Case update: McCarthy v Bar Standards Board - the most recent appeal in a long line of decisions which considers the issue of a fair trial

27 October 2015

Judgment date 13th July 2015

This case, the most recent instalment in this now long running matter, was a hearing before the Visitors to the Inns of Court (“the Visitors”) following the Court of Appeal decision to quash the decision of the Bar Disciplinary Tribunal (“the Tribunal”) in McCarthy v Visitors to the Inns of Court and Bar Standards Board [2015] EWCA Civ 12. The issues at this hearing were whether to allow the BSB to proceed to a rehearing and matters relating to costs of the previous hearings.


DM had been instructed on a Direct Access basis. Rule 6 of the Rules relating to the engagement of a barrister via Direct Access required DM to send out a letter setting out the terms and fees in respect of each piece of work. A complaint (a dispute about fees) was made and DM was accused of providing legal services without having sent Rule 6 letters. DM contended that he had done so and produced four of Rule 6 letters which he asserted had been sent at the time. DM’s lay client, ST, and her husband, TA, disputed this.

DM was found guilty by the Tribunal of dishonestly producing these four forged documents and was subsequently disbarred.

It later transpired that the BSB had failed to serve a witness statement of their chief witness, TA, which was capable of undermining the witness’s credibility.  Unsurprisingly this formed the basis of an appeal:


The main issue under consideration was whether the Visitors should exercise their power to order a rehearing or, put another way, to consider whether a fair trial of the issue was possible.

The BSB submitted that such a hearing was possible whereas DM submitted that there should be no rehearing for two reasons. The first was the effect of delay on the proceedings and the second was an alleged unfair advantage the BSB witnesses would have.

In respect of the delay it was not suggested that there had been any freestanding breach of the Article 6 or common law principles relating to the right to trial within a reasonable time rather it was submitted that delay was one of the factors the Visitors should take into account when exercising their discretion and that the delay had been caused by the BSB’s conduct. Further, it was argued that there could be an impact on the witnesses’ memories.

With regard to the unfair advantage it was submitted that TA had now seen a number of specific and detailed ways in which his credibility would be attacked at any rehearing and that this deprived DM of any advantage he might have gained.

Rehearing-Is a Fair Trial of the Allegation Possible?

The Visitors first considered which principles to apply.  The Visitors derived guidance from the criminal cases of R v Graham and Others [1997] 1 Cr. App. R., R v Bell [2010] 1 Cr App. R. 407 and Bowe v R [2001] UKPC 19 on the approach to take in considering the correct approach to take in whether to exercise their discretion to order a retrial.

These can be summarised as being that there is a general public interest in the prosecution of those reasonably suspected of a serious crime provided that the prosecution could take place without unfairness or oppression to a defendant.  Thus any decision would require an exercise of judgment taking into account the interests of justice, which includes the public interest and the legitimate interests of a defendant.

Applying these principles the Visitors stated that there was clearly a public interest in there being a hearing in respect of serious allegations made against a barrister.

With regard to the delay argument whilst it was acknowledged that in Porter v Magill [2002] 2 AC 357 the House of Lords had made it clear that there was no requirement to demonstrate specific prejudice in order to establish a breach of the right to a trial within a reasonable time reference was made to the Privy Council decision in Dyer v Watson [2004] 1 AC 379 in which Lord Bingham of Cornhill said that “the threshold for proving a breach of the reasonable time requirement is a high one, not easily crossed.”

Further, reference was made to the line of authority, for example AG Reference (No 2 of 2001) [2004] 2 AC 72, which makes clear that delay by itself is not, a reason for staying a prosecution.

Fair trial still possible

The Visitors then went on to consider whether a fair trial was still possible.  In concluding that it was they rejected the submission that TA now being aware of the ways in which his credibility would be attacked led to an inequality of arms such that a fair trial could not take place. In reaching this conclusion it was noted that retrials occur in the Crown Court on a regular basis and in these instances the witnesses are also fully aware of the likely line of questioning to expect having been cross examined at the first trial. Further, in many of these retrials there is no documentary evidence available to assist a court as there was here.  In addition, they accepted the BSB’s argument that there was no real inequality of arms as both sides now knew much more than they would have done at the original hearing. Finally, the Visitors said that it would be open for DM to make submissions as to the effect of delay and/or forewarning on the witnesses’ credibility.

A re-hearing was ordered.

As well as a clear statement of the principles to apply when considering whether to proceed to a retrial within a regulatory context this case is a reminder of the already well known line of authority which indicates that a stay on the grounds of delay will only be granted in exceptional circumstances. We await the final conclusion of these interesting appeals.

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