Top Scottish lawyer appeared before disciplinary tribunal today
A top Scottish lawyer and government minister has been cleared of professional misconduct by a bar disciplinary tribunal.
The charge against Lord Keen of Elie QC arose out of his criminal record for a firearms offence.
But a Bar Tribunals and Adjudication Service panel found today that while Keen had breached his core regulatory duties as a barrister, the breach was not serious enough to constitute professional misconduct.
Keen said that he was “relieved” that the charge had been dismissed.
In 2017, Keen pleaded guilty to breaching the conditions of his shotgun licence. Police investigating a break-in at his swanky Edinburgh residence found a shotgun in a cupboard in his basement, when it was supposed to be locked away in a safe.
Keen was handed a fine of £1,000, which he paid immediately, but was later hauled before the tribunal by the barristers’ regulator.
Core Duty 5 of the Bar Standards Board’s (BSB) handbook tells barristers that “you must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession”.
The tribunal found that Keen was in breach of this duty, but absolved him of the charge of professional misconduct.
Tom Forster QC, for the BSB, had earlier told the tribunal that “breach of a condition of a shotgun certificate is not a minor criminal offence”, saying that Keen’s conduct was “appreciably culpable and placed the public at risk”.
Tom Richards, for Keen, said that this was an “isolated lapse” and merely a “regulatory offence” that was “entirely outwith the course of professional practice”.
Police discovered the unsecured gun while investigating a burglary at Keen’s five-story Edinburgh townhouse — the top silk’s second home — on New Year’s Eve.
Keen had used the gun on 27 December 2016 while out shooting, left it in the basement intending to clean it and put it in a gun safe, but forgot before leaving the country on holiday the next day.
Section 2(2) of the Firearms Act 1968 says that “it is an offence for a person to fail to comply with a condition subject to which a shotgun certificate is held by him”. Keen’s certificate included a condition that it “must be stored securely so as to prevent, so far as reasonably practicable, access to the shotgun by an unauthorised person”.
Arguing that leaving the gun unlocked was serious enough to constitute professional misconduct, Forster said that this was a “residential property in an urban area”, which placed a “heightened obligation on Lord Keen to ensure that it [the shotgun] was kept securely”.
He said that Keen’s position in the government was “not irrelevant”, adding that “very senior practitioners, particularly if they are law officers, are in a different position to your six-month pupil”.
Richards said that the Advocate General took “full responsibility for his offence” but argued that it was “manifestly not such as to constitute professional misconduct”.
He emphasised that Keen had intended to lock the gun away securely but simply forgot. “This shotgun was in the cellar of the property in Edinburgh which was locked and alarmed, so the shotgun was kept secured from members of the public. That is a very important point in considering the risk to the public which was posed by this one-off lapse”.
Richards, who like Keen is a member of Blackstone Chambers, said that “within the spectrum of section 2(2) offences, this was not a serious one”.
Keen appeared before the tribunal in person but did not give live evidence. He did, however, submit an uncontested witness statement.
Although Keen is a Scottish QC, the English tribunal had jurisdiction because he was also called to the bar of England and Wales in 2009.
Delivering the tribunal’s decision, Michael Topolski QC said that “We find there was indeed a breach of CD5 because in failing to secure the shotgun, there was a potential consequential risk to the public which is a serious matter.”
But the panel went on to hold that his conduct was “not so resoundingly serious” as to constitute professional misconduct, adding that it “lacked any morally culpable quality and was committed unintentionally”. The tribunal also noted that Keen had held shotgun licences without incident for 25 years, and that the police had given his licence back despite the conviction.
Reacting to the result, Keen said:
“I was disappointed that the BSB brought this complaint. I was very disappointed at the very lengthy period of time it took to deal with the complaint. I’m obviously relived that the complaint has been rejected and dismissed.”
Topolski had also criticised the regulator’s “terribly long delay” in bringing the case. Keen reported himself to the BSB on 8 March 2017 but was not informed that it was taking action against him until 23 November that year.
Richards, who represented Keen pro bono, argued that the Conservative minister should get back the cost of instructing solicitors Addleshaw Goddard given the “undue delay” in bringing proceedings. The tribunal will decide the costs issue at a later date.
