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Rayner my parade! The importance of specialist advice.
Jemma Brimblecombe
The furore surrounding the Bar Standards Board’s closure of a complaint made against Dinah Rose KC raises a critically important issue for consideration by practitioners who, following an accusation of wrongdoing, are subsequently informed that the complaint was baseless (or at least not sufficient to cross the threshold for investigation).
In this case, the provision of the regulator’s decision to the ‘complainant’, that it had closed its case against a practitioner, was from a policy perspective, unobjectionable. If the complainant then chooses to publish that decision, so long as what is reported is truthful, and because no confidentiality can be said to be attached to the decision, (as Private Eye successfully argued in the failed injunction brought against it by Napier and Another [2009] All ER (D) 31)), the practitioner may find themselves on the receiving end of adverse media attention, even though the regulator has declared that there is nothing for it to enquire into.
Professionals who are the subject of complaints that are closed (at the otherwise confidential stages of the BSB/ SRA processes) should take all available steps to ensure they have sight of and can make submissions on what is disclosed. It may be possible to make the point that disclosure might infringe the professional’s Article 8 rights; where publication might damage the professional’s reputation. While the potential damage must reach a certain threshold of seriousness and be made in a manner causing prejudice to personal enjoyment of the right to respect for private life (as well as the publication being demonstrated to be a disproportionate interference with the Article 8 right), it is nevertheless a useful tool in the armoury of those who have been wrongfully accused or rightfully exonerated by their regulator.
This letter was first published in The Law Society Gazette on 2 December 2022.
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ABOUT THE AUTHOR
Julie Norris is a partner in the Regulatory team. She predominantly acts in the professional services sector, advising law firms, solicitors, and barristers as well as accountants and built environment professionals on regulatory compliance, investigations, adjudication, enforcement, and prosecutions.
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