Bar Standards Board v Howd

The High Court allowed Mr Howd's appeal against findings of professional misconduct because the Disciplinary Tribunal misunderstood and misapplied medical evidence relevant to his conduct at a chambers event and therefore reached conclusions based on an erroneous factual assessment. The court held that conduct occurring at a chambers marketing event can fall within the scope of Core Duty 3 and Core Duty 5 of the Bar Standards Handbook, but that the term "integrity" in Core Duty 3 is primarily concerned with probity and honesty rather than offensive personal or sexual behaviour. Because the medical evidence established, on the balance of probabilities, that the behaviour was a consequence of a medical condition (with alcohol likely exacerbating disinhibition), the conduct did not amount to morally culpable or disgraceful behaviour and therefore did not meet the threshold of "serious professional misconduct." The Tribunal's findings under Core Duty 3 were erroneous and the charges of professional misconduct were quashed; accordingly the Bar Standards Board's appeal against sanction was dismissed.

Background and facts:

• Mr Howd, a practising barrister, faced charges arising from his conduct towards female colleagues and staff at a Zenith Chambers summer party on 11 July 2014. Eight charges were heard by a Disciplinary Tribunal on 4–5 May 2016; six charges were found proved and two dismissed. The Tribunal imposed a fine and ordered contributions to witness expenses.
• The charges included allegations of "pestering" conduct towards four complainants; some originally pleaded as "harassment" were struck out at a preliminary stage because the Equality Act 2010 did not apply to the pleaded facts.

Procedural posture: This decision is an appeal to the High Court under the Disciplinary Tribunals Regulations 2014 and CPR Part 52. Mr Howd appealed against findings of guilt; the Bar Standards Board appealed against sentence.

Relief sought and issues framed:

• (i) Whether the Tribunal misinterpreted or failed to give due regard to medical evidence about Mr Howd's condition.
• (ii) Whether the Tribunal wrongly assessed the credibility of complainant B.
• (iii) Whether Core Duty 3 could properly apply to conduct at a chambers party and, if so, whether the Tribunal misconstrued "integrity" in CD3 so as to treat offensive sexual conduct as necessarily amounting to lack of integrity.
• (iv) Whether the proved facts could have diminished public trust under Core Duty 5.
• (v) Whether the conduct met the threshold of "professional misconduct" (i.e. serious professional misconduct) rather than being a matter for administrative sanction.

Court's analysis and reasoning:

• Medical evidence: the court accepted additional medical evidence adduced on appeal and concluded on the balance of probabilities that the inappropriate and at times offensive behaviour was a consequence of Mr Howd's medical condition, and that his alcohol consumption was likely a response to that condition and served to exacerbate disinhibition. The Tribunal had therefore erred in attributing behaviour primarily to voluntary drunkenness and in failing to give proper weight to the medical evidence.
• Credibility of B: the court reviewed the Tribunal's credibility findings and, applying the appropriate appellate standard for a review under CPR r.52.11, concluded there was no proper basis to disturb the Tribunal's finding that B was a credible witness on the facts before them.
• Scope of Core Duty 3 and "integrity": the court accepted that Core Duty 3 can apply to business-related chambers activities, including client-directed events. However, "integrity" in CD3 was construed as concerned with probity, honesty and adherence to ethical standards rather than encompassing all forms of offensive personal or sexual behaviour. The Tribunal had applied guidance too rigidly and conflated gC25 (which lists seriously offensive conduct) with proof of lack of integrity under CD3.
• Core Duty 5 and professional misconduct threshold: the court accepted that conduct at a professional event could in principle diminish public trust under CD5, but held that where conduct is caused by a medical condition and lacks moral culpability, it is unlikely to affect public confidence provided the person is fit to practise. Applying authorities on the meaning of "professional misconduct," the court held that the misconduct must attain a level of seriousness; here, when medical causation is properly considered, the conduct did not reach that threshold.

Conclusion: The court allowed Mr Howd's appeal against the findings of guilt and dismissed the BSB's appeal against sanction.

This was an appeal from a Disciplinary Tribunal. The High Court allowed Mr Howd's appeal against findings of professional misconduct because the Tribunal misunderstood and misapplied material medical evidence, and erred in treating offensive conduct at a chambers marketing event as necessarily a failure to "act with honesty and integrity" under Core Duty 3. The court held that "integrity" in CD3 relates to probity and honesty and that, on the balance of probabilities, the behaviour was caused by a medical condition (with alcohol likely exacerbating disinhibition) and therefore did not meet the threshold of serious professional misconduct; consequently the Tribunal's findings of guilt were quashed and the BSB's appeal against sanction was dismissed.

Appeal from a Disciplinary Tribunal of the Council of the Inns of Court (hearing 4–5 May 2016). High Court (Administrative Court) decision allowing the appellant Mr Howd's appeal and dismissing the Bar Standards Board's cross-appeal on sanction: [2017] EWHC 210 (Admin).