Regulators are under pressure to dish out more than brief suspensions
Between 19 and 22 January 2021, the bar disciplinary tribunal made professional misconduct findings against four barristers, one on each day.
First came Dominic Woolard, who admitted to “unwanted conduct of a sexual nature” involving a junior female colleague, including slapping her on the bottom and pulling her on to his lap. He was fined £6,000.
Then there was Craig Charles Tipper, who also confessed to “intentional sexual touching” of not one but two junior female barristers in what the tribunal said was “capable of amounting to… sexual assault”. This included putting his hand down one woman’s tights and grabbing her breast over her bra. He was suspended for three months.
In between those two cases, the tribunal dealt with two others with no sexual element. One barrister, a 38-year bar veteran, had appeared in court without a valid practising certificate. He was suspended for four months. Another had failed to co-operate with the regulator over previous fines, earning him a suspension of three years.
What’s wrong with this picture?
Many lawyers see a pattern emerging where the regulator hands down tougher sanctions for what might be called purely professional misconduct, like operating without a practising certificate, than for at times quite serious sexual misconduct.
(1) 22.01.21: Barrister receives a 3-month suspension for sexual assaults on two women (see article below)https://t.co/MLMYYII9rX
(2) 20.01.21: Barrister forgets to renew practising certificate and receives a 4-month suspension: https://t.co/vG356JJRbC
— Faisel Sadiq (@FaiselSadiq) February 17, 2021
So far as the Bar Standards Board is concerned, this is the system working as intended. As the blogger Crime Girl points out, the official guidance on sanctions says that “inappropriate sexual conduct in a professional context” that doesn’t involve a criminal conviction should normally be punished by a fine or short suspension.
Compare that to a finding of dishonesty against a barrister: the starting point there is disbarment, unless there are “clear mitigating factors”. Sexual misconduct — even if punished with a criminal conviction — only attracts the same default sanction if it leads to jail time.
Crime Girl calls this “out of step with acceptable behaviour in modern society; the threshold to be met before misconduct causes disbarment is far too high”.
And she’s not alone. Francesca O’Neill, an elected member of the Bar Council, used that organisation’s last meeting to highlight the “profound disquiet and concern of many women at the Bar” over the perceived leniency in sanctions.
Those demanding tougher action seem to be pushing at an open door. Bar regulators recently put out a statement noting the concern and pointing out that sanctions are under review.
Hinting that tougher punishments are coming down the track without following through would be a brave move, to put it mildly.
A case could be made for the status quo. You could argue that regulators are there to police professional misconduct, not odious personal behaviour. Yes, the examples above both took place in chambers, but what about misconduct outside the work context — like upskirting barrister Daren Timpson-Hunt?
If misconduct has already been punished with a criminal sentence, then the person has paid their debt to society. As the current guidance says, regulatory sanctions are not supposed to be “a second form of punishment”.
And if the misconduct wasn’t serious enough for a criminal prosecution, should the person really lose their entire career over it?
But many 21st century lawyers don’t draw bright-line distinctions between personal and professional behaviour.
Cornerstone Barristers recently booted out one of their members, Jon Holbrook, for tweeting that “The Equality Act undermines school discipline by empowering the stroppy teenager of colour“. Holbrook — who says he jumped before he was pushed — noted that the tweet came from a personal account that didn’t link him with Cornerstone at all; but that made no difference to his former colleagues’ view of his fitness for membership.
While Jolyon Maugham QC has claimed that Allen & Overy threatened to blacklist his chambers after he clubbed a fox to death with a baseball bat. Assuming that’s true (A&O aren’t commenting), it’s a good example of lawyers taking the view that personal behaviour should have professional consequences.
In that sort of environment, tightening the rules on sexual misconduct in or out of chambers is likely to be popular in the profession.
Let’s see how far the regulators go.
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