McCarthy v Bar Standards Board

An appeal from a professional disciplinary tribunal is ordinarily by way of review, not rehearing. Apparent bias is assessed by asking whether the fair-minded and informed observer would conclude that there was a real possibility of bias. A professional connection between a tribunal chair and the chair of an earlier tribunal will not necessarily satisfy that test, particularly where the earlier decision is not before the fresh tribunal and the connection is disclosed without objection. A regulator may comment publicly on the strength of serious allegations and the need for a retrial, but should use circumspect language and avoid declaring guilt before adjudication. Dishonesty by a barrister ordinarily warrants disbarment, subject to a proportionate assessment of mitigating and aggravating factors.

A barrister appealed against findings of professional misconduct and disbarment imposed by a fresh Disciplinary Tribunal after earlier findings and sanctions had been quashed on appeal because the Bar Standards Board had failed to disclose a materially different draft witness statement. The appeal challenged the tribunal’s apparent independence and impartiality, a public statement by the regulator expressing the view that the appellant had acted dishonestly, and the proportionality of disbarment. The central issues were whether the tribunal’s constitution created a real possibility of bias, whether the press release infringed the presumption of innocence or improperly influenced the tribunal, and whether the sanction was legally or proportionately flawed.

1. Appeal by way of review. Under CPR Part 52, the appeal was limited to reviewing the Tribunal’s decision. The appeal could succeed if the decision was wrong or unjust because of a serious procedural or other irregularity.
2. Apparent bias. Applying Porter v Magill [2002] 2 AC 357 and the attributes identified in Helow v Secretary of State for the Home Department [2008] UKHL 62, no fair-minded and informed observer would conclude that there was a real possibility of bias. The Tribunal chair had been pupil to, and formerly in chambers with, the chair of the earlier tribunal. That link was remote: the earlier decision was not before the fresh Tribunal, the chair was not a party or advocate, and the Tribunal had been asked to decide the matter afresh. The disclosure had been frank, and the appellant’s counsel had not objected or sought recusal.
3. Press release. In the exceptional circumstances, the BSB was entitled to report the earlier proceedings and express the view that serious allegations should be retried. It went further than proper by stating that the appellant had acted dishonestly and falsified documents; more circumspect language confined to the strength of the evidence would have been preferable. Nevertheless, the Tribunal’s independence, its separation from the prosecuting regulator, its training, and its awareness of the criminal standard of proof made improper influence inconceivable.
4. Sanction. The Tribunal correctly treated disbarment as the starting point under the applicable guidance, while recognising that exceptional or clear mitigating factors could justify a lesser sanction. It considered the appellant’s good character, personal difficulties, adjustment disorder, the one-off nature of the conduct and the lengthy proceedings, but was entitled to find that deliberate dishonesty, frustration of the regulatory investigation, gross deception, absence of remorse and damage to the profession made disbarment fair and proportionate. The principles in Bolton v The Law Society [1994] 1 WLR 512 were particularly apt.
5. The appeal was dismissed and disbarment upheld.

1. Court of Appeal allowed the appellant’s earlier appeal on 20 January 2015, quashed the Visitors’ decision and remitted consequential matters after finding procedural unfairness arising from non-disclosure of a draft witness statement.
2. Visitors to the Inns of Court ordered a retrial on 13 July 2015.
3. High Court (Administrative Court) dismissed the present appeal and upheld the fresh Tribunal’s findings and sanction: [2017] EWHC 969 (Admin) .