Robert Kearney v The Bar Standards Board

Apparent bias is determined by asking whether a fair-minded and informed observer would conclude that there was a real possibility or real danger of bias. The assessment must consider all relevant circumstances cumulatively. A tribunal may express a provisional view during proceedings, but privately deciding or appearing to have decided a central issue before hearing evidence and submissions on mitigation may require recusal. Subsequent production of a careful and detailed decision does not cure an earlier failure to recuse where the tribunal may have approached the later hearing with a closed mind.

Mr Robert Kearney, a barrister, appealed against his disbarment by a five-member Bar Tribunals and Adjudication Service panel concerning admitted sexual-misconduct charges in two cases. The first ground alleged actual or apparent bias arising from an email sent by the panel chair after an adjourned sanctions hearing. The email referred to a private view that the applicable guidance pointed to disbarment, the appellant’s alleged delay and non-cooperation, doubts concerning his illness, and a high likelihood of further offending.

The appeal was confined initially to that ground because, if successful, the matter would require remission to a differently constituted panel for redetermination of sanction.

1. Appeal allowed on ground 1. The allegation of actual bias was not made out. The issue was whether apparent bias was established.
2. The applicable test, approved in Porter v McGill and formulated in the Re: Medicaments case, was whether, having ascertained all circumstances bearing on the suggestion of bias, a fair-minded and informed observer would conclude that there was a real possibility or real danger that the tribunal was biased.
3. The email could not properly be characterised merely as the expression of a provisional view in an open hearing. It indicated that the panel had privately reached a clear view that the guidance pointed to disbarment, whereas the guidance allowed for either lengthy suspension or disbarment.
4. The cumulative effect of the email was decisive. The panel had expressed unqualified views about delay and non-co-operation, appeared to have formed an adverse view of the credibility of the Covid explanation, and stated that the appellant presented a high likelihood of further offending and a danger to women. Those matters were relevant not only to interim suspension but also to the central sanctions issue, including whether mitigation could make suspension appropriate.
5. The fair-minded and informed observer would regard the combination of the private conclusions, expressed before evidence and submissions on mitigation, as creating a real possibility or real danger of bias. The subsequent careful and detailed sanctions decision did not remove the concern, because it could not establish that the panel’s minds had been open when mitigation was later presented.
6. The case was therefore to be remitted to a differently constituted panel for redetermination of sanction. The remaining grounds were not determined.

• Bar Tribunals and Adjudication Service: A five-member panel imposed disbarment on 19 July 2023 after refusing the appellant’s application for recusal on 5 January 2023.
• High Court (Administrative Court): The appeal on ground 1 was allowed and the sanction issue was remitted to a differently constituted panel. The remaining grounds were not determined.