E-Regulator: Leathley v Bar Standards Board, Queens Bench Division, 20 January 2012

1 March 2012

CASE COMMENTARY

The payment of fees and expenses and the provision of training and guidance to Panel Members by the ‘regulator’ does not give rise to an appearance of bias.

Mr Leathley (ML) appealed against a finding made by a Disciplinary Tribunal (‘the Tribunal’) that his conduct was discreditable to a barrister. They found that in June 2007 ML had made a telephone call to a member of staff at the Royal Courts of Justice and asked about an official who was located at that office, who had been a witness in earlier proceedings pending before a disciplinary tribunal. In the making of that call, ML claimed to be Mr Joel Bennathen QC who had been counsel acting for the Bar Standards Board (‘BSB’) in the earlier proceedings. The Tribunal found that ML had deliberately attempted to deceive the recipient of that ‘phone call. They imposed a sanction of £1000 and ordered ML to pay costs of £2,876.

It was alleged by ML that there had been apparent bias in his case, for a number of reasons.  Firstly, he claimed that the fact that the payment of fees and expenses to the lay members of the original Tribunal came ultimately from the BSB, the prosecuting authority, meant that in effect ‘the prosecution paid the ‘judges’’ and that this scenario would lead the fair minded and informed observer to conclude that there was a real possibility of bias. Any fees or expenses payable for the sitting of the present appeal were said to be similarly tainted.  

Further, it was stated that a guidance pack, which had been provided to the non-judicial visitors by the Council of the Inns of Court (‘COIC’), to which the BSB had also contributed, contained a number of ‘subliminal messages’ in favour of findings adverse to Registrants.

ML also contended that the ‘prosecution’ should have no involvement in the training of those individuals who will sit in a disciplinary capacity.

Shortly before the appeal hearing, Counsel for ML raised two further issues relating to the Judicial Visitor with a view to possible recusal, namely that a former head of chambers of which that individual was a member had chaired the Professional Conduct Committee of the General Council of the Bar (‘PCCC’) approximately 20 years ago. In addition to that, another member of the judicial Visitor’s former chambers is now the Vice Chairman of the BSB. The Visitors stated that ‘we do not consider that a past professional association of this sort gives rise to apparent bias in the light of authorities’.

The Visitors considered the well-established principles governing bias; R v Bow Street Metropolitan Stipendiary Magistrate and Others ex parte Pinochet Ugarte (No.2) [2000] 1 A.C. 119 and Porter and Magill [2002] 2 A.C.357, which had been recently reviewed in the case of R (Kaur) v ILEX [2011] EWCA Civ 1168. They also considered the case of Re P (A Barrister) [2005] 1 W.L.R.3019.

In relation to the payment of fees and expenses, the Visitors found that to say that the lay visitors are paid by the prosecution is a ‘mischaracterisation’. It was ‘more accurate to say that the regulatory body (the BSB) is funded by the Bar Council and so…are the fees and expenses paid to the lay visitors’. They stated that any hypothetical observer would be ‘fully aware of the self-regulatory structure imposed by the 2007 Act’ and be aware that ‘Parliament had contemplated that the Bar Council should charge a practising fee approved by the Board from which the costs of, inter alia, the disciplinary process would come’.

They found that none of the arguments relating to the ‘subliminal’ messages that were within the Guidance pack succeeded. They agreed with the submission of Mr Nelson QC, on behalf of BSB, that ‘these arguments are not apt for the fair-minded and informed observer, having considered the facts, but for someone approaching the documents with a rather jaundiced view of the world’. A further argument relating to subliminal messages within the letter of appointment to the lay visitor was described as ‘absurd’.  

The Visitors found that ‘we do not consider that the fair minded and informed observer would scent bias from the fact that the BSB has input into the training of panel members, particularly in the light of the self-regulatory nature of the disciplinary processes and the arrangements reflected in the Memorandum of Understanding’. They found that to liken the situation to the CPS organising training for the judiciary is ‘not apt’ and went on conclude; ‘we do not consider that input into training by the statutory regulatory body could give rise to an apparent bias argument’.

A discrete argument was raised in relation to the way in which costs orders are made in disciplinary tribunals; if the BSB succeeds in the prosecution the costs claimed generally include the fees and expenses payable to the lay members. It was argued that this gave rise to a concern of bias as the lay members would be more likely to find against a barrister because by doing so they can ensure that their own costs will be recovered. The Visitors found that the difficulty with that submission was that the members were paid by the Bar Council whether the prosecution was successful or not.

ML also argued that the conduct found proved by the Tribunal was not conduct for which he should be responsible, as a barrister, as he was not acting as a barrister when he made the call but as a ‘private citizen’ defending himself against an allegation against him by a public body. The Visitors rejected this argument; the conduct arose from his practice as a barrister and a disciplinary process resulting from alleged misconduct.  They concluded that ‘’discreditable’ is an apt word to describe what the Petitioner did and agree with the conclusion of the Tribunal to that effect’.

The case was accordingly dismissed, the non-judicial visitors would not recuse themselves and the argument that the Tribunal was infected with bias was rejected.

This case provides further guidance post Kaur v ILEX in relation to the doctrine of apparent bias in regulatory proceedings, in particular with regard to the payment of fees and provision of training and guidance to Panel/Tribunal members.

Sarah Harris, Barrister

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