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Bar Standards Board in a "shambolic state"
20 July 2012
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The Bar Standards Board has been given a thorough drubbing on Radio 4 this week, with barristers accusing it of a "lack of transparency" and "lazy incompetence". And a procedural cock-up could render hundreds of barrister convictions unsafe.

On Tuesday the Today programme aired a seven minute report during which several barristers accused the BSB of secrecy and maladministration. Complaints included not keeping minutes of internal discussions and failing to release internal disciplinary reports. Marc Beaumont, who makes his crust defending barristers in these kinds of proceedings, slammed the BSB as being "in a shambolic state".

Several barristers also spoke of the difficulties they had discovering the identity of their "sponsoring barrister" (the person appointed by the BSB to analyse the case against them and make recommendations). Jonathan Rich, who faced complaints from the RSPCA, eventually discovered that his sponsoring barrister had acted for the RSPCA several times. According to the BSB the decision to take disciplinary action is a collective one and the sponsoring barrister can't make any unilateral decisions. But Rich's case still looks distinctly like a conflict of interest.

    The BSB this week (an artist's impression)

Unfortunately for the BSB, the allegations didn't stop there. Barristers claimed that many of the judges who sit on the disciplinary tribunals, appointed by the Counsel of the Inns of Court, were not properly appointed as their terms of appointment had expired. Ooops. The BSB claims that the rulings in the 520 cases affected should be valid, as a High Court judge has recently ruled in one case that a tribunal was properly constituted despite a judge's appointment having expired. But the Today programme suggested that hundreds of convictions could still be ruled unsafe.

And to add to the impression of omnishambles there were reports that further complaints could be raised in relation possible conflicts of interest for disciplinary panel judges. All in all, not a great week for the BSB.

UPDATE: Baronee Deech was on the Today programme this morning defending the BSB against the criticisms (from 2 hours 36).


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anonymous user
21/07/2012 06:29
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It is nonsense to suggest that BSB (client) is in disarray. 85% of barristers complained against say they are satisfied with the system. Only 14 cases handled by the BSB last year were appealed. The COIC issue is one of process, does not affect the substance of cases, and is close to being resolved. There is little quantitative evidence of conflicts being an issue. Firm guidance exists in this regard. Decisions to pursue cases are taken collectively by committees. All hearings are then in public. This reflects the approach adopted by the CPS. Sorry to let the facts get in the way of a good story.
In the Navy
23/07/2012 22:53
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Mostyn.
anonymous user
26/07/2012 15:55
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Bollocks.
anonymous user
26/07/2012 16:26
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Responding to the anonymous post above, which has surely been written by someone who works for the BSB, or sits on their PCC, I suggest that the 85% of "satisfied" Barristers can have no idea how the system actually works, because there is no transparency as to what in fact happens. For example, the BSB produces no minutes of the Committee deliberation/decision, which is said in the above anonymous post to be "collective". So no-one knows how the decision was reached, or on what basis. If the system is so fair and transparrent, what's the problem about minuting the meeting and disclosing those minutes? And, astonishingly, the decision letter is written for the Committee by the Sponsor member, before the Committee has even met and held their discussion as to whether the complaint merits prosecution. Indeed, the Committee members, other than the Sponsor, do not see the papers constituting the complaint or the Barrister's response to it. They just get the Sponsor's summary and analysis. What clearer indication could there be that the views of one person take precedence, and that the decision is not properly to be described as "collective"? Nor can the respondent Barrister obtain sight of what the Sponsor member has reported to the Committee as to whether he/she should be proscecuted (even after the event). The BSB says that report is "confidential".
How can such a system possibly be describesd as fair or transparent? It is an approach which is unprecedented amongst professional regulators. And until it is reformed, there will be considerable disquiet amongst those who find themselves the subject of complaint, and those of us who act for them.
As for following CPS procedure, perhaps the BSB could explain how they justify sending the defence witness statements to prosecution witnesses of fact in advance of the Disciplinary Tribunal hearing, so they can temper their evidence accordingly? Or not disclosing letters received from material (but invisible) witnesses in the course of their investigation of a complaint. None of these practices are advertised. They have only emerged in the course of hearings I have attended; and the BSB seems to think there is nothing wrong with them. One has to wonder if the BSB would recognise the Prosecutors' Code if it jumpred up and bit them. Which, given that it is a system for the regulation of Barristers, directed in the main by members of the Bar, is all the more remarkable.
Angela Horne
anonymous user
31/07/2012 18:24
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Transparancy:
The contrast in attitude towards transparency is evident from the posts - Angela Horne is not afraid to reveal her identity. She is to be congratulated on her remarks. Mr/Mrs Anonymous seems rather coy about revealing his or her name - presumably his or her posting is merely a "collective" posting on behalf of the BSB.

