Zeeshan Mian v Bar Standards Board (BSB)

A specialist professional disciplinary tribunal’s decision should receive appropriate respect on appeal. The appellate court reviews the decision unless a rehearing is required in the interests of justice. A declaration requiring disclosure of matters which might cause an admission application to receive more careful consideration may impose a continuing duty to disclose material changes before call. For dishonesty, the fact-finder must first establish the individual’s actual knowledge or belief and then apply the objective standards of ordinary decent people. A genuine belief that conduct is permissible does not prevent a finding of dishonesty. Disbarment will ordinarily follow dishonesty by a barrister absent exceptional circumstances.

The appellant, a former solicitor who transferred to the Bar, appealed under section 24 of the Crime and Courts Act 2013 against a unanimous Disciplinary Tribunal finding that twelve charges of professional misconduct were proved. Three charges involved dishonest non-disclosure in admission and call declarations to Lincoln’s Inn. The remaining charges concerned failure to notify the Bar Standards Board of restrictions imposed by the Solicitors Regulation Authority and later referral to the Solicitors Disciplinary Tribunal.

The Tribunal imposed disbarment by a majority of three to two. The appellant challenged the findings, the dishonesty conclusions, the Tribunal’s finding of a continuing duty to disclose, the absence of a recording, and the sanction. The central issues were whether the Tribunal had erred in its factual and legal assessments and whether a rehearing was required.

1. Appeal and rehearing. The appeal was dismissed. The Court proceeded by way of review under CPR Part 52 and rule 52.21. The failure of the Tribunal’s recording equipment did not cause injustice because the ex-tempore judgment had been reconstructed from members’ notes without any identified material deviation. The fresh evidence was considered but did not justify a rehearing.
2. Disclosure obligations. The Tribunal was entitled to find that the declarations imposed a continuing duty to notify Lincoln’s Inn and the BSB of relevant changes before call. The declarations covered not only pending disciplinary proceedings but also any matter which might reasonably call into question fitness to become a practising barrister. The disclosure examples were expressly non-exhaustive, and the instruction to disclose if in doubt reinforced the breadth of the obligation. The imposition of conditions on the appellant’s practising certificate was a matter which ought to have been disclosed.
3. Dishonesty. The Tribunal correctly identified the two-stage test in Ivey v Genting Casinos (UK) Ltd [2018] AC 391, as confirmed in R v Barton [2021] QB 685. The appellant’s asserted view that the SRA matters were irrelevant was relevant to the subjective question whether that belief was genuinely held, not to the objective standard. Although the Tribunal’s reasoning contained an ambiguity, its substantive reasoning showed that it rejected the asserted belief and found a conscious decision to withhold relevant matters. The Court was satisfied that ordinary decent people would regard that conduct as dishonest.
4. Sanction. The Tribunal’s decision to disbar the appellant was an evaluative decision deserving respect. The sanctions guidance treated disbarment as the usual consequence of dishonesty, absent exceptional circumstances. The Court found no proper basis to substitute the minority view or interfere with the sanction.
5. The findings of professional misconduct and the sanction were upheld. The appeal was dismissed.

• High Court (Administrative Court): appeal against the Disciplinary Tribunal’s decision dismissed; findings of professional misconduct and disbarment upheld.
• Disciplinary Tribunal of the Council of the Inns of Court: twelve charges proved unanimously; disbarment imposed by a majority of three to two on 16 June 2022.