Timothy Raggatt v Bar Standards Board

Prosecuting counsel must ensure that material capable of undermining the prosecution case or assisting the defence is disclosed as soon as reasonably practicable, or that a public interest immunity application is made. The sensitivity of material does not suspend that obligation. A serious failure to comply may constitute conduct prejudicial to the administration of justice even without proof of dishonesty, intention or recklessness. Disciplinary tribunals may proceed with three members where the governing regulations permit diminution of a panel. Sanctions guidance is non-prescriptive. A tribunal may impose suspension to maintain public confidence where it gives adequate reasons and reaches a proportionate conclusion, even without an express finding of ongoing risk to the public.

The appellant, leading counsel for the Crown Prosecution Service in the prosecution of Conrad Jones, was charged before the Bar Tribunal and Adjudication Service Disciplinary Tribunal with professional misconduct arising from non-disclosure of surveillance material and an intervention during Jones’s third trial.

The Tribunal found charges 2 and 5 proved. It concluded that the appellant had decided and advised against disclosure or a public interest immunity application, and had failed to assist the trial court by refusing to concede that a meeting could not have occurred at the relevant time. It imposed concurrent suspensions of 12 months and three months.

The appeal concerned fairness and delay, the Tribunal’s constitution and conduct, the appellant’s knowledge and decisions, the meaning of the applicable misconduct provisions, and sanction.

1. Appeal dismissed. The Tribunal was entitled to determine the charges on the documentary evidence and the appellant’s evidence. The age of the proceedings did not make the hearing unfair, particularly since the issue had already been considered in detail on the earlier strike-out application.
2. The Tribunal was validly constituted. The applicable regulations permitted a five-person panel to continue with four and then three members, subject to the prescribed composition. Neither the seriousness of the charges nor the professional backgrounds of the remaining members required an adjournment or established bias.
3. Judicial interventions must be assessed cumulatively. The relevant question is whether, objectively, they rendered the hearing unfair. The Chair’s frequent interventions were vigorous but did not prevent the appellant from giving evidence or presenting his case.
4. By December 2006 the appellant knew the substance of the surveillance material, including that Jones was in Coventry until 2.24 pm on 2 June and that the witness’s account placed the alleged meeting earlier. The appellant had decided and advised that no public interest immunity application or disclosure should be made at that stage. A proposed later review did not prevent that being a decision. The decision breached the disclosure obligations under the Criminal Procedure and Investigations Act 1996.
5. The three categories in paragraph 301(a) of the Code were not a hierarchy or a scale of mens rea. Conduct prejudicial to the administration of justice did not require proof of intention or recklessness. A serious failure by prosecuting counsel to draw exculpatory material to the attention of the defence and court was capable of satisfying the provision.
6. The appellant ought to have known in July 2007 that the alleged meeting could not have occurred between 1.30 pm and 3 pm. His intervention therefore justified the finding on charge 5.
7. The Sanctions Guidance was non-prescriptive. The Tribunal could depart from the apparent limitation in paragraph 6.35 and impose suspension to maintain public confidence, provided it followed a proportionate approach and gave adequate reasons. The sanctions were neither excessive nor disproportionate.

• High Court (King's Bench Division), Divisional Court: Appeal dismissed from findings and sanctions imposed by the Bar Tribunal and Adjudication Service Disciplinary Tribunal.
• Bar Tribunal and Adjudication Service Disciplinary Tribunal: Charges 2 and 5 proved; concurrent suspensions of 12 months and three months imposed.