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Alexandra Scott considers the proposals in the new Bar Tribunals and Adjudication Service (‘BTAS’) Sanctions Guidance Review Consultation.
On 29th April 2021, the Bar Tribunals and Adjudication Service (‘BTAS’) published its Sanctions Guidance Review Consultation, focusing on sanctions in relation to individual barristers. The consultation – the first public consultation since 2014 – runs from 29th April until 14th June 2021.
The decision to carry out a substantive review of the guidance was taken in 2019, and the project set up in April 2020, with the final revised Guidance due to be issued in November 2021. In the year since the review process started, the existing sanction regime has been subjected to scrutiny and criticism, in particular in relation to the sanctions imposed for sexual misconduct. The consultation acknowledges this feedback, which is reflected in its own research. The survey carried out by the consultation Working Group (made up of representatives of BTAS, lay and barrister members of the BTAS Disciplinary Tribunal panel and the BSB) found that the starting points for sexual misconduct sanctions – as well as sanctions for convictions involving drink driving and conduct involving violence – were too lenient.
While the legal headlines – and outrage – have focussed on the shortcomings of sanctions for sexual misconduct, the report does not confine its proposed revisions to this type of misconduct; the reforms proposed are more ambitious, seeking to address general as well as particular considerations, with the aim of making the sanctions guidance transparent, consistent, and fit for purpose in the modern world.
The consultation looks at the level of fines imposed on individuals by BTAS for misconduct. The broader aims of the Guidance Review seek to adjust the banding of fines imposed, broadly raising the level of fine and widening the range of brackets. It is proposed, for example, that subject to the same consideration of an individual’s means:
Likewise, the consultation proposes a change to suspension brackets, removing the anomaly present in current Sanctions Guidance: currently, suspension categories do not correlate with respective sentencing powers of three- and five-person tribunals. Rather than maintaining three categories of suspension – low (up to 3 months), medium (3-6 months) and long (6 months to 3 years) – the proposal is to reduce this to two categories. These two categories correspond to the sentencing powers of a three or five person panel: the ‘Shorter’ category allowing for suspension up to 12 months, which is the highest suspension that a three-person panel can impose, and the ‘Longer’ category being any suspension over 12 months, which can only be imposed by a five-person panel.
The Working Group proposes a revision of the guidance on how panels should approach decisions on sanctions, drawing on not only the approach of other regulators but also the general approach to sentencing that is set out in the criminal jurisdiction by the Sentencing Council. While the Consultation makes a point of explicitly recognising that the regulatory jurisdiction is different to the criminal one, criminal practitioners will recognise the influence of the latter on the Steps set out in Section 4 of the Consultation:
Step 1 – Determine the appropriate “Group” under which the proved misconduct falls.
Step 2 – Determine the seriousness of the proved misconduct.
Step 3 – Assess where in the sanctions range for the relevant “Group” the misconduct falls.
Step 4 – Apply aggravating and mitigating factors.
Step 5 – Consider the totality principle.
Step 6 – Provide written reasons for the sanction imposed.
The hope is that having a more structured process “will provide decision-makers with a more robust and clearer basis for taking decisions on sanctions and also lead to a more consistent and rigorous approach to the imposition of sanctions.”
The consultation proposes a new approach to categorisation of misconduct with Part 2 of the Sanction Guidance. The consultation suggests that instead of grouping the indicative sanctions according to “common breaches/possible circumstances”, “Groups” of similar types of misconduct should be used. The proposed Groups are intended (within reason) to encompass all of the various types of misconduct likely to be encountered in disciplinary proceedings.
The proposed categories are:
On first glance, there is obvious overlap between the categories. Whilst such overlap is not fatal to the efficacy of a sanctions regime – indeed, to practitioners familiar with other regulatory regimes, this may seem common ground – the categorisation is far from neat. Illustrative examples are given for each of the categories.
The consultation envisages each “Group” of misconduct then being divided by band:
Lower Range – low culpability and low harm.
