation did not identify a separate aggravating factor, since the grounds had necessarily been drafted intentionally.
5. Disbarment could not be regarded as necessarily inevitable. The tribunal should therefore have allowed the appellant to make representations on sanction after finding him guilty.

Leave to appeal out of time was granted. The appeal against sanction was allowed, the sentence on charge 1 was quashed, and the matter was remitted for re-sentencing by a differently constituted five-person tribunal. There was no application for legal costs.

High Court (Administrative Court): the appellant abandoned his appeal against conviction. Leave to appeal out of time against the sanction was granted; the disbarment was quashed and the sanction on charge 1 was remitted to a differently constituted five-person tribunal.