Professional body found to have withheld key evidence by Court of Appeal
The Bar Standards Board (BSB) has found itself on the receiving end of a humiliating broadside from a leading judge in the Court of Appeal.
The tongue-lashing was delivered in a successful appeal of a Bar Disciplinary Tribunal decision to disbar a barrister accused of forging client care letters.
Ruling in the case, Lord Justice Burnett described as “extraordinary” the BSB’s decision not to disclose a statement from the main prosecution witness — adding that without it the finding against the barrister didn’t hold up.
The relevant section of the judgment (embedded in full below) is paragraph 17. In it, Burnett LJ states:
“What happened was extraordinary. A conscious decision was taken by an official at the BSB which had the effect of subverting the rules which provide for disclosure and furthermore suggested that he was blind to any sense of fairness in the conduct of a disciplinary prosecution. To my mind, that was compounded by inviting a witness to assume the role of surrogate prosecutor by producing a statement of the sort I have described.
“Moses LJ drew an analogy between disciplinary proceedings of this nature and criminal proceedings. To my mind that is entirely apt, if not exact, and supports the suggestion that scrupulous standards are required of the BSB acting as prosecutor. This Tribunal was concerned with very serious allegations which had the potential to destroy a professional reputation and bring to an end a professional career, even though its decision could not result in a criminal conviction.”
In the wake of the ruling, yesterday director general of the BSB Vanessa Davies apologised for a “very regrettable and serious mistake” which “should never have occurred”. She added:
“Since this error, which happened over five years ago, we have produced a robust policy on the disclosure of documents in disciplinary proceedings. This is available on our website and all staff involved in BSB prosecutions are required to act strictly in accordance with it.”
“Our complaints-handling processes have been regularly reviewed and independently quality assured since 2011 and these reports are also publicly available from our website. Following today’s judgment we are considering what further action we should take.”
The barrister in question, Damian McCarthy, formerly of Cloisters Chambers, is now no longer disbarred although he would need to apply for a certificate to return to practice as a barrister. This morning he told Legal Futures:
“I have been disbarred for four years following a hearing that I have always believed was unfair and should not have led to my conviction. Naturally I am delighted that the Court of Appeal has now agreed with me. The last four years have been horrendous and all I want to do now is get on with trying to repair the damage that has been done to my career.”
