Robert Kearney v The Bar Standards Board

An appeal from a disciplinary tribunal is ordinarily by way of review, not rehearing. The appellate court must respect the expertise of the tribunal, but may intervene where the decision was wrong or clearly inappropriate, including where the sanction was manifestly excessive.

In disciplinary cases involving repeated sexual misconduct, the tribunal may assess cumulative seriousness, previous sanctions, risk of repetition, culpability, harm, aggravating factors, mitigation and proportionality. Disbarment may be justified where misconduct falls within the upper range of seriousness and prior sanctions have not prevented repetition. The applicable sanctions guidance is the version in force when the case is heard, unless transitional provisions provide otherwise.

The appellant, a barrister, admitted misconduct of a sexual nature involving two pupils in February 2020 and a mini-pupil in July 2018. He had previously been sanctioned for similar sexual misconduct involving a pupil and a mini-pupil.

Following a sanctions hearing, the Bar Tribunal and Adjudication Service disbarred him. He appealed under section 24 of the Crime and Courts Act 2013, challenging the assessment of rehabilitation and mitigation, the application of totality, the use of the sanctions guidance in force at the hearing, and the conclusion that disbarment was necessary.

The central issues were whether the tribunal’s approach was wrong or clearly inappropriate and whether disbarment was a proportionate sanction.

1. Appeal dismissed. The sanction of disbarment was neither wrong nor clearly inappropriate.
2. An appeal against a disciplinary tribunal is ordinarily by way of review rather than rehearing. The review engages the merits but requires appropriate respect for the lower tribunal, particularly where it is expert and informed. Intervention is justified where the decision was wrong or clearly inappropriate. This approach was consistent with Ahmad v Bar Standards Board [2024] EWHC 3248 (Admin), E I Dupont de Nemours & Co v S T Dupont [2003] EWCA Civ 1368 and Law Society v Salsbury [2008] EWCA Civ 1285.
3. The tribunal had not ignored the appellant’s rehabilitation evidence. It acknowledged his references, remorse, courses, voluntary steps to address his behaviour and attempts to prevent recurrence. It was nevertheless entitled to find a continuing risk of repetition, having regard to five similar incidents involving junior members of the Bar between 2015 and 2020, the recurrence of misconduct after earlier sanctions and warnings, and the connection with alcohol.
4. The tribunal had properly applied the totality principle. The misconduct comprised repeated similar behaviour over time, including conduct committed despite knowledge of previous disciplinary concerns. The tribunal assessed each of the two cases separately and did not simply add sanctions arithmetically.
5. Version 6 of the BTAS Sanctions Guidance applied because it was in force when the sanctions hearing took place. No transitional provision displaced it. The guidance was not prescriptive, and the tribunal was entitled to conclude that the delay had not caused unfair prejudice.
6. The tribunal gave detailed reasons addressing culpability, harm, aggravating and mitigating factors, proportionality and the purposes of sanctions. Both cases fell within the upper range of seriousness, for which disbarment was the indicative sanction. The comparison with Farquharson v Bar Standards Board [2022] EWHC 1128 (Admin) did not assist because the facts, procedural history and applicable guidance differed.

1. Bar Tribunal and Adjudication Service: Following a sanctions hearing on 16 December 2024, with written reasons dated 7 January 2025, the tribunal disbarred the appellant.
2. High Court (Administrative Court): The appeal under section 24 of the Crime and Courts Act 2013 was dismissed.