David Owusu Yianoma v Bar Standards Board

An appeal against a disciplinary sanction is ordinarily a review, not a rehearing. An appellate court should respect a specialist tribunal’s evaluative judgment, but may intervene where there is an error of principle or the decision falls outside the bounds of what the tribunal could properly and reasonably decide.

In assessing sanction, the tribunal must evaluate culpability and harm, apply the relevant guidance, and give proper weight to both aggravating and mitigating factors. Full admissions of the essential facts, an isolated incident and the absence of personal gain may materially reduce culpability. Reckless misleading of the court and serious potential harm may nonetheless justify suspension.

The Bar Standards Board brought disciplinary proceedings against a practising barrister arising from his preparation of criminal appeal papers as fresh appeal counsel. The Bar Tribunals & Adjudication Service found proved three charges involving reckless misleading of the court and failure to comply with the obligations identified in R v McCook [2014] EWCA Crim 734.

The Tribunal imposed concurrent suspensions of 12 months and ordered costs. The appellant accepted the essential underlying misconduct but challenged the sanction as disproportionately severe, relying on his admissions, the isolated nature of the incident, his lack of personal gain and his motivation to assist the proposed appellant. The central issue was whether the sanction was wrong or clearly inappropriate on the applicable appellate standard.

1. Appeal standard. The appeal was limited to a review under CPR rule 52.21. The court could affirm, set aside or vary the Tribunal’s order, but should accord appropriate respect and deference to a specialist disciplinary tribunal. Intervention was justified only for an error of principle or where the evaluative decision fell outside the bounds of what the Tribunal could properly and reasonably decide.
2. Sanction methodology. The Tribunal had correctly applied the six-stage BTAS Sanctions Guidance methodology. The seriousness assessment required consideration of culpability and harm. Recklessness, professional responsibility, control over the circumstances and foreseeable harm were properly treated as adverse factors. The Tribunal also had to account for favourable factors, including the absence of gain, the unplanned and isolated nature of the misconduct, and the appellant’s honourable motivation.
3. Application. The Tribunal was entitled to find serious harm, including wasted judicial resources, unjustified allegations against other legal professionals and potential damage to public confidence. It was also entitled to find lack of insight, given the appellant’s willingness to pursue grounds despite contrary information from trial lawyers. However, it gave insufficient weight to the appellant’s admissions of the essential facts, the isolated nature of the misconduct and the absence of personal gain.
4. The misconduct therefore fell within the middle, rather than upper, range of seriousness. Suspension remained necessary to protect the public, maintain confidence in the profession and promote proper standards, but 12 months was clearly inappropriate. The Tribunal’s order was varied by substituting a concurrent six-month suspension on charges 1, 3 and 7. The decision was quashed to that extent only.

The appeal was brought to the High Court under section 24(2) of the Crime and Courts Act 2013 against the sanction imposed by the Bar Tribunals & Adjudication Service. The Tribunal had imposed concurrent 12-month suspensions and costs. The High Court varied the suspension to six months concurrent on the three proved charges.