Middle Range – moderate culpability and harm; or high culpability and low harm; or low culpability and high harm.
Upper Range – high culpability and high harm.
Indicative culpability and harm factors are set out in the consultation.
Indicative sanctions are then provided for each Group by range.
Under the proposals, the indicative sanction for any form of dishonesty remains disbarment.
The proposals do not bring sexual misconduct in line with that zero-tolerance approach. Disbarment features in the proposals [Annex 4] as an indicative sanction for upper-range sexual misconduct only. This may change once responses have been considered. That continuing issue notwithstanding, the revisions are not insignificant: the proposed sanctions have significantly more clout than those currently in use, with fines being removed as indicative sanctions for sexual misconduct altogether. In contrast to the current scheme, which suggests that higher sanctions should be imposed for misconduct which has resulted in a criminal conviction, this no longer appears as a relevant consideration.
There is also a significant focus on the sanctions for discrimination and non-sexual harassment, set out at Annex 5. Here too, the ranges see a proposed uplift from current practice, attracting heavy sanctions “not only to reflect the nature of the behaviour but to send a clear signal that it is entirely inappropriate and will not be tolerated at the Bar”. This stance is to be welcomed, particularly at time when the Bar Council is striving to address equality and diversity – producing toolkits to monitor work distribution, ensuring Chambers carry out proper fair recruitment and equality and diversity training, and campaigns such as #IAmTheBar – and initiatives by independent bodies such as Cake and Counsel, Bridging the Bar, Women in Criminal Law, and Bar None are working hard to increase access to and social diversity at the Bar.
There is little excuse for the leniency apparent in the existing guidelines for either sexual misconduct or discrimination and harassment. Sexual assault, harassment, and sexualised inappropriate behaviour was no more acceptable ten years ago than it is now, even if at the time the #MeToo Movement had not shone a light on its prevalence and the reluctance of so many to report it. The consultation however also expressly addresses other shortcomings which have evolved over the last decade.
The most obvious of these is the ‘use of social media and other forms of digital communications’, for which the proposed guidelines can be found at Annex 7. ‘Legal Twitter’ and use of LinkedIn have taken off in recent years, and both are now popular with many barristers, solicitors, and candidates hoping to join the professions.
Significantly, breaches can occur in both professional and non-professional capacities. Barristers must, therefore, be alive to the implications of all their social media output. Examples given include posting offensive material online, making offensive, derogatory or abusive remarks to or about others on social media, breaching confidentiality, making comments that undermine the administration of justice. The majority of Chambers will already have a Social Media Policy, as the output of their members will almost inevitably reflect on that Set, sometimes adversely.
It was inevitable that the BTAS would follow the example of other professional regulators and develop its sanctions to encompass the realities of modern practice. Whether Regulators will in future encounter difficulty in policing the personal social media accounts of regulated professions remains the subject of much debate.
The consultation paper includes, at Annex 8, a table for responses. A word version of the same has been made available here.
Though a number of questions are posed throughout the consultations, the pro forma focuses upon responses to the following questions:
19) Do you agree with the range for each of the Groups?
20) Do you agree with the specific culpability and harm factors included for each Group? Are there any additional factors that should be included?
21) Do you agree with the specific aggravating and mitigating factors included for each Group? Are there any additional factors that should be included?
22) Do you agree with where the lower, middle and upper bands for the ranges have been pitched for each Group? Do you consider any adjustments should be made to the bands? Please give reasons.
Responses should be sent before 14th June 2021 to Margaret Hilson, the Bar Tribunals Administrator.
By email to:
By post to:
Bar Tribunals and Adjudications Service
9 Gray’s Inn Square
London
WC1R 5JD
Alexandra Scott has a predominantly criminal practice. She is a member of Women in Criminal Law and mentors through Bridging the Bar. She would encourage all those with an interest in protecting the integrity of the Bar and encouraging wider recruitment and better retention to respond to the consultation.
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