Barrister successfully appeals against a finding of professional misconduct relating to his conduct at a Chambers party

23 February 2017

Bar Standards Board v Howd; Howd v Bar Standards Board [2017] EWHC 210 (Admin)

Background

A Disciplinary Tribunal of the Council of the Inns of Court (“the Tribunal”) was convened on 4 and 5 May 2016 to hear charges of professional misconduct brought against barrister, Stephen Howd (‘H’). The charges arose from complaints made about H’s inappropriate behaviour towards female colleagues and staff at a party held at his former chambers in July 2014. Two of the complainants were barristers; one was an apprentice administrative assistant and the other a junior clerk.

Out of the eight charges of professional misconduct, six of the charges were found proved and two were dismissed. By way of sanction, the Tribunal imposed a fine of £1,800 and H was also ordered to pay £400 towards witness expenses.

 

The Appeals

H appealed the Tribunal’s findings on six grounds, which are set out in greater detail below. The Bar Standards Board (BSB) also raised an appeal in relation to the decision on sanction, submitting that a more severe sanction should have been imposed by the Tribunal.

The appeal was heard before Mrs Justice Lang on 10 November 2016 and 20 January 2017.

 

Ground 1: The Tribunal misinterpreted and failed to give due regard to the medical evidence concerning H’s medical condition

Medical evidence relating to H’s medical condition was made available to the Tribunal. Having considered this, the Tribunal came to the conclusion that his medical condition did not make a significant contribution to his conduct and that this was in fact caused by his excessive consumption of alcohol.

Mrs Justice Lang confirmed that she had the benefit of seeing more comprehensive medical evidence regarding H’s medical condition than the original Tribunal, as further evidence was adduced at the appeal. In her judgment, the medical evidence established that on the balance of probabilities, H’s inappropriate and at times offensive behaviour was a consequence of his medical condition. It also established that his excessive consumption of alcohol was very likely to have been a response to the onset of his medical condition and it probably had the consequence of exacerbating his lack of inhibition and loss of judgment on the occasion in question. Mrs Justice Lang was satisfied that the Tribunal’s conclusions in respect of H’s medical condition were mistaken and that they had misunderstood and misapplied the medical evidence.

 

Ground 2: The Tribunal erred in finding the evidence of Witness B reliable, as her credibility was fundamentally undermined by other witnesses

H submitted that the Tribunal wrongly found Witness B’s evidence reliable. When making its decision, the Tribunal concluded that weighing the evidence as a whole, Witness B’s account of the night in question was true and they found her to be a careful and credible witness, notwithstanding the inconsistency with other evidence.

Mrs Justice Lang concluded that because the Tribunal had expressly addressed their minds to the issues, H’s challenge on this ground must fail. Mrs Justice Lang stated that the Tribunal made its decision based on their assessment of Witness B when she gave evidence before them and they were therefore able to assess her credibility in a way which she could not. She could not therefore interfere with the Tribunal’s conclusions.

 

Ground 3: The Tribunal erred in concluding that Core Duty 3 could be engaged at all during a Chambers party, on a proper interpretation of the Code of Conduct and the BSB Handbook

Core Duty 3 in the Code of Conduct set out in the BSB Standards Handbook (“the Handbook”) states ‘You must act with honesty and integrity’. H submitted that Core Duty 3 applied to him in his capacity as a “practising barrister”, defined solely as someone who supplies legal services.

Mrs Justice Lang rejected Mr H’s submission. In her judgment, the Tribunal was correct to conclude that a marketing event directed at professional clients was a business related activity of a practising barrister.

 

Ground 4: The Tribunal misconstrued the meaning of “integrity” in Core Duty 3, and so wrongly concluded that the proved facts demonstrated a breach of this duty

H submitted that the Tribunal misconstrued the meaning of “integrity” in Core Duty 3, as it was intended to cover professional integrity and not personal/sexual morality. It was also submitted that the term took its colour from “honesty”, an analogous submission having been accepted in the BSB v Sivanadan PC 2009/0280/D3 in relation to an earlier iteration of the BSB’s code.

Mrs Justice Lang agreed with Mr H’s construction of Core Duty 3 and that “integrity” does take its colour from the term “honesty”. She stated that it connotes probity and adherence to ethical standards, not inappropriate and offensive social or sexual behaviour. Mrs Justice Lang concluded that H’s behaviour was not appropriately charged as a breach of Core Duty 3, because although his behaviour was inappropriate and at times offensive, it did not demonstrate a lack of honesty or integrity. The charges should therefore have been dismissed.

 

Ground 5: The Tribunal erred in concluding that Core Duty 5 had been breached, as the proved facts could only have adversely affected his personal reputation, if at all, not his professional reputation

Core Duty 5 in the Handbook states ‘You must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession’. H submitted that the proved facts, which had nothing to do with his practice as a barrister, could only have adversely affected his personal reputation, not his professional reputation. In addition, he submitted they were not likely to diminish the public’s trust and confidence in his capacity as a barrister or the standing of the profession.

Mrs Justice Lang stated that in principle she thought Mr H’s conduct could be capable of diminishing public trust and confidence since it occurred in the course of his professional life. However, if the public were aware that his behaviour was as a consequence of a medical condition, as discussed above, it would be unlikely to diminish their trust and confidence in the profession or H personally, provided he was fit to practise.

 

Ground 6: The Tribunal erred in concluding that the allegations against him, even if found proved, were capable of amounting to “professional misconduct”.

Mrs Justice Lang stated that in light of H’s medical condition, his behaviour was plainly “not reprehensible, morally culpable or disgraceful as it was caused by factors beyond his control”. In her judgment therefore the threshold for a finding of serious professional misconduct was not met.

In light of Mrs Justice Lang’s decision in respect of H’s appeal, the BSB’s appeal in relation to sanction was dismissed.

 

Commentary

Without knowledge of H’s medical condition, which remains confidential, it is difficult to align a finding that the facts in this case do not amount to serious professional misconduct, as H is clearly able to practice on a day to day basis without concern. It is also interesting that Mrs Justice Lang took the evidence of H’s medical condition into account when considering facts/misconduct, rather than at the impairment/sanction stage as to mitigation.

This case also highlights the importance of obtaining clear and comprehensive medical evidence at the outset if a Registrant wishes to raise health concerns.

 

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