KEVIN STEWART FARQUHARSON v THE BAR STANDARDS BOARD

A disciplinary appeal is a review, not a rehearing, and appellate restraint applies to factual and evaluative findings. Professional regulation may extend to private conduct where it is qualitatively and demonstrably relevant to professional practice or the profession’s standing; there is no bright line between private and professional life. Dishonesty by a barrister engages professional standards and may justify interference with Article 8 rights where the interference is lawful, pursues a legitimate aim, and is necessary and proportionate. Sanctions must remain proportionate. Where sanction guidance is ambiguous, the more favourable interpretation should be adopted. Clear mitigating factors may justify departure from a disbarment starting point.

This was a statutory appeal under section 24 of the Crime and Courts Act 2013 from a five-person disciplinary tribunal of the Bar Tribunal and Adjudication Service. The tribunal found three charges proved by a majority of four to one and imposed disbarment for each charge.

Charge 1 concerned an admitted sexual assault on a female colleague. Charges 2 and 3 concerned requests to the victim and another barrister to give an untruthful account of the evening. The appeal raised issues concerning medical evidence, the threshold for professional misconduct, the application of Article 8 to private correspondence, apparent bias, and the proportionality of disbarment.

The appeal against the findings that all three charges were proved was dismissed. The appeal against sanction was allowed in part.

1. Appellate approach. The court reviewed rather than reheard the tribunal’s decision. It applied the restrained approach summarised in Solicitors Regulation Authority v Day & Ors [2018] EWHC 2726 (Admin) and Henderson v Foxworth Investments Ltd [2014] UKSC 41. Findings of fact could be disturbed only for an identifiable error or where no reasonable tribunal could have reached the decision. Evaluative conclusions required an error of principle or a conclusion outside the reasonable bounds, particularly where made by a specialist tribunal.
2. Charge 1. The appellant’s admission was unambiguous and extended to the allegation of professional misconduct. It therefore precluded an appeal against conviction. The medical evidence did not establish that the tribunal’s conclusion was outside the range reasonably open to it. The analogy with Howd v Bar Standards Board [2017] 4 WLR 54 was materially different because this case involved a criminal sexual assault, a custodial sentence, and evidence that excessive alcohol consumption was a significant cause of the conduct.
3. Charges 2 and 3. The tribunal erred by failing to consider Article 8 or the required justification for interference with private life and correspondence. The High Court nevertheless determined the issue itself. The disciplinary charges pursued the legitimate aims of protecting the rights and reputation of others and maintaining standards of honesty and integrity. There was no bright line excluding private conduct from regulation. The appellant knowingly asked two barristers to assist a false account, repeated the conduct after an opportunity for reflection, and caused particular distress to the victim. The interference was therefore lawful, necessary and proportionate.
4. Sanction. Applying Salsbury v Law Society [2008] EWCA Civ 1285, disbarment was clearly inappropriate. The sanction guidance was ambiguous between clear mitigating factors and exceptional circumstances. It had to be interpreted in the appellant’s favour. The court substituted a two-year suspension for Charge 1, four months for Charge 2, and two months for Charge 3, all concurrent and commencing on 21 October 2021. No order was made as to appeal costs, and the costs order below was left undisturbed.

The court also stated that a disciplinary tribunal need not provide a separate dissenting judgment or identify the dissenting member, although a brief explanation of the disagreement is good practice where appropriate.

• High Court (Administrative Court) The appeal against the findings that Charges 1, 2 and 3 were proved was dismissed. The disbarment sanctions were set aside and replaced with concurrent suspensions of two years, four months and two months respectively, commencing on 21 October 2021.
• Bar Tribunal and Adjudication Service Disciplinary Tribunal On 21 October 2021, the five-person tribunal found all three charges proved by a four-to-one majority and imposed disbarment for each charge. Written reasons followed on 22 October 2021.