Knowledge and approval - When is a will suspicious?
The High Court criticises the failure of the Disciplinary Tribunal of the Bar Standards Board to provide adequate reasons for its decision.
The Appellant (A) was called to the Bar in 2001. In 2009 the Disciplinary Tribunal of the Bar Standards Board found that (i) A had engaged in actions which were dishonest or otherwise discreditable to a barrister in that she had informed Manchester County Court that NM, a litigant in person, and the other party in family proceedings in which she was instructed on behalf of the mother had expressly agreed to an adjournment of a hearing listed on 17th April 2008 when he had not (ii) that A’s conduct in this regard was prejudicial to the administration of justice and (iii) that A had engaged in conduct which was prejudicial to the administration of justice in that on 16 April 2008 she spoke to a M, a CAFCASS family court advisor in the relevant proceedings and told him that the hearing listed on 17 April 2008 had been adjourned when it had not. As a result of their findings the Tribunal suspended A for two years.
In considering the impact of this case it is important first to consider the nature of the evidence that was presented to the Tribunal.
At the hearing it was common ground between the parties that on the afternoon of 16 April 2008 a telephone call had taken place between A and NM. NM’s account of the telephone conversation was that A had rang him to say that the hearing scheduled for the next day had been adjourned by the court. NM stated that he had been told by A that a court official had rung A to say that the District Judge who was hearing the case had a meeting in the afternoon and that there was insufficient time for the case to be heard. NM stated that he was suspicious that what he was being told was untrue and therefore the next day he attended court. NM stated that on arrival at court he discovered that the District Judge was present and willing to hear the case. However, neither A nor her client appeared, nor did the relevant CAFCASS officer. The CAFCASS officer did not appear because he was telephoned by A who told him that the case had been adjourned.
A disputed NM’s account of the telephone conversation of 16 April 2008. According to A, sometime during the afternoon of 16 April 2008 a lady by the name of Kate, one of the administrative staff at the Manchester County Court, telephoned her to say that the District Judge was not available for a hearing which would take the whole of the day. Kate apparently enquired about whether the hearing could be dealt with during the course of the morning. A informed Kate that this was unlikely whereupon Kate suggested she would speak to the District Judge with a view to the case being taken out of the list and re-listed at a time when a full day was available. Some hours then passed. At around 4.40pm Kate spoke to A to say that the case could be re-listed but that the District Judge required the consent of both parties before adjourning it. A had always maintained that in the face of this information she telephoned NM to relay to him the information which had been given to her by Kate. Thereafter, they discussed whether or not the case should be adjourned and that A considered she had secured his agreement to an adjournment. Believing agreement had been reached A spoke to Kate, indicated that both parties had agreed an adjournment and was told that the case would be re-listed on a date in May 2008. It was then and only then A contended that she rang the CAFCASS officer, and informed him that the hearing on 17 April had been adjourned. In support of her account A relied upon an e-mail that she had sent to the Court explaining her understanding of the position at some point during the morning of 17th April 2008. A also relied upon an attendance note of her conversation with Kate from the Court Office. Also before the Panel was the District Judge’s note of what he had been told by NM on the morning of 17th April 2008 when he decided to her the case in the absence of the A and her client.
A appealed the Tribunal’s decision to the Visitors of the Inns of Court. The Visitors allowed the appeal and ordered a re-hearing which took place in April and May 2012. At that re-hearing the Tribunal upheld the original Tribunal’s finding, namely that the A was guilty of the conduct identified at (i), (ii) and (iii) above. The Tribunal’s justification for their findings was extremely short, stating simply at  that:
“The Panel, by a majority of four to one, found charge 1 proved. The Panel also found charges 2 and 3 proved and charge 4 dismissed, unanimously. The Panel made its findings of charges 1 – 3 were proved on the basis the evidence of the BSB met the criminal standard of proof in demonstrating that the defendant had committed the alleged acts.”
A appealed the Tribunal’s decision on a number of grounds, one of which was the Tribunal’s failure to give adequate reasons for the finding it had made. Following the filing of the petition of appeal the Directions Judge suggested that the parties might wish to consider the procedure referred to in English v Emery Reinbold & Strick Ltd  1 WLR 2409, namely that the appeal be adjourned and the matter remitted to the Tribunal in order that ‘additional reasons’ for the Tribunal’s findings could be provided. The Respondent was content that this procedure be adopted, A opposed the suggestion. The Directions Judge accepted the submissions of A and the matter proceeded to an appeal to the High Court.
The Court concluded that the Tribunal had failed to properly explain its reasoning process. A had relied upon a number of important documents, for example her contemporaneous attendance notes and email to the Court. There were potentially significant and their true evidential status needed careful assessment by the Tribunal. The Court at  held;
In our judgment it was incumbent upon the Tribunal to explain its reasoning process in respect of all the documentation to which we have just referred. It did not do so and, in our judgment, it thereby fell into error. In a case of this type with such serious potential consequences for the Appellant it was not sufficient, in our judgment, for the Tribunal to announce verdicts without explaining in some detail the reasoning process which underpinned them.
Accordingly the Court allowed the appeal and quashed the convictions recorded against A.
Just as the Courts have emphasised that where the issue involves two persons’ competing accounts that must be tackled head on in the reasons provided, similarly where important documents are central to the case and the Panel reject them, this must be explained.
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