Sponsor reports:
A High Court Judge has ordered in the case of BSB v H that the sponsor report in that case be disclosed in full and unredacted form unless there be some public interest in non-disclosure. There was none in that case and in all the cases I have done against the BSB, I cannot think of any reason why the public interest would justify secrecy. The sponsor report might be less important if it were not the only document read by all but 1 or 2 of the 25 or so PCC members when they decide to prosecute a Barrister. I have been in several recent cases where there is a complete lack of analysis by the PCC. Barristers are being wrongly charged and are being subjected to months or years of BSB persecution without justification. In the H case itself, I procured the strike out of 2 sets of Charges as being utterly misconceived. These errors were blamed on a non-legally qualified sponsor but in fact the sponsor had recomended that there be no prosecution and the PCC containing a number of Barristers who had not troubled to read the underlying papers, mandated a full scale prosecution of my client which failed totally and utterly. Barrister NS has had a very similar recent experience. The victims of this behaviour such as H and NS are more often than not, sole practitioners or non-practising Barristers from ethnic minority backgrounds. Maybe they are seen as soft targets.

see too the article at:

http://www.barristermagazine.com/announcements/


Appeals:
The reason for a lack of appeals appears to be that the system is logjammed with appeals and is incapable of handling more than a few every year. I have had clients who have waited 3 or 4 years for an appeal hearing before the Visitors. The Visitors have now recruited some retired Judges to sit as Visitors to clear this backlog. More generally, the Government proposes a new statutory right of appeal to the High Court. This is to be welcomed as the Visitors are (absurdly) regarded as immune from attack on JR on a point of law: see Calder - a fetter on a Barrister's access to the High Court that cannot possibly, in my view, be Article 6 compliant.

BSB Surveys:
I am not so sure about the accuracy of BSB surveys about its own performance. They have recently produced a report from an ostensibly "independent" observer who has observed recent events so closely that she has airbrushed out any mention of the chaos at COIC - for which see the Browne report on the Grays Inn website. All Barristers should read this document and ask the questions it does not answer.

see:

http://www.graysinn.info/index.php?option=com_content&task=section&id=54&Itemid=1070

COIC's chaos:
The suggestion that the problems at COIC are "close to being resolved" is interesting. It does not account for the possibility that the Russell case may be taken to JR. The systemic failings explained in the Browne report will take several years to clear up as it seems to me, both internally by way of reform - if the Bar is permitted to continue to self-regulate - and in litigation involving several brave members of the Bar who are fighting injustice and a failure of due process.

The suggestion that the COIC failings do not affect the substance of cases is untrue: the BSB has been illegitimately appointing the supposedly independent panel members of disciplinary tribunals through the Tribunal Appointments Body. The BSB has managed to become a full member of COIC, sending its officers and staff to COIC's meetings. COIC panel members move back and forth between the BSB Complaints Committee and the COIC panels. Two serving BSB prosecutors (unnamed by Mr Browne QC in his report) managed to get themselves appointed to disciplinary panels. Bar Council appointees have been appointed to many different tribunal panels over several years, despite the obvious conflict of interest - and so on. Anyone who does not think that this infiltration does not affect the substance of cases is deluded.


Marc Beaumont
Barrister
Specialist in professional disciplinary defence work.

http://www.windsorchambers.com/discipline.html