Almost four years after spending a three day mini-pupillage with a barrister, a young woman took her complaint of unwanted sexual misconduct to the Bar Standards Board after reading that the barrister had been reprimanded by the BSB for engaging in excessively physical and unwanted contact towards a male pupil barrister

Ms A met the barrister (K) in the summer of 2014 whilst working as a waitress at a restaurant in the same building as his chambers.

She told him she was a law student and aspiring barrister. He gave her his card and offered to help her find a mini-pupillage. The following January she undertook a three-day mini-pupillage with him.

Shortly afterwards she complained to family and friends – in particular her mother, aunt and boyfriend (now husband) about K’s behaviour to her during the mini-pupillage.

The Complaints Regulations provided at rE29 that in determining whether a complaint raised by a person other than the BSB potentially disclosed a breach of the Handbook, a potential case of professional misconduct or a breach of the Handbook satisfying the disqualification condition, and whether if it did, it was apt for further consideration, the Professional Misconduct Committee (PCC) must first consider whether the complaint had been made within twelve months of the conduct of which complaint was made.

rE31 required that where the PCC decided that the complaint had not been made within twelve months it must dismiss the complaint unless it decided that further consideration was justified in the public interest having regard to the regulatory objectives.

As the complaint was more than 12 months old the PCC delegated preliminary issues identified in rE31 and rE32 to Ms M and Ms S. As a result of their decisions, the matter proceeded to investigation of the complaint.

Subsequently three charges were preferred alleging that in the course of the mini-pupillage the barrister had engaged in unwanted sexual conduct towards Ms A.

Before the Tribunal the barrister’s defence was, in effect, a total denial of any such misconduct. The Tribunal expressed surprise that K had no recollection of Ms A as a mini-pupil. It concluded: “We are bound to say, with the best will in the world, that we do not find this statement that he does not have any recollection of this satisfactory. Indeed, it is something that verges on the evasive.”

K’s behaviour was found to be totally inappropriate and unacceptable behaviour for a member of the Bar to show towards somebody who was a mini-pupil and towards whom he was in a position of responsibility.

In the Administrative Court, Soole J addressed three grounds of appeal.

First, the Tribunal was right to reject the argument that decisions to be made pursuant to the rules could not be delegated by the PCC or that there had been procedural error or unfairness in the way in which the delegate in each case had carried out the exercise.

Secondly, the Tribunal ruled that a stay of proceedings for abuse of process was an exceptional and unusual jurisdiction. The ultimate question was whether it was possible for there to be a fair hearing given the gaps that there may be in the evidence.

There was no error in that approach by the Tribunal.

As to the decision to refuse a stay, the Tribunal set out K’s various contentions as to the adverse effect of the passage of time on his own recollection and on the ability of other potential witnesses to recall what may have been said to them at the time; and that the investigation had itself been too narrowly focused on Ms A, her mother, aunt and boyfriend.

The Tribunal correctly identified it as a matter for their judgment and noted its ability to take account of such matters and to discount irrelevant matters. The Tribunal was not wrong to conclude, in the exercise of its judgment, that the application for a stay should be refused.

As to the third ground, the Tribunal gave a correct and sufficient self-direction on the issue of delay. The Court did not accept the argument that the Tribunal nonetheless failed adequately to take that direction into account when considering the evidence.

The Tribunal gave close and detailed attention to the delay in making formal complaint, and expressly asked itself the question whether it may have been a recent invention or fabrication or something that she had a long time afterwards put an interpretation upon that was not warranted.

It took account of inconsistencies between the evidence of Ms A’s aunt and mother, but concluded that this was not of particular significance.

Applying the correct burden and standard of proof, the Tribunal ultimately had to make a decision on the rival accounts of K and Ms A. It concluded that it had no reasonable doubt about the correctness and accuracy of the complainant’s account.

This was all a classic issue of fact for this 5-person tribunal.

For the reasons given by the Tribunal, the Court was not persuaded that its decisions were wrong in any respect.

Finally, the Appellant submitted that the sanction was contrary to the published guidelines, excessive, too focused upon general deterrence and unnecessarily punitive.

It was agreed that on an appeal against sanction the Court should pay appropriate deference to the experience and expertise of the expert disciplinary tribunal, there was a high threshold for interference, and the Court must not fall into the error of mere substitution of its own judgment .

However, as Warby J (as he then was) added in Khan v BSB: “That said, the need for deference of this kind is somewhat less when it comes to judicial scrutiny of sanctions imposed on legal professionals. This is a profession which the Court knows something about.”

The Court was not persuaded that the Tribunal was wrong to impose the sanction which it did. First, there was and could be no dispute that the appropriate starting point for this conduct, before consideration of aggravating and mitigating factors, was a high level fine and a short suspension. This was conduct when K was both in a position of power and acting in a supervisory role.

Secondly, two of the three aggravating factors specifically identified in the Guidance section applied, namely, failure to accept responsibility for actions and a significant negative impact on the victim.

Thirdly, the Tribunal properly found other aggravating factors including premeditation, undermining the profession in the eyes of the public and the earlier disciplinary finding. Although the latter involved behaviour which post-dated Ms A’s mini-pupillage, it was relevant as another marker of unacceptable conduct when in a supervisory role and position of power.

The mitigating factors were limited. The Guidance made clear that the Tribunal must ultimately exercise its judgment as to the sanction which was appropriate and fair on the particular facts and circumstances.

There could be no disagreement with the Tribunal’s conclusion on the gravity of the matter and its serious effect on the reputation of the Bar.

The appeal was dismissed on all grounds.