BSB Investigations and BTAS Proceedings

We are instructed by barristers facing internal misconduct investigations and those being conducted by the Bar Standards Board.

Our expertise includes:

• Defending BSB investigations
• Defending Bar Tribunal proceedings
• Advising on and resisting Interim Orders
• Appearing at Disciplinary Tribunals
• Privacy advice and applications
• Appeals to the High Court
• Advising on BSB Reporting Obligations
• Advising on BSB Disclosure Obligations

The ‘Harman Review’ into harassment and bullying at the Bar has injected a fresh impetus into the Bar Standards Board and resulted in a large increase in misconduct investigations involving barristers. This firm has been heavily involved in some of the most complex and high-profile investigations and prosecutions that the BSB has conducted in recent times.

Who are the Bar Standards Board and what do they do?

The Bar Standards Board is an independent body responsible for regulating the training and conduct of barristers. It is the independent ‘regulatory arm’ of the Bar Council which as an approved regulator under Legal Services Act 2007. The Bar Standards Board (BSB) is responsible for investigating complaints about barristers and for bringing proceedings alleging misconduct.

The Regulatory Framework

The standards and regulations by which barristers are regulated is contained with the BSB Handbook. The BSB Handbook contains the Code of Conduct (including the Core Duties) and regulations for enforcement.  The Bar Standards Board is responsible for enforcing those regulations.

When will the BSB act?

If a complaint is made about a barrister then the BSB will make an initial determination as to whether it has jurisdiction to act and, if so, whether there is a potential breach of the BSB Handbook. If so, the BSB will investigate the complaint.

Self -Reporting

A barrister has an obligation to report ‘serious misconduct’ whether of himself or others. Examples of serious misconduct include dishonesty, assault/harassment and knowingly misleading the Court. Barristers also have a duty to report criminal charges, convictions and cautions as well as any disciplinary action brought by other regulators.

Will you know if the BSB has opened an investigation?

Yes. If the BSB has opened an investigation then it will write to you to inform you that it is investigating a complaint and that you will be given the opportunity to provide a response to that complaint.

What are the potential outcomes of an investigation?

The BSB may conclude the investigation by taking no action (either because the complaint is not upheld on analysis or because the alleged misconduct does not warrant enforcement action). It may conclude that the breach warrants an administrative sanction or it may refer the case to an Independent Decision Making Panel to determine whether there is case for referral to the Bar Tribunal (BTAS). The Independent Decision Making Panel may also decide to impose an administrative sanction or to proceed by way of Determination by Consent.

What is an administrative sanction?

Where certain conditions apply, complaints may be dealt with administratively without referral to the Bar Tribunal. Administrative sanctions include a warning or a fine up to £1,000.

Determination by Consent

This s a summary process whereby, if all parties agree, the matter can be resolved by the imposition of a fine, conditions or a reprimand without referral to the Bar Tribunal. It is a condition of the determination by consent procedure that the alleged misconduct does not appear to be such as to warrant suspension or disbarment.

What is the Bar Tribunal?

The Bar Tribunal is administered by the Bar Tribunals & Adjudication Service (BTAS). It is an independent tribunal which convenes to hear allegations made by the BSB against individual barristers.

What will happen if my case is referred to the Bar Tribunal?

If your case is referred to the Bar Tribunal by the IDB then in due course you will receive a formal draft of the allegation(s), a bundle of evidence and standard directions. If directions cannot be agreed or there are issues for determination, then the case will be listed before a Directions Judge for decision. Disciplinary Hearings are heard before a panel of three or five members consisting of a Chair and lay and barrister members. If after hearing evidence, the allegations are proven to the civil standard, the Panel will give judgment and then pass sanction. The range of sanctions available to the Tribunal are to order that the barrister:

• Be disbarred,
• Be suspended from practice indefinitely or for a limited period;
• Be the subject of conditions on his practice;
• Pay a fine of up to £50,000;
• Be subject to an order to complete CPD;
• Be given advice about future conduct.

The Tribunal also discretion to award costs to either party.

Publication and Privacy

Proceedings in the Bar Tribunal remain private until the listing of the Disciplinary Tribunal hearing (usually two weeks in advance of the date). The only exception to this is where the BSB apply for an interim sanction and the matter is listed for hearing.  The existence of an investigation by the BSB is also private. Disciplinary Tribunal hearings take place in public unless the Respondent is able to persuade the Panel to depart from the overriding principle of ‘open justice’.