BSB concedes case on a technicality unearthed by its own barrister
Scandal-hit barrister Henry Hendron has won an appeal against being suspended from practice for a second time — after the regulator uncovered a technicality that cost it the case.
The Bar Standards Board (BSB) told the High Court that because Hendron was already suspended when it launched a second set of disciplinary proceedings, it never had jurisdiction and was conceding the appeal.
Hendron was originally suspended in 2016 after admitting possession of a controlled drug with intent to supply following his boyfriend’s death. He returned to practice in 2019.
Just a few months later, Legal Cheek reported that Hendron had been suspended again, this time for failing to reimburse a client who he had become unable to represent.
But it turns out that Hendron had appealed that second suspension — and has now succeeded.
By the time his appeal reached the High Court in February 2020, the BSB realised that it had a problem. Its disciplinary action against Hendron over the client refund had been launched at a time when he was already suspended — meaning that it had no jurisdiction.
Mr Justice Fordham wrote: “[T]he BSB’s position is that a barrister whose practising certificate has been suspended is not a ‘BSB regulated person'”, adding that “I have heard no argument and seen no analysis to the contrary.”
The judge praised the BSB and its barrister, Zoe Gannon, for telling him about the “suspended-barrister problem” even though it cost them the case. Hendron himself “had not identified it or relied on it in his grounds of appeal”.
As a result of this “lacuna”, the regulator decided that it had to concede the appeal and overturn the second suspension.
The BSB did ask Fordham to allow a fresh charge, essentially starting the disciplinary proceedings over the reimbursement all over again.
But Hendron argued that reopening a can of worms that dates from 2016 would be unfair — especially since the client has now been paid back.
Fordham agreed, finding that “it would not be in the interests of justice, nor justified by reference to the public interest, the protection of the public or confidence in the profession, to remit this case to the BSB so that further action could be taken against Mr Hendron.”
The decision leaves Hendron in the clear — although Fordham ended his judgment with a parting shot. “There is no dilution of the professional standards owed by Mr Hendron, for the protection of the public”, Fordham warned. “That is now the appropriate focus for energies, going forward.”