The case of Damian McCarthy v Bar Standards Board (2015) was considered by the Visitors to the Inns of Court on 2 July 2015 who ordered the rehearing of charges against Mr McCarthy ("M") on the basis
The case of Damian McCarthy v Bar Standards Board (2015) was considered by the Visitors to the Inns of Court on 2 July 2015 who ordered the rehearing of charges against Mr McCarthy ("M") on the basis that there was no merit in the argument that he would be deprived of a fair hearing either by reason of delay or by reason of the Bar Standards Board (the "BSB")'s witnesses having advance notice of matters that would be put to them in cross-examination.
Charges that M had produced four Rule 6 client care letters after the complaint had been made to the BSB and that he failed promptly to send a Rule 6 letter were found proved by the Disciplinary Tribunal ("the Tribunal"). In 2013, the Administrative Court dismissed M's appeal and subsequently on 15 January 2015 the Court of Appeal upheld M's appeal. This was on the basis that the lack of disclosure by the BSB of an earlier draft statement prepared by a main BSB witness which could have undermined his credibility was significant in that there was a real possibility that the Tribunal would have come to a different decision had disclosure been made.
The BSB sought a re-hearing on the basis that it would be fair. M challenged this on the grounds of delay and that the BSB's witness had an unfair advantage as he would now know the likely line of questioning in cross examination.
The Visitors reviewed the following criminal cases which considered the issues of retrials:
In R v Graham and Others [1997] 1 Cr App R 302 at 318 the Court of Appeal said that the exercise of judgment about whether to allow a retrial involved consideration of the public interest and the legitimate interests of the Defendant. The public interest is generally served by the prosecution of those reasonably suspected on available evidence of serious crime, if such prosecution can be conducted without unfairness to or oppression of the Defendant.
In R v Bell [2010]1 Cr App R 407 the Court of Appeal ruled that even a third trial was not prohibited as an abuse of process and relied upon the observations of Lord Bingham of Cornhill in Bowe v R [2001] UKPC 19 in which he said:
"there is plainly no rule of law in this country which forbids a prosecutor from seeking a second re-trial …there may of course be cases in which, on their particular facts, a second re-trial may be oppressive and unjust…whether a second re-trial should be permitted depends on an informed and dispassionate assessment of how the interests of justice in the widest sense are best served. Full account must be taken of the Defendant's interests…account must also be taken of the public interest in convicting the guilty, deterring violent crime and maintaining confidence in the efficacy of the criminal justice system…"
In light of these decisions, the Visitors concluded that they had the power to order a re-hearing on terms which they deemed appropriate, and there was clearly a public interest in there being a hearing of serious allegations made against a barrister. However, little weight was given to delay as a factor in the Court's discretion. Citing Porter v Magill [2002] 2 AC 357, the Court recognised that there is no requirement to demonstrate specific prejudice in order to establish the breach of the right to trial within a reasonable time. However, delay by itself is not a reason for staying a prosecution so the only question the Court had to consider was whether a fair trial is still possible.
The Court held that a fair trial would be possible. If both M and the BSB witness were called then both could be cross examined in as much detail as relevance permits. The Visitors accepted the BSB argument that there was no real risk of inequality of arms. Both sides know much more than would have been the case at the first hearing (if it had gone ahead properly) as to the points which can be out to them in cross examination.
The case is a useful illustration of how the requirements of fairness are fact-sensitive. The judgment of the Visitors makes clear that it will be necessary to establish sufficient prejudice before proceedings can be said to be abusive. Set against the recent SDT decision where a partner was rebuked for offering payments to witnesses that were dependent on their evidence or on the outcome of the case, the decision is an interesting addition to the canon of case law dealing with how witnesses act, give evidence, and are dealt with.
Charges that M had produced four Rule 6 client care letters after the complaint had been made to the BSB and that he failed promptly to send a Rule 6 letter were found proved by the Disciplinary Tribunal ("the Tribunal"). In 2013, the Administrative Court dismissed M's appeal and subsequently on 15 January 2015 the Court of Appeal upheld M's appeal. This was on the basis that the lack of disclosure by the BSB of an earlier draft statement prepared by a main BSB witness which could have undermined his credibility was significant in that there was a real possibility that the Tribunal would have come to a different decision had disclosure been made.
The BSB sought a re-hearing on the basis that it would be fair. M challenged this on the grounds of delay and that the BSB's witness had an unfair advantage as he would now know the likely line of questioning in cross examination.
The Visitors reviewed the following criminal cases which considered the issues of retrials:
In R v Graham and Others [1997] 1 Cr App R 302 at 318 the Court of Appeal said that the exercise of judgment about whether to allow a retrial involved consideration of the public interest and the legitimate interests of the Defendant. The public interest is generally served by the prosecution of those reasonably suspected on available evidence of serious crime, if such prosecution can be conducted without unfairness to or oppression of the Defendant.
In R v Bell [2010]1 Cr App R 407 the Court of Appeal ruled that even a third trial was not prohibited as an abuse of process and relied upon the observations of Lord Bingham of Cornhill in Bowe v R [2001] UKPC 19 in which he said:
"there is plainly no rule of law in this country which forbids a prosecutor from seeking a second re-trial …there may of course be cases in which, on their particular facts, a second re-trial may be oppressive and unjust…whether a second re-trial should be permitted depends on an informed and dispassionate assessment of how the interests of justice in the widest sense are best served. Full account must be taken of the Defendant's interests…account must also be taken of the public interest in convicting the guilty, deterring violent crime and maintaining confidence in the efficacy of the criminal justice system…"
In light of these decisions, the Visitors concluded that they had the power to order a re-hearing on terms which they deemed appropriate, and there was clearly a public interest in there being a hearing of serious allegations made against a barrister. However, little weight was given to delay as a factor in the Court's discretion. Citing Porter v Magill [2002] 2 AC 357, the Court recognised that there is no requirement to demonstrate specific prejudice in order to establish the breach of the right to trial within a reasonable time. However, delay by itself is not a reason for staying a prosecution so the only question the Court had to consider was whether a fair trial is still possible.
The Court held that a fair trial would be possible. If both M and the BSB witness were called then both could be cross examined in as much detail as relevance permits. The Visitors accepted the BSB argument that there was no real risk of inequality of arms. Both sides know much more than would have been the case at the first hearing (if it had gone ahead properly) as to the points which can be out to them in cross examination.
The case is a useful illustration of how the requirements of fairness are fact-sensitive. The judgment of the Visitors makes clear that it will be necessary to establish sufficient prejudice before proceedings can be said to be abusive. Set against the recent SDT decision where a partner was rebuked for offering payments to witnesses that were dependent on their evidence or on the outcome of the case, the decision is an interesting addition to the canon of case law dealing with how witnesses act, give evidence, and are dealt with.